State of New South Wales v Stockwell (No 2)
[2016] NSWWCCPD 19
•5 April 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| Status: Appeal to the Court of Appeal dismissed – State of New South Wales v Stockwell [2017] NSWCA 30 | ||
| CITATION: | State of New South Wales v Stockwell (No 2) [2016] NSWWCCPD 19 | |
| APPELLANT: | State of New South Wales | |
| RESPONDENT: | Mark Stockwell | |
| INSURER: | QBE Insurance (Australia) Ltd | |
| FILE NUMBER: | A2-9478/13 | |
| ARBITRATOR: | Mr M Snell | |
| DATE OF ARBITRATOR’S DECISION: | 15 December 2015 | |
| DATE OF APPEAL DECISION: | 5 April 2016 | |
| SUBJECT MATTER OF DECISION: | Meaning of “paramedic” in cl 25 of Pt 19H of Sch 6 to the Workers Compensation Act 1987; the definition of “Ambulance Officer - Grade 2” in the Operational Ambulance Officers (State) Award; non-compliance with Practice Direction No 6, failure to support each ground of appeal with clear and succinct submissions; whether the Arbitrator erred in factual findings; whether the worker was a paramedic | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Bartier Perry |
| Respondent: | Whitelaw McDonald | |
| ORDERS MADE ON APPEAL: | 1. The Senior Arbitrator’s determination of 15 December 2015 is confirmed. | |
| 2. The appellant is to pay the respondent worker’s costs of the appeal. | ||
INTRODUCTION
In June 2012 the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) made significant changes to workers’ entitlements under the Workers Compensation Act 1987 (the 1987 Act). The amendments introduced by the 2012 amending Act “do not apply to or in respect of an injury received by a police officer, paramedic or firefighter” and “the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted” (cl 25 of Pt 19H of Sch 6 to the 1987 Act).
The respondent worker, Mr Stockwell, injured his back whilst employed as an operational ambulance officer. Operational ambulance officers are also known as paramedics. In 2008 the relevant industrial award category for “Ambulance Officer Grade 2”, the grade held by Mr Stockwell as at the deemed date of injury, changed to “paramedic”.
As a consequence of his back injury Mr Stockwell was assigned duties in an operations centre responding to emergency calls. Whilst so employed he suffered a psychological injury for which he sought compensation.
This appeal challenges the Senior Arbitrator’s finding on remitter that, at the time of the psychological injury, Mr Stockwell was a “paramedic” within the meaning of that term in cl 25 Pt 19H of Sch 6 and, as a consequence, the amendments introduced by the 2012 amending Act do not apply to him. For the reasons explained below the appeal is unsuccessful.
BACKGROUND
This dispute has had a lengthy history in the Commission. It has been the subject of two arbitral proceedings and one Presidential appeal, namely State of New South Wales v Stockwell [2015] NSWWCCPD 9 (Stockwell No 1). Much of the history of the dispute has been canvassed in those decisions. For convenience, I propose to set out the background to the matter in full.
Mr Stockwell started work as an ambulance officer with the Ambulance Service of New South Wales in 1996. Whilst working as an ambulance officer Mr Stockwell injured his back in 1996, 1998 and 2000. On 18 October 2000, having met the requirements prescribed by the Ambulance Service, Mr Stockwell was awarded a Diploma in Paramedic Science (Pre-hospital Care). At that time Mr Stockwell was working as an operational ambulance officer/paramedic.
Due to the injuries to his back and the restrictions caused by those injuries, Mr Stockwell became an operations centre officer at the appellant’s Northern New South Wales Operations Centre at Newcastle (the operations centre) in late 2000 or early 2001. The operations centre co-ordinates all emergency and medical response calls for ambulances for northern New South Wales. Operations centres are also known as control centres.
Mr Stockwell’s primary role as an operations centre officer was to co-ordinate emergency and routine response for ambulance officers and patient transport officers in a given geographical area. Mr Stockwell gave evidence that, in the course of his duties as an operations centre officer, he also gave medical advice to emergency service workers and members of the public. This evidence was challenged by various witnesses for the appellant.
As a result of his work in the operations centre, Mr Stockwell suffered a psychological injury with a deemed date of injury of 31 January 2007, which was presumably the date of his incapacity and the date on which he stopped working. Mr Stockwell ceased employment with the appellant on 10 August 2007.
By order of the Commission made on 20 May 2008 in matter number 598/08, the appellant was ordered to pay weekly compensation from 31 January 2007 to date and continuing pursuant to ss 36 and 37 of the 1987 Act for total incapacity. In addition, the appellant was ordered to pay Mr Stockwell’s hospital and medical expenses under s 60. The claim for lump sum compensation was remitted to the Registrar for referral to an Approved Medical Specialist (AMS), for an assessment of his whole person impairment as a result of his injury.
On 5 August 2008, an AMS assessed Mr Stockwell to have a permanent whole person impairment, as a result of his psychological injury, of 17 per cent.
In October 2009 Mr Stockwell moved with his family to live permanently in the United States of America. In late 2009 and throughout 2010 the parties were in dispute as to Mr Stockwell’s entitlement to receive payments overseas. Details of that dispute are not currently relevant.
By email dated 14 November 2012, the appellant’s workers’ compensation insurer, QBE Insurance (Australia) Ltd (QBE), advised Mr Stockwell that as he was not an “on‑road paramedic at the time of injury” he would be subject to the changes introduced by the 2012 amending Act. The appellant challenged that decision advising QBE that he retained his paramedic qualifications, stating that it was immaterial whether he worked as a paramedic on or off road.
By email dated 15 November 2012, Mr Stolzenhein, a case manager with QBE, advised Mr Stockwell that:
“For the purpose of the new legislation, the definition of paramedic is as follows:
- Possess [a] Diploma of Paramedical Science (or its equivalent)
- [Is] [e]mployed under the Operational Ambulance Officers (State) Award
- [Is] [i]ncluded in on-road rostering arrangements, performing ‘in the field’ paramedic duties
All of these criteria must be met in order to satisfy the definition of a paramedic under the Act.”
The reference to the Operational Ambulance Officers (State) Award in this email was a reference to the Award issued by the Industrial Relations Commission of New South Wales on 24 December 2010. Two preliminary points should be noted about this email. First, there is no definition of paramedic in the legislation and it was false and misleading to suggest otherwise. Second, as explained below, a worker does not have to be performing “in the field” paramedic duties at the time of his or her injury to be a paramedic within cl 25 of Pt 19H.
In correspondence dated 18 February and 8 March 2013, Mr Stockwell’s solicitors, Whitelaw McDonald, wrote to the insurer asserting that as Mr Stockwell was a paramedic, he was not caught by the amendments introduced by the 2012 amending Act, and that he was entitled to weekly payments of compensation and his medical and related expenses. Mr Stockwell asserted that his work in the operations centre “consisted of ambulance paramedic type functions including giving treatment advice, making decisions regarding use of helicopter resources, managing major incidents and disasters and liaison with hospitals”.
On 18 March 2013, QBE advised Mr Stockwell by letter that it had conducted a work capacity assessment under s 43 of the 1987 Act (as amended by the 2012 amending Act) and determined that he had “no capacity for work”. The letter advised that Mr Stockwell’s weekly payments had been “transitioned into [the] post 260 week period which is for workers that have been in receipt of weekly payments in excess of 260 weeks” and, as weekly payments are only payable after 260 weeks if the worker has no capacity for work and has a permanent impairment of more than 20 per cent whole person impairment, Mr Stockwell had no entitlement to weekly payments. Mr Stockwell was informed that the decision would take effect after a three month notice period. Therefore, weekly compensation would cease being payable from 18 June 2013.
