Health Services Union v Ambulance Service of New South Wales

Proposed variation to Managers Award 6Matter No IRC 971 of 2010 is an application by the Department of Health to vary the Operational Ambulance Managers (State) Award. It is proposed to give the employees under that Award who work in Control Centres an increase of approximately 2.6 per cent to restore parity with their "on road" colleagues. The classification descriptors are identical for these two groups and often Managers move between Control Centre and "on road" positions.

Applications by HSU East 7Matter No IRC 425 of 2010 is an application by HSU East to vary the Operational Ambulance Managers (State) Award and IRC 426 of 2010 is an application by the same organisation to vary the Operational Ambulance Officers (State) Award. The two applications were designed to take the initiative in respect of restructuring of Control Centres and to establish new classifications and rates of pay. The Department of Health's applications in Matter Nos IRC 970 and 971 of 2010 may be seen as responses to the HSU East's applications.

Notification of dispute by USU 8Matter No IRC 1147 of 2010 was a notification under s 130 of the Industrial Relations Act 1996 by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("USU") of an industrial dispute with the Department of Health regarding the restructuring of the Ambulance Service's Control Centres as represented by the Department's application in Matter No IRC 970 of 2010. The USU has a significant membership amongst call takers (referred to as "Communications Assistants" in the Operational Ambulance Officers (State) Award) in the Centres.

Relevant background 9The issues raised by the four applications and the dispute notification have some background in earlier proceedings before the Commission, which is important to note. That background was set out in an affidavit by Ms Carolyn Synnott, Acting Associate Director of Workplace Relations and Management Branch, NSW Department of Health. The affidavit was prepared for the purpose of arbitration proceedings to which we shall shortly refer. 10In respect of the Operational Ambulance Officers (State) Award and the Operational Ambulance Managers (State) Award, the relevant background facts regarding salary movements are summarised as follows: (1)Subsequent to 1 July 1996, general increases in salaries have been delivered under agreements or Memoranda of Understanding (MOUs) between the HSU East and the Department. (2)The salary increases listed in (i) - (iv) below were provided for in an MOU between the HSU and the Health Administration Corporation for the period 1 July 2004 - 30 June 2008. The MOU provided a total 16% salary increase comprised of four annual 4% increases. Clause 1 of the MOU specifies that 1% per annum covers work value change and productivity gains for the period up to 1 July 2004. (i) 4% increase from 1 July 2004 (ii) 4% increase from 1 July 2005 (iii) 4% increase from 1 July 2006 (iv) 4% increase from 1 July 2007 (v) 2.5% increase from 1 July 2008 (vi) 2.5% increase from 1 July 2009 and (vii) 2.5% increase from 1 July 2010. (3)the MOU allowed a number of Award claims to be pursued by the HSU during the life of the MOU; (4)arising out of conciliation of a dispute in IRC Matter Number 4623 of 2003, a Heads of Agreement was developed that provided an 8% increase in salaries to employees of Operations Centres under the Operational Ambulance Officers (State) Award effective 15 March 2003. The basis of this payment was in part recognition of changes to work and technology and in part a commitment by the parties to collaboratively work towards further workplace reform. Payment was initially made to employees employed in Operations Centres who were employed under the terms of the Operational Ambulance Officers (State) Award; (5)in a dispute before Deputy President Grayson in IRC Matter Number 2509 of 2006, the benefits of the Heads of Agreement were extended to employees employed in Operations Centres who were employed under the terms of the Operational Ambulance Managers (State) Award: Health Services Union v Ambulance Service of New South Wales (No.2) [2007] NSWIRComm 165; (6)in 2007, following a dispute notification by the HSU, the grading of some positions under this Award were extensively reviewed before Deputy President Grayson ( Health Services Union v Ambulance Service of New South Wales (No.2) [2007] NSWIRComm 165). It was found that the positions were appropriately graded and the strict test of the work value principle relied upon by the HSU, was not met; (7)in 2008, the Full Bench heard a special case for Ambulance employees. In Operational Ambulance Officers (State) Award and Others [2008] NSWIRComm156, the Full Bench placed the Control Centre component in Leave Reserved and also provided an interim 4 per cent pay increase to employees in Control Centres. 11HSU East opposed the application by the Department insofar as it made no provision for any increases in rates of pay for the classifications of Ambulance Operations Centre Officer - Paramedic, Ambulance Operations Centre Officer - Paramedic Specialist, Duty Operations Control Centre Officer (DOCCO) or Senior Operations Control Centre Officer (SOCCO). HSU East contended that the rates for these classifications, and the Operations Centre Managers, should be set at 8 per cent above the rates for their "on road" equivalents, as was the position following the execution of the Heads of Agreement in March 2003, on the basis that the technological considerations that underpinned that increase were still very much (and more so) a feature of the work of these classifications. This could be achieved, it was submitted, by flowing on the full work value increases, which were determined by the Full Bench in the 2008 proceedings, with the same date of effect. It was submitted this was justified on the basis that, up until the present time, Operations Centre staff have been required to maintain their "on road" certification and have, as a result, been required to deal with all the changes in Protocols, Pharmacologies and Procedures that justified those work value increases. 12The HSU East further submitted the rates in the proposed award for Control Centre Officers, DOCCO's and SOCCO's were inadequate. For example, the rate proposed for a DOCCO was $13,308 p.a. (20.03 per cent) less than the current rate for a DOCCO. The rate proposed for a SOCCO was $10,224 p.a. (14.25 per cent) less than the current rate for a SOCCO. HSU East sought that the rates proposed by the Department for these classifications be increased by 15 per cent. 13In relation to the Ambulance Service of NSW Administrative and Clerical Employees (State) Award, the background regarding salary movements may be relevantly summarised as follows: (1) on 13 September 2004, Schmidt J gave a decision on a special case application on behalf of Communication Assistants employed in the Ambulance Service in Re: Ambulance Service of NSW Clerical and Administrative Employees (State) Award [2004] NSWIRComm 265. Salary increases of 9.5 per cent were awarded. Her Honour said: [54] Having considered all of these matters, I have concluded that a wage increase of 9.5% is warranted. This has regard to the nature of the changed work, the evidence of the amount of such work and the frequency with which call takers might be called upon to perform it, as well as the evidence of the existing rates and how they have come about, in the context of the other work performed by dispatchers and the rates which that work attracts, matters which the Work Value principle requires to be taken into account. (2) the 9.5% increase brought the Call Takers into close alignment with the existing rates for the HSU classification of Non Paramedic Dispatcher; (3) the current MOU with the USU has a leave reserved provision for the parties to pursue a single award for Control Centre staff. Clause 6. Leave Reserved 6.1 Leave reserved is granted to the parties to make application for a single Award for all Operation Centre staff, including the opportunity to assess the impact of ProQA upgrade. (4) the current MOU with the USU provides for three increases of 3.9% per annum. The HSU MOUs over the same period have provided increases of 2.5% per annum, as the agreements reached did not contain any salary related savings. However, there is scope in the current HSU MOU to reach agreement on further increases during its term. 14The USU submitted the rates in the proposed Award for Control Centre Officers were inadequate and sought an increase of 15 per cent in lieu of the proposed increases. It was also submitted the rates proposed for a DOCCO and SOCCO were inadequate.

