Australian Paramedics Association (NSW) v Health Secretary in respect of NSW Ambulance [2021] NSWIRComm 1016

Industrial Relations Commission New South Wales Medium Neutral Citation: Australian Paramedics Association (NSW) v Health Secretary in respect of NSW Ambulance [2021] NSWIRComm 1016 Hearing dates: 9 December 2020 Date of orders: 8 March 2021 Decision date: 08 March 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Order made for payment of money Catchwords: INDUSTRIAL DISPUTE – claim for payment of overtime for working additional shifts – small claims jurisdiction – order made Legislation Cited: Industrial Relations Act 1996 Cases Cited: Cepus v Heggies Transport Pty Ltd [1994] 52 IR 123 Texts Cited: Nil Category: Principal judgment Parties: Australian Paramedics Association (NSW) (Notifier)

Health Secretary in respect of NSW Ambulance (Respondent)

Health Services Union NSW (Intervener) Representation: Mr I Latham of counsel (Notifier)

Mr M Easton of counsel (Respondent)

Ms O Forsyth-Sells (Intervener) File Number(s): 2019/00335189 Publication restriction: Nil

DECISION 1. This matter arose initially out of a dispute notification filed on 25 October 2019 by the Australian Paramedics Association (NSW) ("APA") pursuant to section 130 of the Industrial Relations Act 1996 ("Act"). In the dispute notification, the APA asserted that its member, Richard Duddy, a paramedic stationed at Morisset Ambulance Station at the relevant time, had been underpaid for the number of shifts he worked during the 9 week roster cycle which began on Saturday 27 October 2018. The correct respondent to the dispute notification is the Health Secretary in respect of NSW Ambulance. At the relevant time, the award in force was the Operational Ambulance Officers (State) Award ("Award"). 2. The dispute notification contained the following: 4. The question, dispute or difficulty concerns the following industrial matters: ……………………….. 1. APA (NSW) seeks the assistance of the Industrial Relations Commission to ensure our member is compensated for the work he has done. 2. Annexure A shows communication between APA (NSW) and NSW Ambulance (NSWA) about the matter. a. Key points to note are that there is no dispute about the hours worked by our member Richard Duddy on the roster cycle commencing 27 October 2018 which runs for 9 weeks. b. There is no dispute about the fact that the employer that the hours were worked at the direction of the employer 3. In this 9 week cycle Richard had taken 3 weeks annual leave. Annual Leave with this NSW Ambulance (NSWA) is very ridged with the employer approving it over 12 months in advance in most cases. 4. During the cycle of leave NSWA has changed the lines of the roster that our member is to return on. This is resulted in the discrepancy in hours and pay. 5. NSWA made this decision deliberately to ensure that our member would have to work more hours to on weeks he should have worked less. 6. Our member worked to ensure that service to the community was maintained in good will, expecting the same from his employer, NSWA which you can see from the communication has not been forth coming. 7. Details of our members roster and local standard rosters are also attached for your information (Annexure B) &. APA (NSW) cannot accept there no compensation for our members work, specially in this deliberate nature. 9. While this is an extreme example, similar situations have been reported in the past where the employer has shown no regard for the hours worked by paramedics 10. APA (NSW) seeks: a. Our member Richard to be compensated for the hours he has worked b. An audit each 9 week cycle to ensure that no paramedics are underpaid for hours worked c. NSWA develop an approach to rostering that will not disadvantage paramedics when taking Annual Leave (eg, Paramedics work a Saturday to Friday week, there are instances where they are rostered on Friday night before their leave is due to start on Saturday resulting in paramedics working 7 hours into their week of leave). d. Commitment from NSWA to not disadvantage paramedics when the employer's decision results in a paramedic working less hours than is contracted to do. 1. The dispute notification was initially allocated to Commissioner Webster who convened a number of conciliation conferences in late 2019. The Health Services Union NSW ("HSU") sought and was granted intervention. The dispute did not settle and on 28 April 2020 Commissioner Webster issued a certificate of attempted conciliation pursuant to section 135 of the Act. Directions were made for the filing and serving of evidence and submissions and the matter was reallocated to me to hear and determine. 2. The facts of the matter are not in dispute. Over the period of the 9 week roster cycle at Morisset Ambulance Station, officers would normally be rostered to work a total of 342 ordinary hours or an average of 38 hours per week. This would occur if an officer worked sequentially through the 9 roster lines regardless of which roster line the officer commenced on at the beginning of the 9 week roster cycle. However, this did not happen with respect to Mr Duddy during the 9 week roster cycle which began on 27 October 2018. 3. The hours worked by Mr Duddy for the 9 week roster cycle commencing on Saturday 27 October 2018 are set out below: Week Roster Sat Sun Mon Tue Wed Thu Fri Hours Line 1 6 0.00 12.00 12.25 12.25 12.25 0.00 0.00 48.75 2 7 0.00 0.00 0.00 12.25 12.25 12.25 12.25 49.00 3 8 0.00 0.00 0.00 0.00 0.00 12.25 12.25 24.50 4 (AL) 9 12.25 12.00 0.00 0.00 0.00 0.00 0.00 24.25 5 (AL) 1 0.00 0.00 12.25 12.25 12.25 12.25 0.00 49.00 6 (AL) 2 0.00 0.00 0.00 0.00 12.25 12.25 12.25 36.75 7 5 12.25 12.00 12.25 12.25 0.00 0.00 0.00 48.75 8 6 0.00 12.00 12.25 12.25 12.25 0.00 0.00 48.75 9 7 0.00 0.00 0.00 12.25 12.25 12.25 12.25 49.00