Industrial Relations Commission New South Wales Medium Neutral Citation: Application by Health Services Union NSW for NSW Ambulance On-Call Related Transitional Benefits Award [2021] NSWIRComm 1003 Hearing dates: 9 and 10 September 2020 Date of orders: 29 January 2021 Decision date: 29 January 2021 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan Decision: Matter 2019/199124 is dismissed. Leave is reserved to the HSU to apply on reasonable notice to have matter 2018/359122 relisted if the Commission's further assistance is required in respect of the Notification. If the HSU does not contact the Registry prior to 26 February 2021 seeking to have the matter relisted or an extension of time, the file will be closed administratively. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for new award to compensate employees for loss of on call allowance and overtime following workplace changes – whether special case made out for making of award Legislation Cited: Health Services Act 1997 (NSW) s 116 Industrial Relations Act 1996 (NSW) ss 3, 10, 130, 136, 146, 146C Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) cll 6, 8, 9 Cases Cited: City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 Re Crown Employees (Christmas, New Year and Easter Half-Day Award [1991] 39 IR 440 Re Operational Ambulance Officers (State) Award (2001) 113 IR 384; [2001] NSWIRComm 331 Re Pastoral Industry (State) Award (2001) 104 IR 168; [2000] NSWIRComm 27 State Wage Case 2019 [2019] NSWIRComm 1065 Application for Crown Employees (Public Sector – Salaries 2020) Award and Other Matters (No 2) [2020] NSWIRComm 1066 Re Crown Employees (New South Wales Department of Family and Community Services) Residential Centre Support Services Staff Award 2015 [2017] NSWIRComm 1058 Category: Principal judgment Parties: Health Services Union NSW (Applicant) Health Secretary (Respondent) Australian Paramedics Association (NSW) (Intervener) Representation: J Fox (Applicant) D Fuller of Counsel (Respondent) T Kiat (Intervener) File Number(s): 2018/359122 and 2019/199124 Publication restriction: No DECISION Introduction 1. In June 2018 the NSW Government announced its intention to invest in services and capital works for NSW Ambulance, which would include the employment of an additional 700 paramedics and 50 call centre staff over a four year period. In 2018 NSW Ambulance began to implement an initiative it described as the "Statewide Workforce Enhancement Project", commonly abbreviated as "SWEP". The SWEP was designed to manage the recruitment and deployment of the extra paramedics and call centre staff. 2. The deployment of additional paramedics has resulted in roster changes at a number of ambulance stations. In particular, some stations have moved to 24/7 rosters from previously more limited rosters. One of the consequences of these changes is that some paramedics have seen, or are expected to see, a significant reduction in their earnings as a result of no longer being required to be on call or to be recalled to duty outside of rostered hours. 3. The Health Services Union NSW ("HSU") has applied for a new award to be known as the "NSW Ambulance On-Call Related Transitional Benefits Award" ("Proposed Award"), which would provide for certain benefits to be paid to paramedics who were but are no longer required to be on call as a result of the SWEP. Those benefits are compensatory in nature, to use that term in its widest sense. They are claimed by the HSU to ameliorate the short to medium term impacts of the reduction in the employees' earnings, and to allow the employees to meet the long-term fixed costs for which they are liable as a consequence of having historically worked on call. 4. The Health Secretary [1] ("Secretary") opposed the making of the Proposed Award. Determination 1. We have determined that the HSU has not discharged its onus of establishing a special case for the making of an award, whether on the terms of the Proposed Award or on any other basis. Our reasons follow. Procedural background 1. These proceedings were commenced on 22 November 2018 by the HSU filing with the Office of the Industrial Registrar ("Registry") a notification of an industrial dispute ("Notification") pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Act"). The Notification described the dispute as follows: "4. The question, dispute or difficulty concerns the following industrial matters: a) The respondent is employing more than 700 extra paramedics over the next four years. b) Where and when the deployments occur have several impacts on HSU's membership, e.g., roster format changes. c) The Award at clause 6 requires genuine consultation to occur between the parties for any proposal that will have a significant effect. d) The respondent is refusing to provide HSU delegates with information that will allow genuine participation in the decision-making process through consultation. e) We dispute the respondent's application of the Award in particular its consultation provisions. f) HSU has followed the steps of the dispute resolution procedure and no settlement of our dispute has been achieved. g) HSU delegates seek the assistance of the IRC to settle this dispute." 1. The award to which the Notification referred was the Operational Ambulance Officers (State) Award. 2. The matter was allocated to Murphy C. At the first listing of the matter before the Commissioner the Australian Paramedics Association (NSW) ("APA") sought leave to intervene in the proceedings. There was no opposition to the APA's intervention and leave was granted. 3. Murphy C unsuccessfully attempted to resolve the proceedings through conciliation between November 2018 and May 2019. 4. On 27 June 2019 the HSU filed with the Registry an application for the making of the Proposed Award ("Application"). The HSU made the Application "under s 10 [of the Act] (by way of section 136(1)(b) [of the Act])". The Application was assigned a matter number separate to the Notification, in keeping with the practice of the Registry. However, the case advanced by the HSU was that the relief it sought in respect of the Notification was an award in the terms proposed in the Application. That is, the making of the Proposed Award would determine the proceedings arising from both the Notification and the Application. 5. The progress of the proceedings became convoluted for a period as they became entangled with other matters. The first of these arose from a notification from the APA to the Commission on 30 May 2019 of its intention to make an application in respect of a major industrial case, pursuant to Practice Note 8A. The application foreshadowed by the APA was for a new award to replace the Operational Ambulance Officers (State) Award. The second involved a separate application by the Secretary for variations to the Operational Ambulance Officers (State) Award. These matters, together with the Notification and Application, were assigned to Sloan C for conciliation. 6. It is not necessary to traverse all of the resultant developments. Suffice it to say, on 18 July 2019 Sloan C directed, by consent, that the Application and the Notification proceed separately to the other matters then before him. Directions were subsequently made which anticipated a hearing of the Application before the Commissioner in May 2020. 7. As will be explored below, the HSU presented its case on the basis that it was a special case within the meaning of the Commission's Wage Fixing Principles, as most recently re-affirmed by the Full Bench in State Wage Case 2019 [2019] NSWIRComm 1065 at Annexure A of Annexure 1. Following representations made by the APA, the Commission determined that the hearing would be conducted by a Full Bench. [2] 8. The hearing took place on 9 and 10 September 2020. Mr J Fox, an industrial officer with the HSU, appeared for that union. Mr D Fuller of counsel appeared for the Secretary. Mr T Kiat, an industrial officer with the APA, appeared for that union. Factual context 1. NSW Ambulance has stations situated throughout the State. The staffing of those stations is determined by NSW Ambulance having regard to the clinical needs of the community in which each station is based. In more densely populated regions where demand for services is higher, rosters are generally arranged to provide 24/7 cover. In other areas, typically in regional and remote NSW, rosters are arranged primarily with a mix of day and afternoon shifts, with demand at night being covered by paramedics on call. 2. Paramedics are covered by the Paramedics and Control Centre Officers (State) Award 2019 ("Paramedics Award"). The Paramedics Award, which took effect from 1 July 2019, rescinded and replaced the Operational Ambulance Officers (State) Award. 