TWU v Linfox Aust

APPLICANT: Mr C Bolger of counsel LEGAL REPRESENTATIVES: RESPONDENT: Ms T Anderson of counsel

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Schmidt J

Matter Number IRC 2121 of 2004 AMBULANCE SERVICE OF NEW SOUTH WALES CLERICAL AND ADMINISTRATIVE EMPLOYEES (STATE) AWARD Application by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union for variation re clauses 9, 19, 27 and 38 Award

Matter Number IRC 2064 of 2004 Notification under section 130 of a dispute with the Ambulance Service of New South Wales and the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union re call takers threatening to impose industrial bans on forwarding 000 calls to Health Access Co-ordination Unit JUDGMENT

1 These proceedings were commenced with the notification of a dispute in April 2004 by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ('the USU') and the filing of an application on 6 April for variation of the Ambulance Service of New South Wales Clerical & Administrative Employees (State) Award ('the Award'). Some aspects of the claim were dealt with by consent in other proceedings. Other parts of the claim gave rise to a demarcation issue between the USU and the Health Services Union ('the HSU'). Discussions between the unions led to an agreement that certain aspects of the USU claim not be pressed.

2 Discussions between the USU and the Ambulance Service failed to resolve the balance of the claims. An amended application was tendered on 17 June 2004. A further amended application was later filed, shortly prior to the commencement of the hearing, further narrowing the issues pressed, to a claim for the establishment of a new classification structure and rates of pay for employees of the Ambulance Service who respond to 000 emergency calls; increased annual leave and clarification of sick leave entitlements for such employees, who are known as call takers.

3 The matter was referred to the President in accordance with the Special Case principle, established by the Commission's Wage Fixing Principles pursuant to s193 of the Industrial Relations Act 1996 ('the Act'). The President decided that I was to determine the proceedings, including any special case aspect of them. During the course of the hearing, the application was further amended. The new classification and rates finally pressed were: Operations Centre Communications Assistant Trainee $891.62 per week 1st year $950.00 per week 2nd year $971.01 per week 3rd year $991.52 per week 4th year $1012.55 per week * Current employees shall be directly appointed to their present year of service and maintain their incremental date.

4 This represented a 42% increase in current rates. The Union also pressed a claim for additional annual leave and enhanced sick leave entitlements, all variations to be operative from the date of filing the application in April 2004.

5 The timetable originally fixed for the hearing of the application could not be met by the parties and so the hearing was adjourned. Inspections were later conducted at the Ambulance Service's operational centres at Sydney and Warilla. At the hearing, the USU called evidence from Kathleen Wolfenden, booking clerk; Alisa Smith, call taker; Janet McDonald, communications assistant; Derek Margerison, Industrial Organiser employed by the USU and Dr Stephen Cumming, Senior Lecturer in Psychology at the University of Sydney.

6 Evidence was called by the Ambulance Service from Peter Pilon, Project Manager for the implementation of the Medical Prioritisation Dispatch System ('MPD System'); James Peach, Project Director, Command and Control Project ('C2 project'); Garry Sinclair, Manager Clinical Quality and Patient Safety; Kenneth Lennox, Senior Employee Relations Adviser; Claire Blades, Employee Relations Adviser and Michael Conway, Manager of the Operational Information Unit of the Ambulance Service of New South Wales.

7 Mr Margerison's evidence went to explain the circumstances in which the claim was pressed. It arose out of the introduction of the Ambulance Service's new MPD system, which was introduced in August 2002. This is the system utilised when the Ambulance Service receives calls on the 000 line from members of the public who require ambulance assistance. It involves call takers asking callers a series of questions, using a computerised system known as the ProQA System, in order that the priority of each call can be properly determined.

8 Training of call takers in the MPD system commenced in November 2002, at various metropolitan and country locations. It was the Ambulance Service's proposal that the position of call takers, also known as operation centre communication assistants, or booking clerks and all operations centre officers (dispatchers), would be replaced by a new multi skilled position, to be known as emergency medical dispatchers. They were to be located at the Ambulance Service's four operational centres in Redfern, Warilla, Dubbo and Newcastle.

9 Discussions about the proposal between the Ambulance Service and the USU took place, while implementation of the new system progressed in a number of staged phases. Appropriate wage rates for the new position were discussed, amongst other matters. The failure of these discussions led to the USU to notify a dispute to the Commission in December 2002. The Union understood that the position of the Ambulance Service was that any increases in rates of pay would only occur 'at completion of the 1st round of recruitment related to implementation of restructure.' The Union pressed for wage increases in the meantime, having regard to the duties and responsibilities then flowing from the implementation of the new system.

10 Discussions about annualised salaries then also took place. The position of the Ambulance Service remained that the wages issue should await completion of the implementation of the new system. The parties, however, agreed to establish a working party to draft new position descriptions for the emergency medical dispatcher positions. Discussions about position descriptions for various grades of the new position ensued. Agreement was reached on 28 January 2003. The parties then resumed discussions of wage rates.

