Health Services Union NSW v Health Secretary in respect of NSW Ambulance

Alleged contractual entitlement

1. The HSU contended that line ownership is a contractual entitlement for line owners. This was said to be on the basis of either: 1. line ownership being "incorporated into the employment contracts of all employees at Wagga Wagga by custom, practice and usage"; [2] or 2. a "verbal collateral contract" having been formed with line owners "that rosters will include line ownership". [3]
2. Section 175 of the Act provides that the Commission may, for the purpose of exercising its functions, determine any question concerning the interpretation, application or operation of any relevant law or instrument. This does not confer a jurisdiction to enforce contractual rights or to make declaratory orders. Any determination that I might make as to the existence of a right or entitlement is made only to inform the exercise of the jurisdiction of the Commission under the Act: see Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10].

Usage

1. In Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14 the High Court articulated (at 236-238) several propositions as to the "circumstances in which trade custom or usage may form the basis for the implication of terms into a contract". These included the following: 1. the existence of a custom or usage that will justify the implication of a term into a contract is a question of fact; and 2. there must be evidence that the custom relied on is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract.
2. There is no evidence as to the genesis of the practice of line ownership, including how and for what purpose it was introduced. There is similarly little evidence to enable a view to be formed as to whether the practice had achieved such notoriety that it ought now to be considered as an implied contractual entitlement. Only three of the HSU's witnesses - Craig Elphick, Julieann Exton and Darryn Foster - deposed to having been aware of the practice of line ownership at the Station prior to moving there. There is no evidence as to how they became so aware. More particularly, none of them attested to understanding at the time (or, indeed, at any time) that the practice was in the nature of a contractual entitlement.
3. The evidence led by the HSU falls short of demonstrating a usage of the kind referred to in Con-Stan Industries. I am not persuaded that the practice of line ownership is so well known and acquiesced in that everyone making a contract with a paramedic at the Station can reasonably be presumed to have imported that term into the contract.
4. As the HSU has failed to make out an evidentiary case for the implication of a term based on usage, it is not necessary to address the various alternative legal arguments advanced by the Health Secretary and the APA as to why the HSU's claim in this regard should fail.

Verbal collateral contract

1. In its Outline of Submissions the HSU submitted: "41. Employees were told explicitly that their acceptance of a position at Wagga Wagga was contingent on agreeing to working under the existing rostering practices. 42. There was in effect a collateral contract formed between each employee at the time and the acceptance was conditional on being offered a position at Wagga Wagga station."
2. These submissions are not supported by the HSU's evidence. Only five of its witnesses deposed to having a conversation about the practice of line ownership at about the time of their transfer to the Station. Four of them - Bruce Carey, Michael Cooke, James Godwin and Mark Stephenson - described largely similar conversations that they each had with the Station Officer at the time of their transfer concerning the roster practices at the Station. Timothy Nulty described a conversation that he had about those practices with the "convener" of the process under which Mr Nulty applied for a transfer to Wagga Wagga.
3. None of those witnesses deposed to having been told that their appointment to the Station was conditional on them agreeing to work under the existing rostering practices. There is, in particular, no evidence to suggest that the relevant conversations were intended to be or were understood to be contractual in nature. The witnesses did not depose that the discussions that they had were in the nature of establishing contractual relationships. Rather, the witnesses consistently described the conversations being in the nature of information or explanation of the rostering arrangements at the Station. Further, none of them deposed to having an understanding that line ownership was a contractual entitlement.
4. None of the remaining six witnesses called by the HSU gave any evidence of having had conversations or receiving representations regarding the rostering practices at the Station. There is no factual basis on which it can be said that they had entered into a verbal collateral contract with NSW Ambulance.
5. Once again, the HSU's case falls at the evidentiary hurdle. Its contention that a verbal collateral contract had been entered into between "each employee" and NSW Ambulance is not borne out on its own evidence. It is consequently unnecessary to consider the alternative arguments put forward by the Health Secretary and the APA as to why this aspect of the HSU's case should fail.

