T3779 and T2586
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TASMANIAN INDUSTRIAL COMMISSION Decision Appealed - See T4110, T4111 and T4112 Industrial Relations Act 1984 The Ambulance Employees' Association of Tasmania TASMANIAN AMBULANCE SERVICE AWARD and Correction Order [7.12.92] and Correction Order [11.3.93] and Order No. 3 of 1993
Award variation - SEP - deletion of definitions and salary rates for non-functional classifications REASONS FOR INTERIM DECISION These applications by the Ambulance Employees Association of Tasmania (the Association) were to consider structural efficiency initiatives (T2586 of 1990) impacting on the Tasmanian Ambulance Service Award and the deletion of certain definitions and salary levels for classifications (T3779 of 1992) which were said to be "non-functional". The applications were joined for hearing purposes. Application T2586 of 1990 was later amended at the request of the Commission to fully reflect the SEP matters sought to be included in the award. By way of background, application T2586 of 1990 was made to give effect to the second instalment structural efficiency adjustment. It was joined with various other structural efficiency applications for nominated public sector awards. Those applications were before the Full Bench in matter T2399 of 1990 and others (the Public Sector Structural Efficiency Case - 1989 State Wage Case). When in that matter the Full Bench determined structures for professional, operational, clerical and technical employees, the Association's application T2586 of 1990, was referred to me for hearing and determination. It should be noted that in the period between the lodgement of application T2586 of 1990 and its subsequent referral to me, the Tasmanian Ambulance Service Award was varied for the second instalment structural efficiency adjustment, along with nominated public sector awards in matter T2399 of 1990 and others. The operative date for all those award variations was the first full pay period to commence on or after 18 July 1990. In the circumstances the matters that I am required to consider relate to the structural efficiency initiatives which have been the subject of extensive negotiation between the parties. Essentially the issues requiring the attention of the Commission were contained in Exhibits N2 and N3 which set out agreed and non-agreed matters; albeit not every part of Exhibit N2 was agreed. The broad agreement of the parties was put to the Commission on the basis of the following statement:
I concur with the deletion of Clause 7 - Definitions, and for it to be replaced with the one proposed by the parties in Exhibit N2, subject to the following: Student Ambulance Officers The proposed new definition for this category of employee was originally agreed between the parties. Subsequently that agreement was not able to be maintained by the Association. The proposed new definition provided for Student Ambulance Officers (students) completing their training within a six year period. The current definition provided for completion within a three year period. The fundamental difference between the parties related to from when Students should be paid in accordance with the salary scale for Ambulance Officer. Mr Neilsen appearing for the Association submitted:
Underlining & brackets mine Transcript p15 Mr Neilsen indicated that present training arrangements did not permit finalisation of the examinations required to be passed by Student Ambulance Officers within the prescribed 3year period. He said that "it's been delayed perhaps for some weeks or some months after the 3 years period" (Transcript p15). Mr Neilsen submitted that when this occurred Student Ambulance Officers on passing their examinations were paid the Ambulance Officer rate of pay from the end of the 3 year period. Mr Neilsen opposed the extension from 3 years to six years. Miss Cox, for the Minister administering the Tasmanian State Service Act 1984 (the Minister), submitted in essence that until the training was completed, and particularly in circumstances where examination of Students is not able to be undertaken "within a three year period" (as per the existing definition) then the Tasmanian Ambulance Service (the TAS) was required to pay the Students concerned back to the end of the three year period when in fact they were not qualified at the end of that period. Miss Cox said:
I understand the concerns addressed by Miss Cox but of course the remedy is in the hands of the TAS. It is up to it to ensure that the current time frames for examinations are met. The entire award structure is predicated on the acquisition of skills and qualifications as set out in the definitions. Those recruited to the TAS post 1984 cannot continue as Students in the event the qualification criteria is not satisfied. They are dismissed (only in special circumstances is re-examination permitted). In other words the definition stipulates obligations for the employer and employee alike. I do not consider that a case has been made out to support changing the existing time frame within which Students should complete all of the components of the Certificate of Applied Science (Ambulance Officer) Course. Indeed I consider six years, as an absolute maximum, to be far too long. The whole intent is for Students to qualify and progress into the Ambulance Officer stream. The existing structure and definition does that within a reasonable period, in my opinion. Accordingly I do not support that Students should not be paid from the date of completion of their qualification within a 3 year period. It follows therefore, in the event that period is exceeded, then on passing their examinations they should be paid the Ambulance Officer rate of pay from the end of the 3 year period. Ambulance Officer The proposed definition is more precise than the existing award definition. It does not alter the meaning of the definition; albeit that reference to typical duties has been omitted from this and other proposed definition variations. The new definition in Exhibit N2 is endorsed. Ambulance Office (Patient Extrication) The proposed definition has been reduced to be read down from the Ambulance Officer definition above. The definition put forward by the parties refers only to that part dealing with accreditation in the Patient Extrication programme. It is assumed that that part of the definition title relating to "Ambulance Officer" is "picked up" by the actual definition for that classification level, as indicated in the definition for Ambulance Officer, above. While I have some reservations about this approach given my view that each definition should stand alone and therefore cover all aspects of the definition, the approach adopted by the parties