Industrial Relations Commission of New South Wales CITATION: Health Services Union and Ambulance Service of New South Wales re Changes to Demand Protocol [2008] NSWIRComm 1027 NOTIFIER PARTIES: Health Services Union RESPONDENT Ambulance Service of New South Wales FILE NUMBER(S): 2223 of 2006 CORAM: Stanton C CATCHWORDS: industrial dispute - Ambulance Service - ambulance destination protocol - conduct of trial - patient flow - access block, hospital block - offload delay - Commission Recommendation - consultation - operational efficiency and capacity - clinical care matrix - managerial prerogative - harsh, unjust or unreasonable demands on ambulance officers held: order sought to conduct a trial refused LEGISLATION CITED: Industrial Relations Act 1996 Ambulance Service of New South Wales and Broken Hill Town Employees' Union [2004] NSWIRComm 73 CASES CITED: Australian Rail, Tram and Bus Industry Union NSW v State Transit Authority [2007] NSWIRComm 162 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) HEARING DATES: 12 February 2008 DATE OF JUDGMENT: 13 June 2008 NOTIFIER Mr J Murphy of counsel LEGAL REPRESENTATIVES: RESPONDENT Mr A Morris, Solicitor for the Director of Public Employment and the Ambulance Service of New South Wales Blake Dawson Waldron DECISION: - 74 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : STANTON C Friday, 13 June 2008 Matter No. IRC 2223 of 2006 Notification under section 130 by Health Services Union of a dispute with the Ambulance Service of New South Wales re changes to Demand Protocol DECISION [2008] NSWIRComm 1027 1 The Ambulance Service of New South Wales ('the Ambulance Service') is an integral part of the New South Wales health system where it is responsible for initial emergency care and subsequent patient transport to hospital accident and emergency departments where the patient is ultimately assessed, triaged and afforded the required clinical care. 2 Under the New South Wales Health Sustainable Access Program, a number of initiatives have been jointly agreed upon and introduced by the Ambulance Service, the Area Health Services and New South Wales Health to drive improvements in patient flow through accident and emergency departments and, additionally, to alleviate "access block" or, put more simply, reduce ambulance queues. The Health Services Union ('the Union') has actively supported the quest to improve patient flow through a range of industrial and public interest campaigns, particularly within the Newcastle and Lower Hunter Region. 3 Shortly stated, access or hospital block, now more widely known as "offload delay", is the term that describes the delay a patient who requires hospital admission experiences in the emergency department when an inpatient bed is unavailable. In such cases, ambulance officers are unable to release patients into the immediate care of the relevant accident and emergency department. Accordingly, ambulance queues may develop which inturn can impact negatively upon ambulance availability. 4 The imperative to reduce offload delay is an obvious priority and is consistent with a 2004 New South Wales Audit Office Recommendation that the Ambulance Service initiate steps to improve the management of patient flow and, in that regard, implement a formal and permanent means of improving planning and co-ordination between hospitals and the Ambulance Service. 5 During the course of 2003 and 2004 the problem of access block within Hunter hospital emergency departments had escalated. In response, the Union, Ambulance Service and the then Hunter Area Health Service ('the Area Health Service') worked jointly to reduce the incidence and attendant problems associated with access block. Agreed protocols were subsequently established to manage this serious issue. 6 A paper based Destination Protocol matrix containing some eighteen clinical fields was introduced in the Hunter during 2004 to improve patient flow and reduce access block. The development and use of this system was strongly supported and endorsed at the time by the Union's Hunter Sub Branch. Members of the Union were closely involved in the drafting of this Protocol, including the rationale for deciding that it should contain 18 clinical fields. In the Union's view, this system provided ambulance officers with a degree of confidence that a patient "would be taken to the right hospital the first time." 7 The 18 field Hunter matrix identified the clinical capacity each hospital within the Area Health Service could provide for a range of common and acute conditions. 8 A 9 field Patient Allocation matrix was implemented by the Ambulance Service across its Sydney based network in June 2005. This initiative was accompanied by the installation of mobile data terminals in ambulance vehicles and the establishment of ambulance arrival and bed availability boards within hospital emergency departments. An abridged version of that system containing 11 clinical fields was later introduced in the Hunter in June 2006 and the Central Coast in December 2006. There was no paper based system in place similar to that previously adopted in the Hunter prior to the introduction of the Sydney matrix. 9 The evidence of the Ambulance Service describes the matrix in the following terms: an electronic system which aimed to distribute patients across the hospital network by allocating them to the most appropriate hospital on the basis of their clinical condition and acuity, estimated ambulance arrival time, the services available at each hospital and hospital thresholds. 10 More recently, the Ambulance Service has decided to implement a single State-wide integrated computer aided despatch system known as CADIUP - Computer Aided Despatch Infrastructure Upgrade Project. That system will embrace all emergency call taking and dispatch functions across New South Wales. 11 This matter has been subject to a strenuous and lengthy course of conciliation where the Union has argued vigorously that the 18 field paper based matrix provided superior patient allocation outcomes to the 11 field matrix currently in use. The Union believes 11 clinical fields provide insufficient information to ensure a patient is taken to the accident and emergency department most appropriate to that patient's condition. 12 Shortly stated, the Ambulance Service has relied upon the doctrine of managerial prerogative and in the absence of compelling reasons, contends the Commission should not intervene and direct the employer to conduct the trial sought by the Union using the previous 18 paper based fields. The 11 field matrix does not impose harsh, unreasonable nor oppressive constraints upon the work of ambulance officers. 13 The Union adopted the view that managerial prerogative was not absolute. The implementation of the 11 field system has directly affected the relationship between the Ambulance Service and the Union's members and the Commission should therefore intervene on the grounds of industrial justice. Moreover, the 11 field matrix was an inferior system and should not be allowed to stand under the protection of 'managerial prerogative'. The Commission should order the trial as sought be conducted. A comparative analysis of the two systems should be undertaken following the trial and the most effective model identified implemented on a permanent basis. 14 This matter was first subject to compulsory conference proceedings before his Honour, Deputy President Harrison on 28 April 2006. A further compulsory conference scheduled for 18 May was rescheduled to 2 June 2006 at the request of the Union. However, that conference was subsequently rescheduled for 19 June at the request of the Ambulance Service where his Honour made certain recommendations with a report back scheduled on 6 July 2006. 15 In the interim, the matter was reallocated to Patterson C for further compulsory conference proceedings in Sydney on 29 June 2006 following a request from the Ambulance Service for the matter to be re-listed urgently following the imposition of bans by the Union. 16 Following the scheduled proceedings before his Honour on 6 July, the matter was subsequently reallocated to the Commission as presently constituted on 7 September 2006. Compulsory conference proceedings continued on 7 and 25 September, 24 October and 22 November 2006, 19 January, 24 April and 11 May and 21 June 2007. A number of scheduled report back conferences were rescheduled at the request of the parties to facilitate further discussions. 17 Inspections related to this matter and a separate industrial dispute concerning the parties were undertaken at John Hunter and Maitland hospitals and various Inner Hunter Sector Ambulance Service facilities on 22 and 29 November 2006. Directions for arbitration were issued on 11 May 2007 with the view to the matter being heard on 18 and 19 September 2007. Those dates were vacated on 10 September at the request of the Ambulance Service with the consent of the Union. The hearing was rescheduled to commence on 11 December 2007. However, that hearing date was vacated at the request of the Union and the consent of the Ambulance Service. 18 The matter was ultimately set down for hearing on 12 February 2008. Mr J Murphy of counsel appeared for the Union. Mr A Morris, solicitor, appeared for the Director of Public Employment and the Ambulance Service of New South Wales. 19 The dispute was notified to the Industrial Registrar in the following terms: (i) The Ambulance Service has made significant changes to the Demand Protocol in regard to Access Block in the Hunter Sector, which involve the establishment of Fast Ambulance Release Teams, the use of Operational Road Staff to supervise patients in hospital emergency departments for extended periods, and attempted to introduce the Sydney Hospital Matrix into the Hunter. (ii) These changes are inconsistent with the Recommendation and Statement issued by his Honour Deputy President Harrison in IRC 3770 of 2004 on 11 July 2005. (iii) The Service has not consulted either HSU or its Hunter Sub branch in relation to these proposed changes, despite the requirement in his Honour's Recommendation to consult regarding changes, and for the parties to meet regularly. 20 On my analysis, the Statement and Recommendation of Harrison DP made on 11 July 2005 and referred to in paragraph (ii) of the dispute notification, appears to incorporate the express terms of the agreement reached by the parties and represents a detailed and comprehensive endorsement of the progress then made by the parties towards a reduction in access block and ambulance off load delay, following a series of cooperative and consultative discussions: This matter arose by notification pursuant to s 130 of Industrial Relations Act 1996 ("the Act") by the Health Services Union ("the union"). The notification advised of a dispute with the Ambulance Service of NSW concerning the application of an arrangement between the parties regarding protocols and procedures to deal with the circumstances of congestion and delay when a number of ambulances are delayed at a particular hospital emergency department, described as "access block" The matter was subject to a series of compulsory conference proceedings punctuated by discussions between the parties directed at finding a resolution to the serious problem of "access block", resulting in delay in discharge of patients from the ambulance to casualty with the obvious inconvenience to all, including a restriction on vehicles and personnel to respond to ongoing calls for assistance. The parties, with the assistance of the Hunter New England Area Health Service, have addressed the issues with appropriate diligence and a commendable spirit of co-operation. The results of their consultation are expressed in the following recommendation. 1. The Commission recommends by the consent of the parties that the ambulance off-load delay strategies agreed between NSW Ambulance Service management representatives and Health Services Union representatives be implemented. These are to be trialled over an initial 6-month period commencing on and from 8th July 2005 in the following agreed terms: (a) That the position of Ambulance Liaison Officer continues to remain in place to effectively manage future acute and unpredictable increases in ambulance off-load delay. (b) In accordance with agreed terms and conditions, the Service agrees that in addition to (a) above a management representative will be deployed immediately, whenever operationally possible, once notification has been received (from Hunter New England Area Health Service) at the Northern Operations Centre that the agreed Emergency Demand Protocol has been activated. (c) In accordance with agreed terms and conditions, if the Emergency Demand Protocol does not reduce the ambulance off-load delay for Ambulance then Hunter New England Area Health Service will provide nursing staff, whenever operationally possible to the effected emergency department to enable Ambulances to be released. Alternatively, Ambulance Officers on overtime may be deployed to this role. (d) In accordance with agreed terms and conditions, if the Emergency Demand Protocol continues not to be effective after implementing (a), (b) and (c) above then Ambulance management will escalate the ambulance off-load delay issue and immediately contact the Director Operations Acute Networks, Hunter New England Area Health Service. To support the above-agreed strategies the Northern Operations Centre (Ambulance) will continue to adhere to the following: (e) Adhere to the agreed Ambulance Destination Protocol "Right Patient, Right Hospital" and the Demand Protocol. (f) Main Objectives: In consultation with Hunter New England Area Health Service and the Health Services Union representatives continue to manage and review the impact of ambulance off-load delay through the challenging oncoming winter months. That consultation continue with the recently established Patient Flow Unit (Hunter/New England Health), the Hunter New England Area Health Service Liaison Committee and the Health Services Union in a committed attempt to produce further strategies to minimise ambulance off-load delay for Ambulances. That Ambulance management actively pursue the presentation of the "Hospital Matrix Application" to Hunter New England Area Health Service with a view of implementing the software tool to hospitals within the Hunter New England Area Health Service. (g) Review Process during the Trial Period: During the six-month period, the parties will consider the impact of ambulance off-load delay on an objective basis having regard to, but not limited to, the following: I. Unpredictable patient increases during winter; II. Response times; III. Compliance to F9 MDT statusing by ambulance crews (signalling their off stretcher time); IV. Competing operational requirements that may prevent management from attending emergency departments (ambulance off-load delay) - refer (b) above. (h) Parties to Meet Regularly : Service management representatives and the Health Services Union representatives will meet regularly to review on an objective basis the ambulance off-load delay impact to Ambulance Operations. Where a difficulty arises in relation to ambulance off-load delay and which cannot be resolved at a local level, via the established Hunter New England Area Health Service Liaison Committee the parties are at liberty to request the assistance of the Commission. (i) Consultation on Proposed Strategies/Changes : Should the Service propose during or following the six month review period, to vary the Ambulance Destination Protocol or Emergency Demand Management Protocol or the above listed and agreed strategies the Service will hold discussions with the Health Services Union regarding the feasibility of and reasons for the proposed change, any proposed strategies, and the duration of the further review with a view to reaching a consensus on ambulance off-load delay management. The Commission will be apprised of the outcome of these discussions and any difficulties that may arise. (j) No Industrial Action : There will be no bans, limitations or restrictions imposed by either party in relation to this matter during the six month period providing the demand management protocol is followed. (k) Referral to IRC : In the event that there are any outstanding unresolved issues between the parties following the continuance and implementation of the above strategies, the parties are at liberty to notify a dispute pursuant to the Industrial Relations Act 1996. (l) Mutual Protection : The respective rights of the parties are not prejudiced as a result of the implementation of the above strategies contained in this recommendation. Proceedings in matter no IRC 3770 of 2004 are so concluded. 