Bankstown Foundry Pty Ltd v Braistina [2008] NSWIRComm 1136 | Case summary

Bankstown Foundry Pty Ltd v Braistina [2008] NSWIRComm 1136 | Case summary | Zoe

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10 The matter was listed for compulsory conference proceedings before Harrison DP on 10 October 2005. His Honour subsequently issued a recommendation that the Union suspend arrangements for proposed stop work meetings and adjourned the matter for report back the following day when the parties would discuss roster arrangements and the incidence of single officer crewing. 11 On 11 October 2005 his Honour issued a recommendation and stood the matter over generally pending the outcome of the trial recommended and accepted by the parties. Insofar as Cessnock and Nelson Bay stations were concerned, his Honour recommended all vacant roster lines be filled when the rosters were made up. The practical effect of that recommendation was that all planned absences were covered in the projected 14 week roster. Where a vacancy of more than two weeks occurred, the parties were directed to confer whether the vacancy was filled or not, having regard to all relevant factors, including the capacity to use overtime. The arrangements were subject to a six month trial with monitoring and assessment to be undertaken by a committee. At the conclusion of the trial, his Honour proposed the parties would assess its effectiveness and form the basis of a joint submission to the Minister for Health. 12 The matter was listed for further compulsory conference on 30 March 2006 at the request of the Union. Those conferences continued on 28 April, 6 and 25 July 2006 before re-allocation to the Commission as presently constituted on 7 September 2006. Conferences continued on 25 September, 17 and 23 October, 9 and 21 November 2006. Inspections were conducted at Belmont, Boolaroo and Rutherford ambulance stations on 22 and 29 November 2006. Conferences continued through 2007 on 21 February, 21 June where the Ambulance Service noted the success of the Belmont trial, 25 July, 31 August, 13 September and 20 September when the following Recommendation and Directions was issued: 1. This matter was listed for further compulsory conference proceedings in Newcastle today. Mr J Bailey , appeared for the Ambulance Service of New South Wales ('the Ambulance Service') with Mr P Elliott. Mr R Hull appeared for the Health Services Union ('the Union') with Mr P Rumball. 2. Following compulsory conference proceedings in Newcastle on Thursday, 13 September 2007 the Commission made the following recommendation: Having heard the parties this morning and the response from the Ambulance Service of New South Wales in respect of the joint submission, the Commission directs the parties, as a matter of urgency, to confer at 10.00am tomorrow, Friday, 14 September 2007 with a view to examining the prospect of conducting a trial period or introducing an extension of the roster maintenance arrangements applicable elsewhere in the sector as soon as reasonably practicable. The Commission shall convene a report back at 12.00 noon on Thursday, 20 September 2007. In view of this direction, I would expect that members of the Health Services Union refrain from taking any further action in respect of this matter. 3. The Commission was informed today that the issues related to single ambulance crewing and full roster maintenance within the Inner Hunter Sector of the Ambulance Service of New South Wales have been on foot since 1996. The Commission was also informed that the matter of full roster maintenance across New South Wales has been before the Commission on more than 50 occasions. 4. Consistent with the Commission's 13 September recommendation, the parties met in Newcastle on 14 September where a discussion took place concerning the cost implications of full roster manning at both Cessnock and Nelson Bay stations. 5. It is clear to the Commission that whilst some progress has been made elsewhere within the Inner Hunter Sector, the parties are presently unable to agree to a process of introducing full roster maintenance at Cessnock and Nelson Bay stations. 6. On 13 September, Mr Bailey tendered correspondence dated 12 September (marked "MFI 14") from the Chief Executive of the Ambulance Service, Mr G Rochford, addressed to Mr M Williamson, General Secretary of the Union concerning the Service's response to a joint Union/Ambulance Service submission concerning inner Hunter operational staff deployment submitted for consideration in November 2006. 7. The correspondence states that the Ambulance Service has commenced a review of the Rural Enhancement Program and it would be inappropriate to determine staff enhancements ahead of that review. Mr Rochford acknowledged that 4 new and additional positions had been created with overall sector coverage being maintained "... through existing staff, and these new positions and the provision of staff on overtime". However, Mr Rochford concluded "... the service will not presently agree to the further staffing increases contained in the joint submission". 8. The Commission was informed today that the Union is currently preparing a formal reply to the Ambulance Service's response to the joint submission. 9. Throughout the course of these proceedings, both parties have sought to have the matter dealt with in an orderly and rational manner. Through the conciliation process, the parties endorsed a proposal that has delivered full roster maintenance at Belmont station and a further proposal is under trial at Rutherford station. 10. On 22 November, 2006 the Commission conducted inspections of a number of inner Hunter ambulance stations including Belmont and Rutherford. The inspection at Belmont was made shortly after the Ambulance Service had agreed to a roster maintenance trial and it was abundantly evident to the Commission at the time that the Union and its members were prepared to co-operate fully with the Ambulance Service so as to ensure that rosters were maintained efficiently and without resort to excessive overtime. 11. In the Commission's view, both the Union, its members and the Ambulance Service viewed this trial as the "make or break" for the full roster maintenance claim at Belmont station. The success of the Belmont trial has enabled the Ambulance Service to provide full roster maintenance with minimal additional expenditure being incurred. 12. Against that backdrop, the Commission strongly recommends that the Ambulance Service gives further consideration to the introduction of full roster maintenance at Cessnock and Nelson Bay stations. 13. For its part, the Commission is prepared, if required, to assist the parties to monitor and assess the impact of full roster maintenance at these stations consistent with the principles of communication, co-operation and consultation that were harnessed by the parties in the Belmont trial. 14. Given the circumstances of this dispute, it is appropriate to direct that the Ambulance Service provides the Union with its reasoned response to the Commission's recommendation by the close of business on Friday, 5 October 2007. 15. The Commission directs the Union to honour its previous undertakings concerning the taking of industrial action. 16. This matter is stood over pending the response to this recommendation by the Ambulance Service. In the interim, either party is at liberty to seek the re-listing of this matter for further conciliation, mediation or directions for arbitration at short notice.

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15 Mr Murphy referred to my decision in Health Services Union and Ambulance Service of New South Wales re Changes to Demand Protocol [2008] NSWIRComm 1027 (the Demand Protocol case) and submitted that while a decision to send a single officer might be deemed something that was within the purview of managerial prerogative, this case was clearly distinguishable for a number of reasons. 16 Firstly, he deposed, the question of single officer crewing and the associated issue of roster maintenance had been the subject of consideration and intervention by this Commission for at least 26 years. Moreover, this matter did not involve a managerial decision which had neutral or no impact on officers. The practice of sending out single crew ambulances had a significant and adverse impact upon those officers directly involved. In that regard he stated it was not difficult to imagine the stress imposed on a single officer attending a trauma situation such as a cardiac arrest, or a serious asthma attack involving a child, compared to the normal situation where two officers would attend. 17 Mr Murphy stated that under the current practice, a backup crew of two was sent to support the single officer and effect transport of the patient to the hospital. Accordingly, in the case of serious trauma or cardiac arrest the backup crew could be required to travel long distances, for example, from Hamilton or Stockton to Nelson Bay under lights and sirens, putting themselves and the public at risk. There were also features of this case that were quite different from other cases where the "mantra of managerial prerogative" is utilised to persuade the Commission not to intervene. 18 Mr Murphy said that Cessnock and Nelson Bay were now the only two stations affected by single officer crewing and the associated issue of roster maintenance. Mr Murphy tendered a bundle of documents marked Exhibit 1 which provided a detailed history of the issues that formed the basis of this dispute, commencing with the decision of Senior Conciliation Commissioner Wells on 5 March 1982 in matter IRC 326 of 1981 Dispute between the Health Commission of New South Wales and the Health and Research Employees' Association of Australia, New South Wales Branch re Ambulance Service, Hunter Region. The dispute notification in that matter included the following: ... a further dispute relates to the driving of ambulances at Cardiff Station. On 25 February 1981 the Hunter Sub Branch passed a motion that a two man to a car situation be implemented at Cardiff as from 31 March 1981. As a consequence officers at that station have refused to allow ambulances to leave the station unless it is manned by two men....

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21 Mr Murphy submitted in all instances over the intervening 26 year period, the Ambulance Service had agreed with the concept of double officer crewing. However, against that background and the Recommendations and Statements of Harrison DP and the Commission as presently constituted in relation to this matter, Mr Rochford stated the following in his letter of 9 October 2007 to the Secretary of the Union: I refer to the proceedings before Commissioner Stanton on 20 September 2007 in IRC Matter 5194 of 2005 and the recommendation that the Service further consider the introduction of full roster maintenance at Cessnock and Nelson Bay stations. As I indicated in my correspondence of 12 September 2007, increases to operational staffing within the Inner Hunter have occurred over the period of the Rural Enhancement programme. These increases in operational staffing have achieved planned double officer crewing at each Inner Hunter station since 12 May 2007. I note significant increases in shift maintenance levels have occurred in agreement with the inner Hunter Sub Branch over a similar period. However, the occasion of single officer crewing at Cessnock and Nelson Bay may arise during dayshift resulting from casual absence or other short notice leave requirements. I also note the rate of casual absence in the Inner Hunter is significantly higher than the State average. This absence is impacting on the capacity of the Sector to provide double officer crewing at Cessnock and Nelson Bay through the allocated relief component and other resources. Accordingly, the opportunity to achieve double officer crewing at Cessnock and Nelson Bay resides with an improvement in the rate of Inner Hunter casual absence. The Hunter Sector Management will review the options available to achieve this endeavour and further advice will be provided to your Inner Hunter Sub Branch. The current Service review of the Enhancement program will make determination of future operational staffing requirements. Although double officer crewing at Cessnock and Nelson Bay will be provided whenever practical within current resourcing, the service cannot presently agree to further increases to the agreed in a hunter lift maintenance levels. I note that Commissioner Stanton's recommendation include at point16 liberty for either party to seek relisting of the matter at short notice for further conciliation, mediation or directions for arbitration. The service will assist in seeking to expedite the further progress of the matter in consultation with the Union and Commissioner Stanton's office. The Ambulance Service

