United Voice v Ambulance Victoria
[2013] FWC 8541
•24 DECEMBER 2013
| [2013] FWC 8541 [Note: An appeal pursuant to s.604 (C2014/2588) was lodged against this decision - refer to Full Bench decision dated 16 May 2014 [[2014] FWCFB 3265] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
United Voice
v
Ambulance Victoria
(C2013/5373 and C2013/5491)
COMMISSIONER JOHNS | MELBOURNE, 24 DECEMBER 2013 |
Dispute concerning changes in positions and terms of employment.
[1] This decision is about whether Ambulance Victoria (Respondent) is entitled to roster Senior Team Managers (STMs) to undertake operational shifts in accordance with its Operational Frontline Management Model (Frontline). Essentially, the dispute requires the Commission to interpret, discern or construct the meaning of clause 21.4(a) of the Ambulance Victoria Enterprise Agreement 2009 (Agreement) which defines Team Managers and STMs.
[2] The Respondent asserts it is within its managerial prerogative to roster STMs (STMs) to undertake operational shifts. United Voice (Applicant), acting for its members employed as STMs, says that under clause 21.4(a) of Agreement, STMs are managers and do not perform operational shifts. However, the Applicant concedes that STMs do undertake operational work (albeit not rostered) in order that they maintain minimum requirements for the purposes of clinical competency.
[3] The dispute arises from a number of group grievances made by STMs about their concerns about the consequences of the roll-out of Frontline. All of the relevant STMs come from Metro West. On behalf of its members, the Applicant filed two applications for the Fair Work Commission (Commission) to deal with the disputes in accordance with a dispute settlement procedure in an enterprise agreement under section 739 of the Fair Work Act 2009 (FW Act). The dispute settlement clause is contained in clause 8 of the Agreement.
[4] The applications were listed for conference before the Commission on 7 August 2013 and 4 October 2013. During the conferences and other discussions between the parties a substantial number of issues raised by the Applicant on behalf of its members were resolved. The outstanding issue to be determined by the Commission was the proposed rostering of STMs for operational hours (Operational Shifts Dispute).
[5] The applications were listed for hearing on 22 October 2013. At the hearing:
● the Applicant was represented by one of its Industrial Officers, Brenda Forbath who called Susanna Dean to give evidence; and
● the Respondent was represented by its Employee Relations Specialist, Warren Cruse who called Cathryn Anderson to give evidence.
[6] At the commencement of the proceedings the Respondent raised an objection to the Commission exercising jurisdiction to arbitrate the Operational Shifts Dispute. In short the Respondent argued that the Operational Shifts Dispute was not “about a matter arising under the Agreement” as required by clause 8.1 of the Agreement. After hearing submissions from the parties, the Commission issued a decision ex tempore dismissing the jurisdictional objection. The Commission, as presently constituted, was satisfied that there is a rational nexus between the subject matter of the dispute and, in particular clause 21.4(a) of the Agreement which deals with management. The Commission was also satisfied there was some meaningful relationship, at least in a tangential way, with clause 9 of the Agreement dealing with the implementation of change and clause 35 Agreement dealing with the arrangement of hours. 1
[7] Having determined that the Commission was invested with jurisdiction to hear and determine the Operational Shifts Dispute the Commissioner noted that “there has been no witness material filed in relation to [the Operational Shifts Dispute], no substantive submissions on that issue, or outline of submissions on that issue.”
[8] The Commissioner offered the parties an opportunity to further program the matter. 2 The offer was declined. Mr Cruse advised the Commission that he and Ms Forbath had agreed upon the conduct of the matter and that they each intended to call one witness.3 To the extent that there was a lack of evidence before the Commission, the parties cannot now complain about a denial of natural justice. As was their right, the parties elected to run each of their cases based on the evidence of a single witness. The Commission is confined to that evidence.
Relevant terms of the Agreement
[9] The Agreement was approved on 9 November 2009. It commenced operation on 16 November 2009 and its nominal expiry date was 16 November 2012. The Applicant is covered by the Agreement.
[10] Clause 21.4(a) [Team Managers] of the Agreement provides that,
Team Manager (TM) is an ALS or MICA Paramedic who has demonstrated a high standard of clinical skill and experience as a practicing operational employee. The TM is appointed to manage operational staff and the financial and physical resources at a branch in accordance with AV policies, procedures and clinical guidelines. TMs will be required to complete training as required by the employer i.e. Certificate IV in Frontline Management or other equivalent.
....
(iv) "Senior Team Manager" in addition to the duties of a TM has greater responsibilities in the areas of staff welfare, maximising effectiveness of AV resources, and providing greater internal and external liaison. They have undertaken additional training as required and provided by the employer.
[11] Clause 9 [Implementation of Change] of the Agreement provides that,
9.1 Where the Employer is intending to restructure the workplace, introduce new technology or change existing work practices of Employees, the Employer will advise the affected Employees and their nominated representative, including the Union where applicable, of the intended changes as soon as practicable after the proposal has been made. The Employer will advise the affected Employees and their nominated representative of the likely effects on the Employees' working conditions and responsibilities. The Employer will advise of the rationale and intended benefits of any change.
9.2 The Employer will consult with affected Employees and their nominated representative, including the Union where applicable, in relation to the implementation of the change and give prompt consideration to matters raised by Employees or their nominated representative.
9.3 Where the Employer deems it to be appropriate, Employees will be provided with training to assist them to integrate successfully into the new structure or working arrangements.
