C2006/1707, Transcript of Proceedings [2006] AIRCTrans 243 (27 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14236-2

COMMISSIONER FOGGO

C2006/1707

LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
AND
RURAL AMBULANCE VICTORIA
s.99 - Notification of an industrial dispute
(C2006/1707)

MELBOURNE

10.16AM, WEDNESDAY, 25 JANUARY 2006

PN1

THE COMMISSIONER: Firstly, I do apologise for keeping you waiting. I was unavoidably detained.

PN2

MS B FORBATH: I appear on behalf of the Liquor Hospitality and Miscellaneous Union, and together with me is MR P CAVINAR.

PN3

MR G MEREDITH: I appear for Rural Ambulance Victoria. Also appearing with me are MR A PEGG, MS R ROSS, MR J WILKINS and
MR C CHILTHAM. If it may assist, Commissioner, Ms Ross is the safety manager at Rural Ambulance Victoria. Mr Wilkins and Mr Chiltham are from the area management office in our area 7, which covers the Maffra area. Mr Pegg is one of our senior operational managers at Ballarat. Commissioner, also while I’m on my feet, I have had the opportunity to briefly discuss this with Ms Forbath. In our view there are some significant threshold questions with the notification, the form and the content of the notification that has been lodged in this matter.

PN4

THE COMMISSIONER: Is there something you want to address as a prior issue?

PN5

MR MEREDITH: I would like to, Commissioner. I will seek to be brief. Commissioner, we say the threshold matters arise from the form and content of the notification as lodged. The quickest way to deal with this - the subject matter of a proposed new roster at the Maffra Branch, whilst it has been a live issue for some time between employees, local management, the head office management, Rural Ambulance Victoria, and senior officials of the AEAV, on 23 November 2005 employees from our Maffra Branch lodged a formal grievance in accord with the industrial instrument in place at the time. I will tender a copy of that, Commissioner.

PN6

THE COMMISSIONER: Just let me clarify something you have just said in relation to your statement, “the industrial instrument at the time”. This application is something that Ms Forbath might wish to address me on as well when I ask her to reply to you - mentions the Rural Ambulance Victoria MX Award 2005.

PN7

MR MEREDITH: That’s one of the matters I wish to go to, Commissioner.

PN8

THE COMMISSIONER: Well, I won’t say anything further until I have heard you.

PN9

MR MEREDITH: Commissioner, a formal grievance was lodged on 23 November 2005. We say that the industrial instrument in place at that time - given that the Rural Ambulance Victoria MX Award 2005 was issued by a Full Bench on 9 December 2005, we say two things. First of all, that the instrument in place at the time is the Rural Ambulance Victoria Certified Agreement 2001. I don’t know necessarily that a profound amount turns on that. However, it is the case that that is the instrument what was in place at the time that the grievance was lodged.

PN10

The second thing we say, Commissioner, is that in response to the grievance as lodged, a meeting was held on 2 December between the employees and their representative and Mr Wilkins and Mr Chiltham. That meeting took place on 2 December 2005. Approximately 1 week later, Mr Pegg, who is present with me here today, attended a meeting at Ballarat with Mr McGee of the AEA. That meeting was to deal with some other matters. Mr McGee raised in passing at that meeting, some comments and some matters concerning the roster issue at the Maffra Branch. However, we say quite emphatically that that was not a meeting that was pre-scheduled, nor a meeting that was called or proposed to deal with the Maffra roster matter.

PN11

We say that the grievance process - and the grievance process in the 2001 agreement is identical to that which has been transposed into the award that was subsequently made, but we say that the grievance process has not yet run its course. We say that there has been a meeting at stage 1 or tier 1, if you wish. There has not been a further structured meeting, dedicated meeting, of senior officers of the organisation of Rural Ambulance Victoria or of the Ambulance Employees Association. We say that process has not run its course. We say that we’re not properly here. If it please the Commission.

PN12

THE COMMISSIONER: Yes, thank you. Ms Forbath?

PN13

MS FORBATH: Thank you, Commissioner. In response to Mr Meredith’s so-called threshold matter, the fact is that, yes, indeed, there was a grievance lodged, there was a meeting and so on, that the service has actually posted the roster.

