HSUeast v Ambulance Service of New South Wales

Section 154 of the Industrial Relations Act 1996 9Section 154 of the Act relied upon by the applicant to support the relief sought, provides: 154 Declaratory jurisdiction (1)The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2)Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought.

Principles for declaratory relief 10In Health Services Union v Director-General NSW Department of Health [2010] NSWIRComm 145, in referring to the principles for declaratory relief, I observed at [69] - [70] as follows: [69]Hungerford J in Ford v SAS Trustee Corporation and Another (2000) 98 IR 444 at [9] set out the principles for granting declaratory relief under s 154 as follows: [9] Given the general power of the Court to make a binding declaration of right under s 154 of the Industrial Relations Act, subject to it being in relation to a matter in which there is jurisdiction and as to which I will return, the present approach adopted in terms of principle to the grant of a declaration was stated in the following way by Gibbs J, as he then was, in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438: It is neither possible nor desirable to fetter the broad discretion by s 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at p 448, should in general be satisfied before the discretion is exercised in favour of making a declaration: "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought." Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v Egbuna [1964] 1 WLR 219 at p 225: "After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration." [70]I will approach the determination of this matter in accordance with these principles. Incidentally, I note that there are a number of authorities of this Court which make plain the scope for the availability of relief pursuant to s 154 and generally speaking adopt a similar approach to Hungerford J: Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at 126 - 127; State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 at [20]; "A" v Commission for Children and Young People & Anor (2001) 107 IR 211 at 213; Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at 369; T v The Commission for Children and Young People. Application by T for declaratory relief under s 154 of the Industrial Relations Act 1996 [2008] NSWIRComm 21 at [13] - [15].

Relevant award provisions 11The Award provisions relevant to the present application are cl 14 Travelling Time and Expenses; cl 16 Relieving Other Members of Staff; cl 23(d) Employees on Call, and cl 26 Time Off in Lieu of Overtime. 12These clauses are in the following terms: 14. Travelling Time and Expenses (a)Except where subclause (c) of clause 16, Relieving Other Members of Staff, an employee who is directed to report for duty at a station other than that to which he or she is appointed shall travel to and from such station in the Service's time and the employee's fares and incidental expenses shall be paid by the Service, unless otherwise agreed between the Service and the employee. If such travel is undertaken outside rostered hours, the employee shall be reimbursed at ordinary rates for the time spent travelling in excess of the normal time taken to travel between his or her home and the station to which he or she is appointed. (b)If an employee is rostered to a shift requiring him or her to work at more than one station in a working week, the employee's fares in excess of the fares to the employee's usual station shall be paid in full. (c)Where an employee, with the prior approval of the Service, travels by the employee's own motor vehicle, the employee shall be paid the casual journey rate as prescribed by the Crown Employees (Public Sector Conditions of Employment) Award, as amended from time to time, for all kilometres travelled in excess of the kilometres that the employee would normally travel between the employee's usual place of residence and the ambulance station designated as his or her base station and return to such residence. (d)Travel, either by public transport or own mode of conveyance, shall in all instances be by the most direct route. ... 16. Relieving Other Members of Staff (a)An employee called upon to relieve another employee paid on a higher scale shall be entitled to receive the minimum rate of the higher scale of pay. This provision shall not apply when an employee on a higher scale is absent from duty by reason of his or her allocated day off duty as a consequence of working a 38-hour week in accordance with paragraph (i) of subclause (a) of clause 21, Allocated Days Off. No reduction shall be made in the scale of pay of an employee called upon to relieve another paid on a lower scale. Where an employee is called upon to relieve a Superintendent/Operations Manager, he/she shall be paid the minimum rate of the position so relieved. (b)When an employee is called upon to relieve another employee posted at another station and by so doing is required to live away from home, he or she shall be called a relieving employee. A relieving employee shall be paid a living away from home allowance as set out in Item 12 of Table 2A - Allowances Section 8 - Monetary Rates. Except that, a relieving employee who is provided with board and lodgings at no charge will not be entitled to receive the living away from home allowance. (c)If accommodation at no charge is not available to the relieving employee, accommodation costs will be met by the Service directly with the provider. In the unusual circumstance that the employee pays the cost of the accommodation they will be entitled to the reimbursement of accommodation expenses as per the Ministry's Policy Directive on Travel (Policy Directive 2009_016) (d)If the relieving employee is required to be on call, he or she shall be paid, in addition to the aforementioned amount, the amount specified in clause 23, Employees On Call. (e)The Service shall decide whether an employee travels to or from their relief duties in rostered hours. If the travel is to be accomplished outside rostered hours, the employee shall be reimbursed at ordinary rates for the time spent travelling in excess of the normal time taken to travel between his or her home and the station to which he or she is appointed. ... 23. Employees on Call ... (d)An employee who is not on call shall only be recalled to duty with the employee's agreement. Such a recall is subject to the same provisions as recalls performed when an employee is on call. ... 26. Time Off in Lieu of Overtime (a)The parties agree that an employee who is required to work overtime outside normal rostered hours may be compensated by way of time off in lieu of payment for the overtime. (b)This clause is subject to the following: (i)Time off in lieu of overtime shall be in amounts equal to the period of overtime worked; (ii)Time off in lieu of overtime must be taken within three months of the overtime being worked; (iii)Where it is not possible for an employee to take time off in lieu of overtime within the three-month period, it is to be paid out at the appropriate overtime rate based on the rate of pay applying at the time payment is made; (iv)The option of taking time off in lieu of overtime is subject to the active agreement of the Service management, so that it is conceivable that employees in one unit or location within the Service may be permitted to take time off in lieu of overtime but employees working in other locations and settings within the Service may not. (v)Employees cannot be compelled to take time off in lieu of overtime; (vi)Records of time off in lieu of overtime owing to employees and taken by employees must be maintained by the Service; (vii)Time off in lieu of overtime shall be taken at a time which is mutually agreed to by the Service and the employee; (viii)No more than 38hrs of time off in lieu of overtime can be accumulated by an employee. (ix)In making overtime available to employees the Service will not discriminate between those employees who elect to take time off in lieu of overtime in preference to those employees who elect to be paid for overtime in accordance with clause 23, Employees On Call, and/or clause 24, Overtime.