Department's contentions 15In relation to the HSU's position, the Department contended in relation to the main issues:

• that the work value increases paid to positions with paramedic qualifications are sufficient to cover the changes in work value and no further increases are warranted;
• that the Paramedic qualification is no longer the basic qualification required in Control Centres. The Medical Priority Dispatch System (MPDS) and its computerised version of this ProQA mean that the Service no longer requires paramedic qualifications as the basic qualification in Control Centres;
• that since its introduction in 2004, no paramedic working in a Control Centre has been required to maintain a Certificate to Practice (CTP). Although Ambulance Operations Centre Officers who are paramedics, were once required to undertake and successfully complete currency training, it has become practice that this training is not always maintained. In October 2010, 33% of employees in paramedic Control Centre positions did not hold a CTP;
• that the current rates of pay for paramedic qualified employees shall be "grandparented" and that from the making of the new Control Centre Award, all persons including paramedics, would receive increases in line with that Award;
• that paramedic qualified employees will be provided with one more opportunity to undertake their three yearly recertification, after which time if they remain in the Control Centre, and wish to recertify, they must do so in their own time, but at no cost to the individual
• that the rates for the DOCCO and SOCCO are no longer built upon the requirement to hold and maintain paramedic qualifications and skills The paramedic qualified DOCCO and SOCCO positions were linked to the pay rates for the Station Manager and District Manager in the Operational Ambulance Officers (State) Award. This linkage or relativity is no longer relevant.
• that the Department's proposal has had regard to changes in work value
• that a number of conditions of employment in the Operational Ambulance Officers (State) Award are not appropriate for inclusion in the proposed new Award. 16In relation to the USU's position, the Department's main contentions were as follows:
• that the matter of coverage be resolved between all parties, including the Health Services Union East (HSU). If this cannot be achieved, then it should be resolved in the Industrial Relations Commission;
• that proposed rates of pay are fair and equitable and properly reflect the current work value for classifications;
• that the proposed rates have regard for any changes in work/technology, the multiskilled classification and the formalised training requirements;
• that the Department's proposal provides for potential career progression which is not currently available;
• that the Department has proposed a classification structure based upon the work value and qualification requirements of the new structure. The rates for the DOCCO and SOCCO are no longer built upon the requirement to hold and maintain paramedic qualifications and skills. The paramedic qualified DOCCO and SOCCO positions were linked to the pay rates for the Station Manager and District Manager in the Operational Ambulance Officers (State) Award. This linkage or relativity is no longer relevant;
• that the Department's proposed Award is a single award for the new multiskilled classifications. The current Call Takers who chose not to participate in the multiskilled classification and the new Award conditions will not have their current employment arrangements disturbed. Indeed, if any current Call Takers opted to take the training to progress under the new Award and then, during that training opted to return to their previous classification and tasks, they could do so and thereafter be paid under the Ambulance Service of NSW Clerical and Administrative Employees (State) Award. This would also apply to employees who were unable to complete the training;
• that the Department's proposal is based upon a multiskilled classification structure and Call Takers can access this through training and moving into the new Control Centre Officer classification. The new career path to DOCCO and SOCCO positions is also then available to these employees;
• that the Department is prepared to maintain the current temporary arrangement at the Sydney Operations Centre whereby per shift, one Call Taker is paid as Operations Centre Senior Supervisor. This arrangement will continue until sufficient of the new multiskilled DOCCOs are available to permanently fill the role of supervising the taking of calls.