Mr Stockwell commenced proceedings by way of an Application to Resolve a Dispute lodged in the Commission on 18 December 2013 (the Application). Weekly payments were claimed from 18 July 2013 to date and continuing (although payments ceased on 18 June 2013). The matter was heard by an Arbitrator on 29 July 2014. Mr Stockwell attended (from the United States) and gave evidence. In a Certificate of Determination dated 2 September 2014, the Arbitrator found that Mr Stockwell was a “paramedic” within the meaning of cl 25 of Pt 19H of Sch 6 to the 1987 Act. Consequently, the 2012 amendments did not apply. There was a continuing weekly award in favour of Mr Stockwell from 18 July 2013 together with an award for the payment of his medical expenses under s 60 of the 1987 Act.
On 30 September 2014, the appellant lodged an appeal against the decision of the Arbitrator, challenging the Arbitrator’s determination.
The appeal was heard before Deputy President Roche on 28 January 2015. In a determination dated 10 February 2015, Deputy President Roche found, for reasons I shall come to in due course, that the Arbitrator erred in a number of material respects and ordered that the Arbitrator’s determination of 2 September 2014 be revoked. The matter was remitted to another Arbitrator for re-determination.
The dispute was remitted to the then Senior Arbitrator Snell, who conducted a further arbitration hearing on 30 September 2015. Both parties were represented by counsel. Mr Stockwell again travelled from the United States to attend. He gave oral evidence in chief and was cross-examined.
The Senior Arbitrator found in favour of Mr Stockwell. In summary, the Senior Arbitrator found that, at the time of his injury on 31 January 2007, Mr Stockwell was classified as an Ambulance Officer Grade 2 (that is, a paramedic) and was remunerated on that basis. This was consistent with him being a paramedic and it did not matter that he was not performing front line operational duties of a paramedic when he suffered his psychological injury.
The Senior Arbitrator accepted Mr Stockwell’s evidence that undertaking the re-certification examinations (to maintain his qualifications as a paramedic) was done in accordance with “operational abilities” of the Ambulance Service. Mr Stockwell was certified to work as an Ambulance Officer Grade 2 (paramedic) until the end of 2006 and would not have been precluded from working as such in January 2007 due to non-compliance with the provisions of the relevant Ambulance Officers Award. Thus, the Senior Arbitrator found, in favour of Mr Stockwell, that the amendments introduced by the 2012 amending Act did not apply to him.
On 15 December 2015 the Commission issued a Certificate of Determination in the following terms:
“The Commission determines:
1. There is a finding that the applicant was a ‘paramedic’ within the meaning of Schedule 6, Part 19H, clause 25 of the Workers Compensation Act 1987 at the date he sustained psychological injury with the respondent. The Workers Compensation Legislation Amendment Act 2012 does not apply to the applicant in respect of that injury.
2. The weekly award in the Certificate of Determination dated 20 May 2008 is confirmed.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
In an appeal lodged in the Commission on 12 January 2015, the appellant has challenged the Senior Arbitrator’s determination.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant has requested an oral hearing. The respondent has indicated that it is content for the appeal to be heard on the papers. I am conscious of the fact that this matter has already been the subject of two arbitral hearings and an appeal before a Deputy President.
The issues in this appeal are within a relatively narrow compass. The parties have been given every opportunity to make submissions on the issues on which this appeal will be decided, and have made detailed submissions.
Notwithstanding the appellant’s request for an oral hearing, I am satisfied that I have sufficient information to proceed “on the papers” without holding any conference or formal hearing and that is the course I propose to adopt.
THE EVIDENCE
The following summary of the evidence largely, but not exclusively, follows the Senior Arbitrator’s summary of the evidence in so far as it is relevant to the issues in dispute in the appeal.
Mr Stockwell
Mr Stockwell provided a signed statement dated 20 April 2007. At that time he stated that he was employed as an operations centre officer in the Northern Operations Centre. He said his primary role was to co-ordinate ambulances around a given geographic area. This included assessing what level of ambulance officer was required for a case (for example, a patient in cardiac arrest would need an officer with a certain skill level). It was necessary to prioritise jobs. It could be necessary to arrange the attendance of other emergency personnel such as police. It could be necessary to consider what hospital facility was appropriate, having regard to the capacity of specific hospitals to cope with matters. It would be necessary to manage multiple cases simultaneously.
Mr Stockwell also relied on an unsigned statement at page 85 of the Application. Mr Stockwell stated that, when he joined the NSW Ambulance Service in 1996, those who “drove or treated patients in a regular ambulance were classed as Ambulance Officers”. There were five levels of these. Those in the top level (Level 5) were known as paramedics. By the time the statement was given, ambulance officers “on the road” were known as paramedics.
Mr Stockwell said that he had one year as a level 2 officer and then trained as a level 3. He said a level 3 was regarded as comparable to a registered nurse in a hospital Emergency Department. He also did courses in rescue and mines rescue. He said that officers were required, every two years, to complete a refresher course and re-certification.
As a result of his work related back injury, Mr Stockwell was moved into the operations centre. He said he was paid an additional allowance due to the “extra skill set” involved in working at the operations centre. He said that he managed “natural disaster situations such as bush fires”, he liaised with hospitals, he was “required to constantly give first aid advice to persons ringing up for ambulance services during emergency situations”.
Mr Stockwell said that, until the time of his retirement from the Service, he did not “believe anyone was officially designated a Paramedic”. He said that most of his job in the operations centre consisted of:
“…Ambulance Paramedic type functions including giving treatment advice, decision making regarding use of helicopter resources, managing major incidents and disasters and liaison with hospitals.”
At the original arbitration hearing on 29 July 2014, Mr Stockwell said that he was required to attend the Morisset education centre every two to three years for re-certification as a paramedic. He said that when he ceased work with the Ambulance Service his classification was “ambulance officer operations centre grade 2 (with intensive care paramedic qualifications)”. In that role he was required to give advice “multiple times every shift”. He did this “as a paramedic relying on my skill set and my training”. He would advise people trying to help the patient, police, the fire brigade and junior paramedics. He described this as a “key part of the role”.
Mr Stockwell gave oral evidence on 30 September 2015. He said that he always wore the uniform of an ambulance officer, both when working as an operational officer and when working in the operations centre. This continued to his last day of employment. He said in the operations centre he received his “ambulance officer pay rate” and additionally the “operations centre allowance which was a specialist allowance that I received”. He identified Exhibit ‘A’, a pay slip dated 26 January 2007 (covering the two weeks ending 19 January 2007). It described Mr Stockwell’s classification as “Ambulance Officer (Ops Centre)”. It showed payment of an allowance described as “Op Centre Allow” additional to Mr Stockwell’s normal pay.
When travelling to work Mr Stockwell wore his uniform. He said that he was obliged, under his oath of employment, to stop and assist an ambulance officer who was helping other people. He said this happened many times, including a car accident and a brawl.
It was suggested to Mr Stockwell in cross-examination that helping on such occasions was a “good Samaritan type situation”, and he had not been directed to do so. Mr Stockwell said that it was “absolutely expected” that he would assist, it was part of the oath which he took on joining the ambulance service. He also described it as “directly implied”.
Mr Stockwell agreed that he moved to the operations centre because, as a result of his back injuries, he could not at the time discharge his duties as an ambulance officer/paramedic in the field. He would still find such duties “very strenuous”.
Mr Stockwell agreed that an Ambulance Officer Grade 2 is what a paramedic was in his day.
In cross-examination, Mr Stockwell said that there were a number of different classes of employees dealing with calls at the operations centre. There were civilian call takers. There were civilian dispatchers who had “further training and some competency in dispatching”. There were Ambulance Centre Operation Centre officers who were ambulance officers. Sometimes the ‘ambos’ would help the civilians if it was busy.
When cross-examined about his statement dated 20 April 2007, Mr Stockwell agreed that it did not refer to giving advice to paramedics or others. He said the focus of that statement was causation of his psychological injury, not “the entire scope” of his role in the operations centre. Mr Stockwell maintained that, in the operations centre, he gave advice to junior paramedics, police officers and lay people. He disagreed with a suggestion that he had overstated the degree to which he gave advice.