21 The Union sought the following Orders: The Commission Orders the Director-General NSW Department of Health in respect of the NSW Health Services (Ambulance Division) and the Chief Executive of the Ambulance Service of New South Wales to vary the trial of the Demand Protocol Management System known as "the Matrix" implemented in the Hunter-New England area consistent with Deputy President Harrison's recommendation in IRC 3770 of 2004 delivered on 11 July 2005 in the following terms: 1. That a thorough analysis of that trial be conducted having particular regard to the impact of the trial having only 11 fields rather than the 18 fields in the previous system. 2. That a control trial be undertaken using the 18 fields that applied to the original system for a period of no less than six months. 3. That a thorough analysis be undertaken of the trial using 18 fields using the same criteria applied to the analysis of the original (11 field) trial. 4. That the most effective matrix model identified following the comparative analysis of the two trials be permanently implemented. Outline of Submissions The Union 22 During 2003 and 2004, the Ambulance Service in conjunction with the Union and the then Hunter Area Health Service engaged in a joint consultation process with the objective of developing protocols to manage the serious problem of access block within the Area Health Service's emergency departments. 23 The issue of access block was subject to compulsory conference proceedings before his Honour, Deputy President Harrison in the matter earlier referred to. His Honour's Recommendation of 11 July 2005 which reflected an agreement reached by the parties. At para 3(f) his Honour recommended: That Ambulance management actively pursue the presentation of 'Hospital Matrix Application' to Hunter New England Area Health Service with a view of implementing the software tool to hospitals within the Hunter New England Area Health Service. In addition, his Honour stated that in the event of any outstanding unresolved issues following the implementation of the range of strategies agreed upon, the parties were at liberty to notify a dispute pursuant to the Industrial Relations Act 1996. 24 The matrix that was subsequently developed and implemented by the parties was paper based and contained 18 clinical allocation fields to assist in the effective identification of suitable and available hospital destinations for patients. The Union contends that on 30 June 2006, the Ambulance Service unilaterally introduced a modified version of the matrix with a computer based 11 clinical field system on a trial basis. The Union further contends the Ambulance Service has consistently failed to consult in any meaningful manner in relation to the conduct of the trial or provide the data necessary to assist the Union assess the trial. Put simply, the Union asserts there was no consultation. 25 For its part, the Union has consistently expressed its concern that the revised 11 field matrix "does not allow for the proper capture of data because the non specific "other" field reflects approximately 53 per cent of all cases" when compared to the previous 18 field paper based system that it contends captured the majority of cases presented. 26 In the Union's view, the revised matrix does not allow ambulance officers to make a discretionary judgement related to the most appropriate patient destination, based on officers' clinical experience, skills and knowledge. The revised system effectively means that an ambulance officer may be directed to transport a particular patient to a location that the officer knows is unable to receive and does not have the capacity to treat that patient. Accordingly, the patient will require secondary transport to another hospital. 27 The Union further contends that the revised matrix has resulted in an increased number of patients being delivered to certain hospitals where the relevant "threshold" levels have not been adjusted to reflect the increased workload. Accordingly, the delay in offloading patients at those hospitals has caused a subsequent delay in emergency response times while ambulances are in access or hospital block and the Ambulance Service is required to utilise ambulances from more remote stations to meet demand. 28 In its view, the Union believes that the matters subject to this dispute notification are consistent with his Honour's recommendation concerning outstanding or unresolved issues between the parties "relating to the trial of the Matrix". The Respondent 29 The New South Wales Department of Health ('NSW Health') has in place review mechanisms through the Area Patient Flow Management Group to measure and improve the effectiveness of the matrix and the associated CAD system across New South Wales. The Ambulance Service contends that a separate system in the Hunter would be inefficient and significantly detract from the operational effectiveness of the proposed State-wide CAD system. 30 The Ambulance Service contends implementation of the matrix was contemplated by his Honour, Deputy President Harrison in his Recommendation of 11 July 2005 at paragraph 3(f) and 3(i): (f) ... ... That Ambulance Management actively pursue the presentation of the "Hospital Matrix Application" to Hunter New England Area Health Service with a view of implementing the software tool to hospitals within the Hunter New England Area health Service. (i) Consultation on Proposed Strategies/Changes : Should the Service propose during or following the six month review period, to vary the Ambulance Destination Protocol or Emergency Demand Management Protocol or the above listed and agreed strategies the Service will hold discussions with the Health Services Union regarding the feasibility of and reasons for the proposed change, any proposed strategies, and the duration of the further review with a view to reaching a consensus on ambulance offload delay management. The Commission will be apprised of the outcome of these discussions and any difficulties that may arise. 31 It was the Ambulance Service's contention that it had extensively consulted with the Union in the development and implementation of the matrix as demonstrated by material tendered in these proceedings and the comprehensive information provided to the Union, including data and analysis research prepared by independent consultants and set out in MFI '18'. 32 The Ambulance Service refutes the Union's assertion that it "consistently failed to consult in any meaningful manner, with the Union in relation to the conduct of the trial, or to provide requested data to assess the trial." 33 The Ambulance Service believes the implementation of the matrix in its present form has delivered demonstrated and quantifiable operational improvements and support for that contention has been provided to the Union and the Commission in the submitted material. Further, implementation of the matrix has also provided ambulance officers with additional information to make discretionary judgements relating to appropriate patient destinations. 34 The Ambulance Service strongly contends that the variations to the matrix sought by the Union in the proposed draft orders would provide no additional benefit to the delivery of service or system functionality. Rather, the Union's proposal would create additional cost and complexity, particularly in relation to the proposed introduction of a State-wide CAD system. It would also interfere with the operation of the NSW Health Area Patient Flow Management Group. Moreover, the current matrix allocation categories are supported by the analysis of independent consultants and the Area Patient Flow Management Group. 35 The Commission should not grant orders sought consistent with the established general principle that it should not intervene in the employer's operation and the management of its business unless it involves the imposition of unfair or unreasonable demands on employees, or where health and safety issues are involved. EVIDENCE For the Union 36 Mr Al Qvist deposed he was presently an Ambulance Officer Paramedic and had been employed by the Ambulance Service for approximately 20 years. He had also been a member of the committee of the Union's Inner Hunter Ambulance Officers' Sub Branch for approximately 6 years and had held the position of Sub Branch Secretary for a period of two years. 37 Mr Qvist stated that since July 2002, he had been involved in issues relating to what is commonly called "hospital block" or "access block", which revolve around the offloading of patients at emergency departments and placing those patients into the care and treatment of hospital staff. 38 Mr Qvist stated that in response to a number of complaints from Union members concerning off stretcher delays at Hunter Hospitals, he designed a data sheet during October 2002 in an attempt to capture information relative to those delays. During the course of 2002, delays in hospitals were extensive and had received considerable media attention. He also recalled that industrial action was taken in an attempt to pressure both the Ambulance Service and the then Hunter Area Health Service to discuss the problems related to access block. 39 Mr Qvist deposed that despite a number of meetings between the Area Health and the Ambulance Services at the time concerning problems related to access block, little progress had been made. Accordingly, the matter was referred to the Commission where it was subsequently determined that the parties should meet to discuss and identify the key issues in relation to access block and design new strategies to reduce the off stretcher delays. He said the major objective was to address and maintain a "turn around" time of 30 minutes. 40 Mr Qvist deposed that the first meeting called to discuss access block was conducted on 3 March 2003 and chaired by Professor McGrath, the then Chief Executive Officer of the Area Health Service. Subsequent meetings were held weekly by what became the Ambulance and Hunter Health Emergency Department Liaison Group and later renamed the Hunter Area Health Service Ambulance Liaison Committee. It was Mr Qvist's evidence that the Liaison Group and Liaison Committee had identified a number of problems, including the process to manage off stretcher delays, inappropriate destination delivery of patients, ambulance batching, the mass presentation of ambulances to hospital emergency departments within a short time frame and the lack of communication between the Northern Operations Centre and the respective hospital emergency departments. As a result of those meetings, an Emergency Demand Management Protocol was designed, developed and implemented. 41 The Emergency Demand Management Protocol was the template that both Ambulance Service and Area Health Service staff used to manage off stretcher delays during access block. Further, it was envisaged at the time that the Protocol would be regularly reviewed to ensure the processes were efficient and they continued to manage and achieve a 30 minute ambulance turn around time. Mr Qvist deposed the Protocol was ultimately amended in early 2007 and became known as the 'Sustainable Access Guidelines'. A copy of those Guidelines dated 18 January 2007 was attached to his affidavit. 42 It was Mr Qvist's evidence that during 2003 the Liaison Group had identified the need for a new Ambulance Destination Protocol on the grounds that there was much confusion between Area Health Service and Ambulance Service staff concerning the appropriate destination of patients and further, it was his view that the existing Protocol was both confusing and not well known by staff. Accordingly, the then existing Destination Protocol was redesigned and set out as a multi coloured algorithm text box flow chart. The primary focus of the reviewed Protocol was "to ensure that the patient went to the right hospital the first time". A number of documents setting out some of the history related to the development of the Protocol between September 2002 and May 2006 were attached to his affidavit. 43 Mr Qvist deposed that he was involved in the design of both Protocols and later became "the keeper of those documents". He was also responsible for their distribution and documented amendments from time to time. He would periodically contact the appropriate personnel by email seeking feedback on various aspects of the Protocol. 44 In Mr Qvist's opinion, compliance with both the Emergency Demand Management Protocol and the Ambulance Destination Protocol were necessary to ensure a turn around time of 30 minutes. In that regard, Mr Qvist alleged that from time to time the Northern Operations Centre and some assistant Operations Managers were not diligent in adhering to the implementation of the Protocol. It was his view that the Protocols required constant diligence and monitoring to effectively reduce access block and off stretcher delays. Mr Qvist stated that the Ambulance Liaison Committee had identified a need for an education package to support the Emergency Demand Management and Ambulance Destination Protocols and in that regard he both designed and wrote guideline booklets for both Protocols. Copies of those materials were attached to his affidavit. 45 Following a workplace injury in 2003, Mr Qvist deposed he was placed into the newly created Ambulance Liaison Officer position as part of his return to work programme. The primary function of that position involved communication between the Area Health and the Ambulance Services on issues related to access block. The placement was subsequently extended beyond the initial three month trial. 46 Mr Qvist deposed that in October 2003 he was pressured by a senior manager to resign the Liaison Officer position so as to allow those restricted duties to be provided to another officer. He also contended the Area Health Service had come to rely upon the Liaison Officer role to resolve immediate issues when dealing with the Newcastle Operations Centre, particularly with respect to ambulance batching and the movement of patients to allow new admissions to the emergency department. Mr Qvist stated that he subsequently resumed the Liaison Officer function voluntarily, in his own time. 47 Mr Qvist stated that in March 2004 he was excluded from all involvement in the Liaison Officer position and participation within the Liaison Committee and the matrix project, at the direction from Mr Alan Loudfoot, Divisional Manager of the Ambulance Service's Northern Region. However, he was reappointed in July 2004 for a further 12 month trial period where he continued to develop the Emergency Demand and Ambulance Destination Protocols. At the conclusion of the trial period he continued his involvement with the Liaison Committee and the development of the Destination Protocol as a representative of the Union. 48 It was Mr Qvist's evidence that the implementation of the Emergency Demand Management and Ambulance Destination Protocols had led to a reduction in the duration of off-stretcher delays and subsequently attracted interest from both Sydney and Wollongong. 49 Mr Qvist deposed that in July 2005 he attended a meeting concerning the matrix in Sydney where 9 category fields were proposed compared to the 18 fields that then existed under the Inner Hunter Ambulance Destination Protocol. Shortly thereafter, meetings were convened between the Ambulance Service, the Area Health Service and the Union concerning the proposed implementation of the matrix in the Hunter accompanied by appropriate software upgrades. He said at the time he was made aware that the matrix could be expanded from the then-existing 9 fields in Sydney to accommodate the 18 fields in use within the Hunter. 50 On 9 May 2006 he attended a Matrix Migration Embedding briefing at West Leagues Club in Newcastle where it was explained that an 11 field matrix would be introduced in the Hunter. Mr Qvist further deposed that in his view the matrix proposed did not suit the needs of the Hunter. Meeting notes outlining Mr Qvist's views concerning the presentation were attached to his affidavit. Following that briefing, he proceeded to redesign the existing Inner Hunter Ambulance Destination Protocol so that it was compatible with the electronic format of the matrix. 