NSW Ministry of Health v Health Services Union New South Wales and anor - [2019] NSWIRComm 1081 - NSWIRComm 2019 case summary — Zoe

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NSW Ministry of Health v Health Services Union New South Wales and anor

[2019] NSWIRComm 1081

Industrial Relations Commission (NSW)|2019-09-19

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2019-09-19

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

I Latham of counsel (Second Respondent) File Number(s): 2018/00229087

[2]

Background of proceedings

On 25 July 2018 the NSW Ministry of Health ("Ministry") filed with the Office of the Industrial Registrar ("Registry") a notification of an industrial dispute ("Notification") pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Act"). The Notification sought the assistance of the Commission in resolving a dispute that had arisen between the Ministry on the one hand, and the Australian Paramedics Association (NSW) ("APA") and the Health Services Union New South Wales ("HSU") on the other, concerning a possible variation to the Operational Ambulance Officers (State) Award 2018 ("Operational Ambulance Officers Award").
To shortly state the dispute, the Operational Ambulance Officers Award contained a classification of "Duty Operations Centre Officer" ("DOCO"). That classification required the incumbent to have successfully completed the requirements set out in the Paramedic classification in the award. Due to alleged difficulties in securing appropriately qualified candidates, the Ministry had sought to reach agreement with the APA and the HSU on the inclusion in that award of a new, additional classification for a DOCO position which did not require paramedic qualifications. The Notification stated that the parties had not been able to reach agreement on the terms of a variation to the award and the assistance of the Commission was sought to resolve that dispute.

[4]

The HSU Application

The HSU Application seeks four main variations to the Paramedics Award. The first is to replace the current DCCO definition with the following: "5(b)(xxi) A reference to 'Duty Control Centre Officer' will mean both Paramedic and non-Paramedic streams. A Paramedic qualification will be a desirable but not essential for any Duty Control Centre Officer. (A) Duty Control Centre Officer (Paramedic): means an employee who has successfully completed the requirements as set out for a Paramedic and who has successfully completed the requirements for and is appointed to a Duty Control Centre Officer position identified as such by the Service. This category of employee will be involved in the dispatch and movement of emergency and non-emergency ambulances utilising the Service's Computer Aided Dispatch and Telecommunication systems utilising management skills. This category of employee will be required to give advice regarding emergency and nonemergency ambulance care and may be required to be involved in emergency and routine patient transport utilising management skills in addition to emergency and basic life support skills. Provided that such an officer shall be required to undertake and successfully complete further instruction/in service courses and certification examinations as required by the Service every 3 years. (B) Duty Control Centre Officer (non-Paramedic): means an employee who has successfully completed the requirements for and is appointed to a Duty Control Centre Officer position identified as such by the Service. This category of employee will be involved in the dispatch and movement of emergency and non-emergency ambulances utilising the Service's Computer Aided Dispatch and Telecommunication systems utilising management skills. Provided that such an officer shall be required to undertake and successfully complete further instruction/in service courses and certification examinations as required by the Service every 3 years." (Emphasis in original)
The second substantive variation sought in the HSU Application is that employees in the Duty Control Centre Officer (Paramedic), Senior Control Centre Officer ("SCCO") and Aeromedical Control Centre Officer ("ACCO") classifications in the Paramedics Award be paid the "Control Centre Allowance" currently payable to certain classifications under the Award. In the alternative, the HSU asks that the Commission interpret the relevant clause of the Paramedics Award "to have the effect of entitling paramedic qualified Duty Control Centre Officers, Senior Control Centre Officers, and Aeromedical Control Centre Officers to the Control Centre Allowance as set out in Table 2B of Section 8 Monetary Rates".
The third substantive variation sought by the HSU Application is provision for a shift worker appointed to a DCCO position to be entitled to six weeks annual leave with eight weeks pay. The effect of this amendment would be that a DCCO - Non Paramedic would be eligible for the superior annual leave entitlements provided for under cl 29(a)(iv) of the Award for shift worker Paramedics.
The fourth substantive variation sought by the HSU Application is the creation of a new position to be titled "Control Centre Clinical Support Officer", which would be defined as follows: "Control Centre Clinical Support Officer: means an employee who has successfully completed the requirements as set out for a Paramedic and who has successfully completed the requirements for and is appointed to a Control Centre Clinical Support Officer position. This employee is to provide clinical support to other employees employed in Control Centres. Shall be entitled to remuneration and entitlements consistent with Control Centre Officer." (Sic, emphasis in original)
Coupled with this variation the HSU Application seeks a recommendation by the Commission that the Ministry take reasonable steps to fill the Control Centre Clinical Support Officer position "so as to provide a clinical presence in control centres at all times".

[5]

