Industrial Relations Commission New South Wales Medium Neutral Citation: Operational Ambulance Officers (State) Award [2015] NSWIRComm 17 Hearing dates: 9, 10, 11, 12, 13 and 27 February 2015; 31 March 2015; 7 May 2015; 6 and 7 July 2015 Decision date: 21 July 2015 Jurisdiction: Industrial Relations Commission Before: Walton J, President; Kite AJ; Tabbaa C Decision: The Full Bench determines that: (1) The applicant has succeeded in making out an arbitrated case under Principal 8 of the Wage Fixing Principles: State Wage Case 2010 (No 2) [2011] NSWIRComm 29; 206 IR 218 at 230 and, in particular, has satisfied the criteria stated in sub-Principles 8.2 and 8.4 for an increase in wages and conditions of the group of employees the subject of these applications. (2) There should be a new classification inserted into the award to be described as Critical Care Paramedic (Aeromedical). The matters are listed for Directions at 9.30am on Friday 31 July 2015. Catchwords: AWARD – application for variation – claim for new classification – Wage Fixation Principles – arbitrated case – work value – special case Legislation Cited: Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 Cases Cited: Re Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 [2012] NSWIRComm 122 State Wage Case 2010 (No 2) [2011] NSWIRComm 29; (2011) 206 IR 218 Category: Procedural and other rulings Parties: Health Services Union of NSW (Applicant) NSW Ministry of Health (First Respondent) Australian Paramedics Association (NSW) (Second Respondent) Secretary of the Treasury (Intervenor) Representation: M Gibian of counsel (Applicant) P Ginters of counsel (First Respondent) I Latham of counsel (Second Respondent) A Britt of counsel (Intervenor) Solicitors: W G McNally Jones Staff Lawyers (Applicant) NSW Ministry of Health (First Respondent) Australian Paramedics Association (NSW) (Second Respondent) Crown Solicitor's Office (Intervenor) File Number(s): IRC 73 of 2014 and 451 of 2015 STATEMENT OF THE FULL BENCH 1. The applicant, Health Services Union NSW, has made two applications seeking variations of the Operational Ambulance Officers (State) Award ('the award') in respect of a confined group of paramedics performing work in the Aeromedical Retrieval Services of the Ambulance Service of NSW. 2. The first application, Matter No IRC 73 of 2014, seeks the insertion into the award of a new classification called Critical Care Paramedic (Aeromedical). The application also seeks the establishment of a rate of pay for that classification greater than the rate payable to other paramedic specialists. 3. In Matter No IRC 451 of 2015, filed on 1 July 2015, the applicant seeks a variation of the award to insert the same classification and a rate of pay, from 1 July 2015, 2.5 per cent greater than the rate claimed in Matter No IRC 73 of 2014. 4. By consent, the two proceedings were joined by order of Walton J, President, on 6 July 2015. On that date the Full Bench resumed hearing the joined matters. The Full Bench also heard argument on a Notice of Motion, filed by the first respondent, Secretary of the Treasury on behalf of NSW Ministry of Health, seeking to dismiss or permanently stay Matter No IRC 73 of 2014. 5. Prior to the commencement of the hearing of Matter No IRC 73 of 2014, procedural directions were made in effect dividing the case into, potentially at least, two stages. Those directions were made consistent with the process outlined in Re Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 [2012] NSWIRComm 122 at [32]. 6. The first stage of the proceedings involved hearing evidence and argument as to the merit of the application. If merit were established the second stage would involve hearing evidence as to the cost of the claim and the cost savings, if any, which may be necessary to ensure compliance with the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ("the Regulation"). 7. We note, at this point, another application which has influenced our desire to proceed as expeditiously as possible in the resolution of this matter. The first respondent also filed an application on 1 July 2015 seeking an increase of 2.5 per cent to apply to all persons covered by the award other than the group of employees covered by the current applications. We anticipate that this last matter will proceed by consent and quickly. The result may be that all persons other than those the subject of these applications will receive an increase in rates of pay of 2.5 per cent with effect from 1 July 2015. It seems to us undesirable that this group of paramedics should be unduly delayed in receiving at least that level of increase. 8. Accordingly, we have decided to make this statement as to part of our conclusions for stage one of the hearings without giving detailed reasons, so as to facilitate, by agreement and/or further hearing and determination, the disposition of the balance of stage one and stage two of the proceedings. The Statement is not intended to obviate the need for detailed reasons which will be provided in due course. 9. We observe that, in light of our conclusion as to operative date, it is not strictly necessary to resolve the issues raised in the notice of motion. However, we will give additional consideration as to whether it is appropriate to make any further observations as to those issues when we publish our detailed reasons. 10. The Full Bench determines that: 1. The applicant has succeeded in making out an arbitrated case under Principal 8 of the Wage Fixing Principles: State Wage Case 2010 (No 2) [2011] NSWIRComm 29; 206 IR 218 at 230 and, in particular, has satisfied the criteria stated in sub-principles 8.2 and 8.4 for an increase in wages and conditions of the group of employees the subject of these applications. 2. The time from which the change in work value is to be measured is 24 December 2010. 3. There have been changes in the nature of the work and in the level of skill and responsibility required of persons performing this work, such as to satisfy the work value criteria. 4. The incidence of the changed work, and the skills and responsibility involved, is sufficiently broadly spread and performed sufficiently frequently by the members of the group to warrant an increase in rates rather than compensation by way of allowance. 5. There should be a new classification inserted into the award to be described as Critical Care Paramedic (Aeromedical). 6. On the undertakings given by the applicant, and the statements made on behalf of the second respondent, there will be no disruption to relativities within the award, particularly with other paramedic specialists. 7. The final resolution of issues related to relativities both within the award and between awards will be a matter to be determined in the process of valuation. 8. Absent some extraordinary development, the date of commencement of any increase above 2.5 per cent will be dependent upon the operation of the Regulation. In any event, it will not be earlier than 1 July 2015. 1. We have not yet determined the question of the value to be applied to the special circumstances, including the significant net addition to work requirements, applicable in this case. We can, however, indicate that, subject to meeting the requirements of the Regulation there will be a cost above 2.5 per cent. We therefore commend to the parties that they give early consideration to the question of "employee related cost savings" to permit the awarding of an increase above 2.5 per cent. We will endeavour to facilitate that process by delivering a Statement of a similar character with respect to our provisional view as to quantification (subject to considerations arising under the Regulation). 2. We propose to allow the parties a little time to consider what we have said and will list the matters for Directions at 9.30am on Friday 31 July 2015. At that time we may seek (by way of directions) further assistance with respect to quantification (possibly by a comparative schedule of rates of pay and allowances between relevant comparative classifications of work). We intend also to fix a program for hearing stage two. (The parties should discuss, in that respect, the prospect for a hearing in or before September 2015). ********** Amendments 23 July 2015 - Paragraph: [12] Amendment reason: full stop inserted after "work)" in third line; "and" in third line changed to "We intend also to". 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: 23 July 2015