51 In June 2006 the Sub Branch sought to become involved in the matrix design implementation. The Ambulance Service initially refused the Sub Branch request. However, following industrial agitation and with the assistance of the Commission, the Union became involved in the Hunter Matrix Working Party where Mr Qvist represented the Sub Branch. On 5 September 2006 he attended a workshop concerning the matrix, convened in response to concerns raised by the Area Health Service. Notes concerning that meeting were also attached to his affidavit. To date, the Ambulance Service have failed to respond to those matters. 52 Mr Qvist stated that whilst the Matrix Working Party was proceeding with its deliberations, the Ambulance Service had commenced a roll out of matrix training. The Ambulance Service had not responded adequately to the 18 points of concern raised by the Union concerning aspects of the proposed matrix. 53 Mr Qvist deposed that during the Working Party's deliberations, he developed a guideline booklet for the 18 field version of the matrix that was subsequently sent to Sydney for comment and feedback. However, it was his opinion that the involvement of the Ambulance Service in the Matrix Working Party was "purely a display of false cooperation on behalf of the ASNSW and any outcomes that could have been achieved were never properly considered". 54 Mr Qvist said that when the Matrix Working Party had completed its deliberations in July 2006 the matrix was already operationally active in the Hunter. He observed that following the introduction of the matrix, there was no forum to discuss any problems associated with it and his efforts to have such matters raised before the Liaison Committee had been ignored. 55 Mr Qvist deposed that a fundamental problem with the matrix concerned its geolocating software which had caused problems in relation to access block. He said that at the time the Mater Hospital was constantly being swamped with "other category patients" because the software identified the Mater as being approximately 800 metres closer to the east than the John Hunter Hospital. At the time, the problem had caused the Mater Hospital's threshold level to be "constantly over" during the first fifteen minutes of the hour. As a result, the Mater Hospital had its threshold level reduced. 56 It was Mr Qvist's evidence that the matrix was initially implemented as a trial and was to be subsequently reviewed. He said that following the trial period, external consultants engaged by the Ambulance Service and NSW Health, Operational Research in Health (OHR), had provided a Report to the Ambulance Service. He contended the Report contained "false information and had incorrectly drawn a number of conclusions". 57 Following receipt of the Report, the Sub Branch's request for a trial of an 18 field matrix was rejected. A request for a further trial of the matrix data was also rejected. However, the Ambulance Service subsequently agreed to supply patient data for the month of November 2006. That data and the results of a review undertaken by Mr Qvist were also attached to his affidavit. Following the review, Mr Qvist concluded that the matrix fields should contain the same clinical fields as set out in the Patient Health Care Record. Mr Qvist stated his conclusions were also supported by New South Wales Health Sustainable Access Program brochures and contended a broader matrix would enable a Nurse Unit Manager to better establish the type of patient being transported to the relevant hospital. 58 Mr Qvist stated that in his opinion an 18 field matrix would provide for a better transport decision to be made. It would also provide for more effective monitoring of patient flow and, where necessary, the manual re-distribution of patients to other appropriate hospitals which would reduce pressure on access block. In his view, the present matrix provides inadequate clinical information and is very restrictive in its application. 59 Mr Qvist contended the Sydney matrix worked well because of the number of hospitals within the respective Area Health Services and the fact that the geolocating software allowed ambulances to cross Area Health Service borders and boundaries. However in the Hunter there is a single major trauma hospital and a number of small satellite hospitals. In his view, the small hospitals were unable to deal with some of the clinical specialties that specific patients required. In addition, a matrix with increased clinical fields could be used in the future to monitor community pandemics where, for example, a field for respiratory problems could trigger the early warning of an outbreak of influenza. 60 In response to examination by Mr Murphy, Mr Qvist confirmed that part of the Union's complaint in relation to the 11 field matrix was the fact that approximately 60 per cent of patient transports fell into the "other category" which had a dramatic impact on a hospital emergency department, particularly where there had been an influx of patients by self or ambulance presentation. 61 Mr Qvist contended that in the case of a cardiac patient, a Nurse Unit Manager had the capacity to consult the ambulance status board in the emergency department and subsequently organise a cardiac monitoring bed for that patient. However, where the Nurse Unit Manager is confronted with the "other category", no details as to the patient's condition are known or set out on the status board. He elaborated that the "other" category could include respiratory and gastro patients, a patient with an altered level of consciousness or one requiring dialysis. In his view, the "unknown factor" under the matrix put great pressure on the emergency department to resource beds because they are "basically unaware of what's coming in". Further, there are some 64 per cent of patient transports where hospitals have no idea of the patient's condition and cannot plan for that admission efficiently. According to Mr Qvist, it is this "unknown factor" that impacts adversely upon patient flow and their effective treatment within the emergency department due to access block. 62 Mr Qvist explained it was quite daunting during periods of access block for patients, particularly the elderly or intoxicated, to be asked personal questions whilst under care in the ambulance bay area prior to their admission. 63 Mr Qvist said that where a child is admitted to a hospital under the paediatrics field, there was no way to distinguish whether the child had a broken bone or whether the child was postictal following an epileptic seizure. Simply put, the paediatrics field does not tell the emergency department what is wrong with the child. Despite paediatrics at the John Hunter Hospital having its own separate bed status, the fact remains that a paediatric admission forms part of the John Hunter threshold of seven ambulances per hour and when the threshold level for the hospital has reached seven, the matrix would direct a paediatric patient to either Wyong or Maitland hospital. To underpin this point, Mr Qvist said that a child with a cut finger who resided on the southern side of Charlestown would be directed to go to Wyong Hospital in the event that John Hunter Hospital had reached its threshold level. In such cases and in response to parental concern, it is commonplace for the ambulance officer to manually override the software so as to present the patient at the John Hunter Hospital where it might be found that a number paediatric beds not reflected in the matrix were empty. 64 Mr Murphy referred Mr Qvist to his written evidence where he had made a number of comments concerning the ORH Consultancy firm. It was Mr Qvist's evidence that the model used by ORH to create the 11 field matrix and establish hospital threshold levels did not take into account specific factors such as the availability of the rescue helicopter, which drew a large number of trauma and medical patients to the John Hunter from the Upper North Coast, Central Coast and Hunter Valley. In that regard, he said the helicopter was capable of transporting up to four trauma patients from a serious motor vehicle accident and in the event the helicopter brought four patients to the John Hunter, the threshold at the hospital for the next two hours would be three ambulances. These factors were not incorporated into the matrix by ORH. Mr Qvist confirmed that matters related to the helicopter were subsequently rectified. However, the Union's concerns regarding the re-admission of recently discharged patients for "warranty work" had not been addressed. Mr Qvist noted that this problem had been addressed in the original 18 field paper version of the matrix. He contended the implementation of the 11 field matrix had taken the hospital system back to a pre-18 field paper destination protocol where the John Hunter Hospital was "a beacon" and as such it becomes difficult to redistribute patients to other facilities so as to even out the workload and reduce the impact of access block. 65 In cross examination, Mr Qvist confirmed that his interest in Destination Protocol and Emergency Demand Protocol issues commenced in approximately 2002. He also confirmed that he had been active in the deliberations concerning the Protocols within the Hunter sector. He said that in or about 2003, the Ambulance Liaison Committee was established and that Committee comprised representatives of the Area Health Service, initially the John Hunter Hospital and later the Mater, Belmont and Maitland Hospitals. The Committee also comprised representation from the Ambulance Service and the Union. 66 Mr Qvist said he had been a member of the Liaison Committee for much of the time since its inception in 2003 and as part of his contribution to that Committee he undertook significant work on the development of the Protocols and was able to inject various experiences of ambulance officers and emergency department staff into the Committee's deliberations. 67 With respect to the Matrix Working Party established by Mr McPherson on behalf of the Ambulance Service in or about May 2006, Mr Qvist confirmed he was a member of that group, which had met on a number of occasions between May and June 2005. Whilst he described the Working Party as being "very one sided", he agreed Mr McPherson had explained that the purpose of the Working Party was to establish consultation about the introduction of the matrix package in the Inner Hunter Sector. However, he reiterated his disappointment that the Ambulance Service had ignored some 22 issues identified by the Union and subsequently raised in proceedings before the Industrial Relations Commission. 68 Mr Qvist said that on occasions, Mr Peter Rumble, a Committee member of the Sub Branch who "was knowledgeable" of access block issues and destination protocols, had attended Working Party meetings on his behalf. With respect to the 22 issues identified by the Union and put before the Matrix Working Party, Mr Qvist said that despite the opinion or pressure of the Ambulance Service, he was not deterred from articulating the Union's position. Mr Qvist confirmed that he had been afforded the opportunity to put a case in favour of an 18 clinical field matrix during deliberations of the Ambulance Liaison Committee. For the respondent 69 Ms Jennifer Van Cleef deposed she had been employed by the Ambulance Service since 1997 in a range of capacities including Ambulance Officer, acting Station Officer, Operations Centre Officer, Senior Operations Centre Officer and Director Clinical Services Redesign, following a career in nursing. She was appointed Manager, Sustainable Access and Patient Flow in October 2004 and was currently responsible for managing issues related to offload delay in the Sydney Division. Ms Van Cleef also plays a Sector mentoring role concerning offload delay and was responsible for overseeing the implementation of the matrix system in the Sydney, Inner Hunter and Central Coast Sectors. 70 Ms Van Cleef deposed the idea of the matrix arose in or about December 2004 following a severe winter which had prompted a multiplicity of demand management issues in response to increased offload delay. Accordingly, senior members of the Ambulance Service, including Mr Greg Rochford, Chief Executive Officer and herself subsequently met with representatives of NSW Health, including Professor McGrath, now Deputy Director General and Dr Tony O'Connell, Director Health Systems Performance Improvement on a number of occasions to discuss offload delay. Both she and Mr Rochford had also briefed the Minister for Health. 71 Between 2004 and 2005, the various Sydney Metropolitan Area Health Services, the Ambulance Service and NSW Health worked jointly to create the matrix which Ms Van Cleef described as "an electronic system which aimed to distribute patients across the hospital network by allocating them to the most appropriate hospital on the basis of their clinical condition and acuity, estimated ambulance arrival time, the services available at each hospital and hospital thresholds". The matrix lists clinical fields and identifies those clinical conditions that can be treated at each hospital. The matrix is integrated with the Ambulance Service's CAD system and accessed via Mobile Data Terminals installed in each ambulance vehicle. She explained that a hospital threshold represents the number of patients the hospital is expected to be able to deal with in an hour. 72 Ms Van Cleef identified the principal objective of the matrix and the wider strategic project undertaken at this time by the Ambulance Service and NSW Health was to: Ensure that the right patient was delivered to the correct hospital the first time; Decrease ambulance waiting time in Emergency Departments (off-stretcher time); Reduce the turnaround time for ambulances at hospitals so that they would be available to attend to other calls; Build capacity by improved demand management within the Ambulance Service and NSW Health through an automated system interface to hospitals through the Ambulance Status Board, a web based system that allows emergency departments to receive real time information about the number of ambulances expected to arrive at the hospital at a particular time and their condition. 73 Ms Van Cleef deposed two Sydney based Ambulance Liaison Officers had met with representatives from the Inner Hunter Sector in early 2005 to discuss the Ambulance Destination Protocol, an Inner Hunter paper based system that had been implemented to deal with the issue of offload delay. The Sydney matrix design included some of the features of that Protocol. However, the Ambulance Service and NSW Health subsequently engaged external consultants, ORH, to conduct an analysis of how the matrix would initially operate across the Sydney Division. The matrix was formally implemented in Sydney on 9 June 2005. 74 In or about December 2005, Mr Terry Clout, the then Chief Executive of the Area Health Service expressed an interest in implementing the matrix within the Inner Hunter Sector. Ms Van Cleef deposed Mr Clout subsequently met with Mr Loudfoot, Mr Rochford, Dr Nigel Lyons, Director, Clinical Operations and herself where the Ambulance Service was asked to develop and implement the matrix for the Inner Hunter Sector. With the assistance of ORH, the parties undertook a modelling process where appropriate thresholds for hospitals in the Inner Hunter Sector and expected improvements in patient flow were identified. As part of the modelling process, Ms Van Cleef deposed she conducted a review of approximately 10,000 Patient Health Care Records to determine, based on the protocols used to treat patients, the appropriate clinical field that each patient would fall into. 75 In or about September 2006 the Northern Sydney Central Coast Area Health Service also expressed interest in implementing the matrix and the Ambulance Service subsequently developed a matrix for the Central Coast. 76 Ms Van Cleef deposed she provided a mentoring role during implementation in the Inner Hunter and Central Coast Sectors, which included providing Mr McPherson with guidance and assisting with the presentation of explanatory briefing sessions for Ambulance Officers, Union representatives, frontline managers and hospital staff. The matrix was implemented in the Inner Hunter on 30 June 2006 and the Central Coast on 11 December 2006. 77 Ms Van Cleef deposed that NSW Health, in consultation with the Area Health Service, had determined the matrix for the Inner Hunter Sector would include 11 clinical fields as there was no need to include a field for clinical conditions that represented less than one per cent of ambulance patient conditions: ... a fundamental reason why a clinical condition was included as a field in the Matrix ... (was) to differentiate between the available inpatient services at each hospital. This means that there is no need to include a field for conditions that can be treated at all hospitals in the Matrix. 