The Ministry

The Ministry read: 1. a statement by Lawrie Whitehurst, the Manager HR Services, People and Culture at NSW Ambulance, dated 30 November 2018; 2. two statements by Anthony Gately, the Director Control Centres, NSW Ambulance, dated 30 November 2018 and 16 August 2019 respectively; and 3. a statement by Lauren Ariansen, the Acting Chief Superintendent, Deputy Director Western Control Centre, Clinical Operations at NSW Ambulance, dated 30 November 2018.
The structure of roles in Control Centres is described in Ms Whitehurst's statement, and in Mr Gately's first statement. In summary: 1. "Communications Assistants" are employed under the classification of "Operations Centre Communications Assistant" in the Clerical Award. They are commonly referred to as "Call Takers" and they are employed to take "000" calls from the public and record relevant information for requests for ambulance services. This information is entered into the "Computer Aided Dispatch" ("CAD") system. Call Takers are non-paramedic positions, although this does not preclude a paramedic occupying the role; 2. in the Sydney Control Centre the Ministry employs people with the title "Team Leader Communications" under the "Operations Centre Senior Supervisors" classification in the Clerical Award. They are commonly referred to as "Call Taker Team Leaders" and their role is to lead and engage a team of Call Takers. These are also non-paramedic positions; 3. "Ambulance Control Centre Officers" are employed under the Paramedics Award. Their function is to deploy ambulance resources within a defined geographical area, based on the information collated by Call Takers, using the CAD system and a radio communication system. They also monitor the status of ambulance resources and follow-up with vehicles when there is a delay in responding to an incident. There are three relevant classifications under the Paramedics Award - Ambulance Control Centre Officer - Non-Paramedic, Ambulance Control Centre Officer - Paramedic and Ambulance Control Centre Officer - Paramedic Specialist. The Paramedic Specialist position commands a higher wage than the Paramedic position, which in turn commands a higher wage than the Non-Paramedic position. All these roles are commonly referred to within NSW Ambulance as "Dispatcher"; 4. "Duty Control Centre Officers" are employed in that classification under the Paramedics Award. The purpose of this position is to supervise the dispatching function of reception, documentation and progress of emergency telephone calls for NSW Ambulance services. They supervise the coordination and allocation of ambulance services within the defined geographic area managed by the Control Centre. Under the terms of the Paramedics Award, DCCOs must have successfully completed the requirements set out in the Paramedic classification in the award; and 5. "Senior Control Centre Officers" are employed in that classification under the Paramedics Award. The purpose of this position is to undertake overall supervision of Control Centre employees and functions. The Paramedics Award requires the employee to have successfully completed the requirements set out in the Paramedic classification in the award.
Mr Gately deposed in his first statement that a SCCO is currently rostered in all Control Centres at all times, with the exception of the Dubbo Control Centre where a SCCO is rostered on duty during the day and is "on-call" overnight.
Paramedic and paramedic specialist Control Centre Officers can be deployed to on-road clinical duties if required.
Ms Whitehurst stated that from approximately March 2011 NSW Ambulance began temporarily appointing employees without paramedic qualifications to vacant DOCO roles. This was in part the result of low levels of interest being expressed by paramedics to work in this position. At that time non-paramedic DOCOs acting in the (paramedic) DOCO classification were paid at the salary point of a Senior Administrative Officer (Grade 2, Year 1) from the Clerical Award, which was almost the same as the rate for the DOCO position under the Operational Ambulance Officers Award. It was anticipated that wage increases under the Operational Ambulance Officers Award would exceed those under the Clerical Award with the result that over time paramedic DOCOs would receive a higher rate of pay recognising the difference in the work value based on the clinical qualifications and the ability to deploy them on-road if required.
Ms Whitehurst further deposed that since 6 February 2016 non-paramedic DCCOs have been remunerated in accordance with the DOCO rate of pay in Operational Ambulance Officers Award and, subsequently, the DCCO rate in the Paramedics Award. This came about due to the transition of NSW Ambulance payroll to NSW Health's centralised system. That system can only generate a pay file for a DCCO position at the rate of pay contained in the Paramedics Award (and previously the Operational Ambulance Officers Award), and cannot be overwritten to provide a rate of pay derived from the Clerical Award.
Ms Whitehurst stated that since 2001 NSW Ambulance has consistently relied upon non-paramedic Control Centre Officers to "act up" and temporarily fill DOCO and DCCO vacancies. As at November 2018 26 of 39 (or 66 per cent) of DOCO positions were vacant. Of these 16, or 61 per cent, were being filled by non-paramedic employees.
Ms Ariansen worked as a non-paramedic DOCO from November 2012 until October 2016. She deposed that it did not often occur that a DCCO was required to evaluate information of a clinical nature. When it did occur, clinical advice could be sought from a number of sources internal and external to the Control Centre. Internal resources include paramedic Dispatchers, paramedic DCCOs and SCCOs. External resources included Aeromedical Retrieval Consultants and Clinical Nurse Consultants from the Aeromedical Retrieval Unit, other Control Centres and on-road paramedics being dispatched to the job.
Mr Gately deposed that he had not been made aware of any incident involving an adverse event as a result of a clinical decision having been made by a non-paramedic DCCO. He stated that the work undertaken in a Control Centre principally involves receiving and allocating work using a series of pre-defined algorithms. To that extent, allocating work is generally less about exercising clinical judgement, and more about gathering, recording and interpreting appropriate information.