11 Those discussions did not progress satisfactorily and the threat of industrial action emerged in July 2003. Further proceedings ensued in the Commission, resulting in the establishment of a new 'Change Management Committee C2 Project', known as the 'C2 Committee'. The USU understood that Phase 4 of the implementation of the MPD system concluded in October 2003. This led to the claims for wage increases being pressed again, the C2 Committee still not having finalised new wages and conditions for the new structure. Threats of industrial action emerged again and a further dispute was notified to the Commission. No agreement about wage rates emerged in those proceedings, nor in the further proceedings notified to the Commission in April 2004. The result was that the variation of the Award was sought by the Union. No agreement about rates of pay emerged in the discussions between the parties about the claims here pursued.

12 Ms McDonald gave evidence about the work she performed as a full time call taker, employed by the Ambulance Service in Warilla in 1998 and the changes which resulted from the introduction of the computer aided dispatch system introduced in December 1998 and then with the introduction of the ProQA System, in March/April 2003.

13 Ms Wolfenden gave evidence about her work as a full time booking clerk employed at the operation centre at Redfern since 1992 and the changes which resulted in that work, with the introduction of the ProQA System in 2002.

14 Ms Smith gave evidence about her work, initially as a full time booking clerk employed at the Haymarket Control Centre in 1988, which relocated to Redfern in 1999 and later as a call taker; as well the changes which resulted from the introduction of the MPD system and the ProQA system. She also described the work of the quality support co-ordinators who now audit the work she performed and provide a monthly report on protocol compliance by employees such as she.

15 Dr Cumming provided a report which he had prepared, after an interview with Ms Smith; access to her affidavit and that of Ms Wolfenden and Ms McDonald, as well as an inspection at the Operations Centre in Redfern. He detailed his observations and interview; he reviewed the relevant research and provided a summary and opinion that:

'I believe that the shift from the earlier, manual system to adoption of the ProQA protocol has resulted in:

· Substantially increased time per call and shorter breaks between calls, resulting in reduced opportunities for informal peer support and debriefing between calls. · Substantially increased sense of personal involvement and responsibility of the call takers towards the callers, the patient, and other people involved in the case, including, on occasions, family and neighbours of the patient. · Substantially increased and more intimate exposure to trauma, grief, frustration and anger from callers, patients and their families. · Increased episodes of distress in the workplace and evidence of stress-related phenomena beyond the workplace.

In my opinion, the nature of the work carried out by the operators has changed dramatically with the introduction of ProQA- shifting from essentially a clerical role to one with substantial counselling and care provision responsibilities. This change increases the vulnerability of these operators to a range of work-related disturbances, concluding secondary traumatic stress. The added psychological burden associated with this new role could be recognized by the NSW Ambulance Service in a number of ways. The provision of additional recreational time, and greater flexibility for employees deciding when and how recreation time is taken is one method of compensating employees for increased workplace stress, especially if accompanied by increased flexibility about the timing of leave throughout the year.

16 Dr Cumming also explained the difference between 'secondary traumatic stress' which call takers risked encountering, in respect of which there has to date been little research and the kind of direct stress and trauma to which persons such as ambulance officers are exposed in their work.

17 Mr Pilon gave evidence about the work of the Service's four operations centres, where all requests for ambulance services in the State are received and ambulances despatched. He explained that the MPD and ProQA systems had been developed to link the receipt of calls and the despatch and transport of patients, with the treatment of the patient, in a 'chain of survival'. These systems had been developed overseas, over the last three decades. They provide a standardised method for calls to be taken, and information to be provided, so that those patients most in need of care can be identified, so that care is received in the shortest possible time. The medical protocol used was based on the 'zero minute concept', with the call taker being the first responder, eliciting information specific to the patient's condition from the caller, after standard information is obtained, with an orientation towards the safety of the patient, bystanders, emergency service responders and the call takers.

18 Mr Pilon described the advantages of full implementation of the system and the differences in the call taking process before and after the introduction of the MPD/ProQA systems. Training in the first four phases of the system has been undertaken progressively between October 2002 and July 2003, at the four centres. The system involves training and regular two yearly re-certification, as well as a quality and operations training support network. The re-certification process involves 24 hours of continuing dispatch education and a written exam. The former two week classroom training provided to call takers has been increased to three, with the introduction of the new system. Call takers must also now hold and maintain the currency of their first aid certificates.

19 Mr Pilon explained that the final phase 5 of the introduction of the new system has not yet occurred, but that he did not expect it to affect the call takers' work in any significant way.

20 Mr Peach explained the work involved in his current position. The original C2 project was due to be completed in August 2002. This did not occur. In August 2003, he was contracted to co-ordinate the completion of the various uncompleted projects, which he described. He also described the benefits which the project would deliver, when complete. He described the completion of phase 5 of the project as having become stalled, apparently as the result of a disagreement with the HSU, a matter in which the call takers and the USU were not involved.