myShift system 13Mr Laurence Ioannou, a station officer and intensive care paramedic gave evidence for the respondent. Mr Ioannou developed the website known as "MyShift" which essentially allows staff to self-manage their overtime availability and shift swap requests from a computer at work, home, or even on a mobile device such as a smart phone. Staff can log on to the system at any time, and change their overtime availability preferences, including locations, time of day and type of overtime. This occurs instantly. Staff can also advertise shift swap requests, by posting their shift and availability for pay back onto a central location. Staff can browse other shift swap requests, and organise a swap that suits both parties. It also includes recording of staff absences and annual leave. 14When choosing overtime, staff then set their availability, by clicking a box that corresponds to the different dates, and the times they are available, characterised as "day", "afternoon" and "night". 15In regional areas with an on call option, staff can also choose their availability for "on call", and indicate how far they are prepared to travel, by choosing "home station", "zone" or "sector". Before proceeding past this page and before their selections are recorded, staff are required to agree to the overtime terms and conditions by ticking a box on the availability page. If staff do not tick this box, myShift will not allow their availability preferences to be administered. 16One of the terms and conditions of the myShift system is that it contains the following condition: I understand that in accepting an offer for overtime I will ensure I am at the location of the overtime shift at the commencement time and will travel to and from the designated location using private transport, there is no provision for the Service to provide me with a vehicle or to pay travel or excess KMs. 17Managers use myShift to allocate overtime. Myshift will generate and display a list of officers, based upon their preferences, who have stated that they are potentially available for the shift. MyShift sorts these officers by the amount of paid overtime they have completed in the past 90 days. This ensures that overtime is fairly distributed to all staff by ranking staff with the least amount of paid overtime at the top of the list, and those with the most amount of hours at the bottom. Managers then telephone staff on the list and offer them a specific shift. Staff can accept, or decline the specific shift. 18Since August 2010, more than 36,000 overtime shifts have been allocated by myShift. MyShift is now used for all areas of overtime across the State including for paramedics, patient transport officers, and control centre dispatchers and call takers. It is also used by special operations, aeromedical operations centre, retrieval, event planning, ART and bariatric business units.

Applicant's evidence 19The applicant called Mr Stephen Pollard, Mr John Redfern and Mr Peter Joseph Harrison, each of whom had filed an affidavit in the proceedings and were required for cross-examination.

Mr Pollard 20Mr Pollard is the duty operations manager at Young Ambulance Station in New South Wales. He is also the President of the applicant. Relevantly, his evidence was that since the introduction of myShift and the associated rules regarding transport there have been less officers accepting an offer for overtime to fill a dropped shift. This has led to an increased number of single officers responding on cases with the closest available backup often 30 - 60 minutes away. 21Mr Pollard was referred to the affidavit evidence given by Chief Superintendent Brian White, Deputy Director of Operations in the southern sector of the Ambulance Service, who is based in Goulburn, and the affidavit evidence of Superintendent Stephen Flanagan, zone manager for the Outer Hunter Region. 22Mr White's evidence was that he did not believe travel time was ever paid for dropped shift overtime. However, he stated that since this was principally managed by local district inspectors, there could have been isolated incidents of travel time, but this was not his preferred practice. He said that he had not been personally advised of any individual decision to pay travel time. 23Mr Pollard's evidence was that Mr White's statement that travel time was not paid was technically correct. He said during his evidence: If you look at the classification of the Award, travel time was paid at ordinary rates. Travel time was paid for programmed relief for officers travelling to and from stations. But for officers doing short term overtime at other locations, they were paid at overtime rates to travel from their home station to the destination and also paid overtime rates to return to their home station. Now that has been a standard practice in the southern area for a long time. It has only ceased just recently for some time. ... It was in the lead up to the introduction of the myShift. 24Mr Murphy tendered a document prepared by Mr Pollard (Exhibit 2) that demonstrated that officers had been paid overtime for time travelling to and from stations in the southern region. He agreed that when overtime was paid to officers to travel to other centres to provide additional resources, it would not show up in the pay records as travel time. It would be shown as overtime inclusive of the dropped shift. 25During cross-examination, Mr Pollard accepted that the examples of officers in Exhibit 2, showed they were remunerated at a rate that was not reflected in cl 14, but at a rate in excess of that provided for in that clause. 26Mr Pollard acknowledged that to the extent it showed there were officers with paid overtime rates in respect of travelling, that was a reflection of officers receiving an entitlement over and above that which was provided for in the Award. Even if the applicant's case in respect of cl 14 was correct, Mr Pollard accepted that on any analysis the exhibit did not inform the Commission in respect of the prior use of cl 14. He agreed that if an officer had been directed to undertake a relief shift, that would have involved travel time, which attracted different entitlement to being directed to undertake an overtime shift. 27Mr Kenzie asked Mr Pollard whether he disagreed with Mr Ioannou's explanation of how myShift worked. He confirmed that he took no issue with Mr Ioannou's explanation and gave this further evidence in response to questions from Mr Kenzie: Q.So, the fact that the myShift system has those mechanisms in it with the employee having to agree, that means that management has the assurance of the employee that that agreement and those conditions have been accepted and the employee accepts that the employee will go to the place in question and undertake the duty? A.That is the current position, yes. Q. As between management and that employee, the issue of attendance at that place has been resolved by that process? A.In some cases, yes. Q.Well in all case the system, I suggest to you, is that the question of the attendance by the employee at that place is resolved by that process? A.Yes, I suppose you can put it that way, yes. Q.Because of that, we couldn't find in the files of the ambulance services a subsequent step of management saying: You are now directed to go to that office at that particular time, correct? A.If you put it that way you can say that, yes. Q.That is correct, isn't it? A.Yes. Q.Because the whole process works on the process of agreement? A.But it always has. Q.Okay. Could I A.I don't think that is in dispute. From the HSE's perspective it has always been voluntary. It is the process that is in dispute. Q.So, the issue, as you perceive it yourself, is that nothing has changed in terms of the voluntariness of overtime. It is just that with the myShift system, it has become crystallised that it being voluntary, travel time will not be paid. Is that correct? A.They are the terms and conditions of the myShift, that is correct. ... Q.Now you don't suggest that, as I understand your evidence, including your evidence today, that prior to 14 January 2012 there was anything different in terms of the voluntariness of overtime per se? A.No. It was always voluntary. Officers always had the opportunity of saying yes or no. 28Mr Pollard agreed that cl 16 of the Award dealt with relieving and specifically provided for the payment of travel time if the officer was required to travel in his own time. He accepted that the entitlement to travel payment was not automatic but depended upon the circumstances in which an officer was required to relieve as to whether it triggered an entitlement pursuant to s 16. Such travel time would be paid at ordinary rates.

