Richard Forshaw v The Act Government represented by the Justice and Community Safety Directorate and the Act Ambulance Service T/A Act Emergency Services Agency
[2023] FWC 1644
•6 JULY 2023
| [2023] FWC 1644 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Richard Forshaw
v
The ACT Government represented by the Justice and Community Safety Directorate and the ACT Ambulance Service T/A ACT Emergency Services Agency
(C2022/8245)
| DEPUTY PRESIDENT DEAN | CANBERRA, 6 JULY 2023 |
Application to deal with a dispute – transfer due to medical incapacity – applicable rate of pay.
Mr Richard Forshaw (Applicant) has made an application under s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute arising from the ACT Public Sector ACT Ambulance Service Enterprise Agreement 2021-2022 (the Agreement). The Respondent to the dispute is Australian Capital Territory (Represented by the Justice and Community Safety Directorate and the ACT Ambulance Service) (Respondent).
The dispute arises from the Respondent’s approach to the process of redeploying the Applicant because of a medical incapacity that prevents him from performing the duties of the office that he occupies.
Background and matters not in dispute
The factual background to this matter is set out in the statement of agreed facts as follows:
“1. The Respondent is responsible for the provision of ambulance services to the ACT community. It is established by the Emergencies Act 2004.
2.On 17 August 2009, the Applicant commenced with the ACT Ambulance Service, in the role of a student paramedic.
3.On 9 September 2011, the Applicant was appointed as an Ambulance Paramedic.
4.Having completed Intensive Care Paramedic (ICP) training, the Applicant commenced as an ICP level 1 on 21 August 2013. This remains the Applicant’s substantive position.
5.As an employee of the ACT Ambulance Service, the terms and conditions of the Applicant’s employment was determined by the ACT Ambulance Service Enterprise Agreement 2021-2022 (Enterprise Agreement) and its predecessors.
6.Towards the end of 2015, the Applicant was diagnosed with Post Traumatic Stress Disorder caused by his employment with the Respondent. The date of injury for the purpose of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) was identified by Comcare, who at the time administered the SRC Act as it applied to the Applicant, was 11 December 2015.
7.The Applicant continued to work as an ICP until March 2017, after which, he was incapacitated as a result of his workplace injury.
8.As an ICP and prior to his injury, the Applicant worked a 10/14 shift pattern and received an additional composite salary payment in accordance with the applicable enterprise agreement.
9.The Applicant remains a substantive employee of the Respondent. He has worked in various temporary roles in the ACT Public Service since 2017.
10.As an ICP Level 1, clause C2 and Annex A Classifications and Rates of Pay of the Enterprise Agreement identifies the rates of pay relevant to the Applicant in this matter. The clause designates amounts for penalties and overtime, the payment of which is dealt with at clauses N3, N4 and N17.”
It is not disputed that:
a. the Applicant is a medically unfit employee for the purposes of clause E13.2.
b. Annex A of the Agreement identifies classifications and rates of pay for an ICP1.
c. Section N of the Agreement applies to ICP’s who work the 10/14 shift pattern.
d. Where an employee is rostered to work a 10/14 shift pattern, an additional composite salary payment of 33.78% of the employee’s base rate of pay is paid for each completed week of work (the Composite Salary).
e. The Applicant had worked a 10/14 shift pattern and was in receipt of the Composite Salary.
Questions to be determined
The Applicant proposed that the answer to the following questions would determine the dispute:
1. What does ‘pay’ mean at clause E13.3 of the ACT Public Sector ACT Ambulance Service Enterprise Agreement 2021-2022?
2. What is the Applicant’s pay for the purpose of clause E13.3?
3. What is the level of pay at the top increment of the Applicant’s classification for the purpose of clause E13.3?
4. Having regard to the answer to ‘3’ above, what is the Applicant’s equivalent classification under the ACT Government Administrative Service Office classes 1-6 and Senior Officer Grades C, B & A classifications?
