Industrial Relations Commission of New South Wales CITATION : Operational Ambulance Officers (State) Award, Re [2001] NSWIRComm 331 PARTIES : The Health and Research Employees' Association of New South Wales Health Administration Corporation FILE NUMBER: IRC 762 and IRC 6226 of 1999 CORAM: Walton J Vice-President; Grayson DP; McLeay C CATCHWORDS : Application to vary award - cross-claim by employer - onus on applicant party to establish whether existing provisions should be varied - consideration as to whether existing award provisons are fair and reasonable - primary test for evaluating whether award should be altered - special case - onus on applicant to make out its case on the evidence - applicant must demonstrate that case has special attributes or is out of the ordinary - strict compliance with wage fixing principles generally not required in special case - applicant not required to show compelling evidence or meet special onus to make out special case - conditions established in earlier award need to be ultimately tested against statutory requirement to set fair and reasonable conditions on special case criteria - where provision arising from test case, particular care required - need to compare basis for test case provisions with factors relied upon for application - occupational health and safety issues, if demonstrated, sufficent to make out special case - occupational health and safety considerations raised in this matter not part of rationale for exisitng award prescription - longstanding practice of Commission to have regard to occupational health and safety in making awards - focus of award clearly distinguishable from broader obligations under Occupational Health and Safety Act - award has general effect in preventing or remedying occupational health and safety detriments - evaluation of expert medical evidence and evidence of ambulance officers - consistent exposure to risk of psychological injury and adverse effects of acute stress - increased leave would substantially assist in avoidance of risk - evidence not demonstrative of precise level of improvement required - statistical evidence unhelpful - economic considerations - public interest - inadequate basis for full extent of claim - absence of merit for cross-claim - failure to show conditions not fair and reasonable - cost implications alone not enough - recommendation for leave to be taken in two equal parts each year - paid annual leave of absence increased by one week - review after two years - operative date - orders made Annual Holidays Act 1944 Industrial Arbitration Act 1940 s63(1)(e) LEGISLATION CITED : Industrial Relations Act 1996 s3 s10 s146 Occupational Health and Safety Act 1983 Annual Holidays Case 1974, Re [1974] 74 AR 336 Cold Storage and Ice Employees (Cumberland) Award, Re [1940] 39 AR 191 Corrections Health Service Nurses (State) Award, Re (No 2) [2001] NSWIRComm 58 Crown Employees (Administrative and Clerical Officers) (State) Award and other Awards, Re (No 2) (1993) 52 IR 243 Glass Makers (Australian Window Glass Proprietary Ltd) Award, Re (No 2) [1939] 38 AR 164 Government Railways and Tramways (Construction) Award, Re [1926] 25 AR 92 Health and Community Employees Psychologists (State) Award, Re [2001] NSWIRComm 302 CASES CITED : Metal, Engineering and Associated Industries Award 1998, Re - AIRC Print T4991, 29 December 2000 New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award, Re (2000) 100 IR 447 Pastoral Industry (State) Award, Re (2001) 104 IR 168 Shift Workers Case 1972, Re [1972] 72 AR 633 Social and Community Services Employees (State) Award, Re [2001] NSWIRComm 274 State Wage Case 2001 (2001) 104 IR 438 State Wage Case, May 1991 (1991) 36 IR 362 Transport Industry - Cash in Transit (State) Interim Award, Re [2001] NSWIRComm 220 Transport Industry (State) Award, Re (1996) 95 IR 126 HEARING DATES: 05/07/1999; 05/11/1999; 05/21/1999; 03/23/2000; 03/24/2000; 05/02/2000; 05/04/2000; 05/10/2000; 06/20/2000; 11/27/2000; 12/08/2000 DATE OF JUDGMENT: 12/18/2001 APPLICANT & RESPONDENT TO CROSS-APPLICATION Mr J Murphy of counsel Instructed by The Health and Research Employees' Association of New South Wales LEGAL REPRESENTATIVES: RESPONDENT & CROSS-APPLICANT Mr G Hatcher of counsel Instructed by Ms K Crawshaw, Solicitor for the Health Administration Corporation JUDGMENT: - 81 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice-President GRAYSON DP McLEAY C 18 December 2001 MATTER NO IRC 762 OF 1999 Operational Ambulance Officers (State) Award Application by The Health and Research Employees' Association of New South Wales for variation re Clause 25 Annual Leave MATTER NO IRC 6226 OF 1999 Operational Ambulance Officers (State) Award Application by Health Administration Corporation for variation of award DECISION [2001] NSWIRComm 331 1 These matters concern an application by The Health and Research Employees' Association of New South Wales ("the Association") to increase the annual leave entitlements for ambulance officers engaged as shift workers under the Operational Ambulance Officers (State) Award ("the award") and a cross claim brought by the Health Administration Corporation ("the HAC") with respect to conditions of employment for the taking of meal breaks, call out arrangements and penalty rates for shift work and weekend work. 2 The award presently provides in cl25 for annual leave as follows: a. i. Annual Leave shall be granted on completion of each twelve months' service as follows: a) Day Worker (as defined in clause 4, Definitions, of this award) - 4 weeks leave on full pay; b) Shift Worker (as defined in clause 4, Definitions, of this award) on a seven-day roster - 5 weeks leave with 7 weeks pay. ii. The parties agree that during the life of this award there will be continuing discussions between the parties in relation to annual leave provisions for employees employed as shift workers and that the award may be varied by consent to incorporate any agreed variations to the award. b. In the event that an employee's employment has changed from a seven day per week basis to a Monday to Friday basis or vice versa, then annual leave shall be calculated on a pro rata basis. c. It is admitted by the parties that two weeks pay has been provided to employees to whom paragraph (i) (b) of subclause (a) of clause 25, Annual Leave, of this Award, applies in lieu of and in consideration of public holidays being worked by employees or which have occurred on a rostered day off. d. To the leave prescribed by paragraph (i) (a) of subclause (a) of this clause, there shall be added one working day for each public holiday or special public holiday or one half working day for each half public holiday or special half public holiday which occurs during a period of annual leave. e. i. Annual leave shall be given and shall be taken within a period of six months after the date when the right to annual leave accrued, provided that the giving and taking of such leave may be postponed by mutual agreement between the parties for a further period not exceeding six months. ii. Annual leave shall be granted on a rotating roster basis provided that such rotation complies with paragraph (i) of this subclause. iii. An employee shall be eligible for annual leave when twelve months have elapsed since the date on which the last annual leave would have begun if taken immediately it had become due, or if the employee has not previously had annual leave since the commencement of the employment. iv. Nothing in this subclause shall prevent the Service, by agreement with the employee, from allowing annual leave to an employee before the right thereto has accrued but where leave is taken in such a case a further period of annual leave shall not commence to accrue until the expiration of the twelve months in respect of which annual leave was taken before it accrued. Provided that any leave taken by an employee under this paragraph shall not exceed the amount of proportionate annual leave standing to the credit of the employee at the time of entering upon such leave. v. At least six months notice shall be given to employees of the date on which they shall take their annual leave. Where an employee has been notified that he or she is to take his or her normal leave at a specified time and that time is thereafter altered by the Service, the employee shall be reimbursed any actual losses which result to him or her to the extent to which deposits paid for travel and/or accommodation are not refunded. vi. Employees may exchange/split annual leave by mutual arrangements with the approval of the Service provided that such exchange complies with paragraph (i) of this subclause. f. Each employee before going on annual leave shall be paid for the period of the leave at the ordinary rate of wage to which he or she is entitled under this Award and such payment shall be made before the employee commences annual leave. g. Notwithstanding the provisions of subclause (f) of this clause, the Service agrees, subject to at least twenty eight (28) days prior written authorisation by the employee, to pay the employees Annual Leave entitlements on as a fortnightly basis which coincides with the normal fortnightly pay period. h. Where the employment of an employee is terminated the employee shall be entitled to receive a proportionate payment in respect of service of less than one year, at the weekly wage to which such employee is entitled under this Award. i. Credit of time towards an allocated day off duty as prescribed in clause 15, Allocated Days Off, of this Award, shall not accrue when an employee is absent during their four weeks annual leave as provided for under the terms of the Annual Holidays Act, 1944. However, employees entitled to allocated days off duty in accordance with clause 15, Allocated Days Off, of this Award, shall accrue credit towards an allocated day off duty in respect to any additional periods of annual leave which is granted to employees in excess of the abovementioned four weeks. 3 Notwithstanding the provisions of cl25(e)(vi) of the award, the evidence in these proceedings revealed that ambulance officers were usually required to take annual leave on a single occasion consisting of five weeks each year. The Application by the Association 4 The Association sought to vary that provision by inserting a new cl25(a) as follows: Annual Leave shall be granted on completion of each twelve months' service as follows: (i) Day Worker (as defined in clause 4, Definitions, of this award) - 4 weeks leave on full pay: (ii) Shift Worker (as defined in clause 4, Definitions, of this award) on a seven-day roster - 6 weeks leave with 8 weeks pay or 8 weeks leave with 8 weeks pay. The election to take the additional leave is made once a year on 1 May by the Officer and can only be altered on an annual basis. 5 The grounds and reasons for the claim, as stated in the application, were as follows: 1. The award parties undertook to discuss further the annual leave entitlement to shift workers during the life of the award. The parties have not been able to arrive at a consent position. 2. The matter is referred to the Industrial Relations Commission under s 17(3) (c) for variation as contained in Schedule A on the basis that: a) it is not contrary to the public interest to do so and b) there is substantial reason to do so. 3. Any other reason the Commission deems appropriate. The HAC Cross-Claim 6 The HAC cross-claim sought to vary the award as follows: 1. By deleting the existing subclause (c) of clause 10, Hours of Duty, which currently reads: 'Employees working shifts that incorporate a meal break who are recalled to duty from their meal break shall be paid in respect of the first call out, one (1) hour at ordinary rates and in respect of any subsequent call out, ordinary rates extra for the time so worked, provided that the subsequent call out occurs prior to him or her having completed the meal break. At the beginning of the seventh hour, the meal is considered to have commenced and one hour's penalty at ordinary rates is to be paid for the first case. Subsequent cases referred to in the subclause will attract ordinary time extra until the full meal break has been taken. This penalty shall also apply where an employee is sent to his or her meal prior to the completion of the fourth hour. This provision will not apply to employees on night shift although the appropriate meal break, in accordance with the provisions contained in subclause (b) of this clause shall be given unless otherwise agreed between the parties.' And inserting a new subclause (c) in lieu thereof as follows: 'Employees must not be required to work during meal breaks as a matter of routine practice unless mutually agreed at the local level. Provided that any time worked during such break shall count as working time and unless the employee is permitted to finish duty early on the same shift then overtime becomes payable once the total ordinary work time of the shift has elapsed.' 2. By deleting from subclause (b) (i) of clause 12, Employees on Call, the words: '…a second or subsequent call is received by an employee whilst he or she is still performing duties associated with the first call, he or she shall attend the second or subsequent call without additional payment, unless the total time exceeds four hours, in which case payment shall be made for the actual time worked at overtime rates.' And inserting in lieu the words: '…an employee is recalled to work again within a four hour period following the commencement of a call-in attracting the minimum payment of four hours at overtime rates, no additional payment is to be made to the employee in respect of that work time within the four hour period, except for the reimbursement of actual fares/costs in returning to work. In respect of a call-in within the four hour period which extends beyond the four hour period, overtime rates are to be paid for that work time beyond the four hour period.' Subclause (b) (i) would then read: 'Time on call shall not be counted as time worked unless an employee is called to duty, in which case the employee shall be paid for a minimum of four hours at overtime rates for each time he or she is recalled; provided that where an employee is recalled to work again within a four hour period following the commencement of a call-in attracting the minimum payment of four hours at overtime rates, no additional payment is to be made to the employee in respect of that work time within the four hour period, except for the reimbursement of actual fares/costs in returning to work. In respect of a call-in within the four hour period which extends beyond the four hour period, overtime rates are to be paid for that work time beyond the four hour period.' 3. By deleting from subclause (c) of clause 17, Penalty Rates for Shift Work and Weekend Work, the words: '…. at the appropriate rates prescribed herein.' And inserting in lieu thereof the words: '…. of the appropriate ordinary Monday to Friday hourly rate, the calculation of which does not include the shift premiums prescribed in subclause (a) of this clause.' Subclause (c) would then read: 'Employees who work overtime on Saturdays and Sundays shall be paid time and one half for the first two hours then at double time of (sic) the appropriate ordinary Monday to Friday hourly rate, the calculation of which does not include the shift premiums prescribed in subclause (a) of this clause.' 7 Broadly speaking, the HAC sought by its application to: 1. reduce the penalty rate of payment for work performed when employees are recalled to duty from their meal break, 2. remove payment for call-outs subsequent to the first call out within the same four hour period for which payment is being made and 3. remove the weekend rate from the calculation of overtime rates for work performed on a Saturday or Sunday. 8 The grounds and reasons for these variations, given in the HAC application, were as follows: 1. The variations sought numbered 1 and 3 in the Schedule A to the application would, if granted, bring the provisions of the subject award into line with the relevant provisions of other major awards in the public health system. 2. The variation sought numbered 2 in the Schedule A to the application would, if granted, remove an anomalous double-payment situation. 3. It is not contrary to the public interest to vary the award in the way sought and there is substantial reason to do so. 4. Any other reason the Commission deems appropriate. The Evidence The Ambulance Officers 9 The evidence of the witnesses, with the exception of the expert witnesses, Dr Jonathon Phillips and Professor Beverly Raphael, was heard by McLeay C on delegation and may be briefly described as going to the description of the nature of the work and circumstances in which it was performed. This evidence was not the subject of serious contest and indeed was accepted as accurate by Professor Raphael, Director of the Centre for Mental Health, New South Wales Health Department who was called by the HAC. 10 A substantial component of the evidence contained graphic and gruesome details of the circumstances encountered by ambulance officers. Although we do not set it out in full, we find the evidence of the difficult personal circumstances ordinarily encountered by ambulance officers in the performance of their work compelling. The summary of the evidence appearing below is but a glimpse of the extensive evidence given by these persons. 11 Evidence was heard from Neil Elliott, Harold Lynas, Michael Reeks, Greg Bruce, Sean O'Connor, Peter Annetts, Brian Kernaghan, Brian McManus, Robyn Sokol, Robert Harrold, Stuart Greenshields, Warren Boon, James Arneman, David Harriman, Steve Flanagan, Andrew Ryan, John Bartley, Paul Sobb, Stephen Pollard, Paul Smith, Gerard Hayes, Russell Lewis, Jim Stephenson and Grahame Edwards, all of whom are employees of the HAC engaged as shift workers in the Ambulance Service of New South Wales ("the Service"), with an average period of employment in excess of 14 years. 12 As earlier mentioned, this evidence went largely to the background and particular experiences of the ambulance officers. The evidence also concerned the effect that such experiences have had on them and their families and the expectations that an increased amount of leave and its availability in two separate periods each year would be likely to have on them. In particular, there were numerous references to stress within the family and other relationships. All ambulance officers referred to traumatic incidents in their careers with the Service and in their everyday work situation. 13 Whilst some such incidents had occurred years earlier, the tension arising from such experiences remained at the time of giving evidence. As an example, Mr Elliott referred to an incident in the 1980s that obviously remained vividly in his memory at the time of giving evidence. After relating details of an horrific incident in which he comforted a woman involved in a traffic accident for a lengthy period at the scene of the accident, he said: The woman passed away in front of us within seconds. We then loaded up and took her to the morgue. Then we are expected to be normal human beings and go home and see your wife and your family. It becomes very difficult. 14 By contrast, Mr O'Connor referred to an incident that had occurred on the day prior to him preparing his statement of evidence, as an example of his day to day experiences. 