Operational Ambulance Officers (State) Award (No 4) [2016] NSWIRComm 2

Industrial Relations Commission (NSW)|2015-02-27|Before: Walton J, Kite AJ

Background

Doctor Manning (Executive Director Health Emergency and Aeromedical Services with the Ambulance Service) explained in his evidence that until about 2008 aeromedical retrieval services had been conducted by non-government organisations. The doctors engaged in the activity were generally employed by the relevant hospital (in Sydney, for example, the St. George Hospital) or the operating organisation, while the paramedics, although attached to a particular aircraft, were employed by the Ambulance Service. Clinical governance was the responsibility of the doctors' employing entity. The result was the Ambulance Service really had no control over the operations; there was no necessary consistency between services; and the paramedics received little or no formal training in aeromedical retrieval.
A project was commenced in 2004 to review the provision of aeromedical retrieval services. As part of the strategy developed following that review it was determined that the Ambulance Service should recruit doctors directly and accordingly take responsibility for clinical governance of the Service. There was then a period of consolidation after which attention was directed to the training needs of paramedics engaged in aeromedical retrieval. Dr Manning said the intention was to improve clinical services by introducing consolidated training and competency requirements. The preparation of a training program for helicopter paramedics was also prompted by risks identified with a "physician-led" model and the inadequacy of training and competency standards for paramedics engaged in retrieval services across the State.
Doctor Habig (Medical Manager of the Greater Sydney Helicopter Emergency Medical Service) by reference to a presentation he had made to the Ambulance Service in or about November 2012, described the situation in this way: When I began my role as the medical manager in about 2010 we knew that there was an issue. There was paramedics who were working for the service, some of them for two decades, who had lots of experience but had not been formally trained in the actual role they were performing. So we were keen to put together a set of training that would achieve the end of a standard set of skills and minimum quality of training that all the paramedics would be exposed to. But once that was put together, several years elapsed where we had not achieved that training. In fact there was a continuing assertion that the paramedics were simply, intensive care paramedics operating within the scope of an ICP. And this talk was in fact given to management of Ambulance in order to put the case strongly that in fact that was not true and that we needed to progress this course, the critical care paramedic course, for patient care and the improvement in the service delivery that we were offering.

The Application

On 19 June 2014, the HSU filed an amended application in Matter No IRC 73 of 2014, seeking to vary the Award in the following terms: 1. Amend Cl. 5(b), Classifications, in Section 1, of the Operational Ambulance Officers (State) award (371 IG 114) as varied, after the words "every three years" in the classification descriptor for a "District Manager" and before the classification descriptor for an "Ambulance Clinical educator" by inserting the following classification for a Critical Care Paramedic (Aeromedical): Critical Care Paramedic means a paramedic who works in a multi disciplined team environment where the paramedic works closely with and assists a doctor in the treatment of critically injured patients. Critical Care Paramedics in a team environment will be required to use pharmacologies such as, but not limited to, suxamethonium, ketamine, thipentone, propofol and rocuronium. Critical Care Paramedics will be required to set up and use medical equipment such as, but not limited to, mechanical ventilators, invasive blood pressure monitoring and central infusions as well as assisting a doctor and undertaking surgical procedures such as, but not limited to, thoracotomy, surgical airways- tracheotomy, thoracostomy and emergency caesarean. 2. Amend Table 1A, Wages, in Section 8. Monetary Rates by including: Critical Care Paramedic Rate from 1.7.2014 (2.5%) p.w Year 1 2018.50 Year 2 2155.50

On 1 July 2015, the HSU filed a separate application (Matter No IRC 451 of 2015) seeking a variation of the Award to insert the same classification and rate of pay from 1 July 2015, with the monetary rate of pay increased by 2.5 per cent to that of the rate claimed in Matter No IRC 73 of 2014, which read: 2. Amend Table 1A, Wages, in Section 8. Monetary Rates by including: Critical Care Paramedic Rate from 1.7.2015 (2.5%) p.w Year 1 2064.40 Year 2 2204.40

The Award presently provides for a 'Paramedic Specialist' classification in clause 5 as follows: Paramedic Specialist means an employee who has successfully completed the requirements to be a Paramedic and who has completed the necessary and relevant training and work experience as determined by the Service to become a Paramedic Specialist. Paramedical Specialist will include: 1. Intensive Care Paramedic means an employee who has completed the necessary and relevant training and work experience as determined by the Service to become a Paramedic Specialist - Intensive Care Paramedic and who is appointed to an approved Intensive Care Paramedic position. 2. Extended Care Paramedic means an employee who has completed the necessary and relevant training and work experience as determined by the Service to become a Paramedic Specialist - Extended Care Paramedic and who is appointed to an approved Extended Care Paramedic position. 3. Other such specialist categories as may be developed between the parties. Provided that such an employee shall be required to undertake and successfully complete further instruction/in-service courses necessary for the maintenance of their clinical certificate to practice and the reissue of their clinical certificate to practice every three years.
Currently, the NSW Ambulance Service employs persons known as 'Helicopter Paramedics' or 'Critical Care Paramedics (Aeromedical)' (we have throughout this decision used the terms 'Critical Care Paramedics' and 'Helicopter Paramedics' to refer to this group). There are currently 40 CCPs employed in the Service. The position description for a CCP, last updated in November 2013, was given the classification title 'Paramedic Specialist (Intensive Care)'. The position description relevantly sets out the purpose of the position and the nature/scope of work: 1. PURPOSE OF POSITION Aeromedical operational environments are complex and require a high level of skill, knowledge, flexibility and co-ordination to deliver the service safely and effectively. Helicopter Paramedics are part of a multidisciplinary team working collaboratively to deliver advanced patient access, critical care and extrication within an integrated safety and risk management system. … 4. NATURE AND SCOPE OF WORK PERFORMED Helicopter Paramedics are part of a multidisciplinary team working collaboratively to deliver specialist aviation, anaesthetics, medical and surgical interventions in the out of hospital environment and during inter-hospital patient retrievals. Helicopter Paramedics are required to work in hazardous and remote environments with minimal support to deliver specialist access, patient assessment, pre-hospital care and extrication of patients.
The Award also provides for a Specialist Allowance in the following terms: Specialist Allowance is paid to an employee who has successfully completed the requirements for and is appointed by the Service to an identified Specialist position of Special Casualty Access Team (SCAT), Rescue and/or other specialties as agreed to by the parties. Provided that such an employee shall be required to undertake and successfully complete further instruction/in service courses and certification examinations as required by the Service every three years.
The first respondent informed the Full Bench that most, if not all, of the Helicopter Paramedics appointed prior to the new training program were SCAT qualified and thus received the allowance. Those appointed as CCPs following completion of the new training program will not be required to be SCAT qualified. The new program provides more confined and directed training in rope and other technical skills relevant to retrieval work.
The grounds and reasons on the merits of the claim, as stated in the application, were as follows: Recently the NSW Government conducted a review of Aeromedical Services in NSW including the use of paramedics from the Ambulance Service of NSW on rotary winged aircraft. The review identified the need to standardise this operation throughout the State. The NSW Government has opted to use the Doctor/Paramedic model which has been developed at the Bankstown helicopter base for use at all helicopter bases being Wollongong, Orange, Newcastle, Tamworth and Lismore. The use of the Doctor/Paramedic model has led to the development of a Critical Care Training Package which requires Critical Care Paramedics (Helicopters and Road-based) to administer pharmacologies, utilise medical equipment and be involved in surgical procedures in addition to those required of Paramedics and Paramedic Specialists. These procedures are far in excess of what an on road Intensive Care Paramedic would be required to perform in accordance with their scope of practise. The Operational Ambulance Officers (State) Award does not provide a classification to cover this type of work and employees engaged to perform such work. The nominal term of the Operational Ambulance Officers (State) Award has expired. The insertion of a new classification and wage rates for Critical Care Paramedics (Aeromedical) as sought by the Health Services Union, NSW is in accordance with the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011.