3. Clause 23 of the Paramedics Award is titled "Employees on Call". The relevant features of the clause for the purposes of these proceedings may be summarised as follows: 1. a distinction is drawn between "on call" and "recall"; 2. an employee who is rostered off duty can be required to be on call, meaning to "hold himself or herself in readiness to answer a call": cl 23(a)(i). Employees required to be on call are entitled to an on call allowance, which is currently $23.60 per day or $94.70 per week; and 3. if an employee who is on call is recalled to duty, he or she is entitled to be paid for a minimum of four hours at overtime rates for each time he or she is recalled. Being recalled to work was often referred to by the HSU's witnesses as a "call out". On call requirements 1. The HSU called evidence from 11 paramedics employed in NSW Ambulance. Several of those witnesses described what was required when they were on call. For example, Jamie Schippers, who is stationed at the Singleton Ambulance Station, stated: [3] "5. On-call means being available 24/7 whilst rostered to attend to/assist with local emergencies. It involves the following: a. Staying within town limits; b. Not consuming alcohol; c. Staying within 5 minutes of my ambulance always; d. Taking my uniform with me wherever I go; e. Always remain clean shaven and available to respond day or night; f. Not being in a situation where I am alone with the kids in case a job comes in – this means my wife cannot work, leave town, go swimming, to the movies etc" 1. Tim Davenport is stationed at Nambucca Heads. He stated: [4] "8. Prior to this roster amendment, when I was on-call I was required to: a. To [sic] hold myself in readiness to respond to cases outside of day-shift hours; b. Take home an ambulance with requisite drugs signed out; c. Have a mobile phone with which to be contacted; d. To remain within an area close enough to respond to cases in a timely manner; e. Live in a home within the Nambucca Heads area[.]" 1. All but one of the witnesses called by the HSU deposed that it was, or at least had been, a requirement of their employment that they be available to perform on call duties and that they take up residence in close proximity to their stations. Drew Laffey is stationed at Woolgoolga Ambulance Station. Annexed to his statement was a letter dated 11 January 2017 confirming his "lateral transfer" to Woolgoolga. [5] That letter stated: "You will be required to perform on-call duties at the appointed station and take up residence in Woolgoolga." 1. The HSU tendered a letter dated 21 December 2010 [6] confirming a job share arrangement in respect of Stephen Drew, who was called to give evidence by the HSU and is also stationed at Woolgoolga. That letter stated: "To enable you to perform on-call duties you are required to take up residence in Woolgoolga and live within a commutable distance of the station to satisfy on call in accordance with the rural on-call Policy." 1. The HSU also adduced a copy of a position description for an Ambulance Officer position in Nambucca Heads dated 29 September 1996. [7] It stated: "The successful applicant will be required to take up residence in Nambucca Heads and carry out general ambulance duties. Will be required to be 'on-call' and will be required for relief duties." 1. A number of the HSU's witnesses deposed that the requirement to reside in the same location as their station had resulted in them purchasing homes other than in their preferred locations and at a greater cost than they might otherwise have been required to expend. For example: 1. Mr Davenport stated: [8] "13. Additionally, I purchased a house in Nambucca Heads, four minutes from the Ambulance station. If not for the on-call requirement to live in the immediate Nambucca Heads area, I may have purchased a house further from town, eg. Macksville, Scotts Head, Urunga, Belingen [sic]. This may have presented some cheaper options but I'm unable to quantify this." 1. Bruce Gibson, who is based at Singleton Ambulance Station, stated: [9] "5. I was required to live in Singleton, close to the station, as a condition of my employment to facilitate on-call requirements. We would never have bought our current home had there been no on-call." 1. Mr Laffey stated: [10] "13. We had considered buying a small acreage and were considering Nana Glen. However, Nana Glen is outside the required distance/response time for on call. Similar properties in Woolgoolga and surrounding areas that met the on-call requirements were outside our budget." 1. William Rathbone, who is stationed at Evans Head Ambulance Station, stated: [11] "3. When I accepted the role, I was required to agree that I would be available for the five nights on call that came as part of the roster. As part of that I was required to live within the 'on-call response area' which in effect meant the town of Evans Head. As there were no places to rent being a small town and all available rentals taken by highway workers I purchased a property to fulfil the requirement[.] It is substantially more expensive to live in Evans Head itself." 1. Mr Schippers stated: [12] "8. I'm worried about this reduction in income because my wife and children had to move to Singleton with me to fulfil the on-call requirements. We were forced to buy a house here rather than where our family are situated. We did so assuming house values would not increase as much as it would in other places, but this was not of concern as we never anticipated needing to sell the house as on-call was sufficient to service the mortgage while still allowing money to live on comfortably." 1. Hannah Tunsted, who is stationed at Woolgoolga, stated: [13] "3. On-call work required me to be available to respond immediately when the phone called with the job. For the most part at Woolgoolga Station between the hours of 1800-0800. I was required to live within approx. [sic] 10km radius of the Woolgoolga township. … 7. The purchase of land and home in the Woolgoolga township to fulfil on-call requirements. We might have considered property west of the township." 1. Wayne McKenna is the Deputy Director Clinical Operations for Northern Sector, NSW Ambulance. He was called to give evidence on behalf of the Secretary. He stated: [14] "47. The requirement to live in the same locale as the ambulance station has changed over time. More than a decade ago now, it might have been common that it was an express requirement to live in the same town or no further than 8 minutes away from the station. I recall the expression of this requirement varying quite frequently over the years until the 'Rural On-Call Policy' was updated in 2007, then again in 2017. The current revision does not require a specific location or distance anymore. It has been updated so that paramedics must demonstrate that they are able to meet the service standards, otherwise applications for transfer will be declined. …" 1. Notwithstanding any changes that might have been made to the "Rural On-Call Policy", Mr McKenna deposed during his oral testimony that paramedics who are required to be on call have limited options. They can either reside permanently in the town in which they are stationed, or maintain a primary residence elsewhere and stay in town in temporary accommodation during the periods that they are rostered on to work or are on call. 2. We are satisfied on the evidence that the HSU's witnesses were required to reside in proximity to their stations, and that they have complied with this requirement. The Statewide Workforce Enhancement Project 1. On 15 June 2018 the NSW Government issued a media release in connection with the 2018 NSW Budget. The media release referred to a commitment by the Government to employ a further 750 paramedics and ambulance call centre staff over the following four years. The NSW Budget 2018 was stated to provide for: [15] "$23.7 million in 2018-19 to employ an additional 200 paramedics and 13 call centre staff (part of 700 paramedics and 50 call centre staff over the next four years) to improve response times, reduce paramedic fatigue and support safety." 1. This commitment was reiterated in the following year's budget. In a media release issued by the NSW Government on 18 June 2019 it was announced that the NSW Budget 2019 would provide for: [16] "$27.1 million in 2019-20 to employ an additional 221 paramedics and call centre staff (part of 750 paramedics and call centre staff over four years) to improve response times, reduce paramedic fatigue and support safety." 1. The SWEP was developed by NSW Ambulance in response to the Government's announcement in 2018. In broad terms, the SWEP aims to manage the recruitment and deployment of the additional paramedics and call centre staff which the Government has committed to deliver. 2. Jordan Emery is the Deputy Director Clinical Operations for the Hunter New England Sector, NSW Ambulance. He was called to give evidence by the Secretary. He stated: [17] "12. The SWEP is an initiative that will implement and deliver an additional 700 paramedics and 50 control centre staff over four years. So far, the enhancements within the first two years of SWEP have either commenced the consultation phase or have been implemented. We are currently in the third year of the program. 13. SWEP has been rolled out by adding additional staff to existing stations. In some circumstances, it has facilitated the rostering of additional shifts over times where no ordinary shift has previously been rostered. For example, at some stations prior to the roll out of the additional staff, if work arose in times where there was no rostered shift, the work was ordinarily performed by overtime such as recalling staff who are on call to work. Where there is a dedicated shift now covering these periods, there is a reduced requirement for work to be done on overtime and recall of staff. 