15 Mr Annetts referred to his personal involvement in the Thredbo disaster, the Milperra "bikie" massacre and a further incident in 1984, as well as more general work experience. Of his experience attending to the aftermath of the shooting at Milperra, which resulted in a number of fatalities, of which he provided some detail in evidence, he said: I remember going home that night and seriously considered leaving the job, because I felt that this is not what a normal person should be doing. Now I love the job and I love doing what I do and am very proud to be a paramedic. However, in the past I didn't realise the effect that it was having on me. 16 The ambulance officers believed that additional annual leave would have a positive effect on their family life, their ability to cope with trauma, their capacity to remove themselves from the everyday demands of the job and their general well-being. Some expressed the view that the "burnout" of ambulance officers would be lessened, with a resultant impact of retaining the services of experienced officers over a longer period. 17 A range of stressors were described by the witnesses. Some stressors were mentioned by all the ambulance officers. Others, such as re-certification and the demands of driving, were mentioned only by some. 18 Mr Lynas described his usual experience as follows: I usually feel fatigued all the time. Even on days off, the first day off I would sleep, probably three hours and when we get home from night shift I will get up, toss and turn and spend the rest of the day basically just resting, not doing anything. I can't sleep. I can't do anything. I very rarely go to bed before midnight even though I am up at 5.00 and 4.30 most mornings on day shifts. 19 Mr Bruce said: Officers may not recognise the effects of the day to day job before it becomes a real danger especially with the staff shortages and increase in overtime expected. Extra annual leave will allow these officers to have either a longer single break or may be two breaks per year. This would provide a better opportunity to get away from the shift work and the daily job pressures. The current amount of five weeks annual leave is not enough. It takes me at least two weeks to unwind and once I have unwound the three weeks go pretty quick. If you try and split your holidays because of your family, trying to cover school holidays or just to spend a bit more time with them it is very difficult with other officers. I feel that I have a need to have two breaks a year, especially being in the job for over 11 years. 20 The evidence of Mr Kernaghan on annual leave was as follows: At this stage of my career I feel that four weeks annual leave every five months would be beneficial for my work and my family and myself. It would allow me to make up for time lost during the shift work hours, during the other periods of the year and allow me to wind down so that I am ready to go out and do it all again. I would prefer personally to have two periods of annual leave rather than one big lump. For me this application provides an important opportunity for me to give something back to my family. 21 Many of the officers who gave evidence suggested that if the ambulance officers were to be granted an additional week's annual leave it would provide instant affects with increased morale and greatly reduced sick leave and workers compensation leave. Mr Kernaghan said: The stress levels we are subject to are enormous and it would not be unreasonable to say that the stress levels are not experienced by any other members of the community at all at the levels we deal with. The lives of people are put in our hands at all times. It is our responsibility to stabilise and transfer victims of extreme circumstance until they can receive the next higher level of medical care. 22 Mr Boon referred to annual leave as stress relief. He believed that the attrition rate of officers would be directly affected if this leave is approved. He said: I have just come off annual leave. I was looking forward to it hoping that it would freshen me up a little bit in regards to going back to work. However, the five weeks was in one big hit and it just basically had no effect. I have been in the job since 1993 and it is just starting to get to the stage where, you know as much as you love the job, your enthusiasm is affected and you don't want to place yourself in the position where you are seeing all this pain and misery. 23 These are some examples of the evidence given in these proceedings by the ambulance officers. In summary, it was the commonly held view of the ambulance officers that an increased quantum of leave taken in two sessions was likely to allow release from the stress of the position and to improve family relationships. Some officers considered that the leave would also provide additional recreational time when they could remove themselves from the local community (and their role as an ambulance officer in this context). This last aspect was of particular importance to those ambulance officers stationed in country areas. 24 The role of an ambulance officer stationed in the country was described by Mr Arneman in the following way: When I have days rostered off staff come from neighbouring stations and provide relief coverage. They actually live on the station and they perform the work at that time. However even though I am on days off it is not uncommon that I would actually be called on to team up with the visiting relief officer as a second officer to provide two officer crewing, particularly to emergency cases. Even on days off if those officers were out of town or on routine work I could be called on to do emergency work. Quite commonly I am called on to do station casualty work where people come to the front door with minor ailments and need treatment that can be done on a first aid basis and then they can be sent on their way. You are never really off duty as such even when you are off duty and the only way to avoid those sorts of after hours work is to leave the town when you're not on call so that you can have a break. 25 Mr Elliott also described people knocking on his front door during off duty hours. Mr O'Connor described the effect on his personal life of people knowing him as the local ambulance officer. If the question were to arise of not responding to a call because it was your day off, he said "the public would hear about it" and "the community would see you as the worst person in the world". 26 Mr Bartley expressed concern that he was not free to have a drink in a hotel on his day off because of community perception of his role. Similarly, Mr McManus said that in a small community: They know who you are whether you are wearing a uniform or not ... Being part of a community people also expect a high standard of you. You know you can't go down the pub and make a fool of yourself. You can't give a bad image to the service. You are always on your best behaviour, so you never get time to relax unless you get away from the town that you live and go somewhere where nobody knows who you are. With the amount of time we are getting at the moment it is hard to get away and wind down and enjoy yourself before you have to come back to work. 27 These examples were given in support of the application for increased annual leave so as to enable officers to leave the local community environment for a reasonable period and to reduce the stress of the job. 28 Currently there are a number of schemes available within the Service for stress relief. The following excerpts are typical of the views expressed by the officers in relation to such schemes: … counselling, debriefing, none of that is adequate" because of the relentless pressure of the job. Ambulance officers - because it's not fair and just - and a lot of ambulance officers don't like going to tell ambulance officers their problems; because basically - because you're a peer support officer doesn't mean to say that you have a steel armour in front of you and that you can handle everything. You must understand, all peer support officers actually work the same way I do. They have the same problems, they have the same job, and they have the same torments for jobs that they had. Most ambulance officers find it very difficult to go see a peer support officer knowing full well that the person they were talking to may well be struggling as much as they are … The recent job I did was - a disaster, was the Glenwood [ sic ] train accident. ... whilst I attempted to get to a debriefing session a week later, I was on duty that day and I wasn't allowed to attend by the control room, because apparently we didn't have enough staff in the area … These days we have debriefing. In my period on the road jobs especially in the early years, we didn't have anything like that. Our only debriefing was going to the pub and that became so that we relied on that as an outlet to get things off our chest … After an incident during which a new-born baby died after attempted resuscitation during a 50 kilometre drive to hospital, no one came up and said 'are you guys all right' or anything like that. That's part of our job. We do it and don't complain about the things that we see. It is obviously what normal people in the public don't see … In all the years I've worked for the Ambulance Service have I never been offered counselling after a job … She was told by a deputy inspector that anyone who needs counselling should not be in the job. The offer of debriefing does not occur often enough, probably due to the fact that what ambulance officers see in their normal day to day duties is seen as the norm for this profession … The Ambulance Service's so-called 'de-briefing system' really doesn't work. You have got young people in the job really who haven't had much life experience applying for these positions and getting the positions as peer de-briefers … How can they de-brief someone of greater experience and knowledge? … 29 Mr Harriman described attempting to contact a peer debriefer around 11pm one evening, some four days after a traumatic incident, when he reacted with physical aggression to a workmate. A number of senior management were called in and a phone number provided for 24-hour counselling. Mr Harriman had not been aware of the availability of the 24-hour counselling service prior to this incident. He availed himself of the telephone counselling and further face-to-face counselling and found it effective. 30 Other ambulance officers took the view that personal resources could be relied upon to cope with the demands of the job. Several officers said they had never used the available services, although generally they were aware of them. Mr Arneman described a traumatic incident in which he was involved over a 10 hour period, following which he "went off" at his wife. He said: So that was impacting on the way I related to her, I guess. I think, it was one of those jobs where just at the end of the day you've got to sit down and have a drink and try to rationalise what's happened. They're very difficult. They stay with you over time. 31 A number of ambulance officers commented on the difficulty of taking leave at a time of their choice. The officers are asked to nominate a first and second choice of periods within six months of the anniversary date of their commencement of duty as an officer. A roster is then prepared and posted. The Service allowed officers to swap nominated periods with fellow officers, but the capacity to do so was limited by other officers' willingness to swap a desirable period. Someone who commenced employment with the Service in the first half of the year, for example, would not have the opportunity to take annual leave at Christmas time, because that request would fall outside their six month range. 32 Some ambulance officers also commented on the difficulty of taking long service leave when it had been requested. Typically, the leave had been refused because of a shortage of staff to cover the period in question. Other officers spoke of being granted leave when they needed it. 33 For example, Mr Pollard was asked by Mr Hatcher about the availability of long service leave. Mr Pollard replied that he had taken his leave to care for his wife and family when his wife was dying of cancer in 1990. He referred to the leave he had accrued since then as his "insurance policy". Mr Hayes agreed under cross-examination that he had about 14 weeks long service leave available. On further questioning he replied: I've taken one week, I believe. Prior to the current management we have at the moment - we had a superintendent - we were not able to get long service leave. We asked him about the availability of it; he would put to us that if we had enough officers on station for long service leave we had too many officers. We have a situation where we have - we had nine officers on the station; each officer was entitled to five weeks' [annual] leave, so that's 45 weeks' leave a year; then there would be training skills which would probably take between three and five weeks a year. Generally, the superintendent of the day would not allow more than one person [to] be away from the station at one time. So that would, between nine officers, leave us somewhere between four and six weeks to have long service leave, which - and it would only be the period which there was a hole in the roster, not in a period where we'd actually, particularly, need it or want to take it. Mr Hayes added that he was one of the more junior ambulance officers at the station at the time. 34 In broad terms, we consider that the evidence of the ambulance officers revealed that the officers have regularly experienced circumstances which created substantial and ongoing stress impacting adversely upon their work and non-work lives. Senior Officers and Consultants for the HAC 35 The following witnesses were called to give evidence for the HAC: · James Morley, Acting Senior Industrial Officer of the Service, · Malcolm Voyzey, Acting State Superintendent, · Brett Tozer, State Payroll Manager, · Gregory Wallin, Senior Employee Relations Officer, and · Christopher Jones, a senior consultant with IAB Management Services. 36 The evidence of Mr Morley and Mr Wallin was provided in affidavit form and tendered without objection. Neither was required for cross-examination. 37 Mr Morley's evidence related to the history of rosters in the Service, the history and function of the Service's Employee Assistance Programme ("EAP") and re-certification procedures. 38 The "4x4 roster" is a varying shift roster roughly described as four days on, four days off. It was trialled in various forms in regions, according to employee requests, and introduced for the performance of shift work by ambulance officers following those trials with some variations across the State. 39 In 1986, the Service introduced an EAP in recognition of the work related stress factors affecting the personal, family and social life of ambulance officers. The programme consisted of two parts; professional counselling and peer debriefing. A new external provider was established in 1997 with two components - Critical Incident Debriefing and a Staff Counselling Service. 40 The Critical Incident Debriefing Programme was described in material from State Headquarters of the Service provided by Mr Morley, as follows: The main aim of the Critical Incident Debriefing Program is to have peer counsellors perform "defusings" following critical/major incidents and to organise, co-ordinate and conjointly conduct any ensuing formal Critical Incident Debriefing. If a critical incident cannot be appropriately handled by a peer counsellor then it is handled by one of the professionally qualified counsellors available. 41 The primary function of the Staff Counselling Service is to offer a free and confidential counselling service for employees of the Service and their family members. Counselling can be initiated by an employee without referral from managers or supervisors. This programme aims to address socio-behavioural problems such as emotional problems, alcohol and drug use, family or relationship problems, interpersonal problems, gambling, physical and emotional abuse, as well as work related factors. 42 The Service also established a Chaplaincy Service in 1990 as a further avenue for counselling and support services. 43 Mr Morley compared the re-certification programme of the Service with procedures in the NSW Police Service. The Police Service does not have re-certification as such, but has a system of competency based on incremental progression. Ambulance officers are required to undertake and successfully complete courses and a certification examination every two years. These courses are accredited by the Vocational Education and Training Advisory Board. While participating in the courses, travel and accommodation is provided and payment is made on a projected roster basis. Assessment covers the Protocols, Procedures and Pharmacologies under which ambulance officers operate. 44 In his statement of evidence, Mr Voyzey described the Service and provided information including staffing reviews, shift rostering, leave provisions, attrition rates, down time and costs. He described the Service as: ... one of the largest ambulance services in the world, servicing a population in excess of 6.2 million persons, employing almost 30,000 people at 230 locations, operating more than 800 ambulance vehicles, with an annual budget in excess of $230 million ($60M income plus Government funding). In 1998-99, the Service undertook more than 750,000 cases and travelled some 28 million kilometres in delivering its services. 45 Staffing reviews over the last five years have resulted in an increased number of ambulance officer positions and increased overtime to meet the commitments of the Service until the additional positions are filled. Minimum operating levels have been established in Sydney to identify the minimum number of officers who must be on duty during day and night shifts. This has also caused an increased demand on overtime. 46 Mr Voyzey described a number of measures which are designed to provide flexibility to the officers and are in recognition of the demands of the job. He described the purpose and function of the EAP. The Service has 32 ambulance officers appointed as Peer Debriefers across the state. The introduction of "4x4 rosters" has allowed officers more time off than previously. (A 4x4 roster is generally two ten-hour day shifts followed by two 14-hour night shifts, followed by four days off). The award allows for allocated days off for 8-hour shift workers and for time off in lieu of overtime. Officers are also entitled to family and community services leave and personal carers leave in line with government policy and public service standards. 47 Mr Voyzey provided statistics on the number of days leave was taken by ambulance officers in a selected period and graphs showing the availability of officers when compared with demand from August to December 1999. 48 Mr Voyzey stated that attrition rates were good at an annual rate of 3.6 per cent. This rate had remained constant since 1994 - 95. 49 According to Mr Voyzey's calculation, the cost of introducing eight weeks leave with eight weeks pay is approximately $9 million per annum (a net additional cost of $8,867,000). Any increase in the quantum of annual leave would also impact, in the short term, on the overtime demands placed on ambulance officers. An additional 58 officers would be needed immediately to provide roster coverage. The service is unable to train more than 100 new officers per year. 50 These calculations take account of the savings which accrue because of the current entitlement of five weeks leave with seven weeks pay which results in ambulance officers being paid 54 weeks pay at present during each 12 month period. 