makes the definition easier to read and does no violence to it. Accordingly the definition in Exhibit N2 is endorsed. Ambulance Officer (Advanced Life Support) The definitions for those classification levels as set out in Exhibit N2 are endorsed for the same reasons as discussed for the definition for Ambulance Officer (Patient Extrication). Supervisor Tactical Operations The parties submitted that the existing definition and classification for Duty Officer should be deleted and replaced by a new definition and classification for Supervisor Tactical Operations. Mr Byrne appearing with Miss Cox commenced his submissions by reference to the 1988 work value finding in TA30 of 1988 where the rate of pay for Duty Officer was increased by 12 per cent. I was informed by Mr Byrne that following the 1988 decision in that case, there was great concern by Duty Officers relating to the pay structure and future career paths for employees in that classification. In the current case Mr Byrne satisfied me that the Duty Officer role had undergone further significant change. In that context I was advised that the abolition of Deputy Superintendent and Training positions foreshadowed in the decision in TA30 of 1988 (p54) had occurred. In the result Duty Officers assumed more regional and State operations and training tasks. Mr Byrne also referred me to the 1990 Tasmanian Ambulance Restructuring initiatives as set out in the Tasmania Ambulance Service Budget Strategy papers for 1990-91. It was submitted by Mr Byrne that the restructuring which occurred in July 1990 had as its focus:
As a consequence the number of Duty Officer positions were reduced from 15 to 6. Mr Byrne said the intention was for the Commission to support the reclassification of those Duty Officer positions to Supervisor (Tactical Operations). I was informed that all Duty Officer positions had in fact been abolished (Exhibit TAS8 p9). The apparent contradiction between the Commission being informed that the number of Duty Officer positions had been reduced to six and that all positions had in fact been abolished did not escape me. Mr Byrne also submitted that the June 1990 restructuring elevated Duty Officers from shift supervisors with some management support responsibilities to supervisors tactical operations with immediate middle management level responsibilities and support. Having regard to the material presented to the Commission I endorse the agreement of the parties to include in the award a new definition and classification for Supervisor Tactical Operations. The definition will be as set out in Exhibit N2. I also endorse the salary level of $33,494 per annum for this new classification. There are however some observations that I consider that I should make. These relate to the actions taken by the TAS to abolish the Duty Officer position and other award positions ahead of Commission proceedings dealing with the same issues. In my opinion the approach and indeed the attitude of the TAS to this type of exercise is presumptuous. That is because the assumption appears to be that the Commission will automatically and retrospectively endorse the actions taken. I consider it to be appropriate for these matters to be tested in the Commission in the first instance. This would certainly overcome any difficulties should the Commission find, on merit considerations, that it was unable to give, what is effectively, as I have said, retrospective support to Departmental initiatives requiring award modifications. I am of the view that the distinction should be made between Departmental actions which give rise to de facto deletions of award classifications as with Duty Officers, and the creation of new positions where the range of classification and salary scales in an award provide the scope for this to be undertaken. Clearly the Tasmanian Ambulance Service Award does not provide the classification range to enable the abolition of Duty Officer positions and for them to be allocated another classification in that award. That is why the matter had to be brought to the Commission for a classification of Supervisor Tactical Operations to be included. Obviously the potential for a different finding was there and in my opinion this should have been avoided. On a related subject matter, I noted quite by coincidence that the Executive Officer position in the Tasmania Ambulance Service Award was reclassified to Class XIII ($43,419 pa) subject to confirmation with the Department of Premier and Cabinet (Exhibit TAS8 p9). It is currently in the award at the equivalent level of Class VII with a salary range of $31,246 to $32,748 per annum. The fact that the TAS would undertake that step without seeking to vary the award is remarkable. Notwithstanding that this matter was brought to the attention of the parties, no action was attempted to be initiated to rectify the situation. Clearly there should be some justification for an increase of around $10,600 pa in an award classification. In the meantime the Tasmanian Ambulance Service Award will obviously continue to reflect the salary for the Executive Officer as is set out in Clause 8 of the award. It seems that there is scant regard for the orderly and logical approach to dealing with these issues and one can only wonder about that. Surely this ad hoc approach, which appears to be in vogue at present, should not be allowed to continue without proper checks and balances. It seems the system of salary and wage regulation is running amok. It should be noted that the Executive Officer position among others was discussed in my Reasons for Decision in TA30 of 1988 at pages 68-72. Quite apart from all of that, there appears to be an attitude afoot in the State Service, that whether or not an award properly reflects the wages and conditions of employees subject to an award is immaterial so long as another classification level in another award can accommodate any reclassification that may be considered appropriate. Maybe the scope provisions of awards need to be re-examined to ensure that award structures properly determined in accordance with all of the appropriate criteria represent more than a whole lot of obsolete and redundant classifications. The issue I am talking about relates to process and it needs to be sorted out. Clinical Instructor Currently the award contains two Clinical Instructor definitions. One refers to Clinical Instructor (Patient Care) and the other Clinical Instructor (Patient Extrication and Driver Training). The parties are in agreement that only one Clinical Instructor definition is required. The existing definitions are supported by separate salary rates in Clause 8 of the award. Whilst no changes to existing salary levels are proposed, it is intended to cover both classification levels in the award with one definition. In raising this issue with Miss Cox in the proceedings I indicated my preference for definitions to relate to designated classifications in the award. Alternatively the classification could be broadbanded with the effect the proposed definition would refer to the broadbanded classification. This course was not supported by Miss Cox who said:
and later:
In my view to endorse one definition for separate levels of Clinical Instructor, as represented by the salary levels in Clause 8 of the Award, would not be appropriate. Accordingly I do not intend to vary the award in the manner requested. In reaching that conclusion I was mindful of the submissions made by Mr Byrne where he submitted that the TAS was striving to establish definitions from a base level. He said that the intention was to:
Underlining mine Transcript p26 Whilst I have endorsed this approach for the definitions discussed earlier in this decision, I do not consider it to be appropriate for the Clinical Instructor definition for the reasons stated. Course Co-ordinator (Advanced Life Support Course) Course Co-ordinator (Certificate of Applied Science) The above positions are separately defined in the award and have distinct salary levels allocated to them. The proposal of the parties was to delete the existing definitions and salary levels and replace them with a new definition - training Co-ordinator with a salary rate equating to Course Co-ordinator (Certificate of Applied Science) at $38,747 per annum. For the reasons outlined with regard to Clinical Instructors I do not propose to vary the existing definitions. In coming to this decision I have also had regard to the submissions of Miss Cox where she indicated that one of the reasons for the need for a training Co-ordinator position was as a result of the training review undertaken by the Clinical Practice and Education unit in late 1991. That review found that Training Co-ordinators should participate in and co-ordinate a broad spectrum of educational activities rather than focusing on clinical needs alone. I have no problem with this approach but wish to retain the integrity of the current structure which clearly reflects two salary levels for Course Co-ordinator. As the role of the Training Co-ordinator is regarded to equate to the present rate of pay for Course Co-ordinator (Instructor in Certificate of Applied Science Course) I am not convinced that a new classification title should be introduced. In any event the existing definition already contemplates that the Course Co-ordinator (Instructor in Certificate of Applied Science Course) undertake "other training activity". So there is no limitation on the range of training activities that may be provided. If it is considered that the present definitions are too restrictive, as was submitted, a stand alone classification may be considered appropriate, ie in addition to the Course Co-ordinator classifications. In the proceedings I indicated that the Course Co-ordinator classification rates of pay were established having regard to, inter alia, qualifications as set out in the definitions. If, as it appears, that Training Co-ordinators may or may not hold those prerequisite qualifications, given that their training focus may be different, then the parties should provide more information to the Commission to enable an appropriate work value assessment to be made. Certainly setting a salary on the basis of an attraction rate (Transcript p117) does not meet the wage fixing criteria extant at this time. Communications Officer The existing award contains the following salaries scale:
The parties requested that the salaries scale for Communications Officer be restructured in the following terms:
In support of these proposals Miss Cox brought to my attention the provisions of Section 33 of the Tasmanian State Service Act. That Section relates to the Functions and Powers of Heads of Agencies to inter alia:
I understand the submissions made by Miss Cox relating to that provision with regard to what is requested to be done for the Communication Officer structure, however I am not exactly sure of their relevance here. Presumably Miss Cox meant to convey that the TAS concluded that the structure should be altered. I have no difficulty with that. Clearly, in matters of that kind the powers and functions of Heads of Agencies must be exercised in accordance with award provisions. Where the award does not provide the salaries and/or classification range for a Head of Agency to assign a classification then obviously that range must be sought, as it indeed it is being sought here, by way of award variation proceedings. Where the range of classifications and as a consequence, the salary levels are limited in the award in question, then obviously classifications are unable to be assigned. Of course the approach lately has been to find another award which provides the classification range. Why that was not done here is not clear to me. Anyway, I have commented on this earlier in this decision. I am obviously of the view that the approach with regard to this Communications Officer exercise is the correct one. Therefore, with regard to the existing structure for the Communications Officers, this was requested to be replaced with a new structure comprising Trainee Communications Officer, Communications Officer and Senior Communications Officer. A new salary level was requested to be determined for each classification; notwithstanding that the existing Communications Officer (Computer Aided Dispatch) salary scale was sought to be applied to the Communications Officer classification. The existing salary scale for Communications Officer was asked to be deleted. Clearly these are award matters. Whilst I accept as appropriate that Heads of Agency devise organisational structures I do not accept the validity of the submissions of Miss Cox where she said:
The assumption was, I believe, that the power of Head of Agency derived from the Tasmanian State Service Act 1984 should automatically translate into an acceptance by the Commission of the appropriateness of what was determined as a relevant structure, including rates of pay. Clearly those matters should be tested in the Commission, as indeed they have been. As a general comment, and I have stated this previously in matters of this kind, where there is an interplay between the Industrial Relations Act and the Tasmanian State Service Act 1984, a common sense approach should be adopted predicated on giving parties to an award an opportunity to be heard. To do otherwise is a denial of natural justice. Turning to the actual proposals submitted for Communications Officers. The existing salaries were determined on the basis that there was a difference, in work value terms, between Communications Officers and Communications Officers (Computer Aided Dispatch). I was informed by the parties of their consent to have Communications Officers remunerated at the equivalent level of Communications Officer (Computer Aided Dispatch). In support of that rate of pay the parties referred me to the proposed definition for Communications Officer which stipulated that the person must hold a current accreditation (Exhibit N2 page 6) in the Communications programme. It is not clear to me what this means. If all communications is now computer aided or there is some other valid reason why the existing salary rate for Communications Officer classification should be increased, then I would have no difficulty in agreeing to the proposed variation. As for the Trainee and Senior Communications Officer classifications I require elaboration on the Communication Course and reference to "additional qualifications deemed relevant" for the Trainee and Senior Classification levels respectively. Leave Reserved is granted for that purpose. Part-time Employee Definition The parties sought to vary the existing definition of part time employee by the inclusion of the following: "With the approval of the Director of Ambulance Services, two part time employees may share a single full time position according to such conditions as the Director may from time to time approve." On reflection I am not prepared to vary the existing definition ahead of what may be determined by the Full Bench in matters T2399 of 1990 etc. Leave Reserved is therefore granted in respect of this matter. Shift Worker Definition The existing definition refers to Clause 23(a) Shift Worker - which sets out the definition. The parties quite properly seek the definitions to be placed in the Definitions clause. This is endorsed. Keyboard Employees and Office Assistants Award - Salaries The parties seek the deletion of Keyboard Employees and Office Assistants salary levels from the award to be replaced by reference only to the Keyboard Employees and Office Assistants Award. This variation is not endorsed. However leave is reserved subject to the finalisation of the public sector case in T2399 of 1990 dealing with new award streams. The salaries clause for Keyboard Employees also sets out payment provisions for part time employees. The parties sought the deletion of that part dealing with the "more or less than 20 hours" provision. I do not consider that the deletion of reference to 20 hours to cut across any deliberations by the Full Bench in T2399 of 1990. Indeed they Keyboard Employees Award does not make reference to the 20 hour provision. In the circumstances that part of the variation is endorsed. Kilometreage Allowance The variation to reflect engine capacity in litres in lieu of horsepower is endorsed. Meal Allowance The parties requested the deletion of the existing provisions to be replaced by a new clause essentially to make clear the time spans applicable to breakfast, lunch and dinner. The variation is endorsed. Board and Lodging Living Away From Home Allowance The parties requested the deletion of subclause 9(b) Board and Lodging and 9(f) Living Away From Home and inserting a new clause in the following terms:
Mr Nielsen submitted that the claimed incidental allowance of $4.00 a day was within the parameters of the New Allowance Principle which permits the reimbursement of expenses incurred. The thrust of the submissions made by Mr Nielsen was that when an employee is away from home incidental expenses are incurred over and above those which are incurred at home. Examples given by Mr Nielsen related to costs for newspapers, toothpaste and other toiletries, personal laundry and the like. Mr Nielsen also contended that whilst cooking facilities are available "to a degree" (Transcript p60) additional purchases may be involved. Costs may also be incurred in maintaining uniforms in an acceptable manner. It was my understanding that the incidental allowance, initially supported by the Minister, was in fact sought to be included in the award to formalise an existing arrangement. The other aspect of the allowances claim was to include in the Living Away From Home Allowance an all "inclusive amount". The amount requested by the Association was the combined total of the Breakfast, Lunch and Dinner amounts contained in subclause 9(j) Travelling, ie $39.35. The Minister opposed this and requested that I include an amount of $26.10 representing the combined total for Breakfast, Lunch and Dinner set out in subclause 9(g) Meal Allowances. The contention of the Minister was that as employees are required to relieve other employees and that they are not travelling, it would be inappropriate to provide a rate based on the various components of travelling allowance. Miss Cox submitted that relieving employees are provided with accommodation and quite often they provide their own meals. Mr Nielsen argued that the meal allowance provisions are not appropriate as reimbursement of monies in accordance with that subclause is for the specific circumstances outlined, ie where an employee works for two hours or more after the scheduled finishing time of a shift where that time is beyond the employees normal meal period. Or where an employee is away from his duty station and is unable to have a meal within one hour of the normal meal period. Mr Nielsen said in essence that the Living Away From Home all inclusive allowance was to recognise that employees were domiciled away from home. Mr Chapman appearing with Mr Nielsen submitted that the Meal Allowance provisions are there as a "penalty" (Transcript p63) where the employee is unable to take a meal at the appropriate time. He compared that with the Travelling Allowance which he said contained the rates for those employees who are away from home the "same as a person who is on relief duty" (Transcript p63). I do not consider the submissions made by any of the parties to have addressed the real issue of an appropriate allowance to be paid when employees are required to relieve. Having regard to the submissions made I am of the view that an allowance made up of the various components of Travelling Allowance or Meal Allowance, would not be appropriate where employees relieve. Travelling Allowance, whilst an extended period may be involved, does not envisage relieving. Meal allowances are provided for the reasons referred to by Mr Chapman. I also do not consider it appropriate to specify a separate incidental allowance component in a Living Away From Home Allowance. In my opinion the allowance should be all inclusive. I note that later in the proceedings Miss Cox withdrew the offer made by the Tasmanian Ambulance