78 It was also Ms Van Cleef's evidence that the Area Health and Ambulance Services had determined a primary goal in designing the matrix was to make the system safe and simple for all Ambulance Officers to use. Accordingly, additional fields would introduce further and unnecessary complexity. 79 Ms Van Cleef deposed the difference between the two systems was that "orthopaedics" within the Inner Hunter and the Central Coast Sectors had been split between complicated and simple orthopaedics and "trauma" between minor and major trauma. The inclusion of minor trauma and simple orthopaedics categories meant that some of the more simple procedures could be directed to smaller hospitals which in turn reduces patient load at the major hospitals. 80 Ms Van Cleef deposed that on 8 June 2006 she and Mr Daniel Comerford, Senior Manager, Health Performance Improvement Branch, NSW Health, attended a meeting of the Inner Hunter Sector Matrix Working Party where the following matters were articulated: The aim of implementing the Matrix was to fix the problem of access block and increase the patient experience from start to finish; Following the implementation of the Matrix in Sydney the sustainable access report showed a 20% decrease in access block; The 11 Matrix categories were determined by the Area Health Service in consultation with NSW Health and the Ambulance Service. The services that the listed hospitals provide was determined by the Area Health Service; The thresholds for Matrix hospitals were based on an external review of what the hospitals could accommodate and endorsed by the Area Health Service Executive; Ambulance officers can override the Matrix's allocation in particular circumstances. 81 Following implementation in the Inner Hunter Sector, ORH conducted a thorough review of the operation of the matrix based on data collected over the period 8 July to 18 August 2006. Ms Van Cleef deposed the ORH report was published on 12 October 2006. In particular, the results of the review showed: The average "off stretcher" time had decreased by 2.4 minutes across all hospitals; The number of patients taken to the nearest appropriate hospital increased from 63.1% prior to the implementation of the matrix to 74.1% afterwards; The number of patients taken to an appropriate hospital but not the nearest hospital decreased from 30.2% prior to implementation of the Matrix to 24.6% post implementation; The number of patients taken to an inappropriate hospital decreased from 6.7% prior to implementation of the Matrix to 1.3% post implementation. According to Ms Van Cleef, these results illustrate the 11 field matrix was more effective in ensuring patients were taken to the nearest appropriate hospital than the previous 18 field Protocol. 82 In a further report published on 10 April 2007, ORH found that within the Inner Hunter Sector: The average "off stretcher" time was 22 minutes, with a total time at hospital averaging 25.5 minutes; 72.5% of patients were taken to the nearest and appropriate hospital; 26.2% of patients were taken to an appropriate but not the nearest hospital; 1.3% of patients were not taken to an appropriate hospital. 83 Ms Van Cleef stated the matrix was subject to continuous monitor and review by NSW Health and the respective Area Health and Ambulance Services. The Area Patient Flow Logistics Group chaired by Mr Mark Britt, Senior Manager, Health Systems Performance Improvement Branch, was the governance body responsible for deciding on changes to the matrix. The Logistics Group was comprised of representatives from NSW Health, Sydney West, Sydney South West, North Sydney Central Coast, South Eastern and Illawarra and Hunter New England Area Health Services, the New Children's Hospital at Westmead and the Ambulance Service. The Logistics Group meets regularly and convenes weekly teleconferences to discuss issues of concern to the Area Health and Ambulance Services and NSW Health, including the operation of the matrix. The Logistics Group also conducts a bi-annual review of the matrix, based on both qualitative and quantitative data collected monthly from the CAD system. In her view, Ms Van Cleef said it was fundamental that any variation to the matrix required the agreement of NSW Health and the various Area Health and Ambulance Services. 84 Ms Van Cleef explained the Ambulance Service was currently divided into four geographic Divisions, each containing an Operations Centre and a dedicated CAD server. Both the Inner Hunter and Central Coast Sectors operate from the Northern Division CAD server and accordingly the matrix fields within both must be the same. Moreover, with four separate CAD servers in operation, it was very difficult for another Operations Centre to take over in the event of system failure. Against that backdrop, the Ambulance Service was moving to introduce an integrated State-wide computer system known as CADIUP to improve operational efficiency and provide redundancy capability in the event of system failure. When implemented, CADIUP would operate from a single CAD server and all Sectors would need to use the same matrix. 85 Ms Van Cleef made the following comments in relation to the Union's case outline filed in these proceedings: a) The matrix was developed by the Ambulance Service and NSW Health through a consultation process at a senior management level and was never intended to be implemented on a trial basis. b) The purpose of the matrix was to ensure patients were delivered to the most appropriate hospital. Clinical conditions that fell within the "other" field either represent conditions that can be treated at all hospitals or those experienced by less than one per cent of patients transported to hospital by ambulance. Having more information about the clinical condition of patients within the "other" field would not change the choice of hospital patients were ultimately taken to and would therefore not improve patient services. Hospitals were able to obtain additional data about patient conditions from their own emergency department systems and from the Patient Health Care Records. There was no need for the matrix to provide a higher level of detail about the condition of patients that fell within the "other" field. c) She was unaware of any increase in the number of secondary transports following the introduction of the matrix. The Area Health Service determined the range of clinical conditions each hospital in the matrix was able to effectively treat. If there was any change in the ability of a hospital to treat a particular condition, those changes would need to be made through the Area Patient Flow Logistics Group at the initiative of NSW Health, not at the discretion of individual Ambulance Officers. Moreover, as the objective of the matrix was to take the patient to the correct hospital the first time and reduce the incidence of secondary transports, there was no reason why the current matrix would result in increased secondary transports. In any event, it was difficult to report the incidence of secondary transports as 70 per cent of ambulance work comes from "000" calls where no patient name is recorded and therefore the Ambulance Service cannot determine if patients are subsequently moved to a different hospital. Nevertheless, the Ambulance Service has determined that the number of Priority 3 patients (i.e. patients transported from home to a hospital or from one hospital to another) did not change as a result of the implementation of the matrix. Rather, it has decreased in the Inner Hunter. d) In determining the appropriate hospital thresholds, ORH adopted its initial modelling prediction that the introduction of the matrix would result in an increased workload for some hospitals. NSW Health has not increased threshold levels because it considers current compliance is satisfactory. The Area Patient Flow Logistics Group continues to monitor hospital thresholds. Despite the increases in patient demand across the NSW Health system, there was no evidence that the matrix itself had caused increased occasions of delay or "hospital block" since its implementation. 86 Ms Van Cleef provided the following written evidence in relation to the witness statement of Mr Qvist filed in these proceedings: a) With respect to alleged problems associated with the geolocating software, Mr Qvist appears to have assumed that every ambulance departs from the same point when transporting a patient to hospital. This was clearly not the case. When an ambulance attends to a patient, the matrix determines the most appropriate hospital for the patient to be taken to based on the patient's condition, hospital thresholds and the geographic location of the ambulance at the time of departure. The matrix uses routable street data to determine the closest hospital rather than directly measuring distance "as the crow flies". b) The matrix was not implemented as a trial. After its implementation, the matrix was initially reviewed by ORH and their findings were published on 12 October 2006. It is now reviewed bi-annually by the Area Patient Flow Logistics Group. c) Notwithstanding the position of Mr Qvist that matrix fields should reflect the same clinical fields as the Patient Health Care Records, Ms Van Cleef deposed that all changes to the matrix must also be agreed upon by NSW Health, the respective Area Health Services and the Ambulance Service through the Area Patient Flow Logistics Group. d) With respect to Mr Qvist's contention that the Sydney matrix model works well where "there is a number of hospitals that the geolocating software can allow ambulances to cross border boundaries," Ms Van Cleef said the matrix allowed ambulances to cross boundaries between the Inner Hunter Sector and the Central Coast Sector and it was therefore important the same matrix was used in both Sectors. e) Contrary to Mr Qvist's contention that a matrix with increased clinical fields could assist in the management of pandemics in the community, Ms Van Cleef stated that in the event of a major disease outbreak, the matrix would not be the appropriate system to monitor such events as major incidents were managed through the Health Service's Functional Area Coordinator Network. 87 In response to the orders proposed by the HSU, Ms Van Cleef deposed the case against undertaking a trial using 18 fields should take account of the following considerations: a) The trial would require the overarching approval of NSW Health and significant consultation across the Area Health Service, the North Sydney Central Coast Area Health Service and the Ambulance Service through the Area Patient Flow Logistics Group. b) A trial would have to take place in the Central Coast Sector as well as the Inner Hunter Sector by virtue of the fact that the two Sectors operate from the same CAD server. c) A trial would necessitate reprogramming of the MTDs and the interface between CAD and the MDTs and the Matrix software would also need to be reconfigured. d) A trial Matrix with 18 fields would need to be extensively tested prior to implementation. e) Ambulance Officers and Hospital staff would have to be re-educated in the use of the "trial" Matrix system. f) As a consequence of the trial, the Area Health Services, the Ambulance Service and NSW Health would have to accept changes to the reports generated by the Matrix. g) Due to the introduction of CADIUP, it is not possible nor is it feasible for the Inner Hunter Sector to operate with a different number of fields to the Sydney Sector. h) A trial would add a layer of complexity and complication to the Matrix and detract from the simplicity and safety of the system. Moreover, there would be no benefit to patients in trialling or implementing a Matrix with 18 fields. 88 In further evidence, Ms Van Cleef confirmed that between 2004 and 2005 the Ambulance Service, together with NSW Health and the Sydney Metropolitan Area Health Services, had worked together to create the Sydney matrix. She also confirmed that NSW Health together with the Ambulance Service and the respective Area Health Services continually monitor and review the matrix through the Area Patient Flow Logistics Group. 89 In cross examination, Ms Van Cleef said that work commenced on the development of the Sydney matrix "from scratch" and there was no system in operation in the Sydney area similar to that which was operating in the Hunter. She agreed that the underlying purpose of the 9 field Sydney Matrix was to acquire information as to the condition of the patient for two primary purposes: to ensure that the patient was delivered to the most appropriate facility the first time and to allow the hospital or facility to have some advance notice as to the condition of the patient before arrival. She generally agreed with the proposition advanced by Mr Murphy that information concerning a patient's condition provided by ambulance officers to the receiving hospital was beneficial. Ms Van Cleef also agreed that the management of the Ambulance Service in the Hunter thought that the 18 field paper based matrix provided appropriate information to ensure patients were delivered to the most appropriate facility the first time and further to provide that facility with advance notice of the patient's condition prior to arrival. 90 Ms Van Cleef disagreed with the proposition that an 18 field matrix system was more likely to give a better outcome than a system with less fields, such as the 11 that currently operate in the Hunter, particularly on the grounds that the matrix needs to be safe and simple for ambulance officers to use. In her view, the current Hunter 11 field matrix and the current Sydney 9 field matrix underpin the level of safety and simplicity required. 91 In response to the proposition that under the 11 field matrix approximately 60 per cent of patient transports fell into the "other" category, Ms Van Cleef denied this was an unsatisfactory outcome because the clinical allocations that fall under the "other" category can be managed by all hospitals. Accordingly, it was Ms Van Cleef's view that this position was of no consequence to the receiving hospital because it was capable of dealing with that particular clinical condition. 92 Ms Van Cleef agreed that a great diversity of conditions could fall within the "other" field and particularly in the case of paediatrics, where an ambulance could present a child with a severely broken limb or one with simply a cut finger. She agreed that both conditions fell under the paediatric field and little information was given to the receiving hospital about the condition of the paediatric patient, other than that the patient was a child. She disagreed with the proposition that a matrix system which identified a paediatric orthopaedic condition, as opposed to a paediatric minor medical condition, was a better system than simply placing all children into a single field category, irrespective of their condition, injury or ailment, on the grounds that the system in use needs to be safe and simple for ambulance officers to use. 93 In defence of the 11 field matrix, Ms Van Cleef said that some six weeks after implementation of the new matrix, the percentage of patients taken to the nearest hospital had increased from 63.1 per cent under the 18 field paper based matrix to 74.1 per cent under the new 11 field matrix. She said those figures were prepared by ORH from patient health care record data and the results had been validated by the Hunter Management Team and herself. 94 Ms Van Cleef denied that a "one size fits all" approach had been adopted in both Sydney and the Hunter. In that regard, she stated that the Sydney matrix had different categories and the Hunter's 11 fields were based on what the Department of Health and the Hunter New England Area Health Service believed were appropriate, given the various clinical services provided by the Region's hospitals. 95 Ms Van Cleef confirmed that upon the introduction of the CADIUP system, there would need to be a uniform matrix system in operation across the State including across the Sydney, Hunter and Central Coast Sectors. Ms Van Cleef also confirmed that the precise number of fields to operate under the CADIUP system would be determined by the State-wide Area Patient Flow Management Group chaired by NSW Health. 