Industrial Relations Commission New South Wales Medium Neutral Citation: HSUeast v Ambulance Service of New South Wales [2012] NSWIRComm 16 Hearing dates: 13 March 2012 Decision date: 14 March 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: I recommend that the implementation of 12-hour shifts proceed forthwith at Morriset and Doyalson in accordance with the roster posted by the Ambulance Service. Catchwords: INDUSTRIAL DISPUTE - HSUeast and Ambulance Service of New South Wales - Implementation of 12-hour shifts at Morriset and Doyalson - Claim by Union that employer failed to comply with status quo provision in Award when triggered by Union - Issues raised by Union regarding implementation of 12-hour shifts - Recommendations made regarding issues - Implementation of 12-hour shifts to proceed Cases Cited: Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 Re Operational Ambulance Officers (State) Award [2008] NSWIRComm 168 Category: Procedural and other rulings Parties: HSUeast (Notifier) Ambulance Service of New South Wales (Respondent) Representation: W Ash and T Stevanja (Notifier) N Quinn and S Flanagan (Respondent) File Number(s): IRC 415 of 2012 STATEMENT AND RECOMMENDATION 1On 12 March 2012, HSUeast notified the existence of an industrial dispute with the Ambulance Service of New South Wales in relation to the introduction of 12-hour shifts at Morriset and Doyalson Ambulance Stations. 2It was alleged in the dispute notification that the Ambulance Service had failed to comply with cl 42(g) of the Operational Ambulance Officers (State) Award. That provision provides for the status quo to apply whilst the dispute procedure in the Award is being followed. The provision is in the following terms: (g) Unless agreed otherwise by the parties, the status quo must continue whilst these procedures are being followed. For this purpose "status quo" means the work procedures and practices in place: (i) Immediately before the issue arose; or (ii) Immediately before any change to those procedures or practices, which caused the issue to arise, was made. The Service must ensure that all practices applied during the operation of these procedures are in accordance with safe working practices. 3The Ambulance Service had planned to introduce new roster arrangements at the two stations from 10 March 2012 involving the working of 12-hour shifts. Up until that time officers at the two stations had worked a system of 14-hour night shifts and 10-hour day shifts. 4HSUeast then sought to invoke cl 42(g) on the basis that there were issues that remained unresolved between the parties regarding the implementation of the new shift rosters. According to the dispute notification, however, the Service advised members of the Union that the Service did not intend to comply with the status quo provision and demands were made on officers to work according to the new 12-hour roster. Apparently officers have continued to report for work according to the 14/10 hour roster. 5For its part, whilst not opposed to the introduction of 12-hour shifts, HSUeast sought orders compelling the Ambulance Service to enter into discussions with the Union regarding outstanding issues and to adhere to cl 42(g) whilst those discussions were continuing. 6For its part, the Ambulance Service contended that its decision to implement 12-hour shifts was consistent with the decision of the Full Bench in 2008 that introduced 12-hour shifts; that there had been a lengthy delay in implementing the new shift arrangements at the two stations because of the resistance of the Union and its members in the Hunter sub-branch; that the Union and its members have sought to misuse the status quo provisions in the Award to prevent or further delay implementation of 12-hour shifts; and that the current industrial action unnecessarily jeopardises public safety. 7There are six unresolved issues that the Union contends need to be resolved before 12-hour shifts are able to be implemented at Morriset and Doyalson: (1) change in the duration of the projected roster so that a roster is now worked over a 9-week cycle whereas previously the roster was projected over an 18-week period; (2) the failure of the Ambulance Service to continue to comply with the Hunter Roster Maintenance Agreement; (3) change in annual leave rostering by replacing the flexible practices that had applied at Morriset and Doyalson with a State-wide protocol requiring annual leave to be taken in blocks of three weeks; (4) maintenance of the grandfathered provisions of the "Hunter Award" in respect of certain officers at Morriset; (5) pay back of six hours overhanging in a roster cycle; (6) applicability of a January 2011 undertaking by a previous Minister for Health that "a realignment of the sector boundaries [affecting Morriset and Doyalson] is an administrative change to more appropriately support ambulance operations and will not involve a reduction in your working conditions, staffing levels, or ambulance service delivery in the area." 8It should be pointed out immediately that the Award provides for the working of 12-hour shifts. Beyond the initial evaluation and implementation program that applied to Sydney and the Central Coast (cl 20A) 12-hour shifts are not conditional on complete agreement as to the terms for working the new shift arrangements. 9Nevertheless, it only makes industrial sense for parties to sort out any issues prior to implementation, provided those issues represent genuine impediments to implementation. Given the parties are obligated by the Award to implement 12-hour shifts they must do so unless it can be shown there is an issue that, unless it is resolved, acts as a real barrier to implementation such that, for example, an unforeseen issue arises that would substantially prejudice a party, or implementation in the manner proposed would be unfair or unsafe. In those circumstances, the dispute resolution processes of the Award should be followed. The status quo provision could apply whilst the dispute resolution processes are followed. 