14. The changes I have seen so far in other stations and sectors that have had SWEP enhancements involve improvements to the station's assets, infrastructure and funded full-time equivalent ('FTE') paramedic positions. Additional paramedics have been recruited to fill those additional FTEs. … 16. Throughout FY2018/19 the rollout of additional paramedics was spread between metropolitan stations and regional stations. In FY2019/20, 187 of the additional 221 FTE paramedic positions rolled out were to regional stations. Regional stations are planned to receive the majority of FTE enhancements in the third year of SWEP as well. 17. It is important to note there are two main parts to SWEP: one part is roster enhancements at stations that already have 24-hour rosters; and the other part is 24-hour conversions which also require staffing enhancements at rural locations. …" 1. Mr McKenna stated: [18] "17. As a general overview, the rollout process for SWEP can be distilled down to four phases: (1) identifying and procuring the assets & infrastructure required for the enhancement; (2) socialising the outcome within the Service at all levels (including external stakeholders such as unions) and consulting with the staff on the rostering)[sic]; (3) establishing the new FTE positions in the system; and finally, (4) recruiting for the vacant newly funded positions. … It should also be noted that multiple stations across sectors are planned for enhancement concurrently throughout the financial year, and each station takes on its own timeline for the consultation and negotiation phase." 1. A significant amount of the evidence contained in the statements of Messrs Emery and McKenna went to the justification for the "enhancements" delivered or to be delivered by the SWEP. Their evidence traversed risks associated with fatigue. They also deposed as to their views on the operational and financial inefficiency of on call arrangements, relying as they do on the use of "premium labour" [19] and requiring paramedics resting after being recalled to work to be covered by other labour. 2. For their part, a number of the witnesses called for the HSU offered their views as to the merits or otherwise of the changes that have been made or foreshadowed as a result of the SWEP. Some of them voiced their dissatisfaction with the fact that NSW Ambulance had not agreed to, or even properly considered, alternatives that have been proposed by the workforce. 3. However, in these proceedings the Commission is not called upon to determine the merits or otherwise of the SWEP or of the changes that have been made or proposed as a result of it. As will be seen, the Proposed Award assumes that the changes anticipated under the SWEP have been or will be implemented. The purpose of the Proposed Award is to provide "some transitional benefits to employees affected by the significant loss of income, in both the medium term and the long term". [20] 4. For these reasons, while we have considered the evidence as to the necessity for, or desirability of, the changes sought to be introduced by the SWEP, it has not featured heavily in our determination of the Application. The consequences of the SWEP 1. Most relevantly for present purposes, the SWEP has seen a number of stations implement 24 hour rosters. This has predominantly affected regional and rural stations. Where those stations might previously have operated only with day and afternoon shifts, paramedics are now working a night shift as well. The effect is that paramedics at those stations are no longer required, or are less likely to be required, to be on call or to be recalled to work outside of rostered hours. 2. The witnesses called by the HSU are aggrieved at the impact which the SWEP has had or is likely to have on them, particularly from a financial perspective. They each deposed that as a result of the SWEP their income will be significantly reduced, putting pressure on their ability to meet their financial, family and other commitments. In summary: 1. Mr Davenport stated that his income would reduce from approximately $125,600 to approximately $72,700; 2. Mr Drew expected his income now to be in the range of $105,000-$110,000, having been $141,000 and $145,000 in the previous two financial years; 3. Mr Gibson stated that he expected his income to be reduced by approximately $40,000 to $50,000 on an annual basis; 4. Michael Grayson, the Station Officer at the Batemans Bay Ambulance Station, described the financial impact of removing the on call allowance and the call out payment as "basically being made redundant from half of your job"; [21] 5. Phil Joy, who is stationed at the Muswellbrook Ambulance Station, estimated that his earnings from the on call allowance and call outs were in the vicinity of $60,000. He stated that the reduction in his earnings would require him to sell his home, most likely at a loss; 6. Peta Kentwell, who is stationed at the Inverell Ambulance Station, estimated that she would lose approximately $70,000 a year "from just callouts alone". [22] In anticipation of this reduction in income, she has put her house on the market for sale; 7. Mr Laffey anticipated his gross income would drop below $100,000 for the 2019-2020 financial year, having been $168,399 the previous year; 8. Bryson O'Donnell, who was stationed at the Singleton Ambulance Station at the time he made his statement but who at the time of the hearing had transferred to the Merriwa statement, anticipated his income reducing by approximately one third, to approximately $100,000 per annum from a gross income in the 2018-2019 financial year of $149,027; 9. Mr Schippers stated that his income is generally around $135,000 but with on call removed it will be "dramatically reduced"; [23] and 10. Ms Tunsted anticipated an approximately 50% reduction in her weekly pay. 1. The evidence of Mr Gibson, Mr Joy, Ms Kentwell, Mr O'Donnell and Mr Schippers has to be considered in light of the fact that as at the date of the hearing there had been no changes to the rosters at their stations as a result of the SWEP. That said, changes had been proposed and were at that time the subject of consultation. 2. Mr Emery recognised, to a point, the financial implications of the SWEP changes on paramedics who are no longer required to be on call at their stations. He stated: "64. I understand the reasons for wanting to remain on the traditional on call arrangements. They are lucrative and they provide a significant income compared with the effort and number of hours actually worked. I have experienced this personally as I described above." 1. A number of the HSU's witnesses stated that they were unaware of any intention on the part of NSW Ambulance to remove the on call arrangements prior to receiving a communication to that effect as part of the SWEP. Their evidence was to the effect that they had an expectation that they would continue to be employed on an on call roster. In particular: 1. Ms Kentwell stated: [24] "2. I have worked for NSW Ambulance for the last 16 years. I have always worked on-call during my entire career. Even in my trainee year, when I travel back to Quirindi on my days off, I did on-call work there, as they were short staffed. It has always been expected as a part of my work, to do on-call components and [I] have been required to live within a 15-minute response time, to facilitate on-call, in practice this means living in the town I'm stationed with. I did not think that on-call work would ever not be a part of my position as an on-road paramedic. … 17. There were no assurances that my income would continue as it has previously been, but also there was no official advisement that it would change up until now. Penalties, overtime and on-call have been the 'norm' for my entire career with NSW Ambulance." 1. Mr Laffey, who moved to Woolgoolga in 2017, stated: [25] "3. I did not expect on call to stop as even with my most recent posting at Woolgoolga I was required to a [sic] sign an agreement stating I would make myself available for on call and reside within the required distance/response times to the station before being accepted for the position. … 10. Neither in the letter of offer, or when initially moving to Woolgoolga and locating a rental property, or whilst in the process of buying a principle [sic] place of residence within the required distance/response times was I informed that there was any possibility the requirement of working on call was going to stop." 1. Whatever may have been the understanding or expectations of the HSU's witnesses, none of them had received any express promises or assurances that they would always be entitled to work on an on call roster. Ms Kentwell acknowledged this at par 17 of her statement reproduced above. Each of the HSU's witnesses who gave oral testimony made similar concessions during the course of their cross-examination by Mr Fuller. 2. Against this factual background it is next necessary to consider the terms of the Proposed Award sought by the HSU. The Proposed Award 1. The Proposed Award has been through two iterations since the Application was filed on 27 June 2019. The HSU filed an "Amended Application for New Award" on 6 November 2019 and was given leave to file a further "Amended Application for New Award" at the outset of the hearing on 9 September 2020. It is the version of the Proposed Award attached to the further Amended Application which is relevant for present purposes. Consistently, in the discussion which follows a reference to the "Application" is to be read as a reference to the further Amended Application. 2. The key features of the Proposed Award may be summarised as follows: 1. The Proposed Award would apply to "Eligible Employees" at "Affected Stations". 