Industrial Relations Commission of New South Wales CITATION: Operational Ambulance Officers (State) Award and others [2008] NSWIRComm 168 APPLICANT (RESPONDENT TO CROSS-APPLICATIONS): Health Services Union PARTIES: RESPONDENT (APPLICANT IN CROSS-APPLICATIONS): NSW Department of Health FILE NUMBER(S): IRC 2064 of 2006; 1123 of 2007; 1354 of 2007; 1355 of 2007; 1356 of 2007; 1198 of 2008 CORAM: Walton J Vice-President; Grayson DP; Staff J CATCHWORDS: Award - Application and cross-applications - Bluescope procedure - Recommendations - Memorandum of Understanding - Award made subject to settlement of minutes CASES CITED: Operational Ambulance Officers (State) Award and others [2008] NSWIRComm 156 HEARING DATES: 06/05/08, 07/05/08, 19/05/08, 20/05/08, 21/05/08, 27/05/08, 28/05/08, 29/05/08, 30/05/08, 19/06/08, 01/07/08, 03/07/08, 04/07/08, 28/07/08, 29/07/08, 18/08/08, 19/08/08, 20/08/08, 21/08/08, 22/08/08, 09/09/08, 12/09/08 DATE OF JUDGMENT: 12 September 2008 APPLICANT (RESPONDENT TO CROSS-APPLICATIONS): Mr J Murphy of counsel Mr D Ravlich Health Services Union LEGAL REPRESENTATIVES: RESPONDENT (APPLICANT IN CROSS-APPLICATIONS): Mr J Nolan of counsel Ms A Owens NSW Department of Health JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice-President GRAYSON DP STAFF J Friday 12 September 2008 Matter No IRC 2064 of 2006 Operational Ambulance Officers (State) Award Application by Health Services Union for variation re clause 5, classifications, in the Operational Ambulance Officers (State) Award Matter No IRC 1123 of 2007 Ambulance Service of NSW Superintendent/Operational Managers (State) Award Application by Health Services Union for variation re clause 4 Matter No IRC 1354 of 2007 Operational Ambulance Officers (State) Award Application by NSW Department of Health for new award Matter No IRC 1355 of 2007 Ambulance Operations Centre (State) Award Application by NSW Department of Health for new award Matter No IRC 1356 of 2007 Ambulance Managers (State) Award Application by NSW Department of Health for new award Matter No IRC 1198 of 2008 Notification under section 130 by NSW Department of Health of a dispute with the Health Services Union re work bans DECISION OF THE COMMISSION EX-TEMPORE [2008] NSWIRComm 168 1 This decision represents the culmination of a major industrial case involving the Ambulance Service of New South Wales and will determine various applications which were described, together with the methodology employed to resolve them, in a Statement issued by us on 10 September 2008: Operational Ambulance Officers (State) Award and others [2008] NSWIRComm 156. 2 We propose to set the Statement out in full, as follows: 1 This Statement is the penultimate step in the resolution of a major industrial case involving the Ambulance Service of New South Wales. The case proceeded on the basis of two applications by the Health Services Union and three counter-applications by the NSW Department of Health. 2 The union applications respectively sought a new Operational Ambulance Officers (State) Award and a new Ambulance Service of New South Wales Superintendent/Operational Managers (State) Award. 3 The employer counter-applications sought a new Operational Ambulance (State) Award; a new Ambulance Operations Centre (State) Award and a new Ambulance Managers (State) Award. The latter two employer applications sought, firstly, and as the title implies, to create a separate award for ambulance personnel employed in the four Operations Centres throughout the State and, secondly, in the case of the Managers' Award, to create a new title and career structure for ambulance personnel employed in the traditional role of Superintendent. 4 There was also, for completeness, a sixth application dealt with by the Full Bench in the course of these proceedings, namely, a dispute notification filed by NSW Health at a time when industrial bans had been imposed during the currency of proceedings. The bans were lifted after the intervention of the Commission. 5 In their entirety, the proceedings gave rise to an exhaustive and far reaching analysis of the existing classifications structure, conditions of employment (including the vexed question of shift rosters) and rates of pay for approximately three thousand employees of the Ambulance Service from the level of Patient Transport Officer, through the traditional grades of Ambulance Officer (and new classifications relating thereto) and beyond, into the promotional hierarchy up to and including Superintendents and other senior managers. 6 As may be apparent from those observations, the proceedings involved a very large number of claims prosecuted upon a broad evidentiary canvass, including eighty three documents consisting of sworn statements and other documentary material. The claims prosecuted, in addition to the question of shift rosters we have already mentioned, included matters of clinical profiling. This is essentially an identification of the skill mix required at each ambulance station including, in particular, the skills required of Paramedic Specialists and the means by which such persons would complete or decline to complete in-service instruction and relevant certification examinations. Matters involving incentive schemes to promote appointment in remote areas were also canvassed in order to overcome recruitment and retention difficulties experienced in remote and rural areas of New South Wales. Provisions similarly intended to provide by incentive rather than compulsion for special events coverage by ambulance officers including public holiday celebrations, VIP visits, disaster exercises and sporting events were dealt with as were matters such as time off in lieu of overtime, introduction of change, casual conversion arrangements and a range of other matters. 