Australian Rail, Tram and Bus Industry Union NSW v State Transit Authority [2008] NSWIRComm 1027 | Case summary

Australian Rail, Tram and Bus Industry Union NSW v State Transit Authority [2008] NSWIRComm 1027 | Case summary | Zoe

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14 This matter was first subject to compulsory conference proceedings before his Honour, Deputy President Harrison on 28 April 2006. A further compulsory conference scheduled for 18 May was rescheduled to 2 June 2006 at the request of the Union. However, that conference was subsequently rescheduled for 19 June at the request of the Ambulance Service where his Honour made certain recommendations with a report back scheduled on 6 July 2006. 15 In the interim, the matter was reallocated to Patterson C for further compulsory conference proceedings in Sydney on 29 June 2006 following a request from the Ambulance Service for the matter to be re-listed urgently following the imposition of bans by the Union. 16 Following the scheduled proceedings before his Honour on 6 July, the matter was subsequently reallocated to the Commission as presently constituted on 7 September 2006. Compulsory conference proceedings continued on 7 and 25 September, 24 October and 22 November 2006, 19 January, 24 April and 11 May and 21 June 2007. A number of scheduled report back conferences were rescheduled at the request of the parties to facilitate further discussions. 17 Inspections related to this matter and a separate industrial dispute concerning the parties were undertaken at John Hunter and Maitland hospitals and various Inner Hunter Sector Ambulance Service facilities on 22 and 29 November 2006. Directions for arbitration were issued on 11 May 2007 with the view to the matter being heard on 18 and 19 September 2007. Those dates were vacated on 10 September at the request of the Ambulance Service with the consent of the Union. The hearing was rescheduled to commence on 11 December 2007. However, that hearing date was vacated at the request of the Union and the consent of the Ambulance Service. 18 The matter was ultimately set down for hearing on 12 February 2008. Mr J Murphy of counsel appeared for the Union. Mr A Morris, solicitor, appeared for the Director of Public Employment and the Ambulance Service of New South Wales.

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19 The dispute was notified to the Industrial Registrar in the following terms: (i) The Ambulance Service has made significant changes to the Demand Protocol in regard to Access Block in the Hunter Sector, which involve the establishment of Fast Ambulance Release Teams, the use of Operational Road Staff to supervise patients in hospital emergency departments for extended periods, and attempted to introduce the Sydney Hospital Matrix into the Hunter. (ii) These changes are inconsistent with the Recommendation and Statement issued by his Honour Deputy President Harrison in IRC 3770 of 2004 on 11 July 2005. (iii) The Service has not consulted either HSU or its Hunter Sub branch in relation to these proposed changes, despite the requirement in his Honour's Recommendation to consult regarding changes, and for the parties to meet regularly. 20 On my analysis, the Statement and Recommendation of Harrison DP made on 11 July 2005 and referred to in paragraph (ii) of the dispute notification, appears to incorporate the express terms of the agreement reached by the parties and represents a detailed and comprehensive endorsement of the progress then made by the parties towards a reduction in access block and ambulance off load delay, following a series of cooperative and consultative discussions: This matter arose by notification pursuant to s 130 of Industrial Relations Act 1996 ("the Act") by the Health Services Union ("the union"). The notification advised of a dispute with the Ambulance Service of NSW concerning the application of an arrangement between the parties regarding protocols and procedures to deal with the circumstances of congestion and delay when a number of ambulances are delayed at a particular hospital emergency department, described as "access block" The matter was subject to a series of compulsory conference proceedings punctuated by discussions between the parties directed at finding a resolution to the serious problem of "access block", resulting in delay in discharge of patients from the ambulance to casualty with the obvious inconvenience to all, including a restriction on vehicles and personnel to respond to ongoing calls for assistance. The parties, with the assistance of the Hunter New England Area Health Service, have addressed the issues with appropriate diligence and a commendable spirit of co-operation. The results of their consultation are expressed in the following recommendation. 1. The Commission recommends by the consent of the parties that the ambulance off-load delay strategies agreed between NSW Ambulance Service management representatives and Health Services Union representatives be implemented. These are to be trialled over an initial 6-month period commencing on and from 8th July 2005 in the following agreed terms: (a) That the position of Ambulance Liaison Officer continues to remain in place to effectively manage future acute and unpredictable increases in ambulance off-load delay.

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(h) Parties to Meet Regularly : Service management representatives and the Health Services Union representatives will meet regularly to review on an objective basis the ambulance off-load delay impact to Ambulance Operations. Where a difficulty arises in relation to ambulance off-load delay and which cannot be resolved at a local level, via the established Hunter New England Area Health Service Liaison Committee the parties are at liberty to request the assistance of the Commission. (i) Consultation on Proposed Strategies/Changes : Should the Service propose during or following the six month review period, to vary the Ambulance Destination Protocol or Emergency Demand Management Protocol or the above listed and agreed strategies the Service will hold discussions with the Health Services Union regarding the feasibility of and reasons for the proposed change, any proposed strategies, and the duration of the further review with a view to reaching a consensus on ambulance off-load delay management. The Commission will be apprised of the outcome of these discussions and any difficulties that may arise. (j) No Industrial Action : There will be no bans, limitations or restrictions imposed by either party in relation to this matter during the six month period providing the demand management protocol is followed. (k) Referral to IRC : In the event that there are any outstanding unresolved issues between the parties following the continuance and implementation of the above strategies, the parties are at liberty to notify a dispute pursuant to the Industrial Relations Act 1996. (l) Mutual Protection : The respective rights of the parties are not prejudiced as a result of the implementation of the above strategies contained in this recommendation. Proceedings in matter no IRC 3770 of 2004 are so concluded. 21 The Union sought the following Orders: The Commission Orders the Director-General NSW Department of Health in respect of the NSW Health Services (Ambulance Division) and the Chief Executive of the Ambulance Service of New South Wales to vary the trial of the Demand Protocol Management System known as "the Matrix" implemented in the Hunter-New England area consistent with Deputy President Harrison's recommendation in IRC 3770 of 2004 delivered on 11 July 2005 in the following terms: 1. That a thorough analysis of that trial be conducted having particular regard to the impact of the trial having only 11 fields rather than the 18 fields in the previous system. 2. That a control trial be undertaken using the 18 fields that applied to the original system for a period of no less than six months. 3. That a thorough analysis be undertaken of the trial using 18 fields using the same criteria applied to the analysis of the original (11 field) trial. 4. That the most effective matrix model identified following the comparative analysis of the two trials be permanently implemented.