Evidence

The HSU relied on the following statements in support of its application:

Statements of Lindsay Arthur Court (Critical Care Paramedic at Sydney Helicopter base and a delegate of the Health Services Union) filed 9 July, 29 August and 19 December 2014;
Statement of Matthew Moore (Critical Care Paramedic based at Orange) filed 9 July 2014; and
Statements of Garth Edmund Thomson (Critical Care Paramedic and Team Leader) filed 9 July and 9 October 2014.

Leave was granted to the HSU to lead further evidence from the following witnesses, who gave oral evidence during the course of the hearing:

Superintendent Cameron Robert Edgar (Zone Manager Southern Zone of the Service);
Dr Karel Robert Habig; and
Dr Geoffrey Benjamin Healy (Staff Specialist in retrieval Medicine in the Greater Sydney Helicopter Emergency Medical Service).

The first respondent relied on the following evidence in opposing the application:

Statement of Dr Peter Sharley (Deputy Director, Intensive Care Unit, Royal Adelaide Hospital) filed 18 August 2014;
Statement of Mr Paul Kernick (Training Manager, Helicopter Retrieval Services, Health Emergency and Aeromedical Services in the Ambulance Service) filed 18 August 2014;
Statements Dr Ron Manning filed 21 November 2014 and 25 March 2015;
Statement of Ms Rosemary Hegner (Acting Executive Director of the Health Emergency and Aeromedical Services in the Ambulance Service) filed 18 August 2014;
Statement of Ms Catherine Hutton (Executive Director, Finance of the Ambulance Service) filed 1 May 2015;
Statements of Ms Carolyn Synnott (Associate Director, Workplace Relations in the Ministry of Health) filed 18 August 2014, 21 November 2014 and 1 May 2015;
Statements of Mr Allan Loudfoot (Executive Director, Clinical Governance in the Ambulance Service) filed 18 August and 21 November 2014; and
Statement of Mr Alan Morrison (Director, Education for the Ambulance Service) filed 1 May 2015.

The Australian Paramedics Association (NSW) ('APA' or 'second respondent') relied on the following evidence:

Statement of Mr Michael Lee Burrow (Critical Care Paramedic at Sydney Helicopter base) filed 23 July 2014; and
Statement of Mr Bryan Elliot Jordan (Critical Care Paramedic at Sydney Helicopter base and currently Acting Paramedic Educator) filed 23 July 2014.

Each of the witnesses was required for cross-examination.

The Evidence

In recognition of the outcome of these proceedings we do not propose to summarise in detail the evidence led from each of the witnesses. Rather we will focus on the issues raised by the evidence and submissions and express our conclusions as to those matters. Reference necessarily will be made to the evidence in that context. We would add that we found all of the witnesses to be impressive. They gave their evidence frankly and were clearly aware that their role was to provide the Commission with accurate information on which to base its decision. As one would expect, there were subjective differences and differences in emphasis, but this was not a case in which issues of credibility arose requiring a determination by the Commission of whether the evidence of one witness was to be preferred over another.

The Parties' Positions

The HSU maintained that CCPs were required to have and use skills beyond the scope of practice of ICPs. The APA supported that contention. The unions contended that a new award classification was appropriate.
The Ministry accepted CCPs were trained in procedures and pharmacologies beyond those of ICPs. The Ministry argued, however, that the exercise of these skills and the application of the acquired knowledge were in the context of a medical team led by a doctor. The doctor, it was submitted, bore responsibility for clinical decisions and the paramedic acted under the doctor's direction and otherwise assisted the medical practitioner. The Ministry contended that CCPs would be adequately compensated for these additional skills by receipt of the specialist allowance (whether SCAT qualified or not).
Viewed from a medico-legal perspective the contention of the Ministry (subject to one exception) as to clinical responsibility is undoubtedly correct. Nevertheless, the evidence as to the practical application of the hierarchy upon which the Ministry relied demonstrated the limitations of this perspective. This is perhaps best illustrated through the evidence of Drs Manning and Habig.
The applicant also sought to distinguish the work of CCPs from other ICPs by reference to the health care philosophy applied, the nature of the patients to whom the retrieval service is directed and the environment in which the work is performed. The last aspect has a number of features: the decision as to retrieval platform (helicopter or road transport); the operational aspects of helicopter transport and retrieval; the often hazardous environment in which the work is to be performed requiring scene management including management of safety concerns for patient and retrieval teams; and the use of specialist non-clinical skills such as winching and/or other rope techniques.

Medical Team Decision-Making

In relation to the nature of the doctor/helicopter paramedic working relationship, Dr Manning stated in his evidence in chief: 51. The helicopter paramedic and the aeromedical doctor work together as a team, with the helicopter paramedic's skills complementing those of the aeromedical doctor. That is, the helicopter paramedic brings to the aeromedical team a range of skills that complement and enhance the medical expertise and experience of the doctor. For example, the skills and experience of a helicopter paramedic mean that they can regularly anticipate what steps may occur next in a clinical procedure, allowing them to have equipment and/or pharmacologies set up and available for use when the doctor requires them or to anticipate the need for a clinical procedure and exercise both clinical and operational judgment regarding, for example, timing, location, resourcing, extrication needs etc. These skills enable the team to operate safely, efficiently and expeditiously in situations that can be very stressful. 52. In addition, and importantly, helicopter paramedics contribute (and have done so since the implementation of doctor/paramedic clinical crew arrangements) a level of operational and situational awareness arising from the fact that in most cases they have a greater level of experience working in the aeromedical/"outside hospital" environment. 53. The team environment means that the helicopter paramedic is, and always has been, encouraged to provide the doctor with suggestions as to whether s/he thinks a particular clinical procedure should be initiated (or not) and whether a particular pharmacology should be administered (or not). Similarly, doctors are encouraged to seek the counsel of the helicopter paramedic regarding the operational and environmental applicability of a clinical procedure and more often than not to defer to their judgment in these circumstances. The team environment also encourages the ability of the helicopter paramedic to question directions from the aeromedical doctor where the helicopter paramedic thinks it appropriate to do so. For example, where the helicopter paramedic has a query about a pharmacology/dose that the doctor has authorised the administration of. This is a process that is known as gross error checking. It is not unique to aeromedical operations, but is a feature throughout the health system. 54. The above being said, at the end of the day it is the doctor, as the senior clinician who makes the final "call", and bears responsibility, in relation to the clinical treatment afforded to a patient. Similarly, the helicopter paramedic or scene commander has the final call regarding operational and scene safety.
Doctor Habig expressed it even more succinctly, as follows: …Our physicians and our paramedics work together. Our decisions are all team decisions made with discussion, we really value both parts of the team coming together to make decisions. When an intervention needs to be performed there is an important role for the paramedics to assist, to help troubleshoot the procedure as being performed and so we very much value training our paramedics to a level where than can be useful and effective assistance.
Under cross examination Dr Manning provided further insight into the process of team decision making, as follows: Q. The second aspect, noting that they have a relationship to one another, is the clinical treatment and clinical decisions as to the way in which a patient is to be treated, the intention of having a formally trained helicopter paramedic as part of the doctor and paramedic retrieval team is to allow that paramedic to, among other things, participate in the clinical decision making, together with the doctor? A. Correct. Q. That is, it is expected that the paramedic that the doctor and paramedic will have a discussion and agree a clinical pathway for the treatment of the particular patient? A. Correct. Q. And the paramedic is expected to be, at least once properly trained, encouraged to contribute to what they think ought be done so far as the clinical treatment of the patient is concerned? A. That's correct. Q. And they're not the optimum model but minimise risks to patients is not one which the paramedic just awaits instructions from the doctor as to what clinical process is going to be undertaken, but actively participates in that decision making process? A. That's correct. Q. I think you've said in your statements that, ultimately, it's the doctor's call, as it were, as to a clinical procedure to be undertaken? A. That's correct. Q. That is, if there happened to be a circumstance in which there was some dis… I was going to say violent disagreement I don't think violent but a disagreement between the doctor A. In the past, yes. Q. And the paramedic as to what should be done, ultimately, the doctor will say: No, I'm putting my foot down and say what I think should be done? A. Correct. Q. That's not as one would commonly expect decisions to be made? A. I would expect that would be extraordinarily rare.
As we have mentioned, sometimes the medical practitioner is a specialist in training (registrars). It was Mr Court's evidence that CCPs are often involved in mentoring new registrars in their clinical role in the pre-hospital and inter-hospital environment, as well as initial and ongoing training in aeromedical operations. He stated: Critical Care Paramedics (Aeromedical) working with these doctors will often have to provide on the job training and mentoring to the doctors including instructing them in how to perform procedures. In my view our role is vital in ensuring patient health and increasing the prospects of a patient surviving a significant event or injury. Fundamental to the success of the Retrieval Service is that we provide support and training and assistance to new Registrars and Consultants on the job.
We understood Mr Court's evidence as consistent with Dr Manning's (extracted above). It emphasises that the CCP is often much more experienced in the types of missions being undertaken and can provide guidance to a medical practitioner (who is relatively new to such "out of hospital" environments) as to the performance of procedures in the aeromedical retrieval environment.