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22 Ms Nomchong commenced her submission by stating the historical analysis put forward by the Union was only one part of the overall history of rostering and staffing within the Ambulance Service and there had been significant progress in the Hunter area over the 26 year period referred to by Mr Murphy. She contended Exhibit 1 showed that there had been a substantial increase in staffing and rostering arrangements over time. Changes to the deployment of staff and significant changes to rostering and award provisions had also occurred. She said these changes had mostly taken place as a result of agreement with the Union and not by the exercise of management prerogative. 23 Ms Nomchong referred to the following excerpt from the Recommendation of Harrison DP issued on 11 October 2005: 1. As of Saturday, 8 October 2005 the level of shift coverage at the following stations will be maintained: - Tanilba Bay day shift weekends, double officer crew - Morisset day shift weekends, double officer crew - Toronto day shift weekends, double officer crew 2. At Nelson Bay, Cessnock and Tanilba Bay stations all vacant roster lines will be filled when the roster is made up. This means that all planned absences are covered in the projected roster. 3. Where a vacancy occurs of greater than two weeks the parties will engage in consultation in respect to whether that vacancy is filled or not having regard to all relevant factors including the capacity for use of overtime. 4. These arrangements will be subject to trial for a period of six months with monitoring and assessment by a committee established by the parties to that purpose. Without limiting the monitoring committee the issues for examination will include: · occasions for single officer crewing · occupational health and safety issues · costs and cost implications · effectiveness and efficiency of resource allocation 24 Ms Nomchong subsequently took the Commission to the statement of Mr Peter Elliott and particularly to Annexure G, a document entitled 'Single Officer Crewing Review', the outcome of an agreed trial which had in fact proceeded over eight months. Ms Nomchong said the trial commenced on 1 November 2005 and ended on 30 June 2006. Ms Nomchong submitted the trial report concluded in part: The analysis conducted by month across the trial period from 1 November 2005 to 30 June 2006, for the purposes of illustration the results of the analysis are provided in annexure 2, showing decreasing trends of planned single officer crewing within the inner Hunter stations, Tanilba Bay, Nelson Bay and Cessnock. As shown by annexure 2, the incidences of single officer crewing were due to unplanned, short notice absence. 25 Ms Nomchong contended the trends identified in the trial report also existed today because of the rostering arrangements where no vacancies were left unfilled when double crews were rostered in advance. The only time single officer crewing occured was when there was a short term unplanned absence. Ms Nomchong said Mr Elliott had examined the overall statistics associated with the trial and concluded the "worst case scenario" was as follows: ...for the eight month period had the potential to increase the financial exposure to the effect of $243,415 or 31.9 per cent of the allocated overtime budget. 26 Ms Nomchong submitted whether or not those figures fully translated, they were an identifiable risk in circumstances where the Ambulance Service was already and had been for the past financial year, in excess of its overtime budget. The issue of further fiscal pressure on that budget was something which needed to be taken into account in balancing the interests of the Ambulance Service against the proposals put forward by the Union. 27 When asked by the Commission what other causes gave rise to the expansion of the overtime budget, Ms Nomchong stated "the overtime budget simply comes apart by reason of the sick leave itself, that is unplanned absences and the need to put people on in any event, not just in single officer crewing". 28 Ms Nomchong said following completion of the trial, the Union did not sign off on the agreement "despite the fact that it was agreed and despite the fact that the terms of reference were agreed". In addition to the trial report, the Ambulance Service also undertook the requested occupational heath and safety analysis. That analysis looked at all of the issues raised by the Union, including the use of mobile data terminals ('MDTs'), fatigue management, personal safety issues and risk assessments. 29 Ms Nomchong stated the result of the Joint Consultative Committee submission was that four full time employee equivalent (FTE) positions were allocated and deployed as permanent officers. She said that by agreement between the Union and the Ambulance Service, the additional staffing was not used to fill single officer crewing but was used instead to bolster rescue operations at Rutherford. In that regard, Ms Nomchong said that throughout the period there had been agreement with the Union to establish where new resources should be allocated. Ms Nomchong said there had been a lot of movement since the making of the 1998 shift maintenance agreement and different agreements as to staffing had been implemented from time to time. 30 Ms Nomchong reiterated the difference between rostering and shift maintenance. She said the position was that single officer crewing could not occur on any night shift because there was full roster maintenance on nightshift at both Cessnock and Nelson Bay. Moreover, there could not be single officer crewing on Wednesdays at Nelson Bay because on that day one double officer crew was planned and it had to be maintained. The minimum maintenance for Nelson Bay was for one double officer crew. Similar arrangements applied at Cessnock on Thursdays. 31 Ms Nomchong submitted single officer crewing would only occur if there was a very short term unplanned absence, such as a workers' compensation injury, sick or carer's leave by an officer at very short notice. She said when that situation occured at Nelson Bay, the double officer crew was maintained and there was a third officer available for call-out from Nelson Bay at the same time. Accordingly, single officer crewing occurred when the double crew in Nelson Bay was called out and simultaneously, the single officer was also called out to another call. She said in those circumstances the policy of the Ambulance Service, in agreement with the Union, was that a backup crew was sent immediately to assist the single officer. If the single officer reached the scene first and determined there was no requirement for the backup crew, the policy provided that he or she could call off the backup crew. 32 Ms Nomchong said the response times that were evident in the 2005/2006 trial showed two-thirds of all cases were responded to in less than 15 minutes. She said those cases represented less than one per cent of instances of emergency response call-outs. The more recent exercise undertaken by Mr Elliott to provide the Commission with updated information was set out in Mr Elliott's second statement, filed on 19 June 2008. In that review, Mr Elliott personally reviewed 3,834 patient health care records, applied the same terms of reference and examined the total number of emergency incident call-outs for Cessnock, Nelson Bay and Tanilba Bay over a five month period. At Nelson Bay, there were 20 call-outs over the five months in comparison to 1,301 incidences. In Cessnock there were only 12 out of 1,700 incidences. Accordingly, Mr Elliott's analysis showed the frequency of single call-outs had actually reduced down to 0.86 per cent of total responses to emergency incidences.

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33 Ms Nomchong said Mr Elliott also looked at backup times and whether or not some of the more "sensationalistic allegations" made by the Union concerned single officers having to present themselves at serious trauma incidents. In respect of the call-outs responded to by single officers, she said none involved life threatening situations and the call-out or response time for a backup crew to get there was 6 minutes for Cessnock and 13 minutes for Nelson Bay, an average of 11 minutes per call. She said that in the event of a serious trauma such as a multi-victim train crash, for example, the Ambulance Service had managerial staff and operational staff available as well as the Westpac helicopter service. 34 Ms Nomchong said the Commission was required to look at the way in which crewing had been managed over time. The situation had improved. There were no planned absences or planned single officer crewing. Moreover, the experiences of the single officer crews called out did not reflect the factual assertions put forward by Mr Murphy. In terms of staffing, she contended there had been significant increases of officers across the Region and since 2005, some 21 FTE officers had been allocated. However, by agreement with the Union, 7 were used to recruit patient transport officers. 35 Ms Nomchong referred to the rostering arrangements where, by agreement with the Union, rosters were set 16 weeks in advance. There was a 14 week roster where all vacancies were required to be filled and that roster must be posted two weeks before it was due to commence. The practical effect was that by the end of the roster period, any absences or planned absences which had come up in the meantime were required to be dealt with in the context of a roster which was set in stone some three months earlier. The Ambulance Service managed rostering by attempting to allocate real rather than potential needs. Ms Nomchong said they did that in the inner Hunter by moving staff around from one station to another on an actual needs basis. That is, if there was the need for three crews at Nelson Bay and only two crews were available, they would send one from Tanilba Bay or Cessnock, being the closest stations, or from further afield if they were not available. The Ambulance Service did not want to be restricted to having specific resource allocations at specific stations which would deprive them the flexibility of being able to move officers to where they were needed. 36 Ms Nomchong said the factual analysis of frequency and the occupational health and safety risks stood in stark contrast to the historical analysis presented by Mr Murphy. The Commission should ignore the history of this matter and rely on established industrial principles and intervene only where it could be demonstrated that not to do so would be unjust, unreasonable, harsh or oppressive. Ms Nomchong said that in Re Cram ex parte New South Wales Colliery Proprietors' Association Ltd (1987) 163 CLR 117, the High Court said: An industrial tribunal should exercise extreme caution before it makes an award in settlement of a dispute where the award amounts to a substantial interference with the autonomy of management. 37 Ms Nomchong referred to Mr Murphy's submission that the Commission should distinguish the principles applicable to intervention on a different basis to that adopted in the Demand Protocal case: First of all, single officer crewing, although we don't plan for it and indeed as is the case through all of the documents, it has been the goal to achieve double officer crewing. It hasn't been the goal and it hasn't been the stated goal of Mr Loudfoot nor the Service to ensure full roster maintenance and I think that my friend pointed out that our rights were reserved in the most recent correspondence on that particular issue. What the Service says is that it's not optimal to send out a single officer but it is better than no response at all. So that a single officer in attending a scene can commence treatment, can undertake an assessment and review of the patient and await what we now know to be a relatively short period of time before backup crew arrives, if it is in fact a serious trauma or something requiring more than one person. Secondly, Mr Murphy indicated that Nelson Bay and Cessnock are somehow stuck out on their own. Whilst that may be the case in relation to metropolitan or sub metropolitan regions it is not the case across the state and indeed there are instances in the north coast area, for example, where single officer crewing is arranged and agreed to by the staff there. Of course, there's the rapid response teams in Sydney and in Parramatta and so there are in fact a large number of instances in the Ambulance Service where we see single officers attending. 38 Ms Nomchong said in relation to the history of the matter and whether or not the Commission should simply intervene because 26 years ago there was an agreement, arrangement, commitment or an undertaking to Commissioner Wells was not really an applicable principle and ought not be the guiding principle in this industrial dispute: We are not stuck in time, we are a moving, dynamic, fluid organisation to which numerous changes have occurred over the last 26 years and to take these two stations in isolation and then compare it to undertakings that were made 26 years ago and hand it up to the Commission, saying, " Well, they said they were going to do something 26 years ago, they should be made to do it now ", is in fact a bit misleading because it takes it out of context and it also takes it out of specified industrial principles. 39 Ms Nomchong submitted that in addition to all the matters the Commission had been taken to, there had been a number of overall reviews of the Ambulance Service across New South Wales, including a Cabinet review where further FTEs were allocated. 40 Ms Nomchong also took the Commission to matters such as a threatened assault and said the Ambulance Service had specific policies in place concerning standing off where discretion can be exercised by the Operations Centre and the officer on the scene where there is a threat to personal safety. She said single officers did not work on night shifts. The Ambulance Service also had policies in relation to fatigue, high speed driving, occupational heath and safety, counselling and employee assistance. It was not sitting back and comparing itself to the position that was before Commissioner Wells 26 years before. It had in fact moved on fundamentally to address nearly all of the issues that had been put forward by the Union. 41 Ms Nomchong said another matter raised by Mr Murphy was the effect on the backup crew and the driving of distances. She said that was a distinction without a difference as on any particular shift, if a Cessnock crew drove to Nelson Bay, on the next day they might be required to do exactly the same amount of driving within the Cessnock area, in shorter trips. She said, in any event, there were options for a call-out which involve all sorts of resources, including the Westpac helicopter. She said the 2005 proposals were glossed over by Mr Murphy in his opening submission. However, one of the propositions put forward by Mr Loudfoot in August 2005 would have had the effect of eradicating single officer crewing by introducing 21 double officer crews. However, the proposal was rejected by the Union. 42 Ms Nomchong concluded by stating there were no distinguishable features in this case that warranted intervention by the Commission. The frequency of single officer crewing at Nelson Bay and Cessnock was incredibly low, at 0.86 per cent. She said the alleged adverse impact needed to be put in context as the Ambulance Service did not want to be seen to be saying, "there are no adverse impacts". The Ambulance Service acknowledged and accepted that it was preferable to have a double officer crew attend but the adverse impact and the sensationalistic approach taken by the Union were not made good by the facts. 43 Ms Nomchong said the Ambulance Service required the ability to manage its budget and rostering. She said estimates to the impact on the current overtime budget would be a fiscal impingement that was not warranted and in all of the circumstances, it was the Ambulance Service's case that no intervention was warranted, particularly in relation to the history of the matter and the factual materials provided. THE EVIDENCE

