Industrial Relations Commission New South Wales Medium Neutral Citation: Ambulance Service of NSW and Health Services Union NSW [2012] NSWIRComm 111 Hearing dates: 11, 28 September, 5, 9 October 2012 Inspections: 4, 8 October 2012 Decision date: 09 October 2012 Before: Staff J Decision: 1.The Ambulance Service of NSW consistent with the Memorandum of Understanding between the parties, is to undertake a review of the workability of the rural reform rosters in respect of phase one, after such rosters have operated for a period of three consecutive roster periods (28 day roster periods). 2.In accordance with the strategy of the Ambulance Service of NSW to improve its efficiency, the Ambulance Service of NSW should liaise with local health authorities in an attempt to reduce non-urgent transfers between midnight and 8.00am and any other matter that might assist in addressing issues of officer fatigue. 3.Zone Managers, Deployment Managers and station officers should take into account a desire of an officer to work particular days, based on individual circumstances, for example, child care arrangements, attendance at weddings and other important events, when developing roster projections. An officer in the Human Resources Section of the Ambulance Service of NSW in Sydney should be made available to deal with any particular officer/s grievances if not addressed, at a local level. 4.Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, I direct that the Health Services Union NSW and employees of the Ambulance Service of NSW are not to organise, participate or be involved in any industrial action arising from the introduction of the rural reform rosters at regional non-24 hour stations which provides for the working of an 8 hour day shift and an 8 hour afternoon shift. 5.Leave is reserved for either party to re-list the dispute, at short notice if required. Catchwords: Industrial disputes - Ambulance Service of NSW - introduction of 8 hour shifts - threat of industrial action - direction made Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: Ambulance Service of New South Wales (Applicant) Health Services Union NSW (Respondent) Representation: Mr I Taylor SC with Mr D Mahendra of counsel (11, 28 September, 5 October 2012) and Mr P Ginters of counsel (9 October 2012) (Applicant)Mr J Murphy of counsel (Respondent) Lander & Rogers solicitors (Applicant) Health Services NSW (Respondent) File Number(s): IRC 962 and 1045 of 2012 STATEMENT AND RECOMMENDATION 1On 10 September 2012, the Ambulance Service of NSW ("the AS") notified, pursuant to s 130 of the Industrial Relations Act 1996, the existence of a dispute with the Health Services Union NSW ("HSU"). 2The question, dispute or difficulty as set out in the notification was: A.The Ambulance Service of NSW currently utilises roster arrangements consisting of up to twelve-hour shifts at its regional stations, being non 24-hour locations. B.The Ambulance Service is proposing to introduce rosters comprised of predominantly 8-hour shifts, and in some cases 9-hour shifts, at those regional stations. It is proposed to introduce those rosters in three phases, covering 25 stations in Phase 1, 52 stations in Phase 2 and 44 stations in Phase 3. C.The intended rosters to be introduced in Phase 1 were notified to employees on Friday 7, September 2012 with an implementation date of Saturday 15 September 2012. D.The new roster arrangements has been the subject of discussion and consultation with the HSUeast since 1 May 2012, with the Ambulance Service having disseminated information and data explaining the justification for the rosters and having engaged in consultation through individual station meetings, combined sector meetings and on a state-wide level. E.The HSUeast and individual ambulance officers have expressed opposition to the introduction of the new rosters. In recent days, the Ambulance Service has received a series of letters signed by ambulance officers indicating refusal to work in accordance with the proposed rosters, citing health and safety grounds. F.In view of threatened industrial action in the above form, the Ambulance Service seeks the urgent assistance of the Commission in respect of this dispute. G.The possible introduction of 8-hour shift based rosters has been the subject of submissions before the Commission in IRC2011/1884, being a dispute notified by the HSUeast. 3The Commission convened a compulsory conference with the parties on 11 September 2012. 4Mr I Taylor SC, who appeared with Mr D Mahendra of counsel, for the AS made submissions which may be summarised in the following manner. AS submissions 5The Operational Ambulance Officers (State) Award, New South Wales, Industrial Gazette, Vol 371, at 114 ("the Award"). together with a Memorandum of Understanding ("MOU") between the NSW Ministry of Health and HSU for the period 1 July 2010 to 30 June 2014, contained a number of commitments including replacing operating levels and local agreements with a zone sector employment model based on operational demands. 