PN14

THE COMMISSIONER: I’m sorry, the service - - -

PN15

MS FORBATH: That the service has actually posted the roster to commence on 23 January, as I have said in my application to the Commission. So, in doing so, I think it was fair to conclude, that Rural Ambulance Victoria had no intention of further negotiating the grievance. They intended to implement their roster despite all of the concerns and opposition from the staff of the Maffra Branch. We were facing a situation of possible industrial disputation. It’s quite appropriate, I would have thought, in that situation, to bring the matter to the Commission and try to find a solution to that sort of dispute or pending dispute.

PN16

Whether or not it’s lodged, the original grievance was lodged under the enterprise agreement 2001, and that the application to the Commission is now made under the MX award I think is neither here nor there because, as Mr Meredith states, the grievance procedure and the dispute resolution procedure has not changed. So, I think it is appropriate that the dispute be notified to the Commission under the MX award. If the Commission doesn’t see fit to go that way, the dispute can be reissued under the 2001 enterprise agreement but I think it’s an unnecessary technicality. We are here, Commissioner, to ..... out a problem and hopefully to go into conference and try, with your assistance, to see if we can perhaps negotiate an outcome that the parties can all live with.

PN17

At the end of the day, I think it is the role of this Commission under the current Act to make every effort to try and resolve disputes, to find solutions and compromises to matters that are in dispute between employers and employees. That’s where I’m coming from on that so-called threshold issue, which I don’t believe is a threshold issue.

PN18

THE COMMISSIONER: Yes, thank you. In my view, the fact that the grievance was lodged on RAV under the 2001 agreement and then the subsequent application before the Commission, which I believe is consistent with the dispute resolution procedure between the parties, is then lodged at a time when the MX award is formally in place is something that I take no issue with. It would be unfair to either party to an agreement, which was subsequently superseded by another agreement, to then have no rights which could arise from the previous agreement. There must be a continuation.

PN19

It is the same issue when there is a new Workplace Relations Act or industrial relations law, there is a period during which - and there are well-established precedents here on how you can continue to use the industrial agreement which was in place when the dispute arose, despite the fact that new legislation is in place. In my view, that’s identical to the circumstances which apply here.

PN20

I think also the fact that both advocates have stated that there is no change in the actual provision upon which we are basing this dispute means that there is no problem in relation to the Commission proceeding with this application. In my view, it is a bona fide application made consistent with the Act and, as such, we will proceed to see if it can be successfully conciliated between the parties.

PN21

Yes, Mr Meredith?

PN22

MR MEREDITH: Commissioner, it does remain the case that in our submission the grievance procedure has not run its course.

PN23

THE COMMISSIONER: Yes, well, that will be the subject of submissions after I have heard from Ms Forbath.

PN24

MR MEREDITH: I would seek to tender one further document, Commissioner. What I tender is a copy of a memorandum dated 15 November 2005 addressed to Maffra Branch employees. That memorandum advises that the new roster that is proposed is indeed intended to be put in place. A significant part of this, Commissioner, is that the date is 15 November. The grievance, as you know, was lodged 7 days later. That’s the sequence.

PN25

THE COMMISSIONER: They are definitely matters for submission. It’s the union’s application. I’ll hear from Ms Forbath first.

EXHIBIT #M1 LETTER DATED 23/11/2005
EXHIBIT #M2 MEMORANDUM TO MAFFRA BRANCH EMPLOYEES DATED 15/11/2005

PN26

THE COMMISSIONER: Ms Forbath?

PN27

MS FORBATH: Thank you, Commissioner. As I stated earlier in submissions, the ambulance service has in fact brought this to a head by posting the roster and saying that it will be implemented on 23 January. So, irrespective of whether the grievance procedure has been fully gone through - and we could have endless submissions and debates about that - the fact is that we are bringing a dispute to the Commission because of possible threatened industrial action on the part of employees down there who feel that this roster is an imposition on their family life and their personal circumstances. It is a fatiguing roster. We are trying to avoid disputation by bringing the matter to the Commission to try and find a resolution. That is really all I want to say about the grievance procedure.