Mr Stockwell agreed with a suggestion that it was commonplace for him to assist call taking staff with difficult calls within his clinical expertise. He agreed this often involved relief dispatchers. He said he gave advice “multiple times a shift”. He said he was regularly asked by the duty operations centre officer to do this.
Mr Stockwell said it was necessary to do the re-certification process, which was “fairly arduous”, every two to three years. It was put to him that the last time he sat the “reaccreditation exams” was 22 June 2004. Mr Stockwell said that, whatever the qualification requirement was, “the practice was different and it was two to three years”. He disagreed with a suggestion that, from two years after his last accreditation, he was not qualified to be a paramedic in the frontline ambulance service.
Mr Stockwell said the practice was that the Ambulance Service would organise re-certification on the employee’s behalf. He would receive advice of the arrangements that had been put in train for re-certification. He could not remember if this was what happened in 2004.
Mr Stockwell said (at T53.12):
“It was - during my time the Ambulance Service always organised that on your behalf as your employer, and they would - they would do you're operational abilities. That's what - it was literally that. It was very open-handed though they'd want to get you through in a reasonable timeframe, and so what would happen is they'd organise it and you'd get a letter saying ‘Hey, here will be car. Drive it to Morisset or go wherever for these days and you'll be staying here and you'll do your recertification.’ And that was the process.”
Mr Pearce
Mr Pearce worked at the Southern Control Centre as a call taker, dispatcher and training officer. He also acted in higher duties as duty operations centre officer and senior operations centre officer. He had been commander of the Southern Control Centre during unplanned outages.
Mr Pearce said that, when working as a dispatcher, it was commonplace to assist call taking staff with difficult calls using his clinical expertise. He would routinely call on his paramedical training. Call taking staff were trained to escalate difficult calls to the supervisory team, or in their absence, the relief dispatcher. Mr Pearce said that, when he was working as a supervisor, there were many occasions when he delegated this task to a relief dispatcher. Mr Pearce said that he gave assistance to road paramedics, particularly if they were new. On occasions he would give clinical advice to police.
Mr Reid
Mr Stockwell also relied on a statement from Peter Reid dated 14 September 2015. He worked in the operations centre from 2002 to December 2006. He trained as a dispatcher and subsequently acted as a supervisor. He said there was always a relief dispatcher on shift. When not otherwise busy he would assist taking calls, give first aid advice, field general enquiries, call the police and Fire Brigade. He said at the operations centre most of the dispatchers were uniformed ambulance officers. If a call taker had a general or medical enquiry, and other supervisors were busy (which was most of the time) they would ask the first available ambulance officer. Mr Reid said:
“All Ambulance Officers in the Operations Centre were paid their clinical allowance and there [sic] clinical level was recognised.”
Mr Reid said dispatchers would “assist Calltakers with first aid advice or guidance on various enquiries when time permitted”. He said he frequently worked at the same time as Mr Stockwell in the Operations Centre. He said that he “routinely gave first aid advice as a Dispatcher over the phone”. He was sure other fellow officers did the same, although could not comment specifically on Mr Stockwell as the two of them worked “on different areas and workloads”.
Mr Drysdale
The appellant relied on a statement of David Drysdale. Mr Drysdale was described as the Superintendent of Ambulance, Deputy Director of Control Centres. He stated that he was the senior control centre officer when Mr Stockwell worked at the operations centre. He said a call taker who required medical advice would refer this to a supervisor, not a dispatcher. He denied a dispatcher would direct the treatment of a patient, or give clinical advice to a police officer or firefighter. He denied that a dispatcher would give advice to a paramedic on road; he said such people would request backup if they required assistance, which would be assigned as soon as possible.
Ms Willis
The appellant also relied on a statement of Melissa Willis dated 30 September 2014. She was a non-clinical dispatcher at the operations centre during the period of Mr Stockwell’s employment there. She did not hold paramedic qualifications. She said that, when she was a call taker, it was very rare that a call taker would ask a dispatcher for advice, they were trained to ask supervisors. A member of the public seeking advice would get it from a supervisor. She said she never heard of anyone in the control room giving advice to police or firefighters. She said that if a road crew wanted advice they would call for a higher level paramedic or supervisor to attend the scene.
Mr Vernon
The appellant further relied on a statement of James Vernon dated 30 September 2014. He is Assistant Commissioner, and is a director of the operations of the Control Division, which comprises the four control centres. He was control centre manager of the operations centre while Mr Stockwell was employed there. He recalled Mr Stockwell working there as a dispatcher. He said the job role for paramedic and non-paramedic dispatchers was the same. However the paramedic dispatchers were “generally paid on a higher scale” in recognition of the qualification.
Mr Vernon said the operations centre position description was correct. He said it was not part of Mr Stockwell’s position to give clinical advice. If call takers needed assistance they would seek it from a supervisor. He said a paramedic on the road, if he needed clinical advice, would contact a manager. He said police or firefighters might talk to a dispatcher about logistical matters but not anything related to paramedic practice or advice on treatment.
Mr Vernon also said it had not been necessary, since 1999, that a dispatcher hold qualifications as a paramedic. He said that most former paramedics in control centres maintain their clinical certificate to practice, the cost of which is met by the Ambulance Service.
Mr Morrison
The appellant also relied on an affidavit of Alan Morrison dated 31 August 2015. He is Director of Education with the NSW Ambulance Service. He stated that he was confident that all courses, attendees and assessments were entered in the Certificate to Practice Management System. He stated that he had searched the records of the NSW Ambulance Service, which indicated that Mr Stockwell did not hold certification as an ambulance officer beyond 30 June 2006. He stated that a person cannot perform the duties of an on-road paramedic unless they maintain their Certificate to Practice (CTP) every three years. There is no record of Mr Stockwell maintaining this beyond 30 June 2006.
LEGISLATIVE BACKGROUND
On 22 June 2012 the 2012 amending Act was passed. It reduced certain entitlements to compensation under the 1987 Act. Certain “high risk” occupations were exempted from the amendments. The original Bill presented to Parliament expressed the exemptions as follows:
(a) under proposed item 4 of Pt 19H of Sch 6, the benefit amendments made by the amending Act were not to apply, relevantly, in respect of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 - which effectively exempted firefighters in rural fire brigades operating under the aegis of the Rural Fire Service, emergency service workers in the State Emergency Service, and surf lifesavers, and
(b) under proposed item 25 of Pt 19H of Sch 6, the amendments made by the amending Act were not to apply to police officers.
During the course of the debates which followed, Mr David Shoebridge MLC moved an amendment to extend the exemption in item 25 to “paramedics and firefighters”. He said:
“These amendments will ensure that the protection from benefit cuts proposed by the Government to apply to police, Rural Fire Service and State Emergency Service workers will also apply to those other, much-prized emergency personnel, paramedics and firefighters. As the Government's bill is currently drafted, police have their benefits protected, Rural Fire Service personnel and State Emergency Service personnel have their benefits protected, but the other emergency service personnel, the firefighters and the paramedics, who will be working side by side with Rural Fire Service and State Emergency Service personnel - all of whom will be going to the same bushfires, or the same road trauma incidents, or to fight the same fires and dealing with the same consequences of emergencies throughout our city, country and regional areas - will not. There will be two classes of benefits. The employed firefighters and the employed paramedics will get the stripped-down benefits, but the police, Rural Fire Service and State Emergency Service personnel will have the superior benefits, before they were so badly savaged by this Government’s amending bill. That is grossly unfair for the emergency services sector.”
The amendment proposed by Mr Shoebridge was subsequently carried. Consequently, cl 25 of Pt 19H of Sch 6 to the 1987 Act provides:
“25 Police officers, paramedics and firefighters
The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.”