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36 Mr Al Qvist deposed he was presently an Ambulance Officer Paramedic and had been employed by the Ambulance Service for approximately 20 years. He had also been a member of the committee of the Union's Inner Hunter Ambulance Officers' Sub Branch for approximately 6 years and had held the position of Sub Branch Secretary for a period of two years. 37 Mr Qvist stated that since July 2002, he had been involved in issues relating to what is commonly called "hospital block" or "access block", which revolve around the offloading of patients at emergency departments and placing those patients into the care and treatment of hospital staff. 38 Mr Qvist stated that in response to a number of complaints from Union members concerning off stretcher delays at Hunter Hospitals, he designed a data sheet during October 2002 in an attempt to capture information relative to those delays. During the course of 2002, delays in hospitals were extensive and had received considerable media attention. He also recalled that industrial action was taken in an attempt to pressure both the Ambulance Service and the then Hunter Area Health Service to discuss the problems related to access block. 39 Mr Qvist deposed that despite a number of meetings between the Area Health and the Ambulance Services at the time concerning problems related to access block, little progress had been made. Accordingly, the matter was referred to the Commission where it was subsequently determined that the parties should meet to discuss and identify the key issues in relation to access block and design new strategies to reduce the off stretcher delays. He said the major objective was to address and maintain a "turn around" time of 30 minutes. 40 Mr Qvist deposed that the first meeting called to discuss access block was conducted on 3 March 2003 and chaired by Professor McGrath, the then Chief Executive Officer of the Area Health Service. Subsequent meetings were held weekly by what became the Ambulance and Hunter Health Emergency Department Liaison Group and later renamed the Hunter Area Health Service Ambulance Liaison Committee. It was Mr Qvist's evidence that the Liaison Group and Liaison Committee had identified a number of problems, including the process to manage off stretcher delays, inappropriate destination delivery of patients, ambulance batching, the mass presentation of ambulances to hospital emergency departments within a short time frame and the lack of communication between the Northern Operations Centre and the respective hospital emergency departments. As a result of those meetings, an Emergency Demand Management Protocol was designed, developed and implemented. 41 The Emergency Demand Management Protocol was the template that both Ambulance Service and Area Health Service staff used to manage off stretcher delays during access block. Further, it was envisaged at the time that the Protocol would be regularly reviewed to ensure the processes were efficient and they continued to manage and achieve a 30 minute ambulance turn around time. Mr Qvist deposed the Protocol was ultimately amended in early 2007 and became known as the 'Sustainable Access Guidelines'. A copy of those Guidelines dated 18 January 2007 was attached to his affidavit. 42 It was Mr Qvist's evidence that during 2003 the Liaison Group had identified the need for a new Ambulance Destination Protocol on the grounds that there was much confusion between Area Health Service and Ambulance Service staff concerning the appropriate destination of patients and further, it was his view that the existing Protocol was both confusing and not well known by staff. Accordingly, the then existing Destination Protocol was redesigned and set out as a multi coloured algorithm text box flow chart. The primary focus of the reviewed Protocol was "to ensure that the patient went to the right hospital the first time". A number of documents setting out some of the history related to the development of the Protocol between September 2002 and May 2006 were attached to his affidavit. 43 Mr Qvist deposed that he was involved in the design of both Protocols and later became "the keeper of those documents". He was also responsible for their distribution and documented amendments from time to time. He would periodically contact the appropriate personnel by email seeking feedback on various aspects of the Protocol. 44 In Mr Qvist's opinion, compliance with both the Emergency Demand Management Protocol and the Ambulance Destination Protocol were necessary to ensure a turn around time of 30 minutes. In that regard, Mr Qvist alleged that from time to time the Northern Operations Centre and some assistant Operations Managers were not diligent in adhering to the implementation of the Protocol. It was his view that the Protocols required constant diligence and monitoring to effectively reduce access block and off stretcher delays. Mr Qvist stated that the Ambulance Liaison Committee had identified a need for an education package to support the Emergency Demand Management and Ambulance Destination Protocols and in that regard he both designed and wrote guideline booklets for both Protocols. Copies of those materials were attached to his affidavit. 45 Following a workplace injury in 2003, Mr Qvist deposed he was placed into the newly created Ambulance Liaison Officer position as part of his return to work programme. The primary function of that position involved communication between the Area Health and the Ambulance Services on issues related to access block. The placement was subsequently extended beyond the initial three month trial. 46 Mr Qvist deposed that in October 2003 he was pressured by a senior manager to resign the Liaison Officer position so as to allow those restricted duties to be provided to another officer. He also contended the Area Health Service had come to rely upon the Liaison Officer role to resolve immediate issues when dealing with the Newcastle Operations Centre, particularly with respect to ambulance batching and the movement of patients to allow new admissions to the emergency department. Mr Qvist stated that he subsequently resumed the Liaison Officer function voluntarily, in his own time. 47 Mr Qvist stated that in March 2004 he was excluded from all involvement in the Liaison Officer position and participation within the Liaison Committee and the matrix project, at the direction from Mr Alan Loudfoot, Divisional Manager of the Ambulance Service's Northern Region. However, he was reappointed in July 2004 for a further 12 month trial period where he continued to develop the Emergency Demand and Ambulance Destination Protocols. At the conclusion of the trial period he continued his involvement with the Liaison Committee and the development of the Destination Protocol as a representative of the Union. 48 It was Mr Qvist's evidence that the implementation of the Emergency Demand Management and Ambulance Destination Protocols had led to a reduction in the duration of off-stretcher delays and subsequently attracted interest from both Sydney and Wollongong. 49 Mr Qvist deposed that in July 2005 he attended a meeting concerning the matrix in Sydney where 9 category fields were proposed compared to the 18 fields that then existed under the Inner Hunter Ambulance Destination Protocol. Shortly thereafter, meetings were convened between the Ambulance Service, the Area Health Service and the Union concerning the proposed implementation of the matrix in the Hunter accompanied by appropriate software upgrades. He said at the time he was made aware that the matrix could be expanded from the then-existing 9 fields in Sydney to accommodate the 18 fields in use within the Hunter. 50 On 9 May 2006 he attended a Matrix Migration Embedding briefing at West Leagues Club in Newcastle where it was explained that an 11 field matrix would be introduced in the Hunter. Mr Qvist further deposed that in his view the matrix proposed did not suit the needs of the Hunter. Meeting notes outlining Mr Qvist's views concerning the presentation were attached to his affidavit. Following that briefing, he proceeded to redesign the existing Inner Hunter Ambulance Destination Protocol so that it was compatible with the electronic format of the matrix. 51 In June 2006 the Sub Branch sought to become involved in the matrix design implementation. The Ambulance Service initially refused the Sub Branch request. However, following industrial agitation and with the assistance of the Commission, the Union became involved in the Hunter Matrix Working Party where Mr Qvist represented the Sub Branch. On 5 September 2006 he attended a workshop concerning the matrix, convened in response to concerns raised by the Area Health Service. Notes concerning that meeting were also attached to his affidavit. To date, the Ambulance Service have failed to respond to those matters.

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52 Mr Qvist stated that whilst the Matrix Working Party was proceeding with its deliberations, the Ambulance Service had commenced a roll out of matrix training. The Ambulance Service had not responded adequately to the 18 points of concern raised by the Union concerning aspects of the proposed matrix. 53 Mr Qvist deposed that during the Working Party's deliberations, he developed a guideline booklet for the 18 field version of the matrix that was subsequently sent to Sydney for comment and feedback. However, it was his opinion that the involvement of the Ambulance Service in the Matrix Working Party was "purely a display of false cooperation on behalf of the ASNSW and any outcomes that could have been achieved were never properly considered". 54 Mr Qvist said that when the Matrix Working Party had completed its deliberations in July 2006 the matrix was already operationally active in the Hunter. He observed that following the introduction of the matrix, there was no forum to discuss any problems associated with it and his efforts to have such matters raised before the Liaison Committee had been ignored. 55 Mr Qvist deposed that a fundamental problem with the matrix concerned its geolocating software which had caused problems in relation to access block. He said that at the time the Mater Hospital was constantly being swamped with "other category patients" because the software identified the Mater as being approximately 800 metres closer to the east than the John Hunter Hospital. At the time, the problem had caused the Mater Hospital's threshold level to be "constantly over" during the first fifteen minutes of the hour. As a result, the Mater Hospital had its threshold level reduced. 56 It was Mr Qvist's evidence that the matrix was initially implemented as a trial and was to be subsequently reviewed. He said that following the trial period, external consultants engaged by the Ambulance Service and NSW Health, Operational Research in Health (OHR), had provided a Report to the Ambulance Service. He contended the Report contained "false information and had incorrectly drawn a number of conclusions".

