Vicky Robinson v National Patient Transport Pty Ltd
[2025] FWC 654
•6 MARCH 2025
| [2025] FWC 654 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Vicky Robinson
v
National Patient Transport Pty Ltd
(C2024/5771)
| DEPUTY PRESIDENT BELL | MELBOURNE, 6 MARCH 2025 |
Alleged dispute about matters arising under an enterprise agreement – timing of automatic classification progression.
Ms Vicky Robinson, and the respondent employer, National Patient Transport Ltd (NPT) are in a dispute regarding the classification progression clauses of the National Patient Transport Enterprise Agreement 2023 (2023 Agreement)[1].
Ms Robinson commenced employment with NPT on 8 September 2021, classified as a ‘Patient Transport Officer’. On 12 June 2023, Ms Robinson was appointed to a different role, namely ‘Ambulance Attendant / Officer - Year 1’. The next level of progression is ‘Ambulance Attendant / Officer - Year 2’, which has higher pay.
The circumstances of the dispute arise from the parties’ different interpretation of when Ms Robinson ought to have progressed to an ‘Ambulance Attendant / Officer – Year 2’. Ms Robinson contends that the date of progression should be 8 September, which is the yearly anniversary date when she started employment with NPT as a Patient Transport Officer. NPT contends that the proper date for progression should be 12 June, based upon the yearly anniversary date when she started as an Ambulance Attendant / Officer.
For the reasons that follow, NPT’s construction is preferred.
Pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) and the dispute settlement terms of the 2023 Agreement, the Commission is empowered to deal with the dispute by arbitration.
Throughout the proceeding, Ms Robinson was represented by Mr Coggin, Industrial Officer for the Victorian Ambulance Union Incorporated (VAU), and NPT by Mr Arness, a corporate counsel for a parent company of NPT. In accordance with directions issued by me, the parties filed witness statements. The applicant filed two statements on behalf of herself. She was not required for cross-examination. NPT filed a statement by Mr Russell Truman, a former ‘General Manager - Operations and People & Culture’ for NPT. Mr Russell was briefly cross-examined.
Factual background
There was no real dispute between the parties about any material factual issue in the matter.
NPT provides non-emergency patient transport services in Victoria. Performing such work involves transporting patients between hospitals and also assisting Ambulance Victoria by attending to lower-acuity patients who have contacted emergency services.
In about June 2021, Ms Robinson commenced a Diploma of Paramedical Science with NPT Heart. NPT Heart is NPT’s training organisation, and the diploma is the relevant qualification that would allow her to work as an Ambulance Transport Attendant or ‘ATA’. While Ms Robinson’s evidence refers to work as an ‘ATA’, the equivalent classification title in NPT’s enterprise agreements was described as ‘Ambulance Attendant / Officer’. For the present dispute, the terms are interchangeable but to avoid confusion, I will use the classification descriptions given in the relevant enterprise agreements.
On 31 August 2021, Ms Robinson was offered employment to work at NPT as a casual Patient Transport Officer or ‘PTO’. She commenced her first shift on 8 September 2021.
When Ms Robinson started her employment with NPT as a casual, the National Patient Transport Ptd Ltd Victorian Employees Enterprise Agreement 2019 (2019 Agreement) applied to her employment.
On 12 December 2022, Ms Robinson started working as a permanent part-time PTO with NPT. Her part-time arrangement involved working an average of 60 hours a fortnight.
I infer that by around June 2023, Ms Robinson had completed her Diploma, which included completing the required clinical hours and a ‘stage 8’ (which Ms Robinson states is the final sign-off to be able to perform the Ambulance Attendance / Officer role).
On 12 June 2023, Ms Robinson started part-time employment as an Ambulance Attendance / Officer with NPT. Upon commencement in this role, Ms Robinson was paid as an ‘Ambulance Attendant / Officer – Year 1’. At the time of commencement in that role, the 2019 Agreement continued to apply to Ms Robinson’s employment.