THE SENIOR ARBITRATOR’S DETERMINATION
The Senior Arbitrator identified the issue in dispute, at [21]:
“The sole issue remaining between the parties is whether [Mr Stockwell] is appropriately characterised as a ‘paramedic’ for the purposes of clause 25. If he is, then the 2012 amendments do not have application. It was submitted by [Mr Stockwell’s] counsel, and no contrary submission was made, that if [he] succeeded on this issue the appropriate course was simply to confirm the weekly award in the Certificate of Determination dated 20 May 2008.”
The Senior Arbitrator noted that authorities relied upon by the appellant, namely Ware v NSW Rural Fire Service [2014] NSWWCCPD 33 (Ware) and The Australian Workers' Union, New South Wales v Office of Environment and Heritage [2012] NSWIRComm 133 (AWU), were both cases which involved the application of cl 25 to workers whose employment classification did not fall within one of the classes of workers exempt by cl 25, but who may from time to time be called upon to perform the duties of a firefighter. The Senior Arbitrator did not consider those decisions to be of direct relevance to the issue before him, which was whether Mr Stockwell was employed as a “paramedic”.
In Stockwell No 1 Deputy President Roche stated (at [93]):
“If Mr Stockwell’s classification remained ‘Ambulance Officer – Grade 2’ at the time of his injury in January 2007, there seems little doubt that he would have been entitled to be described as a paramedic and would be exempt from the consequences of the amendments introduced by the 2012 amending Act. This would follow regardless of the duties he actually performed. That is so because cl 25 is concerned primarily with the classification of the worker, that is, whether he or she is a police officer, paramedic or firefighter. Whether, because of the particular activities required by their employment from time to time, workers who are not classified or employed as police officers, paramedics or firefighters can come within cl 25, will depend on the circumstances of each case.”
Although the Senior Arbitrator noted that Deputy President Roche’s observations above were obiter, he regarded it as appropriate that he apply them to the issue before him.
Essentially, the appellant’s arguments fell into two broad categories. First, whether Mr Stockwell was properly classified as a paramedic (the classification argument) and second, whether he had successfully completed his re-certification, as required under the relevant Award in order to maintain his status as a paramedic (the re-certification argument).
The classification argument
The appellant’s primary argument was that cl 25 exempts Ambulance Officers who are engaged in frontline operations responding to emergency situations or in a position of high danger or high peril.
When Mr Stockwell was appointed to the operations centre in a letter from the Ambulance Service dated 10 May 2001, it specifically provided that his employment was to be under the “Operational Ambulance Officers State Award [sic]”.
The Operational Ambulance Officers (State) Award contained in NSW Industrial Gazette – Vol 305 dated 10 July 1998 (the 1998 Award) contained the following definition:
“‘Ambulance Officer Grade 2’ means an employee who has successfully completed the requirements as set out for Ambulance Officer Grade 1 and who is in his or her fourth or subsequent years of service and who is appointed to an Ambulance Officer position identified as such by the Service.
Provided that such an officer shall be required to undertake and successfully complete further instruction/in-service courses and certification examinations as required by the Service every two years.”
This Award provided for Ambulance Officers Grades 1 and 2, and other officers who were permanently appointed to the Ambulance Operations Centre, to be paid:
“… the wage applicable for an Ambulance Officer as set out in table 1 – Wages, of the said Part B, up to the maximum rate applicable for Ambulance Officer Grade 2 Year 7 and are to be paid, in addition to their wage and allowances, the operations centre allowance as set out in the said item 1.
The parties agree that this classification will remain a source of alternative duties for injured officers requiring rehabilitation as a result of a workplace injury.”
The “Monetary Rates” at Pt B of the Award include:
“Operations Centre Allowance (This allowance is only applicable to Ambulance Officer Grade 1 and 2, Station Officer Grade 1 and 2 and District Officers. Such an allowance is cumulative on other allowances paid to the employee at the time).”
The Operational Ambulance Officers (State) Award contained in the NSW Industrial Gazette – Vol 359 dated 16 June 2006 (the 2006 Award), was the Award that was in place when Mr Stockwell was injured (which was deemed to be 31 January 2007). The 2006 Award contained the same definition of “Ambulance Officer – Grade 2” as the 1998 Award and the same provisions with respect to in-service courses, re-certification requirements and allowances.
The Operational Ambulance Officers (State) Award contained in NSW Industrial Gazette – Vol 368 dated 26 June 2009 (which the Senior Arbitrator referred to as the 2008 Award) post-dated Mr Stockwell’s employment with the Ambulance Service. However, it is relevant to note that in the transitional arrangements provided for in the 2008 Award, the classification “Ambulance Officer Grade 2” prior to September 2008 became, after September 2008, “paramedic”. The 2008 Award differentiated between the wages payable to an “Ambulance Operations Centre – Non Paramedic”, “Ambulance Operations Centre Paramedic” and an “Ambulance Operations Centre Paramedic Specialist”.
Mr Stockwell’s pay advice for 26 January 2007 described his classification as “Ambulance Officer (Ops Centre)”. It included a sum of $176.84 described as “B: Op Cent Allow”. The payment was consistent with the provisions of the 1998 and the 2006 Awards.
Mr Stockwell’s Certificate of Service dated 14 August 2007, following separation on 10 August 2007, stated that he held the position of “Ambulance Operations Centre Officer” and identified his special skills and qualifications as “Computer Aided Dispatch” and “Certified Emergency Medical Dispatcher”.
Mr Stockwell understood that the term “Ambulance Officer Grade 2” was synonymous with the term “paramedic”. That was consistent with the provisions of the 2008 Award which transitioned the classification of “Ambulance Officer Grade 2” to the classification of “Paramedic”. The Senior Arbitrator noted that there was nothing in the Award to suggest that an Ambulance Officer Grade 2 ceased to be classified as such as a consequence of being appointed as an Ambulance Operations Centre officer.
Mr Stockwell stated that, due to his back injury, he would find the discharge of an ambulance officer’s duties in the field to be “very strenuous”. The Senior Arbitrator accepted that that evidence was not inconsistent with the proposition that Mr Stockwell remained an Ambulance Officer Grade 2. That was because the Award in place at the time he commenced duties in the operations centre specifically provided that the Ambulance Operations Centre officer position was to be a source of alternative duties for injured officers requiring rehabilitation.
The letter dated 10 May 2001, offering Mr Stockwell the position as an Ambulance Operations Centre Officer, specifically provided that his employment was under the terms and conditions of the “Operational Ambulance Officers State Award”.
The Senior Arbitrator summarised his findings at [139]:
“[Mr Stockwell] was an Ambulance Officer Grade 2. Following his back injury he took up duties as an Ambulance Operations Centre Officer. It was consistent with the relevant Award that he could take up these duties as an Ambulance Officer Grade 2. He was remunerated on that basis. Neither the Award nor other material indicate that performing the duties of an Ambulance Operations Centre Officer was inconsistent with continuing to be classified as an Ambulance Officer Grade 2. This was consistent with being a ‘paramedic’ under the terminology introduced in the 2008 Award. It follows that, as [Mr Stockwell] was classified as an Ambulance Officer Grade 2, it does not matter that [Mr Stockwell] was not performing the front line operational duties of a ‘Paramedic’ (or ‘Ambulance Officer Grade 2’) when he suffered psychological injury.”
The re-certification argument
The Senior Arbitrator rejected the appellant’s argument that Mr Stockwell was not qualified to carry out the duties of an Ambulance Officer Grade 2 at the time he suffered his psychological injury, due to his having failed to meet the re-certification requirements required under the relevant Award.
The relevant passage from the 2006 Award, which applied at the time that Mr Stockwell was injured, stated:
“Provided that such an officer shall be required to undertake and successfully complete further instruction/in-service courses and certification examinations as required by the Service every two (2) years.” (emphasis added)
The Senior Arbitrator accepted Mr Stockwell’s evidence that undertaking the re-certification examinations was done in accordance with “operational abilities” of the Ambulance Service. It was a matter for the Ambulance Service to make arrangements for the training to be undertaken. He accepted that it was “very open-handed” as to when the training was undertaken.