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57 Following receipt of the Report, the Sub Branch's request for a trial of an 18 field matrix was rejected. A request for a further trial of the matrix data was also rejected. However, the Ambulance Service subsequently agreed to supply patient data for the month of November 2006. That data and the results of a review undertaken by Mr Qvist were also attached to his affidavit. Following the review, Mr Qvist concluded that the matrix fields should contain the same clinical fields as set out in the Patient Health Care Record. Mr Qvist stated his conclusions were also supported by New South Wales Health Sustainable Access Program brochures and contended a broader matrix would enable a Nurse Unit Manager to better establish the type of patient being transported to the relevant hospital. 58 Mr Qvist stated that in his opinion an 18 field matrix would provide for a better transport decision to be made. It would also provide for more effective monitoring of patient flow and, where necessary, the manual re-distribution of patients to other appropriate hospitals which would reduce pressure on access block. In his view, the present matrix provides inadequate clinical information and is very restrictive in its application. 59 Mr Qvist contended the Sydney matrix worked well because of the number of hospitals within the respective Area Health Services and the fact that the geolocating software allowed ambulances to cross Area Health Service borders and boundaries. However in the Hunter there is a single major trauma hospital and a number of small satellite hospitals. In his view, the small hospitals were unable to deal with some of the clinical specialties that specific patients required. In addition, a matrix with increased clinical fields could be used in the future to monitor community pandemics where, for example, a field for respiratory problems could trigger the early warning of an outbreak of influenza. 60 In response to examination by Mr Murphy, Mr Qvist confirmed that part of the Union's complaint in relation to the 11 field matrix was the fact that approximately 60 per cent of patient transports fell into the "other category" which had a dramatic impact on a hospital emergency department, particularly where there had been an influx of patients by self or ambulance presentation. 61 Mr Qvist contended that in the case of a cardiac patient, a Nurse Unit Manager had the capacity to consult the ambulance status board in the emergency department and subsequently organise a cardiac monitoring bed for that patient. However, where the Nurse Unit Manager is confronted with the "other category", no details as to the patient's condition are known or set out on the status board. He elaborated that the "other" category could include respiratory and gastro patients, a patient with an altered level of consciousness or one requiring dialysis. In his view, the "unknown factor" under the matrix put great pressure on the emergency department to resource beds because they are "basically unaware of what's coming in". Further, there are some 64 per cent of patient transports where hospitals have no idea of the patient's condition and cannot plan for that admission efficiently. According to Mr Qvist, it is this "unknown factor" that impacts adversely upon patient flow and their effective treatment within the emergency department due to access block. 62 Mr Qvist explained it was quite daunting during periods of access block for patients, particularly the elderly or intoxicated, to be asked personal questions whilst under care in the ambulance bay area prior to their admission. 63 Mr Qvist said that where a child is admitted to a hospital under the paediatrics field, there was no way to distinguish whether the child had a broken bone or whether the child was postictal following an epileptic seizure. Simply put, the paediatrics field does not tell the emergency department what is wrong with the child. Despite paediatrics at the John Hunter Hospital having its own separate bed status, the fact remains that a paediatric admission forms part of the John Hunter threshold of seven ambulances per hour and when the threshold level for the hospital has reached seven, the matrix would direct a paediatric patient to either Wyong or Maitland hospital. To underpin this point, Mr Qvist said that a child with a cut finger who resided on the southern side of Charlestown would be directed to go to Wyong Hospital in the event that John Hunter Hospital had reached its threshold level. In such cases and in response to parental concern, it is commonplace for the ambulance officer to manually override the software so as to present the patient at the John Hunter Hospital where it might be found that a number paediatric beds not reflected in the matrix were empty. 64 Mr Murphy referred Mr Qvist to his written evidence where he had made a number of comments concerning the ORH Consultancy firm. It was Mr Qvist's evidence that the model used by ORH to create the 11 field matrix and establish hospital threshold levels did not take into account specific factors such as the availability of the rescue helicopter, which drew a large number of trauma and medical patients to the John Hunter from the Upper North Coast, Central Coast and Hunter Valley. In that regard, he said the helicopter was capable of transporting up to four trauma patients from a serious motor vehicle accident and in the event the helicopter brought four patients to the John Hunter, the threshold at the hospital for the next two hours would be three ambulances. These factors were not incorporated into the matrix by ORH. Mr Qvist confirmed that matters related to the helicopter were subsequently rectified. However, the Union's concerns regarding the re-admission of recently discharged patients for "warranty work" had not been addressed. Mr Qvist noted that this problem had been addressed in the original 18 field paper version of the matrix. He contended the implementation of the 11 field matrix had taken the hospital system back to a pre-18 field paper destination protocol where the John Hunter Hospital was "a beacon" and as such it becomes difficult to redistribute patients to other facilities so as to even out the workload and reduce the impact of access block. 65 In cross examination, Mr Qvist confirmed that his interest in Destination Protocol and Emergency Demand Protocol issues commenced in approximately 2002. He also confirmed that he had been active in the deliberations concerning the Protocols within the Hunter sector. He said that in or about 2003, the Ambulance Liaison Committee was established and that Committee comprised representatives of the Area Health Service, initially the John Hunter Hospital and later the Mater, Belmont and Maitland Hospitals. The Committee also comprised representation from the Ambulance Service and the Union. 66 Mr Qvist said he had been a member of the Liaison Committee for much of the time since its inception in 2003 and as part of his contribution to that Committee he undertook significant work on the development of the Protocols and was able to inject various experiences of ambulance officers and emergency department staff into the Committee's deliberations. 67 With respect to the Matrix Working Party established by Mr McPherson on behalf of the Ambulance Service in or about May 2006, Mr Qvist confirmed he was a member of that group, which had met on a number of occasions between May and June 2005. Whilst he described the Working Party as being "very one sided", he agreed Mr McPherson had explained that the purpose of the Working Party was to establish consultation about the introduction of the matrix package in the Inner Hunter Sector. However, he reiterated his disappointment that the Ambulance Service had ignored some 22 issues identified by the Union and subsequently raised in proceedings before the Industrial Relations Commission. 68 Mr Qvist said that on occasions, Mr Peter Rumble, a Committee member of the Sub Branch who "was knowledgeable" of access block issues and destination protocols, had attended Working Party meetings on his behalf. With respect to the 22 issues identified by the Union and put before the Matrix Working Party, Mr Qvist said that despite the opinion or pressure of the Ambulance Service, he was not deterred from articulating the Union's position. Mr Qvist confirmed that he had been afforded the opportunity to put a case in favour of an 18 clinical field matrix during deliberations of the Ambulance Liaison Committee.

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72 Ms Van Cleef identified the principal objective of the matrix and the wider strategic project undertaken at this time by the Ambulance Service and NSW Health was to: Ensure that the right patient was delivered to the correct hospital the first time; Decrease ambulance waiting time in Emergency Departments (off-stretcher time); Reduce the turnaround time for ambulances at hospitals so that they would be available to attend to other calls; Build capacity by improved demand management within the Ambulance Service and NSW Health through an automated system interface to hospitals through the Ambulance Status Board, a web based system that allows emergency departments to receive real time information about the number of ambulances expected to arrive at the hospital at a particular time and their condition. 73 Ms Van Cleef deposed two Sydney based Ambulance Liaison Officers had met with representatives from the Inner Hunter Sector in early 2005 to discuss the Ambulance Destination Protocol, an Inner Hunter paper based system that had been implemented to deal with the issue of offload delay. The Sydney matrix design included some of the features of that Protocol. However, the Ambulance Service and NSW Health subsequently engaged external consultants, ORH, to conduct an analysis of how the matrix would initially operate across the Sydney Division. The matrix was formally implemented in Sydney on 9 June 2005. 74 In or about December 2005, Mr Terry Clout, the then Chief Executive of the Area Health Service expressed an interest in implementing the matrix within the Inner Hunter Sector. Ms Van Cleef deposed Mr Clout subsequently met with Mr Loudfoot, Mr Rochford, Dr Nigel Lyons, Director, Clinical Operations and herself where the Ambulance Service was asked to develop and implement the matrix for the Inner Hunter Sector. With the assistance of ORH, the parties undertook a modelling process where appropriate thresholds for hospitals in the Inner Hunter Sector and expected improvements in patient flow were identified. As part of the modelling process, Ms Van Cleef deposed she conducted a review of approximately 10,000 Patient Health Care Records to determine, based on the protocols used to treat patients, the appropriate clinical field that each patient would fall into. 75 In or about September 2006 the Northern Sydney Central Coast Area Health Service also expressed interest in implementing the matrix and the Ambulance Service subsequently developed a matrix for the Central Coast. 76 Ms Van Cleef deposed she provided a mentoring role during implementation in the Inner Hunter and Central Coast Sectors, which included providing Mr McPherson with guidance and assisting with the presentation of explanatory briefing sessions for Ambulance Officers, Union representatives, frontline managers and hospital staff. The matrix was implemented in the Inner Hunter on 30 June 2006 and the Central Coast on 11 December 2006.

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1.3% of patients were not taken to an appropriate hospital. 83 Ms Van Cleef stated the matrix was subject to continuous monitor and review by NSW Health and the respective Area Health and Ambulance Services. The Area Patient Flow Logistics Group chaired by Mr Mark Britt, Senior Manager, Health Systems Performance Improvement Branch, was the governance body responsible for deciding on changes to the matrix. The Logistics Group was comprised of representatives from NSW Health, Sydney West, Sydney South West, North Sydney Central Coast, South Eastern and Illawarra and Hunter New England Area Health Services, the New Children's Hospital at Westmead and the Ambulance Service. The Logistics Group meets regularly and convenes weekly teleconferences to discuss issues of concern to the Area Health and Ambulance Services and NSW Health, including the operation of the matrix. The Logistics Group also conducts a bi-annual review of the matrix, based on both qualitative and quantitative data collected monthly from the CAD system. In her view, Ms Van Cleef said it was fundamental that any variation to the matrix required the agreement of NSW Health and the various Area Health and Ambulance Services. 84 Ms Van Cleef explained the Ambulance Service was currently divided into four geographic Divisions, each containing an Operations Centre and a dedicated CAD server. Both the Inner Hunter and Central Coast Sectors operate from the Northern Division CAD server and accordingly the matrix fields within both must be the same. Moreover, with four separate CAD servers in operation, it was very difficult for another Operations Centre to take over in the event of system failure. Against that backdrop, the Ambulance Service was moving to introduce an integrated State-wide computer system known as CADIUP to improve operational efficiency and provide redundancy capability in the event of system failure. When implemented, CADIUP would operate from a single CAD server and all Sectors would need to use the same matrix.