6Relevantly, the Award provides, pursuant to cl 20 Hours of Duty as follows: 20. Hours of Duty (a)This clause is to be read in conjunction with clause 20A Evaluation and Transition to New Roster Arrangements and clause 20B Evaluation and Transition to Crib Break Arrangements. (b)The ordinary hours of duty shall be: (i)An average of 38 per week, to be worked in shifts of eight hours duration on no more than 19 days per 28 day period. Shift workers shall be free from duty for not less than two full days in each working week or four full days in each two working weeks, unless otherwise agreed between the parties. (ii)Where work is performed on a modified hours roster the maximum length of a shift shall not exceed 12 hours with the average of 38 hours per week to be calculated over the modified hour roster cycle. (c)Officers working a modified roster of 12 hour shifts will be entitled to two paid 30 minute crib breaks to be taken between the fourth and seventh hour and the eighth and eleventh hour unless otherwise agreed between the parties. Officers working shifts of less than 12 hours duration shall have one paid 30 minute crib break to be taken between the fourth and seventh hour unless otherwise agreed between the parties. (d)Officers who, due to operational requirements, are unable to take their paid crib break within the prescribed times, or whose crib break is not completed, shall receive an additional payment of one hour at ordinary time rates. (e)Subclauses (c) and (d) do not apply to officers in the Operations Centres. Such officers will continue to work shifts and meal/crib breaks in accordance with their modified roster provisions. 7Shifts of between 8 - 12 hours duration may therefore be worked. 8The AS analysed its available data showing the level of demand for services in locations at various times, with a view to determining more efficient rostering of ambulance officers in regional non-24 hour stations. 9The change to an 8 hour roster format is to address what the AS described as "fundamental problems" that required attention. These included the number of after hours disturbances of ambulance officers who are on call; the rostering of on call crews; the ability of the AS to provide more duty crews so as to enhance service to the public and best meet demand with its existing resources and within the current budget. 10The AS also took into account other matters including issues surrounding fatigue management. Regional non-24 hour stations are currently rostered on what is described as a modified roster where there is a single shift worked during the day which may be 8, 9, 10 or 11 hours in duration, with the rest of the hours each day covered by ambulance officers who are on call. If ambulance officers are required to attend work when on call, they are paid at overtime rates. Otherwise, they receive payment for being on call. 11In respect of fatigue issues, a risk that has been identified by the AS is that quite a significant amount of work falls outside the traditional day shifts of 8 to 11 hours. Part of the reform is designed to address these issues. 12An additional background matter was that in dispute proceedings in Matter No IRC 114 of 2011, which came before the President, Boland J, an issue arose in respect of staffing levels at small stations, including the Orana area (the western area of New South Wales). One issue was the difficulty at times for have ambulance officers to work in pairs when called out during the night. 13His Honour, I was informed, amongst other matters, identified a need to have a fundamental review of the current rostering and manning arrangements. 14The AS subsequently engaged in a process of examining roster arrangements. It first met with representatives of the HSU in Dubbo in January 2012. The outcome of the reform is that the AS has identified that by moving back to a traditional 8 hour shift day and adding in an afternoon shift in stations, "fundamental problems" will be addressed. The ordinary hours of work will be increased over the course of a day by the afternoon shift. This will reduce, so it was contended, the number of call outs. It will also produce, so it was further contended, better patient responses, help minimise fatigue and generally produce a more efficient outcome, reducing the need for costlier call outs and overtime, because a greater amount of work will be done in ordinary hours. 15The proposed new rosters are now due to commence in the Northern Zone (Byron Bay, Casino, Murwillumbah, Maclean, Yamba) on 27 October 2012; in the Mid-North Coast Zone (Macksville, Nambucca Heads) on 20 October 2012; in the Central West Zone 1 (Coolah, Dunedoo) and Central West Zone 2 (Bourke, Brewarrina, Collarenebri, Lightning Ridge, Walgett) on 20 October 2012; in the Southern Zone (Bega, Bermagui, Merimbula, Moruya, Narooma) on 17 November 2012, and in the Hunter 2 Zone (Dungog, Muswellbrook, Scone, Tea Gardens) on 20 October 2012. 16In July 2012, the AS distributed a document to ambulance officers detailing the regional roster reform and advising why rosters were being changed. The document stated that the benefits from new rosters included: (i)more on duty paramedics available to respond to patients; (ii)improve clinical outcomes and response times for regional communities by matching on duty coverage with known demand periods; (iii)less out of hours disturbance for paramedics; (iv)less paramedic fatigue. 