Mr Gately deposed that NSW Ambulance uses ProQA, an emergency medical dispatcher software package, to assist in the emergency call taking and ambulance dispatch functions. When a Call Taker answers a phone call, they ask the caller pre-determined questions and enter certain information into the computer database. Based on information provided by the caller, a Medical Priority Dispatch System protocol is selected that prompts the Call Taker to ask a further series of questions. The database uses a set of algorithms to assign the relevant job into priority levels. That is, the ProQA system automatically assigns a dispatch level based on answers provided by the caller to questions generated by the ProQA system. The ProQA system is also designed to limit errors associated with judgement by using evidence-based algorithms.
Mr Gately stated that Dispatchers have access to real-time data entered by Call Takers. The information obtained from the Call Taker, data provided from the computer algorithm and the Dispatcher's own experience usually provide sufficient information to allocate and assign resources.
Mr Gately and Ms Ariansen each deposed that in their opinion Control Centre experience is more relevant to the DCCO position than on-road clinical experience. Mr Gately acknowledged that clinical experience and knowledge may at times be useful.
Ms Whitehurst identified the following "operational or HR problems" should non-paramedic Control Centre Officers not be allowed to be appointed as a DCCO: 1. the talent pool from paramedic Control Centre Officers is not large enough to sustain the demand for filling DCCO vacancies. There have been occasions on which NSW Ambulance has struggled to permanently fill vacant DCCO positions from the paramedic cohort; and 2. having the paramedic qualification restriction in place for a DCCO does not allow non-paramedic Control Centre Officers to be considered for a DCCO position on merit. With non-paramedic employees having successfully acted in DCCO vacancies since early 2011 it is unfair that they are not able to apply for, and be considered on merit to be appointed to, those positions permanently.
Mr Gately stated that by temporarily appointing non-paramedic Dispatchers to vacant DCCO roles, resources are being taken away from the dispatch area of the Control Centre which results in increased workloads for the remaining staff. Allowing non-paramedic DOCOs to be permanently appointed rather than continuing with acting arrangements would provide stability to the management and operations of the wider Control Centre team.
In its written submissions the Ministry provided the following reasons for the creation of a non-paramedic DCCO position: 1. the variation would regularise and enshrine existing practices, and provide certainty and ensure consistency for existing employees; 2. the variation would ensure that the positions are open to a wider pool of applicants, with relevant skills, such that vacant positions may be filled; 3. the variation would allow persons without paramedic qualifications to apply for and fill these positions permanently; 4. the capacity to employ persons currently "acting up" in the DCCO positions would provide job security for those employees and reduce current flow-on effects in lower level positions; 5. creating a non-paramedic DCCO classification would enable non-paramedics (including those who have acted in the position for significant periods) to apply for the DCCO position and be considered on merit for permanent appointment to that position; and 6. it is not uncommon for control room supervisors or managers to be non-paramedics in other Australian jurisdictions.
As to the appropriate rate of pay for the proposed non-paramedic DCCO classification, the Ministry submitted as follows: "20. The Applicant submits that the pay rate of $1809.49 for a Duty Control Centre Officer - Non Paramedic is an appropriate rate of pay to be inserted into Table 1B of Section 8 Monetary rates [from] the Award, and further that it is appropriate to apply the other non-paramedic conditions from that award to such classification. … 22. This rate of pay is currently equivalent to the Senior Administrative Officer, Grade 2, Year 1 rate of pay contained in the Ambulance Service of New South Wales Administrative and Clerical Employees (State) Award 2018. …This is the highest classification contained in that Award. This rate of pay is also within the vicinity of the salary range of the Health Manager, Level 1 classification contained in the Health Managers (State) Award 2018… 23. For the majority of the period in which non paramedics have been acting in the DCCO position, they have been paid at the rate equivalent to the Senior Administrative Officer, Grade 2, Year 1 rate of pay. 24. Since 2016, Non Paramedic DCCOs have been receiving the full paramedic DCCO rate of pay, principally due to a system restriction caused by the rollout of a new state wide health payroll system (given that the classification did not exist for Non-Paramedic DCCO in the award). The Applicant submits that it is appropriate to set a rate of pay based on setting fair and reasonable wage (ie wage setting principles considering what should be paid for the work performed) rather than set a rate of pay based on what some officers may have been paid in the past due to technical restrictions. 25. The Applicant submits that a higher rate of pay is prescribed for Paramedics in the award for all other classifications that may be performed by either a paramedic or a non-paramedic. The rate proposed by the Applicant in the current circumstance represents the lowest disparity of pay between a paramedic and a non-paramedic performing mostly the same functions. 26. Given the above, it is appropriate that a Non Paramedic DCCO also has a differentiated rate of pay than that of a Paramedic DCCO. The difference in the rate of pay is to recognise the additional skills and experience that a Paramedic has (eg most often a tertiary qualification such as a degree), as well is recognising that a Paramedic can be required or tasked at any time to perform on road duties." (Emphasis in original, footnotes omitted)