2. An Affected Station is a station that has had on call eliminated from its rosters any time after 1 July 2018. This would not be confined to those that have already been through the SWEP process, but is intended to include those whose rosters are changed to remove on call after the Proposed Award is made. 3. An Eligible Employee is one who: 1. was required to be on call at an Affected Station; 2. is no longer required to be on call because of a change to the roster; and 3. who continues to work at an Affected Station. 1. Eligible Employees would be entitled to receive a "Transitional Benefit" of $297.7415 per week, which would reduce by 25% each year such that no Traditional Benefit would be payable after the fourth year of the award. The quantum of the Transitional Benefit in the first year "is based on one call out by a Paramedic Specialist Year 3". [26] 2. In addition to the Transitional Benefit, Eligible Employees would also be entitled to receive the "'On-Call Allowance (per week)' specified in Item 4 of Table 2A – Allowances of Part B, Monetary Rates of the Paramedics and Control Centre Officers (State) Award". (We observe that the Paramedics Award does not include a Part B, although this was a feature of the predecessor award. The Proposed Award can be taken to refer to Section 8 – Monetary Rates of the Paramedics Award.) The weekly On Call Allowance payable under the Paramedics Award is currently $94.70. 1. In the alternative, the HSU submitted: [27] "8. If the Commission is persuaded that an award should be made but is not satisfied that the application in its current form achieves fair and reasonable conditions of employment the Commission can, and should on its own initiative; a. award only the four-year transitional allowance, b. award only the 'grandparented' weekly on-call allowance, c. vary the quantum of the allowances in any combination, d. take any other measure, e. any combination of the above; such that the award provides fair and reasonable conditions of employment." 1. In the "grounds and reasons" contained in the Application, the Transitional Benefit was said to deal with the short to medium term impacts on the Eligible Employees of the removal of on call rosters at their stations. The ongoing entitlement to the weekly On Call Allowance was said to be designed to compensate the Eligible Employees for the long-term fixed costs incurred by them having "entered the requirements for working on-call". Applicable legal principles Legislation 1. The Application is made pursuant to s 10 of the Act, "by way of section 136(1)(b)". Section 136(1)(b) of the Act empowers the Commission, when arbitrating a dispute notified under s 130 of the Act, to make or vary an award. In this way the Application makes it clear that the HSU seeks the Proposed Award as a means of resolving the dispute underpinning the Notification. 2. Section 10 of the Act empowers the Commission to make awards "setting fair and reasonable conditions of employment for employees". 3. In City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 the Full Bench observed: "19. The terms 'fair' and 'reasonable' in s 10 of the Act import a requirement that the conditions of employment set represent a proper and proportionate balance between the entitlements afforded employees and the interests of those employing them. 20. Consideration of what is fair and reasonable for an employee will necessarily involve a consideration of what is fair and reasonable having regard to the nature and circumstances of the employment afforded to the employee by an employer. That inquiry cannot be made in a vacuum. It must also extend to the broader context in which the employment occurs and ultimately, by effect of s 146 of the Act, the state of the economy in New South Wales. 21. The assessment required by s 10 will often involve consideration of collective relations between unions and employers or employer associations and, in appropriate cases, consideration of the history of terms and conditions that the parties chose to apply, formally and informally, to employees who will now be covered by the proposed award. 22. In particular cases, the Commission may be required to take into account not only differences between employers or industries in which employment is undertaken, but relevant differences between employees or classes of employees in a workplace, enterprise, project or industry. What may represent a fair and reasonable condition for one set of employees may not be for another, even where the employees are engaged by the same employer. That particular assessment may depend on the history as well as consideration of the present circumstances of the work to be performed." 1. Section 146(2) of the Act requires the Commission to take into account the public interest in the exercise of its functions. For that purpose, it must have regard to the objects of the Act, and the state of the economy of New South Wales and the likely effect of its decisions on that economy. 2. The objects of the Act are set out in s 3, which for present purposes relevantly provides as follows: 3 Objects The objects of this Act are as follows— (a) to provide a framework for the conduct of industrial relations that is fair and just, (b) to promote efficiency and productivity in the economy of the State, … (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, … (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations. 1. Section 146C(1) of the Act is in these terms: 146C Commission to give effect to certain aspects of government policy on public sector employment (1) The Commission must, when making or varying any award or order, give effect to any policy on conditions of employment of public sector employees— (a) that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission, and (b) that applies to the matter to which the award or order relates. 1. The policies "required to be given effect to by the Commission" are declared in the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) ("Regulation"). Clause 6 of the Regulation relevantly provides as follows: 6 Other policies (1) The following policies are also declared, but are subject to compliance with the declared paramount policies— (a) Public sector employees may be awarded increases in remuneration or other conditions of employment, but only if employee-related costs in respect of those employees are not increased by more than 2.5% per annum as a result of the increases awarded together with any new or increased superannuation employment benefits provided (or to be provided) to or in respect of the employees since their remuneration or other conditions of employment were last determined. (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. … … (c) For the purposes of achieving employee-related cost savings, existing conditions of employment of the kind but in excess of the guaranteed minimum conditions of employment may only be reduced with the agreement of the relevant parties in the proceedings. … Wage Fixing Principles 1. The Commission has over the years developed Wage Fixing Principles, which provide guidance as to the making or variation of awards. Those principles, most recently re-affirmed by the Full Bench in State Wage Case 2019, relevantly provide as follows: "8. Arbitrated Case 8.1 General Any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the Principles, will be processed as an Arbitrated Case by a Full Bench of the Commission unless otherwise allocated by the Chief Commissioner. In determining such an application, the Commission shall, subject to the relevant provisions of the Act, do so in accordance with the following criteria: 8.2 Work Value Considerations (a) 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. … 8.3 Productivity and Efficiency Considerations Productivity and efficiency measures that have delivered substantial costs savings and/or productivity or efficiency improvements or which have made a substantial contribution towards the attainment of the objectives of the employer (including departments and agencies of the Crown) in seeking to become more competitive and/or efficient, to which employees have made a significant contribution, may constitute the basis for increases to wages and salaries or improvements in employment conditions without the requirement to make out a special case, provided that such measures, savings or improvements have not already been taken into account in previous wage adjustments. 8.4 Special Case Considerations 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. …" 1. On 3 April 2020 the Registry received an email from Bree Jacobs, an Industrial Officer of the APA, querying whether the Wage Fixing Principles required the Application to be heard by a Full Bench. Ms Jacobs drew particular attention to the following passage from Re Operational Ambulance Officers (State) Award (2001) 113 IR 384; [2001] NSWIRComm 331: "167. The special case principle in its present form (see State Wage Case 2001 (2001) 104 IR 438) is not relevantly different from that found in the State Wage Case, May 1991 (1991) 36 IR 362 which was considered in Re Crown Employees (Administrative and Clerical Officers State) Award and other Awards (No 2) (1993) 52 IR 243. In the latter decision the Full Commission held (at 376 - 377): In our view, the special case section of the principles provides a mechanism whereby a claim for enhanced wages or conditions beyond those normally allowed under the principles may be brought before the Commission. The hearing of such a claim is to be conducted by the Full Commission (formerly the Commission in Court Session) thus emphasising the special nature of the case. It will be a matter for the Full Commission, after hearing the evidence and submissions, particularly relating to the matters relied on to take the case 'out of the ordinary' and thus to make it 'special', to decide whether the claim, in part or in whole, should succeed." 