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44 A statement filed on 17 January 2008 comprised Ms Adams' written evidence. Ms Adams is currently the station officer at Stockton Ambulance Station. Attached to her statement was a document entitled Cardiac Arrest Protocol, Protocol 14. It was Ms Adams' evidence that in relation to the cardiac arrest drill and all other drills and protocols, the Ambulance Service said a single crew response would be backed up straight away. However, the response time was greater than the "averages" determined by Mr Elliott. 45 Ms Adams deposed that she had not been to the Industrial Relations Commission before and was present because she felt strongly about this issue as she had been to many incidents as a single officer and had peer supported many officers who had also been put in the situation of a single officer response. Ms Adams said she and her colleagues were "the bottom line" and she knew what they faced and what she had to do in her area of Stockton to back up Nelson Bay. She said if a single officer at say Nelson Bay or Tanilba Bay called for backup and she was at Stockton, it would take longer than Mr Elliott's 15 minutes average to get there. 46 Ms Adams deposed that the deployment of a back up crew to Nelson Bay from Stockton would leave Stockton with "limited or no response capabilities" and it was common "to hear over the radio of a Hamilton car being sent to Stockton when we are at Nelson Bay". Such delays were problematic for both officers and patients. 47 Ms Adams said in the event of cardiac arrest, the drill and all the protocols were not designed for single officer application. In that regard, a cardiac arrest drill clearly had the words "witness cardiac arrest, officer one and officer two". 48 Ms Adams said she had responded to a baby that was in cardiac arrest as a single officer when she was a district officer. She said as a district officer she worked alone and understood that was a feature of the job. However, she had the family screaming at her, telling her to do something and as a single officer, she was required to assess the scene including the posture of the patient. She said the baby was obviously small but if it was an adult man, she may have had trouble posturing the patient, particularly if he was in a bed or where she could not gain proper access. In that regard, Ms Adams stated: I have to consider external cardiac massage, the expired air resuscitation, the setting up of my Oxyviver, I've got to set up my defibrillator, I've got to work out how many joules I need for me to set that defibrillator, I've got to work out how I'm going to gain venous access, whether it's a cannula in the arm or as with the small child, nine months old, I had to screw that into the baby's tibia to try and get venous access to give that baby drugs that would try and save its life.... To do a cardiac arrest is extremely difficult with two people and I've been as a backup from Stockton to Tanilba Bay for two officers and you can't adequately do a full cardiac arrest drill when you're travelling 35 kilometres to get to Tanilba Bay when two officers are doing a cardiac arrest let alone one officer. In that situation, all I could do was go back to basics and ask the father if he could help me do mouth to mouth resuscitation. And to ask a family member to do that is extremely traumatic but in my mind if the baby was going to have any chance at all we needed to work together and try and achieve the best outcome. But I could hear the sirens coming and I was just like any member of the public, I was treading water and working as a single officer is like working with one arm tied behind your back and you know what you should do but you just can't do it all. I literally did mouth to mouth on that child without getting out all of my protective personal equipment that I should have and when my backup arrived I thought, "Thank God, I can do my job now, I can get the helicopter organised, I can get a landing zone organised" and out stepped a single officer. So, I didn't have a double crew backing me up, I had a single officer. 49 In response to questioning from Mr Murphy, Ms Adams said that the backup officer had travelled from Raymond Terrace to Medowie which would have taken about 20 minutes. She confirmed that she was based at Stockton and when asked about a job the preceding night said she had "travelled from Stockton to Mallabula on a casualty run". She said Tanilba Bay would normally cover that area, and it took her, at high speed, about 34 minutes to cover a distance of about 48 kilometres. 50 Ms Adams stated the distance between Stockton and Nelson Bay was approximately 50 kilometres and was hazardous when travelling under lights and sirens: It's actually quite a terrible road, Nelson Bay Road. It's quite foggy at times, particularly around Williamtown. We also have around Mallabula, Tanilba Bay, Nelson Bay Road, we have kangaroos and wallabies. It's quite a windy road at the best of times, there's no - besides the area of the dual carriageway further up towards Nelson Bay there's not a lot of area for cars to pull over to the side. It's a very high traffic road, as you could understand. There's only one road in and one road out, so at particular times of the day it's worse for the traffic, you know, heading home from Newcastle. So, there's a whole range of hazards in just getting there in the first place. 51 Ms Adams said although she did not have specific numbers, she could recall a number of occasions where she had to back up "singles" at Tanilba Bay and Nelson Bay. She had been station officer at Stockton for about 18 months and it had happened several times during that period. 52 In cross examination Ms Adams agreed that sending a crew out from Stockton to back up a single officer at Nelson Bay, thus leaving Stockton without cover, became an issue if at the same time there was a call in the Stockton area. Ms Adams also agreed that if Stockton's own ambulance was out within the Stockton area on a call and another call occurred, it would also be without cover. She agreed that the "without cover" issue did not solely apply to single officer crewing at Nelson Bay or Cessnock. Ms Adams said that in relation to single officer call-outs, whilst the situation was not optimal, it was better to get an officer there, treating the patient, than no officer at all. 53 Ms Nomchong asked Ms Adams about "a near drowning incident at Nelson Bay" described in her statement. In that regard, Ms Adams said she went to Nelson Bay to pick up the four wheel drive vehicle before going out to One Mile Beach. However, as it was not at Nelson Bay, she went back to Stockton to pick up their four wheel drive. She said she thought the incident occurred in November or December 2007 because in her statement written in January 2008, she had used the words "recently we were tasked..." 54 When questioned by Ms Nomchong whether she was absolutely sure the incident was in relation to a single officer crewing, Ms Adams said to the best of her knowledge it was. Ms Nomchong referred her to Mr Elliott's review of patient care files for single officer call-outs and said that he had no knowledge of any such incident in November or December or any time in the five month period he examined. Against that backdrop, she asked Ms Adams if she maintained her view. Ms Adams replied: Like I said, from the best of my knowledge on that day, that was what we were tasked to and the operations centre can do a search to find out - when I said we got called to a near drowning, that's not necessarily what the call came in as, so I'm not sure how the search would have been done with the information from the operations centre... You know, it could have been a person unconscious on the beach but, you know, as it turned out it was a near drowning. Ms Adams agreed that she was later called off and not required to attend the incident.

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55 Ms Nomchong referred Ms Adams to paragraph 12 of her statement in relation to a patient dying when she had attended as a single officer. She confirmed that it was the same incident she had spoken about in her evidence in chief in relation to a small child. Ms Adams agreed she was a district officer at the time and not part of an ambulance team. Ms Adams said the event occurred during day time and she was called out from home to attend because she was part of district officer management located within the area and identified as the closest available resource. She agreed that it was the policy of the Ambulance Service for management educators and similar staff to be called out as single officers to attend if they are the closest available resource. Ms Adams agreed that when she arrived the child was already in cardiac arrest and unconscious, but did have a shockable rhythm and was "very viable" Ms Adams' cross examination continued with the following exchange: Ms Nomchong: Q. All right, now, you've handed to the Ambulance Service this morning a protocol in relation to the procedure you attempted on the child on that day and it's called drugs and fluids intro-osseous, is that correct? Ms Adams: A. That's correct. Q. Now, would you agree with me that that is a very rare procedure? A. I've only done it once in almost 16 years. Q. Yes. And indeed what needs to occur - please correct me if I'm wrong - for this particular procedure is that you need to have a paediatric patient, is that correct? A. That's correct. Q. They have to be in cardiac arrest? A. That's correct. Q. You have to have been unable to administer any of the fluids by the insertion of an intravenous line? A. That's correct. Q. And only then do you use the intra-osseous method detailed in this protocol, is that correct? A. For Ambulance protocols, that's correct. Q. I see. Now, you say that's the only occasion you've ever had to use this particular protocol in your 16 years? A. Me, myself, but I've seen it many, many times before - - -

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56 Ms Adams confirmed the Ambulance Service provided a range of counselling and peer support services to distressed officers where required. There was no re examination. Mr Sean Brennan 57 A statement filed on 17 January 2008 comprised Mr Brennan's written evidence. Mr Brennan is currently employed as an Ambulance Officer, Level P1 at Tanilba Bay Ambulance Station. He has been employed by the Service as an Officer for 27 years. 58 Mr Brennan said it was common practice for Tanilba Bay ambulances to be deployed to Nelson Bay, either as a back up to a single officer response from Nelson Bay or for area coverage when the Nelson Bay ambulance was out of area on another case. He said in his view this would "not be world's best practice". 59 Mr Brennan deposed that over the 27 years he had been employed there had been a number of advances in medical equipment and treatment promoting early intervention which potentially result in shorter hospital stays for the patient. He said one of the more recent advances was the use of antithrombylitic drugs that have the potential for life saving intervention in certain cases before the patient arrives at the hospital. Mr Brennan said the 12 lead ECG procedure was based on two officers administering treatment at the scene and it would be "unacceptable to expect a single officer to commence advanced treatment then have to wait 30 to 40 minutes for assistance and then transport the patient to hospital". 60 In cross examination Ms Nomchong referred Mr Brennan to paragraph 3 of his statement where he said "it is common practice for Tanilba Bay Ambulances to be deployed to Nelson Bay, either as a back up to a single officer response from Nelson Bay or for area coverage when the Nelson Bay ambulance is out of area on another case". She asked him whether he was "rolling" the two types of events into one, that is, both the Nelson Bay ambulances being out as well as there being a single officer. He agreed that he was and when asked how many occasions he had been called out between 1 November 2007 and today in relation to the support of a single officer crew at Nelson Bay, he said it would probably be about once every six weeks, depending on the roster. 61 Mr Brennan agreed that it was mandatory policy for the Ambulance Service to back up a single officer call-out except in cases where no patient transport was required or the patient had refused to go to hospital. He said in these circumstances the double team could be called off. 62 Mr Brennan agreed the 12 lead ECG treatment was still being trialled. Mr Brennan agreed that in relation to that procedure, or a cardiac arrest or other type of incident, a single officer on the scene could commence an assessment of the patient and apply some initial treatment before a backup crew arrived. He said in certain circumstances, such as a car accident where relatives might arrive at the scene, the situation could get quite "out of hand with no police". 63 Mr Brennan agreed that in certain circumstances it might be preferable to have one person starting treatment than to have no one at all. However, he also said "it'd be optimal to have two officers there". Ms Nomchong asked Mr Brennan about the stand off protocol, where an officer feels there is a threat to his or her physical safety and can stand off until police or the other crew arrives. In that regard, he said:

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64 Statements filed on 11 January and 4 April 2008 comprised Mr Dunn's written evidence. Mr Dunn has been employed as Senior Operations Centre Officer in the Service's Northern Operations Centre since 1998. He has also been actively involved in Consultative Committees formed to facilitate consultation between the Service and the Union. 65 Mr Dunn said that as Senior Operations Centre Officer he supervised the distribution of ambulance resources throughout the geographical areas managed by the Northern Operations Centre. He ensured the distribution of ambulance resources, which were also governed by minimum service level requirements, were effectively utilised to afford the highest level of service provision in a timely and efficient manner. 66 Mr Dunn deposed he liaised with sector management teams daily concerning resource distribution, which included single officer deployments and the effectiveness of those deployments. He said single officer rostering, which occurred when an ambulance station did not have full shift maintenance on day shift, posed an OHS risk to the officer concerned. In that regard, he referred to the Ambulance Service Local Operating Procedure MOB/01 dated 1 July 2004 which stated in part: Due to the risk of injury to officers and the general public in the utilisation of MDT technology by single officers, it is important for operations staff to follow the appropriate guidelines for single officer responses. 67 Mr Dunn deposed the MDT was a mobile data terminal that enabled receipt of information such as directions to the call location, details of the patient's clinical condition and potentially dangerous or violent situations that might confront the officer on arrival. The MDT cannot operate under a single officer response and all information must be passed to the officer verbally by radio whilst en route to the location. 68 Mr Dunn deposed single officer crewing occurred at Cessnock and Nelson Bay three to four times per week on a regular basis due to unplanned absences. 69 Mr Dunn deposed the Senior Operations Centre Officer was under instructions to ensure every single officer response was immediately backed up by another officer or crew from the adjacent area. He also said the frequency of single officer crews was increasing in response to a six to eight per cent increase in emergency calls over the past six years. Operational impediments such as patient offload delay at hospitals could impede or delay the immediate dispatch of another officer or crew. 70 Mr Dunn stated double crew officer back up was dispatched on occasions to Nelson Bay from Tanilba Bay, Stockton, Raymond Terrace and Hamilton stations with travel times of 30 to 60 minutes. Similarly, resources were deployed from Kurri Kurri, Maitland, Beresfield and Toronto to back up a single officer response from Cessnock station. Travel times varied from 15 to 35 minutes. He said these deployments could adversely impact on operational efficiency causing delays elsewhere within the Region. 71 Mr Dunn deposed single officer rostering had been the subject of discussions with management since 2002. It was an onerous position and there was no guarantee of a safe working environment. The risk of physical injury to the officer was real, as was the risk to patient care in emergency situations where two officers were required to perform the protocols necessary to stabilise a patient's condition. Put bluntly, a single officer could not effectively maintain patient airway, breathing or circulation in cardiac arrest, unconscious or multiple trauma situations. On occasions, members of the general public had assisted single officers in the provision of patient care. 72 In his second statement, Mr Dunn referred to the written evidence filed by Mr Loudfoot and Mr Elliott. He said the Union agreed to the conversion of ambulance officer positions to recruit FTE PTO's because at that time emergency response ambulance vehicles were performing routine transport of patients on a frequent basis. Accordingly, the Union sought to ensure routine/medical transport requests were diverted to passenger transport vehicles to allow emergency vehicles to be readily available for emergency cases. Mr Dunn said that unfortunately PTO staff rosters and vehicles were not maintained by local management and when those rosters were depleted through unplanned absences, holidays and the like, emergency response vehicles covered patient transport case loads reducing the capacity for double officer crews to respond to emergency cases in a timely manner.

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78 Statements filed on 3 March and 19 June 2008 comprised Mr Elliott's written evidence. Mr Elliott has been employed by the Ambulance Service since 1987. His current position was Assistant Operations Manager, Hunter and, Resource Manager, Hunter. He is responsible for a range of functions including human resource management, rostering and clinical service delivery. 79 Mr Elliott deposed the Inner Hunter Sector comprised 16 ambulance stations employing some 260 full and part-time officers. Each station engaged permanent and relief officers. The role of a relief officer was to cover vacancies due to annual leave, long service leave, workers' compensation or short notice absences due to illness, injury or family leave. Planned leave and unplanned absences may cause shift vacancies across the roster line. 80 Mr Elliott explained unplanned absences were sometimes covered by a "spare" officer who was not required on the station roster, part time officers, mentor/trainee double officer crews or by recalling an officer rostered off at overtime rates (dropped shift overtime). He said dropped shift overtime was very expensive. 81 Mr Elliott deposed the 14 week roster cycle provided for an effective allocation of relief officers. Those rosters provided planned double officer crewing 24/7 at each Inner Hunter station including Cessnock and Nelson Bay. 82 Mr Elliott stated deployment levels for Inner Hunter stations were governed by the Shift Maintenance Agreement negotiated in or around 1998. Consistent with the recommendation of Harrison DP in this matter on 11 October 2005, all roster lines at Cessnock and Nelson Bay are full when the roster is posted. Consistent with that recommendation, the parties conferred in relation to absences greater than two weeks, for example, workers' compensation, to establish whether the roster could be filled having regard to available resources. Mr Elliott also explained in detail the nature of rostering and shift maintenance levels at Cessnock and Nelson Bay. 83 Mr Elliott deposed he had worked as a single officer crew and was aware of the clinical priorities that prevailed upon those officers. In his direct experience, single officer crewing occurred primarily in response to unplanned absences that were difficult to cover in a timely and cost-effective manner. 84 He stated that the proposed draft orders filed by the Union would not necessarily eradicate the current problem for the following reasons: (a) Double officer crews may be present at each of the 16 branch ambulance stations and an additional single officer is available; (b) A short notice absenteeism close to the commencement of shift may occur and an ambulance officer is single for an interim period until arrangements can be made to provide a second officer; (c) Each operational manager, paramedic educator and clinical training officer may respond as a single officer response; (d) Single officer crewing occurs in rural centres during some 'call- out' situations where an ambulance officer responds to a patient and commences treatment, and is teamed up with second response. 85 In response to the contention of the Union that single officer crewing decreased the standard of care to patients as Ambulance Service "protocols and procedures are designed around double officer crewing", Mr Elliott stated in his experience, officers were assessed during their clinical recertification on their ability to deliver an appropriate standard of care. He said there were circumstances where an officer might be required to commence treatment themselves whether or not they were part of the deployed single or double officer crew. Whilst cardiac arrest or critical patient injury was challenging for a single officer crew, that officer was required to assess and plan how best to deliver patient care "based on addressing clinical priorities". 86 Mr Elliott deposed the Northern Operations Instructional Circular dated 12 December 2001 and attached to his statement, recognised a single officer response must be immediately backed up by another officer/crew from either the same town or an adjoining town. Stand-off guidelines were also in place for incidents deemed potentially violent, unsafe and requiring police assistance. 87 Mr Elliott also deposed a Single Officer Crewing Committee was established to examine Union concerns related to workplace stress and the Risk Asessment Unit had undertaken a risk assessment in consultation with Rutherford Rescue Unit prior to the August 2007 staff enhancement. 88 Mr Elliott explained the Ambulance Service had introduced a computer-based rostering package to facilitate effective roster management. Roster lines could be projected forward to identify planned leave and assign appropriate relief staff to known vacancies. An Inner Hunter roster board was also maintained at Hamilton Station setting out each officer's weekly shifts, roster line vacancies and those officers who were absent on leave. 89 Shift vacancies and the availability of relief staff were recorded in a roster diary maintained by the Resource Manager and the duty shift supervisor. Unplanned absences were also recorded in the diary on a shift by shift basis. The Northern Operations Centre actively monitored officer availability and forecast short absence relief availability weekly in advance. 90 Mr Elliott deposed ambulance officers were inclined to apply for annual leave when: They are projected on the roster lines with the greatest hours for the week to maximise their recreational time away from work.