On 24 July 2023, the 2023 Agreement was approved by the Commission and it commenced operation on 31 July 2023.
Shortly after 12 June 2024, NPT processed Ms Robinson’s progression to ‘Ambulance Attendant / Officer – Year 2’ (now under the 2023 Agreement). Ms Robinson initially queried the timing of that progression, as she considered the progression ought to have commenced on 12 June 2024, not at the end of the first pay cycle after that date. That query started a chain of events that led to Ms Robinson, with assistance of the VAU, forming the view that Ms Robinson ought to have progressed to ‘Ambulance Attendant / Officer – Year 2’ from 8 September 2023 – not 12 June 2024 - being the anniversary date of Ms Robinson’s appointment as a PTO. It was disagreement about that position which led to the current dispute.
Issues for determination
The parties have proposed the following questions for the determination of the dispute:
a) Where an Employee changes from one Classification to another, should they progress to the next yearly increment in the new Classification on the anniversary of the commencement date of their employment relationship with the Respondent, or after one (1) year of service in the first yearly increment of the new Classification?
b) On what date should the Applicant have progressed to Ambulance Attendant/Officer – Year 2?
c) Subject to the determination(s) of Question 1 and Question 2, what amount (if any) is owed to the Applicant with respect to her progression to Ambulance Attendant/Officer – Year 2?
The industrial instruments
2023 Agreement
Clause 4 of the 2023 Agreement says it “contains all the terms and conditions of employment for Employees covered by the agreement and shall apply to all Employees employed in Victoria in the classifications listed in Appendix 2 employed by National Patient Transport Pty Ltd”.
In clause 8, “Employee” is defined to mean “an Employee employed by National Patient Transport Pty Ltd as classified in Appendix 2 of this Agreement.” There are five headings of classifications listed in Appendix 2, being:
· Ambulance Attendant / Ambulance Officer
· Client Services Officer (Communications Centre)
· Clinical Instructor
· Ambulance Attendant Supervisor
· Patient Transport Officer (PTO).
The descriptions under each of the classification headings in Appendix 2 of the 2023 Agreement give an indication of the different types of work performed and (where relevant) the qualifications required for a position.
For example:
· An “Ambulance Attendant” is “qualified” to provide a “medium acuity level of care and treatment to patients as defined within the Clinical Practice Protocols.” While that description indicates an Ambulance Attendant is “qualified” to perform that level of treatment to patients, I infer that an important part of the Ambulance Attendant’s role is that they do provide such treatment.
· There is no separate description at all for an Ambulance Officer (as distinct from ‘Attendant’) but I again infer they perform similar duties to an Ambulance Attendant or that their duties are described elsewhere.
· Both Ambulance Attendants and Ambulance Officers (to the extent there is any practical difference) are each required to hold a Diploma in Paramedical Science (Ambulance) or recognised equivalent. In addition, they must have completed a minimum of 400 hours of “stretcher experience” under direct supervision of a clinical instructor and must have completed a “Clinical Skills Assessment” (which is not described in the enterprise agreement).
The descriptions for Clinical Instructors and Ambulance Attendant Supervisors indicate that employees in those positions hold higher roles, reflecting additional responsibilities (such as providing clinical training or supervisory support for others).
The description for a PTO indicates:
· a PTO provides “basic care” and “transport” of “non-emergency patients”.
· A PTO is required to hold a Certificate III in Non-Emergency Patient Transport or equivalent.
The description for a Client Services Officer indicates different duties again, that do not appear to involve direct care or transport of patients. Such an employee is trained to perform (among other duties) “workload planning, dispatch and/or call taking duties within a Communication Centre”. There is no specific qualification for Client Services Officers, although some training is evidently required to enable them to perform the duties described.
The full classification descriptions from Appendix 2 of the 2023 Agreement are set out in the Annexure to this decision.