Service for a $4.00 incidental allowance on the basis "the government is no longer in a financial position to ... support the introduction of any new allowance" (Transcript p205). In all of the circumstances I will grant Leave Reserved on this issue to enable the parties to further consider their position. I also make the point that I do not regard the act of relieving away from home for Ambulance Officers to be different to relieving carried out by other employees in the State Service. In that regard the parties may wish to pursue this matter subsequent to the finalisation of the Public Sector case in T2399 of 1990 etc. Accordingly existing Board and Lodging and Living Away From Home provisions will be retained in the award. Grievance Procedure - Clause 13 - contains a provision relating to Disciplinary Procedures which is superfluous. I agree with the deletion of the provision. More Responsible Duties Subclause 9(d)(ii) contains a number of incorrect subclause references. The corrections proposed by the parties in Exhibit N17 are endorsed. Staff Amenities The existing clause relating to staff amenities was sought to be varied to include a proviso to indicate that the facilities (amenities) outlined in that clause may be provided in a place other than an ambulance station. I intend to place this on the Leave Reserved list. The issue was not extensively canvassed in the proceedings. In addition I am concerned that the written guidelines referred to at page 25 of Exhibit N2 to clarify an "acceptable other place" have not yet been developed. It seems to me that the parties need to examine the whole clause in more detail before any variation is made. For instance, subclause 25(b) Messing Facilities stipulates that each station shall have certain facilities. The intended proviso could be regarded to cut across that provision. Certificate Allowance Existing subclause 9(c) was requested to be deleted by the parties. A new subclause was also agreed. I endorse the new wording given that the existing allowance of $5.75 per week was not sought to be varied. I concur that ambulance Officers acting in higher classified position should not receive the allowance. Higher Duties Allowance The Association sought the retention of the existing qualifying period of not less than one day. The Minister argued for the inclusion of the "State Service Standard", ie 5 days or more. I intent to retain the existing provisions but will put the issue on the Leave Reserved list pending finalisation of matter T2399 of 1990. On a general note, I indicate that I understand the concern, particularly that of the Association, about this approach. Whilst in this case their favoured position is maintained, I have stated elsewhere in this decision, that further consideration of issues has been set aside pending the outcome of Full Bench proceedings in T2399 of 1990. In that regard the parties should be cognisant of the Statement of the Full Bench in T2399 of 1990 where at page 4 the Bench said:
Whilst it is correct to note that there is no impediment on the Commission as constituted in these proceedings from determining conditions matters in this award, my preferred approach is to await the outcome of the public sector case in T2399 of 1990. The parties can then make submissions which may take into account the outcome in that matter. It follows therefore that I will not further canvass the submissions of the parties or the merit or otherwise of the proposal going to an I-Charge Shift Allowance of $8.50 offered by the TAS when Ambulance Officers act in charge of a shift for more than half a shift (Transcript p830). Travelling Allowance The Minister sought to amend subclause 9(j) Travelling Allowance to "specifically allow for the provision of accommodation and meals instead of travelling allowance at the discretion of the Director". Miss Cox submitted that there may be circumstances where a course was being conducted where accommodation and meals are provided. She said:
Mr Nielsen submitted that the existing Travelling Allowance provisions should not be amended in the manner requested. He advocated that travelling allowance is for a specific purpose and should not be tampered with. I agree with that view. However the circumstances referred to by Miss Cox are real and in the example she gave there can be no justification for the payment of Travelling Allowance. Whilst I do not intend to vary the Travelling Allowance provisions in the award the Minister has Leave Reserved to make submissions on a Training courses and Conference Allowance provision to be included in the award. A similar provision is contained in the General Conditions of Service Award. If that approach is adopted, any new provision would be included in the award on an interim basis subject to the outcome of the Public Sector case in T2399 of 1990. In reaching this conclusion I recognise that the Association was not seeking the payment of Travelling Allowance when attending conferences where "board is supplied" (Transcript p87). Given that situation the provisions in the General Conditions of Service Award I have referred to may be appropriate. This would particularly be the case in such circumstance as outlined by Miss Cox where she said:
Annual Leave The TAS sought the deletion of the six days additional annual leave provision for Southern Region employees employed prior to 17 September 1984. I agree with Miss Cox that this is a Full Bench matter as provided for by Section 35(c)(i) of the Industrial Relations Act 1984. I have referred the matter to the President for him to consider referring it to a Full Bench for determination. Payment of Wages The extension of time for payment of wages is endorsed. Reimbursements The variation to require an employee to pay telephone installation or connection costs where the employee moves residence more than 3 times within six years, is endorsed. Hours of Work The TAS sought to reduce paid meal break time from 30 to 20 minutes for employees subject to subclause 14(b)(iii) of the award. Mr Watson indicated that the requested reduction to apply to the "daytime meal break" was to bring it into line with the "evening meal period" (Transcript p89) which was reduced by 10 minutes as part of 4 per cent second tier negotiations. Mr Watson said that the Association was opposed to this change. Other variations requested by the TAS related to the deletion of subclauses 14(b)(i), 14(b)(ii) and references to the 4 x 4 roster in subclause 14(b)(c). Those variations impact on the current 4 x 4 roster arrangements. The TAS proposed a new clause in lieu of 14(b)(i) and 14(b)(ii) the effect of which would be an average 40 hours a week roster plus 2 extra duty hours. The proposed clause also provides for consultation