Health Services Union v Ambulance Service of New South Wales

Health Services Union v Ambulance Service of New South Wales - [2008] NSWIRComm 72 - NSWIRComm 2008 case summary — Zoe

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1 On 13 September 2006 the Health Services Union ('HSU') notified the Commission of the existence of an industrial dispute under s 130 of the Industrial Relations Act 1996 whereby it was alleged that the Ambulance Service of New South Wales ('ASNSW') had failed to ensure the health, safety and welfare of its employees employed at the Sydney Ambulance Centre ('SAC') "in relation to their access to and egress from the Centre, which is located in Redfern". The notification stated that the Redfern site operated as the Sydney Ambulance Operations Centre and as an Ambulance Station 24 hours per day, 365 days a year. It was further alleged that: Ambulance Officers and Operations Centre Officers have been subject to assault, and their vehicles have been interfered with as there is no secure area for Officer's vehicles. The Service has conducted a risk assessment that has identified risks to Officers attending and departing from their rostered shifts. 2 The Commission conducted a number of conciliation conferences in an endeavour to resolve the dispute on 14 and 20 September 2006 and 4 October 2006. Some progress was made towards a resolution. Elements of a proposed resolution included: steps taken by ASNSW to make arrangements with the Australian Technology Park ('ATP') (in which SAC was located) to make 50 dedicated parking spaces available to employees, at the employees' cost (the cost per employee would depend on the number of employees using the parking spaces); discussions with local Police about increased patrols in the area; review of a risk assessment undertaken 12 months' previously; and the taking of appropriate steps to improve security for employees. The Commission was requested by the parties to stand the matter over to await advice from the parties as to whether the Commission's assistance was required further. 3 Nothing was heard from the parties until June 2007 when the HSU requested the matter be relisted. On 6 June 2007, Mr R Morgan for the HSU advised the Commission that the dispute remained unresolved as employees were not prepared to agree to the parking arrangement proposed by ASNSW. Moreover, the Commission was advised that the dispute had become further complicated by the relocation of the Aeromedical and Medical Retrieval Services Unit ('MRU') of ASNSW from St George Hospital to the SAC site at Redfern. The members of the MRU had enjoyed an arrangement at St George Hospital whereby they had access to secure parking at the rate of $2.00 per week. The Commission was advised that the members of the MRU were refusing to relocate to SAC unless they were provided with the same parking arrangement that applied at St George. 4 On 7 June 2007, the Commission issued the following Recommendation pursuant to s 134(2) of the Act: 1 That the Health Services Union ('HSU') and the Ambulance Service of New South Wales ('the Service') shall meet for the purpose of resolving any outstanding differences between the parties in respect of the Service's proposal regarding parking arrangements for employees engaged at the Sydney Ambulance Centre at Redfern. The proposal is that contained in the facsimile message from Mr John Bailey, Manager Industrial Relations, to Mr Bob Morgan of the HSU dated 19 September 2006.