Appendix 1 of the 2023 Agreement is titled “Wages”. Appendix 1 contains a table of pay rates. The table has three classifications listed: “Ambulance Attendant / Officer”; “Client Service Officer” and “Patient Transport Officer”. For each of these three classifications, the table further breaks down wages based on “year”. These are set out in the Annexure but, for example:
· An ‘Ambulance Attendant / Officer – Year 1’ has an hourly rate (at the approval of the agreement) of $32.67 per hour and the equivalent ‘Year 7’ rate is $35.00. Year 7 is the highest rate for an Ambulance Attendant / Officer.
· There is an identical structure for a ‘Client Service Officer’ and a ‘Patient Transport Officer’, albeit the highest rate is Year 5 for both those classifications (and the hourly rates are different and, in each case, lower than an Ambulance Attendant / Officer).
There is no specific listing in the wage rate table in Appendix 1 for Clinical Instructors or Ambulance Attendant Supervisors, even though they are listed as discrete classifications in Appendix 2. For employees in either of those two classifications, they are paid as an Ambulance Attendant (not ‘Officer’, although it makes no apparent difference) but also receive an additional hourly “allowance” (see clause 47 of the 2023 Agreement).
Underneath the wages table in Appendix 1 of the 2023 Agreement is additional text. That text, and the bolded text below, is central to the dispute between the parties and is as follows (emphasis added):
“a)Except as specified in clause Appendix 1 b(iii), wages for each classification will increase incrementally based on the number of years that an Employee has been employed with the Employer, calculated from the commencement date of the Employee’s employment.
b) For the purposes of determining the incremental increases within a classification the following will apply:
i) Full-time Employees will progress to the next wage increment following each year of service.
ii) Casual and part-time Employees will progress to the next wage increment following each year of service, provided the Employee has worked at least 780 hours of work within the calendar year; or if they have not completed 780 hours of work within a calendar year, once they have completed 780 hours of work.
iii) An Employee who was employed by the NPT Prior to the commencement of this agreement will remain on the yearly increment that applied under the previous agreement and will increment to the next step on the anniversary of their employment irrespective of their total length of service. As an example, and for clarity an Ambulance Attendant who may have been employed for 10 years and was previously on the maximum Year 4 rate will step to the new Year 5 rate on the next anniversary of their employment that falls after the commencement of this agreement.”
Clause 4 excludes operation of the Ambulance and Patient Transport Industry Award 2020 (2020 Award). Notwithstanding that the operation of the 2020 Award is excluded by clause 4, the 2023 Agreement provides for various adjustments should terms of the 2020 Award change.
Clause 26 of the Agreement requires NPT to make regular payroll reconciliations to ensure each employee is “better off” under the Agreement when compared to the Award at that point in time. In the event the reconciliation shows an employee is not better off, the amount that “would have been payable to the Employee under the Award” must be paid plus an additional one percent.
In addition to the text of Appendix 1, the parties referred to other parts of the 2023 Agreement by way of contextual matters relating to terms such as “service”, “year of service”, and “continuous service”. There is no definition of these terms in the 2023 Agreement, although those terms appear in a number of contexts, such as:
· Clause 14 (Redundancy pay). Clause 14 applies only to full-time and part-time employees and, among other matters, provides for a severance pay entitlement based on a prior period of continuous service.
· Clause 15 (Termination of Employment). Clause 15 applies only to full-time and part-time employees and, among other matters, provides for a period of notice to be given to an employee based on a prior period of continuous service.
· Clause 33 (Annual Leave). Clause 33 applies only to full-time and part-time employees and, among other matters, establishes an entitlement of 4 weeks’ paid annual leave for each continuous twelve months’ service with the employer.
· Clause 34 (Personal Leave). Clause 34 applies only to full-time and part-time employees and, among other matters, establishes an entitlement of 114 hours of paid person leave for the first four years of service and 140 hours per annum after.
