Health Services Union NSW v Secretary, Ministry of Health in respect of Western New South Wales Local Health District

Industrial Relations Commission (NSW)|2018-11-20

Background to the current dispute

The current dispute has its origins in the employment of a number of TPTOs by WNSWLHD between 2012 and 2014. In agitating the dispute, the HSU nominated as exemplars of the affected group of employees the following individuals:

Rodney Arrow - employed as a permanent TPTO from 15 July 2013 until 4 December 2016 when reclassified to PTO (approximately 3 years, 5 months). Prior to that period, Mr Arrow was employed as a casual TPTO.
Robert Fengler - employed as a permanent TPTO from 14 July 2014 until 4 December 2016 when reclassified to PTO (approximately 2 years, 5 months).
Wayne Millsteed - employed as a permanent part-time TPTO from 6 January 2014 until 23 January 2017 when reclassified to PTO (approximately 3 years).
Owen Roberts - employed as a permanent part-time TPTO from 15 July 2013 and a full-time TPTO from 10 February 2014 until 4 December 2016 when reclassified to PTO (approximately 3 years, 5 months). Prior to that period, Mr Roberts was employed as a casual TPTO. I refer in this decision to these men collectively as "the four employees".

In about 2015, the HSU began making representations to WNSWLHD on behalf of this group of members on the basis that they satisfied the Award definition for a PTO, they were performing the work of a PTO and were, therefore, entitled to be classified and paid as PTOs. Ultimately, after being required to undergo some training in December 2016, these employees were reclassified from TPTO to PTO and paid as such from that time. That training comprised the completion of either or both Nationally Recognised Training courses "HLTAID006 Provide advanced first aid" and "HLTAID007 Provide advanced resuscitation". Further, since 2016 WNSWLHD has not engaged any new TPTOs but has employed people directly into the PTO classification, regardless of the training the employees had undergone at the time of engagement.
This action by WNSWLHD resolved the dispute moving forward from December 2016. The issue which remains in dispute is the time from which the employees should have been reclassified and paid as PTOs. Essentially, the HSU is claiming that the reclassification should have been effected long before December 2016 and is seeking back pay for the employees from that point in time up until December 2016 when they were reclassified and paid as PTOs. It is this claim for back pay which is the subject matter of the dispute which the Commission is now called upon to determine.

Case for the HSU

In written submissions filed by the HSU on 13 August 2018, the union's case was summarised as follows: In December 2016, after the classification of this group of employees had been disputed by the Union for some time, the respondent allowed these employees to progress to the PTO classification and put an end to the practice of engaging employees as Trainee PTOs. In these proceedings, the Union submits that these employees should have progressed to the PTO classification much earlier than December 2016. The Union submits that these employees should have been classified as PTOs from either the time that they were engaged as Trainee PTOs or shortly thereafter.
The HSU called as witnesses in the proceedings, the four employees identified at [9] above as well as Emma Williams, Assistant Industrial Officer at the HSU, who had prepared an extensive witness statement to which she annexed the Unit of Competency details of the qualifications held by the four employees. This information was obtained by Ms Williams from the training.gov.au website which is the national register on Vocational Education and Training (VET) in Australia and is the authoritative source of Nationally Recognised Training (NRT) conducted by Registered Training Organisations (RTOs). This website is managed by the Commonwealth Department of Education and Training on behalf of State and Territory Governments.
The evidence of the four employees is discussed below:

Rodney Arrow

Mr Arrow began working as a full-time TPTO with WNSWLHD on or around 15 July 2013, having been engaged on a casual basis from 22 March 2010. He was reclassified from TPTO to PTO in December 2016. Prior to his engagement as a full-time TPTO, Mr Arrow had obtained the following qualifications, which are identified by date obtained, RTO, course code and name of course: Issued 20 February 2011 by St John Ambulance: HLTCPR201A Perform Cardiopulmonary Resuscitation. HLTFA301B Apply First Aid. Issued 21 November 2012 by St John Ambulance: HLTFA301C Apply First Aid. HLTFA402C Apply Advanced First Aid. HLTFA404B Apply Advanced Resuscitation Techniques. HLTCPR201B Perform CPR. 22101VIC Course in Automated External Defibrillation. 80871ACT Course in Analgesic Administration (Methoxyflurane).
According to Mr Arrow, after he was engaged as a full-time TPTO, he was not placed on any kind of training or mentoring program, he had no training plan and no designated mentor and he was not given any training other than the ordinary induction training provided to all employees. He asked Ms Anne Taylor, District Manager, Patient Flow Transport Unit, whether there was any course that he needed to do to progress to the PTO classification, to which she responded with words to the effect of: No, it's just twelve months on the job training.
After twelve months had passed, Mr Arrow again enquired of Ms Taylor about progressing to the PTO classification but was not put on any training course to achieve that goal.
In a Performance Appraisal and Performance Plan document dated 20 November 2015, almost two and a half years after he was employed as a full-time TPTO, Mr Arrow made the following notations: COMPLETED ALL TRAINING ON VET AS WELL AS SOME VOLUNTARY ADDITIONAL MODULES, HAVE NOT BEEN ABLE TO FIND ANY TRAINING RELATING TO ADVANCING TO PTO. …………………………. UNABLE TO ACHIEVE PTO TRAINING AS THERE IS NO TRAINING AVAILABLE. HAVE CONTINUED TO ASK BUT NOT YET AVAILABLE. ………………………….. I SEEM TO BE DOING THE SAME ROLE AS A PTO, BUT APPARENTLY THE OXYGEN COMPONENT OF MY TRAINING DOES NOT MEET PTO STANDARDS. UNAWARE OF AVAILABLE TRAINING TO BRIDGE GAP
In the section of the document headed "Clinical Supervisor's Comments" and dated 1 December 2015 the following was stated: PTO Training is unavailable management is working on the PTO training package i/c Educators. …………………………. I understand your frustration at not being able to enrol for PTO training - as soon as training has been sorted & dates available I will inform you. Looking forward to you continuing your good work practices & commitment to safety while looking to embrace this years focus of core values I would like to thank you for all your hard work & dedication over the last year.
On his own initiative, Mr Arrow undertook further training and obtained the following qualifications: Issued 28 May 2015 by Health Education & Training Institute: 46497905 Life Support Assessment Tool. Issued 2 December 2015 by Allens Training: HLTAID001 Provide cardiopulmonary resuscitation. HLTAID002 Provide basic emergency life support. HLTAID003 Provide first aid. HLTAID006 Provide advanced first aid. Issued 27 July 2016 by Health Education & Training Institute: 46498168 Basic Life Support Assessment.
On 3 August 2016, Ms Taylor distributed the following correspondence to Mr Arrow and other TPTOs; RE: PATIENT TRANSPORT OFFICER TRAINING Dear Driver As you are aware, the service has been negotiating over time to upskill all Trainee Patient Transport Officers to Patient Transport Officer (PTO) classification in line with the HSU Award. Work is underway with a First Aid contractor to negotiate program delivery. I am hoping that completion of same by all current staff will be achieved by December 2016. The completion of this education is considered a MANDATORY requirement of Western NSWLHD employment. All Trainee Patient Transport Officers will be required to attend some face to face training to meet the requirements of the position and maintain currency of practice. Following successful completion of the training, a new position description will require your signature and will be forwarded to you in due course. The cost to upgrade (casuals included) will be met by the LHD as a one off. You will be responsible to meet the ongoing financial responsibility of maintaining currency to practices and this includes annual Advanced Resuscitation component. All future recruitment will necessitate the requirement to hold a current "Provide Advanced First Aid" and "Provide Advanced Resuscitation". ………………………………..
On 6 September 2016 again wrote as follows: Dear Patient Transport/Trainee Patient Transport Officers, I wish to advise that funding has been granted to provide education to all current WNSWLHD Patient Transport employees to upgrade current qualifications to bring in line with the Health Employees (State) Award. The Health Services Union has been advised that funding has been granted and is pleased for their members. The Non-Emergency Patient Transport service has as a minimum standard endorsed Patient Transport Officers to provide non-emergency transport services. From this date forward no staff will be employed as Trainees and hence an Advanced First Aid will become an essential qualification for this service. A contractor has been engaged to provide this education. All current employees' certificates have been reviewed and appropriate training for all has been identified. Staff will be required to complete either or both HLTAID006 and or HLTAID007. All employees are required to attend a one (1) or (2) day mandatory course pending current status. The LHD will be meeting the costs of the course and salary for the training. Travel to and from the training centre will be approved as Time-in-Lieu. Following attainment of the Advanced First Aid Certificate it becomes the individual's responsibility to maintain currency to practice. You will be required to produce a copy of this certification and this will be at the individuals cost. HLTAID006 requires completion every 3 years and HLTAID007 annually. The plan will be to have your qualifications entered into Stafflink. Please note that there is pre course work and you will be permitted to complete during your downtime or as authorised. …………………………… An updated Position Description will also be provided for your signing when attainment of the qualification has been completed and prior to the upgrade registered in Stafflink.
Mr Arrow was subsequently provided with the updated Position Description for PTO, which specified as "Essential Requirements" the following: * Current Advanced First Aid Advanced Cardiopulmonary (HLTAID006) Advanced Resuscitation CPR (HLTAID007) certificates or equivalent, as a minimum. * Current licence to drive in NSW (Class C).
In December 2016, Mr Arrow undertook the training which had been organised by WNSWLHD and provided by Allens Training, an RTO, for the purpose of him being reclassified from TPTO to PTO. He obtained the following qualifications: Issued 5 December 2016: HLTAID001 Provide cardiopulmonary resuscitation. HLTAID007 Provide advanced resuscitation.
From that time, Mr Arrow has been classified and paid as a PTO.

Robert Fengler

Mr Fengler commenced employment as a full time TPTO with WNSWLHD on 14 July 2014. He remained classified as a TPTO until 5 December 2016 when he was reclassified as a PTO.
Mr Fengler claimed that, during his orientation day for the position of TPTO, he was told by Ms Taylor that he would be a TPTO for 12 months during which time he would undergo on the job training and mentorship.
In October 2014, Mr Fengler, through his own initiative, obtained the following qualifications: Issued 22 October 2014 by Allens Training: HLTAID001 Provide cardiopulmonary resuscitation. HLTAID002 Provide basic emergency life support. HLTAID003 Provide first aid. HLTAID006 Provide advanced first aid.
Mr Fengler deposed that, in December 2014, he had a conversation with his line manager, Ms Amanda Hunter, Nurse Coordinator, during which she told him that Ms Taylor had told her that it was not correct that Mr Fengler would become a PTO after 12 months on the job training and mentoring and that he would have to do a course. When he asked "What is the course?" Ms Hunter replied with words to the effect of "We're looking into it. We'll get back to you".
Mr Fengler repeatedly told Ms Hunter that he wanted to become a PTO and asked to undertake whatever training was required to achieve this goal, including during his annual performance reviews in December 2014, December 2015 and September 2016.
In October 2015, Mr Fengler obtained the following qualification: Issued 20 October 2015 by Health Education & Training Institute: 46498168 Basic Life Support Assessment.
In around August and September 2016, Mr Fengler and the other employees were told that WNSWLHD would provide training to enable TPTOs to move to the PTO classification. Mr Fengler completed that training in a single day and obtained the following qualifications: Issued 5 December 2016 by Allens Training: HLTAID001 Provide cardiopulmonary resuscitation. HLTAID007 Provide advanced resuscitation.
Once he completed this training, Mr Fengler was reclassified to PTO and paid as such.

Wayne Millsteed

Mr Millsteed started working with WNSWLHD as a part-time TPTO on 6 January 2014 and remained classified as such until 5 December 2016 when he was reclassified to PTO.
Prior to commencing as a TPTO, Mr Millsteed had obtained the following qualifications: Issued 12 January 2013 by St John Ambulance: HLTFA301C Apply First Aid, HLTCPR201B Perform CPR. HLTFA201B Provide Basic Emergency Life Support. Issued 14 March 2013 by St John Ambulance: HLTFA311A Apply First Aid. HLTFA412A Apply Advanced First Aid. HLTFA404C Apply Advanced Resuscitation Techniques. 22101VIC Course in Automated External Defibrillation. 80871ACT Course in Analgesic Administration (Methoxyflurane).
The Position Description for TPTO when Mr Millsteed applied for the job contained the following under "Key Accountabilities": * Maintain currency of first aid certificate at own expense. …………………………. * Holds Certificate III Non Emergency Healthcare within 2 years of employment. And under "Selection Criteria": 3) Current Advanced First Aid Certificate. …………………………… 7) Willingness to commence Certificate III Non Emergency Healthcare within 12 months of commencement of employment.
Mr Millsteed was interviewed for the TPTO position by Ms Jade O'Brien for WNSWLHD. He claimed that, during his interview, he asked Ms O'Brien, about completing the training to become a PTO. According to Mr Millsteed, Ms O'Brien told him that the training would be provided within the first 12 months.
Mr Millsteed also stated that, around three months after he started, he phoned Ms Taylor to ask about the training and was told by her that they did not have the funds to provide the training at that time. When he contacted Ms Taylor again approximately three months later, she told him that she was not happy with the provider they had been using and they were looking for someone else to provide the training.
In 2016, Mr Millsteed undertook further training on his own initiative and at his own expense and obtained the following qualifications: Issued 20 June 2016 by Allens Training: HLTAID001 Provide cardiopulmonary resuscitation. HLTAID002 Provide basic emergency life support. HLTAID003 Provide first aid. HLTAID006 Provide advanced first aid.
Ultimately, some training was organised by WNSWLHD and provided by Allens Training. Ms Millsteed obtained the following qualifications: Issued 24 January 2017 by Allens Training: HLTAID001 Provide cardiopulmonary resuscitation. HLTAID007 Provide advanced resuscitation.
Following the completion of this training in January 2017, Mr Millsteed was classified and paid as a PTO (part-time).