Patient Type

Evidence was adduced as to the common types of incidents attended to by Critical Care Paramedics and some of the relevant duties they perform. Mr Court stated: … The Retrieval Service provides Paramedics to work on helicopters to access, triage and treat patients involved in pre-hospital emergencies particularly in remote or hazardous environments. Our deployment criteria is to attend: severe trauma, aquatic area/persons in the water/boating-shipping incidents, vertical access including coastal or mountain cliffs, canyons, inaccessible bush areas, tunnels, caves, mines, confined spaces, industrial accidents and prolonged entrapment in hazardous environments. The Retrieval Service part of our role is to perform inter-hospital retrievals with a particular focus on ventilated patients and patients requiring time critical surgical or radiography intervention and patients requiring Hospital level Intensive Care Unit treatment.
Mr Court's evidence demonstrated the two broad categories of work performed in the Aeromedical Retrieval Service being pre-hospital emergencies and inter-hospital transfers. In both cases the patients are usually critically ill. A distinguishing feature is that the pre-hospital patients have not received treatment or been assessed and diagnosed while the inter-hospital patients are already under treatment but need to be moved from one hospital to another for a particular reason. A further distinction is that the pre-hospital missions may require patient treatment and retrieval in and from a remote and/or hazardous environment.
Mr Court indicated that helicopter retrieval services are allocated to treat approximately three per cent of patients in New South Wales and they are the most critically ill treated by the Ambulance Service. The CCPs assist "critically ill patients or patients at risk of substantial injury". Mr Court said, in referring to the inter-hospital transfers, the role of helicopter retrieval services is to "bring a Tertiary Hospital level Intensive Care Unit (or emergency department) treatment to a rural or less resourced hospital".
Doctor Habig's evidence supported Mr Court's outline of the role of Helicopter Paramedics. He said: We typically only task the most severe critical care end of the spectrum of medical patients and surgical patients. We don't see patients who just need to be transferred. There are other systems in the health system to transfer patients who don't need critical care. In terms of the inter‑hospitals, we are tasked to patients who would otherwise require intensive care or who need resuscitation in the facility that they are currently in where the hospital is unable to manage them with the current resources. That is, a doctor and a nurse in a small hospital can't manage a patient, we are tasked to that patient to resuscitate and/or transport. In the pre‑hospital phase are really sent to one to 2 per cent of less to very severe in the State, patients who have life threatening or potentially life threatening injuries. And so the medical teams that we work with are only looking after the very sickest group of patients. As an example half of our patients are on life support or we place them on life support. (emphasis added)
Mr Thomson gave examples of the type of patients treated by Helicopter Paramedics. He stated: A helicopter medical crew will be called in, for example, when a 000 call is received by Ambulance relating to situations when someone has been injured or lost in a remote location (on land or at sea) and/or where urgent medical assistance is required, especially for a serious traumatic injury - such as, where persons are trapped for extended periods and also in a wide range of situations including motor car/cycle/truck and boat crashes, building collapse and industrial accidents etc. We will also be called in to treat patients with 'penetrating injuries' (including those resulting from gun-shot wounds or stabbings) and to treat serious medical conditions such as where an individual has collapsed and is unconscious, in cardiac arrest or for patients with other complex medical conditions requiring pre-hospital medical care at a level beyond that of Intensive Care Paramedics. … Critical Care Paramedics (as Aeromedical response teams) will be called in where it is identified by either Ambulance control centre staff, responding Paramedics or the Rapid Launch Trauma Co-ordinator (RLTC), that the needs of the patient may exceed the level of care able to be provided by local crews of Paramedics and Intensive Care Paramedics or because of the likelihood that we will be able to access patients quicker and/or we will be able to get to hospital quicker by helicopter than by road transport. Critical Care Paramedics (Aeromedical) do not just work on helicopters. We sometimes respond in specialised road (retrieval) ambulances and at times by four wheel drive and fixed wing aircraft. We employ whatever transport platform we consider to be most appropriate to access, treat and transport the critically ill or injured patient in a timely and efficient manner. For example, as patients are often in urban locations that are not easily accessible by helicopter (such as in the case of an urban railway facility, industrial collapse or a hospital without a helipad) Critical Care Paramedics (as Aeromedical teams) will respond by road (retrieval) ambulance.

Circumstances of Missions

The witnesses gave evidence as to the hazardous situations that Helicopter Paramedics are required to encounter in the course of their duties and, in particular, during pre-hospital missions. Dr Healy referred to the range of environments in which the medical teams were required to work. He said in his evidence: Anything ranging from a freeway with fast moving traffic with multiple motor vehicles involved in collisions, to pedestrians underneath vehicles. Industrial type environments where there has been an industrial accident or even non‑urban type environments, such as cliff faces on the rocks on the beaches. And cliff faces on the coast of New South Wales or in the mountains and bush land type environment. That may also exist with hazardous material type environments and certainly we have been involved in major accidents and environmental catastrophes as well.
In the course of the hearing videos were exhibited. The videos demonstrated examples of both access to and treatment of patients in hazardous locations and paramedics performing, or assisting in the performance of, procedures beyond the ICP scope of practice.
These difficult environments require the application of specialist non-clinical skills to which we shall later make reference.