· Clause 38 (Long Service Leave). Clause 38 creates, among other matters, an entitlement for existing Employees “with 6 years or more of service at 3 December 2006”.
Of a similar nature, clause 44 (Superannuation) provides at subclause (c) that “Upon commencement of employment,” the employer shall provide each worker with a superannuation membership form for their preferred fund.
Award and enterprise agreement history
Additionally, I was referred – primarily by NPT - to the history of enterprise agreements and awards preceding the 2023 Agreement, as well as to some limited matters raised in bargaining for the 2019 Agreement and 2023 Agreement.
Dealing with the history of antecedent awards, the most recent award that covered NPT prior to it being covered by an enterprise agreement was the Ambulance Services and Patient Transport Employees Award, Victoria 2002 (2002 Award), although the parties referred to earlier iterations of awards applicable to the respondent.
The progression clause of the 2002 Award is at clause 12.1. Clause 12.1 provided for an increase in classification eligibility on “twelve months’ service at a particular salary point in a classification”, albeit upon acquisition of new skills, experience or knowledge within the relevant classification, undertaking any in-house training, and satisfactory performance.
The first industrial agreement applying to NPT was the Liquor Hospitality and Miscellaneous Union - National Patient Transport Agreement 2006 (2006 Agreement). The classification structure was evidently based on the 2002 Award but with significantly fewer classifications. The rates of pay at clause 15 were clearly based on what “year” an employee was at within a particular classification. Clause 15 contained a wages table for five classifications, being: Ambulance Officer; Ambulance Attendant; Patient Transport Officer; Clinic Transport Officer; Client Services Officer. The yearly progression for a classification was capped at Year 3 for each classification. There was no requirement for acquisition of new experience or knowledge, in-house training or satisfactory performance as was included at the time in the 2002 Award.
For the Ambulance and Patient Transport Industry Award 2010 (2010 Award), payrates for ‘operational classifications’ was more explicitly based solely on “years”, being years within a particular classification such as “Ambulance Officer”, “Clinical Transport Officer”, or “Mechanic”.
The National Patient Transport Pty Ltd Employees Enterprise Agreement 2010 (2010 Agreement) made minor changes to the classification structure of the 2006 Agreement. The wage table and classification structure were respectively moved to Appendix 1 and Appendix 2 of that agreement, similar to the current agreement. The wage rates for each classification was again based on a formulation based on the “Year” of service within that classification, with progression within a classification again broadly beginning at Year 1 and ending at Year 3. One exception was for an Ambulance Attendant, for whom there was now a “Year 4” pay rate.
The National Patient Transport Pty Ltd Employees Enterprise Agreement 2014 (2014 Agreement) retained the wage table at Appendix 1 and classification descriptions at Appendix 2. All classifications had pay rates for “Year 1”, “Year 2”, “Year 3” and, in the case of an Ambulance Attendant only “Year 4”. The reference to a ‘year’ was a reference to a year within a particular classification. There were now only four classification types in the 2014 Agreement, being Ambulance Officers, Ambulance Attendants, Patient Transport Officers, and Client Service Officers. The classification of Clinic Transport Officer, which was present in the 2006 Agreement and 2010 Agreement, had been removed. While the wages table provided for pay rates for an ‘Ambulance Officer’, there was no description for that classification in Appendix 2 of that agreement.
The National Patient Transport Pty Ltd Employees Enterprise Agreement 2019 (2019 Agreement) retained the table of pay rates for the same four classification types from the 2014 Agreement but added text below that table in Appendix 1. The text, set out in full below, is the precursor to the text in dispute in the current enterprise agreement:
a)Wages for each classification will increase incrementally based on the number of years that an Employee has been employed with the Employer, calculated from the commencement date of the Employee's employment.
b)For the purposes of determining the incremental increases within a classification the following will apply:
i) Full-time Employees will progress to the next wage increment following each year of service;
ii) Casual and part-time Employees will progress to the next wage increment following each year of service, provided the Employee has worked at least 780 hours of work within the calendar year; or if they have not completed 780 hours of work within a calendar year, once they have completed 780 hours of work.”