Owen Roberts

Prior to obtaining employment as a TPTO with WNSWLHD, Mr Roberts worked in a variety of classification from 1993. From 2009 until July 2013, he worked as a casual TPTO. On 15 July 2013 Mr Roberts started working as a part-time TPTO and on 10 February 2014 he became a full-time TPTO and remained employed as such until 5 December 2016 when he was reclassified to PTO.
Prior to commencing as a part-time TPTO, Mr Roberts had obtained the following qualifications: Issued 14 March 2013 by St John Ambulance: HLTFA311A Apply First Aid. HLTFA412A Apply Advanced First Aid. HLTFA404C Apply Advanced Resuscitation Techniques. HLTCPR211A Perform CPR. 22101VIC Course in Automated External Defibrillation. 80871ACT Course in Analgesic Administration (Methoxyflurane).
Mr Roberts claimed that, during one of his interviews to become a permanent TPTO, Ms Taylor told him that he would be made a PTO after 12 months on the job.
After Mr Roberts started as a casual TPTO, another group of TPTOs were put through a course to make them PTOs. Mr Roberts and Mr Millsteed asked Ms Taylor when it would be their turn to go on the course. Initially they were told that they could do the course after the other group finished but that did not happen. When Mr Roberts raised this with Ms Taylor, she said the course was not appropriate and that they were looking for another course.
In 2015, Mr Roberts, at his own initiative and expense, obtained the following further qualifications: Issued 22 June 2015 by St John Ambulance: HLTAID007 Provide advanced resuscitation. 22101VIC Course in Automated External Defibrillation.
In 2016, again at his own initiative and expense, Mr Roberts obtained the following additional qualifications: Issued 20 June 2016 by Allens Training: HLTAID001 Provide cardiopulmonary resuscitation. HLTAID002 Provide basic emergency life support. HLTAID003 Provide first aid. HLTAID006 Provide advanced first aid.
Ultimately, in December 2016, following training organised by WNSWLHD, Mr Roberts obtained the following qualifications: Issued 5 December 2016 by Allens Training: HLTAID001 Provide cardiopulmonary resuscitation. HLTAID007 Provide advanced resuscitation.
Upon completion of this training, Mr Roberts was reclassified and paid as a PTO.

Mark Sterrey

In addition to Ms Williams and the four employees referred to above, the HSU called as a witness Mark Sterrey. Mr Sterrey is employed as a Health Service Manager at HealthShare where he has some operational responsibility for PTOs.
In 2016 HealthShare took over responsibility for the employment of a large number of PTOs previously employed in Local Health Districts and in the NSW Ambulance Service.
Mr Sterrey gave evidence that HealthShare does not employ anyone in the TPTO classification. New PTO recruits are given three weeks of in-house training by HealthShare on commencement. After this three week training period, the employees are able to work as PTOs. The training is done in the employee's work hours and is provided by HealthShare. During and subsequent to this training period, the employees are classified and paid as PTOs.

Case for WNSWLHD

In reply to the evidentiary case presented by the HSU, WNSWLHD called evidence from the following witnesses:

Ms Tiffiany Charlton, Human Resources Manager, Workforce and Culture.
Ms Amanda Hunter, Nurse Coordinator, Patient Flow Transport Unit.
Ms Anne Maree Taylor, District Manager, Patient Flow Transport Unit.
Mr Daniel Robinson, Human Resources Partner, Workforce and Culture. Each of these witnesses prepared affidavits which were tendered into evidence. Each of them was cross-examined by Mr Edghill who appeared for the HSU.

Tiffiany Charlton

Ms Charlton stated in her evidence that TPTOs were hired by WNSWLHD because it was difficult to find PTO candidates who already had the required certifications. She also recalled discussions in 2016 with Ms Taylor about the difficulties Ms Taylor was experiencing in finding a trainer who could provide the required training for the TPTOs. In-house training was not possible as the role that provided the training was vacant at the time.
Ms Charlton became aware in April 2016 of the HSU raising the issue of progression of the TPTOs to PTOs and was party to correspondence with the HSU concerning additional training that WNSWLHD required the TPTOs to undertake in order to progress to PTOs.
After the progression of the TPTOs to PTOs had been effected in December 2016, Ms Charlton was engaged in further correspondence with the HSU in relation to its claim for retrospective payment for the PTOs. In an email to the HSU dated 27 June 2017, Ms Charlton stated: The LHD has maintained that the employees listed did not undertake the duties of a Patient Transport Officer until their formal regrading and the change in their classifications. The LHD will review the position descriptions from staff information files for the employees from the time of their employment/or dates indicated on your correspondence.
In the ultimate, WNSWLHD did not agree to any retrospective payment to the PTOs.

Amanda Hunter

Ms Hunter Swore an affidavit which was tendered into evidence in the proceedings and which contained the following: Trainee PTOs 7. The Trainee PTO staff fulfilled an important function to the non-emergency Patient Transport Service. Their role was primarily related to safe and comfortable transportation to enable (low risk of clinical deterioration appropriate to scope of practice i.e. non-emergency) interfacility patient transfers, safe manual handling practices with patient transfer and appropriate care of the vehicle and equipment. The clinical management of the patient was the responsibility of the Nurse escort. 8. The Trainee PTO and PTO work under the supervision of a nurse when assisting patients. 9. My understanding based on general orientation to my role and discussions when I transitioned to Patient Flow Transport Unit was that there had been TAFE training to qualify to PTO in the past. During the 2014 - 2015 period, the detail of the training requirements to define PTO and training providers was under review at a LHD and state level and the timeframe regarding the outcome of this review was unknown by myself. 10. The Hyundai Patient Transport fleet during this period were equipped with basic patient care equipment suitable to manage Basic Life Support with Enrolled Nurse as the upper limit of capabilities. Escalation for clinical deterioration was to contact NSW Ambulance 000 in the first instance. ………………………….. 12. The main identifiable difference between Trainee PTO and a PTO based on their position descriptions is the capability of a PTO to be able to transport patients receiving oxygen therapy (low flow less than 3 L/min). 13. Prior to the transition of Trainee PTOs to PTOs, I don't recall capability issues restricting the service due to Trainee PTOs versus PTO availability. 14. Generally, each Patient Transport Fleet vehicle would be staffed with two staff e.g. EEN and Trainee PTOs. Trainee PTOs adequately fulfilled the role prior to 2016. 15. Even today, I have observed that transport of patients on low flow oxygen therapy is not common. So the demand for PTOs instead of Trainee PTOs is not high. …………………………….. PTO training 17. I have had no involvement in the training of the trainee PTOs. 18. I was aware via team meetings at the time that prior to 2013, PTOs obtained their qualifications by completing a TAFE course. In 2013, TAFE stopped offering the course or training no longer occurred this way. 19. Between 2013 and 2016, PTO training was in a period of transition as the Local Health District (LHD) negotiated an alternative training program. Ms Anne Taylor, District Manager, was undertaking the negotiations at the LHD and State Non-Emergency Transport level regarding PTO training and certification. 20. On 9 October 2015, I was copied in to an email from Ms Taylor to Ms Sandra Duff, Executive Director of Workforce and Culture, regarding organising training for the Trainee PTOs… ……………………………… 22. On 25 February 2016, I received an email from Ms Philippa Walsh with a copy of the minutes from the Patient Flow Team Meeting dated 28 January 2016 attached. These minutes state that we are 'working towards bringing all [Trainee] PTOS up to speed with First Aid Training'… 23. On 7 April 2016, I attended a meeting of Patient Flow Nurse Managers. At this meeting, I was informed that Ms Taylor had submitted a brief regarding upgrading the Trainee PTOs to PTO… 24. On 23 October 2016, I attended a meeting of the Patient Flow Nurse Coordinators. At this meeting, I was informed that the WNSWLHD had commenced training the Trainee PTOs to convert them to PTOs… ………………………………. 26. On 26 October 2016, I was forwarded an email from Mr Josh Carey regarding a concept brief submitted by Ms Taylor regarding Trainee PTOs. Later that same day, I followed up regarding the brief with Ms Lindsay Gough, Director of Operations. 27. Later that same day, Ms Gough responded and confirmed that the funding for transitioning Trainee PTOs to PTOs had been confirmed… ………………………………… Appointment of PTOs 29. As Nurse Coordinator I recall communication from the District Manager, Ms Anne Taylor, detailing the new process and qualifications required… 30. My understanding was the LHD agreed to fund the training for current contracted Trainee PTOs to convert to PTO and any new recruits would be required to hold current two certificates to qualify to interview stage for a PTO position. 31. It was my understanding that each PTO was responsible to ensure they kept their qualification current prior to expiry dates otherwise they could not perform duties. ………………………………. Response to Statement of Robert Fengler 33. I refer to the statement of Mr Robert Fengler dated 9 August 2018 (Robert Fengler Statement). 34. I was aware that one of Mr Fengler's goals was to become a PTO based on comments he made in relation to the new projects, roles or directions he would like to undertake in the next 12 months section in his annual performance review in 2014, 2015 and 2016. ………………………………… 38. Although I don't recall any specific details of interactions between myself and Mr Fengler, I believe that Mr Fengler asked me several questions between 2014 and 2016 regarding when the trainee PTO period would be ending and what additional training was required to become a PTO. 39. My standard practice at this time was to forward any questions regarding PTO training that I received, either orally or in writing, to Ms Taylor for her to answer. 40. On 9 December 2014, I sent an email to Ms Taylor asking about how Mr Fengler could complete his PTO training. 41. Ms Taylor responded on 10 December 2014 and stated that '[a] course be [sic] made available as soon as we can.' I forwarded this response to Mr Fengler on 11 December 2014… I do not recall clearly my specific actions regarding keeping track of this issue as I refer to in an email response to Mr Fengler. ………………………….. 43. The issue of PTO training was raised by Mr Fengler at a team meeting on 21 September 2016. As a result, an action item from the meeting was for Mr Fengler to email Ms Philippa Walsh (Pip) and Ms Taylor regarding training to be offered to the trainee PTOs…
Under cross-examination, Ms Hunter gave the following evidence: Q. … You say at paragraph 12 that the main identifiable different between a trainee PTO and a PTO is the capability of a PTO to transport patients receiving oxygen therapy. Are you familiar with the award classifications for trainee PTO and PTO? A. I'm familiar. Q. Are you aware whether that distinction which you've identified, the distinction being that PTO's are capable of transporting people with oxygen but trainee PTO's aren't, are you aware whether that distinction is in the award? A. No I'm not clear. Q. At paragraph 18 of your statement you say that in 2013 TAFE stopped offering a course or training no longer occurred in this way. You're referring there to a certificate course, certificate III course I believe is that correct? A. I'm referring to a course at TAFE I don't know what the exact course name was but I was aware that previous PTO's had completed a TAFE course. Q. Given we know that you started in 2012, you would be aware that that course wasn't offered to people in 2013 is that correct? A. I knew in 2013 the course was no longer available. When I started as a, in my permanent role that's when part of my duties, I was responsible to look after Cowra and Coonabarabran crews so I became aware in 2013 that there was no longer a course available to convert to PTO's. Q. So there was, as far as you're aware, there was no offering in 2013 by the LHD to trainees to undertake that course? A. Yeah there was no offering, whether the course wasn't available or, yeah I knew that they couldn't - we couldn't advise where to go and do the course.