Health Care Philosophy

Doctors Habig and Healy gave evidence as to the differences in care philosophy adopted by CCPs and ICPs. The HSU submitted that ICPs apply the philosophy of minimal intervention beyond stabilising the patient following an accident, incident or injury and are focused on providing the earliest possible access to hospital. In contrast, CCPs apply the philosophy of "bringing an emergency department or Intensive Care Unit to patients and performing time critical, meaningful interventions on location to save lives and improve patient outcomes".
Doctor Habig, in relation to the care philosophy of the Service (and thus CCPs), said: The overriding philosophy is we take the emergency medical care that would be provided for in an emergency department to the actual scene of the accident. So with a medical team, of a physician and paramedic, we can actually bring all of the care that can be provided in an emergency department to the scene.
In relation to the care philosophy adopted by ICPs, Dr Habig said: …the level of care is completely different. Intensive care paramedics working in New South Wales have a limited scope of treatments that can be provided and then their role is to transport the patient to further care in the emergency department. Our service provides pre‑hospital care at the level of emergency departments and we can often divert the patient from emergency to go directly to the operating theatre or to intensive care and because the interventions in care that was provided has been done pre‑hospital.
Similarly, Dr Healy gave evidence that: The function of the medical team is to provide an increased and high level of critical care service to severely injured patients in the State of New South Wales. We would respond to a number of different types of incidents, predominantly road traffic type accidents, difficult access type situations where people have been critically injured and have a low ability to be able to get them out of the situation they are in or other services to be involved. And they might range from any age group, whether it be a child, an adult or an elderly person. And these are often the sickest of the sick patients that are dealt with in this system. We aim to provide the necessary interventions that would often be performed in a hospital at the site or the time soon thereafter the time of injury. For example, we do quite advanced critical interventions for patients, whether they be on a roadside, in a car or in a residential address or a remote access time environment. And those skills are translated from our hospital practice for the interests of preventing secondary injury to these patients or even the main intervention to save their life at that time. (emphasis added)
Doctor Habig was asked about the inter-hospital transfers. In his view inter-hospital missions involve CCPs taking over the care of patients in a hospital environment, particularly when stabilising, treating and transporting a critically ill patient from a small hospital, which is not currently performed by ICPs. Dr Habig opined this represented the "massive difference between helicopter paramedics in our system where two thirds of their work is actually in a hospital". During his examination in chief Dr Habig said: Q. Underneath the picture you have posed the question ‑ why do we need paramedics trained beyond ICP for the job, after all we have doctors. And then you identified three key reasons? A. Hm. Q. The first you have described as ‑ the first is the typical patient you retrieved in an urban or rural or ICP to a tertiary referral centre. I think you mentioned this already, but what type of scenario are you talking about there? A. We moved someone from a small emergency department or ICU when the level of care that can be provided in that centre becomes too much and the patient needs to be moved to another centre that is a high level of care. Or there is a critical intervention that can only be performed in another place. Q. Are these customarily circumstances in which the movement must be done on an urgent basis? A. There are a range of missions, urgencies, imperatives. Some are very time critical and every minute is associated with increased morbidity or mortality and then there are other issues where more time can be taken and there may not even be a time urgency about them at all. Q. Why would the retrieval services be involved in that second class, that is rather than some other form of transport? A. Sometimes we move patients because they are in the emergency department which doesn't have a bed available in the IC at that particular department. There is no immediate clinical risk to the patient but that patient is still in an emergency department for a long period of time and needs to be moved or networked in terms of beds to another place in the city or State. Q. Is it accurate to say retrieval service is needed because of the critical nature or the serious nature of the condition that the patient is suffering? A. If there is a patient who needs to be looked after in intensive care and the level of care required to transport the patient needs to be of the same order or higher than the care they are receiving in that referring hospitals. So that is one of the strong drivers for the physician paramedic teams having the synergy of skill sets for both paramedics and physicians to these particularly ill patients. Q. What is the task the retrieval team undertakes when it goes into the IC or ICU Urban or rural hospital in that scenario? A. There is a range of interventions. New South Wales is a big State with many small hospitals, in fact we have something like 200 designated health facilities, some of which have just a nurse or general practitioner. Some of those patients need significant resuscitation, in fact they need assessment, diagnosis and resuscitation by critical care physician. Other patients need simply to be transferred from their emergency department or ICU setting and then safely transported. And then others need a change in the plan, change in diagnosis and often it is discovered that the condition they have been treated for has changed and needs a new decision. Q. In that second scenario will the retrieval team be involved in implementing such procedures that are necessary to treat that condition? A. Sorry, the second scenario, can you explain? Q. Where there is a change in diagnosis? A. So for example we may discover that a patient who we thought was dying from severe infection, in fact has fluid around the heart and therefore needs a particular intervention. We are often in the position of having to change treatment, make diagnostic decisions, not simply just to change tubes and lines and move patients as they are.
Mr Thomson indicated the role of CCPs is to essentially "bring the emergency department to the patient".