The text from Appendix 1 of the 2019 Agreement is materially identical to the same text from the 2023 Agreement (see paragraph [28] above), other than:
· At the start of subclause a), the following words were added to the 2023 Agreement that were not in the 2019 Agreement - “Except as specified in clause Appendix 1 b(iii),…”; and
· Subclause b)(iii) is new to the 2023 Agreement.
Mr Truman gave evidence that, prior to making the 2019 Agreement, the practice of NPT at the time required an employee to sign a new contract of employment when they moved from one classification to another – eg, from a PTO to Ambulance Attendant. Mr Truman also states that the text in subparagraph a) and b) below the wage rate table in Appendix 1 was drafted by him. Neither party produced evidence of any explanatory material given to employees when they were requested to approve that agreement.
In 2020, the 2010 Award was replaced by the Ambulance and Patient Transport Industry Award 2020 (2020 Award). The 2020 Award again adopted a wage structure for each “Year” of a classification based on service within that classification.
For the 2023 Agreement, the classification structure in the wage rates table in Appendix 1 was further simplified by combining Ambulance Attendants and Ambulance Officers into a single structure ‘Ambulance Attendant / Officer’. There were now three classification types in the 2023 Agreement – reduced from four - being Ambulance Attendants / Officer (as a single classification), Patient Transport Officers, and Client Service Officers.
The other important change made to the wage rates table in Appendix 1 of the 2023 Agreement was an expansion in progression increments. Specifically, Years 5 – 7 were added to the classification ‘Ambulance Officer / Attendant’, Years 4 – 5 were added to the classification ‘Client Services Officer’ and Years 4 - 5 were added to the classification ‘Patient Transport Officer’. There were commensurate pay increases for these higher increments. Subclause (b)(iii) was specifically introduced in Appendix 1 to deal with the additional progression instruments.
In addition, Appendix 2 (Classifications) was varied to add the classification Ambulance Attendant Supervisor. As already noted above, there is no reference to Ambulance Attendant Supervisor in Appendix 1 of the 2023 Agreement but clause 47 creates an hourly allowance for any Ambulance Attendant appointed to the role of Ambulance Attendant Supervisor. Clause 47 also creates for an allowance for Clinical Instructors, which are also described in Appendix 2 (and were similarly provided for since the 2006 Agreement onwards).
Consideration
There was no apparent dispute between the parties as to the principles governing the interpretation of enterprise agreements. Rather, the disagreement was as to the application of the principles to the dispute at hand.
In Workpac Pty Ltd v Skene (2018) 264 FCR 536, the Full Court of the Federal Court set out the following principles for interpreting enterprise agreements (citations omitted):
· The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context.
· The interpretation turns on the language of the particular agreement, understood in the light of its industrial context and purpose.
· The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament;
· To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.
The observation that the drafters of an agreement may have been more concerned with drafting likely to be understood in the relevant industry “rather than with legal niceties and jargon” is an observation that rings particularly true with the present dispute.
Commencing with the text of the 2023 Agreement, the applicant’s position relies principally on the text in subclause (a) of Appendix 1, which states (emphasis added) “… wages for each classification will increase incrementally based on the number of years that an Employee has been employed with the Employer, calculated from the commencement date of the Employee’s employment.”
In the applicant’s written outline of submissions, she states there are three elements to subclause (a) as follows:
a) First: “wages for each classification will increase incrementally”,
b) Second: the increase is “based on the number of years that an Employee has been employed with the Employer”,
c) Third: the timing is “calculated from the commencement date of the Employee’s employment”
Of the second element above, the applicant states the words “based on the number of years” and “employed with the Employer” have a plain meaning. As a result, the applicant submits the second element provides that employees will progress incrementally within the table of Appendix 1 according to the length of their employment relationship with NPT.