Anne Maree Taylor

Ms Taylor was contracted to the position of Acting District Manager, Patient Flow Transport Unit, in September 2010 and was appointed to the permanent vacant position in May 2012. Ms Taylor's affidavit contained the following: Trainee PTOs 24. On commencement of my employment with the WNSWLHD, all permanent and casual patient transport officers had already accepted positions as Trainee PTOs in the Patient Flow Transport Unit. 25. At the time of commencing my employment with the WNSWLHD, I had a conversation with Ms Pearl Dover, the outgoing District Manager Patient Flow Transport Unit. During this conversation, we exchanged the following words or words to the same effect: Anne Taylor: Why are all of the Patient Transport Officers employed as Trainee Patient Officers? Pearl Dover: Because they do not hold the necessary qualifications. A policy also exists to ensure that the Trainee Patient Transport Officers for not work outside the scope of their basic First Aid Certificates. 26. Trainee PTOs were not educated or qualified to administer oxygen at all. This is the key difference between a Trainee PTO and a fully qualified PTO. A Trainee PTO cannot transport a patient who requires oxygen. Two fully qualified PTOs can transport a patient with up to 4 litres of oxygen according to the NSW Health Policy Directive titled 'Service Specifications for Transport Providers, Patient Transport Service'… PTO training requirements 27. The Health Employees (State) Award 2008 (Award) clearly lists the requirements of a Patient Transport Officer. Both Basic First Aid and Basic Life Support are mandated in clause 1 (xxxiii). This was a minimum requirement when I was first employed in the role as Trainee PTOs were transporting patients. All staff working with patients must complete a Basic Life Support certification on an annual basis. 28. My professional understanding of the Award lists the basic difference between a Trainee PTO and a PTO but does not define a definitive period for progression to a PTO. Rather the Award states that there is the need for appointment to the position of PTO. 29. The industry standard is for a First Aid qualification to require renewal every three years while a Basic Cardiopulmonary Resuscitation qualification is required to be renewed annually. 30. It is noteworthy that Automated External Defibrillators (AEDs) were not a component of the Patient Transport fleet until 2012. 31. The completion of a PTOs Senior or Basic First Aid certificate was to be in the employee's time and at the employee's expense which was included in their signed position descriptions. I have confirmed this with various HSU representatives since I commenced my employment with WNSWLHD. 32. I was copied on an email dated 18 July 2016 by email from Ms Zelda Giblett, Organiser HSU NSW/ACT, to Ms Tiffany Charlton, Human Resource Consultant WNSWLHD, regarding training to be offered to Trainee PTOs. In her initial email Ms Charlton stated that the PTOs are to be responsible for the cost of maintaining their Senior First Aid certificates… Previous PTO training 33. I recall that in 2011 Ms Antonia Hynes was the designated Traineeship Coordinator for Greater Western Area Health Service. I recall that in 2011, I telephoned Ms Hynes several times to try and obtain funding for the Trainee PTOs to complete the required training 34. During 2011, I recall that I was advised by Ms Hynes via email that funding had been secured for Trainee PTOs to complete a WNSWLHD-approved Certificate Ill Non-Emergency Client Transport course to progress to PTOs. The course was scheduled to commence on 15 June 2011 and complete approximately 9-10 month later. 35. The course was contracted to TAFE for completion and was overseen by Mr John Eiseman (WNSWLHD Learning & Development), following a review and approval of the content, including education specifically approved for inclusion in the course for a rural student. 36. I recall that during 2011 I had several telephone discussions with Mr Eiseman regarding the progress of the course. I recall that Mr Eiseman told me that the course completion date was delayed and that the course would now take approximately 18 months to complete due to: 36.1 Difficulties encountered by TAFE in scheduling classes and assignments and providing training; and 36.2 Some students struggling with the material and requiring significant additional support and time to complete the assessments. 37. The course was offered to all full-time and part-time permanently appointed Trainee PTOs. The course was not offered to casual Trainee PTOs. 38. 14 Trainee PTOs expressed an interest in completing the course. 11 Trainee PTOs started the course and nine completed it. Two Trainee PTOs resigned during the course. 39. My understanding was that following this initial course offering, WNSWLHD intended to run further training for any new Trainee PTOs so as to sustain a credible and well-educated workforce. 40. Between 2011 and 2016, I was not involved in any discussions directly with the Health Services Union (HSU). However, I did respond to several questions from members of the HR department regarding HSU requests. 41. On 27 June 2012, I sent an email to Ms Sandra Duff regarding the number of trainees currently employed. Later that same day, Ms Duff replied… 42. On 14 September 2012, I sent an email to Ms Kylie Peacock regarding redrafting positions descripts. 43. On 17 September 2012, Ms Peacock replied and stated that the HSU had raised the transition from Trainee PTOs to PTOs and that Ms Duff requested that Ms Peacock work with me on it… 44. I understood that sometime 2014 that Traineeship funding for the WNSWLHD had ceased following restructure of NSW Health. As a result of the funding ceasing, WNSWLHD would now have to pay the course fees for all Trainee PTOs to complete the course. 45. I recall that I spoke by phone with Mr Geoff Khiene, NSW Ambulance Educator, in the hope that NSW Ambulance might be able to complete a course for the WNSWLHD. NSW Ambulance advised after approximately six months they were unable to run the course. 46. I recall that I emailed and spoke by phone with by Ms Meegan Connors from the WNSWLHD Nursing and Midwifery Directorate in 2015 to design a program that would meet the education needs of the Local Health District (LHD) with regards to training for Trainee PTOs. I have been unable to locate this email or any subsequent emails to or from Ms Connors… 47. After approximately 12 months, Ms Connors told me that this could not be achieved because WNSWLHD was not a Registered/recognised Training Authority. 48. On 23 November 2015, I received an email from Ms Leach regarding the provision of training for Trainee PTOs… 49. Throughout 2015, I was meeting with Ms Charlton fortnightly. During several of these meetings, we discussed training to transition the Trainee PTOs to PTOs. I could not understand why we needed to transition the Trainee PTOs to PTOs as we did not require them. I recall that in these meetings, Ms Charlton told me that the HSU was asking the WNSWLHD HR department for a timeframe for the appointment to PTO as their members were asking for it. 50. In January 2016, I became frustrated with the delay in organising training with an external trainer. In consultation with Ms Charlton, it was decided to try and arrange for all Trainee PTOs to receive just the absolute basic level of training required to transition all Trainee PTOs to PTOs to resolve the matter. 51. On 29 January 2016, I submitted a business case concept brief to provide basic level training to transition all Trainee PTOs to PTOs... 52. On 20 June 2016, I sent an email to Ms Linsey Gough, WNSWLHD Director Operations, to follow up on the brief. 53. Later that same day, Ms Gough responded and asked how much the training would cost. 54. I responded to this email on 21 June 2016. 55. Later that same day, Ms Gough told me to go ahead with the brief… 56. On 18 July 2016, I was copied on an email from Ms Giblett, Organiser HSU NSW/ACT, to Ms Charlton regarding training to be offered to Trainee PTOs... Ms Gilbert was responding to an earlier email from Ms Charlton in which Ms Charlton stated that: 56.1 The concept brief had been approved for the progression of the Trainee PTOs; 56.2 Assessment of the Trainees would commence in August 2016 and would be done in work time but would require some prior study; 56.3 Once the assessment was completed, required training undertaken and competencies met, the Trainee PTOs would be provided with an updated position description to sign; and 56.4 Employees would be required to maintain their Senior First Aid qualification at their own cost. 57. On 12 September 2016, I emailed a letter dated 6 September 2016 to all Trainee PTOs offering them the funded training as a one-off… 58. Training was completed by all Trainee PTOs by 16 December 2016. 59. Training was conducted by external contractors, Mr Tony Wells and Ms Leah Wells.
In relation to the issue of the training required for a TPTO to progress to a PTO, Ms Taylor gave the following evidence in chief: Q. What was your preference in terms of the education and training requirements compared to what you were able to achieve? A. So my understanding when I look at the award - is that what you're asking me? Q. Yes. A. Yeah. So my understanding when I look at the award, and I think it's very clearly set out, it actually defines what a trainee is and it defines what a PTO is. So I'm a clinician and when I interpret that award, it does not tell me any duration of time for a trainee. It does tell me for a PTO what the minimum standard of requirements are. But as a manager and as a leader, I was under the impression that the LHD could approve whatever they wished to approve for a training requirement, such as what I'm required to partake in my job description does not have to - can be above and beyond that. Does that make sense?

Daniel Robinson

Mr Robinson gave the following evidence: Claims for back payment by PTOs 6. In late September 2017, shortly after commencing with WNSWLHD, I was made aware of a grievance raised by four employees within the Patient Flow Transport unit relating to their time as Trainee Patient Transport Officers. These employees were Mr Rodney Arrow, Mr Robert Fengler, Mr Wayne Millsteed and Mr Owen Roberts (the employees). The basis of the grievance was that the employees felt they were entitled to be back paid for their time employed as Trainee Patient Transport Officer to the level of Patient Transport Officer (PTO) before they were transitioned and appointed to the PTO position. 7. The transition process and appointment of the employees to PTO resulted from the resolution of a dispute with the employees and the Health Services Union. 8. This grievance was assigned to me in late September 2017 to provide guidance and support to seek a resolution. I was provided the background on the issue by Ms Tiffany Charlton, Human Resources Manager and Ms Anne Taylor, District Manager Patient Flow Transport Unit. Audit Undertaken 9. I supported Ms Taylor in undertaking an audit of the time the employees claimed was subject to back pay. This audit focused on the recruitment of the employees, the length of time in their Trainee role, the availability of training, their history of work activities and the currency of their certifications. The audit was to take an evidence based approach to establishing if there was a basis for the claim made by the employees and using this to make a determination about the claim. 10. This approach was discussed Mr Bert Coquillan, Industrial Officer at the Health Services Union (the union), and a commitment was made by WNSWLHD that the results of this audit and the consequential determination would be provided to the union. The audit results and determination was provided in a letter which was both emailed and posted to the union on 19 October 2017… 11. The audit demonstrated that 11.1 the employees were appointed as Trainee Patient Transport Officers after applying for this role 11.2 The employees were only required to undertake the duties in line with their position of Trainee PTOs during their time employed under this classification and were not required to undertake the duties of PTO. 11.3 There were a number of instances where the employees were not required to attend any jobs due to their status as Trainee PTO rather than PTO 11.4 An opportunity was provided to all Trainee PTOs between 2011 and 2013 to undertake training in Certificate Ill Non-Emergency Client Transport (HLT30212) to move to qualify them to move to the position of PTO in 2013. Nine (9) of the employees colleagues completed the course and were consequently progressed to Patient Transport Officer positions. 11.5 There was no legislated length of traineeship for these roles nor timeframe for when Trainee PTOs were required to be move to the position of PTO. 11.6 There were periods of up to three (3) months within their employment where their first aid qualifications were not current and the employees were not qualified to even undertake their Trainee PTO role. 12. Due to the results of the audit and review I personally saw no basis for providing back payment to the employees. There was no legislative requirement to provide the back payment, the employees were paid in accordance with their classification and undertook duties in alignment with their position. 13. While the audit found that no money was owing to the employees and as such WNSWLHD determined not to approve the back pay, consideration was given to the protracted nature of the resolution of the issue and the impact this was having on the employees and the unit. In light of these considerations, in the correspondence of 19 October 2017…, WNSWLHD committed to putting to the employees and the union a proposal to resolve the issue. 14. This commitment was fulfilled on 20 October 2017. 15. Correspondence continued with the union until 4 November 2017 with no resolution to the matter. Referral to IRC 16. No further correspondence was received on the issue, until the Applicant's Senior Industrial Officer, Mr Brendan Edghill, called me on 13 April 2018 to inform that the union was lodging the issue as a dispute with the Industrial Relations Commission (IRC) that day. 17. I reminded Mr Edghill that it had not heard anything about the issue for some five (5) months and that our previous correspondence demonstrated a willingness to negotiate a resolution of the issue. These concerns were then provided to the Applicant via email on 13 April 2018… No response was received from the Applicant. 18. On 1 May 2018, I was copied into correspondence between Mr Edghill and the IRC seeking a hearing date for this matter. I responded to Mr Edghill, again extending the offer to discuss the matter prior to hearing… Again no response was received.

Principles governing award interpretation

At the heart of this dispute is the conflict between the parties as to the proper interpretation of the award definitions of TPTO and PTO as set out at [2] above.
Section 175 of the Act is in the following terms: 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).
In this matter, the Commission is performing its functions pursuant to Chapter 3, Part 1 - Conciliation and arbitration of industrial disputes, of the Act. In order to perform those functions it becomes necessary to determine the question as to whether the award definition of PTO applied to the work being performed by the four employees and, if so, from what time were they entitled under the Award to be paid as PTOs. Although there was some vacillation on the issue of minimum qualification requirements from some of the witnesses who gave evidence for WNSWLHD, it is common ground that, after completing the training provided by Allens Training in the "HLTAID001 Provide cardiopulmonary resuscitation" and "HLTAID007 Provide advanced resuscitation" courses on 5 December 2016 (24 January 2017 in the case of Mr Millsteed) the four employees were entitled to be classified and paid as PTOs.
The principles governing the interpretation of award provisions were recently discussed by Commissioner Sloan in Fire and Rescue NSW v Fire Brigade Employees' Union of New South Wales ([2018] NSWIRComm 1076) in the following terms: Applicable law and principle 18 The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant industrial instrument: s 175 Industrial Relations Act 1996 (NSW) ("Act"). 19 The parties referred me to various authorities on the principles to be applied when interpreting industrial instruments such as the Award. I have considered those authorities. The principles of interpretation they set forth are well-established. 20 In State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] 247 IR 129 the Full Bench of the Commission (Walton J, President, Boland AJ and Tabbaa C) cited with approval the judgement of Walton J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] 87 NSWLR 41. The Full Bench stated as follows: Award interpretation 26 This appeal falls mainly to be determined by the application of principles governing the interpretation of awards. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23, Walton J, President gave detailed consideration to the principles by reference to relevant authorities including the latest High Court authorities. 27 His Honour was able to distil from the authorities the following statement of principles at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). 28 His Honour also addressed the question of the extent to which extrinsic material may be employed in award interpretation. In that respect, Walton J concluded: [127] Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself. [128] In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible. 29 His Honour considered that the history of a provision of an award may form part of the consideration of context. In that respect, Walton J referred approvingly to what Burchett J (with whom Drummond J agreed) said in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 517-518 of the use of history in the interpretation of awards: No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine-drivers' and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it." ... True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. 30 Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. 31 Walton J completed his examination of the relevant authorities by stating the following conclusions: [142] Of course, a difference in the relative bargaining power of the parties is not relevant to the present matter but the requirement to have regard to all the circumstances of the case in which the actual words used are in harmony with the jurisprudence which I have reviewed above. In short, in the construction of an award, this methodology requires the Court to utilise a broad approach to the relevant words in their context, particularly their industrial context (and this may include relevant permissible extrinsic evidence but must disregard impermissible extrinsic evidence) in order to discern the meaning of those words which the drafters are properly taken to have intended. [143] The adoption of these principles will result, in my view, in avoidance, in the construction of awards, of a strict but unintended technical meaning being attributed to the particular words of an award or too much attention being given to mere infelicitous expression or inconsistencies. The Court should not strive for the discernment of an absurdity. The Court should endeavour to give a provision of an award a meaning consistent with the intention of the parties gathered from the words of the provision and from the whole award, having regard to the industry and industrial relations environment in which the award came to be made. As Kirby J put it, the construction should be one which contributes to a sensible industrial outcome, provided... such an interpretation may reasonably be available from the language used in the provision (that is, from the text of an award). [144] Ultimately, the adoption of such an approach to the construction of awards has limits. As I have mentioned, the principles of award interpretation cannot lead to an attempt to construe the terms of an award according to the subjective intention of the parties or result in an unreasonable or unnatural construction being placed on the words of an award. Attention must be fixed upon the ordinary meaning of the words used when read in context. As French J stated in City of Wanneroo at [57]: ...while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. We adopt his Honour's analysis and the principles and conclusions he draws from the authorities. 21 The passages referred to above were recently cited and applied by the Full Bench in The Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038. I will apply the same principles.
I will also attempt to apply those principles to the determination of the present dispute with a view to achieving a "sensible industrial outcome".

Were the TPTOs entitled to be classified and paid as PTOs?