Mr Redfern 29Mr Redfern is an intensive care paramedic based at Dubbo Ambulance Station. He is also the vice-president of HSUeast Orana Ambulance Sub Branch. He stated that since the introduction of the Memorandum of Understanding ("MOU") in 2010 and the introduction of myShift in the western division in 2011, there has been an increase in single officer responses with shifts left completely uncovered or covered with day relief for a number of working hours only. He provided examples. He said before the introduction of myShift officers were paid travel time and a vehicle was supplied. The incidence of single crewing has since increased as a result of officers' unwillingness to travel in their own cars and not be paid. He said there was a reluctance by officers to travel long distances in their own cars, which resulted in sporting events being covered by duty officers, thereby decreasing available resources for the respondent's core work. 30His evidence was myShift was developed as a metropolitan system that does not suit country areas, as accepting an overtime shift a few suburbs away does not cause the imposition on staff that it does in the country. 31Mr Murphy tendered through Mr Redfern, a document (Exhibit 5) that instanced the incidence of single on call at the Gilgandra station during May, June and July 2012. In May 2012, the document demonstrated that there were 13 nights where there was a single officer on call at the Gilgandra Station. 32During cross-examination, Mr Redfern acknowledged that he had not been involved in the preparation of Exhibit 5. 33Mr Redfern accepted that what was described as the Orana (or western area of New South Wales) agreement, that being an agreement that entitled officers to be paid travelling time, was a very specific agreement for the Orana. More recently the area has been extended to cover the central west region of New South Wales. However, he disputed that the MOU had replaced the 2010 Orana agreement. 34Mr Redfern agreed that officers volunteered for overtime and that there was no mandatory overtime. Mr Redfern also agreed that as a tool myShift was suitable for both city and country areas. His only complaint was that officers did not get paid travel time and that the respondent did not provide a vehicle when an officer accepted an overtime shift.

Mr Harrison 35Mr Harrison has worked for the respondent for over 30 years. He presently holds the position of officer in charge of the Dungog Ambulance Station which is located in the Outer Hunter region. Since the beginning of 2005, he has also performed the role of Outer Hunter deployments manager. Part of the duties of the deployment manager was the issuing of overtime shifts to maintain Agreed Roster Levels when ad hoc vacancies occurred within the 10 rural on call stations. 36Mr Harrison stated that prior to the introduction of myShift in the Outer Hunter region in 2011, an overtime management tool originally developed for metropolitan Sydney, staff who agreed to work overtime shifts in the rural stations of the Outer Hunter were always paid to travel to the stations because of the significant distances and time required to be travelled by staff to take up their shifts on their rostered days off. Where available, staff were also provided with a service vehicle to facilitate this travel. Mr Harrison stated that prior to myShift being introduced within the Hunter sector, the then operational support manager for the northern division, Superintendent Terence Watson gave him assurances that nothing would change in the way overtime was managed in his jurisdiction of Outer Hunter. He said that until recently, rural staff working overtime shifts in the Outer Hunter were always allowed to utilise ambulance vehicles to travel to stations other than their own and were paid for their time while travelling. 37Mr Harrison's evidence was the respondent was deliberately interfering with longstanding current entitlements to rural staff to make it more difficult, and less attractive, to cover vacancies in small rural stations and to save money on the drop shift overtime. Ultimately, he said this leads to increasing single officer responses because more shifts are remaining vacant because of these restrictions. 38Mr Harrison gave some additional oral evidence in which he said that the dispute surrounding this matter was essentially a rural dispute. He stated that in the Outer Hunter region, the "norm" was to use ambulance vehicles to travel between stations in areas like the mid-north coast where ambulance stations are much closer together. He said there was no need to claim travel time because the stations were only between 12 - 20 kilometres apart, as opposed to the Outer Hunter where they were between anything from 30 minutes to 3 hours apart. He said that in his area ambulance officers used what he described as the "1 hour rule" which meant that if travelling time was less than 1 hour, officers would be permitted to travel within the shift whether on duty or on overtime. Where an officer stayed at another station on call and travelled back the following day on their day off in a service vehicle, on occasions such officers would claim time off in lieu of overtime ("TOIL"). If the officer was to perform an overtime shift, Mr Harrison said they would be paid overtime if travelling within the shift. This was normal for his area. This would not show up as overtime because it was included and encompassed by the overtime shift. 39Mr Harrison stated that the Outer Hunter sub branch had been in long term discussions and disputation with the respondent in respect of overall single officer responses and single officer rostering. This issue became the subject of dispute proceedings in Matter No IRC 1665 of 2009. A resolution was reached in that matter whereby the parties entered into a memorandum of agreement that prescribed certain entitlements to staff to fill on call shifts which included paid travel time and the use of service vehicles. If the use of a private vehicle was required, payment per kilometre was also available. 40Since the introduction of myShift Mr Harrison said that the respondent had stopped totally the payment of travel time on overtime shifts. The respondent continued to authorise the payment of travel time and the use of service vehicles consistent with the MOU, which was still in force which addressed entitlements for on call shifts and the coverage of such shifts that were vacant throughout the Outer Hunter. 41During cross-examination, Mr Kenzie referred Mr Harrison to Annexure SF15 of Mr Flanagan's affidavit. This annexure provided an analysis based on, in the case of each region, the first 10 stations listed alphabetically. Mr Harrison said that he had not seen the annexures, although he had been provided with Mr Flanagan's affidavit which he said was irrelevant. 42Mr Flanagan's analysis in taking the first 10 stations in alphabetic order, had only captured Bulahdelah that fell within the Outer Hunter region and not included Dungog, which was Mr Harrison's station. Mr Harrison's evidence in respect of Mr Flanagan's annexure was that stations throughout his area, noting that 9 were not represented in the data, clearly did claim travel time or payment in kind, that is, time off in lieu of overtime. He stated that past practices and customs vary across the State and his area was somewhat different to the mid north coast. He accepted that taking for example, the Hunter/New England area, practices differed in respect of claims for travel and overtime. He agreed that the MOU was an agreement which refortified award entitlements. He said it added nothing in terms of the industrial rights of employees to travel time. He was unaware that there was a counterpart to the MOU outside his area. He believed that it was the first of its kind. 43Mr Kenzie provided Mr Harrison with a copy of Chief Superintendent Jeff Hescott's affidavit. He was referred to evidence where the Chief Superintendent had stated that in the Outer Hunter region he had become aware of a range of practices in respect of paying travel time for overtime shifts. Ultimately, Mr Harrison agreed with this proposition. Mr Harrison also accepted that in seeking TOIL for travel time, this was not an entitlement provided for under the Award. 44During re-examination, Mr Harrison stated that the availability of time off in lieu for travel time associated with an overtime shift had been available for as long as he could recall working in the Hunter region.