21 Mr Sinclair's evidence also went to describe the MPD system, which he had seen in operation in the southern and eastern operations centres. He described the ProQA system as medically and script based. In his view, it had already provided improvements in patient mortality and morbidity in patients with life threatening conditions. It also had the potential to reduce bystander injuries, when hazards existed.

22 Ms Blades evidence went to statistical information kept by the Ambulance Service's Operational Information Unit in relation to the average length and number of calls taken at particular centres and by particular employees. As the result of discrepancies in the information which had been summarised, Mr Conway was called, to explain what information had been extracted and what it represented.

23 Mr Lennox's evidence went to various of the matters raised in Mr Margerison's evidence. He explained, for example, that given the Memorandum of Understanding signed by the parties in December 2000, the Ambulance Service was unable to agree to increases in wages, unless the USU followed the same process that the Nurses' Association had followed in relation to nurses. That memorandum, it must be observed, expressly provided that it recognised all work value changes up to 1 January 2000, but prevented any wage claims being pursued, prior to the expiry of the agreement in June 2004. The agreement provided for the phasing in of 16% increases in rates, over its life, in recognition of various productivity improvements agreed by the parties.

24 There can be no doubt of the very significant nature of the changes which have resulted from the Ambulance Service's introduction of the new computerised MPD and ProQA systems. The result of the introduction of those systems has been a new method of response to 000 calls, which enables the routine provision of immediate medical and other post ambulance despatch advice to emergency callers. In some cases, that advice is continued to be provided by call takers, until the arrival of an ambulance. This has undoubtedly already saved some lives and helped reduce others' suffering.

25 On the evidence, the introduction of phase 5 of this new system, will better enable the Ambulance Service to identify those 000 calls where life threatening conditions exist, so that an ambulance can earlier be despatched to such patients. At the moment the Ambulance Service has limited facility to give calls higher priority, depending upon a patient's condition. Implementation of phase 5 of the new system would also appear to be a further significant improvement over the current system. This is presently delayed as the result of a disagreement between the Ambulance Service and the HSU. The evidence of those called by the Ambulance Service however, was that this delay has had no impact upon the work of the call takers under the ProQA system. Their work will be unaffected by the implementation of phase 5 of the system.

26 The first question which thus here arises for determination, is whether, in accordance with the provisions of the current Work Value principle, there has been such a change in the work of the call takers, that there has been 'a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.' (See State Wage Case 2004 [2004] NSWIRComm 148 at [34].) On the evidence, there can be no doubt that this was demonstrated.

27 The test is that discussed by a Full Bench of the Commission in Re Public Hospital Nurses' (State) Award (No 4) [2003] NSWIRComm 442 at [16] to [22]. 16 The work value principle allows for award wages to be increased if it can be demonstrated that there have been changes in the nature of the work, skill and responsibility required or the conditions under which work is performed to such an extent that the changes constitute a significant net addition to work requirements so as to warrant the creation of a new classification or upgrading to a higher classification. The principle refers to this test as a "strict test". There must be no likelihood of wage leap frogging either within the internal award structure or against external classifications to which that structure is related.

17 Further, there should be no double counting. That is, changes that were, or should have been, taken into account in any previous work value adjustments are not to be included in any work evaluation under this principle.

18 These requirements under the work value principle impose a significant burden on an applicant, particularly because of the strict test requiring the applicant to demonstrate a "significant net addition to work requirements so as to warrant the creation of a new classification or upgrading to a higher classification". It might be asked how such a burden exists in a decade or more of rapid and continuing workplace change and the almost universal impact that phenomenon has had on employees. But as the principle makes clear, changes in work by themselves may not justify an increase in wages. Some changes bring about a net reduction in work requirements. Others merely reflect the evolving nature of the particular occupation where skills or responsibilities are lost and new ones gained without producing a net addition to work requirements. In many occupations, particularly professional occupations, change, and the requirement to cope with it by coming to terms with new methods and new technology, is an inherent and accepted characteristic of the employment and rarely will this evolutionary process attract extraordinary wage increases under the work value principle. In this respect, we note the observations of Fisher P in Re Medical Officers - Hospital Specialists (State) Award (1990) 33 IR 79 at 84 where, after referring to the work value principle, his Honour said: One of the problems with the application of the "strict test" to professional or managerial employment lies in the nature of the change. Change must be accommodated, being an essential part of what professional practice is all about. It does not follow therefore without more, that changes even spectacular changes, necessarily fall within the work value principle. Secondly it is to be understood that new techniques and procedures bring with them their own advantages. For every new technological advance there is likely to be somewhere an inferior technology in part or in whole abandoned. Superior technologies give superior results and tend to free practitioners from laborious, uncertain and stressful practice. Changes, subject to habitation, do not necessarily make things more difficult or more demanding. They may, but equally they may remove problems, decrease anxieties and uncertainties and as well be more rewarding and more productive.