The Respondent disagreed with the questions posed, and submitted the true issue for determination is the identification of the requirements of the Agreement to affect a valid and lawful transfer of a medically unfit employee from one position to another. As a result, to determine the issue in dispute, the Commission is required to consider the maximum pay for the position occupied by the medically unfit employee and the maximum pay for the position to which it is proposed to transfer the employee.
The Applicant, during the hearing, noted that the crux of the dispute was the answer to question 3, and that the Commission could not answer question 4 as the document required to answer this question had not been put before the Commission.
I agree that the key question required to be answered to determine the dispute is question 3.
Key provisions
Clause E13 of the Agreement deals with transfer of medically unfit staff. Clause E13.3 provides the following:
E13.3 Despite the provision of section 27 of the PSM Act, a medically unfit employee may, by agreement with the employee, be transferred to any position within the employee’s current skill level and experience, the classification of which has a maximum pay which does not vary from the top increment of the employee’s classification by more than 10%. For clarity this allows transfer between alternate classification streams, but does not allow for the transfer of an officer within the same classification stream e.g. a SOG B transfer to a SOG A.
Clause N3.3 provides:
N3.3Where an employee’s entitlements change or the 10/14 shift pattern changes (other than for personal leave) then the employee’s wage payment for that week will be calculated on a pro-rata basis of one-seventh (1/7th) of the applicable weekly rate of pay for each day in that week”.
There are other provisions of the Agreement that are relevant and are referenced in this decision but are not set out here.
Section 122 of the Public Sector Management Act 1994 (PSM Act) is also relevant and provides that redeployment under s.122 is effected by a transfer which is defined as movement of an officer within the services other than by promotion. Promotion is dealt with under s.23 of the PSM Act.
Evidence and submissions of the parties
The Applicant gave evidence and both parties provided detailed submissions. Given the agreed facts and matters not in dispute, it is unnecessary to set out in detail the evidence and submissions.
Briefly, the Applicant submitted the issue in dispute is the extent to which the Applicant remains entitled to his rate of pay, ie the Composite Salary, for the purpose of E13.3.
The Applicant agreed that his Composite Salary is not payable for all purposes, regardless of whether the 10/14 roster pattern is worked. The Applicant highlighted that ICP1 employees who are paid a Composite Salary continue to be paid this salary when on leave even though they are not working the 10/14 shift pattern. In this regard the Applicant pointed to section N of the Agreement and in particular clause N3.3 which provides that where an employee’s 10/14 shift pattern changes other than for personal leave then the employee’s wage payment for that week will be calculated on a pro-rata basis. Further, clause N19.2 provides that the Composite Salary is payable during periods of specified types of leave, approved roster training and roster special duties, and accrued days off.
The Applicant submitted that considerable importance should be placed on wording of the personal leave provisions of the Agreement which the Applicant submitted preserves a person’s payment when they are medically unfit.
The Applicant also submitted there are two base rates of pay for an ICP1, so regard must be had to the particular employees’ circumstances to work out which base rate of pay applies. The Applicant’s particular circumstances were that he had worked the 10/14 shift roster and that was the rate of pay applicable to him.
The Respondent submitted that much of the Applicant’s submissions and evidence was not relevant to the matter the Commission was required to determine. It contended that the words in clause E13.3 that required consideration were ‘classification’, ‘maximum pay’, and ‘top increment’.
The Respondent said that the Applicant’s classification was ICP1. This was not disputed by the Applicant.
The Respondent submitted that maximum pay in the context of E13.3 was a reference to the pay of the position to which it was intended to transfer the employee, with ‘maximum’ meaning the upper limit of that range.
The phrased ‘top increment’, the Respondent submitted, was a reference to the highest pay point payable to a person appointed to a position in the relevant classification.
The Respondent also submitted the purpose of clause E13.3 is not to transfer a medically unfit employee to any job, but rather to transfer to a job where the classification had a maximum pay which did not vary from the top increment of the employee’s classification by more than 10%. There is no reference in the clause to the employee’s current pay.