For the third element, the applicant submits the term “commencement date of the Employee’s employment” has a plain meaning and it is “the date of the beginning of their employment relationship with the Respondent.”
In short, the applicant submits that subclause (a) means that progression to the next applicable increment in the wage table is on the anniversary date of commencement of employment, even where the employee has moved to another classification during their employment.
The applicant states that subclause (b) supports her construction, and she states that subclause (b)(i) confirms that full-time employees progress to the next increment “following each year of service.” She states subclause b(i), read in conjunction with subclause (a), means “the year of service is the year commencing on the anniversary date of the commencement of employment.”
For subclause (b)(ii), the applicant submits that all the clause does is modify the timing for part-time and casual employees, by providing they will not progress yearly unless they have worked a certain amount of hours and will do so once they have.
For subclause (b)(iii), the applicant submits the clause provides certainty about how service is applied to additional yearly increments in the 2023 Agreement that were not in the previous agreement. Broadly speaking, I accept Ms Robinson’s submissions regarding subclauses (b)(ii) & (iii).
However, and beginning with subclause (a) of Appendix 1, I do not accept the applicant’s submissions that the words “based on the number of years” and “employed with the Employer” have a plain meaning. First, “Employer” and “Employee” are defined terms.
Within subclause (a), the reference to “Employee” is to the defined term at clause 8 of the 2023 Agreement. Substitution of the defined term into the first instance of “Employee” in subclause a) of Appendix 1 yields:
“… wages for each classification will increase incrementally based on the number of years that an [Employee employed by National Patient Transport Pty Ltd as classified in Appendix 2 of this Agreement] has been employed with the Employer, calculated from the commencement date of the Employee’s employment.” (emphasis added)
While I have not substituted the definition of “Employee” in the second instance where it appears (i.e. where bolded above), it necessarily applies to the commencement date of an employee’s employment “as classified in Appendix 2 of this Agreement.” That does not fully resolve the issue, but it immediately signifies that the “commencement date” cannot be based upon any position within NPT but (at most), only positions classified in Appendix 2. Ms Robinson was, however, classified in a position within Appendix 2 (i.e. a PTO) before commencing as an Ambulance Attendant / Officer.
Second, and more significantly, I do not accept that subclause (a) is a “general rule” and that subclause (b) provides some limited elaboration above it. Subclause (b) does much more and it specifically makes rules for the “purposes of determining the incremental increases within a classification…”. It does so based on “each year of service”.
The term “service” is not defined in the agreement and nor is “year of service”. Variations of those terms appear throughout the agreement – some set out above - albeit in different contexts and without necessarily being confined to service for any classification in Appendix 2, such as for long service leave. I do not consider the use of those terms elsewhere in the agreement sheds much light on the interpretation of Appendix 1.
In subclauses (b)(i) & (ii) of Appendix 1, however, the references to incremental increases “within” a classification based on a “year of service” (or minimum hours for casual or part-time employees) is to a year of service within the same classification. Taking subclause (b)(i), the statement that progression will occur to the “next” wage increment based on a “year of service” signifies an intention applicable to each “Year” of the wages table in Appendix 1.
I do not consider that subclause (b)(i) intends to provide one rule for progression in Year 1 for an employee who has changed classifications and a different rule for employees who have only been employed within the same classification. On the applicant’s preferred construction, an existing employee who transfers from any classification in Appendix 2 to a different classification in Appendix 2 will automatically progress based on the start date anniversary for the first classification.
On the applicant’s case, an employee will progress from a Year 1 employee from as short a period as one day in that classification to one year in that classification, depending upon when he or she began in that classification. In Ms Robinson’s case, that time is about 88 days after she started as an Ambulance Attendant / Officer Year 1.