[6]

The HSU

The HSU read the following statements: 1. Christine Bond, who is employed with NSW Ambulance as an Acting DCCO, dated 25 June 2019; 2. Cameron Bruce, who is employed with NSW Ambulance and has worked as an Acting DCCO, dated 26 June 2019; 3. Mark Dunworth, who is employed with NSW Ambulance as an Acting DCCO, dated 25 June 2019; 4. Jon Mackenzie, who is employed with NSW Ambulance as a SCCO, dated 26 June 2019; and 5. Ian Quigg, who is employed with NSW Ambulance and has worked as an Acting DCCO and Dispatcher, dated 24 June 2019.
Christine Bond has been an acting DCCO since 2012. In her statement she provided a description of her duties and responsibilities. She deposed that there is no difference in the duties performed by a non-clinical DCCO as opposed to a clinical DCCO. As the work is identical, in her opinion "we should have the same worth as a clinical employee of the NSW Ambulance".
Cameron Bruce also described the duties performed by DCCOs. He stated that as a non-paramedic DCCO his duties and work are the same as a clinical qualified officer undertaking the duties. The "core workload and responsibility are identical". However, whilst it is not necessary to be a clinician to be a manager and to undertake the workload of a DCCO, it is valuable to have a clinician either directly in the room or easily contactable to allow clinical questions to be answered in a timely manner.
The evidence of Mark Dunworth was to a similar effect to that of Mr Bruce.
Jon Mackenzie described his duties as a SCCO. He explained in particular the circumstances in which as a SCCO he is required to exercise his clinical knowledge and experience. He provided examples of situations which he said demonstrated the importance of having clinical presence in control rooms. He stated as follows: "10. Clinicians generally are expected to provide their expertise in the giving of advice to colleagues (both clinically trained and not) in relevant matters that arise throughout a control centre shift. I regularly provide clinical advice and assistance, or otherwise apply my clinical training to the general advice I am providing. In particular I am often required to assist Call Takers with clinical questions or issues, specifically (but not limited to) the administration of medications (Aspirin, [EpiPen], Ventolin) to Triple Zero callers."
Iain Quigg has worked at both metropolitan and regional Control Centres. In his statement he described his understanding of the duties performed by Dispatchers and DCCOs. He outlined the training and certification requirements for clinical staff at NSW Ambulance. He stated that the training and experience of clinicians or paramedics within Control Centres is utilised on a daily basis. The ProQA system used by NSW Ambulance to triage emergency calls is a "one size fits all, international software program" that is reliant on information provided by the caller. An experienced paramedic is able to identify when the patient's situation does not match the response being generated by the system.
Mr Quigg stated that non-clinical employees are required to follow the endorsed script as provided in their training with little room to deviation. He provided a number of examples of situations which in his view called for "deviation from the script" taking into account Australian conditions, the circumstances of the particular case and the clinical experience and knowledge of the staff member.
Mr Quigg responded to the Ministry's evidence as to the various avenues by which a non-clinical DCCO could obtain clinical advice if required. It is sufficient to say that Mr Quigg considered that the "only real effective measure" is to have face-to-face clinical advice available "in the room". A SCCO may not be available in all instances and external assistance may not always be available or appropriate. Mr Quigg concluded that "to remove the requirement for a clinician to be present in a Control Centre is a backwards step".
Mr Quigg's statement was admitted into evidence over the objections of the Ministry. I have had regard to those objections when considering the weight to be afforded to this evidence.
The HSU supported the creation of a non-paramedic DCCO classification. The HSU Application called for a non-paramedic DCCO "stream". However, the HSU contended that the base wage for both the clinical and non-clinical DCCOs should remain the same. Its submissions stated as follows: "8. In structuring a classification to deal with the issue between the parties, it is not sufficient to merely remove the requirement to be a paramedic. A control centre is an environment where the clinical skills of a paramedic may be activated and required. It is important that the classification reflects that. 9. The employees currently in the role are performing the core part of the role and have been doing so effectively and for an extended period of time. The employer is by its conduct accepting of these people performing the duties, it should not be entitled to now seek a discount on their labour. 10. The Commission having had regard to evidence of that work will need to accept that the role of [DCCO] as it has existed over successive operational awards has been performed by the same non-paramedic employees ably and effectively."
The HSU further contended that wage parity between the clinical and non-clinical roles should be maintained as the present regulatory framework for wages in NSW had suppressed wage growth under the Operational Ambulance Officers Award; the static nature of that award had meant that the employees had not been subject to any work value assessment since 2010; the effect of the Ministry Application would be to effect a wage cut which would be "highly irregular"; and, a claim for reduced wages is so unusual that it does not have established principles under the wage fixation principles.
While the HSU maintained that there should be base wage parity between the clinical and non-clinical DCCO roles, it argued that paramedic DCCOs (as well as SCCOs and ACCOs) should be entitled to be paid the Control Centre Allowance otherwise payable under the Paramedics Award. This was said to reflect, amongst other things, the "undeniable utility in the work of paramedics in control centres", and the potential for an increase in the pressure on existing clinically trained staff to provide expert advice and assistance if non-clinical DCCOs are introduced. The HSU's submissions stated: "14. While the core of the [DCCO] role is, demonstrably, able to be performed by a paramedic or a non-paramedic, the evidence discloses an undeniable utility in the work of paramedics in control centres. 15. The Operations Centre allowance already applies to Operations Centre Officers, commonly called dispatchers. Under existing provisions of the award paramedics working as dispatchers are entitled to the Operations Centre Allowance. The allowance compensates those employees for their special skills and the value they add to the control centres. It is appropriate, in the present circumstances, that this compensation and recognition be passed on to the other classifications. 16. The introduction of non-clinical DOCOs increases the pressure on existing clinically trained staff to provide expert advice and assistance. That demand has a passive component and an active component. (i) Passively, the clinician must hold themselves ready to provide their skills, they must maintain their professional development and skills. (ii) Actively, the clinician must from time to time in-fact intervene or provide advice or other intervention based on their clinical skill and experience. They are accountable for the quality and consequence of their clinical activity. 17. Paramedics now being a registered and regulated profession under the Health Practitioner Regulations National Law No 86a (NSW). This comes with obligations that the professional is obliged to act consistently with. These obligations cannot be switched on or off from time to time. 18. The reduction in overall clinical presence in control centre[s] has increased the burden on those paramedics working in control centres."
The next claim by the HSU concerned what it described as "annual leave parity". Under the Paramedics Award, shift worker Paramedics are entitled to six weeks annual leave each year with eight weeks' pay. The HSU contended that there was no difference in the duties performed by, or in the stress and pressure experienced by, employees working as DCCOs, whether they are paramedic or non-paramedic. It could not be sustained that non-paramedic DCCOs "are less meritorious recipients of [the annual leave] provisions than the paramedic qualified colleague sitting beside them".
The HSU contended as follows: "24. This claim is restricted to the non-paramedic DOCOs. The [rationale] for the claim would apply equally to any non-paramedic employee who works in a public facing or high intensity positions dealing with these operational matters. The claim is only limited to DOCOs because of limitations under arising under section 146C and the associated regulation. There is, to put it plainly, an opportunity to deal with a long standing unfairness for a portion of the workforce. That opportunity should be taken. 25. The approach taken in the Paramedic Leave Case should be guidance for the Commission in these proceedings. That case contains a number of elements that can be directly applied to these proceedings, including; (i) Description of the stress factors intrinsic to front line work in ambulance, (ii) Expert evidence and consideration of the impact of an additional week leave, (iii) History of the provisions for annual leave in the Award. 26. The Commission, from the evidence filed in these proceedings, will conclude that the stress and pressure on all employees in their work in control centres is substantially the same as those experienced by non-paramedic control centre employees."
The final element of the HSU Application is to create a new classification of "Control Centre Clinical Support Officer" who would be qualified as a paramedic and who would provide clinical support to other employees employed in Control Centres. The HSU submitted as follows: "27. The removal of the requirement that a DOCO must be a qualified paramedic removes a layer of clinical oversight, and support. It creates a situation where there may be [no] on-site clinical presence in a control room. It is accepted that at a practical level this requirement is not functioning, those positions having been backfilled by non-paramedics. Moving forward, an alternative is necessary. 28. The public interest is best served with a clinical oversight present and available in a control centre. …"