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12 Notwithstanding the absence in December 2007 of any objection by ASNSW to the matter proceeding to arbitration, at the commencement of proceedings Mr M Sullivan, solicitor for ASNSW, contended there were three impediments to the Commission, as constituted, making an award or order in arbitration proceedings. The first was that the HSU's claims constituted a breach of its No Extra Claims commitment as contained in the Memorandum of Understanding between the Health Administration Corporation and the HSU for the period 1 July 2004 to 30 June 2008. The second impediment was that the HSU's claims were subject to the operation of the Commission's Wage Fixing Principles (State Wage Case 2007 (2007) 163 IR 253) and that pursuant to the Special Case Principle the claims were required to be processed as a special case, thereby requiring the claims to be referred to the President for consideration as to whether they should be allocated to a Full Bench. The third impediment was that the claims did not constitute an industrial matter. 13 I agree with the contention that the HSU's claim in respect of the SAC employees constitutes a new claim and is, therefore, precluded by cl 5 of the Memorandum of Understanding. That provision is relevantly in the following terms: (a) The parties agree that the wage increases and enhancement to leave conditions set out in clauses 3 and 4 above recognise and cover all work value and productivity gains for the period up to 1 July 2004, and extinguish all work value, special case or other claims prior to that date for NSW Health employees covered by the Union. (b) The parties agree that during the term of this Memorandum of Understanding, there will be no extra wage claims, claims for improved conditions of employment or demands made in respect of the employees covered by relevant New South Wales awards with Health Services Union coverage, and further that no proceedings, claims or demands concerning wages or conditions of employment in respect of those employees will be instituted before the Industrial Relations Commission of New South Wales or any other arbitral tribunal. 14 Mr Sullivan, however, made the concession that any determination that might be made in the HSU's favour in respect of SAC employees could apply from a date after the expiration of the Memorandum of Understanding. In respect of MRU employees it does not seem to me they are precluded by the No Extra Claims commitment from seeking to maintain a benefit that would have continued to apply to them but for the unilateral decision of ASNSW to transfer their place of employment from St George Hospital to Redfern and to remove the parking subsidy they enjoyed at St George. It seems a somewhat odd position for ASNSW to contend, on the one hand, that the HSU is precluded by its no extra claims commitment from making the claim in respect of one group of employees - SAC staff - and, on the other hand, maintain a right to unilaterally withdraw a benefit from another group of employees - MRU staff - which they have enjoyed for the past nine years. 15 As to the second impediment, I adjourned the proceedings and consulted with the President, Wright J. It was determined that I should advise the parties that if after a proper examination of the file in the proceedings the President considered it appropriate to refer the matter to a Full Bench to be dealt with as special case, it would be his intention that I would sit as a member of the Full Bench. In those circumstances, the proceedings could continue before me for the purpose of taking the evidence and submissions of the parties on behalf of the Full Bench. If the President decided the matter should otherwise remain with me then on the basis of the evidence and submissions received I would be in a position to make a determination as a member of the Commission sitting alone. The parties accepted this was an appropriate way to proceed. 16 Subsequently, the President decided that the matter should be left with me. In making that determination his Honour stated: Having considered the reference to the President of the Commission by the Honourable Justice Boland in theses matters and his Honour's memorandum of 14 February 2008, I determine that these proceedings, including any Special Case aspect of them, are to be dealt with by the Honourable Justice Boland. 17 The third impediment concerns whether the HSU's claims constitute an industrial matter. At the heart of the HSU's claims is a concern about the health and safety of its members employed at the SAC. The claims for secure parking and the provision of escorts to public transport locations are an attempt to eliminate or alleviate the risk of harm to those employees where they are coming to and going from their place of work in an area notorious for crime (see Bureau of Crime Statistics & Research, Local Government Area Crime Reports 2006, which indicates that the highest concentration of robbery incidents in the Sydney Local Government Area was in Kings Cross and Surry Hills/Redfern and the offence of malicious damage to property had a high concentration in Redfern). 18 The term "industrial matters" is defined in s 6 of the Act: (1) General definition