9.4 In accordance with this clause, the Employee's nominated representative may submit alternative proposals, which will meet the specified rationale and benefits of the Employer proposal. Such alternative proposals must be submitted in a timely manner so as not to lead to an unreasonable delay in the introduction of any contemplated change. If such a proposal is made, the Employer will give due consideration to the nominated representative's proposal(s) and respond to the Union in a timely manner.
9.5 Any dispute concerning the Parties' obligations under this clause shall be dealt with in accordance with the procedure in clause 8 of this Agreement.
9.6 A dispute over this clause can be initiated by an Employee or their representative.
[12] Clause 35.5 [Arranging Hours of Work] of the Agreement provides that,
35.5 Where an individual employee has a grievance about whether a proposed change of starting or finishing time, or the introduction of a new roster, is unreasonable having regard to the employee's personal and family circumstances, that employee has access to the procedure in clause 8.
Background
[13] In 2006 the Respondent undertook an organisational initiative in the then Metropolitan Ambulance Service (MAS) to provide improvements “in frontline management, leadership, people management capabilities and improved performance to Team Managers” 4 called Operations Management Structure and Roles (OMSR).
[14] Amongst other changes OMSR provided for:
a) dedicated “function” (management) time to Team Leaders;
b) a six month training program to improve management skills;
c) consistent duties and working hours for Team Managers;
d) Team Managers providing welfare and support to paramedics in performing their role. 5
[15] On 20 January 2007 the OMSR pilot project commenced. The pilot was successful. In February 2008 approval was obtained to roll-out OMSR across MAS in a staged approach over three years. 6
[16] On or about 30 June 2008 the Respondent issued version three of a document entitlement “Team Manager - OMSR Expectations.” 7 (Team Manager Expectations Document). It is a comprehensive document. It sets out the activity and expectations of Team Managers in respect of:
a) Performance management - response performance;
b) Performance management - clinical performance;
c) Performance management - behaviour;
d) Response management;
e) People management - development and training;
f) People management - staff welfare;
g) Communication; and
h) Administration.
[17] There is nothing in the Team Manager Expectations Document that requires STMs to undertake operational work.
[18] On 1 July 2008, Victoria’s three existing ambulance services (MAS, Rural Ambulance Victoria and the Alexandra District Ambulance Service) were merged to form Ambulance Victoria. 8
[19] Consequently, the Respondent has seven regions, two Metro regions and five Rural regions. Each of the seven regions has between two and four districts within them. 9
[20] As the new organisation evaluated its priorities the roll-out of OMSR was stalled. However some work continued on OMSR throughout 2009 and 2010. By January 2011 OMSR had been rolled out in Metro West to groups 4, 5 and 6. In February 2011 a business case was submitted to implement OMSR in Metro Group 2 10 (i.e. Metro East).
[21] Noting that OMSR was developed for MAS only, the Respondent decided to review the OMSR model because the Respondent’s state-wide organisation now incorporated rural regions and MICA.
[22] In about July 2012 the Respondent published a Position Description for STMs 11 (STM Position Description). The primary objective of a STM is said to be, “... To develop encourage and support ambulance teams and individual team members in the task of providing timely and high quality care.” Key result areas are:
a) Service delivery/team management
b) Strategic leadership and performance management
c) Budget/financial management/reporting
d) Staff well-being
e) Professional development.
[23] The selection criteria (i.e. the criteria required to be demonstrated before being appointed a STM) includes relevant qualifications and experience including “Ambulance qualifications and experience which enables the incumbent to crew an ambulance vehicle.” 12
[24] There is nothing in the STM Position Description that requires STMs to undertake operational work.
[25] The result of the review of OMSR referred to above was Frontline. The underlying concepts of Frontline are similar to OMSR. 13 However, “in order to build capability in the organisation and support TMs to successfully operate within [Frontline] a learning development program has been developed.... [called] the Leading in Operations Fundamentals (LOF).”14
[26] Frontline,
● “... defines a consistent, state-wide model for operational frontline management, whilst recognising that the application of the role may differ across the State based on the size and scope of each team. 15
● recognises that “TMs often do not always have the time and support to effectively undertake their leadership and management responsibilities. Of particular concern is the amount of time available to manage welfare issues and work within their teams to improve performance. 16
● provides that “while the allocation of management time will be consistent with the provision for operational component of the role may vary. This would based on factors agreed by Regional Services Division and
Specialist Services Division which will take into account the following:
○ Workload
○ Staff numbers - a TM who manages less than eight roster lines will have less time allocated for management and supervision due to reduced staff numbers and workload
○ Understanding of district, group or geographical needs. 17
[27] The Frontline model is based primarily on the number and type of roster lines the Team Managers and STMs manage. The proposed operational frontline management model configuration is as follows: 18
Roster Lines | <8 | 8 | 12 | 16 | 20 |
Management hours | As required | 20 | 25 | 30 | 40 |
Supervision hours* and/or Operational hours | 0 | 0 | 10 | 10 | - |
38/40 | 20/22 | 7 | 2 | 2 | |
Total rostered Hours/week | 38/40 | 40/42 | 40/42 | 42 | 42 |
Classification per EA 2009 | Team Manager > 10 | Senior Team Manager | Senior Team Manager | Senior Team Manager | Senior Team Manager |
* Management hours are fixed based on the number of roster lines they manage. The remainder will be split between supervision and operational hours at the discretion of the Regional Manager.