19 Other changes to work which have occurred in the quest for greater productivity and efficiency may have already been compensated for by wage increases paid in recognition of the increased productivity and efficiency or by increases granted for earlier work value changes.

20 A tribunal charged with determining whether the tests under the work value principle have been met must carefully sift through the material that has been placed before it and separate out those changes which have occurred to the nature of the work, skill and responsibility of employees or to the environment in which the employees work and which have not previously been the subject of compensation. An objective assessment then has to be made as to whether the changes that have occurred amount to such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. The change is to be measured from the last time wages were increased on the basis of work value or from the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989, whichever is the later. An assessment is then to be made as to how that change should be measured in money terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work.

21 Finally, in relation to the application of the work value principle we refer to the Full Bench decision in The TAFE Case (unreported, Full Bench of the Industrial Commission of New South Wales, Matter Nos 515, 566 and 1619 of 1989, 7 August 1991) where after analysing the work value principle applicable at that time it was held at 44: We consider that reliance on this principle for general wage movements across all classifications in an award is not justified. Consideration of the phrases emphasised [by underlining] show that the purpose of this principle is directed towards specific work changes in specific areas. It was not intended that generalised across the board wage increases should be based on this principle.

22 We consider that the important point to be drawn from The TAFE Case is that if an applicant seeks wage increases for all classifications under an award the applicant carries the onus of demonstrating work value change in respect of each classification. It is not sufficient to contend, for example, that there have been changes in technology over the relevant period that have impacted on the work value of employees generally. It must be demonstrated how that impact has led to a significant net addition to the work requirements of each award classification in respect of which the increase is sought.

28 The evidence here showed that the call takers have been performing the work which the new system has required, in some cases since December 2002 and in others, since July 2003. There was an issue between the parties as to whether this was the appropriate time to measure and deal with the changes which the new work has introduced for call takers. On the evidence, I am satisfied that there is no proper basis upon which the view could be reached that there should be any delay in a consideration of the consequences of the changed work requirements for the call takers.

29 There are three aspects of a call taker's work. The taking of 000 calls, only some of which prove, in fact, to concern emergencies; the taking of routine non-emergency bookings for ambulances to transfer patients and response to other callers. The 000 calls take priority and form the major part of the work.

30 While some aspects of a call taker's 000 work has not altered - such as the recording of the caller's name, the address to which the ambulance should be sent, the phone number and the reason for the call - there have been very significant changes to other parts of the work. I am satisfied that these changes are not, as the Ambulance Service argued, merely a different utilisation of the same skills or an ordinary part of the evolving nature of the work of this position. Undoubtedly, the evidence showed that the call takers found this new work satisfying and rewarding. That cannot, however, deny the more difficult and demanding requirements which the new work imposes.

31 The evidence showed that this computerised system prompts the call taker to interrogate the caller, through scripted questions and instructions, as to details of the patient's condition; to give standardised post ambulance despatch instructions and in cases where first aid is required, to help the caller to provide such assistance to the patient. In a variety of situations, the call taker is required to stay on line, providing continuing assistance until the ambulance arrives. This is to the obvious benefit of the patient, as well as of assistance to the ambulance officers and medical staff who will eventually treat such a patient.

32 The inspection well demonstrated call takers calming down agitated callers; reassuring them that an ambulance is on the way; urging them to provide assistance to the patient, rather than simply waiting for an ambulance to arrive and providing them with step by step instructions as to how to provide that aid, including the provision of mouth to mouth resuscitation and CPR. The work requires, in such cases, for the call taker to remain on line, keeping the caller calm, encouraging the caller to begin and to continue providing aid, even when it may appear hopeless and to continue providing instructions and encouragement, to ensure that the caller provides the necessary aid, to the patient, during the wait for an ambulance to arrive.

33 Call takers spoke of delivering babies; dealing with adults and children who had drowned; heart attacks; accidents where people were pinned under tractors; children who had suffered severe burns, hangings, shootings and stabbings. Call takers have always responded to such emergency calls. Their interaction with such a caller now, however, lasts longer and their involvement in the emergency situation under the new system is different, given the interrogation, advice and interaction required to be sustained, until the ambulance arrives.

34 In metropolitan areas this can take up to 15 minutes or more and in rural areas up to an hour. Even in routine cases where this is unnecessary, the call taker's interaction with the caller has increased from an average of less than one minute per call, to over two minutes. The result of this change is that call takers, overall, deal with fewer numbers of calls, because each individual call takes longer than before.