96 Ms Van Cleef said that she had been on parental leave for some time and was unaware whether a decision had been made to increase the number of Sydney fields to 11 or decrease the number of fields in the Hunter and Central Coast to the 9 that currently apply in Sydney. 97 Mr Stephen Alfred McPherson deposed he joined the Ambulance Service in January 1973 and his current position was Operations Manager, Hunter Sector. He has been employed in a range of superintendent and area management positions since 1984. 98 Between April and July 2006, Mr McPherson was the Project Manager for the implementation of the 11 field matrix system in the Hunter Sector. 99 As Operations Manager, Mr McPherson deposed he was responsible for the provision of leadership and direction of all Sector staff concerning all aspects of ambulance operations. In addition to responsibility for financial and operational management, he was also responsible for identifying opportunities to improve business performance and service delivery outcomes. The imperative to ensure patient care services within the Hunter Sector were consistent with Ambulance Service policies and procedures, together with compliance with relevant legislation, industrial awards and professional standards, were part of his role. 100 During 2002 the Ambulance Service became aware of a problem in the Hunter Sector whereby ambulances were experiencing delays in offloading patients at hospitals. The problem, previously known as "access block" or "hospital block" was now referred to as "offload delay". The issue of offload delay was a problem in Sydney and elsewhere 101 The Ambulance Service subsequently convened a number of discussions with the then Hunter Area Health Service and in or about March 2003 a committee known as the Ambulance and Hunter Health Emergency Department Liaison Group was formed to consider offload delay and possible solutions to reduce its incidence. This Committee was later renamed the Ambulance Liaison Committee and comprised representatives from the Area Health Service, Ambulance Service management and the Union. 102 Mr McPherson deposed that during 2003 and 2004 the Liaison Committee met regularly and those consultations led to the establishment of the Ambulance Destination Protocol and the Emergency Demand Management Protocol. He stated that the Ambulance Destination Protocol "was a document which dictated which hospital patients with particular conditions should be taken to", whereas the Emergency Demand Management Protocol "was a document which set out a step by step process involving both the Area Health and Ambulance Service management in managing incidences of offload delay". 103 According to Mr McPherson's written evidence, the Ambulance Destination Protocol was always regarded "as a dynamic document" by the Ambulance Service and the Liaison Committee and between 2002 and 2004 approximately 12 different versions were developed and implemented. During 2003 and 2004, Mr Qvist was acting Ambulance Liaison Officer. He was also an active member of the Liaison Committee and on occasions was responsible for the drafting, printing and distribution of amendments to the various Protocols. 104 Mr McPherson deposed the Ambulance Destination and Emergency Demand Management Protocols had significantly improved the turnaround time in the Hunter Sector. Following this success, the Sydney and Illawarra Sectors expressed interest in developing similar protocols to address offload delay. Ambulance Liaison Officers and Health Service representatives from Sydney and Wollongong subsequently visited the Hunter during 2005 to discuss the Hunter Sector's approach to the problem of offload delay. 105 During 2005, the Ambulance Service and NSW Health developed an electronic system called the "matrix" which incorporated a software program to determine the most appropriate hospital for an ambulance to take a patient to on the basis of the patient's condition, hospital thresholds and the location of the nearest hospital. The matrix was subsequently integrated with the Ambulance Service's Computer Aided Despatch System. The ultimate configuration of the matrix was resolved at a senior executive level within the Ambulance Service and NSW Health with a view to State-wide implementation. The Sydney matrix was implemented on 9 June 2005. 106 Mr McPherson deposed matrix implementation planning in the Hunter commenced in or about March 2006 when Mr Loudfoot advised him the Ambulance Service had directed the Sector to prepare for implementation in or about April 2006. Mr Loudfoot subsequently appointed him Project Manager to manage implementation and deal with the various stakeholders including the Union, the Ambulance and Area Health Services. 107 The Ambulance Service management provided an implementation package which included the software, hardware, training, trainers and the technical installation for the matrix. Mr McPherson's role was to consider the best strategy to implement the existing system at a local level. For example, in the Hunter Sector an arrangement was in place whereby the Ambulance Service would not take staff off the road to attend training. Accordingly, he was responsible for ensuring that the minimum operating level of Ambulance Officers remained on the road while others attended the required training. 108 During matrix implementation, Mr McPherson deposed a series of consultative arrangements involving the Union, the Ambulance and Area Health Services were implemented: 9 May 2006 - Seminar - Sector management and both Inner and Outer Sub-branches of the Union re proposed Matrix system and how it would operate in practice. Participants were able to question Sydney based representatives concerning how the Matrix "works in practice". 23 and 29 May 2006 - Seminars - Station Officers and facility/unit managers within the Area Health Service to address strategic reasons for implementation, issues related to demand management and Sector implementation and, lessons learned from Sydney implementation and plans for the Hunter. Mr Graeme Silver represented the Union on 23 May and Mr Qvist on 29 May 2006. May 2006 - Matrix Working Party established and comprised Mr Qvist representing the Union, Ms Christine Hausler representing Ambulance Officers, Mr Robert Dunn, a staff representative from the Northern Operations Centre, Mr Wayne Eshman, Mobile Data Terminals installation coordinator and himself - met 31 May, 8, 20 and 28 June, 7 and 12 July 2006. Ms Jenny Van Cleef, Manager, Sustainable Access and Patient Flow and Mr Daniel Comerford, Area Performance Manager and Project Director, State-wide Programs, NSW Health also attended the Matrix Working Party meeting on 8 June 2006. The purpose of the meeting was to consult concerning the introduction and implementation of the Matrix in the Inner Hunter Sector. In addition, Mr Peter Rumble and Mr Bob Hull also attended meetings on some occasions. Participants at Working Party meetings were able to put forward the opinions or suggestions they had regarding the Matrix and those opinions were considered on their merits. Meetings also discussed arrangements and the content of training in the use of the Matrix for ambulance officers. Following the consultative process undertaken through the Working Party meetings, some changes were made to the reference card representation of the Matrix, including the addition of a note on the bottom of the card suggesting that ambulance officers consider helicopter support in certain circumstances. Minutes of meetings were circulated and members reported back on the outcomes of issues raised at previous meetings. In addition, a number of staff briefing notes concerning implementation issues were distributed to all Hunter Sector staff. 109 Mr McPherson deposed the Ambulance Liaison Committee was dissolved at the end of 2005. However, it was reconstituted on and from 14 June 2006 where it became the forum for consultation involving the Union, the Ambulance and Area Health Services issues, including the matrix. Mr McPherson said he explained to the meeting on 7 July 2006 that the Working Party was intended to be a short term process to assist in the design and implementation of the matrix and would be wound up shortly thereafter to avoid duplication with the Liaison Committee, which also included the Area Health Service, a key stakeholder in future developments of the matrix. 110 Mr McPherson deposed the matrix was implemented within the Inner Hunter Sector on 30 June 2006 following Area Health Service approval in April of that year. There was never any intention to conduct a trial. Post implementation, ORH reviewed the operation of the 11 field matrix and made no recommendations concerning variation to the number of fields. In any event, Mr McPherson deposed any change to the number of fields in the matrix would need to be made by Ambulance Service management with the approval and authorisation of NSW Health. 111 Mr McPherson deposed the matrix only requires fields for conditions which affect the choice of hospital to which a patient should be taken. Accordingly, in his view, 11 fields were sufficient as it was not necessary to have a separate field for a very low frequency medical condition or one that could be readily handled by any of the hospitals within the matrix. Moreover, the Ambulance Service was moving to an integrated and standardised State- wide CAD system and the Hunter matrix could not contain different fields. 112 Following implementation on 30 June 2006, Mr McPherson said there was an improvement in the turn around time of ambulances and a reduction in offload delay within Inner Hunter hospitals. For example, Ambulance Service reports noted that during the week prior to implementation, the average ambulance turn around time was 29 minutes, whereas two weeks later it had reduced to 19 minutes. He had reviewed weekly reports comparing the average off stretcher time and the percentage of cases where the off stretcher time was less than 30 minutes for the current week with the equivalent week last year and concluded the recent and large increase in the volume of work for the Ambulance Service had led to an increase in off stretcher times. However, there was no evidence to suggest that the matrix had caused this increase. 113 Mr McPherson made the following comments in relation to the Union's case outline filed in these proceedings: a) The Matrix was introduced by the Ambulance Service at the State level and was intended to be implemented on a State-wide basis. It was not introduced on a trial basis and from the outset, Mr Loudfoot had informed him the Ambulance Service wanted to implement the Matrix in the Inner Hunter by the end of June 2006. In that regard, the Matrix Working Party and the project implementation team were working towards 30 June 2006 as the Go-Live date for implementation and the system went live on 30 June 2006. b) Contrary to the Union's contention, the consultation process between the Ambulance Service and the Union in relation to the implementation of the Matrix in the Inner Hunter Sector was extensive and the assertion that the Ambulance Service failed to consult in any meaningful manner was unfounded. c) The Ambulance Destination Protocol did not allow the Ambulance Service to capture data about the condition of patients in the same way that the Matrix now provides. Previously, the capture of such data was restricted to the use of Patient Health Care Records. d) The Matrix allows ambulance officers to exercise discretion in deciding which hospital to transport a patient to. They can also override the Matrix allocation on account of traffic conditions, clinical conditions, patient request or clinical trial. In such circumstances, ambulance officers press a button to override the Matrix's allocation and then nominate the hospital to which they propose to transport the patient. Discretion may also be exercised in the case of psychiatric patients where, in the opinion of the ambulance officer, the patient should be taken to James Fletcher Hospital, which is not a hospital listed in the Matrix. In such cases, the officer is required to contact the Operations Centre, which in turn contacts James Fletcher Hospital to confirm whether it can accept the patient. e) The primary aim of the Matrix is to ensure the right patient is delivered to the right hospital the first time and reduce the turn around time of ambulances. Since the Matrix uses a series of factors to determine the most suitable hospital, Mr McPherson said he did not envisage there would be an increased incidence of secondary transport as alleged by the Union, nor was he aware of any increase in secondary transports as a result of the Matrix's implementation. f) The issues raised by the Union associated with "hospital block" have received appropriate attention from both the Ambulance Service and the Ambulance Liaison Committee. 114 Mr McPherson provided the following written evidence in relation to the witness statement of Mr Qvist filed in these proceedings: a) Mr Qvist contended that the combination of the Emergency Demand Management Protocol and the Ambulance Destination Protocol ensured the effective management of the release of ambulances within a 30 minute period. He further contended that the Northern Operations Centre and some of the assistant Operations Managers had not been diligent in adhering to the implementation of the Emergency Demand Protocol. In that regard, Mr McPherson acknowledged that while the Ambulance Service experienced some problems regarding the implementation of the Emergency Demand Protocol, that Protocol contained a very rigid escalation process and as a result there were some compliance issues that were subsequently the subject to proceedings before this Commission. However, the Protocol had now been replaced by the Sustainable Access Guidelines which provide increased opportunity for ambulance officers and managers to exercise discretion in cases of offload delay. b) It was Mr Qvist's evidence that the Ambulance Service had not properly responded to a list of 18 points raised by the Union with respect to the construction of the matrix and no follow up training had been conducted in relation to those matters raised. In response, Mr McPherson deposed the Ambulance Service responded to these issues by letter on 23 June 2006. A copy of that correspondence was attached to his affidavit. These issues were also addressed in meetings of the Working Party and Ambulance Liaison Committee. In the case of staff that had been trained prior to modifications being made to the training sessions, it was intended that all ambulance officers would attend a further review of the matrix once the system had been implemented. This review was delayed on the basis that the Union continued to argue that the matrix should be modified to include 18 fields. As this issue had not been resolved by June 2007, a review of the matrix was introduced as part of the clinical training of all ambulance officers at that time. c) It was Mr Qvist's opinion that the involvement of the Ambulance Service in the Matrix Working Party process was " purely a display of false co-operation on behalf of the Ambulance Service and any outcomes that could have been achieved were never properly considered ". He further stated that the matrix was already operationally active when the Working Party had completed its deliberations. In response, Mr McPherson disagreed strongly with the Union's proposition that the Working Party was a display of false cooperation and it was his view that through the Working Party process the Union had an opportunity to raise any issues concerning the matrix and all issues raised were considered on their merits. Through this consultative process, changes were made to the representation card for the matrix, including the reference to helicopter support. d) Mr Qvist stated that a fundamental problem with the matrix was the fact that the geolocating software had caused problems with access block and in one case the Mater Hospital had been identified as being approximately 800 metres closer than the John Hunter Hospital. Accordingly, when the "other" category was flagged in the matrix, the software had identified the Mater Hospital as the closest hospital. At the time, the Mater Hospital was being swamped with "other" category patients and it was constantly over its threshold in the first fifteen minutes of the hour. Further, as a result of this problem, the threshold level at the Mater Hospital was subsequently reduced. In response to these matters Mr McPherson said that when the Working Party was dissolved all issues then under consideration were put on the agenda of the Liaison Committee, a forum that enabled the Union to raise issues concerning the implementation or functionality of the matrix. In that regard, the issues of meal breaks and matrix sign on/sign off functionality raised by Mr Qvist at the Liaison Committee meeting on 12 July 2006 were industrial issues and accordingly, it was his view that they should be dealt with by the Ambulance Service Joint Consultative Committee, as the issues were of no relevant concern to the Area Health Service. e) It was Mr Qvist's evidence that the matrix was to be implemented as a trial and later reviewed. Following the trial the external consultants, OHR had provided a report. Following the report's release, the request of the Inner Hunter Sub Branch of the Union for a further trial of the 18 fields was rejected by the Ambulance Service. In response, Mr McPherson said contrary to the evidence of Mr Qvist, the matrix was not implemented on a trial basis. However, he agreed that approximately 3 months after implementation ORH reviewed the matrix, including the use of 11 fields. f) Mr Qvist contended a matrix with increased clinical fields could be used in the future "to give a real time appreciation of pandemics in the community". For example, a field for respiratory problems could be used to track respiratory outbreaks giving a sense of early warning concerning an outbreak of influenza. Contrary to the evidence of Mr Qvist, Mr McPherson stated the Area Health Service already had systems in place to track the advent of pandemics and he understood this was facilitated through the relevant triage section of hospital emergency departments. In addition, the Area Health Service had responsibility for and constantly reviewed a database to track the spread of disease. Accordingly, it was inappropriate to use the matrix to monitor community health matters 115 To conduct a trial of an 18 field matrix, Mr McPherson contended it would be necessary to expand software functionality to include the additional fields and subsequently conduct extensive training of hospital staff and ambulance officers in its use. More importantly, increasing the number of fields to 18 would put the Hunter Sector out of step with the rest of the Ambulance Service. Moreover, the Area Health Service, the principal stakeholder concerned, has not suggested the need for additional fields. 