Industrial Relations Commission New South Wales Medium Neutral Citation: Ambulance Service of NSW and Health Services Union NSW (No 2) [2012] NSWIRComm 115 Hearing dates: 16, 17 October 2012 Decision date: 17 October 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: Recommendations made: (1) that the application by ASNSW is adjourned sine die; (2) that the Commission will issue a certificate of attempted conciliation; (3) that pending the filing and serving of an application by the HSU within seven days seeking the form of relief it considers necessary the Commission will list the application for hearing on 17, 18 December 2012. The Commission recognises this may not be sufficient hearing time, but regards it as important that the matter not be left until 2013 before it is commenced to be addressed. If these dates are not convenient the Commission will consider alternatives, but the Commission is anxious to commence hearing the matter in 2012. There are no dates available before 17 and 18 December. It will be left to the parties to agree on the arrangements for the filing and serving of evidence. If there is no agreement the Commission will make the necessary directions; (4) that recommendation (3) above is subject to any industrial action or threat of industrial action being lifted immediately with an undertaking there will be no further industrial action pending the outcome of the arbitration proceedings; (5) that the recommendation of Staff J at [55(1)] of his Honour's Recommendation and Statement that ASNSW is to undertake a review of the workability of the rural reform rosters in respect of phase one, will be implemented according to ASNSW's timetable. The Commission will review the workability of the rosters in the course of the arbitration proceedings to the extent that the rosters have been operating up to 17 and 18 December 2012; (6) that the parties will advise my Associate by midday 18 October 2012 whether these recommendations have been accepted. In the event the HSU does not accept the recommendations and seeks to pursue industrial action, the Commission will entertain an early relisting of the application for dispute orders; (7) liberty to either party to apply on short notice. Catchwords: INDUSTRIAL DISPUTE - Application for dispute orders in respect of threatened industrial action by ambulance officers in defiance of Commission recommendation - Recommendations made that threatened industrial action not occur and that issues proceed to arbitration - Application for dispute orders adjourned pending outcome of arbitration proceedings Legislation Cited: Industrial Relations Act 1996 Cases Cited: Ambulance Service of NSW and Health Services Union NSW [2012] NSWIRComm 111 Category: Procedural and other rulings Parties: Ambulance Service of New South Wales (Notifier in IRC2012/962 and Respondent in IRC2012/1045) Health Services Union NSW (Respondent in IRC2012/962 and Notifier in IRC2012/1045) Representation: Mr R Goot SC with Mr D Mahendra of counsel (Notifier in IRC2012/962 and Respondent in IRC2012/1045) Mr J Murphy of counsel (Respondent in IRC2012/962 and Notifier in IRC2012/1045) File Number(s): IRC 962 of 2012 IRC 1045 of 2012 STATEMENT AND RECOMMENDATION 1In Ambulance Service of NSW and Health Services Union NSW [2012] NSWIRComm 111, a Recommendation and Statement made by Staff J on 9 October 2012, his Honour made a number of recommendations in conciliation proceedings aimed at resolving industrial disputes between the Health Services Union NSW ("HSU") and the Ambulance Service of New South Wales ("ASNSW"). The dispute concerned rostering arrangements at regional ambulance stations. The recommendations followed some five days involving conciliation and two days of inspections at Casino, Yamba and Rozelle. 2His Honour's recommendations were preceded by a number of observations regarding the rosters proposed by ASNSW, referred to as "rural roster reforms": [48] I have earlier set out the relevant clause of the Award that permits 8 hour shift rosters. [49] The rural roster reforms are designed to address what were described as "fundamental problems", to which reference has been earlier made. [50] The 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. [51] It 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. [52] It 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. [53] Unless there is clearly demonstrated a lack of resources to work 8 hour shifts, roster reform should not result initially in staff enhancements. [54] The 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. 3His Honour's recommendations were in the following terms: [55] I 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) (sic - s 134(2)) 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. 4On 15 October 2012, ASNSW advised the Industrial Relations Commission that the HSU had resolved to commence statewide industrial action on Saturday 20 October 2012 in the form of bans on work involving non-urgent patient transports, coverage of sporting events and overtime. ASNSW sought an early relisting of the two dispute matters. 5The matters were relisted on 16 October 2012. At the hearing, ASNSW initially sought dispute orders requiring the HSU, by its officers, employees, members and agents, to refrain from taking or participating in industrial action. Reliance was placed on an affidavit of Ken Pritchard, Acting General Manager, Operations for ASNSW. Mr Pritchard referred to the sources of information indicating the HSU's intention to engage in industrial action, the actions of ASNSW in complying with the recommendations of Staff J and the impact of the intended industrial action. It is apparent that the industrial action would cause significant disruption to patient transport, sporting events where ambulances are required to be in attendance and the capacity of ASNSW to cover absences through overtime shifts. 