1. We do not consider that the Special Case principle requires a hearing by a Full Bench. Principle 8.1 establishes general principles applicable to all arbitrated cases, including Special Cases. It anticipates Arbitrated Cases being determined by a Full Bench "unless otherwise allocated by the Chief Commissioner". There is nothing in the Special Case principle which is properly to be regarded as fettering the Chief Commissioner's discretion under Principle 8.1. 2. Moreover, the observations of the Full Bench Re Operational Ambulance Officers (State) Award, having been made in 2001 on the basis of authority from 1993, have to be considered having regard to subsequent developments, including the significant diminution in the size of the Commission and the resources available to it. 3. However, the Commission considered it appropriate in the present case for the Application to be determined by a Full Bench. That should not be regarded as indicating an acceptance by the Commission that a Special Case can only be heard by a Full Bench. Whether a Full Bench should hear a matter or whether it can be allocated to a single Commissioner is within the discretion of the Chief Commissioner having regard to the particular circumstances of the case. Approach to be applied 1. In Application for Crown Employees (Public Sector – Salaries 2020) Award and Other Matters (No 2) [2020] NSWIRComm 1066 the Full Bench observed: "31. The approach that the Commission should adopt in making or varying awards, including as a special case, has been considered by the Full Bench in numerous decisions. The principles to which we have had particular regard are as follows: (1) Whether the conditions of employment in the award are fair and reasonable is a primary test for evaluating whether an award should be altered: Re Operational Ambulance Officers (State) Award (2001) 113 IR 384; [2001] NSWIRComm 331 at [164]. (2) Awards of the Commission are presumed to set fair and reasonable terms and conditions of employment: City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386;[2014] NSWIRComm 49 at [12]. (3) The terms 'fair' and 'reasonable' in s 10 of the Act import a requirement that the conditions of employment set represent a proper and proportionate balance between the entitlements afforded employees and the interests of those employing them: City of Sydney Wages/Salary Award 2014 at [19]. (4) In a contested case, the onus falls on the applicant to make out a case for an alteration to an award: Re Pastoral Industry (State) Award at [77]. (5) In a special case the applicant bears the onus of persuading the Commission that the application satisfies a dual test: that the terms of the award sought constitute fair and reasonable conditions of employment and that the matter in question has 'special attributes' or is 'out of the ordinary' so as to take the matter outside the restrictions which otherwise apply under the Wage Fixing Principles: Re Operational Ambulance Officers (State) Award at [166] and [168]; City of Sydney Wages/Salary Award at [16]. (6) The applicant must meet the ordinary onus to make out its case. In a special case the applicant does not bear a higher onus or standard of proof: Re Pastoral Industry (State) Award at [73]; Re Operational Ambulance Officers (State) Award at [165] and [168]. (7) The onus borne by a party was described by Kite AJ in Transport Industry – General Carriers Contract Determination (2016) 257 IR 294; [2016] NSWIRComm 3 in these terms: '34. It has long been recognized that Industrial Tribunals are in a different position to the general courts. The duty of the Commission is to make an award or determination which prescribes fair and reasonable rates and conditions. In doing so the Commission is not bound by the rules of evidence or to act in a formal manner but "is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." See s 163 (1)(c) of the Act. 35. The various authorities referring to the "onus" born[e] by a party are to be understood in that context. There must be information before the Commission which allows it to be satisfied that the determination or award, if made, will provide just and reasonable rates and conditions. The assessment of the adequacy of that material will vary according to the nature of the case, including the degree of consent, before the Commission: see In re Butchers, Wholesale (Cumberland) Award 1971 AR 425 especially at 437- 440.' (Emphasis in original) …" 1. We have applied the same principles in determining the Application. Submissions The HSU 1. The HSU submitted that this is a case to which the Arbitrated Case Principle, and in particular the Special Case principle, applies. It contended that a Special Case could be made out from the following considerations: 1. the scale of the loss of income of Eligible Employees, which was described as being "extraordinary" and "severe"; 2. the requirement that the Eligible Employees live in proximity to their station. It was submitted that "[a]ll Eligible Employees will have been required to comply with this requirement to their detriment"; [28] 3. the failure to notify the Eligible Employees of the likely changes as soon as reasonably practicable. It was contended that the Secretary failed to provide information about which stations would be subject to the SWEP enhancement at the earliest opportunity. By withholding information the Secretary caused disadvantage to the Eligible Employees in two respects. Firstly, they made decisions (for example, entering into car leases) consistent with their expectation as to the level of their ongoing income. Secondly, they do not have the opportunity to mitigate their loss arising from the change in circumstances; 4. the nature of on call work as a condition of employment of the Eligible Employees; and 5. the Eligible Employees had a reasonable expectation about their ongoing income. They were encouraged in this expectation and they acted on it to their detriment. 1. In its Submissions in Reply the HSU concluded as follows: "10. These elements are relevant to the application in a number of respects: a. They establish why there is an unfairness that the Commission should resolve. b. They rebut the presumption that the existing award sets fair conditions of employment. c. Together with the circumstances that give rise to them, these factors are further make out [sic] the 'special attributes' element of the special case principle." [Footnotes omitted] 1. The HSU submitted that the public interest would be met through the Commission setting fair and reasonable conditions of employment. The APA 1. In its Written Outline of Submissions the APA put its "overall position" in the following terms: "2. The transition from overnight on-call to 24 hour operations in the relevant Stations has adversely impacted Paramedics including APA (NSW) members. The Award no longer sets fair and reasonable conditions of employment. This unfairness is being addressed as part of separate proceedings before the Commission filed by APA (NSW), namely IRC no 2019/169867, which [is] an application for a new Award and is often referred to as the 'Major Industrial Case' (MIC). The MIC is under Conciliation. 3. The MIC seeks increases to the wages and conditions of all employees under the Award, which will ameliorate the financial impact of the transition to 24 hour operations for affected Paramedics. It also seeks that these Paramedics receive a transitional benefit by way of entitlement to the Transferred Employees Benefits Scheme. APA (NSW) intends to show in the MIC proceedings that the elimination of on call has generated greater efficiency as well as employee related cost savings. 4. In so far as the MIC and the present application are not inconsistent, APA (NSW) does not oppose the present application." The Secretary 1. The Secretary opposed the making of the Proposed Award. It was submitted that the making of the Proposed Award: 1. was not necessary to set fair and reasonable conditions of employment for the relevant employees; 2. would be inconsistent with s 146C of the Act and cl 6(1)(b) of the Regulation, because it would result in an increase in conditions of employment for eligible employees above 2.5% without corresponding employee-related cost savings being identified; and 3. would not otherwise accord with the public interest. 1. The Secretary contended that the HSU had not made out a Special Case for the making of the Proposed Award. It argued that the HSU had not demonstrated that the loss of on call benefits would entail such unfairness as to take the case out of the ordinary, particularly having regard to: 1. the countervailing benefits to paramedics of being free from having to be on call, including reduced fatigue; 2. the absence of an entitlement to on call work under the Paramedics Award, or evidence of any promise that it would not be changed; and 3. the corresponding freedom under the Paramedics Award for NSW Ambulance to make rostering changes of this kind, which are equally the kinds of changes that an employer might be expected to make from time to time in the ordinary course of its operations. 