on the roster model to be used for shift workers. Mr Watson submitted that the proposed change was "too major to contemplate" (Transcript p89). It seemed that the TAS was concerned to have a flexibility in the rostering arrangement which would permit it to depart from the current 4 x 4 roster arrangement, ie 4 days rostered on and 4 days off - with the rostered hours being 2 shifts x 10 hours and 2 shifts x 14 hours. Because afternoon and late shifts are of shorter duration, hours average out at 40 per week. Miss Cox submitted that, for example, employees may only be requested in a peak load situation for 8 hours but the current rostering arrangements would require a 10 hour attendance. As it transpired however, Miss Cox assured the Commission that there was no intention to move away from the 4 x 4 roster but that some additional flexibility was required. In that regard Miss Cox submitted that an additional roster would be developed over and above the present 4 x 4 roster (Transcript p178). The transcript will indicate a detailed discussion between the Commission and Miss Cox on this issue. In the end I concluded that she was indeed seeking additional roster flexibility when additional crews may be required to be employed and that existing 4 x 4 rostered employees may not be affected at all. At page 179 of transcript Miss Cox is talking about additional people. The following exchange refers to that situation:
It sure was! On the material present I am not prepared to endorse a departure from the existing rostering arrangements. Miss Cox submitted that the existing roster would be retained in any event and a new roster format would be discussed with the Association if I agreed to the proposal put forward by her. I support the parties further discussing the issue with a view to reaching agreement as to what should apply in the type of circumstances outlined by Miss Cox. However I am not prepared to alter the existing award provisions to allow the change to be made as a matter of course. An appropriately worded proviso to the existing rostering arrangement in the award may also be considered by the parties. Accordingly the consequential change to Clause 14(c) is also not endorsed. I consider it appropriate to alter the paid meal break provision from 30 to 20 minutes to conform with the night shift paid meal break. Overtime (Other Than Shift Workers) Clause 18 of the award provides for time and one half for the first two hours and double time thereafter for overtime worked Monday to Friday. The variation to include Monday to Sunday in lieu of Monday to Friday is endorsed. Shift work (Overtime) I endorse the amendment to Clause 23, subclause (c). The variation requested to be made requires the working of reasonable overtime and it also clarifies arrangements relating to provision of transport. Rest Periods After Overtime The variation to Clause 21 to provide for 9 consecutive hours off duty between the work of successive days, is endorsed. Shift Work (Rosters) The proposed amendment to Clause 23(b) - Rosters - was the subject of some discussion in the proceedings in order to clarify exactly the position of the parties. It is my understanding that the Minister sought the inclusion of reference to "28 days notice" required to be given to facilitate roster changes once a roster was set. Or changes to the roster could be permitted from the established rosters "for movements to and from training, leave, country stations or in the event of sickness and other pressing contingencies" (Transcript p94). As a consequence of those proposed variations the Minister requested the deletion of subclause 23(b)(i), (ii), (iii) and (iv). The variation proposed by the Minister was opposed by the Association. Mr Watson made submissions indicating concern about roster changes that would be able to be made at a moment's notice in the event of sickness and other pressing contingencies. He suggested that "pressing contingency" could refer to any circumstance where an Ambulance Officer was not able to participate in the established roster (eg for higher duties reasons) and that this would result in open slather with regard to roster changes being implemented without the giving of 28 days notice. I accept the submissions of Miss Cox that emergencies may arise which may necessitate a roster change where the giving of 28 days notice may need to be waived. The following examples referred to by Miss Cox illustrate the point. She said
Miss Cox also indicated that the decision to vary rosters in the circumstances contemplated "is never taken lightly" (transcript p181) and that as much prior notice as possible would be given. Any roster change "would be done in full consultation with the officer involved" (Transcript p 181). Having regard to all of the submissions of the parties on this matter I have decided to support the variation requested by the Minister. In particular I had regard to the submissions made by Miss Cox that any change would be undertaken in consultation with those who may be involved. Arbitrary changes were not contemplated. Shift Work - Stand Down The Minister sought the deletion of the existing provisions relating to the Stand Down (subclause 23(f)) period between 2400 to 0700 hours subject to completion of "ambulance studies". Mr Nielsen indicated that there had been discussions with the TAS on a rest and recline policy. He submitted that the AEA was not clear on that policy and therefore the Association would not agree to the deletion of the current award provision. Miss Cox submitted that the TAS should not be restricted in being able to "utilise its staff for appropriate duties at all times" (Transcript p190). I was informed that some discussion on a rest and recline policy had taken place between the parties. The intent of that policy according to Miss Cox was to replace the existing arrangements where Ambulance Officers go "to sleep on duty" (Transcript p190). Miss Cox went on to submit that the TAS believes that the efficiency and health of Ambulance Officers would be assisted by the provision of a rest and recline option "where appropriate and where possible However this does not mean going to bed (Transcript p190). Miss Cox said:
I am not going to interpret the existing clause. That is not an option available to the Commission as constituted in these proceedings. Clearly the issue must be determined on the merit. Miss Cox in her submission also indicated:
I was informed by Miss Cox that the practice of going to bed has an adverse effect on turn out time and that it was not appropriate or consistent with the operation of an emergency service whose response time is critical. Miss Cox submitted:
I accept the submissions of Miss Cox that an emergency service should be able to respond as quickly as possible. The alternative proposed by the TAS, ie a rest and recline policy appears to at least assist in that regard. Also I do not find it unacceptable for Ambulance Officers to undertake necessary restocking of ambulances and other duties required to be performed. There can be no acceptable reason why, as indicated on behalf of the TAS, that some supervisors should be encountering "active resistance from some operational people to complete those other duties." (Transcript p193) In the circumstances I intend for the existing arrangements to finish, ie subclause 23(f) to be deleted (subject to application) from the award as from 1 March 1993. In the interim period I recommend that the parties develop a rest and recline policy suitable for inclusion in the award. Additionally I would urge the Association to participate in selecting appropriate recliner chairs; as it was invited to do by the TAS. An application to delete Clause 23(f) will be required at the appropriate time. Call Back The Minister requested the following amendment to be made to Clause 11 - Call Back:
The Association submitted that the variation sought by the Minister related mainly to employees called out from 5.00 pm onwards when their normal rostered duties begin at 8.00 am. Mr Watson appearing with Mr Nielsen said:
It is not my intention to canvass the submissions of the parties. Suffice it to say there was debate between the Commission and Miss Cox whether or not this matter should be held over pending the outcome of proceedings before the Full bench in matters T2399 of 1990 etc. I now confirm my intention to give the parties Leave Reserved to enable this issue to be brought before the Commission when the outcome of the Conditions of Service deliberations of that Bench is known. I would indicate to the parties that Exhibit MATSSA2 in the aforementioned Full Bench proceedings proposes that the Public Sector Conditions of Employment Award be binding, inter alia, on The Ambulance Employees Association of Tasmania. Deletion of Classifications The Association, supported by the Minister requested the deletion of the following classifications and associated references from the award: - Superintendent Mr Nielsen in essence acknowledged that many of the structural efficiency initiatives were proposed by the TAS. In that regard Mr Nielsen apparently raised with the TAS the appropriateness or otherwise of having new positions established with the result that existing award classifications would be rendered redundant (Transcript p38). Whilst Mr Nielsen did not wish for the deletion of these classifications to be an issue before the Commission, he informed me that he did raise the issue with the TAS and that the TAS indicated that their approach was in order. However Mr Nielsen left no doubt in my mind that the Association was presented with a fait accompli by the TAS and that it considered it had no other options, apart from seeking the deletion of those classifications from the award. The following exchange is relevant:
and later:
Mr Nielsen also said:
Having regard to the thrust of the submissions made by Mr Nielsen, it would be open to me to conclude that the Association only sought the deletion of these classifications because it considered it had no other alternative. Clearly it wishes to have an integrated award and have positions relevant to this industry reflected in this award. It appears that the Association was dissuaded from this and instead put in a position where the Association agreed, albeit reluctantly, to the deletion of the classifications in question. There is no evidence of any meaningful consultation with the Association or that the TAS took any cognisance of matters discussed in TA30 of 1988 germane to these classifications. Page 71 to 78 of my Reasons for Decision dated 6 October 1988 specifically addressed the classifications requested to be deleted. Indeed the parties were requested to "inform me of their further deliberations" (p77). This appears to have either been overlooked or deliberately ignored. Certainly the Minister's representative in these proceedings was not aware of the Commission's request for these issues to be further addressed as a consequence of my decision in TA30 of 1988. Mrs Burgess appearing with Miss Cox submitted that the positions in question were no longer in use and that I should delete them. She referred me to position descriptions for Manager (State Operations) SES 1, Manager (Clinical Operations) SES1, Manager (Southern Operations) SES 1. Manager (Northern Operations) SES 1, which I was told were new positions and as a result the existing award classifications were no longer necessary. The Director, Tasmanian Ambulance Service, position SES 3 was in a process of being filled and I understand that this position also contributed to the seeking of the deletion of the existing definitions and salaries. At this point I am not satisfied that the superintendent and Chief Superintendent positions should be deleted from the award. Those positions formed an integral part of the work value review in 1988. It seems to me that at the very least the integrity of the award structure should have been sought to be maintained. The parties were requested to address these issues in the Commission in the 1988 decision referred to earlier. Certainly I was not convinced by the submissions made by the parties. I would consider revising the structure to update it within the award, given the history of it, and having regard to the SES 1 salary level which I consider should form part of the career structure in the award. This is particularly the case as the SES 1 positions are clearly operational and can be comprehended within the current framework given the essential ambulance practitioner qualifications for those positions and upon which the award structure is predicated. Accordingly I invite an application from either of the parties to include the SES 1 positions, subject to proper work value considerations, in the award. This aspect of the case would be dealt with as part of the special case finding and accordingly, and in order to overcome any technicalities on this matter, Leave Reserved is granted to the parties. The Manager (Administrative Services) positions was never in the award in any meaningful way (only the title was included in the Definitions clause). Accordingly it will be deleted. Ambulance Technician The Minister sought the inclusion in the award of a new classification of Ambulance Technician. This was vigorously opposed by the Association primarily on the basis that it would lower the standard of the Ambulance Service. The current standard is predicated upon Ambulance Officers acquiring skills based on training