17It provided that the changes would be introduced to stations in three phases. 18Phase 1, which involves the stations referred to above, was to be operative initially from September 2012. However, the commencement date was deferred by agreement. 19Allowing for consultation with the HSU, Phase 2, which involves approximately 52 country stations, has been given an introduction date as the end of January 2013. Phase 3, which involves approximately 45 country stations, has been given an introduction date of March 2013. 20It should also be observed that there are currently approximately 52 stations working an 8 hour roster in regional New South Wales. HSU submissions 21Mr J Murphy of counsel, who appeared for the HSU, submitted that it was the case many years ago in rural and regional ambulance stations that rosters were quite often based around an 8 hour shift. Over time, there has been a movement away from the 8 hour shift model to shifts of 10 or 12 hours, which provided ambulance officers with a greater accumulation of days off. 22Counsel contended that the proposed changes to rosters was a return to the past and a situation which was seen by the parties historically to be inappropriate and less effective than the rosters that are currently in place. 23Mr Murphy submitted that the notion of a proposed 8 hour shift model would lead to increased paramedic fatigue. It was also strongly contended that the MOU did not foreshadow a move away from the current roster patterns that exist in rural and regional ambulance stations to an 8 hour shift pattern. An 8 hour shift pattern roster would mean that ambulance officers would be working more days than currently worked, and less hours per day. Ambulance officers would also be required to be on call for longer periods of time than currently required. This raised issues of fatigue management. 24It was further submitted that the HSU was concerned about the real impact that 8 hour shifts would have on ambulance officers' lives. Spouses of ambulance officers would be required to give up work to meet child care arrangements. At the present time, ambulance officers enjoy 4 x 4 shifts (4 days work, 4 days off work). This will change to a roster pattern of 7 days work x 2 days off work. 25Mr Murphy requested that the Commission assist the parties in further consultation. Counsel also sought that the Commission undertake an inspection of 3 ambulance stations so that the Commission could see first-hand, the environment in which ambulance officers work and to hear their concerns. This would enable the Commission to understand how the roster changes are likely to impact not only on the lives of ambulance officers, but also on their capacity to provide a service to their communities. 26Mr Murphy also foreshadowed that he had instructions to file an application to vary the Award to provide for a provision that would prevent regression to 8 hour shifts. Recommendation of 11 September 2012 27After hearing the parties, I adjourned into private conference. I subsequently made the following recommendations: 1.That the parties give effect to the arrangements and processes set out as follows to facilitate conciliation before the Commission. 2.The AS will not require ambulance officers to work those rosters posted on 7 September 2012 until 19 October 2012 unless otherwise agreed between the parties. 3.The Health Services Union NSW will, as far as possible, by 5.00pm on Thursday 20 September 2012 and no later than 5.00pm on 21 September 2012, write to the AS setting out full particulars of all objections it takes to the introduction of the rosters, such particulars to relate where necessary to each specific location where the rosters are to be introduced. 4.The AS will, by no later than 5.00pm on Wednesday 26 September 2012: (i)respond in writing to the HSU to the objections which have been particularised; and (ii)file and serve a document outlining in summary form, having regard to the HSU's objections and the AS's response, the specific areas of dispute between the parties. 5.This dispute is listed for further conferences before the Commission commencing at 10.00am on 28 September 2012 and 5 October 2012. 6.The Commission will conduct inspections at the ambulance stations of Yamba, Casino and Maclean on 4 October 2012. 7.The AS will provide data used by its computer system to prepare the graphs in respect of the proposed new rosters for ambulance stations at Yamba, Casino and Maclean by 4.00pm on 13 September 2012. 