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87 In response to the orders proposed by the HSU, Ms Van Cleef deposed the case against undertaking a trial using 18 fields should take account of the following considerations: a) The trial would require the overarching approval of NSW Health and significant consultation across the Area Health Service, the North Sydney Central Coast Area Health Service and the Ambulance Service through the Area Patient Flow Logistics Group. b) A trial would have to take place in the Central Coast Sector as well as the Inner Hunter Sector by virtue of the fact that the two Sectors operate from the same CAD server. c) A trial would necessitate reprogramming of the MTDs and the interface between CAD and the MDTs and the Matrix software would also need to be reconfigured. d) A trial Matrix with 18 fields would need to be extensively tested prior to implementation. e) Ambulance Officers and Hospital staff would have to be re-educated in the use of the "trial" Matrix system. f) As a consequence of the trial, the Area Health Services, the Ambulance Service and NSW Health would have to accept changes to the reports generated by the Matrix. g) Due to the introduction of CADIUP, it is not possible nor is it feasible for the Inner Hunter Sector to operate with a different number of fields to the Sydney Sector. h) A trial would add a layer of complexity and complication to the Matrix and detract from the simplicity and safety of the system. Moreover, there would be no benefit to patients in trialling or implementing a Matrix with 18 fields. 88 In further evidence, Ms Van Cleef confirmed that between 2004 and 2005 the Ambulance Service, together with NSW Health and the Sydney Metropolitan Area Health Services, had worked together to create the Sydney matrix. She also confirmed that NSW Health together with the Ambulance Service and the respective Area Health Services continually monitor and review the matrix through the Area Patient Flow Logistics Group. 89 In cross examination, Ms Van Cleef said that work commenced on the development of the Sydney matrix "from scratch" and there was no system in operation in the Sydney area similar to that which was operating in the Hunter. She agreed that the underlying purpose of the 9 field Sydney Matrix was to acquire information as to the condition of the patient for two primary purposes: to ensure that the patient was delivered to the most appropriate facility the first time and to allow the hospital or facility to have some advance notice as to the condition of the patient before arrival. She generally agreed with the proposition advanced by Mr Murphy that information concerning a patient's condition provided by ambulance officers to the receiving hospital was beneficial. Ms Van Cleef also agreed that the management of the Ambulance Service in the Hunter thought that the 18 field paper based matrix provided appropriate information to ensure patients were delivered to the most appropriate facility the first time and further to provide that facility with advance notice of the patient's condition prior to arrival. 90 Ms Van Cleef disagreed with the proposition that an 18 field matrix system was more likely to give a better outcome than a system with less fields, such as the 11 that currently operate in the Hunter, particularly on the grounds that the matrix needs to be safe and simple for ambulance officers to use. In her view, the current Hunter 11 field matrix and the current Sydney 9 field matrix underpin the level of safety and simplicity required. 91 In response to the proposition that under the 11 field matrix approximately 60 per cent of patient transports fell into the "other" category, Ms Van Cleef denied this was an unsatisfactory outcome because the clinical allocations that fall under the "other" category can be managed by all hospitals. Accordingly, it was Ms Van Cleef's view that this position was of no consequence to the receiving hospital because it was capable of dealing with that particular clinical condition. 92 Ms Van Cleef agreed that a great diversity of conditions could fall within the "other" field and particularly in the case of paediatrics, where an ambulance could present a child with a severely broken limb or one with simply a cut finger. She agreed that both conditions fell under the paediatric field and little information was given to the receiving hospital about the condition of the paediatric patient, other than that the patient was a child. She disagreed with the proposition that a matrix system which identified a paediatric orthopaedic condition, as opposed to a paediatric minor medical condition, was a better system than simply placing all children into a single field category, irrespective of their condition, injury or ailment, on the grounds that the system in use needs to be safe and simple for ambulance officers to use. 93 In defence of the 11 field matrix, Ms Van Cleef said that some six weeks after implementation of the new matrix, the percentage of patients taken to the nearest hospital had increased from 63.1 per cent under the 18 field paper based matrix to 74.1 per cent under the new 11 field matrix. She said those figures were prepared by ORH from patient health care record data and the results had been validated by the Hunter Management Team and herself. 94 Ms Van Cleef denied that a "one size fits all" approach had been adopted in both Sydney and the Hunter. In that regard, she stated that the Sydney matrix had different categories and the Hunter's 11 fields were based on what the Department of Health and the Hunter New England Area Health Service believed were appropriate, given the various clinical services provided by the Region's hospitals. 95 Ms Van Cleef confirmed that upon the introduction of the CADIUP system, there would need to be a uniform matrix system in operation across the State including across the Sydney, Hunter and Central Coast Sectors. Ms Van Cleef also confirmed that the precise number of fields to operate under the CADIUP system would be determined by the State-wide Area Patient Flow Management Group chaired by NSW Health. 96 Ms Van Cleef said that she had been on parental leave for some time and was unaware whether a decision had been made to increase the number of Sydney fields to 11 or decrease the number of fields in the Hunter and Central Coast to the 9 that currently apply in Sydney.

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101 The Ambulance Service subsequently convened a number of discussions with the then Hunter Area Health Service and in or about March 2003 a committee known as the Ambulance and Hunter Health Emergency Department Liaison Group was formed to consider offload delay and possible solutions to reduce its incidence. This Committee was later renamed the Ambulance Liaison Committee and comprised representatives from the Area Health Service, Ambulance Service management and the Union. 102 Mr McPherson deposed that during 2003 and 2004 the Liaison Committee met regularly and those consultations led to the establishment of the Ambulance Destination Protocol and the Emergency Demand Management Protocol. He stated that the Ambulance Destination Protocol "was a document which dictated which hospital patients with particular conditions should be taken to", whereas the Emergency Demand Management Protocol "was a document which set out a step by step process involving both the Area Health and Ambulance Service management in managing incidences of offload delay". 103 According to Mr McPherson's written evidence, the Ambulance Destination Protocol was always regarded "as a dynamic document" by the Ambulance Service and the Liaison Committee and between 2002 and 2004 approximately 12 different versions were developed and implemented. During 2003 and 2004, Mr Qvist was acting Ambulance Liaison Officer. He was also an active member of the Liaison Committee and on occasions was responsible for the drafting, printing and distribution of amendments to the various Protocols. 104 Mr McPherson deposed the Ambulance Destination and Emergency Demand Management Protocols had significantly improved the turnaround time in the Hunter Sector. Following this success, the Sydney and Illawarra Sectors expressed interest in developing similar protocols to address offload delay. Ambulance Liaison Officers and Health Service representatives from Sydney and Wollongong subsequently visited the Hunter during 2005 to discuss the Hunter Sector's approach to the problem of offload delay. 105 During 2005, the Ambulance Service and NSW Health developed an electronic system called the "matrix" which incorporated a software program to determine the most appropriate hospital for an ambulance to take a patient to on the basis of the patient's condition, hospital thresholds and the location of the nearest hospital. The matrix was subsequently integrated with the Ambulance Service's Computer Aided Despatch System. The ultimate configuration of the matrix was resolved at a senior executive level within the Ambulance Service and NSW Health with a view to State-wide implementation. The Sydney matrix was implemented on 9 June 2005.

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108 During matrix implementation, Mr McPherson deposed a series of consultative arrangements involving the Union, the Ambulance and Area Health Services were implemented: 9 May 2006 - Seminar - Sector management and both Inner and Outer Sub-branches of the Union re proposed Matrix system and how it would operate in practice. Participants were able to question Sydney based representatives concerning how the Matrix "works in practice". 23 and 29 May 2006 - Seminars - Station Officers and facility/unit managers within the Area Health Service to address strategic reasons for implementation, issues related to demand management and Sector implementation and, lessons learned from Sydney implementation and plans for the Hunter. Mr Graeme Silver represented the Union on 23 May and Mr Qvist on 29 May 2006. May 2006 - Matrix Working Party established and comprised Mr Qvist representing the Union, Ms Christine Hausler representing Ambulance Officers, Mr Robert Dunn, a staff representative from the Northern Operations Centre, Mr Wayne Eshman, Mobile Data Terminals installation coordinator and himself - met 31 May, 8, 20 and 28 June, 7 and 12 July 2006. Ms Jenny Van Cleef, Manager, Sustainable Access and Patient Flow and Mr Daniel Comerford, Area Performance Manager and Project Director, State-wide Programs, NSW Health also attended the Matrix Working Party meeting on 8 June 2006. The purpose of the meeting was to consult concerning the introduction and implementation of the Matrix in the Inner Hunter Sector. In addition, Mr Peter Rumble and Mr Bob Hull also attended meetings on some occasions. Participants at Working Party meetings were able to put forward the opinions or suggestions they had regarding the Matrix and those opinions were considered on their merits. Meetings also discussed arrangements and the content of training in the use of the Matrix for ambulance officers. Following the consultative process undertaken through the Working Party meetings, some changes were made to the reference card representation of the Matrix, including the addition of a note on the bottom of the card suggesting that ambulance officers consider helicopter support in certain circumstances. Minutes of meetings were circulated and members reported back on the outcomes of issues raised at previous meetings. In addition, a number of staff briefing notes concerning implementation issues were distributed to all Hunter Sector staff. 109 Mr McPherson deposed the Ambulance Liaison Committee was dissolved at the end of 2005. However, it was reconstituted on and from 14 June 2006 where it became the forum for consultation involving the Union, the Ambulance and Area Health Services issues, including the matrix. Mr McPherson said he explained to the meeting on 7 July 2006 that the Working Party was intended to be a short term process to assist in the design and implementation of the matrix and would be wound up shortly thereafter to avoid duplication with the Liaison Committee, which also included the Area Health Service, a key stakeholder in future developments of the matrix.

