Health Services Union NSW v Health Secretary in respect of NSW Ambulance (Casual Intensive Care Paramedics) [2023] NSWIRComm 1086

Industrial Relations Commission New South Wales Medium Neutral Citation: Health Services Union NSW v Health Secretary in respect of NSW Ambulance (Casual Intensive Care Paramedics) [2023] NSWIRComm 1086 Hearing dates: 21 August 2023 Date of orders: 21 August 2023 Decision date: 21 August 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The notification is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Relief – paramedics with credentials as Intensive Care Paramedics engaged on a casual basis – dispute as to applicable rate of pay – award requires Intensive Care Paramedics to be "appointed to an approved Intensive Care Paramedic position" – whether performing or being ready and willing to perform the work of an Intensive Care Paramedic suffices – whether Commission ought to construe the award as having that meaning – whether to do so would be to grant declaratory relief, beyond the Commission's jurisdiction Legislation Cited: Industrial Relations Act 1996 ss 130, 175 Cases Cited: Health Services Union NSW and Ambulance Service NSW [2017] NSWIRComm 1057 Texts Cited: None Category: Principal judgment Parties: Health Services Union NSW (Notifier) Health Secretary (Respondent) Representation: C Barker (Health Services Union NSW) (Notifier) J Darams of Counsel (Respondent) Lander & Rogers (Respondent) File Number(s): 2023/00049819 Publication restriction: No

EX TEMPORE DECISION 1. The Commission has before it a notification of an industrial dispute made pursuant to s 130 of the Industrial Relations Act 1996. The dispute was notified by the Health Services Union NSW on 13 February 2023. 2. The notification states that the dispute pertains to "casual Intensive Care Paramedics…being classified and paid by NSW Ambulance…as paramedics". It states further that: "The respondent is taking employees who have successfully completed the necessary and relevant requirements to be an ICP, as well as the requisite credentials and paying them as Paramedics." 3. To a significant degree, the dispute as notified has been resolved. In its outline of submissions, NSW Ambulance stated that "for an employee currently engaged by NSW Ambulance on a casual basis, who immediately prior to conversion to casual employment was (previously) employed on a permanent basis and classified as an Intensive Care Paramedic…, NSW Ambulance will regard the appropriate classification for shifts worked by that employee as the ICP classification and pay that employee the rate applicable to an ICP under the Award". 4. During today's hearing, Chelsea Barker, who appeared for the HSU, stated that, despite that agreement having been reached, there was still a dispute between the parties as to what the award means. The union seeks to have that dispute resolved. 5. The question which arises is what the Commission can presently do to resolve that dispute in the context of the proceedings currently before it. 6. Clause 5(b)(iv) of the Paramedics and Control Centre Officers (State) Award 2022 defines "Intensive Care Paramedic" to mean "an employee who has completed the necessary and relevant training and work experience as determined by the Service to become a Paramedic Specialist – Intensive Care Paramedic and who is appointed to an approved Intensive Care Paramedic position". 7. The HSU submits that the phrase "and who is appointed to an approved Intensive Care Paramedic position" should be read as encompassing a paramedic performing or being ready and willing to perform the work of an ICP. The HSU seeks a finding from the Commission that the Award be so construed. 8. Section 175 of the Industrial Relations Act provides that the Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument. There is no question that the award is an instrument. 9. However, the language of s 175 makes it clear that the powers of the Commission under the section do not stand alone, permitting applications for declaratory relief simpliciter. The power to provide an interpretation of a clause in an award must be associated with the exercise of the Commission's other powers under the Act. I refer here to Health Services Union NSW and Ambulance Service NSW [2017] NSWIRComm 1057 at [10]. 10. The question which arises is what powers is the Commission being asked to exercise in the context of s 175? The HSU requested two recommendations. 11. The first is that those paramedics in respect of whom the dispute proceedings were brought and whose situation has now been agreed with NSW Ambulance be classified as Intensive Care Paramedics under the Award and be back paid accordingly. It seems to me that this recommendation would have no utility in that both of those elements seem to be encompassed in what NSW Ambulance put to me today as having been the agreed resolution. 12. The second recommendation sought by the HSU is that, in effect, future Intensive Care Paramedics who transition from permanent to casual be treated in a commensurate manner. As Jamie Darams of counsel, who appeared for NSW Ambulance, submitted, we are talking about a cohort that does not exist at the moment. The HSU is effectively asking me to address a hypothetical situation, that is, what might happen in the future when an ICP transitions from permanent to casual? 13. To that extent, any determination that I might make would be tantamount to a declaration. It might almost be in the nature of an advisory opinion. 14. I also have in mind the submissions made on behalf of NSW Ambulance that the language in cl 5(b)(iv) of the Award appears in numerous other definitions within cl 5. Even were I empowered to make a declaration, I would be reluctant to do so without sufficient evidence and submissions to explore the ramifications on any other classifications that might exist in the Award. 15. That is not to say that I do not have some concerns arising out of the evidence. Ian Hamilton works casually as an Intensive Care Paramedic with NSW Ambulance. He stated that when he clocks onto a shift he does so as an ICP. If there is an available ICP vehicle, he is allocated to that vehicle. When he is on shift, the control centre is aware that he is an ICP resource and will dispatch him to jobs that look to require intensive care or an extended scope of practice. He went on to say that he feels compelled to use his ICP skills and go to the extent of his scope of practice when required. He said "I cannot unlearn ICP clinical knowledge and procedures". 16. Wayne Lewry, also a casual ICP, similarly described the requirement to exercise his extended skills when on shift. 17. No evidence was led to contradict any of those matters. There was equally no evidence led as to the process by which an ICP position comes to be approved and how an ICP is appointed to it. There is at least some scope to question the extent to which the situation is as simple or as clear cut as NSW Ambulance would have me believe, that is that a paramedic accepts the work that they are offered and, if that is as a general paramedic, that is the end of the story. 18. That being said, this does not overcome my concerns that the effect of the application before me is to seek declaratory relief. As regrettable as it is, that is not within the jurisdiction of this Commission to order. 19. It may be that an application ought to be made in an appropriate jurisdiction. In the alternative, it may be that the particular circumstances of ICPs are such that the parties might give consideration to whether the language of the definition ought to be revisited. But that is not the application before the Commission. 20. For these reasons, I decline to grant the relief sought and I dismiss the notification. Damian Sloan Commissioner