116 In cross examination, Mr McPherson confirmed that prior to the introduction of the 11 field matrix on 30 June 2006, a paper based patient allocation system had been developed to identify the appropriate hospital that a patient should be transported to based on their clinical condition. Mr McPherson recalled the development of that system commenced in or around the middle of 2002. While Mr McPherson could not recall the precise number of clinical allocation fields within the paper based patient allocation system, he did recall that it was a single page document that depicted graphically the clinical categories that specific hospitals could deal with. He said the system adopted had more than 11 clinical fields and was agreed to following discussions between the Ambulance Service, the then Hunter Area Health Service and the Union. He could not recall whether the tripartite arrangement reached by the parties had been subject to any form of ratification or sign off by NSW Health. 117 Mr McPherson confirmed that he was the most senior Ambulance Service officer involved in deliberations with the Area Health Service and the Union. However, on occasions, the Divisional Manager would also attend the meetings. 118 In response to a proposition that an 18 field system would provide more information for the benefit of ambulance officers and the receiving hospital, when compared to a system that contained less fields, Mr McPherson responded as follows: Well, it creates more fields, I agree, but the issues were more that if there was a particular category that could go to any hospital, then the rationale was that there wasn't a need to have a category for it and it could be addressed through the generalised approach of having the umbrella of a class called "other". 119 Mr McPherson agreed that the system in operation prior to 30 June 2006 was the product of tripartite discussions. However, in his opinion, the decision to take patients to a particular hospital or hospitals was more the responsibility of the relevant health representatives. Mr McPherson agreed that the previous paper based system and the fields adopted within it had some utility. He also agreed that under the previous system both ambulance officers and the relevant receiving hospital had a breakdown of seven identified categories that are now essentially unidentified because they have been incorporated into the "other" clinical category. 120 Mr McPherson disagreed with the proposition that the current 11 field matrix was an inferior system for the purposes of patient allocation. He said he was aware that a number of reviews had been undertaken following the introduction of the matrix in June 2006 and, to his knowledge, none of those reviews had criticised the current matrix or the number of fields that it contained. 121 Mr McPherson agreed that under the current matrix some 60 percent of patients transported to hospital fell into the "other" category and their clinical condition was unknown. 122 In response to a question that, ideally, both ambulance officers and the receiving hospital should have information concerning a patient's clinical condition, similar to that which existed prior to June 2006, Mr McPherson said that, in his view, it is the role of the health system to establish what information is required, particularly on the grounds that it was party to the establishment of the 11 field matrix. 123 Mr McPherson said that the previous paper based system that was in operation had been developed on a tripartite basis with input from the then Hunter Area Health Service. He agreed that the Area Health Service saw some utility in the seven clinical fields no longer available under the more recent 11 field matrix system. 124 Mr McPherson accepted the general proposition that geographic differences exist between Sydney and the Hunter. He also agreed that a smaller number of hospitals exist in the Hunter compared to Sydney. In that latter regard, Mr McPherson also suggested that the workload for ambulances was less in the Hunter. Notwithstanding these obvious differences, Mr McPherson agreed that the range of clinical conditions that confront an ambulance officer attending to an emergency call was the same in the Hunter and Sydney. 125 Mr McPherson agreed with the proposition that the number of clinical fields in operation under the paper based system were greater than the current 11 fields under the matrix introduced on 30 June 2006. 126 Mr McPherson said the paper based system was varied on occasions following tripartite discussions. He referred specifically to a case where a patient was taken to Belmont Hospital and for one reason or another it was felt that the patient should have been sent to a more appropriate facility. Such deliberations may have led to the creation of an additional field to suit the particular circumstances of that case under discussion. However, the Protocol had to be readily understood by both ambulance officers in the field and also staff within the Area Health System. 127 Mr McPherson confirmed that under the current 11 field matrix, there was no capacity to create a new field as was the case with the previous paper based system. He explained this restriction was due to the fact that the current matrix was part of a New South Wales State-wide standard. Moreover, insofar as the technical requirements of the CAD system used by the Ambulance Service were concerned, Mr McPherson was unaware whether there was any physical impediment to the implementation of a matrix with 18 fields as opposed to 11. He further replied in response to questioning from Mr Murphy "Well, I suppose if you had the funding, anything is virtually possible". 128 With respect to the Union's contention that the Ambulance Service failed to consult in any meaningful way with the Union concerning the implementation of the 11 field matrix, Mr McPherson confirmed that although the Matrix Working Party convened at the time involved Union representation, the decision to roll out the new system on 30 June 2006 was a decision of management at the direction of NSW Health and there was no consultation with respect to that decision. Contrary to a proposition put to him by Mr Murphy, Mr McPherson said his recollection of proceedings before Patterson C on or about 28 or 29 June 2006 was that the Ambulance Service could continue its plans to "go live" on 30 June. SUBMISSIONS For the Union 129 Mr Murphy submitted the Union's contention was that the current 11 field matrix, when compared to the previous 18 field paper based system, represents an inferior system which impacts upon the manner in which ambulance officers are able to carry out their functions. Unlike the previous system, the current matrix has the practical result that approximately 60 per cent of patients transported by the Ambulance Service are classified in the catch all field of "other". The practical effect of that classification was that the clinical condition of some 60 per cent of patients does not fall within the other ten designated fields. Accordingly, ambulance officers do not have any certainty with respect to the most appropriate hospital to transport a patient. Additionally, the lack of patient information also deprives the receiving hospital of valuable information to prepare for the reception of those patients currently falling within the "other" category. 130 Mr Murphy submitted the issues that divide the parties were clearly set out in the relevant case outlines and the evidence filed. With respect to the arguments raised by the Ambulance Service concerning managerial prerogative, Mr Murphy submitted that Re Cram; Ex parte NSW Colliery Proprietors' Association Limited (1987) 163 CLR 117 had significantly narrowed the concept of managerial prerogative from what was thought previously to be forbidden territory as far as industrial tribunals were concerned. Mr Murphy referred to the evidence led in this matter and contended it could be shown that unreasonable demands were being placed on ambulance officers working under the new 11 field matrix. Mr Murphy submitted the previous 18 field matrix system was a product of tripartite consultation between the Ambulance Service, the Area Health Service and the Union commencing in 2002. Mr Murphy submitted that the original 18 fields were adopted at the time because the parties believed those fields were necessary and important for the operation of the patient allocation system. He stated that there was no evidence to suggest that the original 18 fields had no utility or were unnecessary. Rather, at the time of its development, the parties were looking at the best outcomes for patients and hospitals alike. Importantly, the tripartite consultations also examined the conditions under which ambulance officers worked and the frustration they experienced due to being delayed in queues outside of hospital emergency departments as a result of "access block". Simply put, the 18 field system developed with the support of Ambulance Service management was directed at alleviating access block and associated issues. It was both an industrial issue for ambulance officers as well as an issue which impacted upon patient care and hospital resource allocation. 131 Mr Murphy submitted that the expanded Sydney matrix had been implemented without reference to the experience of the Hunter matrix that had been developed in a consultative and tripartite manner. The 18 field matrix was simply abandoned in favour of the Sydney matrix for reasons that have never been articulated. As a result of the reduction of fields from 18 to 11, some 60 per cent of patients transported were now classified in the "other" category where both the receiving hospital and relevant Nurse Unit Managers are unable to prioritise their resources in the absence of knowing the specific condition of the patient being transported. In that regard, Mr Qvist's evidence remains unchallenged. Mr Murphy submitted the fact that a system that worked well had been discarded, gave rise to an industrial issue and the instant dispute was not one that resides entirely within the realm of managerial prerogative, particularly given the history of the matter, the involvement of the Union and its members in the development of the 18 field system now swept aside. 132 Referring specifically to the orders sought by the Union in this matter, Mr Murphy contended they would not place any onerous burden or impossible demand upon the management of the Ambulance Service. Put shortly, the Union was seeking a reversion to the former 18 field matrix system on a trial basis utilising the existing computer technology. Further, there was no evidence before the Commission that the terms of the order sought would place any onerous burden or impossible demand upon the Ambulance Service. 133 Mr Murphy said the evidence tendered in support of the Ambulance Service's position fell short of erecting any real impediment to the granting of the orders. The proposed trial had community benefit in relation to the allocation of resources to patients, as well as industrial merit from the perspective of those ambulance officers whose responsibility it was to actually transport and care for patients that may fall into the various fields currently subject to the "other" category. 134 In conclusion, Mr Murphy submitted that the evidence in this matter led to the conclusion that an 18 field matrix must produce better outcomes and a better allocation of resources as was the case prior to 30 June 2006 when the 11 field matrix was introduced unilaterally. For the Respondent 135 Mr Morris submitted that the Union sought that the Director General of the New South Wales Department of Health, in respect to the Ambulance Service of New South Wales, and the Chief Executive of the Ambulance Service be directed to vary the Destination Protocol known as the matrix system that had been implemented in the Hunter consistent with his Honour's recommendation on 11 July 2005. 136 With respect to Order 1, Mr Morris submitted that the 11 field matrix introduced on 30 June 2006 was not a trial. Mr Morris submitted the Orders were far reaching and sought to implement a trial involving 18 clinical allocation categories. However, the current matrix as implemented was part of a management system that had been approved and adopted by the Ambulance Service, the Department of Health and the Area Health Services. Accordingly, Mr Morris submitted that the key question for the Commission to determine was whether it can, consistent with its principles and legal power, order the Ambulance Service to do something that it has decided it will not do. 137 Mr Morris submitted that in the light of the decided authorities, including the High Court decision in Re Cram; Ex parte NSW Colliery Proprietors' Association Limited, the Commission should not use its discretion to intervene in the absence of a demonstrated unfair imposition on employees. Mr Morris submitted that Ms Van Cleef had a responsible management position relevant to the development of the matrix and given her current and past experience in the Ambulance Service, she was an experienced person who had enormous insight into the issues which the matrix may pose. In her role as Manager Sustainable Access and Patient Flow, she was responsible for managing issues of delay in ambulance offloading in the Sydney Division. She also had some experience within other sectors of the Ambulance Service as a mentor in respect of offload delay and was responsible for overseeing the implementation of the matrix system in Sydney, the Central Coast and Inner Hunter Sectors. 138 Mr Morris submitted Ms Van Cleef had described the principal goals of the matrix were to ensure the right patient was delivered to the correct hospital and decrease ambulance waiting time in emergency departments. A reduction in waiting time would reduce off stretcher delay and the turn around time of ambulances, which would assist the Ambulance Service to build capacity through improved demand management. The evidence of Ms Van Cleef clearly explains the reasons for the implementation of the 11 field matrix and the role of the Hunter New England Area Health Service in that decision making process. Mr Morris referred to Ms Van Cleef's evidence in chief where she stated at p34 of the transcript: There would be no significant benefit in increasing the number of fields, because the addition of fields for conditions experienced by less than 1 per cent of patients or conditions which can be treated at any hospital would not change which hospital patients are allocated to by the Matrix. 