(emphasis added)
[28] What is apparent from the configuration above is that, under Frontline, STMs may be rostered to undertake on-road operational duties. The Respondent proposes that management time be constant and that, in a 42 hour week, rostered operational duties are to be undertaken at the expense of supervision time. What is important in the configuration, however, is the reference to “and/or” between “supervision hours” and “operational hours”.
[29] On or about 2 April 2013 the Respondent published a document entitled “Service Improvement System” 19(SIS Document). The credentialing and Authority to Practice requirements for operational positions (which include STMs) is stated to be “attendance at a minimum of 10 ambulance incidents per year”.20
[30] By October 2013 Frontline had been rolled out into Barwon district (within the Barwon South West region) and into the Advanced Life Support teams (within Metro East). It is proposed that the further rollout will occur as follows:
a) Stage 1, Metro East, Metro West (where OMSR has already previously been rolled out) and Barwon District;
b) Stage 2, Urban Region, Rural cities and Air Ambulance;
c) Stage 3, Rural teams.
[31] On 27 September 2013, the Respondent posted a roster for the implementation of Frontline in Metro West. The roster had STMs rostered to reserve from 28 October 2013. During the proceedings on 22 October 2013, the Respondent gave an undertaking that employees who are party to this dispute would not be rostered to operational shifts until the matter was determined.
Applicant’s submissions and evidence
[32] The Applicant submits there are two matters which remain unresolved, namely the rostering of STMs on operational shifts and the roster change impact of personal and family circumstances.
[33] The Frontline model requires STMs to be rostered to do on road operational shifts. The Applicant submits that the rostering of operational hours reduces the time STMs have to complete management duties and to meet the expectations of the Respondent. The Applicant states that the Respondent has made no reduction in the management workload of STMs to compensate for the additional time that it is now expected STMs will work operational shifts.
[34] The Applicant submits that performance/rostering of on road operational shifts are not a requirement under the STMs’ position description. It says STMs are only required to undertake operational work to the extent necessary to maintain clinical competencies. The Applicant submits clinical competency requirements are presently being achieved other than through the rostering of operational shifts.
[35] The Applicant relies on the evidence of Susanna Dean, Senior Team Manager, Footscray and Central Branches. Without setting out in detail all of the evidence of Ms Dean, in brief terms, her evidence was to the following effect:
a) In July 2008 she was appointed a Team Manager. Her position was later designated as STM under the Agreement; 21
b) As a Team Manager, and then STM, she has,
“not been required to perform any rostered operational on road duties. [She says] I was required to maintain my clinical competency and this was achived by working on an ambulance vehicle as a third person or replacing a paramedic for part of a shift or undertaking overtime shifts.” 22
c) Under the Respondent’s policy for maintaining clinical competence she has “to attend 10 emergency incidents per year and under the OMSR program [she] was required to be logged on to attend on operational duties for 8 - 10 hours per month.” 23 Ms Dean pointed to the Team Managers Expectations Document and the SIS Document as evidence of the fact that rostered operational duties were inconsistent with the role of a STM.24
d) She presently works,
“an average of 42 hours per week over a 9 week roster. ... [is] not rostered to any operational shifts other than those [she accepts] on overtime. [She says] all of my time is devoted to the management of two geographically distinct 24 hour ambulance teams and up to 42 staff as well as being available during some shifts to respond to the welfare needs of paramedics and to critical incidents. The current arrangement of 42 hours per week of management time works well and enables me to manage my work load efficiently at most times.” 25
e) Under Frontline she “will be rostered to an average of 12 hours per fortnight to operational work that will take [her] away from [her] branches and is a block of time during which I will be unable to attend to any of my management duties.” 26
f) She considers “that [her] job [has been] substantially changed without [her] agreement.” 27
g) She objects to “[her] roster being changed to include on road operational shifts that are not currently part of [her] roster.” 28
h) “the proposed changes to roster [will] impact on [her] personal and family life.” 29
i) On 14 October 2013, “... together with other STMs, [they] put forward a proposal [to the Respondent] about the issue of operational hours and management time. This was a reasonable compromise that would allow [her] to still manage most aspect of [her] teams effectively, but [the proposal] was rejected by [the Respondent].” 30 The STMs’ proposal would have had the effect of reducing operational hours from 12 hours per fortnight to 12 hours in a four week period.
j) If she is,
“required to be rostered to an average of 12 hours operational work per fortnight [she would] find it very difficult to meet all the requirements and expectations of the position which are unchanged from when [she has] had 42 hours per week of management time. This view is shared by [her] colleagues who have lodged grievances about these issues.” 31
[36] In its Closing Submissions the Respondent has asserted that it disagrees with Ms Dean’s evidence about her overtime shifts and management time. 32 None of this was put to Ms Dean in cross-examination. In circumstances where the Respondent, having been provided with an opportunity to have the matter properly programmed (so that witness evidence could be filed), but declined that opportunity, it is improper for the Respondent to now seek to lead evidence through its closing submissions. The Commission gives it no weight.
