Industrial Relations Commission of New South Wales CITATION : Re: Ambulance Service of New South Wales and Broken Hill Town Employees' Union [2004] NSWIRComm 73 NOTIFIER (IRC00/5852): PARTIES : Ambulance Service of New South Wales (Respondent in IRC00/5896) RESPONDENT (IRC00/5852): Broken Hill Town Employees' Union (Notifier in IRC00/5896) FILE NUMBER: 5852, 5896 of 2000 CORAM: Sams DP Industrial disputes - Broken Hill Ambulance Service - modified roster agreement - protracted proceedings - trial of roster - existing past practices and priveleges - management prerogative - principles discussed - whether proposed roster unjust or unreasonable. CATCHWORDS : Held, past practices and priveleges not identified - reconciliation of hours - State wide policies - no evidence of any injustice or unreasonableness - roster trial for almost three years - submissions are not evidence - new roster agreement - recommendation for improved industrial relationship. LEGISLATION CITED : Industrial Relations Act 1996 Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales [1984] CAR 188 Australian Iron and Steel Pty Ltd v Federated Ironworkers' Association of Australia, New South Wales Division (unreported, Watson J, IRC77/254, 18 November 1977) BHP Steel AIS v Federated Ironworkers' Association of Australia (unreported, Hungerford J, IRC94/2208, 7 November 1994) BHP Steel (AIS) Pty Ltd - Port Kembla Restructured Ironworker Classification Rates of Pay Award (unreported, Hungerford J, IRC96/582, 12 December 1996) Department of Water Resources v Australian Workers' Union New South Wales Branch (1992) 43 IR 76 CASES CITED : Re Cram, ex parte New South Wales Colliery Proprietors' Association Ltd (1987) 163 CLR 117 Re John Lysaght (Australia) Limited Port Kembla - Slit Recoil Line Rates of Pay Award (unreported, Hungerford J, IRC94/2374, 12 March 1995) Re Steel Works Employees and Engine Drivers, etc (Australian Iron and Steel Limited - Port Kembla) Awards [1956] AR 855 Shell Company Australia Limited and Others v Transport Workers' Union of Australia Print (unreported, Sweeney C, C No. 3303 of 1986, 13 January 1987) AWARD: Ambulance Officers (Broken Hill) Agreement HEARING DATES: 11/13/2003 DATE OF JUDGMENT: 03/31/2004 APPLICANT: Mr J Stonestreet for the Ambulance Service of New South Wales LEGAL REPRESENTATIVES: RESPONDENT: Mr B Campbell for the Broken Hill Town Employees' Union JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 31 March 2004 Matter No IRC00/5852 Notification by the Ambulance Service of New South Wales of a dispute with Broken Hill Town Employees' Union re rosters Matter No IRC00/5896 Notification by the Broken Hill Town Employees' Union of a dispute with the Health Administration Corporation and the New South Wales Ambulance Service re possible alteration of the Broken Hill Industrial Agreement DECISION [2004] NSWIRComm 73 1 This decision arises from cross dispute notifications, pursuant to s130 of the Industrial Relations Act 1996 ('the Act'), lodged by the Ambulance Service of New South Wales ('the Service') and the Broken Hill Town Employees' Union ('the Union'). Both notifications were lodged in early December 2000 and joined in compulsory conference proceedings for the first time in Broken Hill on 8 December 2000. 2 Shortly stated, both disputes relate to the implementation of a new roster agreement for ambulance officers at the Broken Hill Station. It will be obvious that these proceedings have had a protracted and convoluted history. The disputes have been the subject of numerous compulsory conferences at Broken Hill and telephone conferences over a period of three years. It is unnecessary to traverse the details of each step on the way in this history which has now led to the arbitration of the disputes. However, it is relevant to note that a trial of the new roster arrangements, as proposed by the Service, was agreed to on 8 May 2001 and has continued to operate since that time. The trial itself was modified in July 2002 after the local officers requested certain changes, which were agreed to by the Service. 3 It is fair to say that any roster arrangement, but most particularly in a 24 hour, 7 days a week emergency service, will usually be complicated and most likely best understood by those who administer the roster and those who work it. In this case, there has been the added dimension of a long history of locally specific arrangements. I have endeavoured to do my best with the enormous amount of detailed documentation provided by the parties. BACKGROUND 4 Much of the documentary material traced the history of the negotiations over four years. It is incumbent on me to observe that the recent relationship between the Service and the Union has not been a particularly happy one. This was reflected on numerous occasions. The parties couldn't even agree on what they disagreed about. There were attempts to rake over past issues in an attempt to score points against each other. It is obvious that for this dispute to be finally resolved, common sense and a modicum of good will needs to be demonstrated by both sides. It was somewhat curious that despite the poor relationship between the Union and the senior management, the relationship between the officers and their local management appeared to be working well. 5 It was not easy for the Commission to wade through the detailed documentation to get to the crux of the issues between the parties. It is as best that I rely on the oral submissions as the basis for identifying these issues. The Union's Case 6 Mr Campbell generally submitted that the Union wished to have a modified hours roster agreement that was fair and equitable. In addition, the Union wished to see adequate levels of staff to provide the appropriate service for the Broken Hill community. The present staff establishment is 17. 