[7]

The APA

The APA read statements of: 1. Jason Tanti, who is employed with NSW Ambulance as a Paramedic Station Officer, dated 25 June 2019; and 2. Peter Richards, who is employed with NSW Ambulance as a Paramedic, dated 25 June 2019.
The statements of each of Mr Tanti and Mr Richards were admitted into evidence over the objections of the Ministry. I have had regard to those objections when considering the weight to be afforded to this evidence.
Mr Richards was employed as a Dispatcher at the Sydney Control Centre from 2004 until 2010. Mr Tanti has worked as an on-road paramedic since 2003, although he has spent "periods of time working in the Sydney Control Centre as a dispatcher". The statements of Mr Richards and Mr Tanti were in largely similar terms. They each deposed that: 1. they did not believe it was possible for a non-paramedic DCCO to provide the necessary level of care without the clinical knowledge gained by working as an on-road paramedic; 2. clinical knowledge and decision-making play a vital role in ensuring the most urgent and life-threatening calls made to Control Centres receive an ambulance response most quickly. Clinical knowledge plays a vital role because it is common for ProQA to miscategorise the urgency of jobs. They have seen more urgent jobs coded with a lower code than less urgent jobs, and their clinical expertise allow them to allocate resources to the most urgent jobs first despite the fact that ProQA would have instructed them differently; 3. DCCOs have historically been available to provide clinical advice to non-clinical Dispatchers. This is to enable Dispatchers to make the best possible decisions regarding allocation of ambulance resources, which has ensured the highest level of care possible for the public; 4. they are concerned that the introduction of a non-paramedic DCCO role will mean that this clinical knowledge and decision-making will no longer be available in the Control Centres; 5. SCCOs are generally too busy to provide clinical supervision; and 6. if the non-paramedic DCCO position is introduced the Ministry should introduce a designated clinical position to provide advice to Dispatchers. A failure to do so will, in their opinion, have a negative impact on patient outcomes.
The position of the APA was summarised in its written submissions as follows: "5. The evidence will show that the proposed variation will have a significant impact upon other employees of the Ambulance Service. The introduction of the DOCO non paramedic role will mean that the clinical knowledge and decision making skills currently held by DOCOs will no longer be available to the dispatchers. The APA submits that should the Commission should not make a variation permitting such a change. Should the Commission make such a variation, the Commission could be remedy the change to some extent by introducing a designated clinical position to provide advice to dispatchers." (Sic)

[8]

The Ministry in response

In his statement of 16 August 2019 Mr Gately responded to some of the evidence which had been adduced by the APA and the HSU. His statement included the following: "15. The ProQA system is also designed to limit air is associated with judgement by using evidence-based algorithms. For example, a clinical person may have clinical expertise, but they may not have experience or knowledge of dispatch functions. As I described in…my previous statement, the role of a DCCO is very different from an 'on the ground' clinical role. The role of the DCCO (clinical or non-clinical) is not to diagnose or treat. The primary function of a DCCO is to manage competing demands for ambulance resources by synthesising data about available resources, locations and urgency levels within a very short period of time. Over-reliance on case-by-case exercises of clinical judgement can detract from this function. … 16. For these reasons, in my experience, it is generally preferable for staff to follow the output of the ProQA system rather than make continued judgement calls, although staff are encouraged to raise any concerns they have with the ProQA output raced on their training and experience (clinical or otherwise). In my experience, reprioritising does not occur very often in practice, and when reprioritising does occur, it is more commonly as a result of additional information becoming available (for example, more information about a patient's condition or surroundings) rather than because of the ProQA system output. 17. NSW Ambulance maintains a system called Root Cause Analysis ('RCA') to record and evaluate reported adverse incidents, for example an adverse consequence for a patient's condition related to the response time of an ambulance. I am not aware of any instance in which RCA has identified an adverse incident as having occurred as a result of the ProQA system incorrectly categorising a job, or as a result of the actions of a non-clinical DCCO… … 24. Clinical support in the Sydney Control Room (which handles the most calls, and significantly more than other Control Rooms) can almost always (and generally always) be obtained face to face from any qualified paramedic in the Control Room at the time. This is also generally the case in other Control Rooms. This clinical support might include from a paramedic call taker, paramedic dispatcher, another paramedic DCCO, a SCCO, an Assistant Control Centre Manager, or a Communications Educator. There may also be other paramedic staff in the Control Room from time to time. The only examples of which I am aware in which there would be no face to face support in a Control Room is on night shift at the Dubbo Control Room, or if a rostered SCCO has called in sick and there is nobody else who can be called in to cover them (which occurs very rarely). 25. If, in an exceptional circumstance, there was no available paramedic in the Control Room at the relevant time, other clinical support options available to a non-paramedic DCCO would include: (a) contacting the SCCO or any other paramedic on duty at another Control Room; (b) contacting the on-call Duty Operations Manager for the relevant area, who is also required to be a paramedic. There is a Duty Operations Manager on call at all times; (c) contacting the Aeromedical Retrieval Unit, which operates an advisory line and is staffed 24/7 with doctors and nurses providing advice on critically ill patients; or (d) speaking with an on-road paramedic they propose to allocate the job to, or any other paramedics rostered on who are not currently allocated an urgent call. 26. ... I cannot imagine any scenario in which no clinical support option would be available in the time required and I am not aware of any circumstance in which this has ever occurred in any NSW Control Room, including since non-paramedic staff began filling DCCO positions."