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112 Following implementation on 30 June 2006, Mr McPherson said there was an improvement in the turn around time of ambulances and a reduction in offload delay within Inner Hunter hospitals. For example, Ambulance Service reports noted that during the week prior to implementation, the average ambulance turn around time was 29 minutes, whereas two weeks later it had reduced to 19 minutes. He had reviewed weekly reports comparing the average off stretcher time and the percentage of cases where the off stretcher time was less than 30 minutes for the current week with the equivalent week last year and concluded the recent and large increase in the volume of work for the Ambulance Service had led to an increase in off stretcher times. However, there was no evidence to suggest that the matrix had caused this increase. 113 Mr McPherson made the following comments in relation to the Union's case outline filed in these proceedings: a) The Matrix was introduced by the Ambulance Service at the State level and was intended to be implemented on a State-wide basis. It was not introduced on a trial basis and from the outset, Mr Loudfoot had informed him the Ambulance Service wanted to implement the Matrix in the Inner Hunter by the end of June 2006. In that regard, the Matrix Working Party and the project implementation team were working towards 30 June 2006 as the Go-Live date for implementation and the system went live on 30 June 2006. b) Contrary to the Union's contention, the consultation process between the Ambulance Service and the Union in relation to the implementation of the Matrix in the Inner Hunter Sector was extensive and the assertion that the Ambulance Service failed to consult in any meaningful manner was unfounded. c) The Ambulance Destination Protocol did not allow the Ambulance Service to capture data about the condition of patients in the same way that the Matrix now provides. Previously, the capture of such data was restricted to the use of Patient Health Care Records. d) The Matrix allows ambulance officers to exercise discretion in deciding which hospital to transport a patient to. They can also override the Matrix allocation on account of traffic conditions, clinical conditions, patient request or clinical trial. In such circumstances, ambulance officers press a button to override the Matrix's allocation and then nominate the hospital to which they propose to transport the patient. Discretion may also be exercised in the case of psychiatric patients where, in the opinion of the ambulance officer, the patient should be taken to James Fletcher Hospital, which is not a hospital listed in the Matrix. In such cases, the officer is required to contact the Operations Centre, which in turn contacts James Fletcher Hospital to confirm whether it can accept the patient.

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f) Mr Qvist contended a matrix with increased clinical fields could be used in the future "to give a real time appreciation of pandemics in the community". For example, a field for respiratory problems could be used to track respiratory outbreaks giving a sense of early warning concerning an outbreak of influenza. Contrary to the evidence of Mr Qvist, Mr McPherson stated the Area Health Service already had systems in place to track the advent of pandemics and he understood this was facilitated through the relevant triage section of hospital emergency departments. In addition, the Area Health Service had responsibility for and constantly reviewed a database to track the spread of disease. Accordingly, it was inappropriate to use the matrix to monitor community health matters 115 To conduct a trial of an 18 field matrix, Mr McPherson contended it would be necessary to expand software functionality to include the additional fields and subsequently conduct extensive training of hospital staff and ambulance officers in its use. More importantly, increasing the number of fields to 18 would put the Hunter Sector out of step with the rest of the Ambulance Service. Moreover, the Area Health Service, the principal stakeholder concerned, has not suggested the need for additional fields. 116 In cross examination, Mr McPherson confirmed that prior to the introduction of the 11 field matrix on 30 June 2006, a paper based patient allocation system had been developed to identify the appropriate hospital that a patient should be transported to based on their clinical condition. Mr McPherson recalled the development of that system commenced in or around the middle of 2002. While Mr McPherson could not recall the precise number of clinical allocation fields within the paper based patient allocation system, he did recall that it was a single page document that depicted graphically the clinical categories that specific hospitals could deal with. He said the system adopted had more than 11 clinical fields and was agreed to following discussions between the Ambulance Service, the then Hunter Area Health Service and the Union. He could not recall whether the tripartite arrangement reached by the parties had been subject to any form of ratification or sign off by NSW Health. 117 Mr McPherson confirmed that he was the most senior Ambulance Service officer involved in deliberations with the Area Health Service and the Union. However, on occasions, the Divisional Manager would also attend the meetings. 118 In response to a proposition that an 18 field system would provide more information for the benefit of ambulance officers and the receiving hospital, when compared to a system that contained less fields, Mr McPherson responded as follows: Well, it creates more fields, I agree, but the issues were more that if there was a particular category that could go to any hospital, then the rationale was that there wasn't a need to have a category for it and it could be addressed through the generalised approach of having the umbrella of a class called "other". 119 Mr McPherson agreed that the system in operation prior to 30 June 2006 was the product of tripartite discussions. However, in his opinion, the decision to take patients to a particular hospital or hospitals was more the responsibility of the relevant health representatives. Mr McPherson agreed that the previous paper based system and the fields adopted within it had some utility. He also agreed that under the previous system both ambulance officers and the relevant receiving hospital had a breakdown of seven identified categories that are now essentially unidentified because they have been incorporated into the "other" clinical category. 120 Mr McPherson disagreed with the proposition that the current 11 field matrix was an inferior system for the purposes of patient allocation. He said he was aware that a number of reviews had been undertaken following the introduction of the matrix in June 2006 and, to his knowledge, none of those reviews had criticised the current matrix or the number of fields that it contained. 121 Mr McPherson agreed that under the current matrix some 60 percent of patients transported to hospital fell into the "other" category and their clinical condition was unknown.

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122 In response to a question that, ideally, both ambulance officers and the receiving hospital should have information concerning a patient's clinical condition, similar to that which existed prior to June 2006, Mr McPherson said that, in his view, it is the role of the health system to establish what information is required, particularly on the grounds that it was party to the establishment of the 11 field matrix. 123 Mr McPherson said that the previous paper based system that was in operation had been developed on a tripartite basis with input from the then Hunter Area Health Service. He agreed that the Area Health Service saw some utility in the seven clinical fields no longer available under the more recent 11 field matrix system. 124 Mr McPherson accepted the general proposition that geographic differences exist between Sydney and the Hunter. He also agreed that a smaller number of hospitals exist in the Hunter compared to Sydney. In that latter regard, Mr McPherson also suggested that the workload for ambulances was less in the Hunter. Notwithstanding these obvious differences, Mr McPherson agreed that the range of clinical conditions that confront an ambulance officer attending to an emergency call was the same in the Hunter and Sydney. 125 Mr McPherson agreed with the proposition that the number of clinical fields in operation under the paper based system were greater than the current 11 fields under the matrix introduced on 30 June 2006. 126 Mr McPherson said the paper based system was varied on occasions following tripartite discussions. He referred specifically to a case where a patient was taken to Belmont Hospital and for one reason or another it was felt that the patient should have been sent to a more appropriate facility. Such deliberations may have led to the creation of an additional field to suit the particular circumstances of that case under discussion. However, the Protocol had to be readily understood by both ambulance officers in the field and also staff within the Area Health System. 127 Mr McPherson confirmed that under the current 11 field matrix, there was no capacity to create a new field as was the case with the previous paper based system. He explained this restriction was due to the fact that the current matrix was part of a New South Wales State-wide standard. Moreover, insofar as the technical requirements of the CAD system used by the Ambulance Service were concerned, Mr McPherson was unaware whether there was any physical impediment to the implementation of a matrix with 18 fields as opposed to 11. He further replied in response to questioning from Mr Murphy "Well, I suppose if you had the funding, anything is virtually possible". 128 With respect to the Union's contention that the Ambulance Service failed to consult in any meaningful way with the Union concerning the implementation of the 11 field matrix, Mr McPherson confirmed that although the Matrix Working Party convened at the time involved Union representation, the decision to roll out the new system on 30 June 2006 was a decision of management at the direction of NSW Health and there was no consultation with respect to that decision. Contrary to a proposition put to him by Mr Murphy, Mr McPherson said his recollection of proceedings before Patterson C on or about 28 or 29 June 2006 was that the Ambulance Service could continue its plans to "go live" on 30 June.