The Senior Arbitrator examined the evidence from the appellant’s education file relating to Mr Stockwell. He concluded that the contents of the education file overall were consistent with Mr Stockwell’s evidence. He accepted Mr Stockwell’s evidence concerning how and when education and re-certification were arranged. The Senior Arbitrator found that time restrictions on continuing education and re-certification were not strictly adhered to and extensions of time were granted from time to time. The Senior Arbitrator was not satisfied that the evidence established that persons in the position of Mr Stockwell were prevented from carrying out their jobs until re-certification was completed. There was nothing to indicate that officers’ classifications were changed whilst the re-certification was outstanding.
The Senior Arbitrator found that Mr Stockwell was recertified until the end of 2006, such finding being consistent with correspondence dated 26 August 2005 from the International Academies of Emergency Dispatch (“IAED”), an international agency to whom the Ambulance Service contracted to provide education and educational materials.
The Senior Arbitrator concluded that the relevant provisions of both the 1998 and 2006 Awards referred to an Ambulance Officer Grade 2 being required to undertake instruction and sit certification examinations “as required” by the Ambulance Service. There was no evidence that Mr Stockwell did not comply with any requirements made of him in that regard. Mr Stockwell was compliant with the requirements for further education and certification, as per the relevant Award. For that reason, the Senior Arbitrator accepted that Mr Stockwell would not have been precluded from being an Ambulance Officer Grade 2 due to non-compliance with the provisions of the Award.
The Senior Arbitrator accepted Mr Stockwell’s submission that, notwithstanding some breach of the particular requirement of the Award, it did not change the fact that he was employed as an Ambulance Officer Grade 2 as at the deemed date of his injury on 31 January 2007.
It followed that, as Mr Stockwell was found to be employed as a “paramedic”, the amendments introduced by the 2012 amending Act did not apply to him and, in accordance with the parties’ concession, the appropriate order was to confirm the weekly award in the Certificate of Determination dated 20 May 2008.
GROUNDS OF APPEAL
The appellant alleges that the Senior Arbitrator erred in:
(a) finding that the respondent worker was a “paramedic” within the meaning of cl 25 at the date he sustained psychological injury with the appellant;
(b) finding that the 2012 amending Act does not apply to Mr Stockwell in respect of his psychological injury;
(c) failing to make a factual finding that Mr Stockwell did not give paramedic advice whilst he was employed as an operations centre officer;
(d) failing to make a factual finding that Mr Stockwell was not certified as a paramedic at the time of the deemed date of his injury, and
(e) making a factual finding that, even if Mr Stockwell was not certified as a paramedic at the time of the deemed date of injury, he was not precluded from being treated as a paramedic because of his failure to comply with the provisions of the award.
THE APPELLANT’S SUBMISSIONS
The appellant’s solicitor’s submissions fail to comply with Practice Direction No 6 in that they do not clearly and succinctly deal with each ground of appeal. However, the submissions are sufficiently brief for them to be extracted in full:
“1. The appellant submits the arbitrator failed to properly differentiate and provide an adequate analysis of the evidence in relation to the professional qualification of ‘paramedic’ as an incident of the award under which the worker was employed as against the evidence that went to the worker’s certification as a paramedic.
2. The appellant submits the question of the professional qualification of the worker is quite separate from the requirements set out in the award under which the worker was employed.
3. The appellant submits the evidence showed the worker did not hold a Certificate to Practice as a paramedic either post 30 June 2006 or post 31 December 2006. The appellant therefore submits on this evidence alone, the worker was unable to work as a paramedic. In addition, the evidence of Alan Morrison, Director of Education, NSW Ambulance, was that a person cannot perform the duties of an on-road paramedic unless they maintain their Certificate to Practice every three years, in accordance with Standard Operating Procedure 2011-015. The appellant submits the arbitrator erred in not properly analysing and accepting this evidence.
4. The appellant further submits the evidence shows, that even if the worker was certified to practice as a paramedic, he was unable to do so by reason of his prior back injury. It was for this reason the worker applied for and was successful in being appointed as an operations centre officer.
5. The appellant submits whilst the arbitrator was not obliged to make a finding or [sic, of] fact on every piece of evidence, his failure to make a finding of fact in relation to whether or not the worker gave paramedic advice whilst he was employed as an operations centre officer or that he was not certified as a paramedic at the time of the deemed date of his injury, may indicate he thought the evidence was not relevant and that may constitute an error in line with the decision in [Minister for Immigration and Multicultural Affairs v] Yusuf (2001) 206 CLR 323 (Yusuf).
6. The appellant submits the definition of ‘paramedic’ under clause 25 turns on the worker’s employment activity as set out in the decision of Boland J in Australian Workers Union, NSW v Office of Environment and Heritage [2012] NSWIRCom [133] (AWU) and not his employment category as set out in the decision of Walton J in Chapman-Davis v State of New South Wales [2015] NSWIRComm [10] (Chapman-Davis).
7. The appellant submits the arbitrator did not give due weight to the decision of Boland J in the AWU case which articulates the principle expressed in Parliament by Mr Shoebridge MLC in Hansard. The appellant notes Boland J stated the Parliamentary purpose of the legislation was to exempt only those emergency workers who are working at the ‘front line’. Under section 33 of the Interpretation Act, the legislation is to be read according to its purpose.
8. The appellant submits on the principle of stare decisis, the AWU case remains good law and Chapman-Davis did not find it was plainly wrong.”
Submissions in reply, prepared by Mr Flett, of counsel, and lodged on 24 March 2016, raise a number of additional issues. Many of these issues are not submissions in reply but raise issues that should have been included in that initial appeal application, which is highly unsatisfactory. The submissions may be summarised as follows:
(a) the Senior Arbitrator erred by failing to make a finding of fact as to whether, at the deemed date of injury, Mr Stockwell was in fact certified as a paramedic;
(b) the error alleged in ground five is that the Arbitrator erred in law (not fact) in finding that Mr Stockwell was not precluded from being treated as a paramedic because of a failure to comply with the provisions of the Award. It was submitted that the Senior Arbitrator’s factual conclusion (at [167]) that, as a matter of practice, a person would “not be precluded from being an Ambulance Officer Grade 2 due to non-compliance” says nothing about whether the same person is, as a matter of law, a paramedic for the purposes of the workers’ compensation legislation. It was submitted the “obvious error” with the Senior Arbitrator’s reasoning is that it provides no parameters for the test of determining the amount of time that must elapse before a non-compliant person ceases to be an Ambulance Officer Grade 2;
(c) AWU is authority for the proposition that the definition of “paramedic” under cl 25 “turns on employment activity of the worker”;
(d) if the Commission decides that the worker was not qualified (to work as a paramedic) but determines, contrary to Roche DP’s obiter opinion in Stockwell No 1, that that is not determinative of the issue, the Commission must then consider Mr Stockwell’s employment activity as a paramedic (AWU). The Senior Arbitrator’s failure to make a finding of fact on this issue is an error because the fact must be decided if the appellant is to succeed on the appeal;
(e) in the AWU case Boland J extracted from Mr Shoebridge MLC’s remarks in Parliament that the exemption provided by cl 25 applies to individuals performing the activities enumerated within the clause. That is, the exemptions only apply to those who are at the “front line” of the enumerated duties;
(f) the appellant submits that Chapman-Davis was wrongly decided. It submits:
“Walton J reasoned that an employee is an ‘officer/operational ambulance officer’ under the Award if they are appointed as such. However, Walton J gave no thought to the classifications under cl 5 of the award. Although the classifications include ‘paramedic’, this should not have assisted Ms Chapman. Applying the activity test of the Australian Workers Union case, which Walton J was obliged to follow unless it was ‘plainly wrong’, Ms Chapman needed to demonstrate that she was performing paramedic duties in order to fall under the award. However, as the respondent’s submissions concede, Ms Chapman was not performing paramedic duties.”