[37] In cross examination, a document dated 30 June 2009 and entitled “OMSR Project Explained” 33 (OMSR Explained Document) was put to Ms Dean. Paragraph 3.5 of the document reads as follows:
“Each TM is required to work on their vehicles as a Paramedic between 8-10 hours per month. The Team Manager must be logged on as either the driver or the attendant during these shifts to enable them to have direct patient contact to maintain clinical skills. Team members are responsible for ensuring this requirement is met on a monthly basis.” 34
[38] Ms Dean refuted that she was required to strictly comply with paragraph 3.5. Ms Dean stated the OMSR Explained Document was not provided to STMs already performing the function at the time the document was created in 2009. She stated the document was never discussed or followed up with her until the issue, the subject of these proceedings, was raised. 35 Ms Dean confirmed that none of the persons to whom she reports have indicated that she was in breach of the OMSR Explained Document, nor have any disciplinary proceedings been taken against her for this reason.36
[39] Mr Cruse attempted to have Ms Dean concede that she actually crews an ambulance as a part of a rostered shift. 37 However, Ms Dean’s evidence about paragraph 3.5 of the OMSR Explained Document was instructive. It is very clear that paragraph 3.5 of the OMSR Explained Document is not a requirement of STMs in so far as it is a part of any rostered shift work.38
[40] Ms Dean’s evidence was that it is her position description to which she is accountable. Ms Dean stated she enquired with the Respondent whether the position description would change in light of the proposed changes to Frontline and that she was advised that it would not. 39
[41] The Applicant noted that clause 3.6 of the OMSR Explained Document makes it clear that the Team Manager is not responsible for responding to events as a paramedic. It states the focus of the TM role is on management. It is submitted by the Applicant that this is a key element of the description of STMs which the Respondent proposed at the time of negotiating the Agreement. The Applicant submits it was clear that STMs are an off-road management position and that the definition of STMs at clause 21.4(a) of the Agreement reflects this.
[42] Under cross-examination Ms Dean gave further evidence that:
a) in her role as a STM she has crewed an ambulance vehicle, but only during overtime; 40
b) that is to say, there are no on-road shifts as a part of her roster; 41 and
c) her concerns about flexibility have not been resolved. 42
[43] The Applicant submits that by rostering STMs on operational shifts the Respondent is fundamentally changing the concept of the position as a management role. The Applicant submits this is a significant change and therefore clause 9 of the Agreement relating to implementation of change should have been complied with. The Applicant submits the Respondent did not discuss the changes and impact with employees.
[44] Ms Dean also gave evidence of the negative impact the rostered operational shifts will have on her childcare arrangements. She explained the flexibility she currently has to arrange her work hours, with the ability to swap shifts and early morning coverage with other STMs. She stated her Group Manager could not give her an assurance that she could change shift times and swap operational shifts. 43 The Respondent chose not to call Ms Dean’s Group Manager, Graeme Parker, to refute this evidence. The Commission is entitled to draw the usual adverse inference from the Respondent’s failure to adduce evidence that would have contradicted Ms Dean’s evidence in circumstances where it would have been reasonable to expect that the Respondent could have called Mr Parker.44
[45] When asked what orders the Applicant wanted the Commission to make Ms Forbath submitted that the Commission should order one of the following:
a) That STMs not be rostered to undertake any operational shifts at all. 45 If this was ordered then STMs would maintain their clinical competency as they have done prior to the implementation of Frontline.
b) That the number of operational hours be reduced and that STMs be enable to respond as single responders to priority zero. 46
c) That designated management time be reduced to accommodate operational shifts (if the Commission finds that the Respondent is entitled to roster STMs for operational shifts). 47
[46] The full ambit of the orders sought by the Applicant were set out in their Closing Submissions on pages 6 and 7.
Respondent’s submissions and evidence
[47] The Respondent’s submissions addressed in turn each of the clauses of the Agreement under which jurisdiction was established.
[48] In respect of clause 9, the Respondent argues that proper consultation has occurred. It states that if it was found by the Commission to have not consulted in accordance with the clause, then the powers of the Commission to arbitrate such a dispute would be confined to remedies surrounding the requirement to consult.
[49] In respect of clause 35 - Arranging Hours of Work, the Respondent argues the only requirements of it are limited to consultation and notice obligations, so as with clause 9; the dispute must be similarly confined. In respect of the issues raised by Ms Dean relating to family and personal circumstances, the Respondent stated this will be addressed through the grievance procedure. It is the view of the Respondent that this point is not the subject matter in this dispute.
[50] In respect of clause 21.4(a), the Respondent places emphasis on the wording ‘in accordance with AV policies, procedures and clinical guidelines.’ The Respondent argues that the Commission does not have power to make orders which relate to the content of the policies, procedures and clinical guidelines, or how they are to be applied. This includes the position description of STMs. The Respondent states that the reference to ‘policies, procedures and clinical guidelines’ without specifics of their content leads to the conclusion that the content of these documents and their application is a matter which remains the prerogative of the Respondent. 48
[51] In respect of Ms Dean’s evidence, the Respondent draws on the fact that Ms Dean stated she currently works operational shifts and that she maintains her clinical competencies by working in an operational capacity. 49 In its written submissions the Respondent cited its figures for the amount of overtime worked by Ms Dean. It is noted that this evidence was not put to Ms Dean during the proceeding. In any case, maintaining her clinical competency through overtime (which was Ms Dean’s evidence in any case) is not the same as being rostered for operational work.