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He said planned leave was managed consistent with the relevant award and legislative provisions. The Ambulance Service sought to achieve an equitable distribution of annual and long service leave across the calendar year to ensure relief officer capacity. Other planned leave such as training school leave was also arranged to ensure appropriate relief was available. 91 In relation to the statement of Mr Dunn filed on 11 January 2008, Mr Elliott deposed it was his understanding Northern Operations Centre dispatchers provided updated information to single officers verbally over the radio network. He also deposed ambulance officers "stand off" the incident where information suggested it may be unsafe and in those circumstances, the officer waited until additional assistance was sourced by the Northern Operations Centre. He broadly agreed with Mr Dunn's assessment concerning the rosters applicable at Cessnock and Nelson Bay. 92 Mr Elliott also deposed that in response to Mr Dunn's comments concerning growth of services and limitations upon resources, the Ambulance Service was currently subject to an Operational Review by the New South Wales Government. A review of the recently completed Rural Staffing Enhancement Program had also been initiated. With respect to Mr Dunn's assertions concerning the unavailability of backup crews for all single officer responses at Cessnock and Nelson Bay, Mr Elliott deposed no evidence was provided to support those claims. He also stated the Operations Manager had, on occasions, approved the engagement of additional crews on shift overtime to meet peak demands. In any event, it was not possible to completely eliminate the practice of single officer crewing. 93 In addition to his written statement, Mr Elliott confirmed he had conducted a review of patient health care records for the period 1 November 2007 to 31 March 2008 and from those records he could not recall a "near drowning at One Mile beach" attended by a single officer crew. He also confirmed that while the cardiac arrest protocol sets out the duties for two officers, it was his opinion that it was important to have a trained officer on the scene to commence treatment, rather than wait for a double crew to arrive. 94 With regard to Ms Adams' evidence, he was unaware of any other single officer attending an incident and performing an intra-osseous cannula insertion. It was a rare procedure. 95 In a second statement filed on 18 June 2008, Mr Elliott deposed that between 1 November 2005 and 31 March 2006, single officer responses by Cessnock, Nelson Bay and Tanilba Bay stations represented one per cent of the total responses to emergency incidents at these stations. Further, over the period 1 November 2007 to 31 March 2008, the incidence of single officer responses as a percentage of total emergency incidents was 0.7 per cent for Cessnock and 1.5 per cent for Nelson Bay. No incident involved life threatening trauma or medical conditions. Over the same period, he deposed the average back up time for Cessnock was six minutes and 13 minutes for Nelson Bay. In the event of serious trauma, the Westpac helicopter was available. Mr Elliott also set out the driver training requirements of ambulance officers and noted "urgency of duty does not justify driving at a speed excessive in the circumstances". 96 In relation to Mr Dunn's second statement filed on 4 April 2008, Mr Elliott confirmed that substantial efforts were made by the Ambulance Service to cover unplanned absences and, in any event, the incidence of single crewing at Cessnock and Nelson Bay stations was very low. 97 In cross examination, Mr Elliott stated an "emergency response" could vary from a broken nose at a football match to cardiac arrest. He agreed it was desirable for a two officer crew to attend such incidents. He referred to the cardiac arrest drill and stated while it was designed for two officer operation, it was possible to defibrillate and then undertake CPR. Mr Elliott said he had undertaken such tasks himself and described the activity as "difficult" rather than "stressful". 98 Mr Elliott confirmed late notice absences such as sick leave were a common cause of a single officer response. He also confirmed that at other stations in the Inner Hunter, such as Morisset, there was agreement to fill short notice absences. However, at Cessnock and Nelson Bay, the officer left on duty due to short notice absence became the single officer response. 99 Mr Elliott agreed the stress incurred by a single officer responding to a serious asthma attack, cardiac arrest or patients in life threatening situations could be avoided if the practice adopted in all Inner Hunter stations, with the exception of Cessnock and Nelson Bay, was implemented. 100 With regard to his evidence that the average response time for a double crew back up at Nelson Bay was 13 minutes, Mr Elliott said he had examined patient health care records and Northern Operations Centre data to "point when that vehicle arrived on the scene and subsequently when the back up arrived". 101 Despite his evidence that between 1 November 2007 and 31 March 2008 there were no single officer responses at Nelson Bay involving life threatening situations, Mr Elliott acknowledged the work of ambulance officers was volatile and the results achieved between November 2007 and March 2008 may have been an exception to the norm. He agreed that where a single officer may have to wait say, 13 minutes for back up crew to arrive, it would be difficult "to do the things that are set out in the cardiac arrest drill." 102 Mr Elliott stated Stockton crews were a resource used to back up single officers at Nelson Bay and confirmed the drive from Stockton to Nelson Bay would take approximately 35 minutes. He agreed that situation would be more stressful than the average of 13 minutes. 103 Mr Elliott confirmed the actual cost of implementing dual officer crews at Belmont in terms of overtime payments was less than initially anticipated. However, there were many variables that impacted upon unplanned leave and the Belmont trial proceeded on the foundation of co-operation between sub-branch delegates and management. He agreed the cost of full roster maintenance at Cessnock and Nelson Bay could be less than the current estimate of some $200,000. Mr Elliott also agreed with the proposition that the Ambulance Service had been working toward the elimination of single officer responses for many years. 104 In re examination, Mr Elliott confirmed his view it was desirable to have a double officer crew attend "a more serious case". In respect of cardiac arrest, he stated it was highly desirable to get treatment to the patient "because there's a body of evidence that suggests early defibrillation is what is required". 105 In relation to a single officer response, Mr Elliott said it was his understanding that the single officer and back up crew were dispatched simultaneously.

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109 Statements filed on 3 March and 19 June 2008 comprised Mr Loudfoot's evidence. Prior to being appointed Divisional Manager (Northern Division) in March 2002, Mr Loudfoot had spent some 27 years working as an ambulance officer, paramedic and consultant in the United Kingdom and the Middle East. 110 Mr Loudfoot deposed the Inner Hunter Sector had received an additional 21 FTE officers as a result of the Rural Enhancement Program. 111 Mr Loudfoot deposed that within the Sector "management always rosters double crews, 24 hours per day and seven days per week". In the case of unplanned absences, operational managers, clinical training officers and educators were called upon to respond to incidents. He said the safety of all officers was paramount and procedures were in place to provide officers with discretion not to approach dangerous or unsafe situations. In his experience, single officer responses were accepted in the United Kingdom as an appropriate use of resources in certain circumstances. 112 In relation to the statement filed by Mr Dunn on 11 January 2008, Mr Loudfoot stated MDTs were installed in all ambulances and radios were provided to officers. He said under normal circumstances MDT updates were monitored by the ambulance officer passenger who subsequently conveyed the information verbally to the driver. In the case of a single officer response, the information was conveyed to the driver verbally by radio. 113 Mr Loudfoot also deposed single officer responses at Cessnock and Nelson Bay referred to by Mr Dunn result from short notice absences and not rostering decisions, as contended by Mr Dunn. 114 In relation to the evidence of Ms Adams filed on 11 January 2008, Mr Loudfoot said it was common for officers to be called upon to provide back up at another station. Sector stations comprise a Network and should not be considered either separate or isolated from the Network. Where officers were deployed from Stockton to assist at Nelson Bay, he agreed Stockton resources would be depleted. However, if the need arose, the Northern Operations Centre would attempt to backfill that temporary depletion by redeploying resources from an adjacent area. Mr Loudfoot said the role of the Ambulance Service was "responsive" and accordingly, on occasions where existing resources were stretched, the task of the Operation Centre was to allocate available resources "in the most efficient way depending upon the prevailing circumstances at the time". 115 Mr Loudfoot deposed that while officers frequently worked in pairs, the Ambulance Service expected them to be able to exercise all core skills as a single officer where, for example, there were more patients at the scene of an accident than available officers. 116 In relation to the statement of Mr Brennan filed on 17 January 2008, Mr Loudfoot deposed 12 lead ECG treatment was in the early stages of a trial period and had not been adopted by the Ambulance Service as a standard patient treatment. Mr Loudfoot also dismissed Mr Dunn's observation that backup would be 30-40 minutes away from Nelson Bay and it was his belief that in many instances, the arrival of backup would be less. 117 In his second statement filed on 19 June 2008 Mr Loudfoot referred to Mr Dunn's first statement and his reply filed on 4 April 2008. Mr Loudfoot deposed the Ambulance Service had fatigue, peer support and employee assistance programs in place to assist officers. He also stated the role of the Operations Centre was to manage and re-allocate available resources "to a particular number of incidents on any given day". He said it was simply impossible to predict the frequency and number of incidents to be resourced on any given day. 118 In relation to Mr Dunn's reply, Mr Loudfoot stated an officer was qualified and required to exercise his duties as both a single or double officer response. Equipment such as a defibrillator could be used by either a single or double officer - or a first aid officer engaged in a public facility such as a registered club. He was unaware of an instance where a single crew response was detrimental to patient care. 119 In cross examination, Mr Loudfoot confirmed officers subject to short notice absence in all Sector stations other than Cessnock and Nelson Bay were replaced, if necessary, by officers on overtime. 120 Mr Murphy referred Mr Loudfoot to the bundle of documents set out in Exhibit 1 tendered in these proceedings by the Union as follows: Letter dated 5 March 2003 to Redman C signed by Mr Dunn in his capacity as Sub-Branch President and himself.

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Mr Loudfoot confirmed the then principal and bipartisan objective of the parties to have dual officer crewing in all sector ambulances remained a principal objective in his view. While the Ambulance Service did not agree with the Union's objective to have dual officer operation implemented by the end of 2003, Mr Loudfoot agreed that in correspondence dated 20 January 2004, Mr Hull had asked: Do you agree that the intention of the parties was to have double crew responses to all cases by the end of 2003? That this would ... require a shift maintenance at all stations? 121 Mr Murphy referred Mr Loudfoot to his reply to Mr Hull dated 6 February 2004 where he acknowledged the Union's position concerning implementation and had stated that additional funding rested "exclusively within the umbrella of the Rural Review Process". In that regard, he agreed with Mr Murphy the Review had not assisted the problems associated with single officer responses at Cessnock and Nelson Bay. 122 Mr Murphy referred Mr Loudfoot to the minutes of a Special Joint Consultative Committee (JCC) meeting held on 25 August 2005, where the following was set out under the heading "Management's Response": It is the Service's intention that every Station in the Inner Hunter will have at least one double officer crew on duty - 24 hours per day ... there still may be single officers, but it is envisaged that they will be only in exceptional circumstances and in most cases will be in addition to the Effective Deployment Levels. 123 Mr Loudfoot explained his reference to "exceptional circumstances" was meant to cover a situation where an officer took ill during a shift and could not be replaced or was late for work. Mr Loudfoot said it was his objective to reduce single officer responses across the Sector - but the practice was impossible to totally eliminate. 124 Mr Murphy referred Mr Loudfoot to the minutes of the JCC meeting held on 23 September 2005 where he explained the decision to deploy the seven Rural Enhancement Program Officers to patient transport officers "had been an opportunity missed to reduce the incidence of single officer response" because the FTE funding of those positions could have been used to resolve the Cessnock and Nelson Bay problems. He acknowledged the Ambulance Service and the Union had both agreed to deploy resources to employ patient transport officers. 125 Mr Murphy referred Mr Loudfoot to the joint Ambulance Service and Union submission concerning staffing levels and roster maintenance made at the request of the Commission as presently constituted following proceedings on 17 October 2006. Mr Loudfoot stated that he understood four additional FTE equivalent positions were given to the Sector as a result of that submission - however the situation at Cessnock and Nelson Bay remained unresolved. 126 Mr Murphy referred Mr Loudfoot to correspondence dated 11 October 2007 from the Chief Executive, Mr Rochford to the Union which stated the Ambulance Service could not "presently agree to further increases to the agreed Inner Hunter shift maintenance levels". In that regard, Mr Loudfoot stated the four additional FTE positions approved were allocated to Rutherford Station following agreement with the Union. 127 Mr Loudfoot agreed that notwithstanding the response to the joint submission by the Ambulance Service and the question of cost, he continued to support "double officer crewing as a matter of course". 128 Mr Loudfoot agreed that on most occasions, officers would be unaware of potential threatening situations at an incident until their arrival at the scene. He refuted the proposition that the risk to "officers on the scene" was reduced when two were in attendance rather than one. He also agreed it would be difficult for a single officer to administer Narcan in the case of a heroin overdose if there was no support person, such as a relative or police present at the time. 129 Mr Loudfoot confirmed the Ambulance Service had recently reached agreement with the Union to increase staff at Merriwa, Murrurundi and Stroud stations, part of the Outer Hunter Sector to reduce the incidence of single crewing. He also stated that the agreement reached did not guarantee double officer crewing. He noted those stations only worked day shift and call-outs applied at other times. 130 With regard to his written evidence that he did not agree "sending a backup crew to support a single officer response creates any additional OH&S risks to the backup crew", Mr Loudfoot stated "it certainly could be..." where a backup crew in the case of Nelson Bay was dispatched from Stockton. He also agreed the Stockton crew would drive the 35 minute journey to Nelson Bay under "lights and sirens" and there would be some risk associated with that task. Mr Loudfoot denied there would be "increased risk" associated with the journey. 131 Mr Loudfoot confirmed that since 2003 his primary objective of dual officer crewing within the Sector had been achieved at seven stations including Beresfield, Belmont, Doyalson, Raymond Terrace, Tanilba Bay and Toronto. 132 Mr Loudfoot refused to concede that in correspondence to the Commission dated 5 March 2003 and subsequent internal submissions, he sought to have one double crew ambulance available 24/7 at each of the 16 ambulance station locations within the Inner Hunter Sector. In that regard, the following exchange ensued: Q. Well, you put your name to a document which would have achieved at Cessnock and Nelson Bay the situation that applies elsewhere in the inner Hunter, didn't you? A. Not necessarily. As additional staffing had previously been allocated from state and had been utilised in other areas and there'd been an opportunity to obviously significantly reduce or address the issue of Cessnock and Nelson Bay. So - - -