Estoppel

1. The HSU contended that a "reliance-based estoppel exists" [4] which precludes NSW Ambulance from ceasing the practice of line ownership. The HSU's submissions in this regard may be summarised as follows: 1. NSW Ambulance had made a representation to paramedics that if they commenced working at the Station in the "relatively less beneficial relief line" they would gain access to the "relatively more beneficial line ownership"; [5] 2. that representation was "reasonably relied on by all employees who agreed to work in a relief position"; [6] 3. ceasing line ownership would withdraw the promise underpinning the representation, causing a detriment in the form of denying them the benefit of line ownership; and 4. those paramedics who have worked on the relief roster have made their contribution to the rostering system in reliance on the promise that it would gain then the benefit of line ownership.
2. The HSU provided no explanation of the legal basis on which it asserted the existence of a "reliance-based estoppel".
3. In Waltons Stores (Interstate) Limited v Maher (1988) 164 387; [1988] HCA 7 Brennan J observed (at 428-429): "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise."
4. The elements identified by Brennan J are not made out on the evidence in these proceedings. I note in particular: 1. as already observed, none of the HSU's witnesses deposed that they received - in fact or what they understood to be - commitments of a contractual nature as to the maintenance of line ownership at the Station. They did not assert, or provide a basis to find, that they had been induced by representations made on behalf of NSW Ambulance into an assumption as to the nature of their legal relationship, namely that it included an entitlement to line ownership; 2. even had such representations been made, there is limited evidence that any paramedics employed at the Station have acted or abstained from acting in reliance on them. There is certainly nothing to suggest that they would have acted differently but for any such representations: see Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106 at [49]. Only Ms Exton, Mr Foster, Mr Nulty and Mr Stephenson described line ownership as being relevant to their decision to move to Wagga Wagga. Of these witnesses, only Mr Nulty stated that he would not have transferred to the Station had he been made aware that the practice of line ownership might cease; and 3. underpinning the HSU's submissions is the contention that through having suffered the "detriment" of working on the relief roster, paramedics should not have denied to them the benefit of being or becoming line owners. There is no evidence to suggest that any paramedic, whether a line owner or a relief worker, has ever been denied their entitlements under the Award or its predecessors. Awards of the Commission are presumptively fair and reasonable: City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49. I do not accept that working in accordance with the Award is properly to be described as a detriment.
5. For these reasons I reject the HSU's proposition that NSW Ambulance is estopped from ceasing the practice of line ownership at the Station.

Unreasonableness

1. The HSU submitted that, even in the absence of a contractual entitlement to line ownership or an estoppel precluding its removal, the Commission should intervene to prevent the introduction of a roster withdrawing line ownership on the basis that it would be, in all of the circumstances, unreasonable. Distilled to its essence, the HSU's argument is as follows: 1. for many years paramedics at the Station have had, at the least, an expectation of line ownership. That is, that if they performed relief work there was the possibility of becoming a line owner; 2. line owners had worked on the relief roster, usually for a number of years, before attaining line ownership. They had, in effect, "paid their dues"; 3. line owners derive significant benefits from having certainty in their rosters, particularly in relation to their family and carer's responsibilities; and 4. it was unfair and unjust to deprive line owners of these benefits, and current relief workers of the possibility of attaining them.
2. All of the HSU's witnesses deposed as to the benefits that they derive from the predictability and certainty in their rosters that comes from line ownership. These included the ability to: 1. plan and commit to family and other personal commitments, including social activities; 2. support their partners in furthering their own career and personal objectives; 3. provide support to extended family members; 4. engage in secondary employment; 5. manage their physical and mental well-being through out of work activities, including sporting, cultural and educational pursuits; 6. plan holidays; and 7. as a consequence of all of these matters, better manage their work-life balance.
3. The premise of this evidence was that working on the relief roster denied them these benefits. A number of the witnesses described in negative terms their experiences when performing relief work. By way of example, and representative of the HSU's evidence, Mr Nulty deposed: [7] "7. I work in an unpredictable workplace, have significant work stresses relating to incidents, get minimal opportunities for meal breaks, forced extension of shift over time, long distance transfers causing an increase in fatigue and have seen psychologists for the effects of Post-Traumatic Stress Disorder (PTSD). Having a predictable roster is the last thing to help maintain my mental health and well-being. …"
4. Consistent with this theme, the HSU's witnesses deposed as to how their lives had been considerably improved by moving from relief work to line ownership. Again by way of example, Messrs Elphick, Nulty and Stephenson and Ms Exton each described the change as having a "profound" positive impact on their lives. Mr Carey described it as being a "great benefit". Robert Schofield stated that losing line ownership would have a "dramatic effect" on his family life.
5. This evidence placed the HSU in something of a conundrum. There are approximately 44 to 47 paramedics employed at the Station. All of the HSU's witnesses and one called by the APA (Timothy Scott-Young), a total of 12, have line ownership. The evidence suggests that there are unlikely to be many others who do so. The HSU's submissions made reference to the "relatively less beneficial relief line", which on its evidence and oral submissions must be seen as something of an understatement. Yet the HSU's case calls for an outcome in which three quarters of the workforce continue to work under such allegedly substandard conditions whilst their colleagues with line ownership do not. As the APA submitted, there is a strong element of "I'm alright, Jack" in that position. [8]
6. It must be said that during the hearing the HSU's position seemed to change, so as to suggest that working on the relief roster was not to be regarded as wholly unsatisfactory. This was drawn predominantly from the HSU's cross-examination of Adam Horsley and Darren Rudd, both Station Officers at the Station who had been called to give evidence by the APA. The effect of their evidence was that under the rostering practices at the Station relief workers generally had some predictability in their rosters and were largely able to have their preferences accommodated. Any change in the HSU's position, however, is difficult to reconcile both with its primary submissions and the relief it sought from the proceedings. It is entirely contrary to the evidence it called.
7. It must also be observed that paramedics on the relief roster are working under what the Health Secretary described as "orthodox arrangements". [9] That is, they are working in accordance with the Award. The HSU did not directly seek to rebut the presumption that the Award sets fair and reasonable conditions of employment. In the absence of any evidence that paramedics at the Station are being treated in a manner contrary to the Award I am reluctant to conclude that removing line ownership so that all employees are treated consistently under the Award is to be regarded as unreasonable.
8. There are also operational implications arising from line ownership. Messrs Carey and Foster deposed that line owners tend to work consistently with the same paramedics, leading to an improvement in teamwork and rapport.
9. Conversely, Leisa Maree Huggins, a witness for the Health Secretary, and each of the APA's witnesses described this as having a negative impact. They deposed that having "two sides to the roster" hampered the spread of clinical skills across the roster. Mr Nulty acknowledged that "we normally don't have intensive care on our side of the roster". [10] I accept that line ownership is likely to have an overall negative impact from an operational perspective.
10. There was, in addition, some suggestion that line ownership had created a sense of "haves" and "have-nots" at the Station, creating friction and contributing to what was described as a "toxic culture". It is not necessary for me to determine whether there is such a culture at the Station, or the extent to which line ownership has contributed to it. It suffices to say that it can readily be accepted that a situation in which one quarter of the workforce enjoy benefits denied to the rest may well result in workplace tensions.
11. For completeness, but perhaps on a related point, a number of the HSU's witnesses deposed that they held concerns about returning to the relief roster due to the possibility of being treated unfairly. These concerns were in the nature of favouritism or cronyism shown by management in setting the rosters; the use of rosters to bully and harass paramedics; and, being treated unfairly in reprisal for past union activity. There was no evidence led to support these concerns, and they were not put to the witnesses for the Health Secretary or the APA. I have afforded them no weight.