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Examples of industrial matters are as follows: (a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees), (b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry, (c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done), (d) part-time or casual employment (including part-time work agreements), (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry, (f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies, (g) procedures for the resolution of industrial disputes, (h) the established customs in any industry, (i) the authorised remittance by employers of membership fees of industrial organisations of employees, (j) the surveillance of employees in the workplace, (k) the mode, terms and conditions under which work is given out, whether directly or indirectly, to be performed by outworkers in the clothing trades. 19 The phrase "industrial matters" encompasses occupational health and safety matters: see Re Operational Ambulance Officers (State) Award (2001) 113 IR 384 at [184]; Re Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2) (2006) 158 IR 17 at [142]-[146]. As I understood Mr Sullivan's submission, however, it was that an employer's responsibility towards employees for health and safety did not extend beyond the employer's premises and, therefore, the dispute did not involve an industrial matter within the meaning of the Act. There was not much elaboration of this contention. 20 It has been said about the expression "relating to" that, "[t]here is no expression more general or far-reaching": Commissioners of Inland Revenue v Maple & Co (Paris) Limited [1908] AC 22 at 26 per Lord Macnaghten. However, as Fitzgerald JA observed in Oceanic Life Ltd and Another v Chief Commissioner of Stamp Duties (1999) 168 ALR 211 at 225: Overall, the position judicially adopted has been that the operation of the phrase "relating to" is determined by the statutory context and purpose: Butler v Johnston (1984) 55 ALR 265 at 268; Hatfield v Health Insurance Commission (1987) 77 ALR 103 at 106-7. 21 In Joye v Beach Petroleum NL and Another (1996) 137 ALR 506 at 514 Beaumont and Lehane JJ observed that: [O]rdinarily, "relates to" is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice… 22 The context in which the phrase is used is, in broad terms, the Industrial Relations Act, which is a piece of beneficial legislation to be interpreted liberally. The more immediate context is s 6 of that Act where industrial matters is defined as "matters or things affecting or relating to work done or to be done in any industry or the privileges, rights, duties or obligations of employers or employees in any industry." It has been observed that this definition would seem to extend to "any matter which arises out of the relationship of employer or employee, provided that it is not inconsistent with the provisions of the Act: Re Bank Officers (State) Board [1921] AR (NSW) 252": C P Mills "New South Wales Industrial Laws" (4th ed, 1977, Butterworths) at 88. 23 There is nothing to suggest that the term "relating to" in s 6 of the Act was intended to have other than a wide operation and that even though a matter or thing might have only an indirect (but relevant) connection with work done or to be done, that, in my view, would be a sufficient relationship. 24 A claim based on health and safety concerns that sought a greater level of security to be provided by an employer to employees as they arrived at or departed from their place of work, in the form of secure parking and safe access to that parking, would seem to have a sufficient relationship with work done or to be done in any industry to bring it within the purview of an industrial matter. It is certainly a matter that arises out of the relationship between employer and employee. 25 Alternatively, the claim seeks the conferring of a "right" on an employee and the imposition of a corresponding "duty" on an employer in an industry and would fall within the second limb of the definition of industrial matter. 26 In any event, I note that ASNSW accepts that it does have a responsibility for the health and safety of its employees beyond the immediate workplace. For example, the Service will provide an escort for an employee to their vehicle or to a public transport hub after nightfall if it is requested. Consideration of MRU claim

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27 The evidence was that in 1999 the MRU moved from Mascot Airport to St George Hospital. Negotiations between management and staff produced an agreement whereby officers achieved secure parking at a weekly cost to the officer of $2.00 per week. This arrangement was to apply for a period of six months after which the cost of parking "would be consistent with the Sydney Hospital Carpark rate". However, there was never any change to the $2.00 rate. In addition, officers were reimbursed for any additional distance travelled from their home to St George. 28 In about April 2006, MRU staff became aware of the prospect of a move from St George to the SAC. This was confirmed to all staff on 18 April 2007. As earlier mentioned, the issue of car parking came before the Commission and an attempt was made to resolve the matter through the conciliation process, albeit unsuccessfully. 29 The position now is that the MRU staff have relocated to SAC but their claim remains that the arrangement they had at St George regarding car parking should continue to apply at SAC. 30 The matters in dispute raise issues relating to the terms of individual employee's contracts of employment, but these were not addressed in any substantive way in the proceedings. The parties appeared to be content to have the issues dealt with industrially, by the making of an award or order if that was warranted based on considerations of fairness, both to the employer and to employees. 31 For reasons of operational and administrative efficiency, the ASNSW decided that it was appropriate to move the MRU to SAC. The reality was that MRU staff either moved to the new location or resigned from their employment. The MRU staff do, however, have a legitimate grievance about the fact that they will either lose access to secure parking or will have to pay significantly more for that privilege at SAC. On the other hand, subject to what I say shortly, it does not seem to me that a public instrumentality should be required to bear the whole, or even the major, cost of parking for its employees who choose to drive to work. 32 Having made that observation, however, the location of the SAC at Redfern was hardly the ideal site from a parking perspective and it seems to me there was a lack of foresight and planning by the Service in that respect in moving from Quay Street in the City to Redfern in 1999. The cost to employees of obtaining secure parking in the area is quite expensive. The monthly rate at the ATP car parking facility is $150. Then there is the problem of personal safety and damage to vehicles when the employee is forced to park in the street, especially at night. Admittedly, those problems have worsened over the past nine years because of increased criminal activity and tighter street parking restrictions imposed by the local Council. But I do consider the Service should be required to take some responsibility for ameliorating the difficulties faced by employees in relation to parking at Redfern. 33 In relation to the MRU staff, in the long term, maintenance of the St George parking arrangement is not sustainable. The rate of $2.00 per week is so low it may be regarded as tokenistic. Maintaining the rate would create a significant inequity between MRU staff and SAC staff, it would constitute an unfair burden on a public employer and would be, and would be seen to be, ahead of what the general body of public sector employees receive by way of an entitlement. 34 Ultimately, I consider that the parking arrangements for MRU staff will need to be the same as for SAC staff. Otherwise, the difference in treatment will be a continuing source of discontent. I, therefore, propose to order that the new parking arrangements for MRU staff will be phased in over an appropriate period until such time as they are the same as those for SAC staff. I will return to the phasing in arrangements later in this decision after consideration of the SAC's staff claim. Consideration of SAC claim