Award definition of TPTO

It is clear from the award definition of TPTO that it is contemplated that the employee is to undergo training and workplace mentoring with a view to being appointed as a PTO. The language used in the definition suggests that TPTO is a transitional classification to which someone who aspires to become a PTO is appointed for the specific purpose of undertaking training in order to achieve that progression. Although the nature, level and duration of the training is not spelled out in the award definition, TPTO is clearly not a classification in which a person is to be employed on an indefinite basis.
According to the evidence led by WNSWLHD, between 2011 and 2013 TPTOs were able to undertake through TAFE a Certificate III Non-Emergency Client Transport course. Those who successfully completed this course were reclassified to PTO. However, that course became unavailable in 2013 and was never offered to the four employees. Despite the best efforts of Ms Taylor, no alternative course of training was put in place or offered to the TPTOs until December 2016. As a consequence, TPTOs such as Mr Arrow and Mr Roberts were employed on a permanent basis as trainees for almost three and a half years before they were offered the training which enabled them to progress to PTO.
The obligation to provide training lies with the employer. It is not incumbent on the employees to seek out and undertake training courses themselves which may or may not satisfy the requirements of their employer for reclassification to PTO. This seemingly uncontroversial proposition appeared to have been lost on WNSWLHD during the following passages from the cross-examination of Mr Arrow about enquiries he had made in 2014 and 2015 of a colleague, Ashleigh Mansell, who had apparently sought out and completed a course of training on his own initiative: Q. It looks as though you were making some inquiries with Ashleigh Mansell about it and he told you that he was doing a Certificate IV course with these components in it, didn't he? A. He said he was doing a Certificate IV course. I'm not sure what the components were that he finished up doing or what he was credit for, but he completed the course over a weekend and was made a PTO. Q. He took some initiative to do that himself? A. Which is what I was trying to do here. Q. You were trying to do the same, were you? You took some initiative to do the training yourself? A. Well, that's if you read the emails, that's what it says. Q. He managed to do it himself, but you didn't? A. That's correct. ………………………….. Q. You also knew that Ashleigh Mansell had stomped up to do it himself? A. No. That was 2014 that I discovered that. Q. You expected to be treated differently to Ashleigh Mansell then; is that what you're saying? A. No. Why would you assume that? Q. He's had this email exchange where he says he was doing his Certificate IV? A. He did his Certificate IV because there was no training made available to him either, so he found out and somehow he found out off his own bat that if he did his this other thing, that I guess she had no choice but to make him a PTO, so that's what he did. Q. You're just guessing that. He could have done it and satisfied the PTO training requirements too, couldn't he? A. Well, he did. If he did the course, he did satisfy the PTO well, he satisfied the PTO requirement courses when he did his advanced first aid.
If the proposition is that, in the absence of being offered training by their employer, Mr Arrow (or any other TPTO) was under some sort of obligation to seek out and undertake a course of training themselves which their employer may or may not accept as satisfying the award definition for a PTO, then it is a proposition that I reject in its entirety. There is nothing in the award definition of TPTO that could possibly be construed as requiring trainees to seek out and complete a course or courses of training on their own initiative, but, in the absence of being provided with the required training by their employer, that's precisely what the four employees did.
The obligation was on WNSWLHD to provide Mr Arrow and the other TPTOs with "training and workplace mentoring in order to successfully complete the requirements for appointment to a 'Patient Transport Officer' position". WNSWLHD failed to meet that obligation between 2013 and 2016. It would be a perverse outcome indeed, or to borrow from the words of Walton J, an "absurdity", if WNSWLHD were now permitted to rely upon its failure to comply with its award obligation to provide training to its TPTOs in order to avoid paying these employees at the rate of pay for the award classification which was appropriate to their employment at the relevant time.

Award definition of PTO

The award definition of "Patient Transfer Officer" set out at [2] above refers to "an employee who has successfully completed the requirements for appointment as a Patient Transport Officer and who has been appointed as such" (emphasis added). WNSWLHD relied heavily upon the highlighted words to resist the HSU's back pay claim on the basis that, prior to December 2016, the relevant employees were not appointed as PTOs but were appointed as TPTOs. The argument seemed to be that, regardless of the training and level of qualifications held, presumably including even the favoured but elusive Certificate III course, or the nature of the duties performed, if the employee was appointed as a TPTO rather than as a PTO, they were only entitled to be paid as a TPTO.
Under cross-examination, Mr Robinson made the point this way: Also I don't believe that just getting the certificate is enough. In order for someone to be appointed to that role they have to be appointed I think, it's incredibly clear and actually clearer than any award that I've seen for it to explicitly say "must be appointed as such" so for someone to hold that certificate, even both of those certificates, as far as I'm concerned I don't believe that that's enough for someone to satisfy the requirements of the award because ultimately you have to have those requirements, they have to continue to maintain currency of those requirements and then they also need to be appointed as such. That's my understanding of it. And later: So you said that I say that it says that you must be appointed as such. It couldn't be any clearer it says must be appointed as such so like you're saying that that's what happens, it's written in there. Secondly the point that I was making is having worked for different industries for 10 years in looking at different awards and things like that, I personally haven't seen something written as explicitly or haven't seen - it's often open for interpretation more than what's written there which is crystal clear that must be appointed as such…
The HSU submitted that the adoption of such a literal approach to the term "appointed as such" could lead to a "bizarre and unjust outcome" where "an employer covered by this Award would be free to maintain an employee as a Trainee PTO indefinitely, even if they have completed all training required and perform the full range of duties that may be requested of a PTO".
Reliance was placed by the union on the following passage from the judgement of the Full Court (Fisher, Sheppard, Fitzgerald JJ) of the Federal Court of Australia Industrial Division in Zartorski v South Australian Railways Commissioner & Anor ([1982] 1 IR 354 at 358), a case in which the appellant alleged that she was underpaid and should have been paid at the rate of a ticket clerk based on her duties and work history, her claim having been dismissed at first instance on the preliminary point of law that she was unable to prove that she was formally appointed to such a position: As we have earlier noted, the respondents' submission is that the appellant must fail because she was not formally appointed as a ticket clerk. We stress the notion of formal appointment since the word "appoint" may bear more than one meaning (see e.g., Tarnesby v. Kensington, Chelsea and Westminster Area Health Authority (Teaching) [1980] I.C.R. 475, 481) and informal appointment may be sufficient even where there is specific reference to appointment in a statute (see e.g. Frost v. Bolland (1826) 5 B & C 612, 621). The difficulty of the word has also been noticed in other contexts; an example is Gillespie v. South Clifton Colliery Pty Ltd (1970) 72 S.R. (N.S.W.) 366, 374-375. The essential requirement for present purposes of the State Salaried Officers' Award is that the appellant was in the relevant period occupying a position in the classification of ticket clerk. Whilst no doubt it follows that in one sense it was necessary that she was appointed to such a position, this need mean no more than that she was employed to perform the relevant duties: cf. Reynolds v. Victorian Railways Commissioner (1903) 9 A.L.R. 42, 43. The question ultimately for determination is a question of fact: cf. Royal Australian Nursing Federation Industrial Union of Workers, Perth v. Martindale Hospital Pty Ltd [1978] W.A. Indus. Gaz. 1251. The appellant's position is stronger than the claimant in that case since the award there did speak of appointment. There is a passage in the judgment of Wallace J. at p. 1252 which is reminiscent of the Full Court judgment in the previous proceedings, although, as we have earlier said, in that judgment of the Full Court the language of the award derived special significance from the associated statutory provisions. There is one final matter. For the respondents, our attention was drawn to cl. 51 of the State Salaried Officers' Award which provided for a Classification Board of Reference with respect to the South Australian Railways and reliance was also placed upon the following further passage in the judgment of the Full Court in the previous proceedings: "It follows that we have not reached and do not express any view whether the work she does and the conditions under which it is performed are such that she should or should not be classified as a ticket clerk. That is a question for the Classification Board or perhaps the Commissioner who made the award." We propose to say no more than that we are satisfied that cl. 51 can have no relevant operation in these proceedings consistently with the respondents' submission that the appellant is not covered by the subject award or indeed any award. In summary we are of the opinion that to succeed in her claim the appellant must establish that, in the relevant period, she was "employed ... in" the "grade or occupation of Ticket Clerk" and that she was "occupying" a position in that classification. It is not necessarily an answer to this claim that she is unable to show that she was formally appointed to a position of ticket clerk. Accordingly, we are of opinion that the appeal should be allowed and the matter sent back for the hearing to be concluded.
In the following exchange, I attempted to explore with Mr Robinson the extent to which the term "appointed as such" could be determinative of the correct classification of an employee: COMMISSIONER Q. Mr Robinson, I just want to explore with you some of the evidence that you gave in relation to the requirement for someone to be appointed as such to a position unless you are appointed as such you are not entitled to be paid as such, effectively I think that's your position isn't it? A. Absolutely. Q. Would you look, unfortunately these pages are not numbered, but it's the fourth page of the award, there's a series of award definitions in it and (xv) is the definition of "gardener" do you see that? A. Gardener. Q. Half way down on page 4 or the fourth page? A. Yes I have that Commissioner. Q. It says, "It means person employed as such" and do you accept that that is synonymous with appointed as such, means the same thing? A. I would imagine something similar. Q. Whose duties include and in all of the following and there set out which is standard gardening duties (f)or anyone to recognise those duties as relating to a gardeners position? A. Yes Commissioner. Q. Then the next one xvi, is head gardener, means a person employed as such and in addition to performing gardening duties is required as part of his ordinary duty to supervise and control the staff of not less than three others, one of whom is a gardener? A. Yes, Commissioner. Q. Now if your Local Health District advertised the position for a gardener, and I applied and was accepted and I have all the qualifications, experience you need, I have a horticultural certificate, even though that's not specified, I had years of experience in gardening, and so I got the job and on the first day of my employment I was made aware that in addition to performing gardening duties I was to supervise and control a staff of ten, including five gardeners, would I be entitled to be paid as a head gardener? A. I think that would be a fair claim to go back and actually have that changed that that person should have been appointed to a head gardener position because they're undertaking the duties there of that. Obviously there's been an error that would have had to have been made for, to put someone from a gardener to head gardener. Q. But I've applied for a job as a gardener, I've been employed as such, I've got a letter congratulating me to my appointment as a gardener, specifying the gardener's rate of pay, by what process to do I rectify that? A. So you would put a claim in to Human Resources or first of all to your manager and you would say, "I believe that (a) I have the qualifications, (b) I was undertaking the duties and (c) I should have been appointed as a head gardener" and we would then look back at that and check that the, not only that the qualifications, obviously this doesn't actually refer to qualifications, but they were actually from that period starting, they were supervising and looking after those staff, they were doing the gardening duties but they were doing these other things as well, then I would suggest that they would have a very good claim for back pay. Q. And as a Human Resource professional, what would be your advice if they did all of that and the answer came back and said, "Sorry, you applied for a job as a gardener, you were appointed or employed as such, and that's how it is"? A. I would continue to raise that as an issue with my, further up the chain, because I would have an issue with that.
I reject the proposition that the four employees were not entitled to be paid as PTOs prior to December 2016 simply because they had not been appointed as such. If they were qualified as PTOs and were performing the work of PTOs then they were entitled to be paid as PTOs.
The award definition for a PTO lists a number of subject matters in which a PTO has successfully completed training and has undergone any mandatory periodic refresher training. The definition does not stipulate the type or level of training which is required to be undertaken. Several witnesses for WNSWLHD expressed a preference for Certificate III level qualifications. Under cross-examination, Mr Robinson gave the following evidence: Q. Sorry do you agree then that in order to satisfy the requirements of the patient transport officer classification description in the award, in order to satisfy those requirements you can satisfy them by holding the advanced resuscitation certificate and the advanced first aid certificate? A. Personally I don't believe so no. Q. You don't believe so? A. I don't believe so. Q. So what action have you taken to address that? A. I've raised that with Anne that into the future that we need to look at this and make sure that we are complying with the award and what's the best way that we can do that to make sure she is satisfied with that process. During those discussions obviously we've then gone back into the past of the way that she believes that that's best satisfied and certainly I would be more comfortable is making sure that we are ticking off all of the individual aspects of that including I guess all in the award and the way that it's been described to me is that that certificate III that the cohort prior to Mr Arrow and crew undertook really not only met the very basic requirements but also demonstrated that there was genuine competence with regard to parts of the award…
In addition, as stated at [36] above, there was annexed to Mr Millsteed's witness statement a Position Description for "Trainee Patient Transport Driver" at Orange Health Service (part of WNSWLHD) which, under the heading "Key Accountabilities" stated "Holds Certificate III Non Emergency Healthcare within 2 years of employment" and under the heading "Selection Criteria" stated "Willingness to commence Certificate III Non Emergency Healthcare within 12 months of commencement of employment".
Putting aside the fact that, since 2013, the Certificate III Non Emergency Healthcare course has not been made available to TPTOs at WNSWLHD, it is simply not open to individual LHDs or hospitals, whose employees are covered by the Award, to determine that a particular training course or level of training is required to be achieved for advancement to PTO in circumstances where no such requirement appears in the Award itself. To the extent that Ms Taylor held the view that that the Award sets the "minimum standard of requirements" but that "the LHD could approve whatever they wished to approve for a training requirement" (see [61] above), she was clearly wrong. There is no warrant in the terms of the award definition for PTO for an individual LHD to impose any particular level of training or qualification as a requirement for appointment to that classification.
In any event, in the ultimate, WNSWLHD has accepted that the "Essential Requirements" for appointment as a PTO are "Current Advanced First Aid Advanced Cardiopulmonary (HLTAID006) Advanced Resuscitation/CPR (HLTAID007) certificates or equivalent, as a minimum" and a "Current licence to drive in NSW (Class C)" (see [23] above). These have been the essential requirements since December 2016 and are reflected in the current Position Description for a PTO at WNSWLHD.
The award definition of PTO lists the following as areas in which a PTO is required to have completed training: Advanced Cardio Pulmonary Resuscitation (CPR), Gueddels Airways, Basic life support skills, Advanced first-aid, Patient handling and lifting techniques, Driver training, Oxygen administration, and Transport and handling of specialised equipment (e.g. cardiac defibrillators).
The Award does not stipulate the level of training that is required in each of these subject areas. However, in order to give meaning to the award definition of PTO, it is useful to examine what training, if any, each of the four employees had completed as at the beginning of the period for which the HSU is claiming that they should have been classified and paid as PTOs.

Training and qualifications of the four employees

The HSU claims that the four employees had satisfied the training requirements of the award definition of PTO on and from the following dates:

Rodney Arrow - 21 November 2012.
Robert Fengler - 22 October 2014.
Wayne Millsteed - 14 March 2013.
Owen Roberts - 14 March 2013.

Basic life support skills

Prior to December 2016, each of the four employees had undertaken multiple courses in basic life support skills:

Mr Arrow in February 2011, November 2012, May 2015, December 2015 and July 2016 (see [15] and [20] above);
Mr Fengler in October 2014 and October 2015 (see [28] and [31] above);
Mr Millsteed in January 2013, March 2013 and June 2016 (see [35] and [39] above); and
Mr Roberts in March 2013, June 2015 and June 2016 (see [43], [46] and [47] above).