6Whilst the HSU did not take issue with the affidavit, it opposed the dispute orders. Counsel for the HSU, Mr J Murphy, submitted, amongst other matters, that rosters posted by ASNSW in purported compliance with the recommendation of Staff J constituted breaches of the Operational Ambulance Officers (State) Award. Mr Murphy further submitted: The fundamental objection that the officers have to these rosters is that what they do is, effectively, wipe out the ability to accumulate under the previous rosters or the existing rosters banks of days off where the officers could have in many instances a fouron fouroff roster arrangement where they accumulate those days off. That came into metropolitan ambulance districts back in the early eighties by agreement with the union. It has been the roster model since that time and it's spread on a modified basis to these stations and other rural stations. What is occurring here is turning back the past; instead of having a model based on fouron fouroff, in this case these new officers based on eighthour shifts provide for officers to work seven days straight followed by two days off, the first of those two days off commences at midnight the previous day, or perhaps one minute past midnight on the morning of the day off, two days off and then a further seven days straight. Now the concern we have expressed and have indeed put to his Honour that roster will deprive the officers of the opportunity to fully rest and recover and recuperate from the stresses of this particular profession. These stresses are very real. ... What we want to do with the assistance of this Commission is to run a case similar to that which we did in the annual leave matter to persuade the Commission that these rosters will have a debilitating and detrimental effect on the health, mental health and welfare of the people being subjected to them and that they ought not be permitted. That's the basis of the notification that we've lodged, an attempt to persuade the Commission that that is the case. 7In light of the allegations regarding potential award breaches senior counsel for ASNSW sought an adjournment to the following day in order to obtain instructions. The adjournment was granted and today the Commission was advised the potential breaches had been addressed and eliminated from the rosters. The HSU indicated that if there were any outstanding issues regarding any potential breaches it would pursue the matters with the ASNSW. ASNSW pressed for the dispute orders. 8ASNSW has a strong case for its application to be granted. The HSU has had an opportunity to put forward a case why the ASNSW's rosters should not be implemented. The Commission went to some trouble to hear both sides of the argument and came down in favour of implementing the rosters on the basis of a review of their workability. 9The Commission as presently constituted is reluctant to intrude on recommendations that were made after proper opportunities were given to the parties to put their respective cases. However, it is apparent that there is strong feeling amongst ambulance officers regarding the proposed rosters, exemplified by a rare failure by the HSU and its members to accept recommendations of the Commission. 10The recommendation by Staff J is not legally binding on the parties. Nor was the HSU legally bound by the direction Staff J issued not to engage in industrial action. Moreover, the HSU wishes now to bring additional evidence, including expert evidence, of the fatigue effect of the rosters on ambulance officers. 11Whilst I am anxious to ensure that a recommendation of the Commission is not seen to be undermined or that a threat of industrial action is in anyway rewarded, a genuine grievance remains to be resolved and as the Industrial Relations Act 1996 provides for arbitration and the making of binding orders on parties where conciliation has been unsuccesful, I recommend to the parties the following course: (1)that the application by ASNSW is adjourned sine die; (2)that the Commission will issue a certificate of attempted conciliation; (3)that pending the filing and serving of an application by the HSU within seven days seeking the form of relief it considers necessary the Commission will list the application for hearing on 17, 18 December 2012. The Commission recognises this may not be sufficient hearing time, but regards it as important that the matter not be left until 2013 before it is commenced to be addressed. If these dates are not convenient the Commission will consider alternatives, but the Commission is anxious to commence hearing the matter in 2012. There are no dates available before 17 and 18 December. It will be left to the parties to agree on the arrangements for the filing and serving of evidence. If there is no agreement the Commission will make the necessary directions; (4)that recommendation (3) above is subject to any industrial action or threat of industrial action being lifted immediately with an undertaking there will be no further industrial action pending the outcome of the arbitration proceedings; (5)that the recommendation of Staff J at [55(1)] of his Honour's Recommendation and Statement that ASNSW is to undertake a review of the workability of the rural reform rosters in respect of phase one, will be implemented according to ASNSW's timetable. The Commission will review the workability of the rosters in the course of the arbitration proceedings to the extent that the rosters have been operating up to 17 and 18 December 2012; (6)that the parties will advise my Associate by midday 18 October 2012 whether these recommendations have been accepted. In the event the HSU does not accept the recommendations and seeks to pursue industrial action, the Commission will entertain an early relisting of the application for dispute orders; (7)liberty to either party to apply on short notice. ********** 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: 17 October 2012