7 Mr Campbell put that there were five issues which the Union wished addressed in the modified roster. i. Scope of agreement ii. Ambulance education and training iii. On call requirements iv. Adjustment of hours v. Maintenance of rosters 8 The Union's case largely focused on its reliance on clause 29 of the Ambulance Officers (Broken Hill) Agreement ('the Agreement') - an unregistered Agreement covering all of the terms and conditions of the ambulance officers at Broken Hill. I interpose to note that the Agreement came into effect on 31 December 1998 and expired on 31 December 2002. It has not been replaced. Clause 29 is expressed in short and crisp terms: Existing past practices and privileges shall continue to remain in force. 9 It is a little difficult to comprehend what this clause means; let alone what the parties to the making of the Agreement intended by it. Despite repeated requests and the issuance of a subpoena, the Service was unable to establish what the Union meant by its insistence on preserving what it said were past practices and privileges. No document was produced which identified in clear and definite terms what these practices and privileges were. At this juncture, I would say for my own part, the Service's complaints in this regard were well founded. I shall return to this matter later. 10 It seems to me that this case must necessarily be decided by reference to one of the well held principles of industrial jurisprudence - the notion of management prerogative. 11 True it is that the concept of management prerogative has undergone significant evolutionary development since the old days of the master/servant relationship. It is no longer the case that an employer can demand absolute obsequiousness from his/her employees. On the other hand, it has been well recognised that an industrial tribunal will not lightly interfere with the right of an employer to manage its business as it sees fit, unless the work asked to be performed by the employee(s) is unjust or unreasonable. 12 I refer to a number of authorities which serve to demonstrate this principle. In Re Cram; ex parte New South Wales Colliery Proprietors' Association Ltd (1987) 163 CLR 117, the High Court said at p136: These considerations indicate that the objection voiced by O'Connor J. in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted. The evident importance of arming such tribunals with power to settle industrial disputes capable of disrupting industry is a powerful reason for refusing to read down the wide and general definition of "industrial matters" in the Commonwealth and State Acts by reference to any notion of managerial prerogatives as such. 13 In Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales [1984] CAR 188, the Full Bench of the then Australian Conciliation and Arbitration Commission observed at p191: The principles which the Commission should apply in circumstances such as those before us have been the subject of a number of submissions to us and reference to a number of cases. The main case relied upon by the State Rail Authority is the decision of Coldham, J in the Airline Hostesses' Case . In that decision Coldham J applied the test whether or not the work asked to be done was "…unjust…unreasonable, harsh or oppressive". In adopting this test his Honour referred to a decision of Wright J in an appeal under the Public Service Arbitration Act. In that case Wright J said "…this Commission, and the Arbitration Court before it, have throughout their existence acknowledged the right of an employer to manage and regulate his own business subject to the protection of his employees from injustice or unreasonable demands". In that case not only did Wright J use that expression but Williams and Franki JJ in their separate decision referred to "…the right of an employer to manage and regulate his own business, unless in doing so he imposes unjust or unreasonable demands upon his employees" and said: "This approach has been accepted by the Commission and the Arbitration Court since the Conciliation and Arbitration Act became operative and has been reiterated from time to time since then." It is not clear why Coldham J added the words "harsh" and "oppressive". It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. 14 That same principle was neatly summed up by Hungerford J in BHP Steel AIS Pty Limited v Federated Ironworkers' Association of Australia, New South Wales Division (unreported, Hungerford J, IRC94/2208, 7 November 1994): The way in which issues of this nature are assessed by the Commission, involving as they do potential intervention in the employer's operation and management of its business, requires the Commission not to assume the role of the employer. Rather, the approach is, and this is a longstanding and established principle, to attend to whether the employer's action imposes unfair or unreasonable demands on employees, not infrequently referred to as industrial injustice. 15 Cahill VP put it in a slightly different way when he said in Department of Water Resources v Australian Workers' Union New South Wales Branch (1992) 43 IR 76 at p80: In my opinion it is for the employer to determine what work is to be performed. That having been determined, it is then a case for the tribunal to decide, upon application being made on behalf of the employees performing the work, and having regard to the work required to be performed and the conditions applicable, whether any manning award at variance with the employer's desires is warranted. 