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35 The SAC staff are seeking safe access to secure parking at a cost to employees of no more than $9.50 per week. In addition, the claim seeks the provision of an escort to and from public transport locations for those employees who commute by public transport. 36 I have already mentioned some of the dangers staff face in getting to and from the SAC workplace. The evidence included incidents of cars being broken into, car windows being smashed, "drug busts" occurring in the street and the general concern of staff for their personal safety, especially at night. In October 2005, a security risk assessment was conducted of the SAC by Mr Rod Allan, a risk management/OHS Educator with the Service. Mr Allan concluded, amongst other things, that there was a "severe" risk to staff of being assaulted on afternoon and night shifts in walking from where their cars were parked to the SAC site; there was a "high" risk of damage to or theft from employees' motor vehicles that were parked in the street. The Service responded to this assessment by putting in place a number of protective measures including a request for more frequent police patrols and the offer of an escort to employees who requested it, but the complaint from staff was that an escort was not always available, and that, in any event, escort duty was not part of an ambulance officer's function. 37 The Service, to its credit, went further by proposing the parking arrangement earlier described, but it would appear that the fundamental objection to ASNSW's proposal was that the entire cost would fall on employees and could be up to $76.15 per fortnight if there were 50 or fewer subscribers. The proposal was not taken up by employees. 38 There is only one secure car parking facility within a reasonable distance of the SAC and ATP operates that facility. The annual cost of 50 parking spaces is $100,000. Thus if employees were to carry the whole cost of parking and all 160 employees subscribed, the cost per employee per week would be approximately $12.00. If 100 employees subscribed the weekly cost would be about $20.00 and if only 50 subscribed the cost would be about $40.00. I have not been advised how many employees would use the car parking if it were available at a reasonable cost. 39 In my opinion, given the particular circumstances, especially the "severe" risk to staff of being assaulted when walking to and from their vehicles parked in the street, it is appropriate that in order to provide some measure of protection to employees, the ASNSW subsidise the cost of parking on the following basis: · ASNSW will provide subsidised parking where there is a minimum of 25 employees indicating their willingness to subscribe to the subsidised arrangement. · The maximum payment any employee will be required to pay for the car parking that has been arranged by ASNSW is $25.00 per week. · Where 25 - 50 employees subscribe, the payment shall be $25.00 per week. · Where more than 50 employees subscribe, the cost per employee will reduce proportionately, so that the cost per employee for 100 subscribers would be $12.50 per week. · The foregoing arrangements shall not take effect before the expiration of the HSU's no extra claims commitment, namely, 30 June 2008.

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Judgment (31 paragraphs)

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