[9]

Response to HSU Application

The Ministry observed that the HSU's proposed definition for the DCCO position was similar to that of the Ministry, with the exception that the HSU had proposed removing from the role description of the DCCO - Non-Paramedic the statement that the employee "will be required to give advice regarding emergency and non-emergency ambulance care and may be required to be involved in emergency and routine patient transport utilising management skills in addition to emergency and basic life support skills".
The Ministry submitted that although non-paramedic DCCOs do not give clinical advice or carry out patient transports, it may be necessary for them to give non-clinical advice regarding emergency and non-emergency ambulance care, for example in relation to the allocation of ambulance resources. It may also be necessary for DCCOs to be involved in nonclinical inpatient transport, including by using management skills to coordinate patient transport, and in the use of emergency and basic life support skills, including by applying the outputs of ProQA to question and support 000 callers. Both paramedic and non-paramedic DCCOs must be able to perform these functions as part of their role of overseeing and supervising the activities of Call Takers and Dispatchers.
As to the HSU's contention that DCCO - Paramedic and DCCO - Non-Paramedic employees be paid the same base wage rate, the Ministry maintained that non-paramedic DCCOs should be paid a base wage rate slightly lower than paramedic DCCOs. A somewhat higher wage rate for paramedic DOCOs recognises the value of their additional training and skills and provides some compensation for the fact that they can be called upon to perform on-road patient transport and face-to-face clinical work if and when required.
On the HSU's application that paramedic DCCOs, SCCOs and ACCOs be paid the Control Centre Allowance, the Ministry contended that the relevant clause cannot be interpreted to extend the payment of the allowance to paramedic Control Centre staff, for two reasons: 1. the Control Centre Allowance clause specifies a closed list of employee classifications entitled to the allowance; and 2. the evident purpose of the Control Centre Allowance clause is to provide additional compensation to employees in the classifications specified in the clause for when those employees are required to undertake Control Centre activities instead of or in addition to activities within their classification, for example because they are required to act in or they are appointed to a Control Centre position.
The Ministry further contended that the Commission should not accede to the alternative HSU claim, namely the insertion of a clause requiring the payment of the Control Centre Allowance to paramedic DCCOs, SCCOs and ACCOs. This was said to be for three reasons: 1. the HSU's claim is a claim for an extra allowance with respect to the employees covered by the Paramedics Award that would take effect prior to 30 June 2020, and such extra claims are not permitted pursuant to cl 46 of the Award; 2. requiring paramedic Control Centre staff to be paid the Control Centre Allowance weekly would increase employee-related costs by more than 2.5 per cent without any corresponding employee-related cost saving. Such a variation is not permitted pursuant to s 146C(1) of the Act together with cl 6(1)(a) and (b) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) ("Regulation"); and 3. in any event, there is no substantial reason for paramedic Control Centre staff to be given an additional allowance. If the Commission accepts the Ministry's proposed DCCO classification, paramedic DCCOs will receive a higher wage rate than their non-paramedic colleagues in recognition of their additional skills and responsibilities. There is no evidence that the workloads of paramedic Control Centre staff increased since non-paramedic employees have been acting in DCCO positions.
The Ministry contended that the Commission should not amend the Paramedics Award to entitle DCCOs to enhanced annual leave entitlements. The Ministry argued that there is no substantial reason for the amendment and it is not in the public interest. Clause 29 of the Award operates on the basis that being required to meet the requirements of the Paramedic position is the basis for an employee to be entitled to additional leave and pay. This can be explained by the fact that employees who meet the requirements of the Paramedic position may be called at any time to perform patient transport or patient-facing paramedic work. The increased leave entitlements of paramedic staff recognise the particular stress and trauma that paramedic staff face (or may be called upon at any time to face) when they are required to deal with patients face-to-face. That stress and trauma is different in kind and severity from the stress and trauma faced by non-paramedic DCCOs located in Control Centres, who are never and will never be called upon to face patients in person.
The Ministry opposed the proposed introduction of the Control Centre Clinical Support Officer position. It is not a common occurrence for Control Centre staff to require clinical support because the ProQA system is designed to facilitate efficient dispatch decisions and provide scripts to speak with callers without clinical input and to minimise the need for clinical judgment, and there is no evidence of any adverse patient outcome resulting from the operation of the ProQA system. When clinical support is required, there are several options available (including in most circumstances, as face to face in the Control Centre). It is preferable for any clinical support required by Control Centre staff to be provided by someone working and having day-to-day experience within a dispatch environment rather than someone occupying a separate, purely clinical role.

[11]

Relevant legal principles

The Paramedics Award was made on 6 August 2019. Pursuant to cl 47(c) of the Paramedics Award it takes effect from 1 July 2019 and will remain in force for one year.
The Commission's power to vary awards is contained in s 17(3) of the Act. During the nominal term of an award, and in the absence the consent of all the parties to the making of the original award, the Commission may only vary the award "if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so": s 17(3)(c).
In Rail, Tram and Bus Union of New South Wales & ors v Secretary for Transport [2017] NSWIRComm 1032 Commissioner Newall made the following observations concerning the Commission's jurisdiction under s 17(3): "10. It is apparent that the exercise of the power to vary an award is discretionary, but that it is a fettered discretion; where the award is within its nominal term, as in the first three awards with respect to which application is made, the Commission 'may' vary an award if it is not contrary to the public interest to do so, and if there is a substantial reason to do so. In relation to awards outside their nominal term, the discretion is fettered to the extent that the Commission may vary an award if it is not contrary to the public interest to do so. … 29. …The two elements contained within subs.17(3)(c) are conjunctive; that is, both issues must be addressed in a way that permits variation. There must be 'a substantial reason' to vary the award and, even if there is such a reason, it must also not be contrary to the public interest to do so."
Public interest is not defined in the Act. In O'Sullivan v Farrer (1989) 168 CLR 210 at 216 the majority of the High Court held as follows: "Indeed, the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable...given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view': Water Conservation and Irrigation Commission (NSW) v Browning, per Dixon J. at p 505." (Footnote omitted)
This passage from O'Sullivan has been cited with approval by the Commission in a number of cases: Ku Children's Services (Other Than Teachers) (State) Award 1998 [2000] NSWIRComm 94 at [255]; Elura Mine Enterprise (Consent) Award 2001 [2003] NSWIRComm 218 at [140]; Kellogg (Aust) Pty Ltd v National Union of Workers, New South Wales [2003] NSWIRComm 167 at [64].