51 Mr Voyzey provided an analysis of workload patterns of ambulance stations across the state for the period 1 January to 30 June 1999. Mr Voyzey stated that the analysis shows a high level of downtime of ambulance officers during their rostered shifts - the highest in a rural area being 91.04 per cent and in a metropolitan station of 94.74 per cent downtime. The figures were determined by dividing the available staff hours by the number of cases attended. 52 Putting his contention at its highest, Mr Voyzey said this showed that ambulance officers in the Warragamba station were "actually working" only 5.26 per cent of their rostered hours. Under cross-examination Mr Voyzey conceded that he had not taken into account station duties required to be performed by officers associated with the maintenance of stock, paperwork, administrative duties, cleaning the vehicles or treatment for first aid for people who come into the station. When questioned further, Mr Voyzey claimed that downtime referred to the period when the officers were not engaged in transport work or otherwise engaged with a case. To calculate downtime, Mr Voyzey had counted each roster line as representing an officer available for 38 hours per week, so that over a six month period the total available shift hours were calculated by multiplying 38 hours by 26 weeks for each roster line at a station. He had not accounted for the fact that most of the work in Sydney metropolitan stations, and increasingly in large rural centres, is undertaken by two-person teams. Neither had he accounted for any aspect of the officers' leave. 53 When challenged on the figures, Mr Voyzey responded: As with all statistical information, you can construe it to say what you wish. 54 Mr Voyzey provided a further statement in support of the application by the HAC. He explained the effect of the application to vary cl10, Hours of Duty. The HAC sought to change the way officers were paid for interruptions to meal breaks or when meal breaks have to be taken late. The effect of the application, if approved, would be to reduce the payment of penalties and overtime to ambulance officers in Sydney, where abandoning or delaying meal breaks is a common occurrence. 55 The proposed variation to cl12, Employees on Call, Mr Voyzey stated, would change the way ambulance officers are remunerated for being recalled to duty during periods of "on call". It would remove additional payments where an officer is called out on a second or further occasion when being paid for four hours for the first call. Mr Voyzey described the current arrangement, whereby ambulance officers receive multiple payment for multiple call outs during the original four hour period, as inappropriate. He conceded in cross-examination that he was aware that the current provision is common throughout the health industry. 56 Clause 17, Penalty Rates for Shiftwork and Weekend Work, currently provides, on Mr Voyzey's evidence, that ambulance officers receive payment for both weekend penalty rates and overtime penalties which are compounded when overtime is worked on weekends. In this situation, overtime worked on a Sunday is remunerated at 262.5 per cent for the first two hours, and 350 per cent for any subsequent hours. Mr Voyzey stated that the application sought to remove an anomalous double payment which does not exist anywhere else in the NSW health sector. 57 More generally, Mr Voyzey stated that the variations arising from the grant of the cross-application would: · have no adverse impact on the provision of ambulance services to the community nor will they impact on patient care; · provide cost saving to the Service through a reduction in payments for overtime, but with no effect on the base salary for ambulance officers; · allow for a more effective utilisation of the Services' financial resources; · bring the provisions of the subject award into line with the relevant provisions of other major awards in the public health system; · remove an anomalous double payment situation; and · ensure that, except in extenuating circumstances, a meal break will be available to all personnel working 4x4 rosters in the Sydney metropolitan area. 58 The cost savings which would accrue to the Service as a result of the proposed variations are: approximately $2 million for removing the penalties for late or interrupted meal breaks; approximately $2 million for removing the multiple payments for call-outs during the initial four hour paid period; and, approximately $5.6 million for removing the double payment for overtime worked on weekends. 59 Mr Tozer supervised the assessment of the impact of the cross-application, if granted, by comparing actual payments with a simulated payroll in two regions over a fortnightly pay period. The state-wide costs were extrapolated from these findings. The outcome of the exercise was that as at 31 January 2000 the cost saving would be $4,764,870. 60 Mr Tozer stated that the increased cost of providing six weeks leave rather than five weeks would be $2,012, 972. 61 Mr Wallin provided information relating to the leave entitlements of ambulance officers, health workers and other emergency workers. He also gave evidence as to the history of the provisions for annual leave, long service leave and other leave. 62 With a number of variations over the years it was admitted by the parties that part of the granting of additional leave and/or payment was in lieu of public holidays being worked. In accordance with the summary of movement of annual leave entitlements provided in evidence by Mr Wallin, in 1974 when the current arrangement was reached, it was admitted by the parties that two weeks pay was provided in lieu of public holidays for shift workers. 63 Mr Jones is a self-employed consultant who had undertaken contract work with IAB Management Services. That organisation was requested to conduct a broad review of workers compensation within the Service. The review included costs and procedures, the incidence of overtime costs, management efficiency and injury patterns. Mr Jones prepared a number of recommendations on occupational health and safety courses and other controls arising from the review. He reviewed the incidence of stress within the Service and other agencies and offered comments on the working environment of ambulance officers. His analysis was based on figures provided by the Service's insurance manager, the GIO, WorkCover and information gained from interviews with several officers responsible for rostering. His findings in regard to the incidence of stress injuries were written in his report commissioned by the Service, as follows: These comparisons indicate that the NSW Ambulance Service has a significantly higher incidence of stress claims than does its counterpart in Victorian (the Victorian Metropolitan Ambulance Service). The NSW Ambulance Service also has a significantly higher incidence of stress claims than does the NSW Fire Brigade, although the Service's incidence of stress is less than that of the NSW Corrective Services. Mr Jones concluded in his report: It appears that the Service has experiencing [ sic ] an incidence of stress claims which is significantly higher than that for other Agencies and occupations. However the incidence of stress claims appears to be decreasing for both the Service and for other agencies and industries for which data is available. The Service's levels of stress claims is starting to trend towards the level for other comparable industries and occupations. From this data we have concluded that the Service's earlier claims history (1996-4 [ sic ] and 1997-8) may include anomalous data which may not be representative of the ongoing incidence of stress claims. 64 Under cross-examination by Mr Murphy, Mr Jones conceded that the focus of his report was on reducing workers compensation costs and that some statistics, such as the number of officers injured, needed "to be taken with a grain of salt". The following exchange then took place between Mr Murphy and Mr Jones: Q: No, I'm not asking you that. What I'm suggesting to you is: if the evidence was that a rearrangement of current annual leave entitlements would reduce stress amongst ambulance officers, I'm suggesting to you that such a strategy would be consistent with your focus. A: My response to that would be that within the ambit of those words, it would include management changes to work practices, yes. Q: Management changes to work practices which reduce stress are consistent with this focus? A. Stress being an injury, and I was referring to injuries, that would be correct. 65 Statistics showed that the overall number of workers compensation claims by the Service was steady at 24.6 per 100 employees in 1998 - 99, similar to the level of claims found in the Victorian Metropolitan Ambulance Service. The Service presented, as it was stated by Mr Jones, a lower incidence of claims than the Department of Juvenile Justice, but higher than the NSW Fire Brigade. The frequency of the workers compensation claims due to stress had decreased in the Service from 6.7 per cent in 1997 - 98 to 2.0 per cent in 1998 - 99. In 1998 - 99, 0.9 per cent of the Victorian Metropolitan Ambulance Service's claims were related to stress. During the same period 1.0 per cent of workers compensation claims in the NSW Fire Brigade related to stress. Stress related claims in the NSW Department of Corrective Services amounted to 15.0 per cent of total claims. 66 The import of Mr Jones' evidence was that stress claims within the Service for 1998 - 99 had reduced from their previous high levels in 1996 - 97 and 1997 - 98. This indicated, in his view, that stress claims were reducing and were starting to trend towards the level for other comparable industries and occupations. His examination of the claims history in NSW does not account for those incidences of stress which do not result in a claim being made nor, it might be safely observed, do the statistics from other States and/or other emergency services. 67 He believed that management changes to work practices that reduced injury would be consistent with his focus, which is to reduce the number of injuries in the workplace. He agreed with Mr Murphy, under cross-examination, that any alteration to work practices which reduced the incidence of workers compensation claims would produce a saving in workers compensation costs in time. 68 Mr Jones explained the method of operation of the Treasury-managed workers compensation fund in which the Service participates. He stated that, as a matter of general principle, alterations to work practices which reduce workers compensation claims can lead to cost savings accruing to the organisation in the long term. It would, however, be "exceedingly difficult" and "very speculative" to attribute any cost saving to a particular work practice. He added that there are so many factors impacting on fluctuating claim numbers that it is impossible to isolate the effect of any change in work practices. The change to the workers compensation legislation by way of the Workplace Injury Management & Workers Compensation Act 1998, for example, affected the number of stress claims overall and would have impacted on the claim figures for the Service. He also accepted the principle that many people do not make a workers compensation claim but "soldier on" while suffering significant stress levels associated with their work. Expert Evidence 69 Expert evidence was called by the Association and the HAC as to the application by the Association to increase annual leave. Dr Jonathan Phillips gave evidence for the Association. He is a consultant psychiatrist who is President of the Royal Australian and New Zealand College of Psychiatrists and Vice Chairman of the Committee of Presidents of the Australian Medical Colleges. 70 Professor Beverley Raphael gave evidence for the HAC. She is the Director of the Centre for Mental Health, NSW Health Department. Professor Raphael is a world recognised expert in the fields of Post Traumatic Stress Disorder, stress in emergency services and mental health response to disasters. 71 Dr Phillips gave evidence after having the opportunity of examining Professor Raphael's affidavit, the affidavits of the ambulance officers and related material provided to him by, or on behalf of, the Association, such as, awards covering emergency services personnel in various States and territories other than New South Wales and other statements served and relied upon by the HAC. 72 Dr Phillips relied on "a lifetime of clinical practice". He noted there was no significant research which examined the relationship between "leave" and "stress". He stated that the officers who gave evidence (being a long term group of employees engaged by the service) represented "a psychologically robust and stable group". He stated that their views would provide a bias, if any, towards a positive description of the Service. 73 Dr Phillips examined the affidavits of 24 ambulance officers. He noted that seven officers referred to marital break-ups and all officers referred to stress within the family and other relationships. In noting that all officers examined referred to trauma other than violence, he added: Ambulance officers are exposed to a level of trauma (chronic, repeated) beyond that of other personnel including police and fire officers. It is important to note that whilst each incident of trauma is salient, it is the total quantity of trauma extending over a period of years which becomes the more damaging agent. 74 Dr Phillips concluded that "for virtually every ambulance officer, his/her career will have an adverse effect on interpersonal relationships, particularly with spouse or partner and children." In his view, having a thick skinned attitude, as reported by several officers, is an inadequate defence mechanism which is bound to fail. 75 As to the amount of annual leave afforded the ambulance officers and its relationship to their occupational health and safety, he stated: … I think, certainly in the circumstances and from a clinical point of view, 5 weeks of leave is not an adequate allocation. It is my view that this group of people require a larger quantum of leave to be taken, preferably every 6 months. It is a way of - I am really talking about a safe working life - it is a way of promoting safety in the longer term for career ambulance officers. 76 Dr Phillips did not confine his analysis of the "stress" encountered by ambulance officers to the experience of traumatic incidents. He indicated that another factor was that the officers were not able to disassociate their private and work lives. In this regard Dr Phillips said: The psychological significance of the ambulance officer not being able to change roles and to become an ordinary citizen (with the freedoms and rights of an ordinary citizen) needs to be underscored. This is clearly a pervasive stressor for ambulance officers, with each ambulance officer having mentioned the problem. 77 He commented further on other stressors inherent in the role of the ambulance officers, including the lack of useful recreational time, lack of faith in the counselling service and high speed driving under dangerous conditions. He also stated: There is one particular stress which should be noted. The ambulance officer, above all other professional persons, is charged by the community with saving the lives of injured persons in the most difficult conditions. It is a responsibility which cannot be fully met. The ambulance officer will inevitably experience emotional pain and/or frank psychiatric symptoms when he/she fails to save the life of a person, particularly if the person is young or an innocent party to a major trauma. 78 It was noted by Dr Phillips that a certain amount of stress is not a bad thing. It provides "the spice of life". But, he said, sufficient stress will cause the coping mechanisms of even a robust young person to become eroded. Just as people's reactions to stress vary, so do people's reactions to the remedies to stress. Dr Phillips stated: The person most vulnerable to stress disorders is the person where there has been a process of attrition of coping mechanisms where there has been a series of events, such as in a war zone - nothing huge - but a series of events which cause the person to become vulnerable. Then there is the sentinel event which, in some persons, is often the most powerful event, but it need not be, it might be just the third, fourth or the seventh event. 79 When asked in cross-examination about the effect of downtime while on roster, Dr Phillips compared his own experience of being on call with that of the ambulance officers. He commented that: the nights on call are substantially different to the nights when I can do something else. He added: I think if an ambulance officer is watching television or even having a rest at the ambulance station waiting for the next call, that is qualitatively different from [being] truly out of the ambulance service, as it were, for a period of days or weeks. 80 When it was put to Dr Phillips in cross-examination that a number of witnesses used periods of leave for purposes other than recreation, Dr Phillips responded as follows: Actually, there is a difference here and whilst if a person was seeing me I would probably tell them to go and forget about their professional work for a period of time, coming through the vignettes that I saw was this central altruism to that "we should do something useful with our training" and I suppose that an ambulance officer, to be able to go along to TAFE for instance or to the community and teach first-aid is a welcome relief from the day-to-day ratifying, decision-making and the traumas that are so well articulated in the vignettes. So I think it is less than ideal and I would never encourage a person to do it but I think we have to be careful to sort out what is actually done in terms of their busman's holiday, compare it with the real issue. 81 In his affidavit, Dr Phillips posed the question: What might be done to reduce the burden of stress experienced by the average ambulance officer? In answer he deposed: Several matters stand out: 1. In keeping with the nature of the Leave Application by ambulance officers, provision should be made to increase annual leave from 5 weeks to 8 weeks. This would allow the ambulance officers to take two periods of leave, hopefully with at least one period coinciding with leave available to other members of his/her family. Annual leave is essential rather than discretionary. It is time when the ambulance officer can recuperate in a psychological sense. It is a time for physical recovery also. From a psychological point of view, taking leave once every 12 months or longer is not satisfactory. It is desirable for an ambulance officer to take two shorter periods of leave. The risk of burn out (psychological fatigue) increases significantly in a situation where a person is expected to continue working for a long time between vacations. It can be accepted that the mental health of ambulance officers and their resilience to the inevitable stressors of the job would improve if two periods of leave per year, each of 4 weeks duration, were written into the Award. I note the award conditions of ambulance officers in other Australian States and Territories. While I respect details of other awards, I question whether sufficient attention has been given in the development of awards to the level of stress experienced by ambulance officers. It is important to compare the stress experienced by ambulance officers in the ordinary pursuit of their careers with the level of stress experienced by most members of the general community in the pursuit of their careers. By any definition the individual ambulance officer is faced with a far higher burden of stress. With respect, I believe that the level of stress experienced by ambulance officers will separate this group of people from other groups within the community. In keeping with this the Ambulance Officers Award should not only reflect that particular stress which ambulance officers experience, but work to protect the ambulance officers as far as possible from the dangers of their occupation. 