1. The Secretary also disputed the HSU's contentions that there was any objectionable delay in the employees being notified of the SWEP reforms or any withholding of relevant information. Given the size of NSW Ambulance's operations, the need for the SWEP reforms to take into account the particular circumstances of each station and the progressive rollout of funding by the NSW Government, it was not possible to implement the reforms at all stations simultaneously. The approach taken by NSW Ambulance is reasonable in this context. The Secretary pointed to the evidence of Messrs Emery and McKenna as to the extensive consultation which had been undertaken, noting that some delays had been occasioned by COVID-19. 2. In her written submissions, the Secretary contended: "38. This is not a case in which an employer has sought to depart from a long-established concession or practice of providing an extra-award benefit. The parties have provided for on-call in the Paramedics Award, and no submission is or could be made that a 24/7 transition is inconsistent with that provision. The Respondent is seeking to change from using one rostering mechanism open to it under the Paramedics Award (with certain associated employee benefits) to another that is equally open to it (with different associated benefits). A historical continuity of rostering arrangements cannot be sufficient to entrench them, contrary to the flexibility in the applicable award. 39. In any event, the Commission generally will not intervene to preserve a concession or practice that an employer has given unilaterally to employees and is not enshrined in an award, except in cases in which the concessional practice was regarded as a promise, or the employer sought to remove it at short notice or without complying with prescribed processes. Neither of those exceptions applies in this case for the reasons set out above." [Footnotes omitted] 1. The Secretary further submitted that the HSU had not rebutted the presumption that the Paramedics Award sets fair and reasonable conditions of employment. Under the terms of the Paramedics Award employees would not be entitled to receive either of the amounts provided for in the Proposed Award. 2. Consistent with our observations at [32]-[35] above, we will not traverse those submissions of the Secretary which are directed primarily to the necessity for, or desirability of, the changes occasioned by the SWEP. Reasons for decision 1. We turn now to set out our reasons for our decision that a Special Case has not been made out for the making of an award. It is convenient to commence by addressing in turn the characteristics of this case on which the HSU relied as establishing a Special Case. The factors relied on by the HSU The scale of the loss of income 1. There was no challenge to the evidence led by the HSU as to the financial impact of the SWEP reforms on its witnesses. The financial implications are considerable. 2. However, the nature of the income that has been or may be "lost" has to be considered. It has two components: firstly, an allowance in return for an employee remaining on call between their rostered shifts; and, secondly, payment at overtime rates for any recalls to work while they are on call, with a minimum payment of four hours for each such call out. These provide a particular level of recompense, or compensation, to use that term loosely, for an employee being ready and able to work, and working, outside of their normal rostered hours. 3. The Secretary submitted that the Commission could have regard to the fact that following the SWEP reforms paramedics will no longer be required to perform the "particularly burdensome form of work" that is contemplated by being on call and performing recalls. [29] Mr Fuller described this as a "countervailing gain" of the kind referred to by the Full Bench in Re Crown Employees (Christmas, New Year and Easter Half-Day Award [1991] 39 IR 440 as quoted in Re Crown Employees (New South Wales Department of Family and Community Services) Residential Centre Support Services Staff Award 2015 [2017] NSWIRComm 1058 at [66]. He submitted: [30] "But the point is that the existence of a countervailing gain is a relevant consideration for the Commission. It means that, as I've said, this is not a case where there has been a removal of a pure gratuity or a pure benefit. It's a removal of an indisputably detrimental form of work and with it the compensation that was given for bearing the burden of having to perform that work." 1. The evidence bears out the Secretary's contention that being on call and performing recalls is burdensome. Mr Grayson referred to the "social dis-amenities of providing an on-call service". [31] The HSU's witnesses who gave oral testimony generally agreed that there were responsibilities, inconveniences and disruptions caused by working on call and that working a 24/7 roster would provide for more stability in their working hours. 2. However, not all of the HSU's witnesses accepted that the new arrangements were necessarily more beneficial to their particular circumstances or had resulted in a better lifestyle. Further, the overwhelming impression from the evidence is that the paramedics were not only happy to suffer the inconveniences of on call work, but had in fact sought it out, due to the associated financial benefits. Mr O'Donnell stated that since signing his statement on 30 January 2020 he had applied to transfer out of Singleton to Merriwa so that he could continue to work on an on call roster. 3. The extent to which it is a "countervailing gain" that paramedics will no longer be subject to the burdens of on call and recall work has to be seen in this light. It is, however, a relevant consideration. 4. Further, the reliance by the HSU on the "scale of the loss" needs to be approached with caution. The HSU's case is premised, at least in part, on the contention that the quantum of the potential reduction in paramedics' earnings bears a direct relationship to the extent to which there is unfairness. We do not accept that premise in the circumstances of this case. 5. Nothing in cl 23 of the Paramedics Award confers an entitlement on employees to be provided with on call work. Rather, it sets out the conditions on which they may be "required" to do so. Clause 22(c) of the Paramedics Award states that in establishing rosters "work will be performed by the most efficient means" and to that end NSW Ambulance "will deploy skills based on operational needs and case priority". It is for NSW Ambulance to determine how best to deploy paramedics, obviously subject to any consultation obligations under the Paramedics Award. 6. There is no suggestion that there is any impediment, whether under the Paramedics Award or on any other basis, to NSW Ambulance implementing the SWEP. There is no suggestion that the changes being introduced by NSW Ambulance are contrary to the Paramedics Award. Indeed, Mr Fox stated that it was not the HSU's case that "the employer has done the wrong thing". [32] 7. The Paramedics Award presumptively sets fair and reasonable terms and conditions of employment. It allows for the changes anticipated by the SWEP to be made. As Mr Fuller stated, the changes anticipated by the SWEP "are ordinary kinds of work changes, albeit that they're being implemented on a large scale". [33] 8. We agree. The fact that the changes are widespread and significant (even "seismic", to use the term adopted in the HSU's written submissions), and the financial impact on the employees is considerable, does not mean that the Paramedics Award is not on its terms fair and reasonable. Requirement to reside in proximity to the station 1. We accept that as a condition of working on an on call roster the HSU's witnesses have been required to reside in near proximity to their stations. We also accept that this has resulted in some paramedics purchasing properties in locations other than their preferred ones and at a greater cost than they might otherwise have wished to spend. Some individuals would suffer a loss if they were now required to move stations. 2. We are not satisfied, however, that the HSU has made out its submission that "[a]ll Eligible Employees will have been required to comply with this requirement to their detriment". [34] Even among the HSU's witnesses there were differences in this regard, with the effect that it would not be possible to conclude that all of them have necessarily suffered a detriment of the kind alleged. Further, the 11 witnesses called by the HSU come from a total of eight stations. We are cautious about too readily accepting that any detriment suffered, or potentially to be suffered, by some of the HSU's witnesses can be inferred as having been suffered, or potentially to be suffered, by all "Eligible Employees" (as defined in the Proposed Award). 