139 Further, Ms Van Cleef's evidence was that the primary goal in designing the matrix was to make the system safe and simple for ambulance officers to use across all levels of officers. It was her evidence that the inclusion of further fields would introduce additional and unnecessary complexity. 140 Mr Morris also referred to Ms Van Cleef's evidence that the introduction of the matrix had led to a 20 per cent decrease in access block following its implementation in Sydney, the rationale for the adoption of 11 clinical categories and how threshold levels for hospitals were determined. He also noted that ambulance officers were able to manually override the allocation system in certain circumstances. 141 Mr Morris also referred to Ms Van Cleef's evidence that following the introduction of the 11 field matrix, as opposed to the previous 18 field paper system, off stretcher times had decreased and the percentage of patients taken to the nearest hospital the first time had increased from 63.1 per cent to 74.1 per cent. Similarly the number of patients taken to an appropriate, but not the nearest hospital available, had decreased from 30.2 per cent to 24.6 per cent. Mr Morris stated the number of patients taken to an inappropriate hospital had decreased from 6.7 per cent prior to the implementation of the 11 field matrix to 1.3 per cent thereafter. Further no evidence had been called in this matter to counter the evidence of Ms Van Cleef or show any deterioration in performance standards in the 19 months following its introduction on 30 June 2006. 142 Mr Morris directed the Commission to the evidence of Ms Van Cleef that the matrix was subject to ongoing review at a senior level by the Area Patient Flow Management Group and it is in fact owned jointly by NSW Health, the Area Health Services and the Ambulance Service. It was his submission that the Union was seeking to override the authority of that body. 143 Mr Morris contended it was clear that the proposed introduction of CADIUP meant that the Inner Hunter Sector could not operate in isolation to the other three State divisions when the proposed integrated computer system becomes operational. Clearly, it will be impossible under CADIUP for the Hunter Sector to have a different number of clinical fields to those being used elsewhere in New South Wales. 144 With reference to Mr Qvist's evidence and the orders sought by the Union, Mr Morris submitted that any change to the matrix must be agreed upon by NSW Health or the respective Area Health Services and the Ambulance Service through the Area Patient Flow Management Group. Further, any trial would have to take place in both the Inner Hunter and Central Coast Sectors because both shared the same CAD server. Extensive software testing and staff education would be required. 145 Mr Morris further submitted that Ms Van Cleef's evidence clearly showed the circumstances behind the reasons for and the objectives of the 11 field matrix as opposed to the previous 18 field paper based system. Moreover, the evidence clearly draws the conclusion that the matrix is an essential part of a management system that is used by the Ambulance Service, the Department of Health and the respective Area Health Services. There was no evidence that the 11 field matrix was imposing unfair or unreasonable requirements on members of the Union or ambulance officers. 146 Mr Morris referred to a decision of his Honour, Deputy President Sams in Ambulance Service of New South Wales and Broken Hill Town Employees' Union [2004] NSWIRComm 73, a dispute that concerned the introduction of a particular roster. In relation to that dispute, Mr Morris drew the Commission's attention to the comments of his Honour set out under paragraphs 10 to 20 therein: 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. 147 Mr Morris submitted that the evidence presented by the Union had failed to establish that the 11 field matrix imposes conditions on ambulance officers which are either unjust, unreasonable or both. 148 With reference to the contention of the Union and the evidence of Mr Qvist that the Ambulance Service failed to consult in the manner intended by Deputy President Harrison, Mr Morris submitted his Honour commenced his recommendation with the following preamble: The parties, with the assistance of the Hunter New England Area Health Service, have addressed the issues with appropriate diligence and a commendable spirit of co-operation. The results of their consultation are expressed in the following recommendation. 1 The Commission recommends by the consent of the parties that the ambulance offload delay strategies agreed between NSW Ambulance Service management representatives and Health Services Union representatives be implemented. These are to be trialled over an initial 6-month period commencing on and from 8th July 2005 in the following agreed terms: (a) That the position of Ambulance Liaison Officer continues to remain in place to effectively manage future acute and unpredictable increases in ambulance offload delay. (b) In accordance with agreed terms and conditions, the Service agrees that in addition to (a) above a management representative will be deployed immediately, whenever operationally possible, once notification has been received (from Hunter New England Area Health Service) at the Northern Operations Centre that the agreed Emergency Demand Protocol has been activated. (c) In accordance with agreed terms and conditions, if the Emergency Demand Protocol does not reduce the ambulance offload delay for Ambulances then Hunter New England Area Health Service will provide nursing staff, whenever operationally possible to the effected emergency department to enable Ambulances to be released. Alternatively, Ambulance Officers on overtime may be deployed to this role. (d) In accordance with agreed terms and conditions, if the Emergency Demand Protocol continues not be effective after implementing (a), (b) and (c) above then Ambulance management will escalate the ambulance offload delay issue and immediately contact the Director Operations Acute Networks, Hunter New England Area Health Service. To support the above-agreed strategies the Northern Operations Centre (Ambulance) will continue to adhere to the following: (e) Adhere to the agreed Ambulance Destination Protocol "Right Patient, Right Hospital" and the Demand Protocol. 149 Mr Morris subsequently referred to the objectives of the parties set out in his Honour's recommendation under para (f) as follows: (f) Main Objectives: .... .... That Ambulance management actively pursue the presentation of the "Hospital Matrix Application" to Hunter England Area Health Service with a view of implementing the software tool to hospitals within the Hunter New England Area Health Service. 150 With reference to his Honour's recommendation that Ambulance Service management actively pursue the presentation of the hospital matrix application to the Hunter New England Area Health Service with the view to implementing the relevant software to hospitals within the Area Health Service, Mr Morris submitted this objective was established shortly after the introduction of the matrix in Sydney and foreshadowed the subsequent implementation of the matrix in the Inner Hunter Sector. 151 Mr Morris stated his Honour's recommendation required the parties to meet regularly during the initial six month trial period. The recommendation also set out the matters to be considered by the parties including response times and the impact of offload delay. The following parameters for consultation were set out under para (i): (i) Consultation on Proposed Strategies/Changes : Should the Service propose during or following the six month review period, to vary the Ambulance Destination Protocol or Emergency Demand Management Protocol or the above listed and agreed strategies the Service will hold discussions with the Health Services Union regarding the feasibility of and reasons for the proposed change, any proposed strategies, and the duration of the further review with a view to reaching a consensus on ambulance offload delay management. The Commission will be apprised of the outcome of these discussions and any difficulties that may arise. 152 Mr Morris submitted that his Honour's recommendation had the appearance of an agreement that had been adopted by the parties and subsequently put to the Commission for endorsement. In that regard, the relevant undertakings made by the Ambulance Service were that there would be discussions if a decision was made to vary the protocols and the reasons would be explained with the view to reaching a consensus with the Union. However there "was no obligation to do so". In that regard Mr Morris submitted the Ambulance Service had given "fair effect" to his Honour's recommendation when the matrix was introduced to the Inner Hunter Sector on 30 June 2006. In support of that proposition, the evidence of Mr McPherson sets out the consultation that occurred, his role as a representative of the Ambulance Service in its introduction, the problems of access block and the various responses made by the parties to alleviate those matters. It was also Mr McPherson's evidence that his role in implementing the matrix in the Inner Hunter Sector was "to consider the best strategy to implement the existing system at a local level". 153 Mr Morris contended it was also clear from Mr McPherson's evidence that the matrix package provided by the Ambulance Service for implementation in the Inner Hunter Sector included the relevant software, hardware and staff training package, as well as those officers involved in the training of staff and the installation of equipment. 154 With reference to consultation, Mr Morris submitted Mr McPherson's evidence showed that he was the relevant manager responsible for implementation and he was able to consult on those matters that he could reasonably be expected to consult about, namely the method or manner in which the matrix was to be implemented in the Inner Hunter Sector. It was clearly not open to Mr McPherson or those with whom he consulted to change the "essentials of the matrix". Mr Morris submitted that the evidence of Mr McPherson and Mr Qvist concerning the deliberations of the Matrix Working Party and the Ambulance Liaison Committee were matters about which consultation was appropriate. However, there was no obligation for the Ambulance Service to reach agreement with the Union or its representatives that sat on the Matrix Working Party or the Liaison Committee. Simply put, the obligation to consult, which was reinforced by his Honour "does not and cannot delegate from the ultimate responsibility and the right of management of the Ambulance Service to manage". 155 Mr Morris referred to the decision in Australian Rail, Tram and Bus Industry Union NSW v State Transit Authority [2007] NSWIRComm 162, a case that concerned the rostering of public holidays, where his Honour, Deputy President Harrison, observed: 88 Management hold a responsibility to determine business needs and may require employees to work where these needs require. The obligation of the employee is to meet all lawful and reasonable requests of the employer. 89 The process of consultation is to allow employees to understand and contribute to a consideration of business needs. Once the discussion is complete management hold the responsibility to decide upon the business needs. Employees retain a right through their union to invoke the disputes procedure should there be grounds to assert that management's decision is motivated by other than a genuine assessment of business needs. 90 That is not to say that the Commission will substitute its view of business needs over that of management, but may intervene if it were to be shown that a decision imposed harsh, onerous or unfair conditions upon employees. Merely being required to work on a Public Holiday would not of itself create such circumstances. 156 Mr Morris submitted his Honour's observations neatly encapsulate the position of the Ambulance Service, that the proper course for the Commission to adopt in this matter is to refrain from intervention, unless it is satisfied there has been some unreasonable imposition on employees. 157 Mr Morris submitted that in the event the Commission viewed the Ambulance Service's consultation as "hollow", as asserted by Mr Qvist in his evidence, that view does not support intervention by the Commission and the making of the orders sought by the Union. Mr Morris referred to his cross examination of Mr Qvist and submitted it was apparent that he was an active and forthcoming contributor to the debate concerning the matrix. Mr Qvist had raised aspects concerning implementation and the suggestions both he and other members of the Union had put forward "were taken on board and given effect to". 158 Mr Morris contended "there is absolutely nothing in the recommendation of Deputy President Harrison or in the course of the consultations that justifies an order to trial 18 fields in a matrix for allocating patients to hospitals". He further submitted that while the Union and some officers were quite passionate concerning the benefits of an 18 field matrix, the decision to implement an 11 field matrix was made by the management of the Ambulance Service and there is no evidence before the Commission to suggest that decision-making had been other than sound, informed and authoritative, nor has any material been submitted to show that the decision had imposed an unreasonable burden on a single employee. In conclusion, Mr Morris stated there was no evidence to suggest the matrix was working prejudicially to the interests of hospitals or patients. In Reply 159 Mr Murphy referred to the evidence of Ms Van Cleef and the submissions of Mr Morris that the current 11 field matrix was safe for ambulance officers to use and, by implication, an 18 field matrix may in some way be regarded as being unsafe. Mr Murphy submitted there was evidence before the Commission that the 18 field matrix that existed prior to 30 June 2006 was safe, simple and capable of being implemented by ambulance officers. It had also been developed as a result of discussions between management, hospitals and officers. Any suggestion that a trial of an 18 field matrix would in some way create a safety issue or a system that was not sufficiently simple to be competently implemented was palpably wrong. 160 Mr Murphy referred to the decision of his Honour Deputy President Sams in Ambulance Service of New South Wales and Broken Hill Town Employees' Union where reference was made to the unreported decision of his Honour, Justice Hungerford in Re Re John Lysaght (Australia) Limited - Port Kembla - Slit Recoil Line Rates of Pay Award (IRC94/2374, 12 March 1995) where his Honour refers to the nature of management prerogative: 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". 161 Mr Murphy submitted the High Court's observations in Re Cram; Ex parte NSW Colliery Proprietors' Association Limited, echoed the proposition he had put to the Commission in his opening submissions, that given the history of this matter and the observations of the High Court in that case, it was clear that reliance upon management prerogative does not raise a jurisdictional impediment to this industrial tribunal. What it does raise is the issue of the exercise of discretion. 