2. It would be desirable additionally if ambulance officers were given greater flexibility in the timing of leave. I am aware of rostering difficulties which might arise from this, but I note that in most other industries some choice of timing of leave is the norm. 3. There should be reconsideration of the counselling service provided by ASNSW. Thought might be given to the training of older but highly experienced ambulance officers as counsellors and for those persons to work as counsellors on a full-time or part-time basis. It could be anticipated that counselling/mentorship provided by a senior group of ambulance officers would provide a more acceptable and more appropriate service than counselling provided by persons coming from other disciplines and perhaps without experience in the day to day work of ambulance officers. 4. There should be consideration by ASNSW regarding more comprehensive training in stress management, and training should be made available to the ordinary member of the ambulance service. There are a number of personal tools/techniques of stress management which would assist every member of the service. 82 Professor Raphael prepared an affidavit after reviewing the affidavit material prepared by ambulance officers and by Dr Phillips, as well as related material provided to her by, or on behalf of, the HAC such as a report entitled "NSW Ambulance Service Issues Related to Compensation - November 1999", a ministerial speech prepared by the Service in November 1995, and other material to which she refers in her affidavit. 83 Professor Raphael stated that it was clear that ambulance officers face repeated and unpredictable exposure to highly stressful experiences and that there were a number of potential stressors in their work. She described events or circumstances that involve either the personal threat to the life or the death of others, particularly gruesome or mutilating death, the deaths of children or other horrific or shocking experiences, as potentially traumatic stressors. She noted that such events were likely to be frequently encountered by ambulance officers and that many encounters may occur within a short time frame. From studies of combat, it was suggested that the greater the number and severity of such stressors within a particular time frame, the more likely the individual will be at higher risk of adverse mental outcomes. 84 Like Dr Phillips, she noted that not all stressors have a negative effect, but that unexpected and uncontrollable exposure to potentially traumatic stressors is reported to add to the potential for psychological morbidity. 85 Professor Raphael noted the range of stressors presented by ambulance officers in their witness statements, including concerns over level of training, work roles and skills. These were concerns raised by some officers and not others. She noted that appropriate training and continuing education enhance the sense of personal competence and are important in protecting against stressor effects and negative outcomes. Other stressors reported by the officers included shift work, lack of control of timing of days off, effects on family life, general organisational stressors and the impact on solo rural officers, including being always on call. 86 As to the nature of the work and its impact on ambulance officers, Professor Raphael concluded that: Evidence presented supports reports of work in ambulance and other emergency services generally in that exposure to the stressors identified are frequent, outside the person's control and may occur alongside other stressor experiences, including shift work and prolonged tours of duty. The affidavits presented give testimony to these experiences and to the courageous and valuable work provided by the officers of this service. Indeed the affidavits attest to the opportunities for mastery and success in that they are from those who continue to work in and value their roles as Ambulance Officers, and have progressed in the Service. 87 Professor Raphael outlined a range of research in the fields of stress and stressors in the emergency services, including police, fire and ambulance services. The work of ambulance officers was included in the research and considered separately in some of it. She stated that the level of stressor experiences that may lead to post traumatic stress disorder experienced by ambulance officers, police and fire services are significantly higher than those experienced by the general public. She believes that the level of stressors can affect the mental health of workers in these areas. Other forms of psychological illness, such as depression and anxiety disorders, can also arise, as can acute stress disorder. Not all persons exposed to stressors over a prolonged period develop psychological or psychiatric disorders, but it is not correct to say that events which occurred "some time ago" are not relevant to the response or reaction of an ambulance officer at a later stage. 88 Professor Raphael noted that the processes currently in place to deal with the stressors described by the ambulance officers were inadequate. Having given attention to each of the currently available processes for dealing with repeated and unpredictable exposure to highly stressful experiences, she concluded: While there are a range of programs in place to support workers with the stresses of their work, it is not clear as to what degree these are currently operational (eg. Stress management and awareness of programs) or are delivered in terms of currently available knowledge of good practice. The detail of these programs, when utilised, nor any evaluation of them and their effectiveness was not provided. 89 Professor Raphael stated that none of the data provided addressed issues of tours of duty, stresses of shift work, or the particular issues faced by sole rural officers. Nor did there appear to be specific policies available about length of duty tours, holidays provision and requirements. However, there was no scientifically valid evidence or study to support the suggestion that the programs in place to support ambulance officers have been effective or ineffective. 90 In regard to the four solutions outlined by Dr Phillips, Professor Raphael agreed with those regarding the flexibility of the timing of leave and the need to review and update the entire stress management and counselling framework. In regard to his proposition that the annual leave should be increased to eight weeks, Professor Raphael stated: I can find no evidence to support the increase in leave as reducing the burden (of stress) and cannot support Dr Phillips' view on this with respect to any evidence available. However, I agree that 2 periods of leave, approximately 6 months apart could be potentially helpful. 91 Professor Raphael reiterated her view in cross-examination in the following terms: As is clear from my report, there is no evidence that the annual leave would improve the situation for ambulance officers nor is there evidence that it would not. 92 Professor Raphael commented on the reduction in, but nonetheless higher level of, stress related workers compensation claims in the Service when compared to the Victorian Ambulance Service and the NSW Fire Brigade. 93 When taken in cross-examination to the comparative annual leave arrangements that exist elsewhere, for example, entitlements for Victorian Ambulance officers are in excess of eight weeks and NSW Fire Brigade Officers receive four weeks after 24 weeks duty and then a further four weeks 32 weeks thereafter, Professor Raphael declined to accept that there was necessarily a correlation between increased or more favourable annual leave arrangements and improved claims performance in respect of the stress related injuries. 94 We observe here that the improved claims performance in respect of stress related injuries within the Services about which Mr Jones spoke in his evidence would appear to us to be unexplained by reference to any improvements in leave entitlements and this, in our view, lends weight to the following evidence given in cross-examination by Professor Raphael: Q: Do we take it from that that there is no study of comparative stress levels between similar occupations such as ambulance officers, taking into account different amounts of annual leave - I probably didn't make that very clear. A: To my knowledge there is no systemic study of that kind. Q: Do you know of any evidence that would indicate that there may be a beneficial relationship in terms of lower stress levels correlating to higher periods of annual leave? A: I am not familiar with any system of scientific research which would provide data on that question. Q: Would you have any anecdotal evidence about it? A: I have no anecdotal evidence on it. There may be anecdotal evidence. And further: Q: I want you to accept that the Victoria ambulance officers entitlement are in excess of eight weeks annual leave compared to five in New South Wales. Would you accept that there may well be a relationship between that additional or higher leave entitlement and the lower stress levels? A: Many things could explain it including the annual leave but many other factors might. For example, there has been a long term programme, a mental health programme in the Victorian ambulance service for officers with provision of counselling services including training and education in stress management for people in Victoria so while that may relate to the annual leave I cannot comment on that as a finding as to causative linkage. Q: And you also refer to the New South Wales fire brigades? A: Yes Q: Do you have any knowledge of the annual leave arrangements that operate in the New South Wales fire brigade? A: No I do not. Q: Would you accept that fire brigade officers have a pattern of annual leave where they work for 24 weeks and have four weeks off and then work for 32 weeks and have a further four weeks off, so it is two breaks of four weeks in one case 24 weeks apart and then the next time 32 weeks apart. Would you accept that that pattern of leave taking, that quantum of leave may well have some influence - I am not suggesting the total answer - but some influence on the findings you refer to here, there is a lower level of stress claims in that particular service? A: It is possible it may contribute but again there are potentially a whole range of different work place practices as well as work place support programmes for the fire service as compared to the ambulance service. 95 Professor Raphael steadfastly maintained throughout her evidence that whilst the psychological health and wellbeing of ambulance officers may well be enhanced by, for example, rotation from periods of highly stressful work and, as Dr Phillips said, by taking of leave in two periods at six monthly intervals, there was no conclusive evidence as to the appropriateness of eight weeks leave as compared with say, six weeks leave. Submissions - the association's application Submissions on behalf of the Association 96 In respect of the Association's claim for improved annual leave, Mr Murphy submitted that the two weeks payment in addition to the actual leave entitlement was a payment made in lieu of, and in consideration of, public holidays being worked by employees or which occurred on a rostered day off. The additional two weeks pay was made at the flat weekly rate (that is, without shift or week-end penalty rates). Clause 27, Public Holidays, provides for 11 public holidays each year. Shift workers are paid an extra half-time for work performed on public holidays. 97 It was submitted that the application, if granted, would have the effect of increasing the entitlement for shift workers to eight weeks in total, without altering the provisions for annual leave loading or work on public holidays. There was no application to alter the manner in which leave is granted and taken. Mr Murphy submitted that the application did not seek that ambulance officers be given the option of taking leave in lieu of working public holidays, as is the general standard in the health industry. Such an outcome would pay no regard to the compelling evidence about the stress endured by the officers and the expert evidence of Dr Phillips that the appropriate remedy is an increase in the quantum of leave ideally taken in two blocks at six monthly intervals. 98 The evidence went to the annual leave and public holiday entitlements for a range of other emergency services throughout Australia. The five weeks annual leave entitlement for ambulance officers in New South Wales, Mr Murphy submitted, is the lowest of any of the groups surveyed. 99 By contrast, the two groups, about whom Professor Raphael gave evidence in relation to stress related claims experience, that is, the Victorian Ambulance Service and the NSW Fire Brigade, had more beneficial annual leave entitlements than ambulance officers engaged by the Service. Officers of the Victorian Ambulance Service have an annual leave entitlement, depending upon their election with respect to public holidays, of up to eight weeks and one and a half days. Officers in the NSW Fire Brigade have an annual leave pattern of 24 weeks work followed by four weeks leave, then 32 weeks work followed by four weeks leave. This equates to eight weeks annual leave in every 64 weeks or expressed another way for ease of comparison, 6.5 weeks annual leave in every 52 weeks. 100 Mr Murphy submitted that the Service's attempt to establish that ambulance officers have second jobs did not succeed. Exhibit 35 lists the names of eight witnesses (out of a total of twenty four) as "holding a second job in the last three years ...". In the vast majority of cases the amounts earned were minimal and derived from teaching first-aid. Nothing revealed in the evidence, as to work outside the Service, was inconsistent with the basis upon which the claim for additional annual leave is pressed. 101 He submitted that the Service's strategy of attempting to establish that ambulance officers enjoy significant "downtime" whilst on rostered shifts failed. The "evidence" utilised to establish the amount of downtime was "worthless". Essentially, the hours of coverage for the six month period were calculated by the number of lines on the station's roster (that is, the number of individual officers) multiplied by 38 hours multiplied by 26 weeks. No allowance was made for officers absent on leave, training, re-certification, sick leave and so forth. Then the time spent working was calculated with reference to the time spent on cases requiring transportation. No allowance was made for station work, administrative duties, training, patient attendances at the station and so forth. No allowance was made for the fact that, in the vast majority of cases, two officers were involved. 102 It was submitted that Acting Superintendent Voyzey was cross-examined at length on these matters but steadfastly refused to concede what were the obvious flaws in the process. 103 Mr Murphy submitted that Dr Phillips expressed the view that ambulance officers are exposed to a level of trauma (chronic, repeated) beyond that of other personnel, including police and fire officers. Whilst each incident of trauma was salient, it was submitted it was the total quantity of trauma extending over a period of years which becomes the more damaging agent. Dr Phillips had rejected a proposition to the effect that traumatic incidents which occurred sometime back in the past cease to have an impact. 104 It was submitted that Dr Phillips, after considering acute stress disorder and chronic post traumatic stress disorder observed that, in the case of ambulance officers, the effects of stress were both more obvious and more subtle, with a slower erosion of the capacity of those concerned to cope efficiently in the various domains of their lives. Stress was manifest in a number of ways, including the development of relationship difficulties, psychological fatigue ("burn-out"), various mood disorders (anxiety states, depression spectrum illness and irritability), substance abuse, chronic sleep disorder and various psychophysiological disease states. 105 Dr Phillips related the proposed increase in annual leave quantum with the capacity to take two periods of leave each year, it was submitted, to improving the working environment and thus minimising work related problems identified by officers and ensuring a safe and supportive working environment. This was a preventative health measure. 106 Mr Murphy referred to the evidence of Dr Phillips when he stated in his report: It can be accepted that the mental health of ambulance officers and their resistance to the inevitable stressors of the job would improve if 2 periods of leave per year, each of four weeks duration, were written into the Award. 107 Mr Murphy submitted that the opinions of the two experts were very close on the traumatic nature of ambulance work and the damaging effects that the stressors involved with such work have on the mental health and well-being of ambulance officers. Both experts agreed on the need for preventative measures to assist the ambulance officers in this respect. 108 It was submitted that Professor Raphael, whilst supporting two breaks six months apart, did not support the claimed annual leave entitlement of 8 weeks due to the lack of available evidence as to its appropriateness or otherwise. Dr Phillips was supportive of an entitlement of 8 weeks taken in two blocks of four weeks for the maintenance of satisfactory psychological health. This support is grounded in almost 30 years of practical and clinical experience. 109 Mr Murphy submitted that the Commission should accept Dr Phillips' evidence. This did not require the rejection of Professor Raphael's evidence in any way. However, it was submitted that, in order to satisfy Professor Raphael's requirement for scientific evidence in support of the application, there would presumably need to be a large enough control group of NSW ambulance officers to make a statistically valid sample for this group and it then would need to be compared with another such group under different conditions. It would be expected that training levels of each group would be the same. This was, it was contended, impracticable. 110 Commonsense and industrial relations experience, Mr Murphy submitted, supported by the evidence of Dr Phillips, warranted a conclusion that increasing the annual leave entitlement for ambulance officers would enhance their capacity to deal with the stress associated with ambulance work which, as both experts agreed, was at a level not experienced in any other occupation. 111 Such a conclusion was supported by the comparison of stress related claims as between the NSW Ambulance Service, the Victorian Ambulance Service and the NSW Fire Brigade. It is highly unlikely that it is mere coincidence that the service with the worst stress claim experience also has the worst annual leave entitlement. 