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.