[52] The Respondent takes issue with Ms Dean’s evidence that her current breakdown of hours is a full 42 hours of management time. The Respondent submits that an analysis of Ms Dean’s current roster indicates this to be incorrect. It is the Respondent’s view that Ms Dean currently works 30 hours of management time and 12 hours supervision/function time. In cross examination Ms Dean stated her time is broken down on the roster into management time and supervision/function/in-field time. She stated on an in-field shift she is the “go - to person” for issues such as hospital delays however other than that there was no practical difference in the way she worked on those shifts. 50
[53] The Respondent solely relies on the evidence of Ms Cathryn Anderson, Regional Manager, Metropolitan East Region. Without setting out in detail all of the evidence of Ms Dean, in brief terms, she gave evidence about the development of OMSR and Frontline. Otherwise her evidence was to the following effect:
a) there are approximately 170 full time equivalent Team Managers and STMs in Victoria; 51
b) in designing Frontline there was a desire to “include all the positive elements of OMSR and ensure this could be reproduced across the entire State.” 52
c) Before Frontline,
“in terms of dedicated management time, there was a wide disparity in what time was allocated to Team Managers. Conversely there was a disparity in operational shifts being performed, and [the Respondent] must ensure all its Team Managers perform sufficient operational shifts to maintain clinical competency.” 53
“... Team Managers across Victoria that were not working under the OMSR framework were predominantly working on the road. Function time was provided on an adhoc basis in Rural Victoria. Also, the formula to calculate function hours within the Resource Model is consistent between the Metro and Rural regions. In contrast, some Team Managers under OMSR were doing irregular operational shifts, this was based on team size.” 54
d) A further requirement of Frontline is that it be fiscally responsible. 55 However, the Respondent chose not to lead any evidence about the financial modelling of Frontline.
e) Other Team Managers who are already doing Frontline have not experienced workload issues. 56 Again, the Respondent chose to not lead any evidence from other Team Managers.
f) There were “three Team Managers through OMSR that weren’t fully configured, so they didn’t have an equivalent of 48 hours of resourcing, so they would do a shift on the road. Over time this developed so it became a set shift that they did as those three locations.” 57 These Team Managers were not called to give evidence.
g) The changes in management and supervision time can be summarised as follows (using Groups 4 and 5 over a 34 week period as an example): 58
Current management time | Frontline management time | Change in management time | Current supervision shifts | Frontline supervision shifts | Change in supervisions shifts | Current total days | Frontline total days | Change in number of days | |
Group 4 & 5 | 86 | 95 | +9 (+10%) | 45 | 21 | -24 (-53%) | 131 | 116 | 15 |
Therefore, under Frontline, management time increases, supervision time deceases and the remaining 15 days is taken up by rostered operation time (15 shifts over 30 weeks, equating to one shift a fortnight). 59
[54] Under cross-examination, and in response to questions from the Commission, Ms Anderson conceded that:
a) The Respondent has had “one team manager put up his hand and say ‘I don’t want to do the supervisory component, I just wish to do on-road and the team manager management time,’ so that means those hours that he may have an allocated for supervision has now gone to another team manager. It's an estimate that out of their remaining 12 hours it may broken up to parts of division and/or part operational...” 60
b) A deal could be done between managers in a branch such that they have a roster where they do no operational hours outside what they need to do for the clinical maintenance. 61
[55] The flexibility around the “and/or” which applies to “supervision hours” and/or “operational hours” was best demonstrated by Ms Anderson when she was asked about Ms Dean’s circumstances,
THE COMMISSIONER: But say in relation to Ms Dean's circumstances, if she says, "I can't do rostered operational hours because of the impact on my family responsibilities," if there was someone, a team manager, who was willing to pick up that and she picked up their supervision - - -?
MS ANDERSON: There is no opposition for that. 62
THE COMMISSIONER: [Ambulance Victoria] would be supportive of that?
MS ANDERSON: Absolutely. As we do for paramedics on the road who have family circumstances, we have arrangements and processes in place to manage that on a daily basis and certainly we can provide shift swap at any point in time should that need arise. 63
....
MS ANDERSON: ... certainly [Ambulance Victoria’s] position and we have policies in place for anyone who has personal family circumstances. If a paramedic is working on the day and they have childcare responsibilities, they organise with the duty manager and we will release that staff as soon as practical. We have processes in place, so certainly through an email it is very difficult to work out an absolute position, but there is no doubt there is flexibility in there that as long as the hours are covered we are not opposed to whether it's Susie or another team manager that does it as long as those hours equate to at the end. 64
MS ANDERSON: ... if any of the branch configurations within OMSR was to change, and we had three who were configured differently where part of their weekly roster or eight week roster cycle incorporated rostered operational shifts. It is the expectation of AV that all team managers undertake operational shifts and they'll be supported doing that. Whether it's rostered or otherwise, so what we've said in Metro East and there's been discussions in the west around building the roster, we've gone back and supported team managers and asked them to develop a roster that would work for them and meet the requirements. And again, as I think I mentioned earlier, it was around interim roster guidelines around the key criteria of the project that there is a certain number of management hours, response operational hours and supervisory hours, and as long as those key areas were met then we would support whatever roster that was put forward to us and that was what was undertaken in Metro East and they've developed the roster. We have supported and endorsed the roster and they're currently working their roster where they have created their flexibility and the way in which they're working.
THE COMMISSIONER: But it hasn't been an expectation of Ms Dean?
MS ANDERSON: Because of the branch configuration, it wasn't rostered as part of her roster, absolutely not, that's right, because she was, under OMSR, being fully configured. The way it worked at that point in time, and Susie is not the only one, there are a number out of the - I don't know how many team managers there are in groups 4, 5 and 6, I think it was only three of whatever number they were that had it rostered on a regular basis based on their branch configuration.
THE COMMISSIONER: How many team managers in 4, 5 and 6?
MS ANDERSON: At one point, and that's probably increased, there were seven, nine and 10, so 26. That's probably increased now based on new resources, so I think Tony has just said now there's 34 team managers and of that I think it was probably only three of those that would have been rostered regularly based on their team configuration that they weren't fully configured. So if Susie was managing a team that wasn't fully configured, the expectation is that she would have had rostered shifts, but she was at a branch that was fully configured.