162 Mr Murphy submitted that given the history behind the development of the 18 field system and the input of ambulance officers as stakeholders in that development, together with the tripartite nature of the deliberations that underpinned that system, as described in the evidence of Mr McPherson, the issue before the Commission is one that ambulance officers have a legitimate interest in. It is also a matter that ambulance officers believe they had some level of ownership of and the decision to introduce the 11 field matrix had taken that ownership away. 163 Mr Murphy said the evidence of Mr Qvist underpinned and demonstrated a level of unreasonableness and unfairness, particularly on the grounds that ambulance officers were currently required to transport 60 per cent of their patients who were: lumped into the field of 'other' which impacts upon the manner in which they're able to perform their work, which impacts upon the manner in which the receiving hospitals are able to prioritise the utilisation of their resources and does impact upon the question of off stretcher time, blockage of hospitals and the like. CONSIDERATION 164 The material before the Commission in this matter is supportive of the proposition that both the Ambulance Service and the Union share a common concern that offload delay is a major impediment to the efficient management of ambulance arrivals and their timely departure from the relevant hospital accident and emergency department. Indeed, the implementation of the 18 field paper based Destination Protocol in the Inner Hunter during 2004 is evidence of that common concern and the determination of the parties to work together in support of improved patient flow. 165 The evidence clearly highlights the fact that the Union's Sub Branch played an influential and pivotal role in the development and implementation of that paper based system and for his part, Mr Qvist "took ownership" of the system on behalf of the Union and its members. It is also clear that the commitment of Sub Branch officers to the retention of the 18 field Destination Protocol has been galvanised by the depth of that involvement. There is certainly no material before the Commission to suggest or imply that the 18 field paper based Destination Protocol was inefficient or, in the alternative, was not the major driver that led to a reduction in offload delay following its implementation under the umbrella of the Ambulance Liaison Committee. 166 No doubt at the time, the Union and its members believed the 18 field Destination Protocol, although subject to continuous and regular review, was a permanent arrangement. While speculative, it is a reasonable assumption that Union and its members involved in the implementation of the 18 field system would have thought it would form the foundation of the matrix "software tool to hospitals" referred to under paragraph (f), Main Objectives, of his Honour's Statement and Recommendation made on 11 July 2005. 167 There is also evidence, notwithstanding the Union's opposition, that ambulance capacity, including patient offload delay and patient allocation, has improved following implementation of the 11 field Destination Protocol in the Inner Hunter. 168 Unlike the previous 18 field paper based system, the current 11 field system classifies patients with conditions such as respiratory, paediatrics minor, gynaecology, oncology and haematology, renal distress, gastroenterology and recreational drugs and alcohol under the 'other' field category. The fact that these seven clinical conditions represent less than one per cent of all patient conditions was not challenged, nor was the Protocol directive that respiratory, paediatrics minor, gynaecology and recreational drugs and alcohol were clinical conditions that could be treated at all hospitals within the Inner Hunter. 169 The material and evidence submitted by the Ambulance Service was that there was simply no requirement to include a clinical field where that particular clinical condition represents less than one per cent of ambulance admissions. The Ambulance Service also contended the incorporation of additional fields to cover such clinical conditions were unnecessary on the grounds that their inclusion would increase the complexity of the system and put at some risk operational simplicity and safety. 170 The Union contends that the success of the 18 field Destination Protocol was due to its development over several years through a process of consultation, investigation and trial through the Ambulance Liaison Committee, with input from ambulance officers, senior Ambulance Service management representatives, emergency department and Area Health Service staff and the Union to underpin the goal of "Right Patient, Right Hospital First Time". There is certainly no material before the Commission to contradict that viewpoint. 171 The Union's opposition to the 11 field matrix introduced on 30 June 2006 was partly set out in MFI 3 and is grounded on the fact that it is an adaptation of the Sydney based protocol and is deficient when compared to the previous 18 field paper based system that "... allow(ed) for patients with specific conditions and illnesses to be taken to the hospitals in the Hunter that can currently cope with those patients". 172 The Union's opposition was succinctly encapsulated by the following reference in a Sub Branch Member circular dated 5 June 2006: ... our position is that the Destination Protocol that has been in place within the Hunter has worked fine and if an electronic version is to be adopted, that is fine as long as it is suited to our Hospitals and our on road needs. We will not be dictated to by Sydney people trying to force Sydney parameters on us. 173 The Union also contends that when the Area Health Service first approved the introduction of the new system in March and April 2006, it failed to consult with its own management, including relevant medical and emergency department personnel. However, no witnesses representing such personnel were called by the Union. Indeed, the Union relied solely upon the evidence of Mr Qvist. 174 The extensive evidence submitted by Mr Qvist on behalf of the Union demonstrates his concern about access block and his belief that the 11 field matrix does not deliver the efficiencies that both he and the Union contend were delivered to NSW Health, the Area Health Service and the Ambulance Service under the previous 18 field matrix system. 175 On the material before the Commission, there may be some correlation between the number of fields contained in the relevant patient allocation system matrix and the efficient delivery those patients to the most appropriate hospital the first time. Paediatrics within the Hunter may be a case in point. However, it is clear on the extensive materials, evidence and submissions presented in this matter that the configuration of the Destination Protocol currently operating in both the Inner Hunter and Central Coast can only be varied following NSW Health or Area Health Service and Ambulance Service approval through the relevant Area Patient Flow Management Group. That Group is also accountable for its decision to restrict the number of clinical fields to 11 in the Inner Hunter and Central Coast . 176 Notwithstanding its opposition to the 11 field matrix system, the Union has acknowledged that in certain circumstances, an ambulance officer is able to override the matrix and take a patient to an emergency department deemed more suitable to treat the particular clinical condition. However, in that event, the ambulance officer is required to submit an "exception report" to the Ambulance Service. 177 It was Ms Van Cleef's evidence that as ambulance work within the Inner Hunter and Central Coast sectors overlapped. It follows that the trial sought by the Union would need to apply across the Central Coast given a single CAD server operates ambulance dispatch within the Inner Hunter and Central Coast Sectors. Moreover, it also follows from her evidence that when CADIUP is fully operational, the number of clinical fields adopted by Area Patient Flow Management Group would need to be uniform as a single CAD server will operate State-wide. 178 The Ambulance Service is currently in the process of implementing the Computer Aided Despatch Infrastructure Upgrade Project - CADIUP to establish an integrated computer system that will support its entire state-wide operations related to emergency call taking and ambulance dispatch functions. It was Ms Van Cleef's evidence that the Ambulance Service was currently divided into four geographic divisions with each division having its own Operations Centre and separate CAD server. The Northern Division includes the Inner Hunter and Central Coast Sectors.. 179 The proposed introduction of CADIUP will force NSW Health, the respective Area Health and Ambulance Services through the Area Patient Flow Management Group to adopt a uniform Destination Protocol to operate across New South Wales. 180 No evidence was led concerning the cost of introducing the trial sought by the Union. However, the facts do remain that there would be some costs associated with the development and trialling of software and additional training of ambulance officers and associated health related personnel would also be required to ensure operational safety. 181 Mr Morris relied on a line of authorities that support the proposition and conclude that the Commission does not interfere with the running of an employer's business or, in other words, managerial prerogative, unless the actions of management impose an unjust or unreasonable requirement on the affected employees. By adopting such an approach, the Commission seeks to maintain a balance between the recognition of the autonomy of management to decide how best a business shall be efficiently conducted and the protection of employees against unjust or unreasonable demands. Of course, it is the employer who carries the burden of justifying that its conduct is reasonable in the circumstances of the case and has not acted unjustly, harshly, or unreasonably. 182 The Union has argued strongly that the Commission's refusal to grant the orders sought would impose an unreasonable burden on the ambulance officers subject to this dispute and that burden should not be allowed to stand under the protection of managerial prerogative. Mr Murphy submitted intervention by the Commission would ensure industrial justice and would also be consistent with the more recent and enlightened view that the prerogative of management is not absolute and the matters subject to this dispute notification directly impact on the relationship between members of the Union and the Ambulance Service: Re: Cram: Ex parte N.S.W. Colliery Proprietors' Association Ltd and Others. 183 On the evidence of Mr Qvist, unreasonable demands were being placed on ambulance officers as a result of the 11 field matrix. Such demands were not substantiated in any great detail. Mr Murphy submitted that currently, ambulance officers "do not have any certainty with respect to the most appropriate hospital to transport a patient" as some 60 per cent of patients transported fell into the 'other' category. Further, the receiving hospital is deprived of information relevant to the patient's condition - information that was available under the previous 18 field paper-based system. 184 Other than the very brief reference in Mr Qvist's evidence, there is insufficient evidence before the Commission to substantiate a case that the introduction of the 11 field matrix has affected the health and safety of ambulance officers in the sense that they are now required to perform work that is unjust or unreasonable. There was no evidence that specific complaints had been made to the Ambulance Service by ambulance officers or health and safety representatives. Simply put, the test of injustice or unreasonableness would embrace, amongst other things, health and safety matters, because the direction of an employer to perform unsafe would be unjust and unreasonable. In any event, the Ambulance Service has a statutory obligation to take all reasonable, practical steps to protect the health and safety and work of employees. 185 The Union has expressed concern regarding the degree of consultation in this matter. The willingness of an employer to engage in consultation indicates a commitment to a process of workplace participation where employees and in matters such as the present, their Union representatives, can have an input into a wide range of issues that have the capacity to impact upon the workplace. Consultation is not decision making nor does it mean simply and solely the provision of advice concerning a decision to implement a particular proposal. 186 It is also evident on the material before the Commission that there was some consultation with the Union prior to the introduction of the 11 field Destination Protocol on 30 June 2006. However, that consultation, which commenced in May 2006 with the nomination of Mr Qvist to the proposed Matrix Working Party, was limited and somewhat compressed due to the imperative that implementation across the Inner Hunter would commence during June 2006. Notwithstanding that time limitation, the Union's representation was sought and its vehement opposition to the proposed Destination Protocol was noted in the various submitted materials. Working Party meetings also provided a forum to progress a range of training and implementation issues. However, on balance, the consultation that did occur fell short of that proposed and jointly agreed following his Honour's Statement and Recommendation of 11 July 2005. There were no discussions with the Union "regarding the feasibility of and the reasons for" any proposed variations to the Destination Protocol. What did occur was consultation concerning the imminent implementation of an 11 field system. 187 In distinguishing between arguments in relation to jurisdiction and merit, the High Court in Re: Cram: Ex parte N.S.W. Colliery Proprietors' Association Ltd and Others made it clear that whilst there was jurisdiction to deal with matters long regarded as managerial prerogative, great care should be taken in the exercise of that discretion. Simply put, it is not the function of this Commission to substitute its view for that of the employer as to the most efficient way of managing the enterprise. The effect of the decision in Cram is that matters which may be classified as managerial decisions affecting the running of a business may, because of their direct effect on employees, still concern the relationship between employer and employees in their relevant capacities. 188 I have considered the all material, submissions and the substantial evidentiary material filed by the parties. There is insufficient material before there Commission to show that Ambulance Service has not exercised its responsibility under health and safety laws and, the various applicable industrial instruments to deal with ambulance officers subject to this notification in a fair and reasonable manner. The Union has been unable provide the level of evidence necessary to show that the introduction of the 11 field matrix has placed onerous or unsafe demands upon ambulance officers. 189 In my view, the various authorities referred to by the parties concerning managerial prerogative lead me to conclude that it is not the role of this Commission to interfere with the rights of management except when those rights are exercised unjustly or unreasonably or, impose harsh, oppressive or unsafe demands on employees. This is not such a case. 190 Implicit in the material before the Commission from the Ambulance Service is the notion that the Department of Health, through the various Area Health services and the Patient Flow Management Group, has sole responsibility for the initiation and promotion of sustainable improvements to patient flow. Accordingly, the 11 field system was introduced by the Ambulance Service at the express direction of the Department of Health with little scope for its variation. 191 The current matrix was introduced on 30 June 2006. There is no evidence to support the proposition that its implementation was subject to a trial. The uniform CADIUP system is expected to be implemented on a State-wide basis in the foreseeable future. The opportunity to revisit the composition of the matrix adopted by the Area Patient Flow Management Group under the authority of the Department of Health, the Area Health and Ambulance Services passed by many months ago. Accordingly, against the backdrop of all the material and evidence before the Commission in this matter, I have formed the view that it is inappropriate to intervene and grant the orders sought by the Union to conduct a trial to test the practicability of an 18 field patient allocation matrix. To do otherwise would infringe the Ambulance Service's right to manage and delay the implementation of the CADIUP, a system designed to improve patient flow into emergency departments, reduce offload delay and importantly, improve operational efficiency, capacity and capability. 192 The orders sought by the Union are refused and this matter is now concluded. J D Stanton Commissioner 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.