Interventions and Clinical Procedures

In order to implement this philosophy the Service has progressively sought to lift the skills of CCPs. We have earlier referred to the aborted proposal to introduce "formalised" training in 2010. The proposal was revisited in 2014.
In early 2014, the Ambulance Service produced "skill sheets" for 16 authorised clinical procedures that are unique to aeromedical operations and not within an ICP's scope of practice. Those clinical procedures include Rapid Sequence Intubation ('RSI') (the administration of a general anaesthetic to a pre-hospital patient), Pre-hospital Thoracotomy (surgical opening of the chest) and Simple Thoracostomy (penetration, often bilateral, of the chest to relieve pressure). These are technically challenging and complex lifesaving procedures. It is unnecessary to detail each of the authorised procedures. It is enough to note that they are beyond the scope of practice of an ICP and ICPs are not trained to perform or assist in the performance of these procedures.
The witnesses also gave evidence to the effect that the procedures subject of existing "skill sheets" do not represent an exhaustive list of clinical procedures performed by Helicopter Paramedics.
Doctor Habig listed a number of procedures for which skill sheets remain to be developed. He also gave evidence that the range of procedures capable of being applied in an aeromedical environment was limited only by the professional skills of the medical practitioner and the discretion of the medical team. He said: There is no specific limitation, in that when you have a physician in the team you actually are operating within the scope of practise for that critical care physician. It does, to some degree, come down to the person trained and the skills of that individual physician. But we have a set of operating skills and clinical skills for most high risk and commonly performed procedures which outline exactly how we would like those performed. And then we audit again that particular standard system on a case by case basis. If the physician‑paramedic team working together can perform procedures that we don't have a particular skill sheet or guidance for, if that's the best thing for the patient and that reflects the role of a physician in a hospital, for example. We are there to do the best for the patient. There might be other persons there who perform a surgical procedure when there's no surgeon; it may be in the best interests of the patient to perform that surgery without having a surgeon.
As we have observed the respondent contested the effect of this evidence in the context of work value assessment. It noted that the skills referred to were beyond the scope of practice of an ICP and pointed to the notation on many of the skill sheets published by the Ambulance Service which read "DOCTOR PERFORMING/PARAMEDIC ASSISTING". The HSU submitted that this contention did not recognise the significance of the role of a Helicopter Paramedic in the medical team and the skills and knowledge necessary to participate in a properly functioning medical retrieval, or helicopter retrieval team.
Superintendent Edgar gave evidence that he was the primary person who prepared the skill sheets. He indicated that the words "DOCTOR PERFORMING/PARAMEDIC ASSISTING" were inserted into the document at the instruction of Clinical Governance. He said that the draft "may well have had 'for use by authorised medical teams'". The HSU submitted the notation "DOCTOR PERFORMING/PARAMEDIC ASSISTING" did not of itself dictate the relevant duties that were performed by doctors and paramedics with respect to clinical procedures and interventions.
Doctor Habig commented on the role of CCPs particularly in relation to inter-hospital missions. His response, we think, gives context to this concept of assistance. He was asked: Q. Outside of retrieval teams, are intensive care paramedics generally involved in providing care in a hospital type of environment? A. It's not their general area of work or their scope of work. In very rare occasions intensive care paramedics might be called to a very small hospital to assist but 99 per cent or more of their work would be in the pre‑hospital phase so that represents a massive difference between helicopter paramedics in our system where two thirds of their work is actually in a hospital. A. (Cont'd). Working with devices known only to hospital practice and is completely missing from the prehospital world. Our services work with a range of tubes and intervention lines that simply are outside the scope of intensive care paramedics. Q. Where the retrieval team goes into hospital type environments and the paramedic performs the role equivalent to prehospital staff what might otherwise be involved in ICU or ED environments? A. The best analogy of the work of one of our paramedics is with an emergency nurse or intensive care nurse where their role is very similar to those individuals, in that they are assisting with performing procedures. Trouble shooting is a very important safety system, in that they need to have enough information and knowledge about what is occurring so that they can suggest different courses or help with decision making. So it's far more like an intensive care nurse or emergency department nurse.
It was the HSU's evidence that any discrete task performed by the medical team can be performed by the doctor or the helicopter paramedic interchangeably. In the document 'Greater Sydney Area HEMS Prehospital RSI Manual', it notes that, in the case of an RSI procedure: If there are no features (apart from C-Spine immobilization) to predict a difficult airway the first attempt at laryngoscopy may be taken by the retrieval paramedic with the doctor becoming airway assistant and available as second operator in laryngoscopy proves to be difficult
Evidence was given to the effect that many of the clinical procedures, such as thoracotomy and thoracostomy, performed in an aeromedical environment require two sets of hands and/or may require the procedure to be performed simultaneously on both sides of the patient. The HSU submitted it was artificial to refer to one person performing and another assisting in relation to a procedure requiring two skilled persons to perform.
Further, the evidence showed that medical retrieval teams dealt with complex and dynamic circumstances and situations often arose, as Dr Healy said, where "multiple things are happening simultaneously, they are happening in parallel rather than in series".
Doctor Healy also gave evidence as to circumstances in which the medical team may be split, to deal with multiple casualties or because of access issues. In such circumstances the doctor usually can but may not be able to maintain communication with the CCP. The CCP will then use the skills they have acquired through experience and or training to treat the patient. That may involve undertaking procedures or using drugs beyond the scope of practice of an ICP.
Doctor Manning agreed that circumstances may arise in which a CCP may perform work beyond the scope of practice of an ICP. He said he would expect the clinician to complete a 'Variation to Clinical Practice' ('VCP') in such circumstances. Dr Manning was asked in cross-examination about the purpose for completing such documents. His evidence was: Q. There's three purposes to the variation of the clinical practice process, firstly, to assess what has been done? A. Correct. Q. Whether it was the best way of going about things or whether there were other options? A. Correct. Q. To provide feedback to the staff involved, the doctor and paramedic presumably? A. Correct. Q. But also to inform future practise, as it were? A. Correct. Q. That is, it may be a method of identifying, in fact, something should be brought within practise, as it were? A. Correct. Q. That is, this is something that was the best option? A. Yes. Q. And should be trained and implemented generally as a procedure to be implemented within the treatment services? A. Correct.
There was some evidence from the CCPs that they did not always complete VCPs because nothing ever came of them. That seems to be a view developed because the feedback received was not critical of the CCP departing from the scope of practice. An illustration of this attitude may be found in the evidence of Mr Burrow. In cross-examination he said: Q. Where then Mr Burrow you talk about in paras 7 and 8 undertaking treatment regimes in the absence of a doctor, and using out of scope ICP equipment, can I suggest to you that that should, if such an instance occurs, you should be completing variation to clinical practice in relation to that? A. Yes. Q. And have you been doing so? A. I have done in the past, yes. Q. So on how many occasions have you completed variations to clinical practice, do you know? A. Lost count. I ceased the practice. Q. Sorry? A. I've lost count of how many times I have done variation to practice. Q. Did you say you ceased the practice or not? A. From the replies that I got it wasn't worth putting in the variation to practise. Q. Because one of the difficulties that exists here is there is a suggestion in your statement that you are ‑ that by virtue of a culture to use your terminology, you are performing clinical intervention in the absence of a doctor which fall outside ICP scope of practice? A. Using equipment that falls outside my practice yeah. Q. What I want to suggest to you, if that is done in the absence of either a doctor being present or a prior authorisation from a doctor, that is something for which a variation to clinical practice ought to have been completed? A. Yes. Q. And the position is that that is not appearing at the moment, correct? A. Correct. … Q. I think you have already agreed, one of the reasons why these documents are filled in is so the governance area within the Ambulance Service can be made aware that there are incidents occurring where helicopter paramedics are performing duties outside their authorised scope of practice? A. That's what you would think it would be intended for, however they have just been dismissed as, if you like, 'nuisance' value. Later in re-examination he added: Q. You gave some evidence about filling in the variation of practice forms? A. Yes. Q. And you said you ceased to doing so because I think of your experience of the responses. Can you explain to the Commission what you meant by that evidence? A. Sure. So there was a period when these procedures came out where we started ‑ my colleagues and I started to fill in variation of practice on some of the jobs that we were using the out‑of‑scope equipment. The two that I can remember distinctly involved a case where I was physically separated from the doctor and gave a drug to a patient to reduce the patient's pain. This drug was, back then, not in my scope of practice. It was a doctor's drug that I happened to have on me. I gave it to the patient. I filled in a variation to protocol. I will add that my doctor was 200 metres down the road. We were at a multivehicle car accident and the cars were separated a long distance away and I have identified no communication. I gave the drug and reduced the patient's pain and promptly filled in a variation to protocol form. The reply I got back from the Clinical Review Board was that there was no issue because the doctor was in attendance at the time and thank you for reporting it. I reported another case similar to that and got a similar response. My colleagues also were reporting cases where they'd used out‑of‑scope practice and equipment and after a while, those reports just got diverted back to the area medical manager, so we took that to mean that the Clinical Review Board did not want to hear from us about those matters.
We would observe that the evidence of Dr Manning does not support the conclusion expressed by Mr Burrow. It was important for the Ambulance Service to dispel this erroneous view. The fact that the reviews referred to have not led to some dramatic reaction does not provide a reason to disregard the obligation to complete VCPs when necessary. We think as a matter of public interest we should reinforce the need for Paramedics to keep the Ambulance Service informed of what occurs in the field.
This evidence also illustrates instances of independent decision making which CCPs are able to make by reason of their training and experience. If they take such decisions because they are unable to communicate with their medical practitioner colleague it seems to us they are taking the clinical responsibility. Such events should be rare and only occur when the clinician regards the action as necessary in the interests of the patient. While we are satisfied that CCPs have training and skills beyond ICPs we do not regard the evidence as indicating that they are on a par with their medical practitioner colleagues. Rather, they work as part of a clinical team and, in that respect, exercise greater skills and have greater responsibilities than ICPs.