Chief Superintendent Hescott 45Chief Superintendent Hescott is the Deputy Director Operations, Ambulance Service of New South Wales. He has been employed with the respondent since 1985. 46He worked in the Sydney metropolitan area as a road paramedic in the 1980s and 1990s. He said he did not ever recall receiving travel time or expenses for working an overtime shift at another metropolitan station. The arrangements at that time (1980s - 1990s) were that an overtime shift commenced and concluded at the station at the appointed time and travel to that station was in the officer's own time. He currently has responsibility for the operational management of the Hunter/New England sector which covers Lake Macquarie, Greater Newcastle, the Outer Hunter and New England to the Queensland border. His evidence was that in his experience, both metropolitan and regional areas sporting event coverage and covering vacant rostered shifts were usually conducted on overtime and have always been voluntary. 47In respect of the Hunter/New England region, Chief Superintendent Hescott's understanding was that it had always been the case that an officer who was asked to start one of their ordinary rostered shifts at another station was entitled to travel time if they travelled outside their shift. For example, if an officer from Hamilton was asked to start their normal shift at Raymond Terrace, a trip of approximately 30 - 40 minutes, they would be entitled to travel time for both trips, unless they travelled within their shift. This was because the officer was being genuinely inconvenienced and because their manager was directing them to another location. 48However, Chief Superintendent Hescott did not agree that an officer who elects to do an extra overtime shift on a day off was entitled to travel time and expenses because "this is not the same sort of direction and they have willingly elected to undertake the shift in addition to their rostered shift". 49In the inner Hunter between 2004 and 2008, Chief Superintendent Hescott said that officers were not paid travel time when they worked an additional overtime shift at another location. However, he could not say that travel time was never paid because there could have been incidents of error or misinterpretation. 50When he arrived in the sector in 2004 there was an existing practice where officers faxed their availability to the Rescue Unit at Hamilton. Those forms were collated into a central database and, prior to 2008, officers at the Rescue Unit had the responsibility for filling shifts and allocating overtime. After September 2008, this responsibility was taken up by District Inspectors and Deployment Officers off the same database and paper based system. He did not recall any disputation between 2004 and 2008 that the practice of allocating overtime at other stations without travel time was an award breach. 51In respect of the Outer Hunter region, his evidence was that he had become aware of a range of practices around paying travel time with overtime shifts. He believed there would have been cases where travel time would have been paid to an officer who travelled to another location for an overtime shift. In some cases, this may have taken the form of either a monetary claim or TOIL. He said that he believed that this would have occurred for reasons beyond simple error, but possibly because of an overpayment. He said local managers had informed him that they could not find someone to fill the shift unless they offered some sort of monetary incentive. Receiving travel time became an expectation and was used as an incentive by managers to have officers travel longer distances to stations. 52In 2012, decisions about overtime in the Outer Hunter changed in that zone manager approval was required. This was to increase governance around these issues. His evidence was that he did not believe his sector had a problem filling vacant shifts in the Outer Hunter by using the myShift system. He agreed that there are sometimes more officers available on some days than other days. Chief Superintendent Hescott recently found that there were only four vacant on call shifts not able to be filled in the Outer Hunter region in the 12 months between July 2011 and the present. 53His evidence was that no employee was ever pressured in any way to do an overtime shift on a day off. If an officer was contacted and they did not want to undertake a shift at a certain station (for whatever reason), that was permitted. MyShift, he said, has provided a feature that he considers improves this situation by allowing staff to nominate for overtime shifts they wished to be considered for, including their preferred locations. In his view, reviewing an officer's list of preferred stations and then offering a shift that matches the officer's preferences could not be considered a direction. 54He said an officer would only be directed to report for duty at another location if they were rostered on and a neighbouring station was short staffed due to an unplanned vacancy (sick leave) and they were needed to provide coverage for that day or shift. 55His understanding was that officers always travelled in paid time for this because they were being directed to report for duty at another location. 56Chief Superintendent Hescott did not agree that an ambulance vehicle was always made available to perform an overtime shift at another location. In the Inner Hunter, there was no pool of vehicles that could be made available. In the Outer Hunter, he believed that it was common for a vehicle to be provided if one was available, but this should have been predominantly for relief staff and on call situations and not for dropped shift overtime. 57During cross-examination Chief Superintendent Hescott accepted that various practices in respect of claiming payment for travelling to do an overtime shift, or claiming time off in lieu rather than travel time payments had been taking place for some time in the Outer Hunter region.