7 The proceedings were dealt with to near completion by the Full Bench between May and September 2008, culminating in some final Recommendations made yesterday to clarify the effect of earlier Recommendations and to deal with some drafting issues. Most notably, for the purpose of this Statement, the proceedings were conducted largely, but not entirely, in camera in a process which has become known as the 'BlueScope Model'. By contrast, proceedings of a similar scope and order of magnitude have, over time, taken much longer and involved much more in terms of the resources of the Commission and the industrial parties before it. The process, as the name 'BlueScope Model' implies, had its more recent origin in proceedings over which his Honour Walton J, Vice-President, presided almost a decade ago (see Re Notification under section 130 by the Minister for Industrial Relations of a Dispute between BHP Billiton and the Australian Workers' Union NSW and others re proposed strike action [2002] NSW IRComm 378), although it has been refined since that time. 8 In that matter Walton J described the particular procedure then adopted in the following way: 11 This recommendation is made in conciliation proceedings. However, it has the effect of resolving the issues in dispute because the parties have indicated their agreement that, where an issue is the subject of a recommendation by the Commission, it will be treated "as being agreed" in the terms of that recommendation. 12 The Commission has adopted this procedure with some trepidation, having regard to its unusual features. The procedure effectively involves adjudication of serious disputed issues by reference, in part, to the positions adopted by the parties during the course of conciliation. This approach would normally be impermissible in any arbitral proceedings as to such issues. However, there are a number of factors which warrant the adoption of such a procedure in this matter: 1.There is consent of the parties (including acceptance of the procedure by a mass meeting of the members of the unions) to the procedure. Indeed, it may be said that the parties actively encouraged the use of the procedure. 2.Notwithstanding its consequences, the recommendation will be issued in conciliation proceedings. 3. The matter has special features. It involves, inter alia , a reconsideration of the Steel Industry Agreement which has a number of terms which are unfamiliar to awards and enterprise agreements. 4.There has been a sharp deterioration in industrial relations in the industry which, for its ultimate correction, requires a resolution of all relevant issues (including issues concerning the terms of the Steel Industry Agreement). 5.There is a significant imperative for an expeditious and effective solution in light of the 'spin-out' and that deterioration of relationships. 13 It should also be noted that this unusual procedure was borne partly out of history (there being a similar procedure employed successfully in relation to an industrial dispute concerning the outsourcing of maintenance) and, perhaps, out of necessity (from the viewpoint of the parties) given that some of the issues sought to be ventilated may have transcended those areas normally the subject of determinations by the Commission in industrial dispute proceedings. 14 There is another aspect of the informal and unusual procedure adopted in this matter that warrants particular attention. The parties have agreed that the Commission will take into account concessions made by parties during the course of the conciliation process in making any recommendation. The companies described the process, in their written submissions, as the Commission taking into "account the EBA negotiations and conciliation proceedings". 15 This is not to suggest that the Commission has not taken into account the formal submissions made by the parties in the proceedings, both orally and in writing, and evidence led in the proceedings. The Commission has examined these matters in considerable detail. Rather, the procedure entails the Commission also taking into account concessions made during the course of conciliation which, in some cases, represent the starting point for any process of deliberation. 16 It should also be noted that, with the concurrence of the parties, the witnesses in the proceedings were examined by the Commission, in the presence of the parties, during the course of the conciliation process itself (although, in some cases, formal statements of evidence had been prepared prior to such process being undertaken by the Commission). 