Medications and Pharmacologies

It was accepted that CCPs are required to carry and administer an array of medications outside the scope of drugs administered by ICPs and are required to vary drug administration practices to adjust to the circumstances of critically ill patients. Critical Care Paramedics are currently authorised to administer 61 medications in the field, being 21 more drugs than within an ICP's scope of practice, of which 19 are covered under protocols published by the Ambulance Service. The relevant pharmacology protocol documents published by the Ambulance Service contain the notation "MEDICAL OFFICER AUTHORISED - HELICOPTER PARAMEDIC USE ONLY" which, the Ministry submits, is a clear indication that the pharmacologies can only be administered by CCPs under the doctor's authorisation.
Superintendent Edgar gave evidence that the notation "MEDICAL OFFICER AUTHORISED - HELICOPTER PARAMEDIC USE ONLY" was inserted at the request of Clinical Governance Committee on the basis there was an understanding that the pharmacologies "were only to be administered by paramedics under medical officers instructions". The draft pharmacology protocols included the notation "AUTHORISED HELICOPTER PARAMEDIC USE ONLY".
Doctor Manning expressed the view that the evidence of Mr Burrows and Superintendent Edgar showed there was some uncertainty as to the process of "authorisation" with respect to the administration of certain pharmacologies. Evidence led by the HSU indicated that a "treatment plan could be developed and agreed between the doctor and paramedic in advance of reaching a scene or where the doctor was remote from the patient".
The procedure set out in the document 'Helicopter Paramedic Medical Authorisation pathway: HELI.OPS.43' as at 2014 provided: 'Medical officer authorised' clinical activities can be undertaken following verbal approval from a doctor, in line with training and patient needs
During the course of the proceedings, an amended HELI.OPS.43 was issued which required the patient be assessed by a doctor prior to any authorisation for administration of pharmacology being given. Dr Manning caused Heli.Ops 43 to be amended and issued in response to the uncertainty exposed in the present proceedings.
The HSU submitted that notwithstanding the altered HELI.OPS.43 being in effect, there will be circumstances in which it is not possible for the doctor to directly assess a patient prior to the administration of a pharmacology. In such cases, it remains the Helicopter Paramedics' expectation that they are capable of making a decision in relation to pharmacology administration following remote communication with the doctor (where possible).
It was contended by the HSU that the authorisation for the use of additional pharmacologies that are not within an ICP's scope of practice is intended to be undertaken as part of a decision of the "medical team" collectively, as opposed to the decision being dictated by the doctor. While Dr Manning accepted the process, and indeed importance, of team decision making, he remained adamant that clinical responsibility for treatment outside an ICP's scope of practice was with the doctor. If a CCP did not have the doctor's authorisation it would be necessary for the CCP to complete a VCP.

Operation, Technical and Environmental Skills

Mr Thompson identified the make-up of the multi-disciplinary team which is now standard for helicopter rescue operations. The team consists of a pilot, an air crewman and the clinical team of doctor and CCP. According to Mr Thompson's evidence the air crewman is the: non-flying co-pilot who performs duties including assisting the Pilot with radios and navigation aids, weather radar, air traffic avoidance systems whilst in the front cabin areas and, when in the rear cabin, operates the winch, dispatching the Critical Care Paramedics (Aeromedical) and Doctor 'down the wire' and communicating with the Paramedic when on the ground.
It is uncontested that Helicopter Paramedics are now required to perform duties of Rescue (or 'down the wire') Crewman in addition to, as the HSU submitted, their "clinical duties". These duties require the helicopter paramedic to exercise non-clinical technical skills and follow and enforce operational procedures associated with helicopter operations. Mr Thompson also stated that: regular currencies (reviews) are required where it is mandatory for me to demonstrate my ability to perform my technical Air Rescue Crewman roles and functions both on the ground and in flight. An inability to meet these requirements will result in my flight status being affected and my not being approved to perform the specific procedure and in some cases fly in the Air Rescue Crewman role at all. We also have rear-cabin crew responsibilities whilst a helicopter is in the air, which means that we are in-charge of the cabin and have control of all those in the cabin of the helicopter including emergency exit procedures in the event of a crash, ditching or other emergency. This includes being responsible for guiding the Doctor as they are not trained in rear-cabin crew responsibilities.
Mr Thomson outlined the duties associated with the air rescue (or 'down the wire') crewman role, including:

Pre-winching checks to ensure all mission planning, communications and critical safety elements are addressed;
Assisting in identification of and final acceptance of the winching site into which the medical crew may be safely winched;
Preparing aviation and clinical equipment to package a patient;
Directing a patient and doctor onto the winch;
Independently performing formal field risk assessments so as to determine whether to and by what means to access the patient;
Attending patients 'down the wire'.

Helicopter Paramedics are required to undertake, check on and utilise a vast array of equipment. Mr Thomson listed some of this equipment including personal protective equipment, harnesses, navigation and global positioning systems, life jackets and other survival and rescue swimmer equipment.
In relation to environmental and operational matters, the HSU submitted a Helicopter Paramedic operates in the role of a team leader and the doctor is expected to take instruction from the paramedic. In particular, Dr Habig said: Certainly the paramedics have the lead in … logistical and operational issues, whilst the physician has the lead with clinical issues as befits the fact they're the most senior clinician. What we mean by logistical and operational issues, things like where to perform procedures; whether to move the patient rather than treat them in situ; issues of weather and general conditions, waves, tides, these sorts of issues; whether it's safe. So team safety is certainly decided by a paramedic with significantly longer experience of the prehospital world.

Occupational Health and Safety Risks

There was abundant evidence, coupled with video footage, demonstrating the extreme environments and situations in which Helicopter Paramedics perform their duties, such as attending patients having been winched from a moving helicopter into hazardous and remote locations. The risks associated with the work of a helicopter paramedic are obvious and inherent in the vital work undertaken by these employees. The CCP has the responsibility of managing these risks.
Mr Thompson's evidence in this regard was; As a result I need to be intimately familiar with all the procedures commensurate with this role in order to enable me to safely move around inside the helicopter cabin, exit and enter the helicopter (by winch or whilst hovering close to the ground), get to the ground or the water from the helicopter, know how to rescue an individual and bring them back 'up the wire' safely, efficiently and correctly and in accordance with the Helicopter Operators Operations Manual and clinical needs. There are a number of well-established practices and processes described in the Operations Manual, local staff instructions (LSIs) and flight staff instructions (FSIs). These documents are designed to mitigate what have been identified by an independent safety management consultancy firm (Aerosafe) as often either Extreme or high risk activities. In order to manage the inherent risk to an appropriate and acceptable level I must be aware of and comply with Operational Risk Profiles, Manuals and Helicopter Operating Procedures that ICPs outside of Aeromedical Operations would not otherwise have knowledge of and by no means need to comply with as a mandatory element of their employment by Ambulance as an ICP.