THE COMMISSIONER: And it's the same with 31 other team managers?
MS ANDERSON: Correct, yes.
THE COMMISSIONER: So it's not right to say that it's an expectation because you would never enforce it in relation to those 31 out of 34?
MS ANDERSON: No, it's an expectation based on the team configuration, so it wasn't based that everyone would be rostered, it was based on the team configuration. And, look, certainly…
THE COMMISSIONER: So why can't that continue?
MS ANDERSON: Certainly the feedback from one of the - from a number of the evaluations was one of the key things was around not being rostered to operational shifts or the deskilling that team managers felt, so part of them were developing OSMR was looking at that. Having said that, through OMSR we looked at a number of ways in which that could be managed, so whether it was self-managed or whether we would put it into a roster, and predominantly to this point in time that has been self-managed.
THE COMMISSIONER: Why can't that continue?
MS ANDERSON: Bluntly, I suppose, in part, is from a financial perspective, from an ability to implement this statewide and to ensure all team managers have an equitable amount of management time to undertake the activities they need to. This is the model that fits it from a financial physical point of view and also from a deliverable and what we're wanting, and asking, and expecting team managers to do within their role.
THE COMMISSIONER: Where's the evidence about the financial necessity? Is that in your witness statement?
MS ANDERSON: No, it's not. 66
[57] In reference to the Applicant’s concern about workload, the Respondent states that this will be monitored. It recognises the health and welfare obligations it has to its employees and notes the processes and avenues open to employees who feel their workload is too onerous.
[58] The Respondent contends that the way in which it rosters STMs is a management prerogative. It states that Frontline has been successfully implemented in Metro East Groups 1, 2 and 3 and Barwon District. Currently 36 Team Managers are working within the Frontline model. The Respondent states that the orders sought by the Applicant constrains the Respondent’s ability to manage its resources in the manner it deems appropriate. It says this in turn hampers the ability to properly provide the services to the public.
The Commission’s task
[59] At the end of the day this matter is a construction of an agreement matter. It requires the Commission to determine whether the rostering of STMs for operational hours is consistent with the position of STMs as contained in the Agreement.
[60] Neither of the parties took the Commission to the authorities relevant to the construction of Agreements. However, they are well established and what is required is a consideration of the ordinary meaning of the words having regard to their context and purpose. Most recently, a Full Bench of the Commission 67 set out the relevant authorities:
[28] …. As Gleeson CJ and McHugh J observed in Amcor Limited v CFMEU:
“The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...”
[29] Context may appear from the text of the agreement taken as a whole, its arrangement and the place in it of the provision under construction. The legislative context against which the agreement was made and in which it was to operate is also a relevant contextual consideration.
[30] The task is to identify the common intention of the parties as expressed in the terms of their agreement, the subjective intentions or expectations of the parties are irrelevant. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd the High Court described the task, in the context of commercial contracts, as follows:
“It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”
[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:
“But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”
[32] The Acts Interpretation Act 1901 (Cth) may also be applicable to the construction of agreements approved under Division 4 of Part 2-4 of the Act, as if the agreement were an act. This may be so because of the operation of s.46 of the Acts Interpretation Act 1901 (Cth), which states:
“s.46 Construction of instruments
(1) If a provision confers on an authority the power to make an instrument that is neither a legislative instrument for the purpose of the Legislative Instruments Act 2003 nor a rule of court, then
(a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and
(b) expressions used in any instrument so made have the same meaning as in the enabling legislation as in force from time to time; and
(c) any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the authority.
(2) If any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the authority.”
[33] The application of the Acts Interpretation Act 1901 (Cth) to awards made by the Commission was the subject of some consideration by French J (as he then was) in City of Wanneroo v Australian Municipal Administrative, Clerical and Services Union (Wanneroo), in which his Honour said:
“The interpretation of legislative instruments is dealt with in the Legislative Instruments Act 2003 (Cth). Awards and agreements made under the Act are declared, by s 7(1) of the Legislative Instruments Act, not to be legislative instruments — see Item 18 in the table set out in s 7(1). This leaves such awards and agreements within s 46 of the Acts Interpretation Act 1901 (Cth) ...
An award is an instrument made by an authority, in this case the Australian Industrial Relations Commission, and so attracts the application of the Acts Interpretation Act for the purposes of its interpretation.”
[34] Section 7(1) of the Legislative Instruments Act 2003 (Cth) declares that ‘fair work instruments (within the meaning of the Fair Work Act 2009)’ are not ‘legislative instruments.’ The definition of a ‘fair work instrument’ in s.12 of the Act includes an enterprise agreement. An ‘enterprise agreement’ is defined to include, relevantly, a ‘single enterprise agreement’ which is in turn defined to mean an enterprise agreement made as referred to in s.172(2). The 2011 Agreement is such an agreement. It follows that for the purpose of s.46(1) of the Acts Interpretation Act 1901 (Cth) enterprise agreements may be instruments which are neither legislative instruments nor a rule of court.