There are a number of additional contextual reasons why I consider that the applicant’s preferred construction should not be accepted and the employer’s position preferred:
· The classifications within Appendix 2 are of a different nature to each other with significant differences in qualifications and experience. It is counterintuitive to consider that progression within a classification would be advanced solely by reason of prior service in a different classification and a different rule again for prior employment within NPT but where not in a classification in Appendix 2.
· Progression on the basis of a ‘year’ within a classification is a well-known industrial basis for progression. At least in part, it is a mechanism where it is implicitly recognised at a particular workplace that an employee is likely to perform the same role more effectively after a year of service in that role and is to be paid more accordingly.
· The 2023 Agreement contains an obligation to undertake a payroll reconciliation against the 2020 Award. While it is not beyond the ability of a payroll reconciliation to treat the classification ‘Year’ under the 2020 Award differently to the ‘Year’ in Appendix 1 of the 2023 Agreement, it again seems less probable that was intended.
I acknowledge that ‘loyalty’ is also a reason for automatic yearly progression, a position relied upon by Ms Robinson. The difficulty with this is that (at most), only some NPT employees would be recognised with such loyalty, namely an “Employee” classified within Appendix 2. More significantly, I do not consider the explanation of loyalty supplies an objectively satisfactory basis outweighing the other factors I have already set out.
While I do not consider it necessary to consider the historical industrial instruments applying to NPT before the 2023 Agreement, that material would be supportive of NPT’s preferred construction. It is supportive because, before the 2010 Agreement, each antecedent award and enterprise agreement clearly provided for a pay increase within a classification based on a ‘year’ within that classification.
The evidence led by NPT of the changes to the 2019 Agreement (which introduced the disputed text to Appendix 1, save for subclause (b)(iii)) did not provide any persuasive evidence of intention, let alone common intention. “Common intention” for the purposes of an enterprise agreement is not lightly found. As Justice Gray stated in Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd (2006) 149 FCR 209, “[c]are must be taken, however, to distinguish a common understanding from common inadvertence” and that “[t]here can be no meeting of minds, no consensus, if no-one has thought about the issue.”[2]
Against this, there is no evidence (other than the text of the amendments to Appendix 1 itself) indicating any intention to change the mechanism for progression within the classifications in Appendix 1 if the applicant’s preferred construction was accepted.
Disposition
It follows that the answers to the questions posed for arbitration are:
a) Where an Employee changes from one Classification to another, should they progress to the next yearly increment in the new Classification on the anniversary of the commencement date of their employment relationship with the Respondent, or after one (1) year of service in the first yearly increment of the new Classification? Answer: in Ms Robinson’s case, she progresses based on the anniversary date she commenced as an ‘Ambulance Attendant / Officer – Year 1’.
b) On what date should the Applicant have progressed to Ambulance Attendant/Officer – Year 2? Answer: in Ms Robinson’s case, she progresses based on the anniversary date of 12 June.
c) Subject to the determination(s) of Question 1 and Question 2, what amount (if any) is owed to the Applicant with respect to her progression to Ambulance Attendant/Officer – Year 2? Unnecessary to answer but on the basis that Ms Robinson was correctly paid in accordance with the above two answers, then ‘nil’.
The dispute is determined accordingly.
DEPUTY PRESIDENT
Appearances:
C. Coggin of Victorian Ambulance Union Incorporated for the Applicant.
A. Arness from the Respondent.
Hearing details:
2024.
Melbourne:
November 18.