16 In Re John Lysaght (Australia) Limited - Port Kembla - Slit Recoil Line Rates of Pay Award (unreported, Hungerford J, IRC94/2374, 12 March 1995), his Honour discussed the principle in this way: A question of manning is, it seems to me, concerned necessarily with the management of an employer's business. The long settled approach to such matters by the Commission is for it not to intervene by assuming the role of the employer but rather to assess whether what the employer proposes would impose unfair or unreasonable demands on employees, including unsafe work practices. So much was acknowledged in Re John Lysaght (Australia) Limited - Port Kembla - Slit Recoil Line - Rates of Pay Award when the present award was made. Specifically as to disputes about the level of manning, I refer to what was observed in the unanimous decision of the High Court in Re Cram; Ex parte NSW Colliery Proprietors' Association Limited (1987) 163 CLR 117 at 135-137: 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. … These considerations indicate that the objection voiced by O'Connor J in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted. 17 In Re Steel Works Employees and Engine Drivers, &c (Australian Iron and Steel Limited - Port Kembla) Awards. [1956] AR 855 at 859-860, Richards J observed: The Company is entitled to decide upon and introduce its own system of working and only in very extreme circumstances would the Commission interfere with this right. In Re Iron and Steel Works Employees (Australia Iron and Steel Limited - Port Kembla) Award [1955] AR 663 at p665, when dealing with a question of manning at the soaking pits at the Company's works, the court ( Richards J) said; Prima facie, the Company has the right to manage its business in its own way and is entitled to exercise its own discretion in the manning of its plant. In order to obtain an order against the Company in relation to the manning decided upon by it in a case of this kind, the Union carries the onus of establishing that the work which the employee is called upon to perform on his shift is more than a fair shift's work under the conditions in which the work is to be performed. In Re Dispute Between the Federated Engine Drivers and Firemen's Association of Australasia (Coast District) and the Broken Hill Proprietary Company Limited [1950] at 371 Cantor J at p372 said: On the authorities, summarised the following is the legal position: First, an employer has the right to manage his own business in his own way; secondly, the Commission will not interfere with this right unless it is satisfied that intervention is justified because in the exercise of this right unjust or unreasonable demands or conditions are imposed, or because the action of the employer is taken in bad faith or amounts to victimisation or oppression or the like. However, where the Company has introduced a new system of working the Commission will readily intervene in relation to ancillary matters such as where it is shown that the manning laid down by the Company is insufficient to carry out the work required or if the working conditions are such that they warrant the awarding of specific spell time or special rates of remuneration. 18 This case was later cited with approval by Watson J in Australian Iron and Steel Pty Ltd v Federated Ironworkers' Association of Australia, New South Wales Division (unreported, Watson J, IRC77/254, 18 November 1977) and later by Hungerford J in BHP Steel (AIS) Pty Ltd - Port Kembla Restructured Ironworker Classifications Rates of Pay Award (unreported, Hungerford J, IRC96/582, 12 December 1996). 19 Similarly, the Australian Industrial Relations Commission, in Shell Company Australia Limited and Others v Transport Workers' Union of Australia (unreported, Sweeney C, C No. 3303 of 1986, 13 January 1987) per, expressed the principle this way: The overwhelming principle involved in this matter is the long established right of management to allocate and arrange work and for employees to respond to reasonable management requirements. 20 It follows from the foregoing authorities that what the Union must clearly establish in this case is that the roster proposed by the Service imposes conditions on ambulance officers which are either unjust, unreasonable or both. THE ISSUES IN DISPUTE 21 I shall endeavor to summarise the parties' respective positions and make findings on each issue by reference to the clauses proposed by the parties. Scope of Agreement 22 The Union proposed the inclusion of the following clause: Where failure to abide by this agreed position occurs within any modified hours roster cycle, the parties shall endeavor to ensure that there shall be no disadvantage to the Officer(s) concerned. 23 The Service opposed this clause by saying that it did not allow for the daily management of rosters to address issues that arise. The Union's response was that the proposal was not mandatory. 24 I would agree with the Union's submission that its proposal does no more than require that discussions will occur in an endeavour to ensure any affected officers are not disadvantaged. It does not mandate any result. I cannot see any difficulty with including this wording in the clause. 25 The Service proposed to include the following clause: This agreement encompasses all past practices and privileges relating to roster, attending training schools etc. 26 The Service argued that an entirely new roster arrangement must override the practices of the past. In any event, the Service had no knowledge of what the Union said were "past practices and privileges." It was impractical and unworkable to have general unspecified references to matters the existence of which the Service was unaware of. 27 The Union replied that the Service was well aware of past practices and privileges and, in any event, this provision is already included in the Ambulance Officers (Broken Hill) Agreement (Clause 29). 