Chief Superintendent John Stonestreet 58Chief Superintendent Stonestreet is the Deputy Director Operations, Ambulance Service of New South Wales. He has responsibility for the operational management of the Western Sector. He has been employed by the respondent since 1976. His evidence was that employees who were offered and accepted an overtime shift which involved them reporting for duty at another station in the western sector were paid the benefits of cl 14 of the Award if they were subject to the Orana agreement. In other instances, he did not believe that employees received such a payment. The area formerly known as the Orana district had a local agreement from approximately 2001 known as the "Orana agreement". The agreement was made to provide a framework for managing agreed roster levels ("ARLs") in that area. Part of the agreement was that travel time would be paid to an officer who travels to perform an overtime shift at another station. 59Prior to 2006, the area known as the Central West did not have a local agreement similar to that of Orana and Chief Superintendent Stonestreet did not believe that travel time was paid to officers in that region. However, when the two areas amalgamated in approximately 2006, the Orana agreement was renegotiated to include the Central West sub branch, including travel arrangements. Prior to the Orana agreement, Chief Superintendent Stonestreet stated that his recollection was that an officer in the Central West filled out a form indicating whether they were available for overtime shifts and management would refer to those forms when looking to fill an overtime shift. He believed officers usually picked up an ambulance vehicle at their starting time and travelled within their shift times. His understanding was that travel time was not paid for these shifts. 60His evidence was that in 2010 the Orana agreement was abolished by the 2010 MOU between the HSUeast and the Department of Health. He said the payment of travel time did not cease in the western region straight away, although it could have under the terms of the MOU. 61Chief Superintendent Stonestreet stated that he formally wrote to the two HSUeast branches on 26 October 2011 notifying them that the MOU would now take effect. This was because myShift was about to commence and to be consistent with the rest of the Ambulance Service. 62His evidence was that in his experience, officers had never been directed to report for an overtime shift, or directed to travel to another station for an overtime shift. Officers are offered a shift but if they decline the offer, that was fine. This was the case both before and after myShift. He said the only time that an officer would be directed to work overtime would be in circumstances where the officer was on a case, or a case was pending. This was called "extension of shift overtime". Another example would be if an officer was required to stay at a location after the completion of their rostered shift for coverage of another officer. 63If an officer was rostered to perform their ordinary roster at another station, this was called "relief duty". Officers would receive the normal relief arrangements which included a vehicle to travel to the relief location, if one was available, and travel in the respondent's time. 64During cross-examination, Chief Superintendent Stonestreet agreed that the Orana agreement had been in operation for 11 years, and for 4 years in respect of the Central West. He rejected the proposition that once an officer is offered a shift, they are then directed to a station. His evidence was they accept the offer on a voluntary basis. It is an offer made to them and it is their decision if they want to voluntarily accept the overtime. They are not directed to take up the overtime, or actually directed to fulfil the overtime at another station. It is purely voluntary.

Superintendent Flanagan 65Superintendent Flanagan is employed as a Zone Manager for Hunter District 2, also referred to as the Outer Hunter. He is currently seconded to the Workforce Unit in the Industrial Relations Section of the respondent. Superintendent Flanagan set out the Award history in respect of cl 14 Travelling Time and its predecessor clause in the 2008 and 1998 Awards. He annexed copies of the Award history. He also attached spreadsheets of payroll data showing the Minimum Operating Levels ("MOLs") overtime and travel time actually paid to paramedics at each ambulance station and other cost centres. MOL overtime is payroll category for dropped shift overtime. The spreadsheets covered the period July 2010 to December 2010. The first spreadsheet dealt with regional New South Wales. A second spreadsheet contained the same payroll information, but was sorted by sector. It contained only the first 10 stations alphabetically in each sector and the Sydney Division. These annexures were referred to as SF14 and SF15. 66Superintendent Flanagan made the following observations in respect of the data contained in the spreadsheets regarding the five station sectors as follows: Southern a.Albury Station has no travel time charged against it for the period. It would appear that this report shows that while Albury has a high number of dropped shifts, it is mainly covered internally. However there are nine instances of overtime shifts by paramedics from other stations covering dropped shift overtime, at Albury have not been paid travel time. b.In contrast to Albury, Batlow Station has the majority of its dropped shift overtime filled by paramedics from other stations, 10 from 17 shifts. However there are only three instances of travel time paid in the same period. Of those three travel time payments, I couldn't say exactly what the payment is for, however two appear to be coincide with an overtime shift in the same payrun (payrun 16). One payment is made without an overtime shift. c.At Bega station, all three travel payments relate to paramedics from Bega station, so it is not going to be for travel to a dropped shift. Within Bega there are two overtime shifts filled by paramedics from other stations with no travel payment. d.At Boorowa station, there is one travel payment to a Boorowa Paramedic. In this period four of the seven overtime shifts are performed by paramedics from other stations without a payment for travel. Northern e.Ballina Station also has a high number of overtime shifts which are covered by multiple stations. All nine travel payments represent payments to Ballina Paramedic and would not be aligned to a dropped shift. f.At Casino station, dropped shift overtime seems low compared to other stations, however travel payments are relatively higher, and include paramedics from other stations. However when one looks at the data, the travel payments do not all relate to dropped shifts, and would, in these circumstances probably indicate a higher level of travel, due to paramedics rostered for relief. g.At Grafton, Coffs Harbour and Kempsey stations, all have significant amounts of dropped shift overtime, and no travel payments. Western h.At Baradine, there are approximately 11 Travel Time payments that can be indentified with a dropped shift overtime. I understand that these stations fall under the former Orana Agreement that delivered travel time, by agreement. i.As above in (h), Bathurst had one dropped shift filled by another station and Travel Time was paid, probably under the same agreement. j.I believe these circumstances are reflected in most stations in this report. Hunter k.At Armidale, there are several overtime payments and Travel Time payments but all are related to staff at the station. l.At Belmont, despite the high level of overtime there are no travel payments to paramedics from other stations corresponding with an overtime shift. m.At Birmingham Gardens there is a very high level of dropped shift overtime, that is covered by other stations. There are not, however, matching overtime shifts. I can see that two names dominate the travel payment. Allan and Nelson, who are not down for overtime shifts. This is most likely a situation where they were rostered for relief over various days. n.Boolaroo station also has very high dropped shift overtime with minimal travel payments. Four travel payments are made to paramedics from other stations, out of 60 dropped shifts covered by other stations. o.At Bulahdelah, there are four travel payments, and four dropped shifts, however no paramedic appears in both lists. Metropolitan p.There is a very clear picture displayed by the data from metropolitan stations that incidents of travel time are very low. Avalon, Balgowlah, Belrose, Bomaderry, Blacktown, Bondi, Bowral Bulli, Camden, Campsie and Castle Hill have none paid during the period. q.At Blacktown, dropped shift overtime is covered by staff from Bateau Bay (Central Coast) that in this period were still part of Northern Division. 67Superintendent Flanagan rejected the proposition that because only Bulahdelah had been included in the sample of 10 stations in the Outer Hunter area, this destroyed the integrity of the of the analysis in annexure SF15. This was because the annexure endeavoured to demonstrate there was a viable application for travel being applied in regards to overtime shifts. He said if there were any issues that arose in respect of a sector, annexure SF14 could be analysed. He had adopted the approach of selecting the top 10 alphabetical stations in each sector to avoid being criticised for selecting particular stations. 68During cross-examination Superintendent Flanagan agreed that the Orana agreement made provision for officers to travel to carry out overtime shifts and enabled an officer to be paid overtime when he/she travelled home at the conclusion of the shift. 69Mr Murphy asked Mr Flanagan about the practice in the Outer Hunter region of officers travelling to an overtime shift and electing to be paid travel time, or take it as time in lieu. His evidence was that when he noticed entries of travel time in the TOIL register, he issued an immediate instruction that it was to cease forthwith. This was because travel time should not be recorded as TOIL or time off in lieu because of the provisions of cl 26 of the Award, which provides that time off in lieu can only be taken in lieu of overtime. He said that he issued this instruction in October 2011.