9 The process, in the strict sense, is evidence based. As the parties in these matters have experienced first hand, the process requires a rigorous and robust examination of the issues raised in the proceedings. The resolution of issues in a sequential fashion by agreement or by the giving of an ex-tempore Recommendation by the Commission is an intensive process with the Commission's consideration of a particular matter being sharply focussed (and sometimes involving an inquisitional aspect), but subject always to the evidence or relevant concessions made by the parties. It is no less a rigorous analytical process than the traditional courtroom based public processes which have guided the Commission and the parties over the years, albeit there is a significantly different methodology employed. That approach is not designed to displace such processes, but represents an alternative methodology which may be employed in suitable cases within the scope of the Commission's conciliation and arbitration powers. 10 Some further brief comments about the process may be useful. The process, in and of itself, involves a high degree of spontaneity and interaction at first hand between Members of the Full Bench and the advocates, as well as representatives of the parties who are present for the purpose of informing the Commission in a conference based setting. At times, where felt appropriate by the Full Bench, matters may be dealt with on the record in the interests of bringing clarity to the decisions made by the Full Bench, where as in the present case a number of such issues brought with them a high degree of factual and technical complexity. In such cases, detailed reasons accompanied the determination by the Commission (which are sometimes not given in these matters in relation to less significant claims). At other times, matters may revert to a conciliation format and be dealt with by break-out sessions with one party in the absence of the other. On occasions the Full Bench may direct the parties into a form of extended conciliation in order to narrow or resolve a particular issue. These conciliation processes may inform any resumed sitting. 11 By way of further description of the process, the parties in these proceedings were asked on numerous occasions by the Full Bench to produce additional information in the form of spreadsheets and flow-charts to assist each other and the Commission in better understanding complex factual matters, for example the State-wide deployment of ambulance officers in both the numerical and geographical sense. In this regard, we extend our compliments to the parties on both sides of the record for the quality of their work which, in no small measure, added to a successful outcome. We consider the role of counsel in the proceedings to be exemplary. 12 It is fair to say that since the 'BlueScope Model' was first used it has gained in its level of acceptance by the parties, both in the private sector and, more recently, as these proceedings reveal, in a series of major public sector cases dealt with by this Commission. (See also NSW Health Service Health Professionals (State) Award [2007] NSWIRComm 300 . ) 13 In all, the Commission was called upon to make a large number of Recommendations in resolution of the issues raised by the applications. A summary of the matters attended to will attach to our final decision, together with the reasons for the Recommendations issued with respect to two classes of claims on 20 and 21 August 2008. 14 The parties are required to prepare draft awards reflecting their agreement or our Recommendations. We will hear the applications for new awards in a formal sitting conducted at 12.45 pm Friday 12 September 2008. 3 In all, in the course of that process, the Commission was called upon to make 21 Recommendations in resolution of the issues raised by the applications. In two such cases, the Commission issued detailed reasons for the Recommendations made. These Recommendations (which were made on 20 and 21 August 2008) are attached. We would wish to emphasise that even though some small areas of agreement emerged during conciliation, by and large the Recommendations issued were given after we received the benefit of vigorously contested positions advanced by counsel on behalf of both parties (supported by evidence, documentary material in support and written submissions). 4 The parties have prepared draft awards reflecting their agreement or our Recommendations. Further, the draft awards now include an agreement reached between them as to further salary adjustments in subsequent periods, as well as some particular leave reserved arrangements in that respect. That agreement is reflected in a Memorandum of Understanding executed 11 September 2008. 5 Needless to say, the proposed awards have our complete endorsement, although with respect to those matters arising from the Memorandum of Understanding, we have merely reflected the parties agreement. 6 In the result, we make the following new awards (subject to a settlement of Minutes as to their final form): 1. Operational Ambulance Officers (State) Award in terms of exhibit 84 of the proceedings; and 2. Operational Ambulance Managers (State) Award in terms of exhibit 85 of the proceedings. 7 Those awards shall operate on or from today's date and shall remain in force for a period of three years. _________________________ 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.