112 Mr Murphy submitted that affording workers industrial justice was not a scientific exercise. It is an exercise that demands the application of good sense and a sense of fairness to the evidence before the Commission. It was submitted that this approach would lead to the granting of the application. 113 Mr Murphy further submitted that Dr Phillips' evidence embraces the matters recommended by Professor Raphael. The changes suggested by her should be in addition to, and not in substitution for, increased annual leave. The partial remedy for the occupational health and safety issues sought by the Association is better than no remedy at all and goes some way towards addressing one "obvious need". The other reforms, as suggested by Professor Raphael, cannot properly be addressed by an application to vary the award, as they are outside the jurisdiction of the Commission. They remain to be addressed by the Service. 114 Mr Murphy submitted that the granting of additional annual leave does not "break new ground" because both the Victorian Ambulance Service and the NSW Fire Brigade have substantially superior leave conditions than the Service. He submitted that the NSW Police Service provided to police officers six weeks annual leave with a seventh week for shift workers. To equate ambulance officers with, or to leave them behind, the standard generally, would be to ignore Professor Raphael's evidence as to the level of stress experienced by ambulance officers. 115 Written submissions were filed by the Association as to the jurisprudence of the Commission and its predecessors in relation to the setting of award rates and conditions of employment based on occupational health and safety considerations. Those submissions were as follows: In the exercise of its award making functions the Commission may make an award in accordance with the Act setting fair and reasonable conditions of employment for employees. What is fair and reasonable will depend upon a variety of factors including the nature of the work performed and the industry in which the employees are engaged. It has long been the policy of the Commission and its predecessors, when setting conditions of employment for workers, to have regard to considerations of health and safety. In Re Government Railways and Tramways (Construction) Award (1926 AR 92) Commissioner Piddington considered an application for a forty hour week in lieu of a forty four hour week for underground labourers in the employ of the Railway Commissioners. At that time the Forty Four Hours Week Act permitted a reduction below forty four hours per week only if " the health of the employees in an industry justifies a reduction". This was a predecessor provision to s 63(1)(e)(i) of the Industrial Arbitration Act 1940 . Nevertheless Commissioner Piddington stated as follows: The principle to be followed in all cases by the Commission is not that unhealthy conditions be allowed to continue and a palliative sought in reduced hours, or a solatium in increased wages, but that the organised service of medical and engineering knowledge ought to be employed to abolish, as far as possible, the unhealthiness of the conditions. In Re Glassmakers (Australian Window Glass Pty Ltd) Award (No.2) (1939) 38 AR 164 at 177, Ferguson J expressed the principle as follows: In any event, I am of the opinion that the increase of rates of pay is not a proper method of dealing with a health hazard if such be found to exist. The proper remedy for such, if established, seems to me to be either reduction of hours or extension of annual leave, or both, or, best of all, the minimising or removal of the cause of danger of ill health. In Re Cold Storage and Ice Employees (Cumberland) Award (1940 AR 191 ) a three member bench of the Industrial Commission considered a claim by an employer to vary a clause of the award so as to enable it to call upon inside hands to work at temperatures at which employees were able at that time, pursuant to the award, to refuse to work for longer than one hour. The Commission stated: We take the view that, while the company should be encouraged to introduce new methods which are calculated to improve the quality of the product and increase the efficiency of the plant, every precaution should be taken that the health and well-being of the employees are safeguarded. Progress in industrial efficiency should not be discouraged, but when such progress might only be obtained by causing some harm to the employees concerned in the industry, then the paramount consideration is the welfare of the employees. (p.196) The issue of reduction of hours of work based upon considerations of the health of the workers has featured in a large number of cases determined in this jurisdiction (see generally the cases cited in New South Wales Industrial Laws (CP Mills, 4th edition, pp.308-309). Consideration of the health and safety of employees and whether or not an employer's practice imposes unreasonable demands on employees has featured in a large number of cases concerning claims about manning scales (see generally Mills 4th edition, pp.90-91). There is no reason in principle why considerations of the health and safety of workers should not impact upon the award making function of the Commission under the current legislation in a manner similar to that cited in the cases referred to above which were determined under the 1940 Act. In Re New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award (unreported - Industrial Relations Commission of New South Wales, Full Bench, Wright J President, Schmidt J and McKenna C - 1 September 2000) the Commission was called upon to consider an application to vary the relevant award to insert provisions relating to " sleep over" arrangements for residential care staff employed in the Department of Community Services. The application was opposed by the Public Service Association. The PSA opposition to the application was, to a significant extent, based upon the proposition that the proposed arrangements compromised the health and safety of the affected employees (see, for example, para.29). Ultimately, the Commission granted, with modification, the application by the Department of Community Services. In doing so the Commission gave careful consideration to, but ultimately discounted, much of the evidence relied upon by the PSA going to occupational health and safety concerns (see paras. 51-58). The Full Bench of the Commission stated: It is a matter for the Department to determine what level of care is required to be provided to disabled people living in a group home, in accordance with the statutory and other responsibilities which it has to those clients. The Department meets those obligations by employing staff to perform the necessary work. What must therefore be determined in these proceedings, where issue is being taken as to the requirements made of the employees who are employed to perform sleep over work, is what award provisions are required to ensure that the relevant conditions are "fair and reasonable". This includes consideration of the safety concerns which were raised. (para.64) The Commission then referred to the judgment of the High Court in Re Cram; ex parte NSW Colliery Proprietors Association Limited [(1987) 163 CLR 117 at 135]. The Commission later stated: Our concerns have also led us to consider closely the requirements in the award clause directed to ensuring employee's safety when asleep. We take the view that fair and reasonable conditions of employment in this respect require an approach that does not leave safety to chance or to be approached on the basis that risks are "reasonably" available to be taken. (para.75) The Commission then went on to include in the provision awarded a number of conditions which specifically addressed the occupational health and safety concerns raised by the PSA. But in doing so the Commission noted as follows: In granting the variation to the award it is to be stressed that its making in no way diminishes the Department's responsibilities under the Occupational Health and Safety Act or under the common law and we refer specifically to the line of authority and judgments of the Commission in Court Session in proceedings under the Occupational Health and Safety Act as to the obligations on the employer to take a continuously pro-active approach to issues relating to employees' safety. (para.90) The Commission then cited a number of judgments of the Commission in Court Session given in prosecutions against employers under the Occupational Health and Safety Act. 116 As to workers compensation statistics, Mr Murphy submitted that conclusions which the HAC sought to draw from the statistics about workers compensation claims were not available. The true picture was not revealed in statistics but was borne out in the evidence of what the ambulance officers experience and how they cope (as supported by the expert assessments of Dr Phillips and Professor Raphael). 117 It was contended the Commission could view a substantial part of the Service's evidence in regard to the cost of the Association's application, if granted, as unreliable; the most reliable being that of State Payroll Manager, Mr Tozer, who calculated the cost of increasing the annual leave entitlement from five weeks to six weeks at just over $2 million ($2.01m). State Superintendent Voyzey, by comparison, calculated the cost of the same increase at over twice that amount, at $4.35 million. 118 It was accepted by the Association that its application for eight weeks leave with eight weeks pay would, if granted, result in a net reduction in pay for ambulance officers of two weeks pay per year. Ambulance officers currently receive 54 weeks pay in each calendar year. The result of granting the Association's application for eight weeks leave with eight weeks pay provides ambulance officers with 52 weeks pay only. The additional cost to the Service is for replacement staff to cover the additional leave period. Mr Voyzey calculated the net additional cost of eight weeks leave with eight weeks pay at $8.87 million. Mr Tozer did not provide a comparable figure. 119 In conclusion, Mr Murphy submitted: NSW ambulance officers currently enjoy annual leave entitlements which are lower than any other emergency service surveyed for this case. They are significantly lower than the leave standard in the NSW health industry. Submissions on Behalf of the HAC 120 Mr Hatcher submitted that the Association's application provided no illumination as to the basis upon which the claim is advanced and, as the case developed, there appeared to be a proposed justification upon the basis that ambulance officers are subjected to stressful situations. 121 Mr Hatcher submitted that the basis upon which shift workers have received leave additional to day workers was enunciated by the Industrial Commission of NSW in the Re Shift Workers Case 1972 [1972] 72 AR 633. The Commission observed (at 659): This additional week's leave primarily is part of the compensation for the requirement that they should work on most Sundays during the year although it also covers the requirement that they work on the majority of public holidays. 122 Thus, Mr Hatcher submitted, reliance upon the nature of the duties to justify additional leave does not accord with the history of the provision. It bears no relationship to the initial rationale for the granting of annual leave. 123 He submitted that the current common level of entitlement to annual leave of four weeks arose in the Re Annual Holidays Case 1974 [1974] 74 AR 336. The Commission observed (at 350): The reason why the industrial issue before us is real and important is that many workers in this State are being denied comparative justice so far as their annual holidays are concerned. They are getting a holiday of 3 weeks when all government employees in Australia and a substantial number of private industry employees have a holiday of 4 weeks. 124 Mr Hatcher submitted that it was against this background, rather than the nature of their work, that the current provision for annual leave for ambulance officers was struck. A submission that the Commission should depart from established industrial jurisprudence in determining an appropriate quantum of annual leave ought be supported by compelling evidence. In the submission of the HAC, this application could not be said to be so supported and further that the claim, if granted on the basis advanced by the Association, would inevitably lead to substantial flow on. 125 It was submitted that the HAC had not, at any stage, put in issue the stressors to which ambulance officers may be subjected. The apparent desire of the Association to continue recounting the "war stories" of the ambulance officers compels the submission that the union is seeking to "trade" upon the unfortunate situations to which ambulance officers will inevitably be exposed. It was submitted that it is hardly a situation where the HAC, or even the Service, can insulate or protect the officers from the environment, as much as any decent thinking person would wish to do. 126 It was submitted that the leave conditions sought by the Association could not be justified as "fair and reasonable". It was contrary to established industrial jurisprudence to provide a penalty upon a penalty. It was contended that the application offended the basic approach of the Commission which was not to impose penalties which seek only to discourage that which must inevitably occur. The employer should not be discouraged from calling out an officer on essential duties simply because of the cost of doing so. 127 Ambulance officers have available a system of shift work that has proven to be the most satisfactory of any that could be contemplated whilst still providing the necessary coverage. The nature of shift work seemed not to be a basis of the claim, as the officers gave evidence that the shift system they worked was acceptable. The negative effects of shift work given in evidence were views that could be expressed by shift workers in any industry. 128 Mr Hatcher submitted work of ambulance officers is not uniform. There was a large amount of routine work, carrying out transports, cleaning and restocking vehicles, standing by and so forth. Officers are keen to utilise their skills and, it was contended, many officers will actively seek out the more traumatic work with a view to fulfilling their vocation. Some officers find their vocation so compelling that they will utilise their time off on leave to engage in their vocation. 129 The work that ambulance officers are engaged in is continuous and vital and the calls dictate what work will be done. The work does, however, fluctuate markedly from region to region. It is in the nature of ambulance work that there will be hoax calls and other calls that evoke a response but can be cancelled in a very short time, causing officers to be called out and released after periods as short as five minutes. 130 It was also submitted that the Association had acted inconsistently with the current application. The Association has in the past actively campaigned for more overtime to be made available to ambulance officers, presumably acting in their interests and cognisant of the stress of which they now complain. 131 It was submitted that ambulance officers have consciously elected to pursue a vocation knowing that they were likely to encounter repeated and unpredictable exposure to highly stressful experiences, though perhaps not knowing how they would react to it. They have available to them a system of shift work which has proven to be the most satisfactory of any that could be contemplated while maintaining the necessary 24 hours a day, seven days a week coverage. 132 With respect to the matter of work-related stress generally, Mr Hatcher submitted that: · individuals react quite differently to stress and it is impossible to generalise as to an average or typical response; · there is no evidence to suggest that additional annual leave would reduce adverse reactions to stress; · there is evidence to suggest that a number of other factors are of importance in reducing stress induced illness; · other "high stress" occupations do not enjoy any greater annual leave; and · the experience in the one area where there has been some study of the effect of stress, suggests that it is better to treat the person whilst they remain in the traumatic situation rather than to remove them from the situation and expose them to the stress of anticipating a return. 133 Mr Hatcher also submitted that the expert evidence of Dr Phillips did not start from any logical point. The doctor did not know what leave is presently available or that the long service leave available to ambulance offices is well in excess of community standards. 134 Further, it was submitted that Mr Jones gave evidence that stress claims in the Service had reduced in recent years. There were complaints about the effectiveness of existing services designed to relieve the stress of the job, including the peer debriefing program. These complaints do not lead, however, to the conclusion, it was submitted, that the peer debriefing system did not work. On the basis of the evidence, one cannot attribute the reduction in stress related injuries to any one factor. The evidence did show that people who are supervising the debriefing system were well aware of their obligations to consider the health, safety and welfare of employees. 135 In the submission of the HAC, there was no case, on the evidence, for any alteration to the existing annual leave provisions applying to ambulance officers. The basis upon which the claim was pressed must inevitably mean that the claim, if granted, would lead to substantial flow-on. The raw material provided by Mr Jones showed industries that have a higher number of stress claims than the Service. Whilst it is not at issue that the officers face stress in their jobs, their reaction to it may be different due to the amount of down time and to their self-selection for the role of ambulance officer. 136 The costs of the claim for additional annual leave are substantial. Mr Hatcher submitted that, if the claim were granted, it would have the effect of reducing the funds available to the Service to engage ambulance officers. This may have the counter-productive effect of increasing overtime levels. The HAC Application Submissions on behalf of the HAC 137 Mr Hatcher submitted that the HAC sought to vary the award in the following respects: 1. to vary the meal provision to provide for a more realistic approach to the taking of meal breaks in an emergency service; 2. to vary the call back provision to remove an anomalous situation of double payment; and 3. to vary the shift work provisions to remove the current anomalous provision which directs payment of a penalty upon a penalty. 138 Mr Hatcher submitted that the nature of the work will, from time to time, require employees to continue working through meal breaks. This may come about due to the time taken on a transport or due to an urgent need to attend to a call. 139 There seems little justification, it was submitted, for the imposition of substantial penalty rates. It could hardly be the Commission's intention to discourage the Service from providing this service. Accordingly, in determining what is fair and reasonable, the Commission ought to have regard to the relative loss of amenity by employees and adequately compensate that. 140 The removal of this anomalous provision could afford the Service substantial savings which might be utilised by the Service more adequately achieving its, and the ambulance officers', mutual goal of saving lives and serving the public. 