Chief Superintendent Peter Pilon 70Chief Superintendent Pilon is employed as Deputy Director Operations. In this role he has responsibility for all aspects of the operation of the North Coast Sector, including staffing, delivery of service, financial and clinical performance. He commenced employment with the Ambulance Service in 1977. His evidence was that in June 2009, the north coast sector introduced a centralised overtime allocation system that replaced all local systems across the sector. This included Taree and Tuncurry stations. Under this system, overtime availability forms were produced for officers to complete on a fortnightly basis. This was the only way that overtime was to be allocated throughout the sector. This practice was replaced by the myShift system. 71Under the North Coast Overtime Allocation System between 2009 and 2011, there was no travel time paid to an officer who worked an overtime shift known as "dropped shift overtime". Officers were informed, prior to being offered any overtime shift that no form of travel would be paid and signed an acknowledgement of this on each occasion they applied for overtime. 72Prior to 2009, Chief Superintendent Pilon's evidence was that when he first began as an ambulance officer, he did not recall ever being asked to work overtime shifts. He recalled being asked to work at other stations occasionally and usually travelled within the shift and did not recall being paid travel time. His recollection was that overtime was not very common amongst officers in Western New South Wales between 1998 - 2000. After MOLs were introduced, he said overtime became more commonplace because shifts were required to be filled in order to maintain the staffing levels. This occurred between 2000 - 2002. He said he could never recall an officer being directed to work a dropped shift overtime. These shifts were always offered to an officer and if the officer did not want to work an overtime shift, they were not pressured. 73During cross-examination, Chief Superintendent Pilon agreed that North Coast Region was not dissimilar to the Sydney metropolitan region because of the relatively close proximity of stations. It was for this reason that the north coast commenced to model itself on what occurred in the metropolitan area in respect of travel for an overtime shift. However, he observed that on occasions, an officer would be required to drive approximately 100 kilometres, about an hour's drive, although that would vary. Other examples were driving from Coffs Harbour to Woolgoolga would take approximately 25 minutes and Urunga to Macksville would take approximately 45 minutes depending on traffic.

Superintendent Watson 74Superintendent Watson who was not required for cross-examination, is employed as Zone Manager for the Hunter zone 1, in the Hunter/New England sector. He has been employed in the Ambulance Service since 1977. He said that he had been tasked by the Acting Divisional Manager to project manage the rollout of myShift across the old Northern Division. The Northern Division consisted of three sectors, and extended from the Hawkesbury River in the south, to the Queensland border. The myShift program was rolled out across the Northern Division with the Central Coast Sector being followed by the Inner Hunter and subsequently, the Outer Hunter and North Coast Sectors.

Chief Superintendent White 75Chief Superintendent White is employed as a Deputy Director, Operations of the Ambulance Service. He has responsibility for the overall day to day operations of all ambulance activities in the southern sector, which extends from Batemans Bay to Eden on the South Coast, west along the Murray River to Balranald and north to Hillston in Western New South Wales, and then east to Goulburn. 76The Chief Superintendent stated that he had read the affidavit of Mr Pollard and agreed that working overtime shifts had always been voluntary. There was no expectation that a paramedic would be available to work on his or her days off. He said the only reason overtime was expected, was where an officer was required to complete work that had arisen during their shift, such as their caseload. This would be considered mandatory overtime. He did not agree that the Ambulance Service always paid travel time to officers to travel to an overtime shift. In his experience, while it was sometimes paid, that was the exception and usually for local reasons. 77Chief Superintendent White's evidence was that officers may choose to nominate for overtime at their home station or other stations. They may accept, or reject an offer of overtime. He noted there are circumstances where the Service does direct paramedics to travel to other stations, but this is only if they are already on duty, and where they may be needed to fill a shift vacancy at a neighbouring station. This is known as fluid deployment. In the southern sector the paramedics may be asked to travel before their rostered shift, or they may travel within their rostered shift. Where a paramedic travels outside of their rostered shift, they are entitled to travel time and would be paid this. However, Superintendent White stated that he did not agree that this practice applied where an officer nominated for, or accepted an overtime shift. 78Chief Superintendent White stated that prior to the implementation of the paging system between 2008 - 2010, overtime shifts in the southern sector were filled by local managers telephoning off duty staff at the affected station and individually offering them an overtime shift. If no-one could be found from the station, calls were then made to further locations. He recalled that concerns were raised by paramedics and the HSU about a lack of transparency in respect of that system. 79The southern sector then developed an SMS paging system on or around January 2008 following consultation and development with the HSU. This system enabled management to broadcast overtime to a wide variety of paramedics quicker than phoning individuals. There was some opposition from both the south eastern Sub-branch and to a lesser degree the Murray Sub-branch, partly because there were genuine obstacles to overcome, including mobile telephone coverage in certain rural areas and access to mobile phones. He said there was no record of travel time being an issue in respect of this system. 80Chief Superintendent White stated that the myShift system commenced in his sector in approximately January 2012. He did not recall any disputes from the Sub-branches about migrating to the myShift System. 81During cross-examination, Mr Murphy put the following questions to Chief Superintendent White: Q.In answer to a question from my learned friend you indicated when the officer is offered an overtime shift and accepts that shift, I think your term was you appoint them to the station where that overtime shift is to be worked? A.Yes, for the shift. Q.That's the same as directing them to that station? A.No, no. When they voluntarily accept an overtime shift that we've offered then they voluntarily accept, we allocate them the station where the overtime is to be worked. Q.You see a difference between directing and appointing/allocating? A.It's still a voluntary overtime. Q.It has always been that way? A.Yes. 82His evidence was that in April last year, he issued a directive that there was to be no overtime claimed for travel time to and from stations where overtime was allocated and an officer was only there to cover the shift. 83Mr Kenzie also tendered an affidavit of Laurence Ioannou. I have already referred to Mr Ioannou's affidavit in which he explained how the myShift system works. 84Mr Kenzie read an affidavit of Chief Superintendent Tony Gately who was not required for cross-examination. Chief Superintendent Gately is the Deputy Director Operations Central Coast and Northern Sydney Sector. He is currently Acting-Director of Ambulance Operations for the Metropolitan Division of the Ambulance Service. He commenced employment as an ambulance officer in 1981. His evidence was directed to the Sydney Metropolitan Division. He said that he did not believe paramedics who perform an overtime shift on a rostered day off in the Sydney Division are entitled to travel time if they travel to another station. Unless an error occurred at station level or in Payroll, no officer would have been paid travel time for such a situation since he has been the Director Operations. He said that he could not recall the payment of travel time ever being raised as an entitlement. He had never seen cl 14 apply to overtime shifts. 85Superintendent Gately gave evidence in respect of how the overtime allocation system had worked in the Sydney metropolitan area and also how shift swaps operated. It is unnecessary to deal with this evidence.