35 The ProQ&A system introduced this new work for call takers, undoubtedly of great value to the public and involving serious new responsibilities for the call takers, in some cases providing assistance which can be life saving. Under the former system, when such assistance was provided to a caller, it was only with their acquiescence and then the call was always transferred by the call taker to be dealt with by an ambulance officer. Providing such assistance is now a routine part of a call taker's daily work, with the ProQA system providing scripted advice in a variety of life threatening situations, which the call taker gives the caller, even if it be resisted. Transfer to an ambulance officer now only results if the ProQA system has no scripted response for a particular situation, for example in the case of a stabbing, where the knife has been pulled from the wound. Call takers described how difficult this work was initially and how their confidence in dealing with callers in such situations increased with experience of the system, to the point where they are remaining on line with a caller, even as the patient dies, or are encouraging the caller to continue providing resuscitation in cases where the patient is unlikely to benefit from that aid being provided.

36 In providing this service, call takers have to interrogate callers and provide advice, even when the caller is resisting and questioning the need for such endeavours, or is being abusive or agitated, because of anxiety over the whereabouts of an ambulance, which they feel should already have arrived.

37 The evidence showed that while the system involves the use of scripted questions and advice, it does not involve call takers robotically reading and repeating these scripts. The prompts have to be used with empathy for the caller, who is likely to be distressed, who may not have English as a first language or who may have difficulty understanding the call taker, as a result of age or intellectual capacity. One witness, for example, described the challenge of encouraging a 10 year old boy with a disability, to give his collapsed father CPR.

38 The inspection showed that call takers have to paraphrase and repeat scripted information, in a variety of different ways, in order to ensure that information potentially vital to the patient, is understood and acted upon by the caller, who may not be required to assist the patient by the call taker, but must be encouraged to do so, even when it may appear hopeless. Some callers become frustrated and abusive, not appreciating the assistance which is being offered, when their major concern is the immediate arrival of an ambulance. Call takers also have to offer ongoing comfort and support to the caller, while the ambulance is awaited.

39 It was common ground between the parties that call takers were formerly required to exercise patience and to use good language and communication skills when receiving 000 calls. The new work clearly requires much greater application of those skills and far greater and longer interaction with callers, for a new purpose in some cases - the provision of first aid to patients. On the evidence, it can undoubtedly be challenging and distressing work. It is relevant that even ambulance officers performing the work of a dispatcher or supervisor, who in some circumstances also take calls, are required to now use the ProQA system.

40 The evidence also showed that the Ambulance Service operates various counselling and support services for its employees. There is a peer support system, where employees can themselves access peers trained to provide support to employees who have had to deal with traumatic events in the course of their work. The Service intended to train some call takers in this work, but that has not yet occurred. Clearly, it would be of potential benefit to call takers, who in some cases struggle with the emotional consequences of the new work which they are now called upon to perform.

41 It was also common ground that other aspects of the call taker's work had not changed and that a result of the introduction of the new system has been that call takers handle fewer 000 calls overall. There can be no doubt, however, of the changed nature of the work they perform in relation to 000 emergency calls and the increased responsibility which flows from that work.

42 The evidence also showed that the new work requires longer training; two yearly re-certification; ongoing quality control which may lead to disciplinary action if problems are not addressed by a call taker and the holding of a first aid certificate.

43 It was the Ambulance Service's case that until the entire system is introduced, with the completion of the stalled phase 5 and a possible restructure, whereby call takers would become multi-skilled also performing the work of dispatchers, (who presently also undertake call takers' duties), there should not be any consideration given to increased rates of pay for call takers. I am well satisfied that there has been such a substantial change in the nature of the work now performed demonstrated on the evidence, that justice would not permit any delay in its proper assessment and reward.

44 If there are further changes in call takers' work, that will have to be dealt with by the parties in the usual way. Likewise, if there have been changes in the work of other employees, as the result of the introduction of the new system, that too may have to be dealt with. That does not, however, lead to the possibility of leapfrogging or double counting. Such concerns would have to be considered in any subsequent proceedings. They do not arise at this point.

45 I am also satisfied that the changes in work which I have described are not of such a kind that they can be regarded as a part of the productivity improvements which the parties' earlier Memorandum of Understanding was designed to accommodate. Indeed, one of the consequences of the new system is that each call taker responds to fewer 000 calls overall, because of the new work which has to be performed in respect of each call. That is the result of the enhanced service to patients which the new system introduces. Undoubtedly, the introduction of the new system was a part of the productivity changes which the parties envisaged when they signed their Memorandum of Understanding. Co-operation in the introduction of that system and training and performance of the work required under it, was envisaged. On the evidence, the result of its introduction for the call takers has, however, been new work, of a kind sufficient to attract the operation of the work value change principle. As the Ambulance Service accepted in submissions, such work value changes are not accommodated by the Memorandum. It only encompassed work value changes up to 2000.

46 The Union's position was that its claim for a 42% increase was ambit and that the amount of any increase awarded was a matter to be determined in the Commission's discretion, in light of the evidence.

