Industrial Relations Commission of New South Wales CITATION: Health Services Union v Ambulance Service of New South Wales (No. 1) [2007] NSWIRComm 151 PARTIES: Health Services Union Director General, NSW Department of Health in respect of the Ambulance Service of New South Wales FILE NUMBER(S): 2509 of 2006 CORAM: Grayson DP Industrial dispute - Earlier dispute proceedings settled by Heads of Agreement - Interpretation of Heads of Agreement - Contextual approach - Plain and ordinary English meaning - Evidence of persons with direct involvement in events leading to settlement called by union - Inference drawn from failure on employer's part to call such evidence - In the alternative and on the merits agreement should apply to subject employees because the grounds justifying agreement applied equally to such employees CATCHWORDS: Held - Heads of Agreement applied and continued to apply to Operations Centre Managers - Primary basis of union claim made out - Alternative basis of claim does not arise for determination - Dispute order made LEGISLATION CITED: Industrial Relations Act 1996 Busby v Australian Telecommunications Commission (1988) 83 ALR 67 CASES CITED: Jones v Dunkel (1959) 101 CLR 298 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 Solutions 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 60 NSWLR 558 HEARING DATES: 19 September 2006, 16 February 2007, 19 February 2007, 20 February 2007, 21 February 2007, 28 February 2007, 10 May 2007 DATE OF JUDGMENT: 20 June 2007 Mr J Murphy of counsel with Mr D Ravlich, Manager Industrial Services - Health Services Union LEGAL REPRESENTATIVES: Mr A Morris Blake Dawson Waldron Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Grayson, DP 20 June 2007 Matter No IRC 2509 of 2006 Health Services Union, New South Wales Branch & Ambulance Service of New South Wales Notification under section 130 by Health Services Union of a dispute with Ambulance Service of New South Wales re interpretation of agreement and inappropriate classifications DECISION [2007] NSWIRComm 151 1 On 16 June 2006 the Health Services Union notified an industrial dispute under s 130 of the Industrial Relations Act 1996. A series of conciliation conferences were conducted by Bishop C. Failing success in that regard the matter was reallocated to me for arbitration after the Ambulance Service invoked the provisions of s 173 of the Act. The dispute was said to concern, among other things, the following industrial matters: (i) The Ambulance Service of New South Wales has inappropriately classified Operations Managers employed by the Service to manage its operations in each of its Operational Sectors (ii) The Ambulance Service has failed to apply the increase agreed to be applied to all HSU classifications in the Service's Operations Centres to the Operations Centre Managers who manage those Centres. 2 The dispute was also said to concern an alleged failure on the employer's part to apply the provisions of clause 26, Accommodation of the Ambulance Service of New South Wales Superintendent/Operational Managers (State) Award to one of its Operations Managers (Superintendent Hennessy). That matter, however, is the subject of further consideration by the HSU as to how it might be concluded or progressed and does not form part of these arbitral proceedings. 3 In relation to the matters the subject of arbitration, the HSU seeks the following orders: 1. The Commission orders that persons employed by the Ambulance Service of New South Wales in the position styled "Operations Manager" which was created by the Management Reorganisation in 2002 be classified as Superintendent Level 4 within the Classification Structure of the Ambulance Service of New South Wales Superintendent/Operational Managers (State) Award. 2. The Commission orders that the position styled "Operations Manager" which was created by the Management Reorganisation in 2002 and which is classified as Superintendent Level 4 within the Classification Structure of the Ambulance Service of New South Wales Superintendent/Operational Managers (State) Award became a Level 4 position when it was created. 3. The Commission orders that the terms of the Heads of Agreement which were developed to resolve matter number IRC 4623 of 2002 and which applied to and continue to apply to employees employed in Operations Centres under classifications contained within the Operational Ambulance Officers (State) Award, applied to and continue to apply equally to employees employed in Operations Centres who are employed under the terms of the Ambulance Service of New South Wales Superintendent/Operational Managers (State) Award 4 Dealing for the purpose of this decision, with the claim made on behalf of Operations Centre Managers, it is convenient to set out as part of the background, the contents of the Heads of Agreement referred to in proposed order 3 above and in so doing, I note that the document came into existence on 19 March 2003 in settlement of lengthy dispute proceedings before Boland J in IRC 4623 of 2002. 5 The Heads of Agreement are expressed in the following terms: HEADS OF AGREEMENT The following points of agreement between the Ambulance Service of New South Wales ('the Service') and the Health and Research Employees' Association of New South Wales ('HREA') takes effect from the date affixed with the signatures on this document. As a result of this agreement, the following outcomes are to occur: 1. An immediate eight (8) per cent increase in wage rates for employees employed in the Operations Centres under HREA award classifications. This increase to such classifications will be effective from 15 March 2003. 2. Employees currently appointed to an Operations Centre on a permanent basis and under HREA award classifications as at the date of this agreement being signed will be eligible to receive a 'once only' payment. Such a payment will be calculated and equivalent to eight (8) per cent of total gross earnings for the period the employee has been employed under HREA award classifications in an Operations Centre up to a maximum period of two (2) years. This two (2) year period will be calculated back from 14 March 2003. 