Consideration 86The principal question for determination is the meaning to be accorded to the words "directed to report for duty" which are contained in cl 14 of the Award. A secondary question arises in light of the words contained in cl 14(a) which provide that benefits are payable "unless otherwise agreed between the Service and the employee". This question may be disposed of immediately. The words clearly mean that to obtain some other benefit than that provided for in cl 14(a) an agreement must be reached between the relevant parties. 87The applicant's case is that when an officer volunteers for overtime and that offer is accepted by the Ambulance Service, such officer is then directed to report for duty at a station other than that to which he or she is appointed. This direction, so it was contended by the applicant, triggers an entitlement to overtime and expenses pursuant to cl 14. 88The respondent submits that the process of filling overtime shifts under the myShift process is and that this has always been the case, entirely voluntary. The parties agree on this point. 89The relevant principles of construction in respect of an award and the approach which should be applied to the interpretation of provisions in an award by which I propose to be guided, were recently stated by the Full Bench in 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 [38] - [47] as follows: [38]The Interpretation Act 1987 (NSW) applies to the interpretation of awards (see s 3(1)), thereby entrenching the long held principle that awards are to be interpreted as any other enactment is interpreted: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503. [39]There are four principles of statutory (and award) interpretation that are of particular relevance to the issue we have to decide in this case, which is whether cl 9.6.1 of the Award applies to the one or two hour periods Station Officer Brown worked immediately before the commencement of his rostered shifts. [40]First, statutory construction must involve a purposive approach. Section 33 of the Interpretation Act gives statutory recognition to the common law purposive approach in the following terms: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. [41]The approach required by s 33 does not depend on the existence of an ambiguity or inconsistency. It allows a court to consider the purposes of an Act in determining whether there is more than one possible construction: Mills v Meeking (1990) 169 CLR 214 at 235. However, the requirement of s 33 is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: R v L (1994) 49 FCR 534 at 538. In other words, in interpreting a statute the courts must determine what parliament meant by the words it used, not what parliament intended to say: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; 61 IR 32 at 67-68. [42]This point was recently confirmed by Spigelman CJ in Harrison v Melhem [2008] Aust Torts Reports 81-951 at [14] and [16] 14However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. (See eg Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 146-147 per McHugh J.) Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts. (See Brennan v Comcare (1994) 50 FCR 555 at 572-575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169.) Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute. (Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 esp at [33]-[37].) ... 16The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma (1995) (4) BCLR 401 at 402; [1995] (2) SA 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius (Privy Council, 13 December 1995, unreported); Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what parliament intended to say. (See Nolan v Clifford (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].) [43]Secondly, in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, in referring to the principle of contextual interpretation, the High Court stated: ... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. See also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Zoological Parks Board (NSW) v Australian Workers Union (2004) 135 IR 56 at [44]. [44]Thirdly, extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act. Again, however, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision. As McHugh J observed in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113: Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is "reasonably open". Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. [45]This takes us to the fourth principle. In an address to the Clarity and Statute Law Society at Cambridge University in July 2002 ("Towards a Grand Theory of Interpretation, The Case of Statutes and Contracts"), Kirby J identified a number of general features of statutes and contracts that "may make it dangerous to assume that exactly the same approach to interpretation will be apt for both". In particular, his Honour noted: Whilst a written contract between private parties having large consequences may, on occasion, involve the need for great precision and go through many drafts, ordinarily there is less formality about most written contracts. At least this is so when compared to the preparation of legislation. In the nature of writing that expresses binding public law, legislation is addressed to the community at large and usually has no stated termination date. It is typically prepared by highly trained and expert parliamentary counsel. It is ordinarily accompanied by explanatory memoranda. It is introduced into the legislature with a ministerial second reading speech. Typically, this degree of formality is missing from private instruments... [46]Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie: But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. [47]Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ). 90The evidence establishes that the myShift system requires an employee to make a request to be considered for overtime and the employee acknowledges, by an electronic election on the myShift website that the employee will travel to and from the designated location using private transport and there is no provision for the Ambulance Service to provide a vehicle or to pay travel or excess kilometres for this work. 91The applicant sought to assist its argument, that once an officer had volunteered for overtime, he or she was then directed to undertake the overtime shift by calling evidence of past practice. In my view, even if there had been clear evidence in the proceedings that there had been some consistent past practice where all officers in the Ambulance Service had recognised that clause 14 was activated in a voluntary situation, which is not the evidence, it does not assist the applicant in proceedings that seek a declaration. This is not a proceeding where I am called upon to exercise any discretion. In any event, the evidence discloses a completely diverse and inconclusive situation in respect of past practice and the application of cl 14. 92The evidence discloses that travel time is not paid for an overtime shift regardless of the circumstances throughout all areas of the Ambulance Service, including areas where there is a considerable amount of travel time required between stations. It was common ground that in the metropolitan area and in large regional areas, the payment of travel time has never been paid. This included the north coast region. The exception was where the evidence disclosed there had been a practice of paying travel time in the western (Orana) region and the Hunter New England region. However the evidence was by no means conclusive. 