3. Further, the residency requirement has to be considered consistent with our observations at [76] above. There was no suggestion that any of the HSU's witnesses are or have been required to perform on call work against their will. To the contrary, the overwhelming impression is that the paramedics are not only happy to perform the work, but are keen to do so. They have actively sought opportunities to perform on call work, and continue to do so. 4. In those circumstances, the residency requirement cannot be seen as some entirely separate obligation imposed on paramedics by NSW Ambulance, such that NSW Ambulance is wholly accountable for the consequences of on call work no longer being required. The paramedics see on call work as providing them with benefits including, at least, significantly higher incomes. It can be inferred that the paramedics weighed up the benefits and costs of working on call, including the costs of residing close to their station. Any such analysis should have taken into account the absence of any guarantees having been offered, or contained in the Paramedics Award, that on call work would necessarily continue. As the Secretary submitted, this was a matter for them. The failure to notify employees of changes as soon as reasonably practicable 1. The HSU contended that the Secretary has failed to provide information about which stations would be subject to the SWEP enhancement at the earliest opportunity. As a consequence, consistent with their expectations as to their ongoing income, some paramedics have made decisions or incurred liabilities that they might not otherwise have. Further, the lack of earlier notification of the changes has deprived paramedics of the opportunity to mitigate their loss arising from the change in circumstances. 2. The HSU did not advance a case that NSW Ambulance has failed to comply with the consultation obligations under the Paramedics Award. The evidence would not have allowed for such a finding in any event, as it appears that the consultation at affected stations has been considerable and effective, even if the outcomes are not universally agreed. 3. Rather, Mr Fox put it in these terms: [35] "The evidence reveals that the employer still won't tell employees what's coming in year three or four, and it's far less than as much notice as is possible. The employer is given, in my submission, the minimum notice possible to people. Whilst it's not necessary for the Commission to ‑ and moving slightly out of order but I think it's relevant here ‑ to say that the employer made the wrong call or the employer's in the wrong in approaching the matter this way. It may well be, reading the evidence, that you agree with the approach taken that it would cause uncertainty and angst, that putting out the tentative list of likely stations without putting out ‑ before they're absolutely set in stone, well in advance, will ‑ is the right call for all the reasons that were advanced. Less uncertainty, less angst, less animosity, provides a greater ability to change them. … …It's not necessary for the Commission to say that they've done the wrong thing. All that's necessary is to recognise that in moving from this system of on‑call, we're left with an unfairness. And the unfairness that comes out of this point is providing the employees the maximum amount of time that they might have had to transition their own state of affairs and access self‑help." 1. The SWEP is an initiative which is designed to manage the introduction of 750 additional employees to NSW Ambulance over a four year period. From the evidence of Messrs Emery and McKenna it is clear that the outcome of the SWEP is not a foregone conclusion. The identification of the stations which will be affected, and how they will be affected, is in a state of flux. Announcements as to which stations are next in line for the SWEP reforms are made when there is some certainty as to what is proposed to happen. That is the point at which consultation would commence in respect of an affected station. Mr McKenna stated that there is no presumed outcome when that consultation commences, although admittedly he also accepted that there were limited roster options available. 2. The Secretary contended, and we accept, that the SWEP cannot be carried out all at once. We also accept the Secretary's submissions that it may cause anxiety and unrest at a station if paramedics are informed that changes might possibly happen in the future, without NSW Ambulance being able to provide them with any details as to the changes that might be introduced or perhaps even a timeline. 3. This is borne out by the evidence of Messrs Schippers and Gibson, both of whom are based at Singleton Ambulance Station, where consultation in respect of the SWEP reforms has commenced. Mr Schippers stated that consultation had commenced in March 2020 but that NSW Ambulance had not provided information that had been requested, despite a follow up in May. He stated: [36] "5. To date, we have no information on what the proposed roster will look like, except that it is likely commencing in November. No information surrounding on call has been provided or clarified, causing significant anxiety and uncertainty." 1. Mr Gibson stated: [37] "28. Most staff at Singleton are in a panicked state, applying for transfers and considering early retirement to protect their families from the high likelihood of significant financial hardship. Stress levels are extremely high on station." 1. We consider that similar anxiety and uncertainty as that referred to by Messrs Schippers and Gibson would likely arise if employees were notified that there might be changes at their stations before NSW Ambulance was in a position to enter into meaningful consultation with them as to what was proposed. The nature of on call work as a condition of employment 1. The HSU contended that the evidence, particularly that referred to at [20]-[22] above, demonstrated that to work on call was a requirement of the job for the paramedics and "not a mere perk that was accessible". [38] The HSU submitted that the documentary evidence could be assessed as contractual, although the Commission was not required to make a finding in that regard. Rather, the HSU seemed to submit that the evidence demonstrates a representation by NSW Ambulance that on call was a condition of employment from which it should not be permitted to resile. 2. Part of the difficulty with the HSU's case is that it does not rise much higher than the contention that because employees have always derived a particular benefit, they should continue to do so. The HSU did not attempt to raise its case to the level of asserting a custom and practice that is enforceable as a contractual right. 3. It was not in dispute that paramedics working at stations with on call rosters are required to perform on call work. It is a condition of them being assigned to those stations. But while on call work may be a requirement of their role, it is not necessarily an enforceable condition of employment. In this regard we reiterate the following: 1. the Paramedics Award does not guarantee any level of on call work; 2. the witnesses accepted that they had been given no assurances or commitments that on call work would always be available to them. At most, they had assumed that the work would be available; and 3. there is no suggestion of any coercion exerted on the employees to take up their positions. They can be taken to have applied for their current roles knowing what was entailed. 1. We accept the following submissions made by Mr Fuller: [39] "This is not, in my submission, a custom or usage case in which it could be said that the parties in any sense agreed or intended that employees would have any entitlement to on‑call, and that, in my submission, is consistent with the nature of on‑call. It is a form of overtime. It's a kind of work that's required only when the need for that work is not covered by ordinary hours or ordinary shifts. It's a kind of work that's inherently susceptible to fluctuation with demand for work, with the supply of staff, and with the availability of ordinary hours to cover the work. That's the nature of overtime, in my submission, and that's what this on‑call is." Reasonable expectation, reliance and detriment 1. The HSU contended that paramedics had a reasonable expectation that they would continue to work on call. There was some evidence that particular paramedics had entered into commitments, such as the purchase of a new car, which they might not have done had they been aware of the possibility of them no longer being able to perform on call work. On this basis, the HSU submitted that the Commission could accept that the loss of income by the employees can be expected to have a detrimental impact across the workforce. 2. In large part, this has been addressed. The HSU's submissions on this ground raise many of the same issues that have been dealt with in the context of the scale of the projected reduction in income and the contention that on call work was a condition of employment. 