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136 It was Mr Murphy's submission that the Commission was faced with a situation where the facts of the case were not really in dispute. He said it was clear both parties agreed that single officer crewing was a less than ideal situation. He said the parties acknowledged that ambulances were designed to be crewed by two officers and ambulance protocols and procedures were also designed to be administered by two officers. It was not part of the Union's case that every situation confronting ambulance officers posed a health or safety risk to employees or the public if only one officer attends an incident. 137 Mr Murphy said the evidence on both sides demonstrated the stress and potential health hazard to a single officer and the danger to the patient increased according to the seriousness of the situation. He said that factor was confirmed in Mr Elliott's evidence and cardiac arrest was the clear example. The instances of such a catastrophic nature being responded to by a single officer were a rarity according to statistics. However, Mr Murphy said the Ambulance Service was an emergency service and it had to deal with rare catastrophic events as well as less serious events. To simply say that because the incidence of cardiac arrest being attended was rare was of no assistance. Mr Elliott's evidence was that he had never administered an intra-osseus drug procedure to a child. Mr Murphy said the protocol for administering that procedure existed for a reason. Similarly, the training of ambulance officers to perform the procedure and the equipment carried by ambulance officers also existed for a reason. 138 Mr Murphy submitted that a purely statistical view of the problem was not relevant. He asked the Commission to imagine the stress Mr Elliott would find himself under had he never, as he said, actually performed the specific procedure and was dispatched from Nelson Bay station as a single officer response to a critically ill child, desperately in need of an intra-osseous drug administration, where he had to perform that procedure for the first time on his own without the support of a partner. Mr Murphy said they may be rare events, they may not be statistically relevant from an accountant's point of view, but they were events that confronted ambulance officers and were clearly more stressful, more demanding and more damaging and unsafe to a single officer the more serious the catastrophe confronting that officer. He said the management of the Ambulance Service has an obligation to its officers in all situations. 139 Mr Murphy submitted that the Commission can accept that if there was no need to have two officers in a vehicle then someone of Mr Loudfoot's seniority would not have adopted dual officer crewing as his principal objective in 2003. On the evidence, single officer crews were not restricted to the less serious and less onerous cases. They respond to the most serious cases and are backed up in the case of Nelson Bay from the distant stations of Stockton or Hamilton. He said the history of this matter discloses Ambulance Service management and the Union have been working towards double officer crewing for a long time. However, the Ambulance Service now takes credit for achievement of dual officer crewing. 140 Mr Murphy said the OHS hazards associated with sending a single officer and a back up crew under "lights and sirens" over long distances can be resolved by removing the risk to officers and the general public. The impediment is cost and cost alone. He said costs alone have never been a reason for this Commission not to exercise its jurisdiction. Mr Elliott has admitted that the cost estimate he made was a worst case scenario. It is an estimate that every unforeseen absence would be filled on drop shift overtime: That is a misconceived basis for estimating costs because you heard from both sides yesterday that there are a number of layers of resource that are utilised to maintain double crews in the event of an unplanned or unforeseen absence before overtime is utilised. So, to estimate that every vacant shift during a period of time would be filled by overtime is a gross overestimate. I think so much was conceded. He said it was clearly a worst case scenario. 141 Moreover, the evidence before the Commission was that under the Belmont trial, the actual costs identified were far less than what had been predicted. The Belmont trial was conducted as a result of a recommendation of this Commission: Absent that recommendation and absent the conduct of the trial you may still have had the parties arguing about what the potential cost of doing this is going to be in ignorance. Now we know from the results of that that the actual costs in that situation did not bear out the concerns that were raised by the Service earlier on. You'll note that the orders that we seek are in the alternative. We seek an order in effect requiring double office crewing at Nelson Bay and Cessnock or, in the alternative order 2; that a trial occur of that for a period of time and that it be assessed. That's a completely reasonable, orthodox approach in my submission. If there is any concern in the Commission that there may be some basis for these costs arguments that are being put up in opposition to double officer crewing then the only way to really know, the only way to do justice to both sides in that situation is to conduct a trial as was done. 142 Mr Murphy further submitted: If the Commission is to give any weight at all to this question of costs then surely the only way to really do that with knowledge as to the actual position is to conduct a trial.