3. The Service and HREA agree that on an exception basis employees in the two (2) years previous to 15 March 2003 had worked in a HREA award classification in an Operations Centre will be considered for the 'once only' payment, on a pro rata basis identified in point (2) above. 4. The payment identified in points (2) and (3) above will be made available in one payment after the date of this agreement being signed. 5. The Association agrees to the operational concepts set out in the document Proposal for the Establishment of a Command and Control Environment including: · The multi-skilling of call-taking, dispatch and peripheral functions, · The introduction of a quality regime with agreed performance targets, · amalgamation of dispatch boards, and · establishment of the new job classifications 6. The Service and HREA agree that the OCWP will be reconvened as a matter of urgency. The OCWP will utilise the " Proposal for the Establishment of a Control and Command Environment" as a vehicle for discussions and will identify the final form to be implemented, along with developing an implementation plan. This process may be assisted by feedback to the OCWP by local forums developed at each Operations Centre. 7. The Service and HREA agree that changes arising from point (6) above, including changes to classification, remuneration and conditions of employment will be accommodated by variations to the existing Operational Ambulance Officer (State) Award . 8. All current employees employed in an Operations Centre will be afforded priority of employment status for any new classification/positions, together with any other identified displaced persons. Any current employee who does not obtain a position or chooses not to pursue a position within any agreed new classification structure will receive salary maintenance and be provided with meaningful and appropriate work, as set out in Circular No. 2000/78 - Managing Displaced Employees. These requirements will be appropriately accommodated within any implementation plan developed and agreed to the OCWP. 9. Current employees employed in an Operations Centre under HREA award classifications who obtain a position within any agreed new classification structure that does not provide an increase in total earnings will receive salary maintenance in accordance with the provisions of Circular 2000/78 Managing Displaced Employees . These requirements will be appropriately accommodated within any implementation plan developed and agreed to by the OCWP. 10. Any decision by the Service to make available voluntary redundancies will be discussed with HREA first and will be reflected within any implementation plan developed and agreed to by the OCWP ensuring that all employees employed in Operations Centres are aware of all options prior to proceeding to the staffing of any agreed new classification structure. 11. The Association and its members will adhere to the continuation of Phases 1-4 of the MPDS and ProQA training including the practical application elements as recommended by Justice Boland of the Industrial Relations Commission. 12. As part of its commitment to this agreement, the Association agrees to the implementation of the proposed VisiCad Command upgrade to each of the Operations Centres. 13. Whilst this agreement is upheld by the parties, the Association and its members will withdraw any bans currently in place pertaining to the provision of training to new or existing employees within the Operations Centres. 14. Whilst this agreement is upheld by both parties no action will be undertaken by either party - industrial or otherwise - that seeks to alter working conditions/procedures in use at each Operations Centre other than those changes necessary to give effect to this agreement and to the implementation of the proposed upgrade of the CAD system and associated radio and data network functions. (G Rochford) (M Williamson) Ambulance Service of Health and Research Employees New South Wales Association of New South Wales 19 March 2003 6 The above dispute had its origins in changes in the way in which ambulances are despatched. Those changes occurred initially in about 1998 prior to which time a manual paper based system for the receipt and recording of calls had been used in deploying ambulance resources throughout New South Wales. The changes involved the introduction of new technology in the form of a computer aided despatch system known as AmbCAD the major functions of which were the: · Computerisation of incident entry and scheduling of bookings · Computerisation of despatch of ambulances · Status monitoring and management of ambulance resources · Provision of comprehensive incident and geographical information to officers · Establishment of audit trails for all events · Establishment of performance and management functionalities 7 As part of the extensive planning and development in advance of the implementation of the AmbCAD system and its associated technologies, eleven manual call taking and despatch centres throughout New South Wales (Co-ordination Centres) were rationalised into four new facilities located at Sydney, Newcastle, Wollongong and Dubbo (Operations Centres). Change management processes were set up to deal with issues associated with the introduction of AmbCAD and associated technologies (a call prioritisation system known as ProQA and a medical prioritisation despatch system know as MPDS). The issues dealt with by the change management processes also included but were not limited to the management of staff displaced by the rationalisation of Coordination Centres into four new Operations Centres. As may be apparent from this very broad description of events, the implementation of the new system was a task of substantial proportion and something of a milestone within the Service. 