141 The Service was subject to hoax calls and certain circumstances where calls are cancelled. If an employee was called out to answer such a call, he may only have just responded when the call is cancelled. The officer may have been involved in less than five minutes work and yet be entitled to a four hour minimum call out. If another such call was received, and he responded to the call out, he would be entitled to a further four hour minimum payment under the existing award provision. This situation resulted in a substantial increased cost burden on the Service. 142 In the submission of the HAC, a situation where an employer is obliged to pay eight hours pay for ten minutes work is neither fair nor reasonable. It cannot be sustained on any basis consistent with established industrial jurisprudence. 143 The award presently provided that shift penalties will be compounded by overtime loadings. 144 Mr Hatcher submitted that such an approach was contrary to the principles espoused in the Shift Workers Case. The removal of this anomalous provision could afford the Service substantial savings. 145 In the review of the award conditions, Mr Hatcher submitted that the HAC was merely wishing to draw to the attention of the Commission anomalous provisions that expose it to great financial prejudice. Submissions on behalf of the Association 146 Mr Murphy submitted that the evidence of Mr Tozer in support of the cross-application disclosed that it would save the Service $1915.68 per employee over a 12 month period which is more than double the cost of providing an extra week's annual leave which was calculated by Mr Tozer at $809.30 per employee over the same period. It was contended that, apart from costings, no attempt was made to lead any evidence to support the cross-application. No attempt was made to examine the history of the relevant award provisions or the basis upon which they were included in the award. No attempt was made to do a comparative analysis of other relevant awards. 147 The conditions which the cross-application seeks to reduce are part of the "package" of entitlements for ambulance officers that has been developed over the years. There is no principle binding on this Commission, submitted Mr Murphy, to the effect that where an improvement in a particular condition of employment is warranted, the rest of the "package" of entitlements must be re-arranged to return to the employer the cost or, in this case, more than double the cost, of the improvement. The cross-application is nothing more than a negative cost-cutting exercise. 148 It was submitted that there was no requirement on the Commission to review the whole of the award in dealing with the application to increase annual leave. The application by the Association was a discrete matter based on a particular set of evidence. The Shift Workers Case is an example of a case run for discrete aspects of the conditions of employment for a particular group of employees. While the Association agrees that the HAC is entitled to bring a cross-claim, they bear the onus of bringing evidence to persuade the Commission why the changes they seek should be made. 149 Mr Murphy submitted that granting the cross-application would create serious anomalies within the health industry. For example, the alteration to the call-back provisions would place ambulance officers at a disadvantage in relation to virtually all other workers in the health industry and in industry generally. Considerations The Association's Application 150 We have earlier set out the current prescription for annual leave in the award which provides for a period of annual paid leave of absence (that is, five weeks annual leave) and payment for a greater period than actually taken (namely, an additional period of two weeks, giving a paid leave entitlement of seven weeks). The origins of this distinction between annual leave taken and payment for leave is revealed from an examination of the history of the award. As this history is reasonably significant for our consideration of the Association's application we will examine in some detail the forebears of the current award. 151 The predecessor to the award was known as the Ambulance Employees (State) Award. It commenced in February 1917, and provided two weeks leave for each employee in respect of each completed 12 months of service. 152 From April 1924, the annual leave entitlement increased, but it was acknowledged that a component of such leave was in consideration of public holidays being worked. The 1924 annual leave provision in the award was in the following terms: Employees shall on completion of each period of twelve months' employment be allowed three weeks' leave of absence on full pay, and if employment be terminated before the completion of the said period of twelve months a pro rata allowance in cash, on the basis of one and three-quarter day's pay for each month worked, shall be given to the particular employee for the portion of such period worked: Provided the said employee has been in the service of the Board or a District Committee for a period of six months. Provided, further, that when the conduct of an employee justifies summary dismissal this clause shall not apply. Provided also that it is admitted by the parties that an additional week's holiday has been provided for in lieu of and in consideration of public holidays being worked by the employees. 153 In April 1927, the award was again varied by consent with respect to annual leave. Whilst the form of the provision changed, it would not appear that there was any substantial variation to the entitlement of the officers. 154 In May 1931 the award was again varied. The provision then became: 7. Annual Leave Employees shall, on the completion of twelve months' service, be entitled to leave of absence on full pay for three weeks; thereafter they shall be entitled to leave for three weeks per annum which shall accrue from month to month, and be given at the convenience of a district committee, at least once in each year: Provided that an employee shall be paid for any annual leave due to him when leaving the service of a district committee: Provided further that when the conduct of an employee justifies summary dismissal this clause shall not apply. (It is admitted by the parties that an additional week's holiday has been provided for in lieu of and in consideration of public holidays being worked by the employees). 155 In May 1946, the annual leave (and additional public holidays component) was increased. The award then provided: An employee shall, on completion of twelve months' service, be entitled to leave of absence on full pay for four weeks, thereafter he shall be entitled to leave of absence for four weeks per annum, which leave shall accrue from month to month and be given at the convenience of a District Committee at least once in each year, provided that an employee shall be paid for any annual leave due to him on leaving the service of a District Committee. It is admitted by the parties that an additional two weeks' holiday has been provided in lieu of and in consideration of public holidays being worked by the employee. Employees shall be given reasonable notice of the time when they shall take their annual leave. 156 The Annual Holidays Act, 1944 provided for an annual holiday on full pay of two weeks at this time. That statutory entitlement was increased to three weeks after 1 January 1954. 157 In February 1959, the relevant prescription was amended and became: An employee shall, on completion of twelve months' service, be entitled to leave of absence for four weeks for which he shall be paid five weeks' holiday pay. Thereafter the above provisions shall apply for each year of service, which leave shall accrue from month to month and be given at the convenience of a district committee at least once in each year; provided that an employee shall be paid for any annual leave due to him on leaving the service of a district committee. Annual leave shall be granted on a rotating basis. An employee, with less than twelve months' service, shall, on leaving the service of a district committee, be paid a pro rata amount. Employees shall be given reasonable notice of the time when they shall take their annual leave. Where an employee has been notified that he is to take his annual leave at a specified time and that time is thereafter altered by the employer the employee shall be reimbursed any out of pocket expenses which he has incurred in relation to the booking of accommodation for holidays. It is admitted by the parties that an additional week's holiday and a further week's pay has been provided in lieu of and in consideration of public holidays being worked by employees. 158 In December 1964, the overall entitlement was improved by providing four weeks leave of absence for which the employees would be paid six weeks' holiday pay. The statutory provision for annual leave remained at three weeks at this time. The relevant provisions of the award were as follows: (i) An employee shall, on completion of twelve months' service, be entitled to leave of absence for four weeks for which he shall be paid six weeks' holiday pay. Thereafter the above provisions shall apply for each year of service which shall accrue from month to month and shall be given at the convenience of a district committee at least once in each year; provided that an employee shall be paid for any annual leave due to him on leaving the service of a district committee. … (v) It is admitted by the parties that two week's pay has been provided in lieu of and in consideration of public holidays being worked by employees. 159 In December 1974, following the Shift Workers Case and the Annual Holidays Case (and an amendment to the Annual Holidays Act, 1944 to provide for four weeks annual leave) the award was again varied so as to increase the period for leave of absence and the period for which the employee would be paid leave by one week. The new provision was relevantly as follows: (I) Annual leave shall be granted on completion of each twelve months service as follows: … (b) Shift Worker on a seven day roster: i. The period of any annual holiday to which an employee becomes entitled when a year of employment ends before 1st December 1974, will be four weeks leave with six weeks pay. ii. The period of any annual holiday to which an employee becomes entitled when a year of employment ends on or after 1st December 1974, will be - five weeks leave with seven weeks pay. iii. It is admitted by the parties that two weeks' pay has been provided in lieu of and in consideration of public holidays being worked be employees. 160 Thus, the 1974 version of the award provided for five weeks paid leave of absence. That same entitlement was afforded seven day shift workers engaged in continuous process industries in the Shift Workers Case. That test case dealt with annual leave for shift workers as follows (at 667): Additional Annual Leave for All Shift Workers The formal claim in this regard was that all shift workers should receive at the end of each year of their employment annual leave of five weeks. Mr Wran said, however, that he faced difficulties in asking the Commission to deal with the application in relation to hospital employees because of their claims concerning leave which were before the conciliation committee. Speaking for the intervening unions, Mr Wran departed from the claim as filed. He submitted ultimately that all shift workers were entitled to be compensated for the inconveniences and disabilities of shift work not only by way of payment but also by way of additional leave. He said that the "underlying philosophy" of the claim was to secure uniformity of conditions for all shift workers, but conceded that 7-day shift workers had the claim for most consideration, followed by 6-day shift workers and then 5-day shift workers. No provisions were put before us as to how in an award we should distinguish between the three classes. We refuse this claim both in relation to hospital employees and employees generally. It is our view that 7-day shift workers in continuous process industries are entitled, unless compensated in some other way, to an additional week's annual holiday (plus an added day if the public holiday should fall in that week) beyond the holiday prescribed by the Annual Holidays Act . But the shift allowances and penalty rates which we have fixed for shift workers provide, in our opinion, adequate compensation for the inconveniences and disabilities which all other classes of shift workers suffer. 161 A Full Bench of the former Industrial Commission of NSW (Beattie J, President, Kelleher, Sheldon, Cahill and Watson JJ) in the Annual Holidays Case increased generally the entitlement of workers under State awards to annual leave whilst preserving additional leave entitlements for shift workers. The Full Bench stated (at 352): Accordingly we will make a general ruling that, on application made to it, the Commission will insert in awards provisions entitling workers now entitled to 3 weeks' holiday to an annual holiday of 4 weeks. The ruling will provide that, subject to one point to which we are about to refer, the provisions of awards now entitling shift workers to periods of annual holiday additional to the periods to which other workers covered by the same award are entitled shall not be altered, with the result that such shift workers shall continue to enjoy such advantage as they have enjoyed in the past. The exception to this relates to provisions in the steel industry awards which provide for the addition of one day to the annual holiday both of a 6-day shift worker and a 7-day shift worker who is rostered off duty on a public holiday and who is not required to work on that day. We have explained the issue in this regard in section 2 (ii) of these reasons. Mr McKenzie told us that, if we altered the existing standard, his clients sought the right to make a payment of a day's pay in the pay for the period in which the holiday occurred rather than add a day to the employee's annual holidays and he put figures before us showing that at the Port Kembla and Newcastle Steel Works there is a substantial shortage of workers and that overtime in the industry is at a high level. We think that this material supports a claim that the introduction of the new standard into the steel and associated industries should be accompanied by a modification of the existing days-added provisions … (emphasis added) 162 This history of the award demonstrates that the annual leave entitlements for ambulance officers engaged in shift work derives from two distinct sources. Firstly, the officers engaged in shift work receive a leave entitlement that appears to derive in its current manifestation from an application of the Shift Workers Case and the Annual Holidays Case to the award. Secondly, the provision for two weeks pay, in addition to the actual leave benefit, related specifically to "public holidays being worked by employees or which have occurred on a rostered day off". We note, in this respect, that no issue was raised in the present proceedings as to any duplication of the basis upon which the "leave" and "pay" components of annual leave for officers had been granted. 163 Mr Hatcher submitted that the existing leave entitlements of ambulance officers engaged as shift workers derived from established industrial jurisprudence, being the Shift Workers Case and the Annual Holidays Case. He submitted that a variation of the conditions should then only be permitted upon the basis of "compelling evidence" warranting an alteration to such standards. By this, it is presumably contended that, in order to justify such an application, either special and extraordinary circumstances would need to be demonstrated or a heavier evidentiary burden would be faced by the applicant. We do not agree. 164 By s10 of the Industrial Relations Act 1996, the Commission is required, in considering an application to vary an award, to assess whether the conditions of employment in the award are fair and reasonable. This is a primary test for evaluating whether an award should be altered. In Re Pastoral Industry (State) Award (2001) 104 IR 168 the Full Bench stated by reference to this section (at [77]): Existing award conditions are, of course, not immutable. Subject to compliance with the requirements of the Act and applicable principles, they can be varied upon the basis of the consent of the parties, or in the case of contested proceedings, if a case is made out on the evidence, upon the basis that the award conditions in question no longer provide fair and reasonable conditions of employment. In a contested case, the onus falls on the applicant to make out a case for an alteration to an award, which otherwise will remain undisturbed. 165 The Full Bench also concluded that, in a special case (such as the present one), the applicant is only required to meet the ordinary onus to make out a case. The Full Bench stated (at [73]): This is a special case. That the onus which falls on an applicant in such proceedings is well settled. In a special case an applicant must meet the ordinary onus to make out its case on the evidence: see Occupational Health Nurses' Superannuation (State) Award (1996) 85 IR 158 and Teachers (Non-Government (Schools) (State) Award and other Awards (unreported, Fisher P, Sweeney J, and Varnum DP, 17 August 1990). Matters of the cost of the claim and the public interest also arise for consideration. 166 In order to satisfy the requirement for a special case, the applicant must demonstrate that the case has "special attributes" or is "out of the ordinary" so as to take it outside the restrictions which may otherwise apply under the wage fixing principles. In Re Social and Community Services Employees (State) Award [2001] NSWIRComm 274, a Full Bench stated (at [24]): Thus it can be seen, … that strict compliance with the wage fixing principles generally or with the work value principle and structural efficiency considerations in particular is not required where as here a case is advanced as a special case. In saying that we should not be taken to mean that such considerations will necessarily be excluded from the special case. As much is clear from the Crown Employees case. It is however appropriate to observe … that the present Special Case principle unlike its 1990 predecessor does not require that cases be considered "in accordance with the structural efficiency and other relevant principles". It requires, as was said in the Transport Industry case, that special attributes exist which warrant approval by the Commission despite the restrictive considerations imposed generally by the principles of wage fixation and that is the essential basis upon which the Commission will approach the determination of the present application. (See also Re Health and Community Employees Psychologists (State) Award [2001] NSWIRComm 302; Re Corrections Health Service Nurses (State) Award (No 2) [2001] NSWIRComm 58; Metal, Engineering and Associated Industries Award 1998 - AIRC Print T4991, 29 December 2000 for discussion of special case principle). 