8.These recommendations, if accepted, will result in the AS's inability to give the required notice under the Award (seven days) that the proposed changes to the rosters that were to come into effect in the Northern Zone and the Mid-North Coast Zone on 15 September 2012 will no longer occur and the previous roster arrangements will be maintained. Given the recommendation of the Commission it is also recommended that neither party take issue with the shorter notice period that will be provided by the AS. 9.I recommend that during the process I have outlined that no industrial action be undertaken by the HSU or any officer of the AS of New South Wales. Further conferences 28 September 2012 28The matter was adjourned for further conciliation on 28 September 2012. In compliance with the recommendations, the HSU set out questions and objections to the rosters proposed by the AS. The AS prepared a schedule setting out the questions and its responses to each question. The AS also provided a separate document responding to the concerns raised by the HSU. 29In a document headed "Summary of Issues" the AS acknowledged that the HSU's document raised the following issues concerning the rosters: (a)general fatigue; (b)fatigue related to disturbances; (c)fatigue related to an increase to on call commitments; (d)on call rostered in excess to Award maximum of 14 as provided for in the Award; (e)family responsibilities; (f)ASNSW's fatigue SOP; (g)single officer responses; (h)service to the community; (i)aggregated zone/cluster development levels; (j)non-emergency transfer of patients between hospitals after hours; (k)increased costs. 30On 28 September 2012, the Commission chaired further private conferences with the parties. The HSU sought additional time to consider the AS's responses and to raise further concerns with the AS. Inspections Casino and Yamba 31On 4 October 2012, the Commission undertook inspections at Casino and Yamba ambulance stations. Ambulance officers from these stations and other stations in the area were provided with the opportunity to raise their specific concerns or make comments and observations in respect of the proposed changes to rosters to the Commission. Correspondence was also received from ambulance officers working in the Orana and the Outer Hunter Zones. The spouses of two ambulance officers also wrote to the Commission. Further conference 5 October 2012 32On 5 October 2012, the Commission chaired further conferences with the parties, both jointly and separately. 33Many of the concerns raised by ambulance officers were of a similar theme. The AS's response to the general concerns raised by the HSU and various ambulance officers (as distinct from specific concerns that related to individual stations) were: (i)the AS will continue to recognise the number of hours worked by permanent part-time officers and current agreements entered into with those with child care responsibilities. It is envisaged there will be limited impact on ambulance officers with permanent part-time arrangements. To the extent ambulance officers have a desire to work particular days based on individual circumstances zone managers, deployment managers and station officers will take those circumstances into account when developing roster projections; (ii)the introduction of an afternoon shift will reduce disturbance for officers on call; (iii)this will result in a decrease in fatigue for officers; (iv)the AS will maintain deployment numbers consistent with existing practice. If there is occasion where there is a shortfall, a crew will be deployed from a nearby centre if it has capacity; (v)on an overall basis, the instances of single officer rostering will be reduced. Where a single officer is rostered, the officer will be paired with an on call officer, or from a neighbouring station. Resources will be deployed to cover instances where there is a shortage of available officers; (vi)shift workers will be free from duty for not less than 2 full days in each working week, or 4 full days in each 2 working weeks: cl 20(b)(i) of the Award. In addition, shift workers will have at least one allocated day off in each 28 day period, unless otherwise agreed: cl 21(a)(iii) of the Award; (vii)the instances of single officer rostering will be reduced. Deployment levels will be managed on a daily basis, as is the case currently, based on work being performed by the most efficient means. To achieve this, the AS will deploy skills based on operational needs and case priority. This will include the deployment of an officer to meet operational needs. Efficient deployment may require an officer to report for duty at another work location within the shift or roster. Deployment to another station within the roster will only occur within reasonable travelling distances (having regard to the circumstances of each case): cl 22(c) of the Award. Where demand requires, control centres may redeploy a crew in terms of its responsibility for distribution. Resources may therefore be deployed to cover instances where there is a shortage of available officers in accordance with the above principle. When drop shift overtime is required, myShfit will be accessed; (viii)officers will work less rostered hours on the days they are rostered. There will be an increase in flexibility to attend to commitments outside of the rostered hours. The increase in duty capacity on rosters will in turn provide greater flexibility at zone and station level. (ix)to the extent officers have a desire to work particular days based on individual circumstances (child care arrangements, weddings, significant birthdays, etc), zone managers, deployment managers and station officers will take this circumstances into account when developing roster projections. 