(g) the activity test of the AWU case was considered in Ware where the worker was found not to be a firefighter within the exclusion provided by cl 25 on the basis that he was employed as a mechanic. That case left open the question of whether the exemption applied if he had been injured while actually attending the fire front;
(h) cross-examination of Mr Stockwell at T29.7–T32.9 and the appellant’s submissions at T86.26–33 establish the appellant’s argument that a paramedic is one who is qualified as a paramedic and works side by side in high risk situations with other emergency workers in situations that require the creating of a log to record the event, and
(i) Mr Shoebridge MLC’s remarks are narrow in their application to ambulance officers and firefighters. He talks of having their benefits protected when they will be “working side by side” at “bushfires or the same road trauma incidents or fight the same fires and dealing with the same consequences of emergencies”. It is submitted that the mischief the amendment was designed to overcome is not to give firefighters and paramedics the complete exemption afforded to police officers from the operation of the amended legislation, but to ameliorate the legislature’s initial failure to give firefighters and paramedics any kind of exemption at all.
DISCUSSION AND FINDINGS
The appellant’s submissions deal with the following issues: certification as a “paramedic”; failing to find that Mr Stockwell did not give paramedic advice as an operations centre officer; Mr Morrison’s evidence; Mr Stockwell’s back injury, and whether the authorities were correctly applied.
Certification as a “paramedic”
As the Senior Arbitrator found, the letter of appointment from the Ambulance Service to Mr Stockwell dated 10 May 2001, offering him the position as an Ambulance Operations Centre officer, specifically provided his employment was to be pursuant to the terms and conditions of the “Operational Ambulance Officers State Award”.
The Senior Arbitrator found that Mr Stockwell was appointed to an Ambulance Officer position after joining the Ambulance Service in 1996. He was satisfied that, by reason of his training and experience, Mr Stockwell satisfied the criteria for the classification of “Ambulance Officer Grade 2” in accordance with the 2006 Award. He accepted Mr Stockwell’s evidence that an Ambulance Officer Grade 2 was, for all intents and purposes, regarded as a “paramedic”. Those findings were open on the evidence and were correctly made.
The Senior Arbitrator further found Mr Stockwell’s evidence was consistent with the transitional arrangements which accompanied the introduction of the 2008 Award. Pursuant to cl 9 of the 2008 Award, the classification of “Ambulance Officer Grade 2” prior to September 2008 became, after September 2008, “paramedic”.
The Senior Arbitrator’s conclusion was also consistent with his analysis of the education file, which confirmed that Mr Stockwell had met the requirements for re-certification as an Ambulance Officer Grade 2 until 31 December 2006. These findings were open on the evidence and did not involve an error.
I reject the appellant’s submission that the Senior Arbitrator erred by failing to find that Mr Stockwell was not certified as a paramedic at the time of the deemed date of injury. As the Senior Arbitrator correctly identified (at [146]) the appellant’s argument was not that Mr Stockwell was not certified for that task, but rather that he had not maintained his certification to be an Ambulance Officer Grade 2.
The award provisions required Mr Stockwell to successfully complete further instruction/in-service courses “as required by the service every two years” (emphasis added). The Senior Arbitrator found (at [166]) that the evidence was consistent with Mr Stockwell being recertified by IAED until the end of 2006.
The Senior Arbitrator accepted Mr Stockwell’s evidence that it was the responsibility of the Ambulance Service to arrange for him to attend re-certification courses. This occurred as and when the Ambulance Service resources permitted. This included making travel and accommodation arrangements on his behalf. Mr Stockwell said, and the Senior Arbitrator accepted, that from time to time there were delays in the re-certification process during which time officers continued to work in their normal classification. It was open to the Senior Arbitrator to accept that evidence.
The Senior Arbitrator also found that Mr Stockwell’s evidence was consistent with the education file, which revealed that, after the expiration of his certification on 31 December 2004, there was a gap of several months before he was recertified. That was apparent from the undated, unsigned memorandum (referred to by the Senior Arbitrator at [158] of the reasons for decision), seeking an extension of time to complete the re-certification due to a misplaced “CDE booklet” and examination paper. It is further confirmed by the memorandum, again undated, but bearing a handwritten notation “15/3/05”, also seeking approval for an extension of time to complete the re-certification process. These memoranda are consistent with the memorandum from Robin Watsford the Quality Support Coordinator, dated 19 April 2005, informing Mr Stockwell that he must complete his re-certification by 30 April 2005.
Although not expressly stated, I infer that Mr Stockwell continued with his normal duties during the gap in the re-certification period in early 2005. There is nothing in the evidence to suggest otherwise. The education file also revealed that it was not uncommon for an extension of time to be sought for members of staff to complete re-certification examinations without apparent interruption to their normal duties. As Mr Stockwell had been recertified until 31 December 2006 and the deemed date of injury is 31 January 2007, the gap in question is just one month.
The Senior Arbitrator accepted that Mr Stockwell had successfully completed the requirements for re-certification from 26 August 2005, extending his certification to 31 December 2006. It was open to the Senior Arbitrator to conclude (at [165]), as he did, that the contents of the education file were consistent with Mr Stockwell’s evidence that time restrictions on continuing education and re-certification were not strictly adhered to. There was nothing in the evidence to suggest that staff were prevented from carrying out their normal duties until re-certification was complete, or, as the Senior Arbitrator expressed it, to “suggest that their classifications were somehow changed whilst re-certification was outstanding”. Those findings were open to the Senior Arbitrator on the available evidence and did not involve error.
I reject the appellant’s submission that these findings amounted to an “obvious error” in that it provides no parameters for the test of determining the amount of time that must elapse before a non-compliant person ceases to be an Ambulance Officer Grade 2. The Senior Arbitrator was not required to delineate such a test. The issue he was required to determine was whether Mr Stockwell was a paramedic as at the deemed date of injury. That is what he did.
In any event the evidence established that the Ambulance Service controlled the extent to which a lapse in the re-certification process was acceptable. This is demonstrated by the memo to Mr Stockwell from Ms Watsford on 19 April 2005. Ms Watsford made it clear to Mr Stockwell that although he was already non-compliant with the re-certification requirements by several months, his request for a further delay of 13 weeks, to complete the re-certification process, during which Mr Stockwell was to be on planned leave, was not acceptable.
Mr Flett’s submission that cross-examination of Mr Stockwell (regarding the practice of ambulance officers when attending to emergency call-outs) and the appellant’s submissions established that a paramedic is one who is qualified as a paramedic and who works side by side with other emergency workers in circumstances requiring the creating of a log to record the events, is unpersuasive. It may well be that such persons are to be regarded as paramedics. However, such evidence and submissions are not determinative of the issue in the present case.
Failing to make a finding that Mr Stockwell did not give paramedic advice as an operations centre officer
For the reasons referred to above, the Senior Arbitrator considered that the question of whether Mr Stockwell was a paramedic was to be determined by whether he was employed as a paramedic and met the definition of such contained in the relevant Award.
Once the Senior Arbitrator was satisfied that Mr Stockwell satisfied the Award classification of “Ambulance Officer Grade 2” it was open to find that Mr Stockwell was a “paramedic” for the purpose of the application of cl 25. Whether he gave clinical advice as a paramedic or simply directed ambulances to specific locations simply did not arise. There was therefore no requirement for the Senior Arbitrator to decide that question as it was not relevant.
Mr Morrison’s evidence
I reject the submission that the Senior Arbitrator erred in not properly analysing and accepting the evidence of Mr Morrison. Mr Morrison said that, in his experience, a person cannot perform the duties of an on-road paramedic unless they maintain their CTP every three years.
The issue before the Senior Arbitrator was not whether Mr Stockwell was able to perform “on-road” duties at the time he was injured, but whether he satisfied the Award definition of “paramedic”.