PN28

My general submissions are these: the Maffra Branch is a small rural branch in East Gippsland with an equivalent full-time staffing component of 2.5 paramedics. The numbers will be increased to 3.5 equivalent full-time employees from next Monday. One of those employees is also what’s called a regional reliever. He is based at Sale and works through the Maffra Branch at times when people are absent.

PN29

Maffra Branch handles approximately 700 cases per annum. A very considerable percentage, about 5 per cent of those cases, occurs during the current on-call period. It’s a single officer crew branch. As with many branches of this size throughout Rural Ambulance Victoria, a standard roster operates here. That is what’s called and known as the 8/6 roster, which means that employees work eight dayshifts and seven nights of call. On their last dayshift they’re not on call and then they have six clear days off before returning to work.

PN30

THE COMMISSIONER: Just repeat that for me, please.

PN31

MS FORBATH: The 8/6 roster involves having eight dayshifts in a row. Four out of seven of the nights of those 8 days you are on call at the end of your dayshift until the next morning and then you commence your normal duty in the morning. You’re not on call on the last night because that’s the night before you actually go into rostered time off. Then you have six clear days off duty.

PN32

That roster has worked reasonably well in the small branches but in Maffra there have been problems of fatigue and there has been a person - one of the employees of the branch who has been on WorkCover as a result of fatigue. There has been agreement between Rural Ambulance Victoria and the employees of the branch to change the roster, though I should say right from the beginning that it’s not as if the staff are clinging on to the 8/6 roster in face of a new roster being proposed by Rural Ambulance Victoria.

PN33

The parties have over a couple of months tried to come up with a roster that they could both agree with and that dealt with the problem of the high workload in the evening, in what is traditionally the on-call period which would have been from 6 to 8 in the morning. So, both parties agree that the existing 8/6 roster is somewhat fatiguing for the employees, although I understand that RAV would not be uncomfortable if that roster was retained but both have been committed to try and find some solutions to that problem.

PN34

What the parties have been trying to do is to reduce the amount of on-call periods that employees have to work over the three week cycle. They want to try and reduce the length of the on-call period and they want to try and reduce the number of consecutive on-call periods for duty that employees are required to work under the current 8/6 roster. The problem has been that the roster that RAV came up with, despite numerous attempts to try and modify it by the staff, RAV stuck to that proposal and refused to budge from it. As I said earlier, they have notified that it will come in on 23 January.

PN35

We say that that roster has a number of very serious flaws and it impacts negatively on the family and personal circumstances of paramedics. Commissioner, rather than go into all the details about what’s wrong with that roster and so forth, what I would propose, if the Commission is agreeable, that we go into conference to pick our way over the roster proposed by RAV and to examine some of the options put up by the staff and see if we can find some compromise along the way. That I would propose.

PN36

If the Commission wishes me to put onto transcript all the detailed objections to the roster I’m happy to do so but I think we might be better served by dealing with the matters in conference. Obviously, if the matter has to eventually be arbitrated I will have to call witnesses and deal with this in a lot more detail. But that’s the way that I would like to proceed, if the Commission is agreeable.

PN37

THE COMMISSIONER: Yes, I am agreeable. But first of all I’ll hear from Mr Meredith so that he can put his information on record.

PN38

MR MEREDITH: Thank you, Commissioner. On 28 June 2005 the station officer at Maffra, Mr Ballard, who is also the health and safety representative for that area, issued a provisional improvement notice. That notice claimed that there were multiple breaches of the Occupational Health and Safety Act that had been breached. These all went to the roster in place and the amount of on call that was being worked.

PN39

Commissioner, I’m sensitive to reasonable standards of privacy and confidentiality. Suffice to say that, as Ms Forbath had advised you, Mr Ballard has been on a number of periods of WorkCover leave and there is medical evidence to support the fact that Mr Ballard, in particular, has a medical condition that can be aggravated by the frequency with which he is required to work call. So, there was a provisional improvement notice issued by Mr Ballard on 28 June. There was the usual amount of dialogue between RAV and WorkSafe in response to that provisional improvement notice and, if necessary, Ms Ross, who is present here today and who is the safety manager at Rural Ambulance Victoria, can provide you with some further detail on that.

