I thank Tom Kiat, Industrial officer with the Australian Paramedics Association NSW for drawing my attention to the decision in Australian Paramedics Association (NSW) v Health Secretary in respect of NSW Ambulance  NSWIRComm 1016. The case involved a paramedic who was took three weeks leave during a 9 week roster. Commissioner Murphy said (at -):
The facts of the matter are not in dispute. Over the period of the 9 week roster cycle at Morisset Ambulance Station, officers would normally be rostered to work a total of 342 ordinary hours or an average of 38 hours per week. This would occur if an officer worked sequentially through the 9 roster lines regardless of which roster line the officer commenced on at the beginning of the 9 week roster cycle. However, this did not happen with respect to Mr Duddy during the 9 week roster cycle which began on 27 October 2018…
Mr Duddy worked a combination of 12 hour and 12 hour 15 minute shifts. He commenced the 9 week cycle on roster line 6 and worked through roster lines 7 and 8 before proceeding on a block of 3 weeks’ annual leave. However, instead of returning from annual leave on roster line 3, which would have been the next roster line in sequence, he returned on roster line 5 and then worked roster lines 6 and 7 to the end of the 9 week cycle, due to another officer at the station taking annual leave for the last three weeks of that roster cycle. This is known colloquially as a “line switch”.
Had Mr Duddy returned from his 3 weeks of annual leave onto roster line 3, the total hours he would have been rostered to work for the last 3 weeks of the 9 week roster cycle would have been 24.50 (week 7), 36.50 (week 8) and 48.75 (week 9) or a total of 109.75 for that 3 week period. Instead, the hours he actually worked were 48.75 (week 7), 48.75 (week 8) and 49 (week 9) or a total of 146.50 for that 3 week period, 36.75 hours more than if he had returned from his annual leave on roster line 3.
Further, if Mr Duddy had not taken annual leave during weeks 4, 5 and 6 of the roster cycle… his total working hours for the 9 week roster cycle would have been 378.75 or 36.75 hours more than the normal rostered hours of 342 for the 9 week cycle. It was conceded by Mr Easton, counsel for the respondent, that, if this had occurred, Mr Duddy would have been entitled to have been paid overtime for the hours worked in excess of 342.
Mr Duddy did not work longer than his rostered hours on the days he worked, but he was rostered for more hours than he would have been had he not taken leave. The issue was whether Mr Duddy was entitled to overtime for those extra hours worked.
The ambulance service had argued (at ):
… the practice had been that, when an officer returned from a block of annual leave onto a non-sequential roster line and, as a result of switching lines, worked additional shifts, as occurred with Mr Duddy, that officer was not paid overtime for working those additional shifts. Conversely, when an officer worked less shifts than would otherwise have been worked as a result of switching lines, the officer was still paid as if he or she had worked the normally rostered number of shifts. This arrangement was described in an email dated 3 October 2019 from Mr John Papas, Industrial Relations Specialist, NSW Ambulance, to the APA as “the long-standing practice of swings and roundabouts on pay averaging”. However, there is no reference to any such long-standing practice in the Award.
And the Commission is concerned with interpreting and applying the award. The award refers to overtime as working hours beyond those rostered for the day but it can include working a whole roster on what would otherwise be a day off (see ). Commissioner Murphy took the view that the award required that Mr Duddy be paid overtime for the three shifts that he worked but would not have worked had he not taken leave. After a conciliation conference, the Commissioner made a recommendation that NSW Ambulance pay the overtime. This was rejected, by the ambulance service. The proceedings then shifted to a claim by Mr Duddy for a compulsory order for the recovery of the overtime payments.
The ambulance service argued that the Commission could not make that order as the recommendation was merely a recommendation not an order and was not enforceable. The commission rejected the argument that it was being asked to enforce a non-binding recommendation. Commissioner Murphy said (at )
I reject the submission of the respondent to the effect that … the APA is asking the Commission to enforce the recommendation that I made on 21 August 2020. That is not the case. What the Commission is being asked to do is to interpret how the overtime provisions in the Award apply to the shifts worked by Mr Duddy … and to make an order for the payment of money to Mr Duddy accordingly if appropriate.
Not surprisingly the Commissioner came to the conclusion, as he had before, that the ‘overtime provisions in the Award’ meant that Mr Duddy was entitled to the payment of overtime and it was appropriate to make an order compelling the ambulance service to pay him the sum of $2,991.89 being ‘an amount equivalent to 3 overtime shifts each of 12.25 hours duration’ (see ).
Commissioner Murphy had also recommended (at ) that:
NSW Ambulance is to consider how to resolve past claims, similar to Mr Duddy’s, that come forward directly or through the unions.
Although that still has the status of a recommendation, rather than an order, there is no doubt that the service will be well advised to act on that recommendation to avoid further claims for compensation for unpaid overtime.
Leave is leave. One does not have to work extra hours to make up for the time taken as leave. Pending any possible appeal, if taking leave means a NSW ambulance paramedic has to work more hours than he or she would have worked on their roster had they not taken leave, they are entitled to be paid overtime for those extra shifts. It is the award, and not any ‘long-standing practice’ that governs overtime entitlements.
Is the corollary to this that any roster line switches, from taking annual leave, that result in a paramedic working fewer than 38 hours a week, that they will now have to work extra shifts to make up the time?
My understanding was that the “swings and roundabouts” method referred to was an informal averaging technique, with the view that while there are some roster switches that result in extra hours worked for those 9 weeks, there are also switches that result in the opposite issue. It would seem, based on the commissions finding, that any shortfall in hours worked will now have to be made up by the individual.
This perhaps is a good example of why informal HR arrangements really aren’t appropriate? On the surface it may seem workable and reasonable, but really it isn’t.
The obligation to make up time doesn’t automatically follow from this decision. The IR Commission did not address that issue but no doubt NSWAS are thinking about the implications so that may have to be a matter for a later decision. Your understanding of the ‘swings and roundabouts’ method is what NSWAS said but as the Commissioner said, that is not what was in the award. It is indeed a good example of why informal arrangements don’t work well. It is the award (or the contract, or the law depending on the context) that is relevant. If everyone was bound by agreed or even not agreed, just developed ‘work arounds’ then there is no point have awards, or contracts or law. When it comes to resolving disputes tribunals like the Commission or the Court look at the actual words of the award (or contract or law) and that is what they apply.
It will be interesting to see what comes of this for future rostering arrangements. Thanks for your reply
All this judgement has done is to reduce even further, any flexibility that Paramedics have with regard to rostering.