Conciliation proceedings 17It may be seen there were substantial differences between, on the one hand, the Department and, on the other, the two unions representing employees in the Control Centres. These differences were not confined to the classification structure and salary levels, but extended to a range of issues relating to employment conditions and transitional arrangements. 18All of the matters were allocated to a Full Bench, which directed the parties into conciliation under the chairmanship of Grayson DP. Despite a concentrated effort by the Deputy President, the conciliation was unsuccessful. Accordingly, the matters were scheduled for an arbitration hearing before the Full Bench commencing on 15 March 2011.

Further proceedings 19The USU helpfully provided a document setting out its contentions and identifying the principal areas of disagreement with the Department's proposals. HSU East was directed to do likewise. Having regard to these documents and exchanges that took place between counsel for the parties and the Full Bench on 15 March 2011, the Full Bench advised the parties on 17 March 2011 that it intended to refer the matters into further conciliation proceedings. Those proceedings took place before the Full Bench on 17 March. At the conclusion of those proceedings the Full Bench indicated its intention to make a recommendation aimed at resolving all issues, but that before doing so it required the Department to provide a document in the same style as that provided by the USU and HSU East, setting out its contentions. 20It became apparent to the Full Bench that despite significant differences between the parties and the robust defence of the parties' cases advanced by counsel appearing in the proceedings, there were also areas where there was less strident dispute, including as to the concept of a single award for Control Centres, that the Operational Ambulance Officers (State) Award constituted a suitable foundation for a new single award and that there was tacit acknowledgement of a need to address the work requirements of the new technology impacting on Control Centres with a modern and appropriately framed industrial instrument. The absence of fundamental disagreement to the Ambulance Service's desired objective to achieve a world class operation for dealing with emergency medical calls provided the entre for the Full Bench to engage in further conciliation. To this may be added the fact that these proceedings, in many respects, represented a continuum of earlier proceedings before the Commission, including the 'BlueScope' arbitration proceedings referred to in Ms Synnott's evidence. 21Moreover, it is apparent that the Ambulance Service has been working assiduously to prepare for the introduction of the new arrangements and is anxious to be able to press ahead to implement the changes without delay. We consider that is a worthwhile objective. Any arbitration would delay implementation by a number of months whereas a conciliated outcome, which has taken into account all of the evidence proposed to be relied upon by the parties as well as the competing contentions, will allow implementation to proceed immediately. 22Having received the Department's contentions document, the Full Bench conferred with counsel for the three parties on Monday 21 March for the purpose of clarifying a number of matters.

Recommendation 23Consequently, the Full Bench formulated a Recommendation pursuant to s 134(2) of the Industrial Relations Act , the terms of which are attached. In formulating the Recommendation the Full Bench has had particular regard to the Ambulance Service's desired objective, the history of wage relationships, the earlier 'BlueScope' proceedings, work value and the need to avoid, as much as reasonably possible, any unfairness to employees in the transition to a single new Award. This has meant striking a proper balance having regard to the Commission's obligations under the Industrial Relations Act and the Wage Fixing Principles. 24The parties are to consider the Recommendation and are directed to advise the Full Bench of their acceptance or rejection of the Recommendation at 9.30 am on Thursday 24 March 2011.

Attachment 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: 24 March 2011