In addition, in her affidavit Ms Taylor stated: 27. The Health Employees (State) Award 2008 (Award) clearly lists the requirements of a Patient Transport Officer. Both Basic First Aid and Basic Life Support are mandated in clause 1 (xxxiii). This was a minimum requirement when I was first employed in the role as Trainee PTOs were transporting patients. All staff working with patients must complete a Basic Life Support certification on an annual basis.
I am satisfied that, for the period of the pay claim for the four employees set out at [85] above, each of them had completed training in "Basic life support skills" such as to satisfy this aspect of the award definition of PTO.

Driver training

The approach of WNSWLHD to the issue of the "Driver training" required for a TPTO to become a PTO was perplexing, to say the least. WNSWLHD appeared to adopt the position that the four employees could not be reclassified as PTOs because they had not undertaken any driver training, even though no driver training course was ever offered to any of them and they were never directed or requested to participate in any driver training course. This issue became the subject of the following exchange during the hearing: COMMISSIONER: There are two things about that I don't know what driver training was or was not involved in that (Certificate III) course; I don't know that there's any evidence before me. Putting that to one side, at some point in time, that course, for whatever reason, became unavailable. It was done by people back in 2011, apparently. It may or may not have involved driver training, I don't know. What I'll try to understand is what driver training did these four people that have given evidence in this case, what were they told they were required to do in order to become a PTO; and when were they told they were required to do it; what did it involve; where were they supposed to go and do it. GARDNER: They haven't made it clear, Commissioner. They haven't said anything about it. COMMISSIONER: Isn't it the obligation of the employer to tell people what they need to do? There was plenty of evidence they were asking what did we have to do over a period of time. I don't think that's disputed. There's evidence in your witness statements about those sorts of conversations. Where do I find evidence that says you have to go and do this specific driver training? GARDNER: I've just take you, Commissioner, to a particular list of training courses that Mr Ashleigh Mansell exchanged COMMISSIONER: That tells me nothing, with respect. I don't know Mr Mansell; I don't know what he did, but apparently GARDNER: I'm not here to run the applicant's case, but on my understanding it's transport non emergency clients under operational conditions is all about transporting non emergency clients in a driver situation. COMMISSIONER: That's your understanding. GARDNER: Yes, that's my understanding. COMMISSIONER: But where's the evidence of that? I would have thought that if you're going to say that this claim is going to be defeated because they hadn't done the required driver training under the award now, I'm isolating that just to make the point. I know you've got arguments about all the other things. Just from this driver training one, because it appears to not be referred to in any of the first aid type courses that have been done, and that's probably for obvious reasons, what I'm trying to understand is what driver training in addition to holding their driver's licence were they required to undertake in order to be eligible to be appointed as a PTO; when were they told that? GARDNER: The best we've got is Mr Arrow saying he did some orientation which I understand is by Mr Richard Williams. That we're not overly concerned about this, our understanding is that this cohort, this group of four, were given special treatment as part of an industrial agreement that only required the two certificates. COMMISSIONER: That doesn't answer my question because you're now saying, all right, we let them slip through the net in 2016 as part of a deal, I think you've used that term more than once, with the union; so we made them PTOs even though on any view, from your case, they weren't entitled to be, not just because of driver training but a whole raft of other reasons. You're saying don't hold that against us. GARDNER: Yes, I am. It was done in good faith to try and resolve a dispute. COMMISSIONER: Let's assume all of that is so. What I'm trying to understand is on what basis do you say they were not qualified to be PTOs prior to that time in 2016 because they hadn't undergone driver training that the award required that they undergo; where do I go to find out what that driver training is, when they were told that they had to do it in order to become a PTO, and where's the evidence that they didn't? GARDNER: The evidence that I've put to them is they'd never held that unit of competency on the transport of non emergency clients under operating conditions. COMMISSIONER: I don't know what that is, Mr Gardner. A reference in an email from someone I have no idea what it was about. Unless you're going to put Ms Taylor in the witness box, it's not in her statement as I've read it but I may have missed something. GARDNER: No, it's not. COMMISSIONER: It says when Mr Arrow raised this with me, I said to him, well look, you haven't done the required driver training. This is the training you have to do. You enrol at Oran Park, or wherever it is GARDNER: It wouldn't be that because ambulance officers COMMISSIONER: Wherever. GARDNER: Ambulance officers drive at speed; non emergency transport drivers have to obey the road rules. COMMISSIONER: Well, you go down to the local driving school and do a refresher course, or something. Where do I find that out? GARDNER: It's a simple reason why it's not in Ms Taylor's statement; it's that this only came up in the evidence in reply from Mr Arrow, and so she hasn't had a chance to respond to it yet. COMMISSIONER: It's been your case from the outset, or at least part of your case, that these people haven't done the driver training that the award requires that they have undertaken in order to qualify to be a PTO. That's been part of your case from the outset. GARDNER: We don't have evidence of that, no. COMMISSIONER: No, but that's part of your case. You say they don't qualify under the award and, in particular, not exclusively or only but in particular you point to driver training and say they haven't undertaken the training in driver training that the award requires that they undertake. That's part of your case. GARDNER: Yes, and there's lots of other training they haven't done either. COMMISSIONER: Let's just focus on driver training for the moment. Where do I find in the evidence, and I think I've asked this about half a dozen times now, what the driver training is that's referred to there in that part of the award; when they were told that they were required to do in order to qualify to be PTOs; what they did in response to that direction or request or advice that this is what you need to do on the driver training aspect? GARDNER: Ms Taylor hasn't given evidence yet. She's the manager responsible for this, and she understands what was involved in the training. COMMISSIONER: But she's known from the outset that your case involves a claim they haven't qualified under the award, they haven't done the driver training. GARDNER: Yes, and we've fairly put this to them including in the audit that was done more than a year ago. COMMISSIONER: No, the audit that was done was about the work that they performed or the training that they'd undertaken. GARDNER: The training they'd undertaken. COMMISSIONER: Where do I find there that, look, you haven't done driver training; this is what you needed to do and you haven't done it; this is when you were told. I must say, Mr Gardner, and I'm being frank, to the extent that this case stands or falls on your claim that they're not qualified to be paid as PTOs for the claimed period because they haven't undertaken the training in driver training that they were required to do in order to be qualified to be appointed as a PTO, I'm having real trouble seeing that. You have to persuade me that that is a factor upon which I should place some weight because at the moment I'm not seeing it. GARDNER: I've made a note of it, Commissioner. We've got a number of witnesses yet to come who should be able to help you with it. COMMISSIONER: They should have been able to help me with it prior to now because it's clearly been an issue from the outset. It's not something that's been raised in reply statements from the union. It's something that you say was an issue from the very beginning, and it's not been addressed, as far as I can see. GARDNER: I raised it as a matter that's been raised in reply because, and this was put to Mr Arrow, there's a whole raft of courses that he hadn't done. I'm having difficulty, Commissioner, accepting that the onus is on us to put forward evidence that supports each of the member's claims that they were qualified. All along, my client has simply said, look, if you can provide the evidence, including at the time of the audit, we'll seriously look at it. COMMISSIONER: Say the onus is on the union and its members to provide the evidence that they are qualified to be PTOs for the period which they claim. What evidence would the local health district have required that they present that they had completed training in driver training; what did they have to show beyond their driver's licence? GARDNER: I'll have to have the witnesses explain what the orientation course that Mr Arrow referred to because he seemed to suggest that that orientation course covered everything you needed to know. ……………………………. COMMISSIONER: More importantly, when were they told that that's what you need to do in order to qualify to be a PTO. GARDNER: I'll make a note of that.
Under cross-examination, Ms Taylor conceded that driver training was not mandatory for appointment as a PTO.
My summation of the position of WNSWLHD on the issue of driver training is as follows: The award definition for a PTO refers to, amongst other things, the requirement to have completed driver training. Prior to December 2016, the four employees were not qualified to be classified as PTOs because, amongst other things, they had not produced evidence that they had undertaken the required driver training. At no time did WNSWLHD advise the four employees what specific driver training they needed to complete in order to satisfy the driver training aspect of the PTO award definition, nor were they offered the opportunity to undertake any such training. Nevertheless, their failure to have completed driver training disentitled them to be classified as PTOs. However, in December 2016, as part of a deal with the HSU, the four employees were reclassified as PTOs even though they had not completed any driver training prior to their reclassification. Since that time employees have been engaged as PTOs without being required to complete any driver training.
It should come as no shock that I am of the opinion that such a position is manifestly untenable.
Each of the four employees held the required driving licence from the time they were engaged as TPTOs. Presumably, each of them had completed sufficient training to acquire such licence. I am of the opinion that each of the four employees satisfied the "Driver training" aspect of the award definition of PTO from the time of the commencement of their employment as TPTOs.

Patient handling and lifting techniques

Ms Taylor stated under cross-examination that training in patient handling and lifting techniques was an annual mandatory training requirement for TPTOs and no additional training in this aspect was required of the four employees in order for them to be reclassified as PTOs.
I am of the opinion that each of the four employees satisfied the "Patient handling and lifting techniques" aspect of the award definition of PTO from the time of the commencement of their employment as TPTOs.

