HSUeast v Ambulance Service of New South Wales [2012] NSWIRComm 7

Industrial Relations Commission New South Wales Medium Neutral Citation: HSUeast v Ambulance Service of New South Wales [2012] NSWIRComm 7 Hearing dates: 28, 30 September 2011, 14, 31 October 2011, 6, 22 February 2012 Decision date: 24 February 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: RECOMMENDATION - Ambulance Service shift rosters to continue across the three Ambulance Stations. The Service continue its process of consultation with the Union and its members to ensure the shift roster changes are not impacting unreasonably and unfairly on officers. Catchwords: DISPUTE - New shift rosters being implemented - Commission previously recommended trial for new rosters for Parramatta, Green Valley and Naremburn Ambulance Stations - Trial period concluded - Union objects to new rosters being implemented across two of the stations due to unfair or unreasonable demands on officers - Recommendation made. Cases Cited: BHP Steel AIS Pty Limited v Federated Ironworkers' Association of Australia, New South Wales Division (unreported, IRC94/2208, 7 November 1994) Category: Procedural and other rulings Parties: HSUeast Ambulance Service of New South Wales Representation: Mr T Stevanja , Industrial Officer (Notifier) Mr D Mahendra of counsel (Respondent) File Number(s): IRC 1547 of 2011

RECOMMENDATION 1This Recommendation is in relation to a dispute notified to the Commission by HSUeast on 27 September 2011. The dispute, with the Ambulance Service of NSW, concerns the posting of new shift rosters at Parramatta, Green Valley and Naremburn Ambulance Stations. 2The Union objected to the rosters and alleged that the Service had failed to genuinely consult with HSUeast in breach of the relevant provisions of the Operational Ambulance Officers (State) Award. 3On 30 September 2011, the Commission recommended a trial of the rosters subject to monitoring by the parties and the Commission. The trial was to be for one month. The Commission stated: 4. In that one month period, the parties are to address the concerns raised by the HSU in the proceedings earlier this week and today, and the Ambulance Service is to give access to the HSU to the data that has been promised. If during the period of the trial a particular problem arises which should prevent the trial continuing, the HSU is given liberty to have the matter brought back to the Commission at short notice. But otherwise, the trial should commence as the rosters are scheduled to be implemented tomorrow, Saturday, 1 October. 4On 31 October 2011, the Commission was advised the parties were continuing to work on a solution to the dispute and sought that the matter be adjourned until February 2012 to allow further work to be done. The adjournment was granted. 5On 22 February 2012 the Commission was advised the parties had been unable to reach agreement. HSUeast had compromised its earlier opposition to the new arrangements and proposed a different way forward, but the Ambulance Service had declined to adopt the proposal. 6By way of background, the Ambulance Service has been seeking ways of improving its service. Its resources are limited and it is attempting to deploy those resources in the most efficient manner possible. It has undertaken studies of ambulance responses over the 24 hour daily cycle in an endeavour to better understand how it should deploy ambulance crews. The studies show, generally speaking, the responses are fewer late at night and during the early morning (2200 to about 0700) and increase to peak demand from about 1000 hours to 1900 hours. 7As a consequence of the studies undertaken, the Service changed the roster arrangements at the three stations earlier mentioned, to achieve a better fit of crews to demand over the 24 hour cycle. This involved taking crews off night shift at Green Valley and at Parramatta and transferring them to afternoon shift. At Naremburn a day shift crew was transferred to afternoon shift. These changes were the subject of the trial the Commission recommended in September 2011, but they are the forerunner of further adjustments the Service proposes to implement at various stations throughout the State in order to achieve a better fit of resources to demand. 8HSUeast objected to the transfer of shifts at Green Valley and Parramatta. It was argued that the new arrangements: were at the expense of coverage of other shifts; involved an increase in the workload of the remaining crews at the two stations and for the zone/sector, especially for the period 2200 to 0700; would have a negative impact on staff and an increase in response times and, therefore, put patient safety at risk. 9HSUeast considered the data the Service had provided to it in relation to the trial and analysed that data. HSUeast concluded from the data that at Green Valley and Parramatta response times had increased to a point that exceeded the world standard for response times. 10HSUeast contended that the depletion of a night shift crew failed to provide the benefits that the Service claimed could be achieved by its afternoon shift model at Green Valley and Parramatta. It was submitted that the reduction in crewing on the night shift (2200 to 0700) increased the stress on ambulance officers because of the extra coverage they were required to provide and that the situation would only get worse in the winter months when demand increased. 11HSUeast had fewer concerns regarding the trial at Naremburn. The Union believed that the Naremburn approach provided better coverage. Accordingly, HSUeast proposed that the Naremburn approach be applied to Green Valley and Parramatta on a trial basis. It was this proposition that was declined by the Service, which believed that the better solution at Parramatta and Green Valley, supported by the studies that had been undertaken, was to transfer a crew from night shift to afternoon shift. The Commission and HSUeast were provided with the outcomes of the studies. 12There is no doubt the parties have sought to take a constructive approach to the issues in dispute. There is also no doubt that there exists a long established principle that an employer has a right to manage and regulate its own business, unless in doing so it imposes unjust or unreasonable demands upon its employees. Hungerford J expressed the principle in BHP Steel AIS Pty Limited v Federated Ironworkers' Association of Australia, New South Wales Division (unreported, 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. 13It is apparent from the studies conducted by the Service that what it proposes in relation to the three stations provides a better fit of resources to demand than what is proposed by the Union. The Union, however, submitted that the studies do not take into account the human dimension and do not reveal the stress and extra workload imposed on the night shift with the transfer of a night shift crew to afternoon shift. 14At this stage, I am not convinced the employer's action imposes unfair or unreasonable demands on the ambulance officers and, therefore, I do not propose to recommend adoption of the Union's approach to Green Valley and Parramatta. It may be accepted that there are additional demands being placed on ambulance officers as a consequence of the shift roster changes. However, for the present I do not consider those demands to be unfair or unreasonable. 15That is not to say HSUeast is forever precluded from raising any concern about unfair or unreasonable demands on its members in connection with new shift rosters at ambulance stations, but in order to satisfy the Commission it should intervene there would need to be probative evidence. 16I recommend that the Service continue its process of consultation with the Union and its members to ensure the changes are not impacting unreasonably and unfairly. I would add that there is only so much that can be achieved by manipulating rosters in order to meet demand before it becomes obvious that the solution lies in extra resources.