47 The Ambulance Service, of course, opposed any increase and submitted that a 42% increase was not warranted, even if it be accepted that a work value case had been made out. It was also argued that given the evidence that non uniformed dispatchers performed a multi-skilled role, which required the performance of call taking work, that any increase awarded would not result in rates higher than those paid to dispatchers. This accorded with the requirements of principle 6(a).

48 The evidence showed that the call taker's current rates have flowed from agreed increases ranging from 6.73% to 9.81%, as the result of the introduction of the computerised CAD system, operative at various dates after 1999. This agreement also introduced the trainee position. Further increases of 16% were agreed in the 2000 Memorandum of Understanding, which encompassed all work value changes to 1 January 2000 and which also paid for specific workplace reform, which included at the Ambulance Service, the adoption of on line service delivery; IT related infrastructure; job redesign and a willingness by employees to retrain for information technology skills and the support of electronic service delivery to customers. Those changes were phased in over time to 1 July 2003.

49 I have rejected the Ambulance Service's submission that the changed work has resulted from the ordinary evolution of call taker's work, in the context of the agreement reached in the Memorandum of Understanding. Nevertheless, the work value principle requires that in assessing the value of the change identified, that account be taken of the previous work requirements, the wage previously paid for the work and the nature of the change.

50 As I earlier noted, I accept that call takers have always been required to exercise good communication skills in their work, but have come to the conclusion that those skills are now being called upon in a very different way, with increased responsibilities resulting, so that a significant aspect of their work has changed significantly. It was common ground that other work has not changed and this too must be taken into account. Those calls which involve the most significant change in work were those 000 calls where the call taker must remain on line with the caller, while an ambulance arrives. Ms McDonald's impression was that she dealt with some 100 calls during an 8 hour shift, with 80% involving emergency situations. The statistics maintained by the Ambulance Service, however, showed quite a different picture, with far fewer calls being responded to per shift and that on average, some 63% of 000 calls were emergency calls.

51 The Ambulance Service's records also showed that in the total of approximately three months that Ms McDonald had performed ProQA work, she had been called upon to remain on line until an ambulance arrived on only seven occasions. Ms Smith and Ms Wolfenden had performed the new work for longer and in a period of 12 months, had remained online until an ambulance arrived on 170 and 61 occasions respectively.

52 It was common ground that how many such calls a particular call taker receives in any shift, or over any period is entirely unpredictable. Once such a call is received, however, whether a call taker must remain on line is determined by the ProQA system, having regard to the reason for the call, rather than as the result of any choice on the call taker's part. This means that in the course of a shift a call taker may receive none of these calls, or a number, but must always be ready to deal with them. There is no mechanism whereby a call taker may take a break after a particularly difficult call. If the 000 line is busy, they will be called upon to pick up calls, without a break. Staff shortages also have an impact on a call taker's ability to take breaks, on occasions.

53 All of these matters must be considered in determining an increase in rates, having regard to the nature of the work, the responsibilities which must be exercised in its performance and the conditions under which it is performed.

54 Having considered all of these matters, I have concluded that a wage increase of 9.5% is warranted. This has regard to the nature of the changed work, the evidence of the amount of such work and the frequency with which call takers might be called upon to perform it, as well as the evidence of the existing rates and how they have come about, in the context of the other work performed by dispatchers and the rates which that work attracts, matters which the Work Value principle requires be taken into account.

55 Call takers are entitled to five weeks' annual leave, as a result of their shift work arrangements. They also receive an additional two weeks' pay, in return for working on public holidays.

56 I am not satisfied that a case has been made out for additional leave, given the evidence of the new work required under the ProQA system and its consequences. The system has not long been in operation. Only three call takers gave evidence, one of whom has only performed the new work for a limited time of some three months. While the nature of the work has undoubtedly changed, so as to warrant the new rates of pay earlier dealt with, I am not satisfied that the nature of the changes and their consequences are such that additional annual leave is also warranted.

57 In coming to this conclusion I have considered the requirements of the Special Case principle. I am satisfied that those requirements have not been met in this case. The applicable principles are those discussed by a Full Bench of the Commission in Re Operational Ambulance Officers (State) Award (Unreported, 18 December 2001, Walton J Vice President, Grayson DP and McLeay C at [164] to [169]). They impose an onus on the applicant to establish, on the evidence, the special attributes of the circumstances in question, which permit a departure from the existing position and the requirements of the Commission's ordinary wage fixing principles.

58 That decision provides a useful illustration of the type of evidentiary case necessary to be made out, in a Special Case such as this, were the claim here advanced to be granted. There extensive evidence was led from over 20 long serving Ambulance Officers, of their experiences when attending to emergencies where people had suffered terrible injuries or had died, and also of the consequences of their work for them. Extensive expert evidence was called which was accepted, at [190], as establishing that 'there are serious and pervasive risks to the psychological health and safety of the officers occasioned by their work'.