Mr Morrison’s evidence stood in stark contrast to the evidence revealed in the education file. The Ambulance Service’s own records clearly demonstrate that there were often gaps during the re-certification process. It was the Ambulance Service that managed the process and it was evident that there was an established policy whereby extensions of time could be sought, and were often granted in order to enable officers to complete the process.
Moreover, the education file did not suggest that officers who were potentially out of time for the completion of educational requirements were prevented from carrying out their jobs until re-certification was completed.
In any event, Mr Morrison did not address himself, as Mr Stockwell did, to the Ambulance Service practice in circumstances where there were short gaps in the re-certification process. The Senior Arbitrator fully and carefully analysed the issue raised in Mr Morrison’s evidence, and, for the reasons given, was right not to accept that evidence.
Mr Stockwell’s back injury
The submission that even if Mr Stockwell was certified to practise as a paramedic, he was unable to do so by reason of his prior back injury fails to identify a relevant error. If, however, it is directed to an argument that, by reason of his incapacity (as a result of his back injury), Mr Stockwell would be unfit to work as an operational ambulance officer and therefore could not be classified as a paramedic, I reject it.
The Senior Arbitrator’s finding, which I have upheld, is that Mr Stockwell continued to be classified and paid as an Ambulance Officer (paramedic) by reason of the application of the relevant Award provisions. The Senior Arbitrator noted that the Award provided that “Ambulance Operations Centre Officer was to be a source of alternative duties for injured officers during rehabilitation”. Therefore, there is no inconsistency in Mr Stockwell being unable to work in the field as a paramedic, because of his back injury, and his continuing to be employed as a paramedic.
Whether the authorities were correctly applied
The appellant’s submission that AWU is authority for the proposition that the definition of “paramedic” in cl 25 “turns on employment activity of the worker”, is not an accurate statement of the ratio decidendi of that decision.
In AWU, following the passage of the 2012 amending Act, the Australian Workers Union lodged proceedings in the Industrial Relations Commission of New South Wales seeking declarations on behalf of employees of various state entities concerning their status as “firefighters” for the purpose of the 2012 amending Act.
The declarations sought concerned employees who were required from time to time to undertake firefighting and fire related activities in circumstances where firefighting was not part of their core duties. The President, Justice Boland (as he then was), determined that such employees were only “firefighters” for the purposes of cl 25 whilst they were performing firefighting duties. His Honour reasoned at [97]:
“There can be no doubt, for example, that a police officer designated as such under the Police Act 1990 or a firefighter who is a member of a fire brigade appointed under the Fire Brigades Act 1989 or a paramedic employed by the Ambulance Service of NSW, are covered by item 25. However, a firefighter in item 25 is not limited to a member of a fire brigade. The ordinary meaning of a firefighter is ‘Someone whose activity or employment is to extinguish fires, especially bushfires’: Macquarie Concise Dictionary (Third Edition). Employees who are the subject of the Unions’ applications in this matter who perform the work of a firefighter from time to time must come within the ordinary meaning of firefighter whilst they are undertaking the work of fighting fires; they are referred to and designated as ‘firefighters’ by their employer whilst in that role.”
His Honour added at [100]–[101]:
“The critical question is, however, whether the employees who are the subject of the applications are to be regarded as firefighters for the purpose of item 25 when they are not actually performing the work of firefighting, but rather they are performing the work for which they are employed for the major and substantial part of their employment, be it an Aviation Role Equipment Supervisor/Senior Air Crewman responding to floods or other relief work, a Ranger with responsibilities for noxious animal and weed management, a Supervising Forester supervising logging crews, an Area Manager whose primary responsibilities might include financial management, time management planning and managing staff, or an Operations Team Leader responsible mainly for the appropriate management of fire, pests and weeds.
I am unable to accept that the purpose of including ‘firefighter’ in item 25 was to exempt from the 2012 workers’ compensation amendments, in respect of the whole of their employment, employees who perform the work of firefighting from time to time, but whose designated occupation or volunteer capacity is not that of a firefighter. A National Parks and Wildlife Ranger with responsibilities for noxious animal and weed management, for example, would not be referred to in normal discourse as a firefighter. He or she would only be regarded as a firefighter when engaged in fighting fires.”
It followed that, as the Senior Arbitrator concluded, AWU is not directly relevant to whether Mr Stockwell was a paramedic.
The Senior Arbitrator correctly found that Mr Stockwell, by reason of his training and experience, satisfied the criteria for the classification of “Ambulance Officer Grade 2” in accordance with the 2006 Award. He accepted Mr Stockwell’s evidence that an Ambulance Officer Grade 2 was, for all intents and purposes, regarded as a “paramedic”. For the reasons that have been given, the short lapse in the re-certification process immediately before the deemed dated of injury did not disturb Mr Stockwell’s employment status. It is therefore unnecessary to consider whether the particular employment activities undertaken by Mr Stockwell in the course of his duties would bring him within the exclusion provided by cl 25.
The appellant has misunderstood the import of Mr Shoebridge’s comments when moving the amendment to cl 25. The point of the comment was that the duties of firefighters and paramedics can require them to be exposed to similar risks as a police officer. Part of the compensation for taking those risks is the benefit of superior compensation rights. This does not mean that the amendment should be interpreted as only applying to Ambulance Officers while performing front line operations responding to emergency situations or in a position of high danger or high peril, any more than it means that only police officers performing front line policing duties are exempt.
The submission that Boland J concluded in AWU that the amendments proposed by Mr Shoebridge were intended to apply only to those persons who are at the “front line” of the enumerated duties is misleading and I reject it. Boland J said (at [102]):
“It is apparent from the Parliamentary debate the purpose of extending item 25 to cover firefighters and paramedics was to exempt from the 2012 amendments only a small and select group of occupations that had in common the provision of emergency services and may be working side by side with each other attending to the same emergency. Whilst employees of the respondent may be regarded as providing an emergency service when they perform the work of firefighting, they are not engaged in providing emergency services or likely to be working side by side with other emergency workers when performing other work that comes within the ambit of their designated occupation of Ranger, Forester, Field Officer, Project Officer and the like.” (emphasis added)
It is apparent that Boland J held that the amendments proposed by Mr Shoebridge were intended to exempt workers who were appointed or employed as firefighters and paramedics. However, his Honour also accepted that workers employed in other occupations, such as those to which he referred, would also be regarded as entitled to the exemption afforded by cl 25 when they were performing what could be described as “front line” duties as, in that case, firefighters. I agree with his Honour’s approach and I reject Mr Flett’s submission as to the import of Mr Shoebridge’s comments.
The submission as to the mischief the amendments were designed to overcome is misplaced. While remarks such as Mr Shoebridge’s may be of limited assistance in the event of ambiguity, they are of no assistance in interpreting the clear terms of cl 25. Statements of legislative intent made by a minister in a second reading speech (which Mr Shoebridge’s speech is analogous to) do not overcome the need to consider the text of the statute to ascertain its meaning: Saeed v Minister for Immigration and Citizenship[2010] HCA 23 at [31]; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd[2011] HCA 33 at [50].
In any event as Walton J discussed in Chapman-Davis at [151]:
“[Mr Shoebridge’s] comments do not, therefore, disclose a particular view of the duties which all workers covered by the provision would perform or that the subject group of employees would only fall within the Schedule when performing certain emergency duties but, rather, that, as each class of worker may attend the same emergencies, it would be inappropriate for their workers compensation entitlements to be different.”
I agree with his Honour’s comments above.
A similar proposition to that advanced by the appellant in this appeal was rejected by Walton J in Chapman-Davis. The facts closely resemble those in the instant matter.
Ms Chapman-Davis commenced employment with the Ambulance Service of New South Wales as an Ambulance Officer in September 2000. On 25 July 2011, she sustained an injury to her back and underwent spinal surgery in 2011. Her employment was regulated under the 1998 Award.