34In respect of paramedic fatigue, data provided by the AS to the HSU indicated that actual on call activity was not significant in the period from midnight to the commencement of the day shift. In the event of call outs after midnight, the fatigue level of the ambulance officer is improved by not having worked a 12 hour shift during the afternoon. The impacts of fatigue are mitigated by the virtue of disturbances being significantly reduced due to the increase in duty coverage in the period from 1600 to 2400 hours. Inspection Rozelle 35On 8 October 2012, the Commission attended the AS's State Headquarters at Rozelle. The Commission received a presentation by Superintendent P Payne, the officer responsible for the preparation of the rosters and Ms J Lee, an analyst retained by the AS in respect of the data that had been input into the Rural Modelling Station Tool ("RMS Tool") for the proposed rosters. The presentation focused on Casino, Macksville and Nambucca Heads. 36The methodology regarding the RMS Tool was explained, together with the results. Representatives of the HSU were provided with extensive responses to questions and comments made regarding the roster format. 37Between November 2010 and October 2011, the AS used incidents ("the data") as the material for the RMS Tool to assess whether the proposed 8 hour shifts would enable resources to be available to work a day and afternoon shift roster format. The results of the modelling were made available to the Commission and the HSU. 38The effect of the RMS Tool was based on a resource availability perspective. The model analysed what would have occurred over the previous 12 months via a phantom, or paper trial, of the proposed rosters. During the dispute proceedings, the HSU had sought a paper trial of the proposed rosters. However, as this had already been undertaken by the AS, it was opposed. The RMS Tool had, for example at Casino, endeavoured to take into account all demands at that station from P1 - urgent response calls, through to P7 - discharge category responses. 39At the conclusion of the conference dealing with the RMS Tool, the HSU provided various alternative roster proposals to the AS and explained how these rosters would operate. These rosters related to Bega, Merimbula, Casino, Yamba, Byron Bay and Maclean. The AS undertook to examine the proposed rosters with the assistance of Superintendent Payne and Ms Lee and provide their response to the Commission in compulsory conference programmed for 9 October 2012. HSU dispute (Matter No IRC 1045 of 2012) 40On 8 October 2012, the HSU notified a dispute with the AS in respect of the proposed 8 hour shift rosters. Relevantly, the question, dispute or difficulty set out in the notification included: ... 5.The effect of the proposed rosters will be that officers will be rostered for duty and on call responsibilities on a significantly greater number of days than is currently the case. 6.By way of example, one of the proposed rosters will require the officer to work 7 days straight, comprising 6 day shifts (including 6 periods of on call from the end of each shift to the beginning of the next shift, the last on call period being for 23 hours), an afternoon shift finishing at midnight, followed by 2 days off, followed by a further 7 days straight of rostered shifts and on call duty. 7.The impact of these proposed changes on the officers' health, well being and ability to cope with fatigue has not been examined by the ambulance Service. 8.These proposed changes will create an unsafe working environment and jeopardise the health and safety of officers and members of the public. 9.These proposed changes will create an unsafe working environment and jeopardise the health and safety of officers and members of the public. 10.It is probable that implementation of the proposed rosters will lead to widespread industrial dislocation. 11.The notifier seeks the assistance of the Commission, by way of order if necessary, in ensuring compliance by the Ambulance Service with subclauses (f) and (g) ("status quo") of Clause 42 Issues Resolution, of the award until this dispute is resolved. 12.This dispute has related facts to a matter before the IRC in Matter 962 /12 currently before His Honour Justice Staff. 41The HSU raises similar issues to those that the Commission has been dealing with in the dispute notified by the AS on 10 September 2012. It was listed for compulsory conference on 9 October 2012, together with the AS's dispute. 42On 9 October 2012, during the further compulsory conference, Mr Murphy sought, pursuant to cl 42 Issues Resolution, of the Award that the status quo continue and the HSU be provided with an opportunity to present evidence of the unfair burden that the rural roster model will have on the health, safety and wellbeing of ambulance officers. 43Counsel strongly submitted that there had not been genuine consultation. 