8 Arising out of the implementation of the new system, it was determined by unions covering employees employed in the Operations Centres that increased levels of remuneration would be pursued to reflect the increased technological and other demands upon them created by the new system. 9 Without traversing the lengthy and protracted history of negotiations at the enterprise level and litigation before the Commission, it is fair to say that the settlement reflected above in the Heads of Agreement was in part a recognition of the substantive merit of the union claim for increased remuneration and in part a commitment by the parties to work collaboratively towards further workplace reform by, among other things, the establishment of a so-called command and control environment within the newly created Operations Centres. 10 Whether this further reform has been ultimately achieved by the parties in unclear from the material before me but the proposition for which the union now contends is that the salary increases contemplated by the Heads of Agreement insofar as they are expressed to apply to all Operations Centre employees "under HREA award classifications" have been wrongly withheld from four such employees namely, the managers of each of the four Operations Centres. 11 There is no dispute that these four managers are and have been at all material times covered by the Ambulance Service of NSW Superintendent/Operations Managers (State) Award to which the union is (in its present emanation) and was (in its previous emanation) a party. 12 On the union case, they are therefore employees "employed in the Operations Centres under HREA award classifications" and if those words in the Heads of Agreement are given their plain and ordinary English meaning, there can be no doubt that the four managers should benefit from the 8% arrangements entered into between the parties and reported to his Honour Boland J on 26 March 2003 in settlement of IRC 4623 of 2002. 13 That this was the clear understanding of the scope of the Heads of Agreement is attested to by two of the current four Operations Centre Managers - Superintendent Peter Payne and Superintendent Neill Elliot both of whom occupied manager positions at the time the Heads of Agreement came into existence; both of whom to a greater or lesser extent were directly involved in the protracted negotiations leading up to the Heads of Agreement and both of whom understood the reference to employees "under HREA Award classifications" to be a means of distinguishing such employees from Communications Assistants in the Operations Centres who belonged to the United Services Union and were covered under a different award, presumably the Ambulance Service of NSW Clerical and Administrative Employees (State) Award. Those employees had received wage increases ranging between 6.73% and 9.81% or roughly 8% on average, a year or so earlier, but importantly, in recognition or consequence of the implementation of AmbCAD. 14 It was never suggested to either Superintendent Payne and Superintendent Elliot or to Mr Dennis Ravlich, the HSU official with carriage of the matter, at any time prior to the Heads of Agreement being signed off between the parties, that the scope of agreement did not extend to the four centre managers. 15 Conversely, none of the representatives of the Ambulance Service who, on the evidence, were most directly involved in the negotiations and execution of the Heads of Agreement (Mr Ken Lennox, Senior Employee Relations Adviser and the Service's advocate in IRC 4623 of 2002; Mr Rob Gray, General Manager Corporate Services; Mr Steve Whinfield, General Manger Operations; Mr Greg Rochford, Chief Executive Officer and signatory to the Heads of Agreement) were called in the proceedings to contradict the HSU evidence. The union submitted that the usual inference which I assume means the Jones v Dunkel (1959) 101 CLR 298 inference should be drawn from such a significant omission in the case mounted by the Service. I agree. 16 The HSU contends as a first and primary basis for its claim, that the expression used in the Heads of Agreement: ... employees employed in the Operations Centres under HREA award classifications ... permits no interpretation other than that it embraces and extends to Operations Centre Managers. 17 In the alternative, the HSU contends that the Heads of Agreement should apply to Operation Centre Managers because the grounds justifying the Heads of Agreement applied equally to them. In my opinion, the alternative argument does not arise. 18 For its part, the Service rejects both the primary and alternative propositions contending instead and as to the first of them, that the Heads of Agreement were never intended to apply to managers and further, that the Commission would make the order sought by the union only if it was positively satisfied that there was a mutual intention between the parties that the scope of the Heads of Agreement and the salary increases therein provided, extended to Operations Centre Managers. In that regard, the Commission would naturally start with a presumption that it is inherently highly unlikely that the Service would enter into such an agreement and then refuse to honour it in the case of very senior managers such as Operations Centre Managers who as earlier observed, are covered by the Ambulance Service of New South Wales Superintendent/Operational Managers (State) Award. It may be observed here that if the union argument is accepted, then such a conclusion is inescapable. 19 The Service submitted as a matter of trite law, that an industrial instrument of which the Heads of Agreement is an example, must be read and construed as a whole and according to its context and when considered in that way, it is of significance that the dispute in IRC 4623 of 2002 which was notified by the Service was on its face limited to employees covered by the Operational Ambulance Officers (State) Award which is not the award covering Centre Managers. It was out of and in settlement of those proceedings that the Heads of Agreement were drawn. 