ANNEXURE
2023 Agreement
Appendix 1: Wages
“Hourly Wage Rates
Wage Rates Rate prior to agreement Rate at Approval of this agreement Ambulance Attendant / Officer – Year 1 31.02 32.67 Ambulance Attendant / Officer – Year 2 31.27 33.28 Ambulance Attendant / Officer – Year 3 31.46 33.98 Ambulance Attendant / Officer – Year 4 32.00 34.17 Ambulance Attendant / Officer – Year 5 34.50 Ambulance Attendant / Officer – Year 6 34.84 Ambulance Attendant / Officer – Year 7 35.00 Client Service Officer - Year 1 27.33 28.67 Client Service Officer – Year 2 27.54 28.78 Client Service Officer – Year 3 27.70 28.98 Client Service Officer – Year 4 29.17 Client Service Officer – Year 5 29.27 Patient Transport Officer - Year 1 27.33 28.67 Patient Transport Officer - Year 2 27.54 28.78 Patient Transport Officer - Year 3 27.70 28.98 Patient Transport Officer - Year 4 29.17 Patient Transport Officer - Year 5 29.27 a) Except as specified in clause Appendix 1 b(iii), wages for each classification will increase incrementally based on the number of years that an Employee has been employed with the Employer, calculated from the commencement date of the Employee's employment.
b) For the purposes of determining the incremental increases within a classification the following will apply:
i)Full-time Employees will progress to the next wage increment following each year of service.
ii)Casual and part-time Employees will progress to the next wage increment following each year of service, provided the Employee has worked at least 780 hours of work within the calendar year; or if they have not completed 780 hours of work within a calendar year, once they have completed 780 hours of work.
iii)An Employee who was employed by the NPT Prior to the commencement of this agreement will remain on the yearly increment that applied under the previous agreement and will increment to the next step on the anniversary of their employment irrespective of their total length of service. As an example, and for clarity an Ambulance Attendant who may have been employed for 10 years and was previously on the maximum Year 4 rate will step to the new Year 5 rate on the next anniversary of their employment that falls after the commencement of this agreement.”
Appendix 2: Classifications
“Ambulance Attendant (AA) / Ambulance Officer (AO)
Is an Employee who has successfully completed:
· A Diploma of Paramedical Science (Ambulance), and;
· Completion of a minimum of 400 hours operational stretcher experience under the direct supervision of a clinical instructor, and;
· Successful completion of a Clinical Skills Assessment
· Holds a recognised equivalent qualification and/or experience recognised by the NEPT Act 2005 and regulations
An Ambulance Attendant is qualified to provide a medium acuity level of care and treatment to patients as defined within the Clinical Practice Protocols.
Client Service Officers (Communications Centre):
Is an Employee who is trained to perform workload planning, dispatch and/or call taking duties within a Communications Centre and who, in addition, is required to determine the priorities for allocation of human and physical resources and to control the work of patient transport crews.
Clinical Instructor (Cl)
Is an Employee who is an Ambulance Attendant who is appointed to the role and provides clinical training to Employees and whose qualification and training meet the requirements of the NEPT act and regulations of 2005.Ambulance Attendant Supervisor
Is an Employee who is an Ambulance Attendant who is appointed to the role and is rostered to provide supervisory support to an employee whose qualification and training are at a level that necessitates additional supervised experience in order to meet accreditation requirements of the NEPT Act and Regulations.Patient Transport Officer (PTO)
An Employee who has completed the Certificate Ill in Non-Emergency Patient Transport or has an equivalent qualification assessed as such by a Registered Training Organisation and who provides basic care and transport of non-emergency patients. This role is as defined in the NEPT act and regulations of 2005.”
2002 Award progression clause
“12. PROGRESSION WITHIN A CLASSIFICATION
12.1After twelve months’ service at a particular salary point in a classification, an employee shall be eligible for progression to the next salary point in that classification if the employee has:
12.1.1acquired and used new or enhanced skills, experience and knowledge within the ambit of the classification and in accordance with the priorities of the employer;
12.1.2undertaken relevant in-service or refresher training as required and provided by the employer from time to time; and
12.1.3 given satisfactory performance over the preceding twelve months.”
[1] AE520870
[2] At [44]. See also Shop Distributive and Allied Employees' Association v Woolworths Ltd (2006) 151 FCR 513 at [31].
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