28 I earlier referred to the difficulty I perceive with including such a broad and general provision as the retention of past practices and privileges in a document which is very specific and which seeks to address all the known identified problems with a modified 4 by 4 roster. In any event, I cannot accept that a modern and flexible roster arrangement should include long past and unidentified practices and privileges. It is to my mind, inconsistent with updated modern industrial relations practices. Accordingly, the clause proposed by the Service should be reflected in the new Agreement. Ambulance Education and Training 29 The main argument here, as I apprehend it, was the reconciliation of hours when an officer attends education or training courses. The Union argued that the reconciliation of hours should not accumulate. The Service proposed the following clause be included: Reconciliation of hours shall be balanced on the completion of each roster period. 30 I shall say more about the issue of reconciliation of hours later. However, the reference here related to education and training. The Service contended that the Union's stated examples related to outdated arrangements and very rare events. For example, most training courses are for five days and the problems raised by the Union simply don't arise. It was further put that the current arrangements for education and training are based on statewide Ambulance Service policy. 31 It seems to me that the problems the Union raised are purely speculative. Should any difficulties arise in a real and practical sense for a particular officer, the issue can be addressed on a case by case basis. Moreover, I can see no cogent reason to depart from statewide Service policy on what should be a largely uncontroversial matter. The Service's proposed clause should be included in the Agreement. Annual leave, long service leave, education and training 32 This was the main area of disagreement between the parties and the one which occupied the majority of time during the compulsory conferences. I shall shortly state my understanding of the competing arguments. By its very nature and construction, the modified hours core roster attempts to maintain an equal distribution of shifts and penalties over its cycle in addition to averaging 152 hours over four weeks. 33 For various operational reasons, this objective cannot always be achieved. In the result, officers might end up with a credit or deficit of hours depending on variables during the cycle such as leave call outs or where they fit in the rostered line when returning from leave. 34 The Service submitted that an integral component of the roster was the need for the reconciliation of hours. It argued that it was an arrangement across the State. In particular, stations of equivalent staffing to Broken Hill such as Bathurst, Orange, Lithgow and Dubbo have the same arrangements for managing officers when proceeding or returning from annual leave. The Service wished to maintain uniformity across the Division. 35 The Service proposed the following clause: Roster cycles one (1) to eleven (11), including D1 when appropriate will project through annual leave (AL) and long service leave (LSL) periods that shall accrue in days and be taken in weeks as defined in the Industrial Agreement. If return from any leave does not coincide with the projected roster cycle, which the Officer would have worked if not on leave, the roster cycle hours shall be neutral for the duration of such leave. For the period of leave the rostered hours is calculated as 38 and as such any reconciliation of hours shall remain static until the Officer returns from leave. At this point reconciliation of hours shall recommence to be calculated. 36 The Union argued that the roster cycle can never balance and referred to real examples which demonstrated that after the reconciliation of hours as a result of annual leave, eight officers "owed" the Service between 4 and 24 hours and two others were "owed" 16 hours and 4 hours by the Service. It was said that one officer currently "owed" 80 hours. 37 Uncontested affidavit evidence was tendered from Ambulance Officer Gail Wheeler. Ms Wheeler has had ten years' experience in Sydney and Broken Hill. She deposed that when she worked a modified hours roster system in Sydney, and worked more hours then required, these hours were paid at overtime rates. She said the practice was for overtime rates to apply if rostered time off was unavailable. 38 Mr Campbell submitted that the Union was simply asking that when an officer is on annual leave he or she receives whatever hours fall in that week; that is, if it is 22 hours one week and 48 hours the next that is what is applied. The Union's preferred position was that "overs" be waived or alternatively capped at a reasonable level. 39 Mr Stonestreet replied that annual leave must be calculated on a 38 hour divisor and officers cannot be paid for time not worked. He said that the current arrangements give the officers flexibility to take additional time off if requested. Nine of the Broken Hill officers have taken time off for hours that are "owed." 40 The Service's proposed roster has been the subject of a trial for almost three years. It is true to say that an officer may be disadvantaged if he/she was forced to pay back "owed" hours, particularly in the event of the termination of employment. No examples were put to the Commission of this situation having occurred at Broken Hill or elsewhere in the Division. 