and completion of the Certificate of Applied Science (Ambulance Officer) Course with the result that all Ambulance Officers post September 1984 are required to qualify in Advanced Life Support (ALS). The 1988 Work Value Case (TA30 of 1988) reflected inter alia that requirement, and the decision was structured to reflect that change, awarding a 24 per cent increase to Ambulance Officers with ALS and Patient Extrication qualifications. It is reasonable to state that the major thrust of that decision was to recognise the acquisition of skills to bring about, over time, a highly qualified Ambulance Service. The Association hold the view that this direction would be compromised by the introduction of Ambulance Technicians who would not be required to progress to ALS. Instead their training, I was informed, would equip them for occupational health and safety work; albeit that when intakes for Student Ambulance Officers take place, they could apply, and subject to merit, recognition to prior learning would be allowed in the Student Ambulance Officer course. The Association was very mindful, as I am, of the high calibre of Ambulance Officer in this State. Tasmania has a totally integrated ambulance service (patient extrication rescue, advanced life support) and the Association was concerned to emphasise that it did not wish to see any reduction in the current standards. I recognise the concerns of the Association on this issue. Obviously it would not be in the public interest to reduce the high level service that we enjoy in Tasmania. However I accept the submissions of the TAS in that only around 30 per cent of cases permit the practising of the skills comprehended at the highest level of Ambulance Officer. This therefore poses a real threat to the maintenance of those skills by officers who have them. I accept as factual when Miss Cox submitted that the medical profession has raised, as a matter of concern, that lack of exposure to case situations requiring the practising of those skills, may result in those skills being lost, or at worst removed from the current protocols. The argument advanced by Miss Cox and Mr Byrne on that critical issue were sobering. It is very much in the public interest for Ambulance Officers to maintain skills at the highest level and if this cannot be satisfactorily achieved at the present, then a change is warranted. I have the highest regard for the men and women in the Ambulance Service. I have no wish to do anything which may lessen the very high standard of that service. I have been associated with the Ambulance Service for several years now and I believe I have an appreciation of the desire of those involved to deliver the best possible service to the community. It is clear to me however that the submissions made on behalf of the Minister demonstrate to my satisfaction that the widest possible primary carer role of the Ambulance Officer will best be maintained by the introduction of the change sought. I am convinced of the validity of the submissions made by Miss Cox when she said:
In brackets mine Transcript p262 There can be no argument that quality patient care is directly related to the maintenance of skills by those delivering that care. Any downskilling must be avoided. I consider it to be in the best interests of the community and Ambulance Officers themselves to ensure that crewing arrangements are such which allow the highly qualified person to be exposed in such a way as to maximise his or her opportunities to utilise their skills in actual case load situations. In deciding on an Ambulance Technician classification I considered the introduction of a quota on the number that could be employed at any one time. In that context I had regard for the submissions of Miss Cox where she said:
However at this stage, having carefully considered the position, I do not intend to impose a quota. This could prove to be unwieldy and to impede the efficient operation of the TAS. Should the parties require it though, I would be prepared to hear argument on this issue. Accordingly Leave Reserved is granted on this subject matter. I was also made aware that prior to the discussions breaking down between the Association and the Minister, the TAS had agreed (Transcript p212) to:
Miss Cox submitted that these proposals were put by the Association in the first instance and were agreed to by the TAS. A further proposal put by the Association to guarantee Ambulance Technicians the right to transfer to a Student Ambulance Officer position on request, was rejected by the TAS as this would not comply with the merit principle as it relates to employment in the State Service. I support the submissions of Miss Cox on that particular point. I am attracted however to the proposals outlined in (i) and (ii) above and I recommend the parties hold further discussions on them with a view to incorporating appropriate provisions in the award. In the event the matter cannot be settled by negotiation, Leave Reserved is granted on those issues. Conditions of Service Throughout this decision I have made reference to the Full Bench proceedings in matter T2399 of 1990 et al. In doing so and in deciding in the manner that I have, I was cognisant of the submissions made by Mr Nielsen that this Full Bench was not dealing with the custodial emergency stream. Clearly that is correct. However the approach I have taken is to identify a number of conditions matters as Leave Reserved on the basis that, prima facie, the conditions in question are better dealt with in a public sector-wide manner. When the Full Bench in that matter finalises its deliberations, the way is still open for further submissions to be made in this matter. Hence the granting of Leave Reserved. Against the background of the determinations that may be made by the Full Bench, and indeed the agreed positions that may be reached by the parties in that matter, some conditions issues may be clarified which may assist in this case. In any event at that time the argument on whether a condition should be regarded as unique to the Ambulance Service or to a custodial stream, or should remain as a public sector-wide condition, will be able to be examined in light of the outcome of those Full Bench proceedings. This is a better approach in my opinion. Interim Decision and Operative Date Accordingly this decision will be interim in nature operative from the date of this decision: Leave Reserved Matters To assist the parties the following Leave Reserved matters have been identified in this
Keyboard and Office Assistants Award - deletion of pay scales.
Referral to President Additional leave for Southern Region. Order The order will issue in due course.
R K Gozzi Appearances: Date and Place of Hearing: 1 TA30 of 1988 |