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. Some of the cases brought under the special cases provisions have relied, it is true, on the Work Value Changes principle, a principle which is not relied on here. But other cases, some of which have earlier been identified, have substantially been brought on the basis that developments in workplace reform of a structural efficiency kind, in which employees have participated or to which they have contributed, have been such as to justify wages increases beyond those normally allowable unde the principles. On a number of occasions such applications have been approved by the Commission. In some of them the amounts of wage increase have been agreed by the parties but in other they have not, and the Commission has made an arbitrated decision in the matter. In our view the present application can fit comfortably into the class of case to which we have just referred, certainly so far as it seeks wage increases by way of award prescription … … We therefore find that the applicants are entitled to bring their case under the special case provisions of the principles. That, of course, is not the end of the matter. The Full Commission must decided whether, on the whole of the material before it, and bearing well in mind the respondent's opposition, the claim should in whole or in part succeed and if so what increases should be awarded and what conditions, if any, should be prescribed. But we repeat our view that, in accordance with the principles, it is entirely appropriate for this claim to be heard and for the Commission to grant the claim in whole or in part if considered justified on the merits. It is also entirely appropriate, it is concluded that, in general, the claim should succeed, the Commission have regard to economic considerations, including the changing value of money over time, when deciding the amount of increase which should be awarded. Matters which may be considered in that regard are the date on which the last wage increases for employees in question took effect, and changes in money values which have occurred since that time that time or are forecast during the prescribed life of the award to be made. Further, in Re Transport Industry (State) Award (1996) 95 IR 126, a Full Bench of the Commission observed (at 130 - 131): Mr Warren submitted the Carpenters case principle is irrelevant to the determination of a special case; but the principles of wage fixation operate, in effect, as a code which provides all the principles of application. We are unable to accept this view. The approach adopted by the Full Commission in the Crown Employees case was that a case, if made out to be "special", may be determined according to its circumstances. That approach requires, in effect, that the Commission be satisfied that the case is not an ordinary one, but has special attributes which warrant its approval despite the restrictive considerations imposed generally by the principles of wage fixation. That does not mean that the Commission is precluded in an appropriate case, from deciding that an award should be made over the objection of a particular employer or group thereof. Indeed, a special case does not require consent at all. 168 A number of principles may be distilled from these authorities bearing upon the contention advanced by the HAC. In order to make out a special case the applicant is required to make out that the variation is necessary to establish fair and reasonable conditions of employment and that the matter has special attributes. In doing so, the applicant is not required to meet a higher onus or standard of proof. The evidentiary requirements of a special case are no more strict than would apply in an ordinary matter, although the applicant to a special case will need to establish an adequate evidentiary foundation for those factors which are relied upon as showing the special case attributes of the case. Whilst respect will be afforded earlier decisions of the Commission or its predecessors, the conditions of employment earlier established need to be ultimately tested against the requirements of s 10 of the Act and that which we have discussed as being applicable to making out a special case. Where, as here, the former decision involved a test case, particular care should be taken to ensure that the factors relied upon by an applicant in support of its claim do not replicate factors which were taken into account by the Commission or its predecessors in establishing the general standard emerging from such case. In any event, the basis for and circumstances under which the conditions in the award were established will be significant considerations in the Commission's deliberations in order to assess whether the factors relied upon by the applicant in support of a special case have already been accommodated by the earlier made award (in which case the present prescription may adequately compensate for those factors). 169 In this matter, the Association essentially sought to make out a case to meet the requirements of the special case principle based upon occupational health and safety considerations. The Association submitted that the Commission should vary the award by providing for additional leave so as to reduce the detriment to safety occasioned to officers from the nature and conditions of their employment. In short, it was contended that the dire nature of the circumstances under which ambulance officers presently work required rectification by the provision of additional leave so as to alleviate traumas already experienced by such officers and to prevent such adverse consequences in future engagements. 170 Indeed, Mr Murphy went so far as to submit, as we understood him, that the alternative claim, namely, six weeks leave with eight weeks pay, would not be sustained on the expert evidence on which the Association relies. By this we understood him to mean that the evidence pointed to an acute need for the alleviation of stress and trauma experienced by the officers by means of the grant of additional leave of absence and thereby no component of annual leave could thereby be justified as being paid and not taken. As will be observed from our discussion later in this decision, that approach needs to be tempered by a consideration of what the expert evidence indicated might be actually desirable as an additional quantum of leave (beyond speculation) and economic considerations. However, we are satisfied that the occupational health and safety considerations raised in the evidence in this matter (if made out in the applicant's case), have not formed part of the rationale for the existing award prescription for the officers engaged in shift work and constitute a materially different consideration than those taken into account in the Shift Workers Case and Annual Holidays Case. 171 A question which then follows is whether the existence of risk or experience of an unsafe or unhealthy work environment in a particular occupation or industry may constitute, of itself, a proper foundation to conclude that the award does not provide fair and reasonable conditions of employment for the purposes of s10 of the Act or, for that matter, a special case. 172 This Commission, and it predecessors, have long had regard to considerations of health and safety when setting terms and conditions of employment for workers. In Re Government Railways and Tramways (Construction) Award [1926] AR 92 at 94, Commissioner Piddington stated: The principle to be followed in all cases by the Commission is not that unhealthy conditions be allowed to continue and a palliative sought in reduced hours, or a solatium in increased wages, but that the organised service of medical and engineering knowledge ought to be employed to abolish, as far as possible, the unhealthiness of the conditions. 173 In Re Cold Storage and Ice Employees (Cumberland) Award [1940] AR 191, the Full Commission expressed the view that, in making awards, the effect of the terms and conditions of work on the health of employees was a paramount consideration. The Full Commission stated (at 196): We take the view that, while the company should be encouraged to introduce new methods which are calculated to improve the quality of the product and increase the efficiency of the plant, every precaution should be taken that the health and well-being of the employees are safeguarded. Progress in industrial efficiency should not be discouraged, but when such progress might only be attained by causing some harm to the employees concerned in the industry, then the paramount consideration is the welfare of the employees. 174 It is notable in the present context that the endeavours by the Commission to ensure that the terms and conditions of employment do not have detrimental effects on the health and safety of employees have included making adjustments to the hours of work of the employees and the provision of additional annual leave. 175 In Re Glass Makers (Australian Window Glass Proprietary Ltd) Award (No 2) [1939] AR 164, for example, Ferguson J considered an application for the variation of an award in consideration of injury to the health of employees which might have arisen as a result of exposure to dust. In the circumstances of the case, his Honour concluded (at 177): In any event, I am of the opinion that the increase of rates of pay is not a proper method of dealing with a health hazard if such be found to exist. The proper remedy for such, if established, seems to me to be either reduction of hours or extension of annual leave, or both, or, best of all, the minimising or removal of the cause of danger of ill-health. 176 It should be pointed out that, at various times, legislation expressly conferred authority on the Commission to reduce the ordinary working hours of any employees engaged in work which was prejudicial to health: see, for example, s63(1)(e) of the Industrial Arbitration Act 1940. 177 A number of recent decisions of the Commission have remarked upon the continued relevance of considerations of health and safety when setting fair and reasonable conditions of employment under s10 of the Act. In Re New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award (2000) 100 IR 447, the Full Bench of the Commission considered an application to vary the relevant award to make provision for sleepover arrangements for workers employed in the Department's group homes. One of the issues raised concerned whether the sleepover arrangement compromised the safety of workers and, particularly, whether such arrangements were consistent with the Department's obligations under the Occupational Health and Safety Act 1983. 178 The Full Bench stated (at [64]): It is a matter for the Department to determine what level of care is required to be provided to disabled people living in a group home, in accordance with the statutory and other responsibilities which it has to those clients. The Department meets those obligations by employing staff to perform the necessary work. What must therefore be determined in these proceedings, where issue is being taken as to the requirements made of the employees who are employed to perform sleepover work, is what award provisions are required to ensure that the relevant conditions are 'fair and reasonable'. This includes consideration of the safety concerns which were raised. As was observed in the unanimous decision of the High Court in Re Cram; Ex parte N.S.W. Colliery Proprietors' Association Limited (1987) 163 CLR 117 (at 135): Many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an "industrial matter". A dispute about the level of manning is a good example. It has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work. So also with the mode of recruitment of the workforce. The competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards. Employees, as well as management, have a legitimate interest in both of these matters. 179 After considering the evidence concerning sleepover arrangements, the Full Bench inserted a clause in the award to ensure that assessments of the appropriateness of the group home, the residents and staff are conducted before sleepover arrangements are introduced. 180 In Re Pastoral Industry (State) Award (2001) 104 IR 168, the Full Bench considered an application for the variation of the award following the removal of numerous provisions of the "counterpart" federal award pursuant to the award simplification process. By way of contrast to the restrictions placed on the federal Commission's power to make an award, the Full Bench observed that the discretion under s10 of the Act to make an award setting fair and reasonable conditions of employment encompasses considerations of occupational health and safety. The Full Bench stated (at [31]): By way of contrast, we note that there is no restriction under the Act upon award conditions dealing with occupational health and safety matters, as the recent decision of the Full Bench in New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award (2000) 100 IR 447 makes plain. The Full Bench of the Commission there awarded detailed provisions directed to ensuring the safety of employees in a particular working environment. It appears that such an award could not have been made by the AIRC under the WR Act. The Federal Award had, of course, traditionally been directed (as has the existing State Award) to significant occupational, health and safety issues. 181 Finally, a recent decision of Marks J in Transport Industry - Cash in Transit (State) Interim Award [2001] NSWIRComm 220 concerned an application for a new award raising, in part, safety considerations raised by the transportation of cash by security workers in non-armoured vehicles. His Honour observed (at [11]): There can be no doubt that this Commission has both jurisdiction and power to deal with working conditions in industry, especially those conditions which are directed to the safety of employees. This is despite the concurrent application to the employment relationship of the Occupational Health and Safety Act and, indeed, in many cases other legislative provisions. In addition, the employer's common law duty of care will operate concurrently with any provisions contained within an industrial instrument and with the regime created by occupational health and safety legislation. 182 His Honour discussed, at some length, the standard of health and safety measures for which it may be appropriate to provide in an award. His Honour stated that an award was intended to operate concurrently with the obligations of an employer under the Occupational Health and Safety Act and the absolute liability under that Act was not appropriate for inclusion in an award. His Honour stated (at [15]): In my view it is not appropriate for an industrial tribunal to adopt such a regime. Criminal codes are intended to reflect standards imposed by the state involving sanctions for non-compliance. Those sanctions are enforced through state institutions. Industrial instruments are designed to regulate the activities and conduct of employers and employees in those capacities. The regime created through industrial instruments (whether or not to resolve specific industrial disputes or having wider application) is designed to reflect contemporary community values and standards applying to the performance of work by employees for employers. It is not unusual for a number of regimes to apply to different facets of the same relationship or indeed the same parts of a relationship. For example employment relationships intersect with health and safety legislation, a plethora of taxation legislation and a diverse range of legislation including environmental laws, the use of motor vehicles and the like. 183 Rather, in making the award, his Honour indicated that he proposed to have regard to whether a risk of injury to employees was reasonably foreseeable and, if so, whether there were means reasonably available to the employer to avoid that risk. 184 No suggestion was raised that the Commission lacked the jurisdiction to make an award varying hours of work or the amount of annual leave in consideration of the health and safety of the employees to be subject to the award. The authorities cited above indicate that it is appropriate for the Commission to have regard to considerations of the health and safety of employees when making an award setting fair and reasonable conditions of employment. This approach is consistent with the approach which has been adopted by this Commission over many years and reflects ongoing concern to eradicate, where possible, threats to the health and safety of employees in the workplace. 185 One consideration that may be relevant to the exercise of the Commission's discretion to make an award in light of considerations of health and safety is the existence of parallel obligations under other legislation, particularly the Occupational Health and Safety Act. In our view, the existence of general obligations on employers under other legislation, or under the common law, should not operate to limit the Commission's jurisdiction to make awards which also address health and safety concerns. The focus of an award is clearly distinguishable from the duties imposed by the Occupational Health and Safety Act. Generally speaking, an award is intended to prospectively provide for the general conditions of employment for employees in an enterprise, occupation or industry. An award, by its nature, lays down relatively specific conditions to be provided in the future by employers to employees working in a particular industry. In contrast, the Occupational Health and Safety Act imposes an absolute duty on an employer to ensure the health and safety at work of all its employees. Among other things, the duties under the Occupational Health and Safety Act require an employer to take a continuously pro-active approach to issues relating to health and safety. This duty will inevitably extend beyond any requirements which can be laid down in an award: see Re New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award (at 467). 186 Thus, one matter to which the Commission should properly have regard when determining what are fair and reasonable conditions of employment is the health and safety of employees. In doing so, the award is not seeking to replicate or diminish the much broader obligations of an employer under the Occupational Health and Safety Act. Many measures that will be necessary for an employer to take in compliance with its obligations under the Occupational Health and Safety Act will not ordinarily be apt for inclusion in an award. Because an award may apply to all employees in an industry as a common rule, there may be limits to the extent to which award provisions requiring measures to be adopted in relation to health and safety can address the circumstances of an individual employee. It would, for example, be difficult to make provision in an award for the detailed systems of work to be adopted in a particular workplace. However, if there are measures of the nature of conditions of work having general effect, which are applicable for an award and which are available to address threats to the health and safety of employees covered by an award, provision should be made in the award for those measures to be adopted. Further, we have little doubt that an applicant will, where it has made out a case for the making or variation of an award based on occupational health and safety considerations pursuant to s10 of the Act, ordinarily demonstrate that case has sufficient attributes to bring the matter under the special case principle. 187 In the light of the forgoing discussion of the principles, we turn then to consider whether the Association has established, on the evidence, a special case upon the basis of the occupational health and safety issues raised by it in these proceedings. 