20 Against that, the union argues that it is simply wrong to submit as the Service does, that the Heads of Agreement represented nothing more than the settlement of the dispute notified in IRC 4623 of 2002 and that in some way, the dispute was limited to employees covered by the Officer's Award. Plainly the union argument is sound if one looks at the relatively narrow issue raised in the dispute notification (Exh 3 - tab 9) and compares it with the express terms and scope of matters encapsulated in the Heads of Agreement. 21 The Service also contends that by its conduct subsequent to the settlement in March 2003, the HSU can be said to have accepted that the Heads of Agreement did not apply to Operations Centre Managers in that: · it did not seek to restore the matter to Boland, J's list in accordance with liberty granted by his Honour · it has made no application to vary the Manager's Award whereas it made prompt application to vary the Officers Award to give effect to the Heads of Agreement · its efforts to press for the Heads of Agreement to apply to Operations Centre Managers were not made for quite some time after the execution of the Heads of Agreement · it can cite no record of any claim nor any meeting of members to endorse or authorise a claim on behalf of Operations Centre Managers prior to the heads of Agreement 22 It is further submitted by the Service that it may be properly inferred from the evidence of the union witnesses that they appreciated that the Heads of Agreement did not on their own terms apply to centre managers and that an attempt was then made, belatedly, to "flow" the same 8% adjustment to the salaries of centre managers as applied under the Heads of Agreement to Operations Centre employees covered under the Officers Award. 23 The Service relies on correspondence (see Exh 3 - tab 11) as an indication that it had in contemplation and in its intention that the dispute and the heads of Agreement only applied to Operations Centre employees subordinate to the managers namely, those employees covered under the Officers Award. I am not so persuaded given firstly, that the letter speaks about "all employees employed in the Operations Centres under HREA award classifications" and secondly does not purport to exhaustively list all such persons but rather sets out by way of example, how the once only payment therein proposed, might apply to those with two or more years service. 24 With every respect to the Service and the proposition for which it contends, it seems to me inescapable that the Heads of Agreement properly construed must apply to Operations Centre Managers along with other Operations Centre employees covered by HREA (as it then was) awards and it cannot be held against the four managers as very senior employees, that they preferred to resolve any doubts in that regard by quiet and patient negotiation rather than open conflict with the Service. 25 Moreover, the union and its members employed in the Operations Centres including the fours managers, had every right to assume, as I am disposed, that the words "employees in Operations Centres employed under HREA award classifications" as they appear in the Heads of Agreement both said what they meant (as to the mutual intention of the parties) and meant what they said (as to their proper construction) and if it were otherwise intended, it would have been a simple and obvious measure to use words such as "employees employed in the Operational Centres under the Operational Ambulance Officers (State) Award" thus limiting the scope and reach of the Heads of Agreement to the exclusion of Operations Centre Managers. 26 Its failure to use words of that nature and its failure, unlike the union, to call the persons most directly involved in the formulation and execution of the Heads of Agreement represent significant forensic obstacles for the Service, as I am disposed and this is particularly so when it is considered, as earlier observed, that the Heads of Agreement plainly reflect a meeting of the industrial minds well beyond the relatively narrow issue raised in the dispute notification in IRC 4623 of 2002. 27 I do not think that the contextual approach (see K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514; Busby v Australian Telecommunications Commission (1988) 83 ALR 67 at 71 and Solutions 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 60 NSWLR 558 at 581 for example) permits the limitation contended for by the Service, to be imported into the Heads of Agreement. I am of the view, given their plain and ordinary English meaning, that the words used in the document extend to and include Operations Centre Managers and I find accordingly. I therefore grant the union claim and in so doing, make the following order: The Commission orders that the terms of the Heads of Agreement which were developed to resolve matter number IRC 4623 of 2002 and which were applied to and continue to apply to employees employed in Operations Centres under classifications contained within the Operational Ambulance Officers (State) Award, applied to and continue to apply equally to employees employed in Operations Centres who are employed under the terms of the Ambulance Service of New South Wales Superintendent/Operational Managers (State) Award. 28 In view of the fact that the proceedings require the determination of two quite separate and essentially unrelated issues, I propose in the interests of more expeditious disposal of the proceedings to publish this decision in relation to the Operations Centre Managers issue separately and in advance of the decision in relation to Operations Managers which will be published in due course. 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.