Work Value Considerations

Sub-principle 8.2(a) of the Wage Fixing Principles reads: Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.
As we indicated in Statement No 1 the evidence supported the conclusion that there has been a significant net addition to the work requirements of this group such as to warrant the creation of a new classification. There can be no doubt, in our view, that CCPs are required to possess and use skills beyond those of ICPs. Although they exercise those skills, save in rare and exceptional circumstances, under the authority of a medical practitioner they do so as part of a clinical team.
The evidence of the doctors overwhelmingly supports the conclusion that CCPs operate at a higher level than ICPs and that their level of skills allows the expeditious and safe treatment of critically ill patients. The exigencies of the situations encountered often require, in the best interests of the patient, the members of the team to interchange roles or prioritise tasks so that the CCP will perform a task that may normally be expected to be performed by the doctor. It was these considerations which drove the development of the specialised training program for CCPs.
That training is undertaken by paramedics with experience of at least three years as an ICP reinforcing that the role of CCP requires skills and performance at a higher level.
In addition CCPs are required to possess and utilise other non-clinical technical skills associated with aviation and rescue operations. ICPs may have and use skills in rescue operations for which they are qualified by SCAT training. They are remunerated by the Specialist Allowance. There is thus a degree of overlap between the skills of SCAT trained ICPs and CCPs in this area. It is essentially for this reason that we formed the view that there would be some double counting were CCPs to receive the increase we determined to award in this case and the Specialist Allowance: see Statement No 2 and Statement No 3.

Datum point

We have noted earlier that the last comprehensive review of the Award occurred in 2010 and it was thus accepted that work value change was to be measured from that date. We will further discuss whether the skills and responsibilities of CCPs emerged after the datum point in our consideration of the Special Case sub-principle below.

Special Case Considerations

Sub-principle 8.4 of the Wage Fixing Principles provides: 8.4.1 A claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the Principles, and which is not based on work value and/or productivity and efficiency pursuant to this Principle, will be processed as a special case in accordance with the principles laid down in Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 and the cases referred to therein at [165]-[168]. 8.4.2 All special cases shall be tested against the public interest.
We have noted that this claim is largely based on work value. In part answer to it the Ministry argued that the change was evolutionary and amounted to no more than the anticipated development of the role in line with developments in medical science which are expected to occur over time. That proposition does not address the change which has occurred between the role of paramedic specialist and that of Helicopter Paramedics. Our conclusions, expressed above and in the Statements, reflect recognition of a group of specialist paramedics different from the original cohort which continues to exist and no doubt is experiencing evolutionary development itself.
Although not expressly stated by the first respondent, it seems to us inherent in this argument of evolutionary change that some of the change occurred before the relevant datum point. Much of the evidence referred to above from Drs Manning and Habig, Superintendent Edgar and Mr Court point to the work done prior to 2010 by Helicopter Paramedics. Indeed Superintendent Edgar's evidence of the development of a training program in 2010 to "formalise" training for work already being done in the field and Mr Court's evidence updating his work seems to us to support such a conclusion. Although this argument was not expressly advanced by the first respondent we consider it necessary to deal with it.
There are three answers to the argument. The first, which may be accommodated within the work value sub-principle itself, is that it was not until more recent times that the work became sufficiently uniform across the State as to allow recognition of the classification.
Secondly, the very nature of the arrangements introduced after 2010, complemented by formal training arrangements and skill sheets, represented the emergence of a well-recognised and special class of paramedic whose functions were vital to the community. It is in the public interest that express recognition be given to the work of such paramedics and the unique skills they exercise and responsibilities they discharge in a doctor/paramedic aeromedical team (a practice which only came to fruition at an institutional level after the datum point).
The third falls rather more into the notion of a Special Case. The decision to defer the development of the training program in 2010 appears to have been, rightly or wrongly, motivated by industrial relations considerations. Thus it was a decision of the Ambulance Service taken with a view to avoiding or deferring the very arguments we have now heard. It would not be appropriate to allow a decision of the employer to form the basis of what is essentially a technical argument to deprive the relevant workers of appropriate award recognition.
We do not intend that conclusion to be taken as a criticism of the first respondent or the Ambulance Service. As we have noted the argument was not expressly advanced and in that sense the respondent was not attempting to take advantage of its own decision to rebut the claim. Our conclusion however recognises a factual circumstance which makes the case "special" so as to require approval of the claim notwithstanding "the restrictive considerations imposed generally by the principles of wage fixation" see Re Transport Industry (State) Award (1996) 95 IR 126 at 130 to 131.

Stage Two

Stage Two of the proceedings was to address the question of employee related cost savings to meet the requirements of the Regulation. The relevant part of the Regulation is found in cl 6(1)(b). It provides: (b) Increases in remuneration or other conditions of employment can be awarded even if employee-related costs are increased by more than 2.5% per annum, but only if sufficient employee-related cost savings have been achieved to fully offset the increased employee-related costs beyond 2.5% per annum. For this purpose: (i) whether relevant savings have been achieved is to be determined by agreement of the relevant parties or, in the absence of agreement, by the Commission, and (ii) increases may be awarded before the relevant savings have been achieved, but are not payable until they are achieved, and (iii) the full savings are not required to be awarded as increases in remuneration or other conditions of employment.
As we noted in Statement No 3 the parties sought the assistance of the Commission by way of conciliation to address these issues. The course of events, including conciliation, leading to the determination of precise rates (subject to the identification and implementation of the necessary employee related cost savings) is also set out in Statement No 3.
Following the making of Statement No 3 there was further conciliation which facilitated ultimate agreement between the parties as to the necessary cost savings. The terms of cl 6(1)(b)(i) of the Regulation (quoted above at [112]) where satisfied by the parties reaching agreement as to those savings. Nevertheless, Mr Ginters submitted that cl 9 of the Regulation requires the savings to be identified in the award or order of the Commission relying on those savings. No other party made any submissions on the point. In the circumstances we do not consider it appropriate to express a view on the submission.
In order to satisfy the requirement identified by the first respondent, the parties presented evidence and submissions to the Commission to demonstrate that the requisite savings had been achieved and, to the extent necessary, implemented by 1 July 2015 so as to permit the variation of the Award to be operative from that date.
The Commission received a further affidavit from Ms Synnott in which she deposed to the nature and level of the cost savings and other matters relevant to satisfaction of the Regulation. Ms Synnott was not required for cross examination. The savings were described as follows: Agreed employee-related cost savings have been and are being achieved as a result of a review of paramedic rosters in Aeromedical Services, and a flexible approach to the allocation of training within those rosters. Paramedics within Aeromedical Services are required to undertake a range of training annually to ensure their skills remain current. This includes, for example, remote area access training, helicopter underwater emergency training, water rescue training, boat training and clinical training. In the past, this training has generated overtime costs as paramedics have often had to undertake training on days where they would otherwise be rostered off, as there was limited capacity within former rosters for the training to occur during ordinary time. Rosters at all Aeromedical Services bases are, as a result of the agreement reached between the parties, being revised to introduce a training line within the roster. This has been achieved at the Sydney base by reallocating operational support time to training. At the other five Aeromedical bases there are spare shifts on the roster which will now be allocated to training. Training for rostered training shifts will be managed and determined by Aeromedical Services in advance and will be arranged so as to maximise on duty training, and therefore generate overtime savings. For example, in the case of group training exercises such as helicopter underwater emergency training and boat training, rosters will be arranged to ensure sufficient paramedics are rostered to undertake the training on the relevant day. Additionally, there is flexibility to swap allocated training days should a training event emerge which has not been factored into the roster. The new roster with the training line is already in place at the Sydney base and the introduction of training days into all other base rosters has commenced. The business rules for the management of the training days within the rosters are annexed and marked "CS1". These business rules reflect the outcome of discussions between the parties as to their content and form. The value of overtime savings generated by the new rostering arrangements for training referred to in paragraphs 8 to 12 of this affidavit is sufficient to offset the increase above 2.5% per annum in employee-related costs resulting from the implementation of the new classification and rates of pay for Critical Care Paramedics (Aeromedical), being the wage increase identified in the Commission's 15 September 2015 Statement (Operational Ambulance Officers (State) Award (No 3) [2015] NSWIRComm 28 at [14]).
We accept the evidence of Ms Synnott. We accept the submissions of the parties that the requirements of the Regulation have been satisfied.