PN40

On 2 August 2005, WorkSafe Victoria issued their PIN inquiry outcome notice, effectively the final conclusion to the provisional improvement notice, and the provisional improvement notice was cancelled. I won’t go to extensive detail as to the grounds upon which the provisional improvement notice was cancelled. However, that outcome notice does identify that the employer - well, it might best suit everyone’s purposes, Commissioner, if I do tender that PIN inquiry outcome notice. It is a public document.

EXHIBIT #M3 PIN INQUIRY OUTCOME NOTICE DATED 02/08/2005

PN41

MR MEREDITH: You will see, Commissioner, that that is the response to a provisional improvement notice that had been issued by Mr Ballard, that the reasons given by Mr Ballard were that RAV was continuing to make employees work a proven fatiguing roster which is an unsafe work system and you will see that that provisional improvement notice - over the page, the decision by the relevant authority was that the provisional improvement notice is cancelled.

PN42

At various parts on the second page, Commissioner, you will see that there are longstanding arrangements in place with respect to eight hour breaks. You’ll see that under paragraph 2, under the basis for the inspector’s decision, and I quote:

PN43

The employer appears to provide a system of work that is, so far as is reasonably practicable, safe and without risks to health.

PN44

At subclause (iii), I quote again:

PN45

I observe that the employer appears to be maintaining the workplace under their control and management in a condition that is safe and without risks to health.

PN46

At subclause (iv), I quote:

PN47

I observe that the employer is monitoring the health of an employee with a medical condition and there was no evidence to suggest that the employer has not monitored the health of employees so far as is reasonably practicable.

PN48

At subclause (v), I quote:

PN49

The employer has indicated that they were available to increase the EFT at the branch to three. This proposal appears to address the initial concerns raised in the provisional improvement notice as it does not include employees working 10-hour shifts followed by 14 hours on call.

PN50

The 10 hour shift and 14 hours on call, Commissioner, is a common feature of the 8/6 roster that Ms Forbath alluded to.

PN51

Commissioner, following that decision with respect to the PIN notice, there has been a considerable degree of dialogue between local management and employees at Maffra and, as you know, in mid November RAV advised that it would initiate a new roster, that it would trial that roster. The characteristics of the roster that RAV proposed to trial are that there is to be increased EFT but there reduced lengths of on-call periods, that there are greater periods of days off duty and that there are fewer consecutive on-call shifts.

PN52

THE COMMISSIONER: And that’s exhibit M2 you’re referring to?

PN53

MR MEREDITH: Correct, Commissioner. There has been some debate between the parties because although exhibit M2 was issued on the day shown there, in fact what arrived at the branch - and I suppose the only refuge I can take here, Commissioner, is that it’s a standard of men, not of angels - the memo arrived at the branch but not the roster. There was then an argument about whether in fact the roster had been posted as was required to be done under the 2001 certified agreement. For better or worse - and I was involved in this decision - we took the view of, well, yes, we have given people the memo but we haven’t given them the roster. People can fairly argue they don’t know, so we haven’t posted it. We had to go back and start the clock again.

PN54

A further roster was issued, there was another argument which then developed about whether that roster had been properly posted, and to round out the intervention of human beings here, Commissioner, in fact a third roster was posted to the branch in December. Each employee was provided with a copy of the memorandum and the details of the roster shifts were stapled to that memorandum. It is that roster that it was proposed to commence on 23 January. It has not yet commenced. The area management team took the decision subsequent to the advice of the notification being made to this Commission that they would adjourn implementing that roster until the matter had come before this Commission.

PN55

There were discussions between Mr Pegg and Mr McGee in December. I will tender one further document and that is a copy of correspondence from Mr Pegg to Mr Cavinar, the acting secretary of the AEA.