59 Evidence was also led as to the leave which ambulance officers employed in other States and Territories enjoyed, as well as evidence going to the cost and economic consequences of the claim being granted, as well as worker's compensation patterns over time, amongst ambulance officers.

60 The Full Court determined on the evidence that a further one week's annual leave for ambulance officers was warranted, increasing their leave to six weeks, adopted as an appropriate reflection of the disabilities which their work imposed upon them, described at [188] as 'an environment in which the officers were consistently exposed to the risk of psychological illness and injury by the nature of their work exposing them to emergency situations'. It being concluded at [192] 'that an increase in the quantum of leave presently available to ambulance officers engaged in shift work would substantially assist in the avoidance of the risk of psychological injury and the adverse consequences of acute stress presently existing in the Service for such officers'.

61 I am well satisfied that while the work of callers, including that flowing from the ProQA system, undoubtedly imposes important responsibilities upon them and now requires them to deal with traumatic situations in a way unlike what was required of them in their former duties, nevertheless, an evidentiary case of the kind made out in the Ambulance Officers case was neither here attempted, nor made out. The evidence of the witnesses called in this case as to the consequences of their work, was not such that a conclusion that extra leave was required could be reached. Dr Cumming's evidence also highlighted the difference in the potential consequences of what ambulance officers and call takers are exposed to, in the course of their duties. For call takers, he agreed that additional leave was but one way in which such consequences might properly be dealt with. He outlined a number of other strategies which might be considered.

62 It has long been the position that conditions under which work is performed, which give rise to risks to safety, cannot be dealt with merely by awarding higher rates or fewer hours. The risks themselves have to be dealt with. (See In Re Government Railways and Tramways (Construction Award) [1926] AR 92 at 94.) No case was made out for a departure from that prima facie position, in these proceedings. Considerations of the kind accepted as having arisen and requiring the grant of extra leave in the Ambulance Officers case were not here made out.

63 The evidence, such as it was, suggested however, that there might be real utility in employees being offered the choice of taking the additional two weeks' pay received during annual leave in the form of leave, rather than as additional pay, or in employees being offered the opportunity to take time off in lieu of payment for overtime. I am satisfied, however, that such alterations to the present award provisions may not be awarded in these proceedings, given the respective cases which the parties advanced.

64 Given the evidence, they are however possibilities which I recommend that the parties should actively consider. It may well be the case that for some employees, additional time off work would be attractive, indeed, more attractive than additional pay. Like in the Ambulance Officers case, consideration should also be given to difficulties apparently experienced by call takers in arranging leave - with in some cases 12 to 18 months' notice of leave needing to be given. Some consideration should clearly be given to the patterns of leave and how it is arranged, including whether it is regularly available, for example at six monthly intervals.

65 Consideration also needs to be given by the Ambulance Service to the consequences of the new work requirements for call takers. The proposals in relation to the peer support system, for example, should plainly be revisited. It may also be the case that for some individuals, the possibility of electing to take additional paid leave, on some agreed basis, or in ensuring that there is greater flexibility in how annual leave is arranged and how far in advance it must be organised, would assist the Ambulance Service to ensure it met its obligations to the employees under the Occupational Health and Safety legislation. The consequences of staff shortages for employees, such as a practical inability for breaks to be taken, even after a traumatic 000 call is dealt with to the point of arrival of an ambulance, should also be considered. This may require the approach presently adopted by supervisors in such situations to be reviewed. Such matters plainly require further and ongoing monitoring and discussion by the parties.

66 The current Award sick leave provision, clause 27(a), provides: a. Full-time employees shall, subject to the production of a medical certificate or other evidence satisfactory to the Service (which may include a statutory declaration) be entitled to sick leave as follows:

i. For service prior to 1 July 1985, five (5) days sick leave during the first year of service and eight (8) days' sick leave for the second and subsequent years of service; and

ii. For service from 1 July 1985, ten (10) days sick leave during each year of service, provided that any employee employed prior to 1 July 1985 shall not be entitled to accrue sick leave at the rate referred to in this paragraph until the employee's first anniversary date on or after 1 July 1985.

iii. All sick leave referred to in this subclause shall be granted on full pay.

67 The evidence showed that call takers may work shifts of varying lengths under the Award, from 8 to 12 hours, including night shifts. It was common ground that if a call taker is ill, the absence is not treated as a day's sick leave, as the Award contemplates. Payment is not made for the ordinary hours which would otherwise have been worked on that day, with a days' sick leave being deducted from the accrued entitlement. Rather, the Ambulance Service deducts the number of hours which the employee would have worked, if not sick, from the employee's notional sick leave entitlement, calculated on an hourly basis. That entitlement is calculated on the basis of a day's sick leave representing 7.6 hours work.

