Industrial Relations Commission New South Wales Medium Neutral Citation: Operational Ambulance Officers (State) Award (No 3) [2015] NSWIRComm 28 Hearing dates: 15 September 2015 Decision date: 15 September 2015 Jurisdiction: Industrial Relations Commission Before: Walton J, President; Kite AJ; Tabbaa C Decision: The rates will be (subject to the identification and implementation of appropriate cost savings): Critical Care Paramedic (Aeromedical) Year 1 $1,586.80 per week Critical Care Paramedic (Aeromedical) Year 2 $1,628.00 per week Team Leader $1,709.40 per week Catchwords: AWARD – statement as to rates to apply to proposed new classification - agreed structure – absorption of specialist allowance – rates subject to identification and implementation of employee related cost savings. Legislation Cited: Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 Cases Cited: Operational Ambulance Officers (State) Award [2015] NSWIR Comm 17 Operational Ambulance Officers (State) Award (No 2) [2015] NSWIR Comm 20 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 (Intervener) Representation: Counsel: M Gibian of counsel (Applicant) P Ginters of counsel (First Respondent) I Latham of counsel (Second Respondent) A Britt of counsel (Intervener) Solicitors: Maurice Blackburn Lawyers (Applicant) NSW Ministry of Health (First Respondent) Australian Paramedics Association (NSW) (Second Respondent) Crown Solicitor's Office (Intervener) File Number(s): IRC 73 of 2014IRC 451 of 2015 STATEMENT 1. On 21 July 2015 and 13 August 2015, this Full Bench published statements (see Operational Ambulance Officers (State) Award [2015] NSWIRComm 17 and Operational Ambulance Officers (State) Award (No 2) [2015] NSWIRComm 20 ("Statement No 2")) in which we expressed certain conclusions and provided an indicative range of rates of pay for the proposed new classification of Critical Care Paramedics (Aeromedical). 2. In Statement No 2 we said: We have concluded that: (1) the classification structure will be that sought by the applicant. (2) as to the rates to be fixed for the new classification: (a) the first year rate should be above the rate of Paramedic Specialist year 3 (when those rates are adjusted for 2.5 per cent); (b) the second year rate will be no greater than the rate for a Clinical Nurse Specialist Grade 1; and (c) the rates will absorb the specialist allowance prescribed by the award. 1. The parties sought the assistance of the Commission by way of conciliation in an attempt to resolve the outstanding issues being (broadly described): 1. The precise rates; 2. The cost of those rates; 3. The identification and implementation of the "employee related costs savings" required to support the making of an effective award having regard to the requirements of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014. 1. While conciliation narrowed the issues, the parties have not been able to agree upon the precise rates and the absorption of the specialist allowance. The resolution of these two issues is necessary to permit, in turn, resolution as to the issue of cost and, therefore, the extent of cost savings necessary. The parties have therefore asked the Commission to make a further statement as to these issues. 2. Written submissions as to these issues were received on 14 and 15 September 2015 and the parties were heard in support of them today. 3. There is no dispute as to the calculation of rates for Team Leader and that of Critical Care Paramedic (Aeromedical) Year 1. The former, as per Statement No 2, is to be 105 per cent of the second year rate. The parties are agreed that the first year rate is to be at the mid-point between the rate for Paramedic Specialist Year 3 (with the Specialist allowance added) and the rate for Critical Care Paramedic (Aeromedical) Year 2. 4. Thus, the key question is as to the rate for Critical Care Paramedic (Aeromedical) Year 2. 5. Notwithstanding the clear statement by the Full Bench as to absorption, counsel for the applicant and the second respondent argued that the rate set should not incorporate the specialist allowance. In the alternative, they submitted the existing helicopter paramedics who are SCAT qualified should continue to receive the allowance, or further in the alternative, the allowance should be absorbed over time by future increases. Conclusions 1. In Statement No 2 we said that the "rates will absorb the specialist allowance prescribed by the award". We intended that to mean that Critical Care Paramedic (Aeromedical) would not be paid the new rates and the specialist allowance. As the applicant acknowledged in its latest submissions at [14]: Helicopter paramedics recruited since 2013 are no longer required to undertake SCAT training. However, the decision that SCAT training is no longer to be a pre-requisite for employment as a helicopter paramedic does not reflect the absence of any need for environmental training. Rather, the Helicopter Paramedic Course introduced from the start of 2014 includes environmental remote access training covering the core components of the SCAT course relevantly adapted to the work of helicopter paramedics. 1. In considering the justification for a new classification and the rates appropriate to it we had firmly in mind that dedicated training program producing a mix of skills both environmental and clinical. The rate we set includes an evaluation of all these skills within the context of the award and other awards. The rate absorbs the specialist allowance. 2. The second respondent submitted: 7. The notion of absorption is that any increase in wages is to be absorbed into the overaward payment or the future wage increases of the individual employee: see for example State Wage Case 2010 (No 2), 206 IR 218, 237 at 12.9. 8. The 2nd respondent assumes that the meaning of the words will absorb the specialist allowance is that the allowance will remain for those entitled to it but that it will be absorbed by future pay increases. 1. The "notion of absorption" there referred to is in quite a different context. The meaning sought to be ascribed to the word, whilst innovative, does not conform to the common usage of the term in Wage Fixing Principles. The assumption made by the second respondent was incorrect. 2. As to the rate for Critical Care Paramedic (Aeromedical) Year 2, the parties each referred to the limited evidence as to the work of Clinical Nurse Specialists. The applicant and second respondent pointed to differences in favour of Critical Care Paramedic (Aeromedical) and the first respondent to those in favour of Clinical Nurse Specialist. Clearly, in our statement we were not intending to establish a precise relativity between the two classifications. The state of the evidence did not allow it. Our indication was intended to set the outer reach of the range we thought appropriate for the proposed new classification. 3. In the absence of agreement by the parties we have decided upon a rate of $1,628 for the second year rate which represents a margin of approximately 8.5 per cent above the maximum rate for Paramedic Specialists. It follows the rates will be (subject to the identification and implementation of appropriate cost savings): Critical Care Paramedic (Aeromedical) Year 1 $1,586.80 per week Critical Care Paramedic (Aeromedical) Year 2 $1,628.00 per week Team Leader $1,709.40 per week Transitional Arrangements 1. The transitional arrangements will reflect the common position of the parties. ********** 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: 24 September 2015