3. It is sufficient to say that we accept the following contentions in the Secretary's submissions: "49. The fact that some employees may have made purchases or entered into other financial arrangements which they would not have if they had known their on-call would be reduced is unfortunate, but cannot have the consequence that the Paramedics Award no longer sets fair and reasonable conditions of employment for them. As set out in paragraph 37 above, the Award does not give employees a right to on-call, any more than it gives a right to overtime or any other entitlement associated with working outside of ordinary conditions. The Applicant's reasoning would have the effect of creating such a right. It would allow employees, by their own spending habits, to entrench what are otherwise set down in the Award as flexible and extraordinary award entitlements. It would prevent an employer from ever changing its practices (at least without compensation) where employees have fallen into a comfortable pattern of receiving the associated entitlements." [Footnote omitted] 1. Further, while it is not a complete answer to the HSU's arguments, the evidence does reveal that there are some steps that are available to the paramedics to mitigate the consequences of the removal of on call work at the stations at which they are currently located. For example: 1. Ms Kentwell stated that she would have difficulty working to the roster that is proposed at Inverell Station. She had applied for a "flexible work arrangement" to allow her to work a bespoke roster to manage her family responsibilities; 2. Mr Laffey stated that he had been "pursuing overtime" to make up for the decrease in his pay, although we observe that he said that he did so at the expense of his days off; and 3. Mr O'Donnell had arranged to transfer from Singleton to Merriwa in order to continue to do on call work, even though it involved him living away from his family for days on end in accommodation that he shared with another paramedic. 1. Mr McKenna stated: [40] "26. There will be stations across the state that will not be affected by SWEP enhancements and will continue having on call as part of their roster arrangements. Staff may apply for transfers to these stations as vacancies arise." Other considerations 1. The Secretary submitted that the assessment as to whether a Special Case has been established for the making of an award is not confined to an assessment of the employees' circumstances. Matters of the cost of the claim and the public interest also arise for consideration: Re Pastoral Industry (State) Award (2001) 104 IR 168; [2000] NSWIRComm 27 at [73]. 2. The Secretary led some evidence as to the costs that would be incurred by NSW Ambulance as a consequence of the Proposed Award. This evidence came through Brian Jackson, who is the Executive Director, Finance and Corporate Services for NSW Ambulance. He deposed that the costs of the Proposed Award, having regard only to those stations where on call has been removed as a consequence of the SWEP, would be approximately $6,050,000. This amount would increase for any additional station that fell within the definition of "Affected Station" during the term of the Proposed Award. 3. Mr Jackson also gave evidence as to whether there were savings that would offset these additional costs. For the reasons set out at [112]-[113] below, we will not traverse that evidence. 4. We have considered the Secretary's evidence. However, other than providing an estimate of the costs of the Proposed Award, the Secretary did not offer an analysis as to how the Commission should consider those costs having regard to the operations of NSW Ambulance as a whole. We accept that a figure of more than $6 million is large, but it provides us with little assistance out of context. 5. On the question of the public interest, the HSU submitted: [41] "13. The overriding public interest is in the Commission setting of [sic] fair and reasonable conditions of employment. 14. The public interest will not ordinarily be enlivened adversely against an application that merely seeks monetary compensation or reward." 1. The paramedics who would be subject to the Proposed Award are already covered by the Paramedics Award, which is presumed to set fair and reasonable conditions of employment. As already stated, it has not been suggested that the Paramedics Award precludes the implementation of the SWEP. To paraphrase the Secretary's submissions, it is only the scale of the changes, but not their nature, which is noteworthy. 2. The HSU has not rebutted the presumption that the Paramedics Award sets fair and reasonable conditions of employment. The public interest is not therefore enlivened to make the Proposed Award in the manner asserted by the HSU. 3. Rather, we are persuaded to accept the following submissions made by Mr Fuller at the hearing: [42] "The SWEP is designed, on the evidence, to address a major source of fatigue among paramedics, a health and wellbeing issue that the unions have been advocating about for many years. It's an issue that is inherently connected to over work, where the only way to seriously address it is to reduce workloads. The effect of making the Transitional Benefits Award would be to discourage this kind of reform. It would mean that any employer proposing to invest in additional staff or additional technology or other methods designed to reduce out of hours work or overtime faces the real risk of having to also compensate their existing employees for the loss of that work. That's the effect of what the Transitional Benefits Award does." Employee-related costs and employee-related cost savings 1. A further matter of disagreement between the parties was the approach to be taken to the combined operation of s 146C of the Act and cll 6 and 9 of the Regulation. That disagreement can be stated shortly, as follows: 1. Clause 6(1)(b) of the Regulation provides that to the extent that any increases in remuneration or other conditions of employment would increase employee-related costs by more than 2.5% per annum, the costs beyond 2.5% must be "fully offset" by employee-related cost savings. 2. Clauses 8 and 9 of the Regulation define what is meant by, respectively, "employee-related costs" and "employee-related cost savings". 3. The HSU accepted that to comply with the Regulation the Application must be fully funded by employee-related cost savings. It submitted that this had been demonstrated. The reduction in the quantum of on call allowances and recall overtime which had historically been paid to paramedics more than offsets the payments to which they would become entitled under the Proposed Award. 4. The Secretary disputed that contention. She argued that the employee-related costs had to take into account the cost of employing the additional paramedics, which enabled the SWEP reforms to be implemented. 5. The HSU and APA made lengthy submissions challenging the Secretary's approach. Their position was that relevant employee-related costs are those created by the Proposed Award, not the costs of introducing SWEP at the Affected Stations. The terms of the Regulation do not permit the "netting process" anticipated by the Secretary. 1. The issues arising from the parties' submissions are both significant and interesting. However, having determined that the HSU has not discharged its onus of establishing a Special Case for the making of an award, it is not necessary to consider the parties' contentions as to the proper approach to the application of s 146C of the Act and cll 6 and 9 of the Regulation. Any observations we would make would necessarily be obiter dicta. Order and direction 1. Matter 2019/199124 is dismissed. 2. Leave is reserved to the HSU to apply on reasonable notice to have matter 2018/359122 relisted if the Commission's further assistance is required in respect of the Notification. If the HSU does not contact the Registry prior to 26 February 2021 seeking to have the matter relisted or an extension of time, the file will be closed administratively. ********** Endnotes 1. In these proceedings the Health Secretary exercises on behalf of the Government of New South Wales the employer functions of the Government in relation to the staff employed in the NSW Health Service: s 116(3) of the Health Services Act 1997 (NSW). 2. See [55]-[58] below. 3. Statement of Jamie Schippers, 5 February 2020 4. Statement of Tim Davenport, 5 February 2020 5. Statement of Drew Laffey, 31 January 2020, attachment DL1 6. Exhibit HSU 15 7. Exhibit HSU 14 8. Statement of Tim Davenport, 5 February 2020 9. Statement of Bruce Gibson, 31 January 2020 10. Statement of Drew Laffey, 31 January 2020 11. Statement of William Rathbone, 30 January 2020 12. Statement of Jamie Schippers, 5 February 2020 13. Statement of Hannah Tunsted, 9 September 2020 14. Statement of Wayne McKenna, 3 August 2020 15. Statement of Wayne McKenna, 3 August 2020, attachment WM-1 16. Statement of Wayne McKenna, 3 August 2020, attachment WM-2 17. Statement of Jordan David Emery, 31 July 2020 18. Statement of Wayne McKenna, 3 August 2020 19. Statement of Jordan David Emery, 31 July 2020 at par 20(b) 20. HSU Outline of Case, 11 February 2020 at par 10 21. Statement of Michael John Grayson, 3 September 2020 at par 32 22. Statement of Peta Kentwell, 7 February 2020 23. Statement of Jamie Schippers, 5 February 2020 at par 7 24. Statement of Peta Kentwell, 7 February 2020 25. Statement of Drew Laffey, 31 January 2020 26. HSU Submissions in Reply, 2 September 2020 at p 8 fn 7 27. HSU Submissions in Reply 28. HSU Submissions in Reply at par 9(b) 29. Tcpt, 10 September 2020 p 70(43) 30. Tcpt, 10 September p 71(27-32) 31. Statement of Michael John Grayson, 3 September 2020 at par 28 32. Tcpt, 10 September 2020 p 54(49) 33. Tcpt, 10 September 2020 p 68(38) 34. HSU Submissions in Reply at par 9(b) 35. Tcpt, 10 September 2020 p 52(49)-53(21) 36. Statement of Jamie Schippers, 26 August 2020 37. Statement of Bruce Gibson, 31 January 2020 38. Tcpt, 10 September 2020 p 53(32) 39. Tcpt, 10 September 2020 p 69(1-9) 40. Statement of Wayne McKenna, 31 July 2020 41. HSU Submissions in Reply 42. Tcpt, 10 September 2020 pp 75(46)-76(5) 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: 29 January 2021