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SUBMISSIONS For the Union 129 Mr Murphy submitted the Union's contention was that the current 11 field matrix, when compared to the previous 18 field paper based system, represents an inferior system which impacts upon the manner in which ambulance officers are able to carry out their functions. Unlike the previous system, the current matrix has the practical result that approximately 60 per cent of patients transported by the Ambulance Service are classified in the catch all field of "other". The practical effect of that classification was that the clinical condition of some 60 per cent of patients does not fall within the other ten designated fields. Accordingly, ambulance officers do not have any certainty with respect to the most appropriate hospital to transport a patient. Additionally, the lack of patient information also deprives the receiving hospital of valuable information to prepare for the reception of those patients currently falling within the "other" category. 130 Mr Murphy submitted the issues that divide the parties were clearly set out in the relevant case outlines and the evidence filed. With respect to the arguments raised by the Ambulance Service concerning managerial prerogative, Mr Murphy submitted that Re Cram; Ex parte NSW Colliery Proprietors' Association Limited (1987) 163 CLR 117 had significantly narrowed the concept of managerial prerogative from what was thought previously to be forbidden territory as far as industrial tribunals were concerned. Mr Murphy referred to the evidence led in this matter and contended it could be shown that unreasonable demands were being placed on ambulance officers working under the new 11 field matrix. Mr Murphy submitted the previous 18 field matrix system was a product of tripartite consultation between the Ambulance Service, the Area Health Service and the Union commencing in 2002. Mr Murphy submitted that the original 18 fields were adopted at the time because the parties believed those fields were necessary and important for the operation of the patient allocation system. He stated that there was no evidence to suggest that the original 18 fields had no utility or were unnecessary. Rather, at the time of its development, the parties were looking at the best outcomes for patients and hospitals alike. Importantly, the tripartite consultations also examined the conditions under which ambulance officers worked and the frustration they experienced due to being delayed in queues outside of hospital emergency departments as a result of "access block". Simply put, the 18 field system developed with the support of Ambulance Service management was directed at alleviating access block and associated issues. It was both an industrial issue for ambulance officers as well as an issue which impacted upon patient care and hospital resource allocation. 131 Mr Murphy submitted that the expanded Sydney matrix had been implemented without reference to the experience of the Hunter matrix that had been developed in a consultative and tripartite manner. The 18 field matrix was simply abandoned in favour of the Sydney matrix for reasons that have never been articulated. As a result of the reduction of fields from 18 to 11, some 60 per cent of patients transported were now classified in the "other" category where both the receiving hospital and relevant Nurse Unit Managers are unable to prioritise their resources in the absence of knowing the specific condition of the patient being transported. In that regard, Mr Qvist's evidence remains unchallenged. Mr Murphy submitted the fact that a system that worked well had been discarded, gave rise to an industrial issue and the instant dispute was not one that resides entirely within the realm of managerial prerogative, particularly given the history of the matter, the involvement of the Union and its members in the development of the 18 field system now swept aside.

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135 Mr Morris submitted that the Union sought that the Director General of the New South Wales Department of Health, in respect to the Ambulance Service of New South Wales, and the Chief Executive of the Ambulance Service be directed to vary the Destination Protocol known as the matrix system that had been implemented in the Hunter consistent with his Honour's recommendation on 11 July 2005. 136 With respect to Order 1, Mr Morris submitted that the 11 field matrix introduced on 30 June 2006 was not a trial. Mr Morris submitted the Orders were far reaching and sought to implement a trial involving 18 clinical allocation categories. However, the current matrix as implemented was part of a management system that had been approved and adopted by the Ambulance Service, the Department of Health and the Area Health Services. Accordingly, Mr Morris submitted that the key question for the Commission to determine was whether it can, consistent with its principles and legal power, order the Ambulance Service to do something that it has decided it will not do. 137 Mr Morris submitted that in the light of the decided authorities, including the High Court decision in Re Cram; Ex parte NSW Colliery Proprietors' Association Limited, the Commission should not use its discretion to intervene in the absence of a demonstrated unfair imposition on employees. Mr Morris submitted that Ms Van Cleef had a responsible management position relevant to the development of the matrix and given her current and past experience in the Ambulance Service, she was an experienced person who had enormous insight into the issues which the matrix may pose. In her role as Manager Sustainable Access and Patient Flow, she was responsible for managing issues of delay in ambulance offloading in the Sydney Division. She also had some experience within other sectors of the Ambulance Service as a mentor in respect of offload delay and was responsible for overseeing the implementation of the matrix system in Sydney, the Central Coast and Inner Hunter Sectors. 138 Mr Morris submitted Ms Van Cleef had described the principal goals of the matrix were to ensure the right patient was delivered to the correct hospital and decrease ambulance waiting time in emergency departments. A reduction in waiting time would reduce off stretcher delay and the turn around time of ambulances, which would assist the Ambulance Service to build capacity through improved demand management. The evidence of Ms Van Cleef clearly explains the reasons for the implementation of the 11 field matrix and the role of the Hunter New England Area Health Service in that decision making process. Mr Morris referred to Ms Van Cleef's evidence in chief where she stated at p34 of the transcript: There would be no significant benefit in increasing the number of fields, because the addition of fields for conditions experienced by less than 1 per cent of patients or conditions which can be treated at any hospital would not change which hospital patients are allocated to by the Matrix.

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139 Further, Ms Van Cleef's evidence was that the primary goal in designing the matrix was to make the system safe and simple for ambulance officers to use across all levels of officers. It was her evidence that the inclusion of further fields would introduce additional and unnecessary complexity. 140 Mr Morris also referred to Ms Van Cleef's evidence that the introduction of the matrix had led to a 20 per cent decrease in access block following its implementation in Sydney, the rationale for the adoption of 11 clinical categories and how threshold levels for hospitals were determined. He also noted that ambulance officers were able to manually override the allocation system in certain circumstances. 141 Mr Morris also referred to Ms Van Cleef's evidence that following the introduction of the 11 field matrix, as opposed to the previous 18 field paper system, off stretcher times had decreased and the percentage of patients taken to the nearest hospital the first time had increased from 63.1 per cent to 74.1 per cent. Similarly the number of patients taken to an appropriate, but not the nearest hospital available, had decreased from 30.2 per cent to 24.6 per cent. Mr Morris stated the number of patients taken to an inappropriate hospital had decreased from 6.7 per cent prior to the implementation of the 11 field matrix to 1.3 per cent thereafter. Further no evidence had been called in this matter to counter the evidence of Ms Van Cleef or show any deterioration in performance standards in the 19 months following its introduction on 30 June 2006. 142 Mr Morris directed the Commission to the evidence of Ms Van Cleef that the matrix was subject to ongoing review at a senior level by the Area Patient Flow Management Group and it is in fact owned jointly by NSW Health, the Area Health Services and the Ambulance Service. It was his submission that the Union was seeking to override the authority of that body. 143 Mr Morris contended it was clear that the proposed introduction of CADIUP meant that the Inner Hunter Sector could not operate in isolation to the other three State divisions when the proposed integrated computer system becomes operational. Clearly, it will be impossible under CADIUP for the Hunter Sector to have a different number of clinical fields to those being used elsewhere in New South Wales. 144 With reference to Mr Qvist's evidence and the orders sought by the Union, Mr Morris submitted that any change to the matrix must be agreed upon by NSW Health or the respective Area Health Services and the Ambulance Service through the Area Patient Flow Management Group. Further, any trial would have to take place in both the Inner Hunter and Central Coast Sectors because both shared the same CAD server. Extensive software testing and staff education would be required. 145 Mr Morris further submitted that Ms Van Cleef's evidence clearly showed the circumstances behind the reasons for and the objectives of the 11 field matrix as opposed to the previous 18 field paper based system. Moreover, the evidence clearly draws the conclusion that the matrix is an essential part of a management system that is used by the Ambulance Service, the Department of Health and the respective Area Health Services. There was no evidence that the 11 field matrix was imposing unfair or unreasonable requirements on members of the Union or ambulance officers. 146 Mr Morris referred to a decision of his Honour, Deputy President Sams in Ambulance Service of New South Wales and Broken Hill Town Employees' Union [2004] NSWIRComm 73, a dispute that concerned the introduction of a particular roster. In relation to that dispute, Mr Morris drew the Commission's attention to the comments of his Honour set out under paragraphs 10 to 20 therein:

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16 In Re John Lysaght (Australia) Limited - Port Kembla - Slit Recoil Line Rates of Pay Award (unreported, Hungerford J, IRC94/2374, 12 March 1995), his Honour discussed the principle in this way: A question of manning is, it seems to me, concerned necessarily with the management of an employer's business. The long settled approach to such matters by the Commission is for it not to intervene by assuming the role of the employer but rather to assess whether what the employer proposes would impose unfair or unreasonable demands on employees, including unsafe work practices. So much was acknowledged in Re John Lysaght (Australia) Limited - Port Kembla - Slit Recoil Line - Rates of Pay Award when the present award was made. Specifically as to disputes about the level of manning, I refer to what was observed in the unanimous decision of the High Court in Re Cram; Ex parte NSW Colliery Proprietors' Association Limited (1987) 163 CLR 117 at 135-137: Many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an "industrial matter". A dispute about the level of manning is a good example. It has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work. So also with the mode of recruitment of the workforce. The competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards. Employees, as well as management, have a legitimate interest in both of these matters. … These considerations indicate that the objection voiced by O'Connor J in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted.