Consideration
I agree with the submission made by the Respondent that the wording of clause E13.3 is unambiguous and can be interpreted by applying the ordinary meaning to the language that is used.
First, the plain meaning of clause E13.3 is that the clause allows for a transfer to another position but does not provide for a promotion. So much is clear from the title of clause E13, being ‘Transfer of Medically Unfit Staff’ as well as the reference to ‘transfer’ and ‘transferred’ used within the clause. Further, redeployment under s.122 of the PSM Act is effected by way of a transfer. A transfer is defined in the PSM Act as a movement of an officer within the service other than by promotion. This can be contrasted with ‘promotion’ which is a movement within the service to a higher classification than the one held by the officer immediately prior to the promotion. It is clear, in my view, that transfer and promotion are distinct and clause E13 does not enable the Applicant to be promoted.
Section 23(3) of the PSM Act states that “the comparative level of classification is determined by the maximum salary payable to a classification”.
I accept it is the maximum salary payable to a classification, and not to a person, that is used to compare classifications to determine whether an employee is to be promoted or transferred.
Annex A sets out the pay rates for ICP1, the agreed classification of the Applicant. Annex A provides that the top pay rate for an ICP1 as at 9 June 2022 (without penalties and overtime) is $104,018. With a 26.65% loading for shift penalties and 7.13% for overtime for the working of the 10/14 shift roster, the rate is $139,155, this being the Composite Salary.
Clause N17 to N21 set out the roster arrangements for 10/14 shift pattern. Clause N19 sets out the method by which the shift roster will be paid to provide equal payments to an employee over the 8 week shift cycle, which is inclusive of shift penalties and overtime payments.
I am satisfied that the Composite Salary payable for the 10/14 roster pattern is applicable to employees who are rostered to work this roster pattern. Other than for personal leave (as noted in N3.3), eligibility for the Composite Salary requires an employee to be rostered to work the 10/14 roster.
I do not agree with the submission of the Applicant that there are two base rates of pay in Annex A. There is one base rate of pay and there is a rate which is inclusive of shift penalties and overtime applicable for employees working the 10/14 shift roster (ie the Composite Salary).
The Applicant has not worked the 10/14 roster pattern for a number of years. He is in receipt of workers compensation payments but he is not on personal leave or any other form of leave. I do not accept the submissions of the Applicant that he should be treated as if he was on personal leave. Workers compensation is not personal leave and there is nothing in the text of the Agreement that would support a view that they should be treated in the same manner for the purposes of clause E13.3.
I am satisfied that the maximum salary payable to a classification in clause E13.3 is not intended to include payments that are made for working a particular shift roster (ie 10/14 roster). The purpose the words in clause E13.3 is to identify and provide rate that enables a comparison of two positions so that a transfer (and not a promotion) can be effected. I accept the submissions of the Respondent that ‘top increment’ and ‘maximum pay’ have the same meaning in this context.
I also agree with the submissions made by the Respondent that an ICP is first appointed to an office with a classification. A secondary decision is made as to whether to place that employee on a particular roster pattern such as the 10/14 shift roster. Where a decision is made to place that employee on a particular roster pattern such as the 10/14 shift roster, then the employee is paid the Composite Salary. This additional payment is to compensate an employee for the irregular hours and extra time the employees is rostered to work. It is not the employees’ base rate of pay.
As submitted by the Respondent, the comparison is based on the requirements of the role and the value that has been assigned to it because of a work value assessment, rather than an inflated rate based on the discretionary impact of rostering arrangements.
Conclusion
The top increment of the Applicant’s classification of ICP1 for the purpose of clause E13.3 is $104,018.
The dispute is so determined.
DEPUTY PRESIDENT
Appearances:
T Maling of Elringtons Lawyers for Richard Forshaw.
M Chilcott of ACT Government Solicitor for Australian Capital Territory (Represented by the Justice and Community Safety Directorate and the ACT Ambulance Service).
Hearing details:
2023.
By Video:
May 11.
Printed by authority of the Commonwealth Government Printer
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