[12]

Non-paramedic DCCOs

I am satisfied on the evidence that the Ministry has established that there is a substantial reason to vary the Paramedics Award to allow for employees without paramedic qualifications to be appointed to a DCCO position. The Ministry submitted that the Ministry Application "regularises and enshrines in the Award an existing practice of employing people in this classification". I accept that this is the case.
The evidence clearly demonstrates that since prior to 2011 NSW Ambulance has been unable to fill all DCCO positions with employees with paramedic qualifications due to a lack of interest from the paramedic cohort. Non-paramedic employees have been "acting" as DCCOs, in some cases for several years. Ms Ariansen deposed that at the Western Control Centre non-paramedic DCCOs have been employed for between two and seven years. I accept the Ministry's submissions that it is unfair that these employees are unable to apply for permanent appointment to these positions. I also accept the (uncontroverted) evidence of Mr Gately that having employees appointed to "acting" positions on an ongoing basis has implications for the stability and operations of the wider Control Centre team.
The primary ground of opposition to the creation of a non-paramedic DCCO role is the potential for it to reduce the clinical expertise available in Control Centres, which in turn might detrimentally affect patient welfare. However, the evidence does not bear these concerns out.
There is no evidence that the appointment of non-paramedic employees to DCCO positions has resulted in a reduction in clinical expertise being available, much less that this has resulted in adverse patient outcomes. In its submissions the HSU acknowledged that the employees have been performing in the role of DCCO "ably and effectively".
Mr Quigg deposed at some length to instances in which clinical intervention was required in a Control Centre. In each case, the necessary support was available and there was no adverse implication for patient welfare or safety. It is moot to speculate as to what might have happened had that support not been available.
Mr Mackenzie gave evidence that he regularly provides clinical advice in the course of his duties. This calls into question the opinions expressed by Messrs Tanti and Richards in their statements to the effect that SCCOs "are extremely busy and rarely have time to provide clinical supervision".
Ms Ariansen deposed under cross-examination that there had never been a situation where she had been unable to obtain necessary clinical advice.
The Ministry Application does not seek to preclude the appointment of paramedics to DCCO positions. Rather, it seeks to widen the pool of potential candidates for those positions, due to historical difficulties in filling vacancies from the paramedic cohort. There are currently paramedics employed as DCCOs and there is no evidence to suggest that they will not continue to be employed, and appointed. The evidence shows that non-paramedic DCCOs have and would continue to have clinical assistance available from a range of internal and external sources.
In light of all of the evidence, there is no basis to suggest that the introduction of non-paramedic DCCOs would be contrary to the public interest.
In terms of the classification or definition of the DCCO position, HSU Application proposes separate definitions for paramedic and non-paramedic DCCOs. I observe that in light of the evidence of the HSU's witnesses that there is practically no difference in the duties performed by paramedic and non-paramedic DCCOs it is difficult to see the basis on which the HSU contends that the roles should be differently defined.
Having regard to all of the evidence and submissions, I consider that the classification proposed by the Ministry is to be preferred over that contained in the HSU Application. I accept that a non-paramedic DCCO might be required to provide non-clinical advice from time to time and so it would be inappropriate to fashion a definition which did not allow for that possibility.

[13]