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In that regard, Mr Murphy contended the Ambulance Services owes " no less obligation " to the officers at Cessnock and Nelson Bay who do find themselves dispatched to serious situations on their own than officers placed elsewhere. 143 Mr Murphy referred to the Demand Protocol case at 184 where the Commision as presently constituted stated: Other than the very brief reference in Mr Qvist's evidence, there is insufficient evidence before the Commission to substantiate a case that the introduction of the 11 field matrix has affected the health and safety of ambulance officers in the sense that they are now required to perform work that is unjust or unreasonable. There was no evidence that specific complaints had been made to the Ambulance Service by ambulance officers or health and safety representatives. Simply put, the test of injustice or unreasonableness would embrace, amongst other things, health and safety matters, because the direction of an employer to perform unsafe would be unjust and unreasonable. In any event, the Ambulance Service has a statutory obligation to take all reasonable, practical steps to protect the health and safety and work of employees. 144 In that regard, Mr Murphy submitted the Demand Protocol case stands in stark contrast to the evidence before the Commission in this matter. For example, Mr Elliott quite properly conceded that a single officer responding to a call is going to be under greater stress than if two officers respond and the stress will increase depending on the seriousness of the situation. Mr Murphy said that proposition was particularly relevant in these proceedings and subsequently referred to my observations at 187: In distinguishing between arguments in relation to jurisdiction and merit, the High Court in Re: Cram: Ex parte N.S.W. Colliery Proprietors' Association Ltd and Others made it clear that whilst there was jurisdiction to deal with matters long regarded as managerial prerogative, great care should be taken in the exercise of that discretion. Simply put, it is not the function of this Commission to substitute its view for that of the employer as to the most efficient way of managing the enterprise. The effect of the decision in Cram is that matters which may be classified as managerial decisions affecting the running of a business may, because of their direct effect on employees, still concern the relationship between employer and employees in their relevant capacities. 145 Mr Murphy submitted the issue of maintenance of rosters and double crewing in the Hunter was one that has been given the attention of this Commission's predecessors over a long period of time. The decision of Senior Commissioner Wells in 1982 was a direct intervention in the face of managerial prerogative type arguments and the Union did not have the benefit of the High Court's decision in Re Cram which considerably loosened the notion of managerial prerogative and its sanctity. 146 Mr Murphy submitted the difference in the present proceedings to the Demand Protocol case was that: Officers in two stations out of all the stations in the area are being treated quite differently, quite less favourably than officers throughout the area in that they are the only group that as a matter of management practice are regularly being required to respond as single officer responses to potentially serious trauma situations. That is unfair, it's industrially unfair and it has the potential to place officers in a situation which imposes upon them harsh, oppressive and unsafe demands. The fact that we haven't had a particular officer during the period the survey that was conducted by Mr Elliott over five months or ... was at different times in a situation that was regarded as life threatening and suffer the consequences of that both in terms of the officer's situation and the patient is neither here nor there; it is the potential. You can't stand before this Commission in court session in an occupational health and safety prosecution and say 'well until the girder fell out of the ceiling and killed this employee we'd never had such a situation'. It's not what happened that is important, it's what the potential hazard is that's important when you're looking at occupational health and safety. To simply say that for a five month period we didn't have a situation like that doesn't really assist. 147 Mr Murphy submitted the Ambulance Service had an obligation to eliminate risk to safety, risk to the welfare of employees as far as is reasonably practicable and that can be done in this case in the same way it has been done in every other station that had this issue over an extended period of time. For the Ambulance Service 148 Ms Nomchong submitted this matter concerns a dispute about full roster maintenance at Nelson Bay and Cessnock where, in the event short unplanned absences occur during the double officer crewing shift cycle, a very small number of occurrences exist where single officers are required to stay on shift during those periods of unplanned absences. Steps are taken to remedy the situation, resources are moved around and single officer crewing only occurs when all available remedial steps fail. 149 Ms Nomchong submitted the Union bears the burden of proof in this matter. The Union's case is predominantly focused on two aspects; firstly, an historical analysis heading back to the now well iterated case of Wells C some 26 years ago and the alleged adverse working conditions associated with single officer responses. The fact that 26 years later full roster maintenance has not been achieved across the Inner Hunter is not the legal principle that should guide the Commission. 150 Ms Nomchong submitted the historical analysis put forward by the Union was deficient and misplaced on the following grounds: (i) it looks at the issue of Cessnock and Nelson Bay in isolation rather than as part of the overall staffing increases and changes that have occurred during the relevant period throughout the Region; (ii) the analysis misconstrues the Ambulance Service's historical position as a commitment to full roster maintenance rather than a commitment to double officer crewing for each station in the Hunter on a full time basis - a goal which has already been achieved - including Cessnock and Nelson Bay; (iii) it fails to recognise the significant progress made in relation to staffing in the Hunter Region in relation to rostering and staffing such that there are now 201 permanent officers and 58 relief officers in the Region; and iv) it fails to acknowledge that when opportunities for allocation of additional staffing have arisen, the HSU itself has been instrumental in the decision-making whereby resources have not been allocated to Cessnock and Nelson Bay for full roster maintenance, but to other areas within the Region. 151 Ms Nomchong submitted it was clear on the evidence of Mr Loudfoot that the Ambulance Service's commitment was to double officer crewing and not full roster maintenance. She also drew the Commission's attention to the fact that historically, when increased resources had become available, they had been allocated elsewhere, such as patient transport, by agreement with the Union. Moreover, the Union had ignored developments following the recommendation of Harrison DP in October 2005 where as a result of those recommendations, double officer crews had been rostered for Cessnock and Nelson Bay, with all planned vacancies filled at the time the roster is set. As such, single officer crewing only occurs when there is a short notice unplanned absence and the available methods of filling that absence cannot be utilised. 152 Further, an eight month trial was conducted of single officer crewing at Cessnock, Nelson Bay and Tanilba Bay between 1 November 2005 and 30 June 2006 and a Review Committee established. A survey of the single officer responses during the trial period and an OHS risk assessment were also undertaken. The Review Report revealed the frequency of single officer crewing at those stations was less than one per cent of all emergency responses. The Union refused to sign off on that Report because it did not support their argument. A more recent analysis of single officer crewing events in Cessnock, Nelson Bay and Tanilba Bay between 1 November 2007 and 31 March 2008 had showed a decrease in single officer crewing with the frequency falling to 0.86 per cent. 153 Ms Nomchong contended the frequency of the occurrence of single officer crewing was a very important consideration when the Commission comes to determine whether in the public interest and consistent with the objectives of industrial equity, it should intervene when the occurrence is so low. 154 Ms Nomchong submitted the second limb of the Union's case that focused on the alleged adverse working conditions associated with single office crewing should be discounted on the following grounds: (i) two thirds of the single officer crewing incidents in 2005/2006 were backed up in less than 15 minutes. The more recent 2007/2008 survey conducted by Mr Elliott showed average backup response times were approximately 11 minutes; (ii) high speed driving under "lights and sirens" is covered both in the extensive training provided to ambulance officers and the written protocols as set out in the evidence; (iii) the use of Mobile Data Terminals means that where two officers are in the vehicle, the data is transmitted to the vehicle in the written form and then read out by the passenger officer to the driver. In the case of a single officer, the protocol is for the data to be sent to the MDT and then read out over the radio to the driver. This procedure was confirmed by Mr Dunn; iv) violent or aggressive situations can occur with both double officer crews and single officers. In 2005/2006 only approximately 20 per cent of single officers reported issues concerning "feeling a threat to personal safety". At all times, the officers are under OHS obligations to take steps to ensure their own safety. This is endorsed in the Stand Off policy which allows an officer to await police or other officers prior to attending to the victims or to leave a scene. Officers also have access to duress alarms on their radio; and (v) stress is associated with many aspects of a single or double officer call-out. It is accepted that working as a single officer may be more difficult and more stressful. In 2005/2006 approximately 50% of single officers reported issues of stress. For its part, the Ambulance Service undertakes training and education of its officers to allow them to cope with difficult medical emergencies and this training assists a single officer in working at a scene alone. The Ambulance Service also has peer support and employee assistance programs in place to assist staff. 155 Ms Nomchong submitted officers were required to take care of their own safety and that of others. Stress was a factor relied upon by the Union and on Mr Elliott's evidence, the Ambulance Service accepts it would be more difficult to perform procedures when "you are on your own". The real question for the Commission to determine is whether the level of risk to safety and the additional stress incurred is a sufficient health and safety issue to warrant the intervention of the Commission. For its part, the Ambulance Service believes there is no basis for the Commission to intervene. Moreover, the most recent survey has revealed there were no life threatening incidents such as cardiac arrest, asthma in small children or heroin overdoses attended to by single officers. Ms Nomchong also submitted that night shifts were double crewed from 5.00pm to 7.00am. 156 Ms Nomchong submitted the Ambulance Service had a single officer drill for cardiac arrest where CPR and defibrillation could be administered by one officer. While admitting this practice was "not optimal", she said early intervention in cardiac arrests was preferable to awaiting a double crew. The majority of single officer responses were non-life threatening incidents and patient transport was undertaken by the back up crew. 157 With regard to intra-osseous cannula procedures, Ms Nomchong maintained this was a rare procedure and the evidence was that Mr Elliott had never undertaken the procedure and Ms Adams had administered the procedure only once in 16 years. 158 Ms Nomchong contended the evidence presented to the Commission by the Union was inadequate to support its claim. The evidence of Mr Dunn, Mr Brennan and Ms Adams was largely anecdotal and hearsay. There was no evidence that officers work under adverse working conditions under the current arrangements. In this regard, Ms Nomchong submitted: The near drowning incident identified by Ms Adams was not corroborated by Mr Elliott when he said he couldn't recall any such incident in his most recent survey. Some evidence was irrelevant. For example, the incident involving Ms Adams and the administration of intra-osseous fluids to a small baby who ultimately died. That was a tragic incident and we don't walk away from that and it was very stressful for Ms Adams and we don't walk away from that. But Ms Adams was at that incident not because of any single officer crewing regulation but because of an accepted practice and one that is unchallenged by the HSU which allows the Service to call-out management or educators to go attend urgent emergencies if they are in fact the closest available officer. 159 Ms Nomchong submitted the 12 level ECG example referred to by Mr Brennan in his evidence would not assist the Commission as there was agreement it was not yet an approved procedure nor had it been implemented at Cessnock or Nelson Bay. Moreover, the Union's evidence was based on exaggerated, sensationalised and hypothetical situations concerning "cardiac arrests, asthma attacks, heroin addicts and the like". Ms Nomchong continued: The 2007/2008 survey by Mr Elliott found that none of the single officer incidents were related to serious trauma or cardiac arrests (although one involved chest pain). As such the HSU case portrayed an unrealistic picture by concentrating on only the most extreme cases. 160 Ms Nomchong contended the Union has not challenged any of the evidence concerning increased staffing levels: Neither Mr Elliott nor Mr Loudfoot were put to any challenge whatsoever about the material contained in their statements about increases in staffing over time or the fact that they have continued to work with the HSU over time in order to try and implement rostering arrangements that provide optimal outcomes. The real issue in this case and one that needs to be taken into account is that the HSU itself has made particular elections and has expressed its priorities over time as to the allocation of resources as and when they have become available. My learned friend said in his submissions a moment ago that the only reason that full roster maintenance at Nelson Bay and Cessnock hasn't been achieved is because of costs. That's simply not true. What the history of this matter shows, and the evidence before you shows, is that when resources have become available as a result, for example, of the joint consultative submission that was made in 2007, the result of that was the allocation of four additional FTEs, but by agreement with the HSU those resources weren't allocated to Nelson Bay and Cessnock, they were allocated elsewhere. I think that the evidence was that they were allocated to Rutherford Rescue. So it's not fair to say the reason why Nelson Bay and Cessnock don't have full roster maintenance is because of cost; it's because of a trajectory and a history of negotiating with the HSU about the proper place and the most appropriate place to allocate resources. 161 Ms Nomchong submitted there was no evidence of any adverse OHS impacts arising from single officer crewing when the results of the 2006 and 2007 surveys are assessed. 162 Ms Nomchong submitted the Commission should have due regard to the evidence of Mr Loudfoot that in order to meet the orders proposed by the Union, he will have to comply with his existing budget and "move around resources within this Region". The cost of the Union's proposal is approximately $200,000 per year. 163 In submitting the Commission should not intervene, Ms Nomchong referred to the following legal principles set out in her written submissions: The general principle is that, subject to limited qualifications referred to below, and organisation's management has the undisputed right to organise its work - and the composition of its workforce at a particular location - according to its business and operational needs and not otherwise. The general principle was set out in: Re Cram , where the High Court said at p136: ... 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. The evident importance of arming such tribunals with power to settle industrial disputes capable of disrupting industry is a powerful reason for refusing to read down the wide and general definition of "industrial matters" in the Commonwealth and State Acts by reference to any notion of managerial prerogative as such. 164 Ms Nomchong submitted there are numerous, and repeated, authoritative statements of this general prinicple enunciated in Re Cram: Dispute between the Federated Engine Drivers and Firemen's Association and BHP Company Limited (1950) AR 371; Australian Telecommunications Commission v Hart (1982) 43 ALR 165; John Lysaght (Household) Ltd - Port Kembla - Slit Recoil Line Award [1994] NSWIRComm 18; Iron & Steel Works Employees (Australian Iron and Steel Limited - Port Kembla) Award [1955] AR 663; BHP Steel (JLA) Pty Limited v Australian Workers' Union, NSW Branch [2003] NSWIRComm 189. These principles were also adopted and summarised by Sams DP in Reckitt Benckiser (Household) Pty Ltd and Automotovie, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch and others [2006] NSWIRComm 41. 165 Ms Nomchong submitted the Ambulance Service relied upon the principles set out in the Demand Protocal case and she referred in part to paragraph 146 of that decision as follows: 13 In Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales [1984] CAR 188, the Full Bench of the then Australian Conciliation and Arbitration Commission observed at p191: The principles which the Commission should apply in circumstances such as those before us have been the subject of a number of submissions to us and reference to a number of cases. The main case relied upon by the State Rail Authority is the decision of Coldham J in the Airline Hostesses' Case . In that decision Coldham J applied the test whether or not the work asked to be done was "…unjust…unreasonable, harsh or oppressive". In adopting this test his Honour referred to a decision of Wright J in an appeal under the Public Service Arbitration Act. In that case Wright J said "…this Commission, and the Arbitration Court before it, have throughout their existence acknowledged the right of an employer to manage and regulate his own business subject to the protection of his employees from injustice or unreasonable demands". In that case not only did Wright J use that expression but Williams and Franki JJ in their separate decision referred to " … the right of an employer to manage and regulate his own business, unless in doing so he imposes unjust or unreasonable demands upon his employees" and said: "This approach has been accepted by the Commission and the Arbitration Court since the Conciliation and Arbitration Act became operative and has been reiterated from time to time since then." It is not clear why Coldham J added the words "harsh" and "oppressive". It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.