EXHIBIT #M4 LETTER FROM MR PEGG TO MR CAVINAR DATED 28/12/2005

PN56

MR MEREDITH: Commissioner, perhaps I’ll wait for a moment for the parties to familiarise themselves with it. In particular, Commissioner, I would ask you to look at the second paragraph. Mr Pegg is there referring to the in-passing discussions that he had had with Mr McGee. It certainly is true that Mr McGee had suggested that the roster proposed by employees at Maffra be trialled. The difficulty that we have and continue to have - the roster that had been proposed is a roster that, amongst other things, we say offends both the MX award and an equivalent provision that applied in the 2001 agreement. That simply was that there would be a requirement that employees work through to a period when they are not rostered for duty. Our concern was and remains that that does offend the provision in the former 2001 agreement and the equivalent provision in the MX award.

PN57

We were not prepared to informally agree to trial that roster on the basis of an understanding between the parties. We were not prepared to proceed with the trial of a roster that we saw had one element that was clearly in breach of the former and the current industrial standard. Commissioner, you will see also in the concluding paragraph there that Mr Pegg makes clear - I quote:

PN58

If the employees have another alternative that does conform with the MX award and meets the needs of the community -

PN59

If I can interpose there, Commissioner, obviously there are service standards we expect and we achieve and will continue to achieve. I resume my quote:

PN60

While addressing those issues canvassed in the discussion with WorkSafe, RAV would consider them. We remain prepared to consider any roster proposal that comes to us that complies with the terms of the award or the former agreement that meets our service standards and that achieves the broad aim that we clearly telegraphed to WorkSafe in July of 2005 of increasing EFT, reducing consecutive periods of on call, reducing the duration of on-call periods -

PN61

et cetera. Commissioner, we have not received an alternative roster proposal from the employees or the AEA that we say meets those criteria. We are genuinely perplexed that it is now being alleged subsequent to the making of the MX award, that the roster we are proposing has adverse impacts upon family life when, as we see it, it reduces the length of on-call periods, it reduces the number of consecutive on-call periods. We are genuinely perplexed and quite frankly we question the sincerity with which that argument has been put to us.

PN62

We will, as we are entitled to, proceed to trial a roster. We will do so in compliance with the obligations that are imposed upon us in the MX award with respect to a requirement to consult, not necessarily to consult to agreement, but to consult with employees that can point to legitimate concerns with respect to family and domestic issues. We have not received any contra-proposal from the parties or their representative of a roster that complies with the award provisions. We are not prepared to commit to trialling the roster we have devised and then agree in principle to trial some other roster that we have not yet seen at the end of that period. With due respect, Commissioner, we would say we cannot reasonably be compelled to do so.

PN63

Finally, Commissioner, I heard Ms Forbath choose to characterise the roster that we are proposing as a fatiguing roster. Commissioner, there is in existence a methodology. It originates from the University of South Australia, specifically from Prof Dawson, which is commonly referred to as the FAID index, fatigue index. Mr Pegg, who is present with me today, has applied that methodology to the roster as has been worked and to the roster that is proposed. We say it is manifestly clear that the roster that we have devised and the roster we propose far more comfortably complies with the fatigue index as is known and accepted than the roster that has been worked and any roster proposal that we have yet seen from the AEA.

PN64

It may well be that it’s put to you that the fatigue index is not one that is universally accepted, just as there are those that doubt the truth of the Shroud of Turin. That may well be. There is no other alternative model. There is no other accepted model and it is this model, the fatigue index that I’m referring to, that was applied by the parties in proceedings some years ago dealing with op cens - operation centres, radio rooms and rosters to apply there.

PN65

Commissioner, we are quite prepared to proceed in conference with your assistance but we see a number of elements that frame what we can reasonably come to or what we can reasonably be expected to come to in such conference proceedings, if it please the Commission.

PN66

THE COMMISSIONER: Well, despite your pessimistic final comments, Mr Meredith, I think it might be useful to move into conference.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 LETTER DATED 23/11/2005 PN25
EXHIBIT #M2 MEMORANDUM TO MAFFRA BRANCH EMPLOYEES DATED 15/11/2005 PN25
EXHIBIT #M3 PIN INQUIRY OUTCOME NOTICE DATED 02/08/2005 PN40
EXHIBIT #M4 LETTER FROM MR PEGG TO MR CAVINAR DATED 28/12/2005 PN55