41 Ms Wheeler's experience in Sydney in 2002 of owed hours being paid at overtime rates does not address the fundamental concern of the parties. That proposition, in the absence of any further details, reflects no more than an arrangement which existed at another location two years ago. 42 I note again that the objective over the roster cycle, is to reconcile the hours that officers might accumulate as "unders" or "overs." On the state of the evidence provided during the proceedings, the Commission cannot be satisfied that the Union has demonstrated a real and practical unfairness or disadvantage to its members. That is not to say that a future instance of such unfairness might not arise. On balance, however, and particularly in light of the arrangements operating elsewhere in New South Wales, I am not persuaded to accept the Union's proposal. The clause proposed by the Service should be included in the Agreement. On Call Requirements and Payments 43 The Union again proposed a reference to past practices and privileges. The Service opposed the inclusion. For the reasons I have already expressed, any reference to past practices and privileges should not be included in the document. 44 The other area of dispute in this clause related to the procedure for the calling in of officers. In short, the Service proposed that restrictions on call out arrangements restricted flexibility and caused problems in maintaining an efficient service. It rejected the use of trainee officers with six months service for call outs as inconsistent with statewide Service policy. 45 The Union's primary reason for opposing the Service's proposals was based largely on past practice. I reject this argument. The amendments proposed by the Service should be adopted. Maintenance of Roster 46 The Service proposed a number of clauses to enhance flexibility for the Station Manager in managing the roster. It opposed the Union's proposals, which it said, were restrictive and based on past practices. 47 The Service submitted that the Station Manager needed the flexibility to choose the best and most cost effective means of managing the roster. The Union's insistence on offering shifts to the officer with the least number of hours, may not always be effective or efficient. 48 The Union relied on past custom and practice for the proposals it advanced in reply. Again for reasons I have earlier expressed, I propose to adopt the Service's proposals in this section of the Agreement. CONCLUSIONS 49 The Commission is minded to make four final comments. Firstly, the Union has not been able to establish, on a proper evidentiary basis, that the roster proposed by the Service will result in its members being required to perform work which is unjust or unreasonable. 50 Secondly, it was argued that deleting the reference to past practices and privileges was in conflict with cl 29 of the Ambulance Officers (Broken Hill) Agreement. I will not repeat my earlier comments about this clause. In any event, the scope of the proposed modified roster agreement provides for the roster agreement to have precedence where it conflicts with the Industrial Agreement. 51 Thirdly, much of the Union's reply submission sought to have the Commission rule, as inadmissible, the bulk of the Service's submissions. It was said that the Service's arguments were either opinion or hearsay. As I said to the Union during the proceedings, submissions are not evidence. A party cannot object to submissions on evidentiary grounds. Moreover, it seems to me that the Service's submissions were well grounded by the fact that its proposal (now largely adopted by the Commission) has been operating for almost three years. I would have thought if there was any evidence of the roster working satisfactorily, without unduly disadvantaging any officer, then the lengthy trial period must be it. 52 Fourthly, not only did the Union bring no evidence of any actual disadvantage or unfairness visited upon its members, but much of it's case was predicated on speculation of what might happen in a particular isolated situation. (The training issue was one such example, where a detailed submission was argued about two day training courses which are no longer conducted). 53 It is trite to observe that it would be wrong of me to decide this case (or any other for that matter) on speculation; no matter how well motivated and dedicated the Union advocates were. That is not to say that some disadvantage or unfairness may not arise in the future. But that is not the evidence before me in this case. Should any problems arise, it can be addressed at the appropriate time in accordance with the relevant provisions of the Act. 54 I attach to this decision my conclusions and findings in the form of a proposed modified roster Agreement. I expect the Agreement to be signed by the parties within 28 days. Should the parties agree on any other modifications or alterations to this proposal, then of course such changes should be reflected in a final document. 55 Finally can I say that it behoves both parties to put their long standing antipathy and past disagreements behind them and concentrate on offering the best possible ambulance service to the people of Broken Hill. It is no less then they expect and deserve. I recommend accordingly. 56 These dispute proceedings are now concluded. Peter J. Sams AM Deputy President 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.