44Mr Taylor submitted that the consultation had been genuine. Senior counsel observed consultation had commenced in January 2012 and proposals were put to the HSU and the stations involved in Stage 1 in July 2012 and responses sought from individual stations and the HSU. 45Senior counsel also submitted that discussions had occurred with small groups of ambulance officers in various zones. Reliance was also placed on the MOU between the parties, particularly cl 10 and cl 4 of Attachment 2, which provide as follows: 10.Minimum Operating Levels and Local Agreements 10.1Minimum operating levels and local agreements will be replaced with a zone/sector deployment based model based on operational demand. This model will operate in accordance with the principles contained at Attachment 2. 10.2The list of local agreements replaced by the zone/sector deployment model are contained in the document at Attachment 3. ... Zone Operating Levels (Principles) ... 4)Deployments will be reviewed and adapted each quarter based on demand, seasonal trends, available staff and any known events. 46Mr Murphy rejected the AS's contention that these clauses affected changes to rosters. 47In addition, Mr Taylor reported that the AS had considered the alternate rosters proposed by the HSU and submitted that none provided a better duty coverage than the rosters proposed by the AS. Statement and consideration 48I have earlier set out the relevant clause of the Award that permits 8 hour shift rosters. 49The rural roster reforms are designed to address what were described as "fundamental problems", to which reference has been earlier made. 50The Commission acknowledges that there has been significant concern and apprehension expressed by the HSU and many ambulance officers in respect of the introduction of the rural reform rosters. However, on balance, it accepts the contentions of the AS that the reforms will lead to more efficient delivery of service and reduced fatigue through less call outs. It was acknowledged by the AS that change is not easy and will affect some officers more than others. 51It is essential however, that such change is managed carefully and sympathetically by the AS. In order for there to be a reduction in disturbances while on call, it is important that the AS actively pursues with the various Health Authorities attempts to mitigate non-urgent transfers between midnight and 8.00am. If this does not occur, it may result in hardship for officers who are on call because of the potential of greater disturbances. It may also give rise to increased fatigue. It will also increase costs. 52It is also essential that the AS ensure that hospitals and health services in the various zones understand the rationale behind the rural reform rosters. These organisations should be encouraged to utilise day and afternoon shifts when seeking non-urgent transfers from the AS. 53Unless there is clearly demonstrated a lack of resources to work 8 hour shifts, roster reform should not result initially in staff enhancements. 54The history of this matter, as set out in this statement, does not support the contention of the HSU that there has been a lack of genuine consultation by the AS with the HSU in respect of the proposed changes to the rosters. Discussions commenced in January 2012 and have proceeded to date with the assistance of the Commission. Although no agreement has been reached, in my view, there has been genuine consultation. On the material before me, cl 42 of the Award has been complied with by the AS. 55I make recommendations that these disputes be resolved as follows: 1.The Ambulance Service of NSW consistent with the Memorandum of Understanding between the parties, is to undertake a review of the workability of the rural reform rosters in respect of phase one, after such rosters have operated for a period of three consecutive roster periods (28 day roster periods). 2.In accordance with the strategy of the Ambulance Service of NSW to improve its efficiency, the Ambulance Service of NSW should liaise with local health authorities in an attempt to reduce non-urgent transfers between midnight and 8.00am and any other matter that might assist in addressing issues of officer fatigue. 3.Zone Managers, Deployment Managers and station officers should take into account a desire of an officer to work particular days, based on individual circumstances, for example, child care arrangements, attendance at weddings and other important events, when developing roster projections. An officer in the Human Resources Section of the Ambulance Service of NSW in Sydney should be made available to deal with any particular officer/s grievances if not addressed, at a local level. 4.Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, I direct that the Health Services Union NSW and employees of the Ambulance Service of NSW are not to organise, participate or be involved in any industrial action arising from the introduction of the rural reform rosters at regional non-24 hour stations which provides for the working of an 8 hour day shift and an 8 hour afternoon shift. 5.Leave is reserved for either party to re-list these disputes, at short notice if required. ********** 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: 10 October 2012