Ms Chapman-Davis progressed to the classification of Ambulance Officer Grade 2 under the 1998 Award. As I noted earlier, the 2008 Award transitioned the classification previously referred to as “Ambulance Officer Grade 2” to “Paramedic”. Ms Chapman-Davis’s classification was altered to “Paramedic Year 2” under the transitional provisions of the 2008 Award. The Award was reissued in similar terms on 24 December 2010.
On 18 July 2011, Ms Chapman-Davis was transferred to work in the Ambulance Service Health Access Coordination Unit as a “Health Advisor”. The position was a secondment for 12 months. Her letter of offer stipulated that her conditions of employment as a Health Advisor were those that applied under the 2010 Award and she was to be remunerated at the rate of “FTE Paramedic Specialist Year 1”.
Ms Chapman-Davis lodged proceedings in the Industrial Relations Commission seeking declarations that she continued to be employed as a paramedic during the period of her secondment and that she be treated as a “paramedic” for the purposes of cl 25 of Pt 19H of Sch 6 to the 1987 Act.
The employer argued, as the appellant has in the present case, that the award classification was not determinative and it was necessary to have regard to the duties performed at the time of injury. The employer referred to the passage from the speech of Mr Shoebridge on which submissions were made in the current matter. In rejecting that argument Walton J accepted that, in her role as a Health Advisor, Ms Chapman-Davis was not called upon to give emergency clinical advice except on rare occasions (in other words, she did not do front line paramedic duties). His Honour recognised that the decision in AWU was of limited assistance to the issues before him. He said at [168]:
“The contest in that case was confined to whether, on the one hand, all such employees who performed the duties of a firefighter (as an occasional part of their work) should be exempted from the effects of the Amendment Act pursuant to the subject provision or, on the other hand, whether those employees should be exempt only when performing firefighting duties. There was no dispute that, when engaged in firefighting duties, the subject employees were ‘firefighters’.”
At [170] Walton J added:
“As mentioned, however, his Honour [Justice Boland] did not make those comments in circumstances where he was specifically called upon to determine whether an officer, so designated, would be caught by the Schedule in circumstances where they were not performing the full range or core duties of such a position.”
His Honour said (at [171]):
“The respondents’ reliance on the AWU case as authority for their contention that the term ‘paramedic’ in the Schedule should be interpreted by reference to duties rather than classification in the present case is, therefore, to some extent, misplaced. His Honour was simply not called upon, in the resolution of the issues before him, to consider whether the designation of the workers as firefighters (whether employees of the Fire Brigade or otherwise) might have a bearing upon that question, as the subject group of employees were not classed as such.”
Walton J concluded that, upon the proper construction of Sch 6, the meaning of the term “paramedic” denotes an employee who is classified as a paramedic by virtue of the operation of the Award. He found that Ms Chapman-Davis was such an employee and hence exempt from the provisions of the amending Act. His Honour was not satisfied that the conclusion was displaced by the fact that Ms Chapman-Davis was not performing, or rostered to perform, operational paramedic duties at the time of her injury.
His Honour reasoned, first, the presence of the indefinite article “a” before the words “police officer, paramedic or firefighter” grammatically indicates that it was membership of the nominated class that was attempted to be exempted by cl 25.
Second, when considered with the foregoing analysis and the immediate context in which the words “a paramedic” are used, (that is, the words of association) each word in the phrase concerns the designation of an officer engaged in the discharge of emergency services in New South Wales, such as a member of the Police Force or, in this case, appointment of a paramedic by the Ambulance Service of New South Wales.
Third, the construction is consistent with the general intent of the workers’ compensation scheme, as revealed by the definition of “injury” in the 1987 Act. The definition is not governed by whether a worker is performing particular duties at the time of injury, but rather whether the injury arises out of or in the course of employment. There is nothing in the text of the schedule to indicate that the protection afforded should only be extended to employee paramedics who are injured whilst performing operational duties or are rostered to perform such duties.
Fourth, the Award confirms this construction. That instrument determines the classification of paramedics. The definition of “paramedic” in the Award concerns only the appointment of an employee and the attendant qualifications for that condition.
Fifth, there is nothing in the language used in the schedule which would indicate that Parliament intended that the words of the phrase should be given some unusual meaning or be viewed as a technical expression or term of art. The construction is also consistent with the current ordinary and natural meaning of the words used.
Sixth, to construe the phrase as importing the word “operational” into the schedule would require a satisfaction of the conditions described by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105. The first such condition involves identifying the precise purpose of the provision. The second requires satisfaction that the drafter and the Parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose and third the Court is required to identify the words that the legislature would have included in the provision had the deficiency been detected before its enactment. His Honour was not satisfied that any of those conditions could be met for reasons which were articulated at [207].
Seventh, his Honour considered that the narrow construction proposed by the respondent was inconsistent with the beneficial nature of the schedule. The schedule acts as a savings provision to the legislation and is designed to shield that class of workers in question from the provisions of the 2012 amending Act which would otherwise significantly limit their entitlements under the 1987 Act. Accordingly, the construction of the schedule should be given a liberal rather than “literal or technical” meaning (at [210]). His Honour said “the broadest meaning of the phrase articulated in these proceedings is one which treats the Schedule as operating by virtue of the classification of each nominated officer”.
His Honour concluded (at [222]):
“The applicant, in her temporary position as a Health Advisor, fell within the field covered by the Schedule whilstsoever she maintained her appointment and classification as a ‘paramedic’ in the employment of the first respondent within the service of the ASNSW. That the ASNSW chose to maintain that appointment whilst the applicant was under secondment for various administrative reasons does not undermine the efficacy of that conclusion. The legislative intention must be derived from the text, context and purpose of the subject provision. In the final analysis, the conclusion I have reached, in that respect, is broadly consistent with the obiter expressed by Deputy President Roche in Stockwell and Boland J in the AWU case (at [97]).”
There is no inconsistency between AWU and Chapman-Davis. If a worker is employed as a paramedic, the exemption in cl 25 applies. If a worker is not employed as a paramedic, but from time to time is required to perform paramedic duties then they may be exempt if injured whilst performing those duties. This conclusion is consistent with Deputy President Roche’s observations in Ware and Stockwell No 1. For these reasons the maxim stare decisis does not assist the appellant in the circumstances of this case.
The Senior Arbitrator said that the approach taken by Walton J was broadly consistent with the statement by Roche DP in Stockwell No 1 at [93], reproduced at [64] above. That statement was correct.
I do not accept that Chapman-Davis was wrongly decided. It is consistent with the obiter comments in Stockwell No 1 and, more importantly, with the clear words of the legislation. Though Chapman-Davis is not strictly binding on the Commission, the Commission should follow a considered and reasoned decision of the Industrial Relations Commission of NSW (which I note is a superior court of record when sitting as the Industrial Court of NSW, as it was in Chapman-Davis) on an issue that is on all fours with an issue before the Commission, unless it is plainly wrong. Far from concluding that Chapman-Davis is plainly wrong, I consider that it is clearly correct and that the reasoning applied in it applies in the present matter. It follows that the appellant’s arguments must fail. I note, in passing, that the appellant did not argue at the arbitration that Chapman-Davis was wrongly decided, but merely that it could be distinguished. For the reasons previously given, I do not accept there is any valid ground for distinguishing the principles discussed in Chapman-Davis and the issue in the present appeal.
CONCLUSIONS
The Senior Arbitrator did not err in concluding that, by reason of his satisfying the relevant Award classification, Mr Stockwell was employed as a “paramedic” whilst employed at the Ambulance Operations Centre and was therefore exempt from the operation of the 2012 amending Act. The actual duties performed in the operations centre, whether they involved giving paramedic advice and instruction or merely directing ambulances, was immaterial to the Senior Arbitrator’s finding.
DECISION
The Senior Arbitrator’s determination of 15 December 2015 is confirmed.
COSTS
The appellant is to pay the respondent worker’s costs of the appeal.
Judge Keating
President
5 April 2016
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5
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