Remaining training requirements

In its closing written submissions, the HSU summarised the evidence as it related to the remaining training requirements of the award definition of PTO for each of the four employees. I accept this summary, which is set out below, as an accurate reflection of the evidence presented to the Commission: Remaining training requirements 19. The remaining training requirements for each of the PTOs is addressed below. Rodney Arrow Advanced Cardio Pulmonary Resuscitation (CPR) 20. Mr Arrow attained the certificate 'HLTFA404B Apply Advanced Resuscitation Techniques' on 21 November 2012. 21. The Unit of Competency details for that certificate are provided as Annexure H to the statement of Emma Williams. This document includes: a. Within the section titled 'Unit Descriptor on page 2: This unit deals with the provision of advanced first aid resuscitation techniques... b. Within the section titled 'Elements and Performance Criteria' on page 4: 1. Prepare resuscitation equipment ready for use... [with more detailed performance criteria also outlined] 2. Apply bag and mask resuscitation technique... [with more detailed performance criteria also outlined] c. Within the section titled 'Essential skills' on page 7: Apply appropriate resuscitation techniques... d. Within the section titled 'Evidence guide' on page 9: Method of assessment may include: • Skills in performing advanced resuscitation procedures are to be assessed through demonstration, with questioning to confirm essential knowledge; • Skills are to be assessed through simulations...; • For assessment purposes, demonstration of skills in CPR procedures require using a model of the human body (resuscitation manikin) in line with ARC Guidelines. 22. Therefore, the Unit of Competency details for this certificate demonstrate that a person who holds this certificate has been trained in advanced CPR. On that basis, the Commission should determine that Mr Arrow was trained in Advanced CPR on and from 21 November 2012. Gueddels Airways 23. It is agreed between the parties that a Gueddels Airways (or 'Guedels' to use the correct spelling) is a type of 'oropharyngeal airway' or 'airway adjunct'. 24. It is also noted that Ms Taylor stated during cross-examination that 'anyone with a first-aid certificate can use a Guedels'. 25. As mentioned above, Mr Arrow attained the certificate 'HLTFA404B Apply Advanced Resuscitation Techniques' on 21 November 2012 26. The Unit of Competency details for that certificate are provided as Annexure H to the statement of Emma Williams. This document includes: a. Within the section titled 'Required skills and knowledge' on page 6: The candidate must be able to demonstrate essential knowledge... This includes knowledge of...: • Use of ... oropharyngeal airways... b. Within the section titled 'Essential skills' on page 7: It is critical that the candidate demonstrate the ability to effectively do the task outlined... This includes the ability to: … Apply appropriate resuscitation techniques, including use of: … • Oropharyngeal airways... c. Use of oropharyngeal airway is also referred to in the Range statement on page 13. 27. Therefore, the Unit of Competency details for this certificate demonstrate that a person who holds this certificate has been trained in the use of oropharyngeal airways. On that basis, the Commission should determine that Mr Arrow was trained in Gueddels Airways on and from 21 November 2012. Advanced first-aid 28. Mr Arrow attained the certificate 'HLTFA402C Apply Advanced First Aid' on 21 November 2012. 29. The Unit of competency details for that certificate are provided at Annexure 8 to the statement of Emma Williams. This document sets out the required skills and knowledge and the evidence guide for attainment of that certificate. 30. The Unit of Competency details for this certificate demonstrate that a person who holds this certificate has been trained in advanced first-aid. On that basis, the Commission should determine that Mr Arrow was trained in Advanced first-aid on and from 21 November 2012. Oxygen administration 31. As mentioned above, Mr Arrow attained the certificates 'HLTFA402C Apply Advanced First Aid' and 'HLTFA4048 Apply Advanced Resuscitation Techniques' on 21 November 2012. 32. The Unit of Competency details for each of these certificates demonstrate that a person who holds these certificates has been trained in oxygen administration. 33. The Unit of competency details for 'HLTFA402C Apply Advanced First Aid' are provided at Annexure B to the statement of Emma Williams. This document includes: a. Within the section titled "Required skills and knowledge' on pages 7 and 8: The candidate must be able to demonstrate essential knowledge required to effectively do the task outlined... This includes knowledge of: • Use of AED, oxygen bronchodilator... b. Within the section titled 'Range statement' on page 13: First Aid management skills must include.. … • Oxygen administration... c. Within the section titled 'Range statement' on page 14: Resources and equipment are used appropriate to the risk to be met and may include: • Oxygen resuscitation/cylinders... 34. Ms Taylor was taken to these provisions during cross-examination and it was put to her that it is clear that somebody who holds this certificate was trained in oxygen administration. Ms Taylor agreed. 35. The Unit of Competency details for 'HLTFA404B Apply Advanced Resuscitation Techniques' are provided as Annexure H to the statement of Emma Williams. This document includes: a. Within the section titled 'Elements and Performance Criteria' on page 5: Element Administer oxygen... [with detailed performance criteria related to oxygen administration outlined] b. Within the section titled 'Required skills and knowledge' on page 6: The candidate must be able to demonstrate essential knowledge required to effectively do the task outlined... This includes knowledge of: ... • ... oxygen therapy equipment... c. Within the section titled 'Essential skills' on page 7: It is critical that the candidate demonstrate the ability to effectively do the task outlined... This includes the ability to: … • Apply appropriate resuscitation techniques, including use of: - Oxygen in resuscitation and oxygen therapy... d. Oxygen administration is also referred to with the 'Range statement' on pages 12 and 13. 36. Ms Taylor was taken to these provisions during cross-examination and it was put to her that it is clear that somebody who holds this certificate was trained in oxygen administration. Ms Taylor agreed. Ms Taylor actually went on to state that the training outlined in the document was in excess of that required of a PTO. 37. The Unit of Competency details for this certificate, and Ms Taylor's evidence during cross examination, demonstrate that a person who holds this certificate has been trained in oxygen administration. On that basis, the Commission should determine that Mr Arrow was trained in oxygen administration on and from 21 November 2012. Transport and handling of specialised equipment (e.g. cardiac defibrillators) 38. Mr Arrow's training in the use, transport and handling of specialised equipment (including cardiac defibrillators) is also demonstrated in the Unit of Competency details for 'HLTFA402C Apply Advanced First Aid' and 'HLTFA404B Apply Advanced Resuscitation Techniques'. 39. The Unit of Competency details for 'HLTFA402C Apply Advanced First Aid' include: a. Within 'Performance Criteria' on page 5: 2.8 Correctly operate basic life support equipment... b. Within 'Required Skills and Knowledge' on page 7: The candidate must be able to demonstrate essential knowledge required to effectively do the task... This includes working knowledge of: … Safe storage and handling procedures for pressurised gases. c. Within 'Required Skills and Knowledge on page 8: • First aid management procedures... including: • Use of AED... [Ms Taylor confirmed during cross examination that an AED is a type of cardiac defibrillator]. 40. This document also includes, within 'Skills and Knowledge' on page 9 that a candidate for the certificate must be able to 'use a range of first aid equipment as outlined in the Range Statement' (see the second last dot point on that page). The equipment identified in the Range Statement includes oxygen cylinders and AED (see page 12). 41. On that basis, a person who holds this certificate has been trained in the use and handling of specialised equipment, including cardiac defibrillators. 42. The Unit of Competency details for 'HLTFA4048 Apply Advanced Resuscitation Techniques' include: a. Within 'Elements and Performance Criteria' on page 4: Prepare resuscitation equipment ready for use... … Attach and operate an AED... b. Within 'Elements and Performance Criteria' on page 5: Restore and maintain equipment ready for future use... 43. The use of specialised first aid equipment, including AEDs (cardiac defibrillators) are also referred to on pages 6 to 8, and in the Range Statement on pages 10 to 13. 44. On that basis, a person who holds this certificate has been trained in the use and handling of specialised equipment, including cardiac defibrillators. 45. Therefore, the Commission should determine that Mr Arrow was trained in the transport and handling of specialised equipment on and from 21 November 2012. 46. Therefore, Mr Arrow had met all of the training requirements require by the Award on and from 21 November 2012 and the Commission should so determine. Wayne Millsteed and Owen Roberts 47. Mr Millsteed and Mr Roberts were both certified in 'HLTFA412A Apply Advanced First Aid' and 'Hl TFA404C Apply Advanced Resuscitation Techniques' on 14 March 2013. Advanced Cardio Pulmonary Resuscitation (CPR) 48. The certificate 'HLTFA404C Apply Advanced resuscitation Techniques' supersedes, and is equivalent to, the HLTFA404B certificate attained by Mr Arrow. 49. The Unit of Competency details for 'HLTFA404C Apply Advanced Resuscitation Techniques' are provided as Annexure J to the statement of Emma Williams. This document includes: a. Within 'Elements and Performance Criteria' on page 4: Elements related to preparing resuscitation equipment and applying bag and mask resuscitation techniques... b. Within 'Essential skills on page 7: It is critical that the candidate demonstrate the ability to effectively do the task outlined... This includes the ability to: … • Apply appropriate resuscitation techniques... c. Within the 'Range Statement' on page 12: First aid management skills must include... • CPR 50. The Unit of Competency details for this certificate demonstrate that a person who holds this certificate has been trained in advanced CPR. On that basis, the Commission should determine that both Mr Millsteed and Mr Roberts were trained in Advanced CPR on and from 14 March 2013. Gueddels Airways 51. As mentioned above, the Unit of Competency details for 'HLTFA404C Apply Advanced Resuscitation Techniques' are provided as Annexure J to the statement of Emma Williams. This document includes: a. Within 'Required Skills and Knowledge' on page 6: The candidate must be able to demonstrate essential knowledge required to effectively do the task outlined... This includes knowledge of: … • Use of ... oropharyngeal airways... 52. Therefore, the Unit of Competency details for this certificate demonstrate that a person who holds the certificate has been trained in the use of oropharyngeal airways. 53. It is also noted that Ms Taylor stated during cross-examination that 'anyone with a first-aid certificate can use a Guedels'. 54. On that basis, the Commission should determine that both Mr Millsteed and Mr Roberts were trained in Gueddels Airways on and from at least 14 March 2013. Advanced first-aid 55. As mentioned above, both Mr Millsteed and Mr Roberts attained the certificate 'HLTFA412A Apply Advanced First Aid' on 14 March 2013. 56. 'HLTFA412A Apply Advanced First Aid' superseded the HLTFA402C certificate attained by Mr Arrow. 57. The Unit of Competency details for 'HLTFA412A Apply Advanced First Aid' are provided as Annexure D to the statement of Emma Williams. This document sets out the required skills and knowledge and the evidence guide for attainment of that certificate. 58. The Unit of Competency details for this certificate demonstrate that a person who holds this certificate has been trained in advanced first-aid. On that basis, the Commission should determine that both Mr Millsteed and Mr Roberts were trained in Advanced first-aid on and from 14 March 2013. Oxygen administration 59. As mentioned above, Mr Millsteed and Mr Roberts attained the certificates 'HLTFA412A Apply Advanced First Aid' and 'HLTFA404C Apply Advanced Resuscitation Techniques' on 14 March 2013. 60. The Unit of Competency details for each of these certificates demonstrate that a person who holds these certificates has been trained in oxygen administration. 61. The Unit of competency details for 'HLTFA412A Apply Advanced First Aid' are provided at Annexure D to the statement of Emma Williams. This document includes: a. Within 'Required Skills and Knowledge' on pages 6 and 7: The candidate must be able to demonstrate essential knowledge required to effectively do the task outlined ... This includes a demonstrated understanding of ... • Use of AED, oxygen ... 62. This provision was put to Ms Taylor during cross-examination. Ms Taylor agreed that this demonstrated that someone holding this certificate had received training in the use of oxygen equipment. 63. The Unit of Competency details for 'HLTFA404C Apply Advanced Resuscitation Techniques' are provided as Annexure J to the statement of Emma Williams. This document includes: a. Within 'Elements and Performance Criteria' on page 5: Element Administer oxygen... [detailed performance criteria is outlined] b. Within 'Required Skills and Knowledge' on page 6: The candidate must be able to demonstrate essential knowledge required to effectively do the task outlined... This includes knowledge of: … • ... oxygen therapy equipment... c. Within 'Required Skills and Knowledge' on page 7: It is critical that the candidate demonstrate the ability to effectively do the task outlined... This includes the ability to: … Apply appropriate resuscitation techniques, including use of: - Oxygen in resuscitation and oxygen therapy... d. Use of oxygen administration equipment is also referred to on page 8 (within Required Skills and Knowledge) and oxygen administration is referred to again on page 12. 64. Ms Taylor was taken to these provisions during cross-examination and it was put to her that somebody who holds this certificate was trained in oxygen administration. Ms Taylor agreed. 65. The Unit of Competency details for these certificates, and Ms Taylor's evidence during cross examination, demonstrate that a person who holds these certificates has been trained in oxygen administration. On that basis, the Commission should determine that both Mr Millsteed and Mr Roberts were trained in oxygen administration on and from 14 March 2013. Transport and handling of specialised equipment (e.g. cardiac defibrillators) 66. Training in the use, transport and handling of specialised equipment (including cardiac defibrillators) for Mr Millsteed and Mr Roberts is also demonstrated in the Unit of Competency details for 'HLTFA412A Apply Advanced First Aid' and 'HLTFA404C Apply Advanced Resuscitation Techniques'. 67. The Unit of Competency details for 'HLTFA412A Apply Advanced First Aid' include: a. Within 'Elements and Performance Criteria' on page 4: 2.8 Correctly operate basic life support equipment... b. Within 'required Skills and Knowledge' on page 7: [Demonstrated understanding of:] … • Use of AED... • Manual handling, hazardous substances, dangerous goods... • Safety procedures for the operation of pressurised gases... 68. The Unit of Competency details for 'HLTFA404C Apply Advanced Resuscitation Techniques' include: a. Within 'Elements and Performance Criteria' on page 4: Element Prepare resuscitation equipment ready for use... Apply bag and mask resuscitation technique... Attach and operate an AED... [With detailed performance criteria outlined for each.] b. Within 'Elements and Performance Criteria' on page 5: Restore and maintain equipment ready for future use... c. Further references to specialised equipment, including AEDs (cardiac defibrillators) can be found on pages 6 to 8 and within the Range statement on pages 11 to 13. 69. On that basis, a person who holds this certificate has been trained in the use and handling of specialised equipment, including cardiac defibrillators. 70. Therefore, the Commission should determine that both Mr Millsteed and Mr Roberts were trained in the transport and handling of specialised equipment (such as cardiac defibrillators) on and from 14 March 2013. 71. Therefore, Mr Millsteed and Mr Roberts had met all of the training requirements require by the Award on and from 14 March 2013, and the Commission should so determine.
On the basis of the evidence summarised above, I accept that Mr Arrow satisfied the training requirements of the award definition of PTO on and from 21 November 2012. Mr Millsteed and Mr Roberts satisfied those requirements on and from 14 March 2013.
The situation concerning Mr Fengler is somewhat different from the other three employees as is set out in the following extract from the HSU's closing written submissions: Robert Fengler 72. Mr Fengler was certified in 'HLTAID001 Provide Cardiopulmonary Resuscitation' and 'HLTAID006 Provide Advanced First Aid' on 22 October 2014. Advanced Cardio Pulmonary Resuscitation (CPR) 73. Since December 2016, the respondent has required PTOs to hold the certificate 'HLTAID007 Provide Advanced Cardiopulmonary resuscitation. 74. It is noted that Ms Taylor gave evidence during cross-examination that the missing component of Mr Fengler's training prior to December 2016 was Advanced Cardiopulmonary Resuscitation. Ms Taylor was taken to the Unit of Competency descriptions for 'HLTAID001 provide Cardiopulmonary Resuscitation' and 'HLTAID007 Provide Advanced Cardiopulmonary Resuscitation' and was asked what the difference in CPR components between the certificates is. Ms Taylor was unable to nominate a difference. 75. The Notifier submits that training provided in, and the skills required to be demonstrated for attainment of, HLTAID007 are substantially the same as the training provided and skills required for HLTAID001 and HLTAID006 when it comes to cardiopulmonary resuscitation. 76. The Assessment requirements for 'HLTAID007 Provide Advanced Resuscitation' are provided as Annexure M to the statement of Emma Williams. This document includes: a. Within 'Performance Evidence' on page 3: • Followed DRSABCD in line with ARC guidelines, including: - Performed at least 2 minutes of uninterrupted single rescuer cardiopulmonary resuscitation (CPR) (5 cycles of both compressions and ventilations) on an adult resuscitation manikin on the floor. - Performed at least 2 minutes of uninterrupted single rescuer CPR (5 cycles both compressions and ventilations) on an infant resuscitation manikin placed on a firm surface. - Performed at least 2 minutes of Bag-valve-mask ventilation and at least 2 minutes of compression during a two rescuer procedure on an adult resuscitation manikin placed on the floor. b. Within 'Knowledge Evidence' on page 4: [The candidate must be able to demonstrate knowledge required to effectively complete the tasks outlined...] • ARC guidelines relevant to the provision of CPR. 77. The Assessment Requirements for 'HLTAID006 Provide Advanced First Aid' are provided as Annexure G to the statement of Emma Williams. This document includes: a. Within 'Performance Evidence' on pages 2 to 3: • Followed DRSABCD in line with ARC guidelines, including: - Performed at least 2 minutes of uninterrupted single rescuer cardiopulmonary resuscitation (CPR) (5 cycles of both compressions and ventilations) on an adult resuscitation manikin on the floor. - Performed at least 2 minutes of uninterrupted single rescuer CPR (5 cycles both compressions and ventilations) on an infant resuscitation manikin placed on a firm surface. - Performed at least 2 minutes of Bag-valve-mask ventilation and at least 2 minutes of compression during a two rescuer procedure on an adult resuscitation manikin placed on the floor. b. Within 'Knowledge Evidence' on page 4: [The candidate must be able to demonstrate knowledge required to effectively complete the tasks outlined...] • ARC guidelines relevant to the provision of CPR. 78. Unit of Competency details for 'HLTAID001 Provide Cardiopulmonary Resuscitation' are provided as Annexure P to the statement of Emma Williams. This document includes that the unit describes the skills and knowledge to perform cardiopulmonary resuscitation (CPR) in line with Australian Resuscitation Council (ARC) Guidelines (page 2) and that performing CPR in accordance with ARC guidelines is part of the Performance Criteria (page 3). 79. On that basis, the Commission should determine that a person holding the certificates 'HLTAID001 Provide Cardiopulmonary Resuscitation' and 'HLTAID006 Provide Advanced First Aid' has been trained in Advanced Cardiopulmonary Resuscitation sufficient to satisfy this requirement in the Award. 80. It is also noted that Mr Fengler held the certificate 'HLTAID002 Provide basic emergency life support' from 22 October 2014. Unit of Competency details for this certificate are provided as Annexure U to the statement of Emma Williams. The 'Elements and Performance Criteria' for that certificate includes 'perform cardiopulmonary resuscitation (CPR) in accordance with ARC guidelines (see page 3, within part 2). 81. The respondent has provided no evidence to demonstrate that the term 'advanced cardiopulmonary resuscitation' as it is used in the Award requires something different or additional to the training received by a person who has completed 'HLTAID001 Provide Cardiopulmonary Resuscitation' and 'HLTAID006 Provide Advanced First Aid', or that it means something different to providing cardiopulmonary resuscitation in accordance with Australian Resuscitation Council (ARC) guidelines. 82. On that basis, the Commission should determine that Mr Fengler was trained in Advanced cardiopulmonary resuscitation on and from 22 October 2014. Gueddels Airways 83. A specific reference to oropharyngeal airways does not appear in the Unit of Competency details for 'HLTAID001 Provide Cardiopulmonary Resuscitation' and 'HLTAID006 Provide Advanced First Aid'. 84. As already mentioned, Ms Taylor stated during cross-examination that 'anyone with a firstaid certificate can use a Guedels'. From 22 October 2014, Mr Fengler held an advanced firstaid certificate. 85. It is also noted that it was not put to Mr Fengler by the respondent that he was not trained in Guedels Airways. 86. On that basis, the Commission should determine that Mr Fengler was trained in Gueddels Airways on and from at least 22 October 2014. Advanced first-aid 87. As mentioned above, Mr Fengler attained the certificate 'HLTAID006 Provide Advanced First Aid on 22 October 2014. 88. The Unit of Competency details for this certificate are provided as Annexure F to the statement of Emma Williams. This document includes: a. Within 'Application' on page 2: This unit describes the skills and knowledge required to provide an advanced first aid response... 89. The Unit of Competency details for this certificate demonstrate that a person who holds this certificate has been trained in advanced first-aid. On that basis, the Commission should determine that Mr Fengler was trained in Advanced first-aid on and from 22 October 2014. Oxygen administration 90. Mr Fengler did not receive training in oxygen administration as part of the certificates that he held. 91. The applicant submits that this should not prevent the Commission from determining that Mr Fengler was entitled to be paid at the PTO rate on and from 22 October 2014 (submissions provided below). Transport and handling of specialised equipment (e.g. cardiac defibrillators) 92. Training in the use, transport and handling of specialised equipment (including cardiac defibrillators) for Mr Fengler is also demonstrated in the Unit of Competency details for 'HLTAID006 Provide Advanced First Aid'. 93. Unit of Competency details for 'HLTAID006 Provide Advanced First Aid' are provided as Annexure F to the statement of Emma Williams. This document includes: a. Within 'Elements and Performance Criteria' on page 3: 2.6 Operate first aid equipment according to manufacturer's instructions... 94. Assessment Requirements for "HLTA1D006 Provide Advanced First Aid' are provided as Annexure G to the statement of Emma Williams. This document includes: a. Within 'Performance Evidence' on page 3: [There must be evidence that the candidate has completed the following tasks] • Followed the prompts of a Automated External Defibrillator (AED)... b. Within 'Knowledge Evidence' on page 4: The candidate must be able to demonstrate knowledge... This includes knowledge of... • Appropriate use of an AED c. The 'Assessment Conditions' provided at page 6 also include reference to devices including adrenaline auto-injector training device, AED training device, bag-valve mask and placebo bronchodilator and spacer device. 95. On that basis, a person who holds this certificate has been trained in the use and handling of specialised equipment, including cardiac defibrillators. 96. Therefore, the Commission should determine that Mr Fengler was trained in the transport and handling of specialised equipment (such as cardiac defibrillators) on and from 22 October 2014. Further submissions in relation to any training requirements that the Commission determines Mr Fengler did not meet 97. The Notifier concedes that there is no evidence that Mr Fengler undertook specific oxygen administration training prior to December 2016. However, this should be considered in the following context: a. Mr Fengler repeatedly told the respondent that he wanted to become a PTO and asked to undertake whatever training was required in order to advance to the PTO status, including in his annual performance reviews in December 2014, December 2015 and September 2016.37 b. On each occasion, Mr Fengler was told that there was no training available (despite the fact that he could have undertaken the training with the training company Allens Training Pty Ltd, the same provider that he used to gain the other certificates in October 2014 and which was eventually used in December 2016 to advance to the PTO status). The Commissioner noted the use of the same training provider during the cross-examination of Ms Taylor and asked why that provider was not used earlier. The answer from Ms Taylor was that the LHD 'preferred' a certificate Ill course (which was not available). c. Mr Fengler was told by Ms Taylor during his orientation that his traineeship would consist of 12 months on the job training without a need for external training or certification. d. Mr Fengler was considered competent enough to actually contribute to the writing of policies and procedures for the unit, with his manager Amanda Hunter writing: 'I see you as a great role model and representative for our service... Do you want to do some writing in your spare time?? Put together some resource tools for your role, orientation package 'your first week on the job?' etc.' e. When Mr Fengler did eventually undertake the training that the respondent determined was required of him in December 2016 to advance to the PTO status, he required training only in 'HLTAID007 Provide Advanced Cardiopulmonary Resuscitation' which took a single day. f. Mr Fengler could not have properly been considered a Trainee PTO in accordance with the definition provided in the Award because he was not 'undertaking training and workplace mentoring in order to successfully complete the requirements for appointment' to a PTO position. g. The "major and substantial" part of Mr Fengler's employment was the performance of duties identified within the PTO classification definition, that is, the routine and non-emergency transportation of hospital patients using basic life support skills. 98. In these circumstances, it would be unreasonable to deny Mr Fengler's advancement to the PRO classification on and from 22 October 2014, particularly given: a. The Objects of the Industrial Relations Act 1996 include 'to provide a framework for the conduct of industrial relations that is fair and just;' b. An overly strict or literal approach to construction of awards is rarely appropriate. It is justifiable to read an award so as to give effect to its purposes. The purpose of the award definition of the PTO classification, on its face, is to ensure that PTOs are adequately trained for the PTO duties they are directed to undertake. The position of the respondent has been that the Trainee PTOs (when they were such) were adequately trained for the duties they undertook. It does not serve the purposes of this section of the Award to deny Mr Fengler the PTO status and pay because he did not hold a qualification that the respondent says it did not require him to use when he was undertaking the 'routine and non-emergency transportation of patients utilising basic life support skills'. Further, meaning which 'avoid inconvenience or injustice may reasonably be strained for;' and c. Awards are, obviously enough, properly to be seen as beneficial instruments and there is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned. 99. For these reasons, the Commission should determine that Mr Fengler had completed all training requirements required for attainment of the PTO position on and from 22 October 2014.
I accept these submissions of the HSU. To interpret the award definition of PTO as requiring training to an unspecified level in each and every one of the listed clinical elements, in circumstances where, contrary to its obligations under the Award, WNSWLHD provided no training to Mr Fengler until December 2016, and in circumstances where the training that Mr Fengler did undertake in 2014 and 2015 was at his own initiative, not at the direction of his employer, would defeat the manifest purpose of the award definitions of TPTO and PTO. That purpose is that TPTOs be provided by their employer with the training specified in the award definition of PTO in order that they may progress to the PTO classification and not be held back as trainees for several years.
Further, as noted by Ms Hunter at paragraph 15 of her witness statement, the transport of patients on low flow oxygen therapy is not common (see [58] above). To deprive Mr Fengler of payment at the PTO rate between October 2014 and December 2016 on the basis that he had not undertaken specific training in oxygen administration, in circumstances where he was not offered such training by his employer and where the requirement for PTOs to administer oxygen was not common, would be manifestly unfair and contrary to the purpose of the award definition of PTO.
I am satisfied that, as at 22 October 2014, Mr Fengler had undertaken sufficient training to meet the training requirements of the award definition of PTO.