68 The Award provides in clause 7, Hours of Duty, that ordinary hours of work are 152 per 28 calendar days, not exceeding an average of 38 per week for shift workers, in each roster cycle. The complete Award history was not in evidence, but it was the case of the Ambulance Service that ordinary hours of 38 per week, followed an agreed increase in hours, from 35, in return for a wage increase.

69 A 'day's sick leave' is not defined in the Award. The concept of converting a day's sick leave into a number of hours, is also not to be found in the Award. While many awards contain sick leave provisions which operate on an hourly basis, including that which applies to Ambulance Officers, who are entitled to 114 hours' sick leave per annum, this is not such an award.

70 The way in which an award is to be interpreted is well settled. (See Bryce v Apperley (1998) 82 IR 448, applied by Peterson J in TWU v Linfox Australia Pty Ltd [2003] NSWIRComm 97, in the context of interpretation of an award sick leave provision.) This case was, of course, not argued on the basis of the proper interpretation of the current Award, but rather a claim for variation of the Award, given the current practice and what was submitted to be an ambiguity in the Award provision.

71 Section 10 of the Act obliges the Commission to set fair and reasonable conditions of employment. As the Full Bench in Re Pastoral Industry Award (2001) 104 IR 168 made clear, award conditions are taken to be presumptively fair, but are not immutable, if a case for change be made out on the evidence.

72 In this case, I can see no reason why, in the case of the Award which applies to the work of call takers, which permits the Ambulance Service to engage call takers to work under roster arrangements with shifts of varying lengths, of up to 12 hours per day or night, that an employee ought to be penalised, if he or she is unfortunate and happens to fall ill when rostered to work for 12 hours, rather than 10, 9 or 8. The end result of that approach appears to be that such employees will not, in reality receive the 10 days' sick leave, seemingly first agreed in this Award in 1985. That does not appear to be a fair or just result, particularly when consideration is given to the new work and responsibilities which has resulted for call takers from the introduction of the ProQA system.

73 The evidence showed that call takers on occasions now exhaust their sick leave and must take leave without pay when ill, because of the practice of converting their day's sick leave entitlement into a notional 7.6 hours, and deducting all hours which would have been worked on a particular day, from a bank of sick leave calculated on that notional hourly basis.

74 I am satisfied that justice requires that call takers be paid a day's sick leave, when sick, at the rate which would have been paid, if the employee had been well and had performed the ordinary hours of work for which he or she was rostered that day. This, it seems to me, is a just counterpart to the extremely flexible shift patterns which this Award facilitates and reflects the historical position discussed by Peterson J in Linfox, that award provisions such as this, in fact, limit the employees' entitlement at common law to be paid, even if absent from work due to illness. (See also the discussion in Mills CP, New South Wales Industrial Laws, 4th ed, Butterworths, Sydney 1977 at [290]). It may, in fact be what the current Award provides for, given the entitlement to receive sick leave 'on full pay', a condition seemingly agreed in a context where the ordinary hours of work were some years ago increased to 38 per week, given that the Award Hours provision permits shifts of up to 12 hours per day, with ordinary hours averaged over 28 days. I, however, find it unnecessary to further consider that question. It was one which the parties did not, in reality, attempt to address in this case.

75 The counter argument, that the end result will be that some employees might receive more paid sick leave than others, is only correct if sick leave is considered on an hourly, rather than a daily basis and then only in the case of an employee who is so frequently ill, that all sick leave is taken up, with all sick days taken happening to fall on shifts where 12 hours are worked, with other employees only falling ill, when fewer hours are rostered. There was no evidence upon which it could be concluded that this was a real concern, or likelihood. I am satisfied that this possibility is not a proper basis for refusing the claim.

76 I am well satisfied, on the evidence, that the variation sought by the USU must be granted, in order to ensure that the Award provides for fair and reasonable sick leave conditions for the employees in question, given the work which they are required to perform and the arrangements made in the Award for its performance. I am also satisfied that the requirements of the Special Case principle have been met in respect of this claim.

77 The Union sought an operative date of all variations from the date of filing its application. The operative date of any variation is a discretionary matter. The usual approach of the Commission is that award variations should operate prospectively from the date of the decision in arbitrated cases, unless there be shown some proper reason for an earlier operative date being ordered.

78 The parties' agreement in the Memorandum of Understanding, that no claims for any increase should be made before July 2004, is a factor relevant to a consideration as to whether there should be any departure from the usual approach in this case. So, too, was the Union's failure to adhere to the initial timetable for hearing the application. The Union advanced no arguments as to why there should be any departure from the usual approach in this case. A retrospective date was opposed by the Ambulance Service. It follows that the variations must operate prospectively, in the ordinary way.

79 I order the variation of the Award, as from the date of this decision, to introduce the new classification, with rates of pay 9.5% higher than those currently prescribed and the varied sick leave provision sought.

80 The parties should confer on the terms of the variation to give effect to this decision. That document should be filed by the Union within 14 days. ------------------------

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