93There was disagreement between the parties as to whether the Orana agreement (to which I have earlier referred in dealing with the evidence (at [58] - [60])), was terminated when the 2010 MOU was executed. The Orana agreement provided that travel time would be paid to an officer who travelled to perform an overtime shift. Chief Superintendent Stonestreet's evidence was that the Orana agreement was terminated by the MOU. Clause 10 of the MOU provided: 10.Minimum Operating Levels and Local Agreements 10.1Minimum operating levels and local agreements will be replaced with a zone/sector deployment based model based on operational demand. This model will operate in accordance with the principles contained at Attachment 2. 10.2The list of local agreements replaced by the zone/sector deployment model are contained in the document at Attachment 3. 94Attachment 2 of the MOU relevantly provided that: All current local Essential Staffing Level (ESL)/Minimum Operating Levels (MOL)/Agreed Rostering Levels (ARL) agreements cease and [are] substituted with an operational deployment model. 95His evidence was the Orana Agreement was an agreement about minimum operating levels and it had guidelines contained within it regarding how to fulfill those operating levels. It also had business rules attached to it to allow both parties to understand how to go about filling overtime shifts. He rejected the proposition that it went beyond establishing minimum operating levels. To the extent relevant in my view, the Orana Agreement was terminated as a result of the 2010 MOU because it was one of the agreements of the nature that was described in the MOU as being terminated. 96In relation to the Hunter/New England sector, the evidence of Chief Superintendent Hescott was that a variety of practices existed in relation to the payment of travel time. In some cases, travel time was claimed and paid as such. On other occasions, it was incorporated in claims for time off in lieu ("TOIL"), a practice which was not supported by any provision of the award. On other occasions travel time had been incorporated in a claim for overtime rates and paid as overtime. Mr Harrison agreed with Chief Superintendent Hescott's evidence that there was a variety of practices in relation to the payment of travelling time. In addition, the evidence of Mr Flanagan demonstrated that in the overwhelming number of cases throughout New South Wales, travel time was not paid at all. 97In my view, and I find, that the evidence in respect of historical practices does not amount to a basis that assists the applicant in its construction of cl 14. 98I turn to consider the meaning of the words "directed to report for duty" and to construe cl 14 according to its terms and in the context of other provisions within the Award. 99In the context of cl 14, in my view, the term "directed to report" should be read as meaning that the employee is summoned or commanded to undertake a task which carries with it consequences for the employment relationship if the direction is not followed. This is neither the position that exists here in respect of myShift nor was it the position that existed prior to its introduction. 100Mr Pollard's evidence was that when an officer applies for an overtime shift by using the myShift system, he is advising the Ambulance Service that he is available to undertake the shift. This is subject to an agreement with the Ambulance Service. Mr Pollard in his evidence, agreed that that was the basis upon which the employee then proceeded to undertake the shift. There is no additional or subsequent step required by the officer who once the offer is conveyed is advised where he/she is required to undertake the overtime shift. 101However, even after the officer has offered to undertake an overtime shift, he or she is free to withdraw that offer at any time and cannot be directed or compelled to undertake the shift. This is not, in my view, a technical distinction, nor does it provide a narrow construction or interpretation to the meaning of cl 14 as Mr Murphy submitted. 102Having volunteered for overtime, the Ambulance Service then notifies the officer if he or she has been successful and provides the details of the overtime shift. Securing the overtime shift is all at the initiative of the officer. If an officer never volunteers for overtime, then that officer will never be offered an overtime shift. 103This arrangement therefore reflects the integrity of the voluntary nature of doing overtime work. This position may be compared and contrasted with cl 16 of the Award. This clause deals with Relieving Other Members of Staff. It provides that where an employee is called upon to relieve another employee (cl 16(a), the Ambulance Service shall decide whether an employee travels to or from their relief duties in rostered hours. If the travel is to be accomplished outside rostered hours, the employee shall be reimbursed at ordinary rates for the time spent travelling in excess of the normal time taken to travel between his or her home and the station to which he or she is appointed (cl 16(e)). If the Ambulance Service directs an employee to relieve another employee who is, for example on sick leave, then cl 16 provides for travelling time. There is no voluntary aspect so far as an officer is concerned in respect of a cl 16 direction. 104Similarly, the Award makes it clear that if an employee is not on call and the employee is off duty, that employee cannot be required or directed to perform any work. This is made clear by the provisions of cl 23(d) which provides: An employee who is not on call shall only be recalled to duty with the employee's agreement. Such a recall is subject to the same provisions as recalls performed when an employee is on call. 105Similarly, s 26(a) provides that an employee who is required to work overtime outside normal rostered hours may be compensated by way of time off in lieu of payment for overtime. 106In my view, when the terms of s 14 are considered in the context of other provisions in the Award, there is a clear distinction between compulsion and direction that underpin s 14 of the Award and the voluntary requirements of myShift. 107The evidence has demonstrated that the history of the implementation of cl 14 is inconsistent with the contentions of the applicant and the proper construction of cl 14 that an officer who volunteers for, and is offered an overtime shift, can then be said to have been directed to report for duty at a station, thus attracting the provisions of cl 14 of the Award. It follows that the application should be dismissed. 108Mr Murphy submitted that if I were to find against the applicant, which I now have, that the consequences of the ceasing of paid travelling time in remote areas would be that instances of single officer responses would increase. That, so it was submitted, was the natural and obvious consequence of refusing relief for the applicant because it would become more difficult to attract officers to volunteer to perform overtime shifts without any compensation. Shifts would be left unfilled which, Mr Murphy submitted, was an entirely untenable situation because it would expose the community and indeed officers to unnecessary risks. Such consequences cannot be addressed in proceedings brought pursuant to s 154 of the Act. If this becomes a reality then the grievance should be addressed in accordance with cl 42 Issue Resolution of the Award. The merits of a grievance can be properly considered by the respondent and if unable to be resolved, an application can be filed in the Industrial Relations Commission of New South Wales.

Orders 109The Court makes the following orders: 1.The application is dismissed. 2.The question of costs is reserved. The question of costs has been reserved because the proceedings involve a dispute between a trade union and an employer. I grant liberty to apply in respect of the question of costs. Such liberty should be exercised within 21 days of the date of this decision.

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 August 2012