Gaps in the certification of the four employees

WNSWLHD submitted that there were periods of up to three months when certain of the qualifications obtained by the four employees had lapsed and not been renewed.
The award definition of PTO contemplates that the employee will undergo any refresher training required in the areas listed in the definition. However, there is no provision in the Award which entitles an employer to regress a PTO to TPTO in a situation where a particular certificate held by that employee has lapsed and not been renewed. I accept the submission of the HSU to this effect.
Indeed, it would be a bizarre outcome if WNSWLHD were able to defeat the otherwise legitimate claim of the four employees to be classified and paid as PTOs on the basis that there were gaps in their certifications with respect to training which, contrary to its obligations under the Award, was not provided by WNSWLHD but was undertaken at the initiative of the four employees themselves.
I reject the submission that the claims pressed on behalf of the four employees are in any way impacted by any periods of time when any of the qualifications which they had obtained themselves had lapsed or were not current.

Need for established funded position

WNSWLHD submitted: 2. At all material times before December 2016, each of the member employees subject of the proceedings had applied for and were appointed to employment as Trainee Patient Transport Officer. 3. Like all public-sector employment, there must first be an establishment of a funded position before any appointment can take place. A formal offer of employment must be made in writing through Stafflink Recruitment providing the successful applicant with sufficient information about the terms of their employment: 2.12.1 Recruitment and Selection of Staff to the NSW Health Service PD2017_040.
This submission completely misunderstands the legal force and effect of an award of this Commission. Internal administrative arrangements of public sector employers, such as staff establishments and sources of funding, cannot operate to defeat the legal obligation on such employers to comply with the terms of an award. Where, as was the case here, the employer employed persons who obtained the qualifications necessary to be classified as a PTO and who performed the work of a PTO, the obligation to pay the award rate for a PTO cannot be avoided by reliance upon the terms of their initial engagement as a TPTO nor upon matters such as staff establishments or internal funding arrangements.
In the context of the former Industrial Commission's unfair contracts jurisdiction, section 88F of the Industrial Arbitration Act 1940 was described by Sheldon J as "but one of several in the Act designed to protect the arbitration system against those who enter its allocated field unprepared to pay the standard price of admission - the regulation of wages and conditions of employment by award or industrial agreement" (Davies & Anor v General Transport Development Pty Ltd & Ors [1967] 67 AR 371 at 373). In the context of the present matter, the "price of admission" for employing the four employees, each of whom completed, at their own initiative, the training requirements for a PTO and performed the work of a PTO, was to pay them as PTOs regardless of the terms of their initial engagement or the internal arrangements surrounding that engagement.

Willingness to undertake training

WNSWLHD further submitted: 5. Those interested in Trainee Patient Transport Officer positions actually had to apply for an advertised role with a position description. As Mr Millsteed explained, the position description for the Trainee PTO job he applied for set out key accountabilities. 6. That position description explained many key accountabilities of the role, including: 6.1 following instructions by the Area Patient Flow Transport Unit Manager 6.2 required him to participate in co-ordination of activities to maximise service 6.3 participate in the provision of harmonious workplace relations 6.4 Maintain the currency of first aid certificate at own expense 6.5 Awareness and compliance with NSW Health and WNSWLHD and Patient Flow Transport Unit Policy Directives and Standards of Practice 6.6 Holds Certificate Ill Non-Emergency Healthcare within 2 years 7. His position description also specifically required that he demonstrate a willingness to commence the Certificate Ill Non-Emergency Healthcare within 12 months of commencement of employment. That is, there was an expectation that within the first 12 months he would be expressing a willingness to commence Certificate Ill studies, not complete such studies. 8. While it may be possible to argue that this requirement in Mr Millsteed's position description could have lead him to conclude that he must complete the required Certificate Ill within 12 months, such an argument is inconsistent with the requirement, also listed in Mr Millsteed's position description, to hold the Certificate Ill within 2 years. It would also be inconsistent with the experience of the PTOs who had previously completed the training. As Ms Taylor stated, the previous Certificate Ill took 6 months 'to get off the ground' and a further 18 months to complete. 9. In this respect, the HSU claim is unfair to those TPTOs who undertook additional training and education and were successful in such training and education to become eligible for appointment as PTOs. This is consistent with the expectation stated in cl 1(xxxiiii) of the Award that PTOs can implement and apply this training in emergency and non-emergency situations. As Ms Taylor said, it is not just an expectation but residents in the WNSWLHD deserve this.
The answer to this submission is relatively uncomplicated. Firstly, despite what may have been contained in a particular position description for a TPTO job, there is no reference in the award definition for TPTO or for PTO to any requirement to undertake and complete Certificate III level training. Secondly, regardless of the Certificate III level training which was offered to previously employed TPTOs, such training was never, despite their repeated requests, offered or made available to the four employees. Thirdly, the training that each of the four employees did complete, at their own initiative, in 2012, 2013, 2014and 2015, was in excess of the training which WNSWLHD ultimately required them to complete in 2016 in order to be reclassified and paid as PTOs.
There was, at no time, any unwillingness on the part of any of the four employees to undertake training. The evidence led by both parties establishes the contrary to be the case.

An employee who is undertaking training and workplace mentoring

The submission continued: 12. The Award is another layer of the employment, on top of an application for employment and appointment under a contract of employment. 13. The classification of Trainee Patient Transport Officer in the Award is defined at cl 1(xlix) to mean "an employee who is undertaking training and workplace mentoring in order to successfully complete the requirements for appointment to a 'Patient Transport Officer' position." 14. That is, the Award informs the applicant that: 14.1 the trainee position that they are applying for involves both training and workplace mentoring; and 14.2 there is a need to successfully complete requirements during this training and mentoring period; 14.3 there needs to be a Patient Transport Officer position; and 14.4 there needs to be an appointment to such a Patient Transport Position. 15. This is consistent with the explicit wording at cl 1(xxxiiii) of the Award where is defines the position of Patient Transport Officer. It is plainly worded and has no ambiguity. It recognises that a Patient Transport Officer must have: 15.1 "successfully completed the requirements for appointment as a Patient Transport Officer and" 15.2 "who has been appointed as such". [emphasis added] 16. Mr Robinson explained that merely completing training in the specified areas is not sufficient for an employee to become a PTO. Mr Robinson highlighted that beyond completing training, appointment to the position of PTO is required and outlined in detail the formal process to be completed in order to be appointed as a PTO. 17. Indeed, Mr Robinson made it quite clear that the transition from TPTO to PTO is certainly not an automatic pay progression. It is a specific appointment to a new position that required managerial approval. The Award stipulates that successful training, and mandatory refresher training is for patient safety reasons. 18. The Award carefully and explicitly specifies that there is a critical expectation placed on PTOs, especially in the case of an "emergency arising during the course of a non-escorted transportation" where the Award emphasises that "a Patient Transport Officer is expected to apply the procedures and training referred to above". This requirement is unique to PTOs employed under the Award and is not included in the requirements for PTOs in other awards (such as the Operational Ambulance Officers (State) Award). 19. This expectation is both reasonable and aligned with the overarching obligations of Local Health Districts, being to generally promote, protect and maintain health of residents in its area: s 10(a) Health Services Act 1997 (NSW).
The "appointed as such" argument has been considered and rejected at [73]-[78] above.
The description of the Award as "another layer of employment, on top of an application for employment and appointment under a contract of employment" again misstates the importance of the Award in regulating the relationship between WNSWLHD and the four employees. Based on the training completed and the work performed, the Award determines the rights and obligations of the parties regardless of what may have been contained in an application for employment or in a contract of employment. Parties to an employment relationship may not contract out of obligations imposed by an award to the detriment of the employee.
WNSWLHD relies upon the "undertaking training and workplace mentoring" part of the award definition of TPTO but nowhere does it adequately address its failure to provide the four employees, over periods of several years, with the training it claimed they needed to complete in order to be classified as PTOs.
It was further submitted: 21. What the Award specifies in its general list of required training is the minimum. More simply, the Award specifies in general terms the what, but it deliberately, and quite appropriately, does not specify the how or when. 22. In the Respondent's submission, it was properly the domain of the WNSWLHD to ascertain with reference to the local needs of the residents in its area, the geographical distances involved, the limited clinical and training resources available, how to best provide for training to enable TPTOs to be eligible to apply for a PTO position. 23. Again, as Ms Taylor explained, it was always the desire and expectation of WNSWLHD to train TPTOs to a Certificate 111 level as this standard is what LHD patients deserve. Previous PTOs had successfully completed the course (albeit with difficulty). The PTOs involved in the current proceedings were aware of this course and the desire for them to complete it.
Unfortunately, it must be said that this part of the submission of WNSWLHD has a heavy air of unreality about it. Firstly, it is not open to WNSWLHD, or to any other individual LHD, to impose a training requirement upon its TPTOs which is not found in the award and which was ultimately not required of them to be reclassified as PTOs. Secondly, and more importantly, regardless of the "desire and expectation" of WNSWLHD, and regardless of the apparent eagerness of the four employees to undertake any level of training that was made available to them, it was WNSWLHD who failed to comply with its award obligation to provide the training to the TPTOs, which it required them to complete in order to be reclassified as PTOs, until December 2016.