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17 In Re Steel Works Employees and Engine Drivers, &c (Australian Iron and Steel Limited - Port Kembla) Awards . [1956] AR 855 at 859-860, Richards J observed: The Company is entitled to decide upon and introduce its own system of working and only in very extreme circumstances would the Commission interfere with this right. In Re Iron and Steel Works Employees (Australia Iron and Steel Limited - Port Kembla) Award [1955] AR 663 at p665, when dealing with a question of manning at the soaking pits at the Company's works, the court ( Richards J) said; Prima facie, the Company has the right to manage its business in its own way and is entitled to exercise its own discretion in the manning of its plant. In order to obtain an order against the Company in relation to the manning decided upon by it in a case of this kind, the Union carries the onus of establishing that the work which the employee is called upon to perform on his shift is more than a fair shift's work under the conditions in which the work is to be performed. In Re Dispute Between the Federated Engine Drivers and Firemen's Association of Australasia (Coast District) and the Broken Hill Proprietary Company Limited [1950] at 371 Cantor J at p372 said: On the authorities, summarised the following is the legal position: First, an employer has the right to manage his own business in his own way; secondly, the Commission will not interfere with this right unless it is satisfied that intervention is justified because in the exercise of this right unjust or unreasonable demands or conditions are imposed, or because the action of the employer is taken in bad faith or amounts to victimisation or oppression or the like. However, where the Company has introduced a new system of working the Commission will readily intervene in relation to ancillary matters such as where it is shown that the manning laid down by the Company is insufficient to carry out the work required or if the working conditions are such that they warrant the awarding of specific spell time or special rates of remuneration.

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.... .... That Ambulance management actively pursue the presentation of the "Hospital Matrix Application" to Hunter England Area Health Service with a view of implementing the software tool to hospitals within the Hunter New England Area Health Service. 150 With reference to his Honour's recommendation that Ambulance Service management actively pursue the presentation of the hospital matrix application to the Hunter New England Area Health Service with the view to implementing the relevant software to hospitals within the Area Health Service, Mr Morris submitted this objective was established shortly after the introduction of the matrix in Sydney and foreshadowed the subsequent implementation of the matrix in the Inner Hunter Sector. 151 Mr Morris stated his Honour's recommendation required the parties to meet regularly during the initial six month trial period. The recommendation also set out the matters to be considered by the parties including response times and the impact of offload delay. The following parameters for consultation were set out under para (i): (i) Consultation on Proposed Strategies/Changes : Should the Service propose during or following the six month review period, to vary the Ambulance Destination Protocol or Emergency Demand Management Protocol or the above listed and agreed strategies the Service will hold discussions with the Health Services Union regarding the feasibility of and reasons for the proposed change, any proposed strategies, and the duration of the further review with a view to reaching a consensus on ambulance offload delay management. The Commission will be apprised of the outcome of these discussions and any difficulties that may arise. 152 Mr Morris submitted that his Honour's recommendation had the appearance of an agreement that had been adopted by the parties and subsequently put to the Commission for endorsement. In that regard, the relevant undertakings made by the Ambulance Service were that there would be discussions if a decision was made to vary the protocols and the reasons would be explained with the view to reaching a consensus with the Union. However there "was no obligation to do so". In that regard Mr Morris submitted the Ambulance Service had given "fair effect" to his Honour's recommendation when the matrix was introduced to the Inner Hunter Sector on 30 June 2006. In support of that proposition, the evidence of Mr McPherson sets out the consultation that occurred, his role as a representative of the Ambulance Service in its introduction, the problems of access block and the various responses made by the parties to alleviate those matters. It was also Mr McPherson's evidence that his role in implementing the matrix in the Inner Hunter Sector was "to consider the best strategy to implement the existing system at a local level". 153 Mr Morris contended it was also clear from Mr McPherson's evidence that the matrix package provided by the Ambulance Service for implementation in the Inner Hunter Sector included the relevant software, hardware and staff training package, as well as those officers involved in the training of staff and the installation of equipment. 154 With reference to consultation, Mr Morris submitted Mr McPherson's evidence showed that he was the relevant manager responsible for implementation and he was able to consult on those matters that he could reasonably be expected to consult about, namely the method or manner in which the matrix was to be implemented in the Inner Hunter Sector. It was clearly not open to Mr McPherson or those with whom he consulted to change the "essentials of the matrix". Mr Morris submitted that the evidence of Mr McPherson and Mr Qvist concerning the deliberations of the Matrix Working Party and the Ambulance Liaison Committee were matters about which consultation was appropriate. However, there was no obligation for the Ambulance Service to reach agreement with the Union or its representatives that sat on the Matrix Working Party or the Liaison Committee. Simply put, the obligation to consult, which was reinforced by his Honour "does not and cannot delegate from the ultimate responsibility and the right of management of the Ambulance Service to manage". 155 Mr Morris referred to the decision in Australian Rail, Tram and Bus Industry Union NSW v State Transit Authority [2007] NSWIRComm 162, a case that concerned the rostering of public holidays, where his Honour, Deputy President Harrison, observed: 88 Management hold a responsibility to determine business needs and may require employees to work where these needs require. The obligation of the employee is to meet all lawful and reasonable requests of the employer. 89 The process of consultation is to allow employees to understand and contribute to a consideration of business needs. Once the discussion is complete management hold the responsibility to decide upon the business needs. Employees retain a right through their union to invoke the disputes procedure should there be grounds to assert that management's decision is motivated by other than a genuine assessment of business needs. 90 That is not to say that the Commission will substitute its view of business needs over that of management, but may intervene if it were to be shown that a decision imposed harsh, onerous or unfair conditions upon employees. Merely being required to work on a Public Holiday would not of itself create such circumstances. 156 Mr Morris submitted his Honour's observations neatly encapsulate the position of the Ambulance Service, that the proper course for the Commission to adopt in this matter is to refrain from intervention, unless it is satisfied there has been some unreasonable imposition on employees. 157 Mr Morris submitted that in the event the Commission viewed the Ambulance Service's consultation as "hollow", as asserted by Mr Qvist in his evidence, that view does not support intervention by the Commission and the making of the orders sought by the Union. Mr Morris referred to his cross examination of Mr Qvist and submitted it was apparent that he was an active and forthcoming contributor to the debate concerning the matrix. Mr Qvist had raised aspects concerning implementation and the suggestions both he and other members of the Union had put forward "were taken on board and given effect to". 158 Mr Morris contended "there is absolutely nothing in the recommendation of Deputy President Harrison or in the course of the consultations that justifies an order to trial 18 fields in a matrix for allocating patients to hospitals". He further submitted that while the Union and some officers were quite passionate concerning the benefits of an 18 field matrix, the decision to implement an 11 field matrix was made by the management of the Ambulance Service and there is no evidence before the Commission to suggest that decision-making had been other than sound, informed and authoritative, nor has any material been submitted to show that the decision had imposed an unreasonable burden on a single employee. In conclusion, Mr Morris stated there was no evidence to suggest the matrix was working prejudicially to the interests of hospitals or patients. In Reply