Disposition

1. It has been well recognised that an industrial tribunal will not lightly interfere with the right of an employer to manage its business as it sees fit, according to its operational needs, unless the work asked to be performed by the employee(s) is unjust or unreasonable: Reckitt Benckiser (Household) Pty Ltd and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch and others [2006] NSWIRComm 41 at [57], noting also the authorities referred to in that case at [58]-[65].
2. In the present case, NSW Ambulance seeks to implement rosters in accordance with the Award. The HSU's application not only seeks to interfere with its ability to do so, but impacts on the relief workers who comprise a majority of the workforce. For the reasons set out above, I find that the HSU has not provided a sufficient basis on which the Commission should intervene.
3. I observe that in its Written Outline of Submissions the APA set out in some detail a proposal as to how rosters at the Station ought to be established in the future, so as to provide predictability and certainty for paramedics. The APA sought a direction "that the parties confer further upon questions of rostering practice for the future". [11] The Health Secretary's evidence revealed that NSW Ambulance had also made a proposal.
4. I do not propose to offer commentary on the desirability or otherwise of either of the proposals made by the APA or NSW Ambulance. Consistent with observations made elsewhere in this decision, the starting point is cl 22 of the Award. There was no opposition by any party to further consultation on rosters at the Station. Indeed, it was accepted that cl 22(k) of the Award would require consultation prior to the implementation of any roster changes. In the circumstances, I consider that the direction sought by the APA is unnecessary.

Order

1. The Notification is dismissed. Damian Sloan Commissioner

Endnotes

1. Tcpt, 23 February 2021, p 35(5-6)
2. Applicant Outline of Submissions at par 19(a)
3. ibid.at par 19(b)
4. ibid. at par 44
5. ibid. at par 45
6. ibid. at par 46
7. Statement of Timothy Bart Nulty, 4 September 2019
8. Tcpt, 23 February 2021, p 38(29-30)
9. Respondent's Outline of Submissions at par 34
10. Tcpt, 22 February 2021, p 34(16-17)
11. Tcpt, 23 February 2021, p 38(47-48) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2021