A deal was done

In cross-examination of Mr Fengler, the following was put to him: Q. Is it possible that, and you must know this, you managed to become a patient transport officer because a deal was done between the Union and my client to get you there. You know that, don't you?
The suggestion seemed to be that, in 2016, WNSWLHD did a "deal" with the HSU to disregard what it had hitherto regarded as the minimum level of training required to have been completed by a PTO, namely a Certificate III level course, which, for at least the previous four years, it had been unable to provide for the four employees to undertake. WNSWLHD effectively waved them through upon the completion of what it apparently regards as an inferior level of training which it required them to complete, but on the basis that, according to WNSWLHD, "there would be no extra claims", such as the present claim by the HSU for back pay.
I reject this proposition. The correspondence between WNSWLHD and the HSU in 2016, 2017 and 2018, which was annexed to the affidavits of witnesses for WNSWLHD, discloses that no "deal" was done to reclassify TPTOs to PTOs in 2016 which included, as part of the deal, that the HSU would forgo any claims for back pay for its members in consideration of their reclassification. What is disclosed is that WNSWLHD belatedly acknowledged the legitimacy of the claim for reclassification being pressed by the HSU on behalf of its members. The reclassification was never made contingent on the abandonment by the HSU of any claims for back pay. The following email exchange is typical of the correspondence that preceded the so-called "deal" and discloses the tone of those negotiations: 1 August 2016: Ayshe Lewis, Manager, Industrial Division, HSU to Kerry Leach, Human Resources Manager, WNSWLHD Subject: Trainee Patient Transport Officers Good afternoon Kerrie I am not sure if you are the appropriate person to discuss this with. If not can you please direct me to the correct person? The HSU has had inquiries from members who have been employed as Trainee Patient Transport officers and who claim that they have undertaken the training and have met the requirements for appointment to a Patient Transport Officer. Some of these have successfully complete the requirements for appointment to a Patient Transport Officer position a number of years ago. The union would like to discuss this with the LHD as soon as possible. Regards Ayshe Lewis Ms Leach to Ms Lewis: Hello Ayshe, Zelda (HSU Organiser) has been working with Tiffany Charlton re this matter for a long time. We were very recently able to give Zelda some good news (and we have been looking at a lot of options for this over a significant time) regarding the training for the staff and so I am of the opinion this is getting organised. So it is progressing finally I have cc'd Tiffany into this email but perhaps you may wish to speak to Zelda in the first instance? Regards, Kerry Ms Lewis to Ms Leach: Hi Thanks for this. Zelda is aware that I have taken this up so I don't know if she is aware of the good news. If Tiffany can contact me directly to advise of progress would be greatly appreciated. Cheers Ms Charlton to Ms Lewis: Hi Ayshe, Thanks for the email If you can please advise of the relevant employees, I can then follow through and provide further advice as to the areas that the LHD have identified that they require further training. As we have undertaken an assessment based on the information that the employees have provided. In the event that we have areas of non-agreement, we can then work through these. There is nothing in these email exchanges, or in any subsequent correspondence between the parties, that could be construed as constituting a "deal", part of which involved the four employees forgoing any claim for back pay, something to which the HSU could not, in any event, agree.

Managerial prerogative

WNSWLHD made a lengthy submission about the autonomy of management of an employer to manage its business, citing authorities such Re Cram; Ex parte New South Wales Colliery Proprietors' Association ([1987] 163 CLR 117 at 136-137). Nothing in Cram, nor in any of the other authorities cited, supports the proposition that an employer may arrange its business in a manner that allows it, as occurred here, to employ workers, initially as trainees, who then obtain the qualifications necessary to be appointed to the substantive classification in an award, who perform the work of that classification, but to pay those workers at a rate lower than the award rate for that classification. The notion that managerial prerogative extends to permitting an employer to avoid its award obligations is entirely misconceived.

The work performed by the four employees

WNSWLHD argues that the four employees were, prior to December 2016, not performing the work of PTOs. This argument must be rejected.
The award definition describes the work performed by PTOs in the following terms: The duties of a Patient Transport Officer include the routine and non-emergency transportation of hospital patients utilising basic life support skills. Transportation can include single driver transports (no escort if appropriate), or transportations with an appropriate escort. The decision on whether or not a nurse accompanies a patient is made by the relevant Nurse Unit Manager. ……………………….., In the case of an emergency arising during the course of a non-escorted transportation, the Patient Transport Officer is expected to apply the procedures from the training referred to above, and in the case of an emergency arising during an escorted transportation, to assist or respond to the direction of the clinical escort in the application of these procedures. A Patient Transport Officer is responsible for maintaining the cleanliness of the vehicle, maintaining appropriate stock levels, for carrying out equipment checks, and other associated duties.
There is no doubt the each of the four employees performed work as described above for the duration of the period that each of them was classified and paid as a TPTO and has continued to perform such work since being reclassified and paid as PTOs.
Attempts were made by a number of the witnesses who gave evidence for WNSWLHD to draw a distinction between the work performed by TPTOs and PTOs based on the level of acuity of the patients being transported or on the "capability of a PTO to be able to transport patients receiving oxygen therapy (low flow less than 3 L/min)". In her affidavit, Ms Hunter conceded the following: 13. Prior to the transition of Trainee PTOs to PTOs, I don't recall capability issues restricting the service due to Trainee PTOs versus PTO availability. 14. Generally, each Patient Transport Fleet vehicle would be staffed with two staff e.g. EEN and Trainee PTOs. Trainee PTOs adequately fulfilled the role prior to 2016. 15. Even today, I have observed that transport of patients on low flow oxygen therapy is not common. So the demand for PTOs instead of Trainee PTOs is not high.
The award definition of PTO makes no reference to the level of acuity of the patients being transported or to the requirement of a PTO, as opposed to a TPTO, to administer oxygen therapy. The focus of the definition is the "routine and non-emergency transportation of hospital patients utilising basic life support skills", which is precisely what each of the four employees has been doing from the time when they were first engaged as TPTOs.
Further, there is no evidence before the Commission to the effect that the day to day work performed by the four employees changed in any way upon their reclassification as PTOs.
Each of the four employees obtained, at their own initiative, qualifications which satisfied the training requirements of the award definition of PTO and was, from the time of their engagement as TPTOs, performing the work of a PTO. Mr Millsteed had obtained his qualifications before he commenced employment as a TPTO on 6 January 2014. The other three obtained their qualifications after they had been employed as TPTOs.

Relief

Pursuant to section 175 of the Act, the Commission determines that the following employees were entitled under the Award to be classified and paid as Patient Transport Officers on and from the dates specified:

Rodney Arrow - 21 November 2012.
Robert Fengler - 22 October 2014.
Wayne Millsteed - 6 January 2014.
Owen Roberts - 14 March 2013.

Pursuant to subsection 136(1)(a) of the Act, the Commission recommends that Western New South Wales Local Health District pays to the four employees, and to any other of its employees for whom the same or similar circumstances apply, back pay to reflect their proper classification as Patient Transport Officers for the relevant period.
Pursuant to subsection 136(1)(a) of the Act, the Commission direct the parties to confer in relation to the payments referred to immediately above.
During the proceedings, the HSU sought to agitate the issue of whether the four employees, and any other employees for whom the same or similar circumstances apply, were entitled to undertake any mandatory training, including any training required for progression to the PTO classification, in work time and at the employer's expense. The union relied upon various iterations of a document entitled "Leave Matters for the NSW Health Service", which were promulgated by the Secretary, NSW Health, and distributed throughout the Public Health System.
Given the broader implications of this issue, not just for PTOs but for other classifications of employees, I do not propose to deal with this matter in the context of these proceedings. I direct the HSU to confer with relevant officers of the Ministry of Health on this issue. If no satisfactory resolution is achieved, the parties are at liberty to file a further dispute notification if they, or either of them, wish to seek the Commission's assistance.
These proceeding are stood over generally with liberty to apply to have them relisted at short notice. John Murphy Commissioner

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: 31 January 2019

DECISION

On 13 April 2018, the Health Services Union NSW ("HSU") filed with the Industrial Registrar a Notice of Industrial Dispute pursuant to section 130 of the Industrial Relations Act 1996 ("the Act"). That notice contained the following: 4. The question, dispute or difficulty concerns the following industrial matters: i. The dispute concerns the correct classification of employees employed as Trainee Patient Transport Officers (Trainee PTOs), and subsequently as Patient Transport Officers (PTOs), within Western NSW Local Health District (the LHD). ii. A group of HSU members were engaged by the LHD at different times from 2012 onwards and were said to be classified as Trainee PTOs. This continued until some in the group were reclassified as PTOs in December 2016 (with others reclassified later). iii. The Health Employees' (State) Award (the Award) provides that a Trainee PTO means an employee who is undertaking training and workplace mentoring in order to successfully complete the requirements for appointment to a PTO position (Clause 1(xlix)). iv. The Award provides that PTO means an employee who has successfully completed the requirements for appointment as a PTO and who has been appointed as such. The Award goes on to list things that a PTO must be trained in (Clause 1(xxxiii). v. The list provided at clause 1(xxxiii) of the Award is obsolete and has been for the period that this group has been employed. The Award, like a statute, is 'always speaking' (Aubrey v The Queen [2017] HCA 18 at [29]-[30]). vi. On that basis, the HSU submits: a. That an employee can only be classified as a Trainee PTO if they are engaged in training and mentoring for a limited period and for the purpose of advancement to the PTO classification; and b. That an employee meets the training requirements in the PTO classification if they have completed training in advanced first aid and resuscitation. vii. The HSU further submits that the group of HSU members: a. Were not engaged in training and mentoring for the purpose of advancement; b. Had completed training in advanced first aid and resuscitation at the commencement on (of) their employment; and c. Were entitled to be classified and paid as PTOs from the time of their commencement with the LHD.
Central to the dispute is the proper interpretation of the definitions of the classifications of "Trainee Patient Transport Officer" ("TPTO") and "Patient Transport Officer" ("PTO") as set out in Clause 1 - Definitions, of the Health Employees' (State) Award ("the Award"). Those definitions are as follows: (xlix) "Trainee Patient Transport Officer" means an employee who is undertaking training and workplace mentoring in order to successfully complete the requirements for appointment to a 'Patient Transport Officer' position. (xxxiii) "Patient Transport Officer" means an employee who has successfully completed the requirements for appointment as a Patient Transport Officer and who has been appointed as such. A Patient Transport Officer is required to have completed training in, and to undergo any mandatory periodic refresher training required, in the following: Advanced Cardio Pulmonary Resuscitation (CPR), Gueddels Airways, Basic life support skills, Advanced first-aid, Patient handling and lifting techniques, Driver training, Oxygen administration, and Transport and handling of specialised equipment (e.g. cardiac defibrillators). The duties of a Patient Transport Officer include the routine and non-emergency transportation of hospital patients utilising basic life support skills. Transportation can include single driver transports (no escort if appropriate), or transportations with an appropriate escort. The decision on whether or not a nurse accompanies a patient is made by the relevant Nurse Unit Manager. The employer and Union shall consult, monitor and review the operation of this classification. In the case of an emergency arising during the course of a non-escorted transportation, the Patient Transport Officer is expected to apply the procedures from the training referred to above, and in the case of an emergency arising during an escorted transportation, to assist or respond to the direction of the clinical escort in the application of these procedures. A Patient Transport Officer is responsible for maintaining the cleanliness of the vehicle, maintaining appropriate stock levels, for carrying out equipment checks, and other associated duties.
It will be readily apparent that these award definitions suffer from a number of drafting difficulties. By way of example, the definition of "Trainee Patient Transport Officer" refers to "training and workplace mentoring" that the TPTO is undertaking, but gives no indication of the nature, level and duration of the required training and workplace mentoring. Similarly, the definition of "Patient Transport Officer" identifies a number of clinical areas in which the PTO is required to have completed training, but, again, there is no identification of the nature, level and duration of the required training.
It is these shortcomings in these two award definitions that lie at the centre of the current dispute between the Health Services Union NSW ("HSU") and the Western New South Wales Local Health District ("WNSWLHD").
Following the notification of the dispute by the HSU, I convened a number of compulsory conferences in an effort to settle the dispute in conciliation. That effort proved to be unsuccessful and, on 5 July 2018, I issued a Certificate of Attempted Conciliation pursuant to section 135 of the Act. Neither party sought to exercise its rights under section 173 of the Act and, as a consequence, I programmed the matter for hearing before me. After a number of changes to the timetable, the matter ultimately occupied five hearing days, two in Orange and three in Sydney.

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