Conclusion and directions

We confirm the decision of the Full Bench of 2 December 2015 to: 1. Grant leave to discontinue proceedings in Matter No 2016/17126 (formerly IRC 73 of 2014); 2. Grant the amended application to vary the Operational Ambulance Officers (State) Award by consent in Matter No 2016/17158 (formerly IRC 451 of 2015); 3. Any submissions by either party as to the proper description of the first respondent shall be filed within 14 days of the publication of these reasons for 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: 01 March 2016

The Course of Proceedings

The matter the subject of these two applications began with the filing of an application in Matter No IRC 73 of 2014. There followed a series of directions hearings which, apart from the usual case management issues, also dealt with two substantial questions. The first of those was raised by a notice of motion filed by the first respondent seeking to stay the proceedings. That motion related to a Memorandum of Understanding between the applicant and the first respondent by which it was said the applicant had agreed it would not make any extra claims before 30 June 2015. Directions made by the President, Walton J, obviated the need to determine that question.
We pause here to observe that the first respondent is listed in the application under the title 'NSW Ministry of Health'. The question of the proper respondent in relation to the Ambulance Service in civil proceedings under the Industrial Relations Act 1996 was considered by the President, Walton J, in Chapman-Davis v State of New South Wales [2015] NSWIC 10 at [12] to [15]. These, however, are not civil proceedings within the meaning of the Crown Proceedings Act 1988 and accordingly his Honour's decision is not directly applicable here.
His Honour's analysis at [12] and [13] of the decision, with which we agree is, however, relevant. It follows we agree the employer of persons in the Ambulance Service is the Crown in the right of the State of New South Wales. We note in that context the functions of the Secretary of the Ministry of Health under s 116 (3) of the Health Services Act 1997. In addition we draw attention to the terms of s 116A of that Act. These provisions parallel those applying to the Industrial Relations Secretary in relation to the Public Service under the Government Sector Employment Act 2013 ('GSE Act'). There is, however, a notable difference. There is in the Health Services Act no equivalent to s 50 of the GSE Act. That section provides: Role of Industrial Relations Secretary in industrial proceedings The Industrial Relations Secretary is, for the purposes of any proceedings relating to Public Service employees held before a competent tribunal having jurisdiction to deal with industrial matters, taken to be the employer of Public Service employees.
Equivalent provisions to s 50 are found in s 12 of the Teaching Service Act 1980 in respect of the teaching service and s 85 of the Police Act 1990 in respect of the police force. The provisions in relation to the Transport Service, found in s 68C of the Transport Administration Act 1988, parallel those of the Health Services Act and likewise have no equivalent to s 50 of the GSE Act.
In every case the employer is the Crown in the right of the State of New South Wales. In each case a nominee is given power to determine or make agreements about conditions of employment of employees in the relevant service. In relation to the teaching service, public service and the police force the nominee is "taken to be the employer" for the purposes of industrial proceedings, but no such provision deems the Health Secretary or the Transport Secretary to be the employer for the purposes of such proceedings.
This issue arose after the hearing was complete and the parties have not been heard as to the proper description of the first respondent. We are inclined to the view that the first respondent is properly described as the State of NSW but propose to allow the parties some time to consider their position and make such submissions as they may wish to ensure the record is correct, provided that such submissions are made within 14 days of the publication of these reasons for decision.
The second question, also raised by the first respondent, concerned the way in which the case would be heard. In the application the applicant had listed certain developments upon which it relied as providing any necessary "employee related cost savings" within the meaning of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ('the Regulation'). Mr P Ginters, of counsel for the first respondent, submitted that the case should be split along the lines identified in Re Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 [2012] NSWIRComm 122 at [32].
Broadly described, the first respondent sought the division of the case into two stages. The first stage ('stage one') would address the merits of the application and the second ('stage two'), if required, would address the issues arising.
The application for separate determination of the questions raised in the case was made at the same time as an application for intervention by the Secretary, Department of Industrial Relations ('the intervener'). Mr A T Britt, of counsel for the intervener, submitted that his client's interest was confined to the meaning of the phrase "employee related cost savings" in the Regulation. That interest would only arise in stage two, if such a stage was required. The applicant did not oppose the intervention but submitted its preferred position was not to split the case. The second respondent did not oppose either the intervention or dividing the case.
The President, Walton J, made the following ruling: It appears to me there is a merit in the application made by Mr Ginters on behalf the respondent to split the proceedings. Although I will not wish to be taken in that respect as making a ruling that in the ordinary course, the proceedings such as‑‑ should be bifurcated in the manner contemplated. … In this case, the likely timing of circumstances giving rise to a cost offset assessment if one be required will fit comfortably with the notion that there will be a two stage process having regard to the requirements of the regulation in relation to the assessment/savings measures, I will split the proceedings along the lines identified by the parties. I think the better way to define it unless someone indicates something to the contrary is to indicate the second stage of the proceedings will be exclusively concerned with whether or not the application to the extent that it survives the first stage meets the requirements of the regulation. … I make the ruling in those terms.
Procedural directions were ultimately made giving effect to the ruling.
The application proceeded to hearing as an arbitrated case before the Full Bench of the Commission in accordance with Principle 8 of the Wage Fixing Principles. The Full Bench heard evidence and submissions relating to stage one over 12 days from 14 October 2014 to 7 July 2015. In that time there were a number of important developments.
Firstly, there was a need to reconstitute the Full Bench as a result of the unanticipated retirement of one member. Second, the applicant sought and was granted leave to amend its application on two occasions. By its further amended application the applicant made the claim for the Team Leader classification and rate.
Third, on 1 May 2015 the first respondent filed a notice of motion seeking that the application be stayed or dismissed. That application was based upon the Regulation and decisions of the Commission in Crown Employees Wages Staff (Rates of Pay) Award 2011 [2015] NSWIRComm 7 and Child Protection (Working with Children) Award 2014 [2015] NSWIRComm 8.
In Re Operational Ambulance Officers (State) Award [2015] NSWIRComm 17 ('Statement No 1'), the Full Bench made a statement determining, inter alia, that: (1) The applicant has succeeded in making out an arbitrated case under Principal 8 of the Wage Fixing Principles: State Wage Case 2010 (No 2) [2011] NSWIRComm 29; (2011) 206 IR 218 at 230 and, in particular, has satisfied the criteria stated in sub-Principles 8.2 and 8.4 for an increase in wages and conditions of the group of employees the subject of these applications. (2) There should be a new classification inserted into the award to be described as Critical Care Paramedic (Aeromedical).
Subsequently the Full Bench made two further statements: Operational Ambulance Officers (State) Award (No 2) [2015] NSWIRComm 20 ('Statement No 2') and Operational Ambulance Officers (State) Award (No 3) [2015] NSWIRComm 28 ('Statement No 3'). The following provides the reasons for our conclusion as to stages one and two of the proceedings. It should be read in conjunction with the Statements.

At a glance

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Judgment (21 paragraphs)

Cases Cited (12)

Cited By (2)