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159 Mr Murphy referred to the evidence of Ms Van Cleef and the submissions of Mr Morris that the current 11 field matrix was safe for ambulance officers to use and, by implication, an 18 field matrix may in some way be regarded as being unsafe. Mr Murphy submitted there was evidence before the Commission that the 18 field matrix that existed prior to 30 June 2006 was safe, simple and capable of being implemented by ambulance officers. It had also been developed as a result of discussions between management, hospitals and officers. Any suggestion that a trial of an 18 field matrix would in some way create a safety issue or a system that was not sufficiently simple to be competently implemented was palpably wrong. 160 Mr Murphy referred to the decision of his Honour Deputy President Sams in Ambulance Service of New South Wales and Broken Hill Town Employees' Union where reference was made to the unreported decision of his Honour, Justice Hungerford in Re Re John Lysaght (Australia) Limited - Port Kembla - Slit Recoil Line Rates of Pay Award (IRC94/2374, 12 March 1995) where his Honour refers to the nature of management prerogative: A question of manning is, it seems to me, concerned necessarily with the management of an employer's business. The long settled approach to such matters by the Commission is for it not to intervene by assuming the role of the employer but rather to assess whether what the employer proposes would impose unfair or unreasonable demands on employees, including unsafe work practices. So much was acknowledged in Re John Lysaght (Australia) Limited - Port Kembla - Slit Recoil Line - Rates of Pay Award when the present award was made. Specifically as to disputes about the level of manning, I refer to what was observed in the unanimous decision of the High Court in Re Cram; Ex parte NSW Colliery Proprietors' Association Limited (1987) 163 CLR 117 at 135-137: Many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an "industrial matter". 161 Mr Murphy submitted the High Court's observations in Re Cram; Ex parte NSW Colliery Proprietors' Association Limited, echoed the proposition he had put to the Commission in his opening submissions, that given the history of this matter and the observations of the High Court in that case, it was clear that reliance upon management prerogative does not raise a jurisdictional impediment to this industrial tribunal. What it does raise is the issue of the exercise of discretion. 162 Mr Murphy submitted that given the history behind the development of the 18 field system and the input of ambulance officers as stakeholders in that development, together with the tripartite nature of the deliberations that underpinned that system, as described in the evidence of Mr McPherson, the issue before the Commission is one that ambulance officers have a legitimate interest in. It is also a matter that ambulance officers believe they had some level of ownership of and the decision to introduce the 11 field matrix had taken that ownership away. 163 Mr Murphy said the evidence of Mr Qvist underpinned and demonstrated a level of unreasonableness and unfairness, particularly on the grounds that ambulance officers were currently required to transport 60 per cent of their patients who were: lumped into the field of 'other' which impacts upon the manner in which they're able to perform their work, which impacts upon the manner in which the receiving hospitals are able to prioritise the utilisation of their resources and does impact upon the question of off stretcher time, blockage of hospitals and the like. CONSIDERATION

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164 The material before the Commission in this matter is supportive of the proposition that both the Ambulance Service and the Union share a common concern that offload delay is a major impediment to the efficient management of ambulance arrivals and their timely departure from the relevant hospital accident and emergency department. Indeed, the implementation of the 18 field paper based Destination Protocol in the Inner Hunter during 2004 is evidence of that common concern and the determination of the parties to work together in support of improved patient flow. 165 The evidence clearly highlights the fact that the Union's Sub Branch played an influential and pivotal role in the development and implementation of that paper based system and for his part, Mr Qvist "took ownership" of the system on behalf of the Union and its members. It is also clear that the commitment of Sub Branch officers to the retention of the 18 field Destination Protocol has been galvanised by the depth of that involvement. There is certainly no material before the Commission to suggest or imply that the 18 field paper based Destination Protocol was inefficient or, in the alternative, was not the major driver that led to a reduction in offload delay following its implementation under the umbrella of the Ambulance Liaison Committee. 166 No doubt at the time, the Union and its members believed the 18 field Destination Protocol, although subject to continuous and regular review, was a permanent arrangement. While speculative, it is a reasonable assumption that Union and its members involved in the implementation of the 18 field system would have thought it would form the foundation of the matrix "software tool to hospitals" referred to under paragraph (f), Main Objectives, of his Honour's Statement and Recommendation made on 11 July 2005. 167 There is also evidence, notwithstanding the Union's opposition, that ambulance capacity, including patient offload delay and patient allocation, has improved following implementation of the 11 field Destination Protocol in the Inner Hunter. 168 Unlike the previous 18 field paper based system, the current 11 field system classifies patients with conditions such as respiratory, paediatrics minor, gynaecology, oncology and haematology, renal distress, gastroenterology and recreational drugs and alcohol under the 'other' field category. The fact that these seven clinical conditions represent less than one per cent of all patient conditions was not challenged, nor was the Protocol directive that respiratory, paediatrics minor, gynaecology and recreational drugs and alcohol were clinical conditions that could be treated at all hospitals within the Inner Hunter. 169 The material and evidence submitted by the Ambulance Service was that there was simply no requirement to include a clinical field where that particular clinical condition represents less than one per cent of ambulance admissions. The Ambulance Service also contended the incorporation of additional fields to cover such clinical conditions were unnecessary on the grounds that their inclusion would increase the complexity of the system and put at some risk operational simplicity and safety. 170 The Union contends that the success of the 18 field Destination Protocol was due to its development over several years through a process of consultation, investigation and trial through the Ambulance Liaison Committee, with input from ambulance officers, senior Ambulance Service management representatives, emergency department and Area Health Service staff and the Union to underpin the goal of "Right Patient, Right Hospital First Time". There is certainly no material before the Commission to contradict that viewpoint. 171 The Union's opposition to the 11 field matrix introduced on 30 June 2006 was partly set out in MFI 3 and is grounded on the fact that it is an adaptation of the Sydney based protocol and is deficient when compared to the previous 18 field paper based system that "... allow(ed) for patients with specific conditions and illnesses to be taken to the hospitals in the Hunter that can currently cope with those patients". 172 The Union's opposition was succinctly encapsulated by the following reference in a Sub Branch Member circular dated 5 June 2006: ... our position is that the Destination Protocol that has been in place within the Hunter has worked fine and if an electronic version is to be adopted, that is fine as long as it is suited to our Hospitals and our on road needs. We will not be dictated to by Sydney people trying to force Sydney parameters on us. 173 The Union also contends that when the Area Health Service first approved the introduction of the new system in March and April 2006, it failed to consult with its own management, including relevant medical and emergency department personnel. However, no witnesses representing such personnel were called by the Union. Indeed, the Union relied solely upon the evidence of Mr Qvist. 174 The extensive evidence submitted by Mr Qvist on behalf of the Union demonstrates his concern about access block and his belief that the 11 field matrix does not deliver the efficiencies that both he and the Union contend were delivered to NSW Health, the Area Health Service and the Ambulance Service under the previous 18 field matrix system. 175 On the material before the Commission, there may be some correlation between the number of fields contained in the relevant patient allocation system matrix and the efficient delivery those patients to the most appropriate hospital the first time. Paediatrics within the Hunter may be a case in point. However, it is clear on the extensive materials, evidence and submissions presented in this matter that the configuration of the Destination Protocol currently operating in both the Inner Hunter and Central Coast can only be varied following NSW Health or Area Health Service and Ambulance Service approval through the relevant Area Patient Flow Management Group. That Group is also accountable for its decision to restrict the number of clinical fields to 11 in the Inner Hunter and Central Coast . 176 Notwithstanding its opposition to the 11 field matrix system, the Union has acknowledged that in certain circumstances, an ambulance officer is able to override the matrix and take a patient to an emergency department deemed more suitable to treat the particular clinical condition. However, in that event, the ambulance officer is required to submit an "exception report" to the Ambulance Service. 177 It was Ms Van Cleef's evidence that as ambulance work within the Inner Hunter and Central Coast sectors overlapped. It follows that the trial sought by the Union would need to apply across the Central Coast given a single CAD server operates ambulance dispatch within the Inner Hunter and Central Coast Sectors. Moreover, it also follows from her evidence that when CADIUP is fully operational, the number of clinical fields adopted by Area Patient Flow Management Group would need to be uniform as a single CAD server will operate State-wide.

[95]

181 Mr Morris relied on a line of authorities that support the proposition and conclude that the Commission does not interfere with the running of an employer's business or, in other words, managerial prerogative, unless the actions of management impose an unjust or unreasonable requirement on the affected employees. By adopting such an approach, the Commission seeks to maintain a balance between the recognition of the autonomy of management to decide how best a business shall be efficiently conducted and the protection of employees against unjust or unreasonable demands. Of course, it is the employer who carries the burden of justifying that its conduct is reasonable in the circumstances of the case and has not acted unjustly, harshly, or unreasonably. 182 The Union has argued strongly that the Commission's refusal to grant the orders sought would impose an unreasonable burden on the ambulance officers subject to this dispute and that burden should not be allowed to stand under the protection of managerial prerogative. Mr Murphy submitted intervention by the Commission would ensure industrial justice and would also be consistent with the more recent and enlightened view that the prerogative of management is not absolute and the matters subject to this dispute notification directly impact on the relationship between members of the Union and the Ambulance Service: Re: Cram: Ex parte N.S.W. Colliery Proprietors' Association Ltd and Others. 183 On the evidence of Mr Qvist, unreasonable demands were being placed on ambulance officers as a result of the 11 field matrix. Such demands were not substantiated in any great detail. Mr Murphy submitted that currently, ambulance officers "do not have any certainty with respect to the most appropriate hospital to transport a patient" as some 60 per cent of patients transported fell into the 'other' category. Further, the receiving hospital is deprived of information relevant to the patient's condition - information that was available under the previous 18 field paper-based system.

Australian Rail, Tram and Bus Industry Union NSW v State Transit Authority

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