[35] Section 46(1) of the Acts Interpretation Act 1901 (Cth) may apply because an enterprise agreement is an instrument which is neither a legislative instrument nor a rule of court and which is made by an authority (the Commission) pursuant to a power conferred on it by the Act. While s.182 speaks of an enterprise agreement being ‘made’ when a majority of the employees that will be covered by it cast a valid vote to approve the agreement, the operation and enforcement of enterprise agreements is contingent on their approval by the Commission. Enterprise agreements come into operation seven days after their date of approval by the Commission, or from any later date specified in the agreement itself (s.54(1)). Section 50 provides that a person must not contravene a term of an enterprise agreement that applies to the person. This is a civil remedy provision and means that enterprise agreements are enforceable in the same way as awards and other instruments made under the Act. An agreement only applies to a person while it is in operation (s.52) and as we have noted an agreement only operates once it has been approved by the Commission.
[36] A consequence of the application of the Acts Interpretation Act 1901 (Cth) to enterprise agreements would be that extrinsic materials may be used as an aid to construction, as provided for in s.15AB of that act.
(footnotes omitted)
[61] What follows from this statement of the law is that, although the Respondent is correct in its submission that its policies, procedures and clinical guidelines are not incorporated into the Agreement, it does not mean they are irrelevant. The Respondent’s policies, procedures and clinical guidelines (as at the date when the Agreement was agreed) can properly be considered extrinsic materials and be used to aid in the construction of the Agreement.
[62] In order to determine the meaning of clause 21.4(a) of the Agreement the mutual actual intention of the makers of the Agreement is also relevant in construing the Agreement. The best evidence of that could have been provided by persons where were involved in the negotiations of the Agreement. However, neither party led any such evidence.
[63] It is further correct, as the Respondent submits, that the Commission does not have jurisdiction “to make orders which relate to the content of policies, procedures and clinical guidelines or how they are to be applied.” 68 However, the Respondent was mistaken if it ever conceived that this is what the Applicant seeks from the Commission by way of the orders it has asked for. The Applicant properly confined its case to clause 21.4(a) of the Agreement.
[64] As stated above the Agreement was approved on 9 November 2009. Accordingly, documents that were in existence at this date are relevant to the construction of the Agreement. In this matter the only documents tendered before the Commission were the:
a) 30 June 2008 Team Manager Expectations Document; and
b) 30 June 2009 OMSR Explained Document.
Consideration
[65] The starting point for determining the role of Team Managers and STMs is the ordinary meaning of the words in clause 21.4(a) of the Agreement. It provides that Team Managers are “appointed to manage operational staff and the financial and physical resources at a branch...”. There is no mention in the words of clause 21.4(a) of the need to be rostered to undertake operational duties. These are managerial roles.
[66] As observed above, there is nothing in the Team Manager Expectations Document that requires STMs to undertake operational work.
[67] Although neither clause 21.4(a) of the Agreement nor the Team Manager Expectations Document refer to operational duties, it is common ground between the parties that STMs must maintain their clinical competencies. This is addressed in the 30 June 2009 OMSR Explained Document. It provides that,
“Each TM is required to work on their vehicles as a Paramedic between 8-10 hours per month. The Team Manager must be logged on as either the driver or the attendant during these shifts to enable them to have direct patient contact to maintain clinical skills. Team members are responsible for ensuring this requirement is met on a monthly basis.”
[68] However, there is nothing in the words of the OMSR Explained Document to suggest that, in order to maintain clinical skills, the 8-10 hours per month are to be rostered. The evidence of Ms Dean is that she has always maintained her clinical competencies by undertaking operational work either during overtime or at other times as she could flexibly manage within her STMs duties. That is to say, her evidence was that she has never had rostered operational time. This evidence is uncontested. Indeed Ms Anderson conceded that “there is a group of team managers under OMSR who have not done an operation shift that has been rostered for a number of years.” 69
[69] Clause 3.6 of the 30 June 2009 OMSR Explained Document is also relevant. It provides states as follows,
What you’re not responsible for
● Responding to events as a Paramedic. The focus of your role is management.
[70] There is a substantial difference between an un-rostered “8-10 hours per month” and what the Respondent now proposes which is, on average, one 12 hour rostered operational shift per fortnight.
[71] The evidence of Ms Anderson about the development of OMSR to Frontline further clearly demonstrates that it was not until the Frontline iteration of the role for Team Managers (and STMs) that the concept of rostered operational shifts was envisaged. It was not a part of OMSR which was in existence at the time the Agreement was approved.
[72] Taking into account the evidence before the Commission, namely all of the documentary evidence that predated the approval of the Agreement, the evidence of Ms Dean and the evidence of Ms Anderson, it follows that rostered operational shifts could not have been within the contemplation of parties when the definition of Team Managers and STMs were inserted into the Agreement. It further follows that rostered operational shifts are not a part of the role of Team Managers and STMs as defined in the Agreement.
[73] Consequently, what the Respondent proposes in Frontline is the introduction of a change to existing work practices. Therefore, clause 9 of the Agreement is enlivened. Clause 9 provides for a mechanism by which the parties can agree upon how Frontline can be implemented.
[74] It is also arguable that the Respondent’s requirement that STMs undertake rostered operational work is a claim by the Respondent to impose something that is to have a binding and enforceable effect. To this extent it is further arguable that the Respondent is making a,
“...further [claim] in relation to terms and conditions of employment or the employment of employees covered by [the] Agreement...” 70
[75] However, noting that the Agreement has passed its nominal expiry date, if that is the case, it is of little event. In any case the issue of rostered operational work for STMs is a matter the parties should consider expressly addressing in the course of enterprise bargaining to replace the Agreement.