188 There was no dispute in the proceedings as to the actual circumstances under which the ambulance officers performed their work or, for that matter, the descriptions of trauma, stress and social disamenity by them as set out in the so-called vignettes which are in evidence before us. So much was put beyond doubt by Professor Raphael who unreservedly embraced the evidence given by the officers. Nor do we think that there was any serious dispute on the evidence that these circumstances operated to bring about 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. 189 We had before us two eminent psychiatrists who between them had a wealth of academic and clinical experience and whose evidence, with one exception about which we will say more shortly, demonstrated a considerable degree of common ground. Both Dr Phillips and Professor Raphael agreed, for example, that the process of debriefing presently available within the Service was not entirely satisfactory. In fact, Professor Raphael goes as far as to say that there is no evidence that debriefing per se prevents adverse psychological response to the types of stressors to which ambulance officers and other emergency services personnel are exposed. 190 The experts agreed, by way of further example, that two discrete periods of leave taken six months apart would be substantially more beneficial to ambulance officers from the view point of their occupational health and safety than the present requirement that leave be taken once a year in the full five week quantum available. We also consider that it is reasonably clear from the evidence that the experts agree there are serious and pervasive risks to the psychological health and safety of the officers occasioned by their work, although there was an absence of scientific research for the proposition favoured by Dr Phillips. 191 The latter concurrence of opinion, however, constituted the starting point for the differing approaches of the experts as to whether an additional quantum of annual leave (taken as leave of absence) would ameliorate any stress related illnesses or remove risks to the safety of officers in relation to such psychological detriments. 192 On balance, we accept the evidence of Dr Phillips 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. In so concluding, we are in no way to be taken as detracting from or giving less weight to Professor Raphael's opinion evidence. We rather understood that the Professor's evidence, at the end of the day, lent some support to the Association's application. 193 We have reached that conclusion for a number of reasons: 1. Whilst there is an absence of academic research or empirical data as to the relationship between the psychological wellbeing of the officers (or other relevant employees) and leave of absence from work, the evidence of Dr Phillips, as a clinician in practice for almost 30 years, with experience in the treatment of ambulance officers, must be given considerable weight. His reasoning for the change in leave is highly persuasive. 2. The evidence does need to be counterbalanced against the opinion of Professor Raphael, particularly having regard to her eminence in the field of study and her experience of the work of the ambulance officers. In particular, we have taken into account her views as to the absence of empirical research and the need for caution. However, it is also a fundamental aspect of the Professor's evidence that there are psychological detriments presently experienced by ambulance officers engaged in shift work which would be alleviated by a variety of strategies, most of which were identified in common with Dr Phillips. She explicitly did not reject the hypothesis that an increase in the amount of annual leave received by the officers (when taken in conjunction with other measures, such as the taking the leave in two equal parts) may remove those risks to the safety of officers. 3. The opinions of Dr Phillips and Professor Raphael were entirely consistent with other evidence led in the proceedings, not the least of which was the evidence of officers themselves. 4. Other measures which had hitherto been put in place by the employer to alleviate the risks facing the officers had not proved successful and indeed, as earlier noted, Professor Raphael encouraged the taking of additional remedial measures. 194 However, we are of the view that there is considerable substance to Professor Raphael's contention that further evidence would be necessary to definitively identify the amount of increase in leave which would be beneficial. We reiterate her important point of caution that too much additional leave might have the potential to be counterproductive by removing ambulance officers from the workplace for unduly long periods and thus making it potentially harmful for them to return. 195 As to Mr Hatcher's argument that the work of ambulance officers is not uniform (by which it is contended that the time spent in non-stressful routine work, including carrying out transports, cleaning and re-stocking vehicles and standing-by) and thereby in some way ameliorates the effects of the time spent in highly stressful operational duties, we would simply state that we accept the evidence of Dr Phillips to the following effect: Q: It would be important, wouldn't it, in forming a view as to the capacity for annual leave to relieve stress to know just what proportion of time was down time? A: Well, of course it would but in fact we are not talking down time in the sense that I have been using the phrase where a person is away from the job with no further responsibilities. I mean, my personal experience, if I could put it that way, from being on call for most of my lifetime in a roster of 1 in 3 or 1 in 4 is that the nights on call are substantially different to the nights when I can do something else, that you can't rest, you can't walk away from the job, you can't be yourself at one and move away. I think if an ambulance officer is watching television or even having a rest at the ambulance station waiting for the next call, that is qualitatively different from the truly out of the ambulance service, as it were, for a period of days or weeks. 196 Further, we note that the evidence of the ambulance officers demonstrated that the adverse effect of exposure to traumatic incidents often continued over long periods and were only addressed by substantial interventions to redress the problems from that exposure, including the taking of significant periods of leave. 197 Mr Hatcher submitted that Dr Phillip's evidence should attract less weight because he did not have a logical starting point in the formulation of his opinion as to the beneficial nature of additional leave. He submitted also that Dr Phillips had a less than complete knowledge of the fine detail of leave arrangements for ambulance officers both in this State and elsewhere. We do not accept these contentions. The starting point of Dr Phillip's analysis was the existing annual leave entitlement for ambulance officers. He then proceeded to assess the worth of the Association's application to increase that leave by having regard to the psychological wellbeing of the ambulance officers. In our view, that approach was logical and was sufficient to enable Dr Phillips, in conjunction with other material supplied to him by or on behalf of the Association, to formulate and proffer an opinion, given his field of expertise. On balance, we consider that the expert evidence, when taken with the evidence of the ambulance officers, demonstrated not only a cogent basis for increasing the leave for the officers engaged in shift work, but also for the division of such annual leave into two blocks to be taken at six monthly intervals. 198 However, that evidence does not demonstrate the precise level of improvement in leave which would be necessary to eliminate or substantially reduce the risks to occupational health and safety encountered by this group of employees. The evidence also demonstrated the need for caution to be exercised in any grant of increased leave until appropriate study is undertaken so as to avoid any unintended adverse consequences, such as difficulties arising from the officers experiencing too great a period of absence. 199 We also note that we were, by and large, unassisted in our deliberations by the statistical evidence adduced in the proceedings because of its ambiguity and inherent inconsistency. We also note that Professor Raphael indicated that statistics alone, in the absence of consideration of many other variables, were not permissive of any reliable causal correlation with respect to stress-related workers compensation claims experience. In that regard, we again observe that the apparently improving claims experience within the NSW Ambulance Service is unaccompanied by, and therefore independent of, improvements in more recent years in annual leave conditions. 200 We further observe that the reforms suggested by both Dr Phillips and Professor Raphael, other than the grant of additional leave, commend themselves as matters which the Service would do well to consider in its overall approach to workplace safety. 201 Mr Murphy submitted, without apparent contradiction, that NSW ambulance officers currently enjoy annual leave entitlements which are lower than any other ambulance service in Australia, lower than other emergency services surveyed for this case and lower than the leave standard generally within the NSW health industry. We consider that an increase in the amount of leave to the officers which is to be taken as paid leave of absence would not move the leave of absence benefits afforded the officers outside the annual leave entitlements available for ambulance officers engaged in shift work elsewhere in Australia. 202 In Victoria, for example, ambulance officers who elect to have time worked on public holidays added to their annual leave have an entitlement in excess of eight weeks leave per annum. Queensland ambulance officers are entitled to six weeks and two days leave per annum, whereas in South Australia officers are afforded five weeks by way of annual leave plus 11 days in respect of public holidays. In Western Australia and the Northern Territory, ambulance officers receive six and seven weeks respectively by way of annual leave plus, in each case, ten days in respect of public holidays. In the case of Western Australia, one of those six weeks is expressed to be for "being regularly rostered to work on Sundays and public holidays" and another of those six weeks is expressed to be "in lieu of public holidays falling on rostered days off". The Tasmanian Ambulance Service Award relevantly provides for five weeks plus ten days in respect of public holidays. In NSW, as we have earlier observed, there is presently a provision for five weeks leave with seven weeks pay. 203 Viewed another way, the maximum quantum of leave available to be taken, as distinct from payment without leave of absence as annual leave, by ambulance officers as between the various jurisdictions may be summarised as follows: Victoria 8.3 weeks per year Queensland 6.4 weeks per year South Australia 7.2 weeks per year Western Australia 8 weeks per year Northern Territory 9 weeks per year Tasmania 7 weeks per year New South Wales 5 weeks per year 204 Mr Hatcher submitted that an increase in the grant of annual leave would impose an additional cost burden on the Service with consequential reduction in funds available for recruiting and consequentially increases in the use of overtime. We have taken into account this consideration in assessing the quantum of any adjustment in annual leave in the decision. In the result, the increase that would have otherwise been granted has been modified, in part, having regard to the provisions of s3 and s146 of the Act. However, we also observe that the costs of granting the Association's claim must be seen in the context of any possible economic benefit arising from the claim. We are of the view that any such increased cost would, when properly viewed, be more in the nature of an investment in workplace safety which, by its very nature, would be calculated to bring about a reduction in the recurrent costs of workplace illness and injury. 205 We consider that, on balance, we should not fully grant the Association's application. We have come to that view for the following reasons: 1. Whilst the expert evidence and the evidence of the officers constituted a sufficient case to warrant an increase in the annual leave entitlement of the officers, we do not think that it made out a case for any particular level of increase and, in particular, a case for eight weeks leave. 2. We are concerned that the absence of research in this area makes it difficult to predict with complete certainty the appropriate level of leave to address the risks to the safety of officers that we have earlier discussed. The absence of such studies make arguments for more substantial increases to the quantum of such leave more difficult to sustain. We are also mindful of avoiding any unintended consequences deriving from the grant of a substantial increase in the annual leave, as particularised by Professor Raphael, in the absence of further study, research or experience in relation to that question. 3. We have had regard to the economic considerations alluded to by the HAC and, more generally, the public interest in order to achieve a proper balance between the demonstrated requirement for improved annual leave benefits and the economic costs of same. 206 We are mindful that the Association withdrew from its alternative claim for annual leave based essentially on the need to provide for paid absence from work, as distinct from a mere payment for such leave. We do consider that, in principle, this approach does have some merit but it must be counterbalanced against those factors we have identified as constituting a basis for not granting the full claim by the Association and the further consideration that the present "pay" component for leave stems from long standing award entitlements for annual leave which provides payment for annual leave, in part, as compensation for the public holidays forgone or worked, as the case may be. 207 On balance, we consider that the award should be altered so as to provide the ambulance officers one week's additional leave of absence to be taken as paid annual leave. The Cross Claim 208 As to the cross-claim filed by the HAC seeking to reduce current award entitlements for ambulance officers in relation to recalls to duty from meal breaks, performance of duty on call and the removal of the weekend rate from the calculation of overtime, we bear in mind Mr Murphy's submissions to the effect that the only proposition advanced by the HAC in support of its claim was that such reductions in entitlements would reduce the costs of the Service. 209 Mr Murphy argued with some persuasive force, we are bound to say, that no attempt had been made by the HAC to trace the history of the provisions in question or to characterise them as anomalous by reference to other groups of employees or to examine the anomalous results which would follow with respect of all other health industry employees if the claim was granted. Nor, we may add, did the HAC demonstrate, as we clearly envisaged in the Re Pastoral Industry Award case, that there was a particular merit basis for the cross-claim. 210 Whilst we do not cavil with Mr Hatcher's contention that notions of fairness and reasonableness attaching to conditions of employment should be considered from the perspective of the industrial parties on both sides of the record, it is nonetheless the case, as discussed in the Re Pastoral Industry (State) Award case, that such conditions, as are here being challenged, are to be treated as presumptively fair and reasonable. We are not persuaded that such a presumption is rebutted in the case brought by the HAC. Conclusions 211 We are satisfied that the Association's application comes within the special case principle. Further, and having regard particularly to the officers' safety, health and wellbeing (we refer, in this respect, to the need to reduce the social disamenities experienced by the officers), we consider that some improvement ought be made to the annual leave entitlements for ambulance officers working shift work. We are minded, in the circumstances, to make a moderate adjustment and, subject to what we will say in one moment, to increase the annual leave entitlement for the officers to six weeks leave with eight weeks pay for each 12 months of service (an increase of one week's paid leave of absence). 212 Having regard to the evidence of the expert witnesses, we strongly recommend that the parties give active consideration to altering the present arrangements for the taking of annual leave so that such leave shall be taken in two equal amounts at six monthly intervals in order that the potential benefit in preventing or remedying psychological illness and injury and the adverse consequences of the stress experienced by the officers is maximised. We have been reluctant to order that a change in the award should be so made, at this time, given the need for the parties, in consultation will the ambulance officers, to discuss any issues arising from such a change in practice. 213 In so awarding, we should not be taken in any way to derogate from the strict obligations laid down by the Occupational Health and Safety Act and we would expect, in that regard, that the parties will give earnest and early attention to the other preventative measures that were canvassed in the expert evidence of the two eminent psychiatrists. 214 Moreover, we are conscious of the opportunity now afforded to the parties to systematically examine, with appropriate expert guidance, the extent to which such improved conditions of employment will materially enhance the occupational health and wellbeing of this group of employees and, in particular, reduce the risk of stress-related illness and injury to which they may be exposed. 215 For these purposes, it is appropriate for the annual leave provisions of the award to be reviewed within two years of today's date. It would then be appropriate to consider the award prescription for annual leave in the light of the implementation of this variation and any occupational health and safety gains derived therefrom. 216 We do not preclude, by this approach, that the Association may ultimately demonstrate, on the basis of expert or other evidence, the appropriate actual quantum of leave is eight weeks. Nor do we render inviolable the six weeks leave with eight weeks pay prescription we now award. Much will depend or turn upon the demonstrated effectiveness of this and other measures directed towards workplace safety and the avoidance of workplace illness and injury and any other relevant considerations. 217 For the reasons earlier given, we reject the cross-claim brought by the HAC. 218 In order to enable adequate administrative arrangements to be made to implement our decision we shall make the variation to the award operative on and from 4 February 2002. Orders 219 We order that: 1. The annual leave entitlement for ambulance officers engaged in shift work and employed under the Operational Ambulance Officers (State) Award be increased to six weeks leave with eight weeks pay. 2. That variation shall take effect on and from 4 February 2002. 3. The application in Matter No IRC 6226 of 1999 is dismissed. 220 The parties are directed to confer as to the appropriate method of implementing this decision. We direct the Association to file and serve short minutes of order reflecting this decision by 25 January 2002. The matter will be listed before the Full Bench at 2.00pm on Monday 4 February 2002 to settle those minutes and finalise the orders of the Full Bench. 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.