[41]

166 Ms Nomchong also relied on Steel Works Employees and Engine Drivers, &c (Australian Iron and Steel Limited - Port Kembla) Award [1956] AR 855 at 859-860, where 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 and In Re Dispute Between the Federated Engine Drivers and Firemen's Association of Australasia (Coast District) and the Broken Hill Proprietary Company Limited [1950] AR 371 where Cantor J at 372 stated: 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. 167 Ms Nomchong confirmed the Ambulance Service's submission was that there was no basis for intervention and the Commission should only intervene in exceptional cases where issues of health and safety, unsafe work practices and the like were an issue. The Union's case is based on speculative situations whereas the Ambulance Service case is supported by actual statistics, clear policies and protocols directed at the health and safety of officers associated with single crew rostering at Cessnock and Nelson Bay: Moreover, it is accepted that because of the large number of variables associated with dealing with full roster maintenance, it is not just the substantial budgetary impact which needs to be considered. The imposition of full roster maintenance at these two stations would impinge upon the ability of the ASNSW to organise its roster to meet needs across the Inner Hunter and it would reduce the flexibility that exists in the current rostering system. 168 Ms Nomchong submitted the Union had not brought evidence from officers involved in recent single officer call-outs to support its claim or counter the evidence that the Ambulance Service had OHS policies and procedures in place to protect all staff. Moreover, in the event the Commission granted the Union's claim, she referred to Mr Loudfoot's evidence that full roster maintenance would need to be met "out of the existing budget, thereby requiring resources from other areas in the region to meet the additional costs". The potential budgetary impact was heightened by the use of dropped shift overtime and the flexibility currently enjoyed by the Ambulance Service "to organise its roster to meet needs across the Inner Hunter" would be lost. Reply

[42]

169 Mr Murphy submitted the low frequency of single crewing was a reason for granting the orders sought. He said the Ambulance Service had achieved "double officer crewing on the rosters when they are prepared and put up". Mr Murphy contended Mr Loudfoot's long standing and principal objective to "have two officers in every ambulance" had not been achieved in Cessnock and Nelson Bay. 170 Mr Murphy submitted the Belmont trial produced results in terms of costs that surprised the Ambulance Service. However, there had been no trial at Cessnock and Nelson Bay - all that had occurred was a review of case sheets, a statistical exercise. The trial initially proposed by the Union was rejected and the Ambulance Service's "review" had produced a "limited" result that was based on the worst case scenario. Simply put, attending a cardiac arrest incident as a single officer was bound to be more stressful for the officer concerned than that experienced by a double crew. Stress incurred increases as the seriousness of the incident increases. 171 Mr Murphy dismissed the proposition that the probability of a single officer attending a serious incident such as a cardiac arrest was low. In that regard Mr Murphy stated: The policy is that single officers will be responded to hot cases. So the potential is there that they will be sent to the most serious situations; serious asthmatic attacks by a child, cardiac arrest, no heartbeat, unconscious, no breathing - all of those potentially catastrophic situations. The practice of the Service at Nelson Bay and Cessnock is to respond single officers to those situations. The fact that it didn't occur during a five month period or a seven month period or whatever it is when Mr Elliott went through the case sheets is neither here nor there because the Service doesn't and should not operate on what is the statistical prevalence of situations but what is the potential. That's why they do disaster training. Don't tell me they're wasting money doing disaster training and training for major terrorist attacks just for the fun of it and investing the thousands and thousands of dollars that those exercises cost.

[45]

173 It is clear on the material and evidence before the Commission in these proceedings that both the Ambulance Service and the Union would prefer short notice absences on day shift at Cessnock and Nelson Bay be filled so as to eliminate the potential for a single crew to be dispatched and immediately backed up by a double crew from a nearby or adjacent area. Clearly and as a matter of economic logic, the necessity to send a backup crew following the dispatch of a single officer crew must have a significant impact upon operational efficiency. 174 Since 2002, a number of major enhancements to staffing have led to a reduction in single officer crewing at Inner Hunter Sector stations with the exception of Cessnock and Nelson Bay. Short notice absences are currently filled by a hierarchy of resources ranging from relief, spare roster allocations, use of part time or trainee ambulance officers and finally, dropped shift overtime. Single officer crewing only occurs when the hierarchy of relief is unable to replace the short notice absences. It was the Ambulance Service's case that it was impossible to completely eliminate single crew rostering. 175 During proceedings, the Ambulance Service contended the incidence of short notice absences was higher in the Inner Hunter than the State average. No reason was seriously promulgated why this was so. 176 Simply put, the Ambulance Service has argued the Union's case is deficient because it relies upon an historical analysis concerning single officer crewing in the Inner Hunter and alleged adverse and occupational health and safety issues. It asserts the frequency of single officer responses from Cessnock and Nelson Bay is less than one per cent of all emergency calls and is trending downwards. The evidence before the Commission was that two thirds of single officer crewing incidents in 2005/2006 were backed up in less than 15 minutes and a more recent survey revealed the average backup response time had fallen to 11 minutes. However, the evidence of Mr Elliott and Mr Loudfoot acknowledged that the drive from Stockton to Nelson Bay under lights and sirens, a journey of some 35 minutes, could impose an additional OHS burden on the relevant double back up crew. 177 On the material before the Commission, both the Union and the Ambulance Service have in the past jointly agreed to allocate staff enhancements to Inner Hunter Sector ambulance stations other than Cessnock and Nelson Bay for good and cogent reasons. It is also clear that the incidence of single officer crewing is quite low and the most recent evidence suggests the incidence is now less than one per cent. However, that does not ameliorate the attendant occupational health and safety risk issues, however small, contended by the Union. There is no doubt that an ambulance operating under 'lights and sirens' poses a degree of risk to both officers and the general public. 178 The position of the Ambulance Service concerning the cost implications of the Union's claim are based on the requirement to fill short notice absences with drop shift overtime whereas the Union believes that drop shift overtime is an option of last resort as there is a hierarchy of alternative arrangements available. The Union has also drawn upon the apparent success of the Belmont trial where full roster maintenance was introduced against the backdrop of what can best be described as a co-operative and consultative environment. The key question for the Commission's determination in this matter was raised squarely by Ms Nomchong in final submissions:

[46]

... whether the risk to safety and the additional stress incurred is a sufficient health and safety issue to warrant the intervention of the Commission. 179 This case must necessarily be decided by reference to the notion of management prerogative. In consideration of the authorities raised in these proceedings, it is well recognised that an industrial tribunal will not lightly interfere with the right of an employer to manage its business as it sees fit, unless the work asked to be performed by the employees is unjust or unreasonable. 180 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 it has not acted unjustly, harshly, or unreasonably. 181 The appropriate principles to be applied by the Commission concerning intervention were succinctly summarised by Cantor J in Re Federated Engine Drivers v Firemen's Association of Australasia (Coast District) Broken Hill Proprietary Company Limited in the following terms at 372: 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, because the action of the employer is taken in bad faith or amounts to victimisation or oppression or the like. 182 The Ambulance Service has a raft of emergency procedures in place to protect the health and safety of its employees from known or obvious risks to safety so as to ensure staff are not exposed to those risks. Officers are able to activate a duress alarm in response to violent or potentially adverse circumstances that may arise following their arrival at an incident. The utility of a duress alarm when back up by a double crewed ambulance or police is not immediate is questionable. Once an officer has arrived at the scene of a motor vehicle accident or has entered premises to assess a patient, it is difficult for that officer to execute stand off procedures and remove him or herself from a potentially adverse situation. 183 While the Ambulance Service contends that it has an adequate emergency system in place to protect all officers in the field, it is logical that single officers may, at times, be more exposed to the risk of injury than members of a double officer crew. In that regard, it is my opinion the relevant risk to single officer dispatches is a risk, although perhaps small, of exposure to physical violence or threats of violence. That risk can be characterised as one which was known or, in the alternative, should have been known to the Ambulance Service. 184 Moreover, while the Ambulance Service asserts that it has proactive systems in place to avert harm and the probability of the occurrence of harm is low, the risks involved are not insignificant, nor, in my view are they speculative, far-fetched or fanciful. There is a reasonably foreseeable risk, that entails the potential for serious injury to officers. In Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, a negligence case concerning damages following a workplace injury, the majority decision (Mason, Wilson and Dawson JJ) at [15] held an employer had a duty to employees to take reasonable care to provide a safe system of work to avoid exposing them to unnecessary risks of injury. The Court found that the risk of injury was foreseeable and the question remained as to whether the employer took reasonable care to minimise exposure to that risk, despite an instruction to the employee concerning the safe method of carrying out the work.

[47]

185 In WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) [2001] NSWIRComm 278, a case that considered the defence provisions under s 53(a) of the then Occupational Health and Safety Act 1983, Walton J, Vice President observed: [87] It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. [88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risks with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risks. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. Those principles enunciated by Walton J have been adopted by this Commission in relation to s 28(a) of the Occupational Health and Safety Act 2000. 186 The Occupational Health and Safety Act imposes stringent requirements and obligations in a number of different capacities in order to secure and promote the health, safety and welfare of people at work. The objects of the Act set out in s 3 include the following: (a) to secure and promote the health, safety and welfare of people at work,

[50]

Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2 ) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 188 Section 8 of the Act imposes a non-delegable duty on employers to "ensure the health, safety and welfare at work of all employees of the employer". In WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 at 85, the observations of Hill J are indicative of the breadth of duty imposed on employers: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. [emphasis added] 189 Section 8 also imposes an absolute liability on employers who "must ensure" the health, safety and welfare of employees at work is consistent with the objectives set out in s 3. The plain and ordinary meaning of the word "ensure" is to guarantee or make certain: Carrington Slipways; Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 359; Drake Personnel Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 449. An employer is also obliged to seek out and remedy any potential risks. In WorkCover Authority of New South Wales v Industrial Galvanisers Corporation (2002) 119 IR 306 Boland J stated: 47 Moreover, the obligation on an employer to ensure the health and safety of persons at work is not confined to the taking of precautions only when there are warnings or signals of danger or where experience indicates that a risk to safety has arisen and requires remedy: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209-210; Shannon v Comal co at 364. The Act also requires a pro-active approach and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace: Nelmac citing Hill J in WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. 190 Section 20 of the Act also imposes obligations on employees whilst at work: 20 Duties of employees (1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. ... 191 Section 20 is clearly relevant to the work and operational activities of ambulance officers at the scene of an accident or where they are required to enter premises to assist a patient. The Ambulance Service seeks to apply risk management principles to eliminate or reduce risk as far as reasonably practicable and to afford the highest level of protection that is appropriate for matters within its control. Priority is afforded to the elimination of hazards and control of risk at the source through safe design of work practices, procedures and systems of work. 192 In the present case, the Ambulance Service asserts the estimated cost of the Union's claim is some $200,000 based on filling all short notice absences with drop shift overtime. Mr Elliott's evidence was that this estimate was "the worst case scenario". 193 To attract intervention, the Union must clearly establish in this case that the practice, albeit infrequent, to send a single crew ambulance to an incident imposes conditions on ambulance officers which are either unjust, unreasonable or both. It follows from the authorities referred to by Mr Murphy and Ms Nomchong that the Union must clearly establish in this case that the single crewing of ambulances at Cessnock and Nelson Bay in response to short notice absences imposes conditions on ambulance officers which are either unjust, unreasonable or both.. 194 Having considered all of the evidence, case materials and the respective submissions of the parties, I have formed the view that the level of risk to safety and the additional stress incurred by single crew officers is a sufficient health and safety issue to warrant the intervention of the Commission. In consideration of that material, I have formed the view that it is appropriate for this Commission to grant the alternative orders sought by the Union, that is, for 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 introduce full roster maintenance at both Cessnock and Nelson Bay stations for a trial period of six months.

Bankstown Foundry Pty Ltd v Braistina

At a glance

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Judgment (59 paragraphs)

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Cases Cited (16)

Cited By (1)