[76] Nothing in this decision should be taken as meaning that Frontline is not appropriate or necessary to be implemented. The evidence of Ms Anderson is that it is a program that has been developed over a period of time, evaluated and adjusted. It has been implemented successfully in Metro East, Groups 1, 2 and 3 and in the Barwon District. Nor does this decision mean that the parties cannot agree upon the introduction of rostered operational duties for the affected STMs in Metro West. However, the Respondent cannot unilaterally impose it.
[77] Therefore, the parties are encouraged to further discuss and agree upon how Frontline can be fully implemented. There has been nothing in the conduct of the Applicant (or its members) in this matter to suggest that it (or they) are opposed for all times to rostered operational work for STMs. In fact the evidence of Ms Dean is that the affected STMs have been prepared to suggest reasonable alternatives to accommodate the Respondent’s operational ambitions. 71
[78] To the extent that (as would seem apparent from Ms Anderson’s evidence) part of the rationale for Frontline is financial, the Respondent has not complied with clause 9.1 of the Agreement in advising the STMs and their representatives of the same. As is noted above, despite being provided with the opportunity to have the matter and evidence further programmed, the Respondent chose not to do so and led no evidence about the financial need for Frontline.
[79] At least in respect of Ms Dean, clause 35.5 of the Agreement is also enlivened. However, having regard to the emphatic evidence of Ms Anderson about the preparedness of the Respondent to accommodate personal and family circumstances, Ms Dean is entitled to expect that her personal and family circumstances will result in her not having to undertake rostered operational duties.
[80] In terms of the other STMs affected by Frontline, there was no evidence led before the Commission about their personal and family circumstances. In those circumstances, and having regard to the findings here, the Respondent should give further consideration to those individual cases in accordance with clause 35.5 of the Agreement. It is to be noted that the dispute settlement procedure in the Agreement applies to disputes not resolved through that process.
Disposition of the matter
[81] Clause 8.8(a) of the Agreement empowers the Commission to “determine the dispute or grievance by arbitration”.
[82] For the reasons set out in this decision the Commission determines that, other than what is necessary for Senior Team Managers to maintain their clinical competency, operational work (in particular rostered operational work) is inconsistent with the role of Senior Team Managers as defined in clause 21.4(a) of the Ambulance Victoria Enterprise Agreement 2009.
[83] An order 72 disposing of this matter will be issued separately.
COMMISSIONER
Appearances:
Ms B Forbath for United Voice.
Mr W Cruse for Ambulance Victoria.
Hearing details:
Melbourne.
22 October.
2013.
Final written submissions:
Filed by both sides on 28 October 2013.
1 Transcript - Jurisdiction decision issued ex tempore at PN138 - PN154
2 Ibid PN 156.
3 Ibid PN 159.
4 Exhibit “AV3”, witness statement of Cathryn Anderson, para [6].
5 Ibid, para [8].
6 Ibid paras [9] - [10].
7 Exhibit “UV1”, witness statement of Susanna Dean, attachment “SD2”.
8 Exhibit “AV3”, para [11].
9 Ibid, paras [30] - [31].
10 Ibid, paras [11] - [13].
11 Exhibit “UV2”.
12 Ibid, page 4 of 5.
13 Exhibit “AV3”, paras [14] - [17].
14 Exhibit “AV4”, page 1
15 Ibid.
16 Ibid, page 2.
17 Ibid, page 3.
18 Exhibit “AV3”, para 24 and Exhibit “AV4” page 4.
19 Exhibit “UV1”, attachment “SD1”.
20 Ibid, page 3.
21 Ibid, paras [4] - [5].
22 Ibid, para [9].
23 Ibid, para [11].
24 Ibid.
25 Ibid, para [13].
26 Ibid, para [14].
27 Ibid, para [15(c)].
28 Ibid, para [15(h)].
29 Ibid, para [15(i)]. Ms Dean further explained these difficulties in para [19] of her witness statement.
30 Ibid, para [22].
31 Ibid, para [24].
32 Respondent’s Closing Submissions, dated 28 October 2013, paras [49] - [51].
33 Exhibit “AV2”.
34 Ibid, para 3.5, page 7 of 24.
35 Transcript PN 239
36 Ibid PN 240 - PN 241
37 Ibid PN 224 - 239.
38 Ibid.
39 Ibid PN 189, PN 295
40 Ibid PN 193.
41 Ibid PN 215.
42 Ibid PN 205
43 Ibid PN 205
44 Jones v Dunkel (1959) 101 CLR 298.
45 Transcript PN 104.
46 Ibid PN 105. This submission was not fully explored or explained.
47 Ibid PN 107.
48 Respondent closing submissions filed 28 October 2013 at [42].
49 Transcript PN 194 and PN 196
50 Ibid at PN216
51 Exhibit “AV3”, para [19].
52 Ibid, para [20].
53 Ibid, para [21].
54 Ibid, para [22].
55 Ibid, para [23].
56 Ibid, para [28(d)].
57 Transcript PN 339.
58 Exhibit “AV3”, para [24]. See also the explanation at transcript PN 361 - 372.
59 Transcript PN 370.
60 Ibid PN 352.
61 Ibid PN 355.
62 Ibid PN 357.
63 Ibid PN 358.
64 Ibid PN 360.
65 Ibid PN 383.
66 Ibid PN 383 - 390.
67 DP World Brisbane Pty Ltd v The Maritime Union of Australia[2013] FWCFB 8557.
68 Respondent’s Closing Submissions, dated 28 October 2013, para 40.
69 Transcript PN 383.
70 Clause 6.2(a) of the Agreement.
71 Exhibit “UV1”, attachment “SD3”.
72 PR546304
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