Rate of pay

I turn now to the rate of pay which the Ministry proposed would be paid to non-paramedic DCCOs. It is convenient at the same time to deal with that aspect of the HSU Application.
The rate proposed by the Ministry was set by reference to the salary point of a Senior Administrative Officer, Grade 2, Year 1 from the Clerical Award, which was the reference point adopted in March 2011. The result is that DCCOs without paramedic qualifications would be paid at a slightly lower rate than those with such qualifications.
It was common ground between the HSU and the Ministry that DCCOs holding paramedic qualifications deserve to be remunerated at a higher rate than those without them. This recognises not only the clinical skills and expertise that paramedic DCCOs bring to the Control Centres, but also allows for the fact that they may be required to perform on-road paramedic duties.
The fundamental point of difference between the Ministry and the HSU was that the HSU contended that the base rate of pay for both paramedic and non-paramedic DCCOs should be the same, with paramedics being remunerated at a higher level through the payment of the Control Centre Allowance. It took the view that the effect of the Ministry Application would be to effect a reduction in pay for the existing non-paramedic DCCOs.
Ms Whitehurst's evidence disclosed that it was always intended by the Ministry to pay non-paramedic DCCOs at a rate calculated by reference to the Clerical Award. It was understood that rates of pay under the Operational Ambulance Officers Award would rise at a greater rate than those under the Clerical Award, with the practical effect that over time paramedic DCCOs would be paid at a slightly higher rate than their non-paramedic counterparts. It was only through the introduction of a new payroll system that it became necessary to revert to payment in accordance with the Operational Ambulance Officers Award and, more recently, the Paramedics Award. That system did not allow DCCOs to be paid by reference to a different award.
In this context, the fact that non-paramedic employees acting as DCCOs are currently being paid in accordance with the Paramedics Award seems more an accident of history as opposed to being the result of any analysis as to the work value of non-paramedic DCCOs. It follows that the position being taken by the Ministry is not to be regarded as a deliberate decision to diminish the value of the work performed by non-paramedic DCCOs. I consider that it is incorrect for the HSU to characterise the Ministry Application as a request for a "wage cut".
I accept the following oral submissions of Ms Raper: [1] "Firstly, in relation to the submission that the Commission is being asked to reduce the rate of pay of non-paramedic DOCOs. That's not a correct characterisation of what is proposed by the Ministry's application. What the Ministry's application is to set the appropriate rate for the first time to apply to this category or classification of employees where there is no current entitlement and has been no past work value analysis or otherwise with respect to the position. Rather what's happened is that employees who don't fall within the current categories received a benefit in circumstances where this litigation started two years ago and have obtained a benefit over that period waiting for the Commission's determination of this issue."
In Re Crown Employees (Correctional Officers, Department of Corrective Services) Award 2007 for Kempsey, Dillwynia and Wellington Correctional Centres (No 2) [2015] NSWIRComm 38 ("Correctional Officers") Kite AJ, as the Chief Commissioner then was, held as follows: "75. In City of Sydney Wages/Salary Award 2014 [2014] NSWIRComm 49, the Full Bench outlined at [19]-[22] the requirements of s 10 of the IR Act in considering what constitutes 'fair and reasonable' for the purposes of the Act: '[19] The terms "fair" and "reasonable" in s 10 of the Act import a requirement that the conditions of employment set represent a proper and proportionate balance between the entitlements afforded employees and the interests of those employing them. [20] Consideration of what is fair and reasonable for an employee will necessarily involve a consideration of what is fair and reasonable having regard to the nature and circumstances of the employment afforded to the employee by an employer. That inquiry cannot be made in a vacuum. It must also extend to the broader context in which the employment occurs and ultimately, by effect of s 146 of the Act, the state of the economy in New South Wales. [21] The assessment required by s 10 will often involve consideration of collective relations between unions and employers or employer associations and, in appropriate cases, consideration of the history of terms and conditions that the parties chose to apply, formally and informally, to employees who will now be covered by the proposed award. [22] In particular cases, the Commission may be required to take into account not only differences between employers or industries in which employment is undertaken, but relevant differences between employees or classes of employees in a workplace, enterprise, project or industry. What may represent a fair and reasonable condition for one set of employees may not be for another, even where the employees are engaged by the same employer. That particular assessment may depend on the history as well as consideration of the present circumstances of the work to be performed.' 76. The starting point is the presumption that the existing award sets fair and reasonable conditions. The question is whether there is now evidence before the Commission to support a conclusion, on a basis other than equivalence, that in respect of the three subject matters the Island Award does not do so. …"
There is no evidence that since 2011, when non-paramedic DOCOs were first appointed, there has been any change to the workload, duties, responsibilities or stressors of paramedic DOCOs. There is no evidence that they have been called on to provide a greater level of clinical advice and support.
I am not satisfied that the evidence establishes that in relation to wages the Paramedics Award does not set fair and reasonable conditions of employment for paramedic DCCOs. The HSU has not rebutted the presumption described in Correctional Officers.
I observe that the APA made no submissions as to the rates of pay proposed in the Ministry Application.

[14]

Control Centre Allowance

I do not accept the HSU's contention that paramedic DCCOs, SCCOs and ACCOs are presently entitled to payment of the Control Centre Allowance under the terms of the Paramedics Award. I accept the submissions made by the Ministry in this regard. It is not necessary to repeat those submissions.
I am similarly persuaded by the Ministry that the insertion of a clause into the Paramedics Award requiring the payment of the Control Centre Allowance to paramedic DCCOs, SCCOs and ACCOs would be contrary to the no extra claims commitment in cl 46 of the Award and, further, would not be permitted pursuant to s 146C(1) of the Act together with cl 6(1)(a) and (b) of the Regulation. In my Earlier Decision I outlined the principles to apply in respect of the Regulation and no extra claims clauses in awards. I will not traverse the same ground in this decision.
In this regard, the HSU submitted as follows: 31. Orders 2, 3, and 4 have the potential in increase employee related costs. In the context of how these claims have been brought, they must be 'fully funded'. 32. By 'fully funded' we mean that the HSU does rely on the 2.5% employee related cost increase ordinarily applied to wage increases. So the employee related costs associated with these orders must be less than or equal to the employee related costs savings relied on. 33. Order 4 has a zero-sum relationship with employee related costs savings. That is; for every position occupied by a non-paramedic DOCO they are replacing a paramedic DOCO. The paramedic DOCO was entitled to the greater level of annual leave, generating a saving equivalent to one week's annual leave. That saving is an employee related cost saving and is equal to, all things remaining equal, the employee related cost of the claim. 34. The Commission should consider the merits of all HSU claims. Those that incur employee related costs (with the exception of order 4), should be further determined in a manner consistent with the twostage approach established in the Retained Fire Fighters Case." (Footnote omitted)
The reference to the "Retained Fire Fighters Case" was to Re: Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 [2012] NSWIRComm 122. In that case the Full Bench stated that in the event an applicant is successful in satisfying the Commission there should be an increase in remuneration or other condition of employment, in the absence of agreement the applicant will also need to satisfy the Commission the necessary cost savings have been or will be achieved to fully offset the increased employee-related costs. This may require a two-stage approach to the hearing, the first stage involving the merits of the claim under the relevant Principle and the second stage providing the parties with an opportunity to address the question of cost savings.
Once again, the HSU has not rebutted the presumption outlined in Correctional Officers that the Award sets fair and reasonable conditions for DCCOs, SCCOs and ACCOs. The evidence does not demonstrate that by not affording them payment of the Control Centre Allowance, the Paramedics Award does not set fair and reasonable conditions of employment for the relevant employees. As already stated, the effect of the Ministry Application is to regularise the status quo, which was in place for some years prior to the making of the Paramedics Award.
This element of the HSU's claim seems to be directed at ensuring that paramedic DCCOs are remunerated at a higher level than their non-paramedic counterparts. That will be the effect of the Ministry Application, which has been dealt with above.

NSW Ministry of Health v Health Services Union New South Wales and anor

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)

Cited By (3)