Health Services Union NSW v Health Secretary in respect of NSW Ambulance (Casual Intensive Care Paramedics) [2023] NSWIRComm 1086 was another industrial issue involving NSW Ambulance has come before the Industrial relations commission, this time about the pay rate for casual intensive care paramedics. The issue was that the relevant award defined an Intensive Care Paramedic (at [6]) as:
… an employee who has completed the necessary and relevant training and work experience as determined by the Service to become a Paramedic Specialist – Intensive Care Paramedic and who is appointed to an approved Intensive Care Paramedic position.
The problem for casual ICPs arose if they were not assigned to an intensive care ambulance. As one witness for the HSU reported (at [15]):
… when he clocks onto a shift he does so as an ICP. If there is an available ICP vehicle, he is allocated to that vehicle. When he is on shift, the control centre is aware that he is an ICP resource and will dispatch him to jobs that look to require intensive care or an extended scope of practice. He went on to say that he feels compelled to use his ICP skills and go to the extent of his scope of practice when required. He said “I cannot unlearn ICP clinical knowledge and procedures”.
Another witness ‘also a casual ICP, similarly described the requirement to exercise his extended skills when on shift’ ([16]).
The HSU argued that casual ICPs should be paid as ICPs regardless of the car they were assigned to. That is, ‘the phrase “and who is appointed to an approved Intensive Care Paramedic position” should be read as encompassing a paramedic performing or being ready and willing to perform the work of an ICP’ ([7]).
The problem for the Commission was that the dispute had been resolved. The Ambulance service had agreed that any current casual employee who, prior to moving to casual employment had been employed as a permanent ICP would continue to be paid as an ICP ([3]). That dealt with current employees. The union they sought a determination from the Commission interpreting the award for the benefit of employees who may, in the future, move to casual employment. Commissioner Sloan said ‘The HSU is effectively asking me to address a hypothetical situation, that is, what might happen in the future when an ICP transitions from permanent to casual?’ ([12]).
The Commission has the power to interpret an award (Industrial Relations Act 1996 (NSW) s 175) but only when called upon to exercise its other powers to resolve a dispute ([9]). As this dispute was resolved, there was no power in the Commission to make a determination of how the award should be interpreted or applied in the future. Notwithstanding his concerns about the position of NSW Ambulance – ‘that is that a paramedic accepts the work that they are offered and, if that is as a general paramedic, that is the end of the story’ it was held that the Commission could not issue the determination sought by the HSU.
Comment
I have discussed before that one cannot unlearn skills nor be expected not to apply them when they are required, that is it cannot be the case that ‘a paramedic accepts the work that they are offered and, if that is as a general paramedic, that is the end of the story’. If they are an ICP and they can see that that the patient needs their advanced skills and knowledge they cannot simply pretend to not know what they know (see When is an Intensive Care Paramedic an Intensive Care Paramedic (August 26, 2019)).
Hopefully NSW Ambulance will continue to recognise that for the benefit any future casual ICP or no doubt this issue will return to the Commission.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.