10Issues that are merely ancillary or incidental to implementation should not be used as a device to prevent or delay implementation. In other words, if an issue arises that is only of an incidental nature it should not justify stalling the implementation process. Implementation should proceed and the issue may be addressed using the dispute resolution processes under the Award. Issues of this nature should not be used to trigger the status quo provisions. 11That brings me to the Union's six issues. The first involves a change to the number of weeks a roster may be projected. As I understand it, the Service needs consistency in its roster arrangements throughout its Metropolitan Operations of which Morriset and Doyalson are now part. In other words, it cannot have a 9-week roster for Metropolitan generally and an 18-week roster for Morriset and Doyalson. Accordingly, the Service is unable to accept that individual Stations "own their line". The Service's position is sound. The move to a 12-hour shift arrangement across the Service inevitably brings with it disruption to practices that may have existed in individual Stations for many years. Where such idiosyncratic practices can be accommodated under the new shift regime well and good, but if those practices have to change to meet genuine requirements to improve efficiency and establish equity on a Service-wide basis and the consequences are not unfair or unreasonable for officers then the change should be made. I recommend that the roster projection arrangements applying in Metropolitan Operations be applied at Morriset and Doyalson. 12The second issue concerns an alleged failure by the Service to adhere to the Hunter Roster Maintenance Agreement. The Service contended the Agreement has been superseded by a Zone Deployment Model. I understand that the question of the applicability of the Maintenance Agreement is the subject of a separate dispute notification (Matter No IRC 1884 of 2011) and I will deal with the issue in that context. That will not impede the implementation of 12-hour shifts at Morriset and Doyalson. 13The third issue concerns annual leave rostering. It seems to me that in light of the decision of the Full Bench in Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 that annual leave should be generally taken in two blocks of three weeks each. In awarding six weeks' annual leave to ambulance officers on shift work, the Full Bench stated: [212] Having regard to the evidence of the expert witnesses, we strongly recommend that the parties give active consideration to altering the present arrangements for the taking of annual leave so that such leave shall be taken in two equal amounts at six monthly intervals in order that the potential benefit in preventing or remedying psychological illness and injury and the adverse consequences of the stress experienced by the officers is maximised. We have been reluctant to order that a change in the award should be so made, at this time, given the need for the parties, in consultation will [sic] the ambulance officers, to discuss any issues arising from such a change in practice. 14The fourth issue concerns the maintenance of the grandfathered provisions of the "Hunter Award" in respect of certain officers at Morriset. The Service has acknowledged these grandfathered provisions will continue to be observed in respect of the relevant employees. 15The fifth issue concerns the pay back of six hours that somehow is "overhanging" in each roster cycle. That is a matter about which the parties should continue to negotiate, but it is not a matter that justifies any delay in implementing 12-hour shifts at the two Stations. 16The sixth issue concerns the undertaking by a previous Minister for Health. That is a matter the Union may wish to take up with the current Minister, but as far as I am concerned it has no implications for this Statement and Recommendation. The Commission is not bound by such ministerial undertakings and in any event it is not clear to me the undertakings have any relevance to the introduction of 12-hour shift arrangements. 17A significant complaint by the HSUeast was a failure by the Service to genuinely consult with it and its members where change is proposed at particular Stations. It has been my experience in dealing with disputes involving the Ambulance Service that despite quite sophisticated systems for consulting and communicating with the Union and the members of the Union there is often a failure on the part of one party or the other to comply with the systems in place, thereby leading to unnecessary industrial action. I recommend both parties review their consultative processes and if they consider them to be flawed to revise them or genuinely renew their commitment to them. 18It was quite unnecessary, given the dispute resolution process in the Award and the consultative mechanisms that were in place, for a situation to occur where the Service insisted that the 12-hour roster be implemented on Saturday 10 March 2012, officers refused to comply because they perceived grievances had not been dealt with, officers being stood down and the service to the public of the Central Coast placed in jeopardy. 19Having said that I note that 12-hour shifts were introduced by the Commission in August 2008: Re Operational Ambulance Officers (State) Award and others [2008] NSWIRComm 168. In doing so the Commission allowed for an extensive period of consultation and a trial period. It is now 2012 and negotiations are still continuing over the implementation of 12-hour shifts in some areas of the Service's operations (eg., Inner Hunter). I do not consider the Service could be accused of trying to ram through the new shift arrangements without any regard for the concerns of officers. 20I recommend that the implementation of 12-hour shifts proceed forthwith at Morriset and Doyalson in accordance with the roster posted by the Ambulance Service. ********** 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. Decision last updated: 14 March 2012