Today’s question relates to working overtime for Ambulance Victoria (AV). The question below is heavily edited to reduce the length but get to what I understand is the gist of the issue.
My correspondent works in ambulance communication. The comms team is turn between the need to respond ambulances and the need to assist on road paramedics to finish on time. The Ambulance Victoria Enterprise Agreement 2020 provides that crews are required to work ‘reasonable overtime’ but I’m told there is no policy directive from AV as to how this is to be managed. I’m told that road crews are worried about their careers if they refuse overtime, and comms members are worried about their careers if they take staff ‘off line’ before the end of the shift so that they can finish on time, particularly when they have asked to finish on-time to meet family commitments.
In a nutshell, the communications group are worried about being dragged through the wringer for failing to follow the EA, the crews have had enough with the service for not following the EA and the Union is perpetually fighting the service for not following the EA.
The VAU’s recommendation is that an AV employee contacts the Regional Manager under 45.1(d) relevant manager (NOT a comms person) and requests on time to finish due to personal circumstances as early as practicable, as outlined in the above screen shot. The Regional management team have pushed back and said that this is a resourcing decision and should be left for the communications team to facilitate. It has been pushed up from every angle, H&S, Union, through the comms group, through the roadies and the response from AV is just a holding pattern of ‘awaiting legal advice’ and ‘statistics’ i.e. how would this affect the service’s ability to respond to core business
I’m asked: do I have ‘knowledge of any case law where ‘unreasonable overtime’ was discussed in the setting of emergency services?’
The short answer is ‘no’ I do not have ‘knowledge of any case law where ‘unreasonable overtime’ was discussed in the setting of emergency services’ and a search on Austlii (“reasonable overtime” near (ambulance or “fire brigade”)) has failed to find any such case.
If I look at the Enterprise Agreement, it says:
45.1 Requirement to work reasonable overtime
(a) Subject to clause 45.1(b), the Employer may require an employee to work reasonable overtime (including incidental and full shift overtime) at applicable overtime rates of pay.
(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.
(c) In determining whether the requirement to work overtime hours is unreasonable for the purposes of 45.1(b), the following must be taken into account by the employee and the Employer:
(i) any risk to the employee’s health and safety from working the overtime including previous overtime worked;
(ii) the employee’s personal circumstances including any family responsibilities;
(iii) the needs of the workplace or enterprise including the Employer’s primary function to provide pre-hospital care and transport in an emergency setting;
(iv) the notice (if any) given by the Employer of the overtime;
(v) the notice given by the employee of his or her intention to refuse to work any required overtime;
(vi) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(vii) the nature of the employee’s role, and the employee’s level of responsibility;
(viii) whether the additional hours are in accordance with averaging terms included in this Agreement; and
(ix) any other relevant matter.
(d) Notice given in accordance with clause 45.1(c)(v) should be given to the relevant manager and occur as soon as reasonably practicable and where applicable, prior to or at the commencement of the employee’s rostered shift.
(e) Subject to clause 45.1(f), where an employee considers a requirement to work overtime hours may be unreasonable, the employee must as soon as reasonably practicable, advise the Employer why the employee regards the additional hours as unreasonable and whether they intend to work the overtime. The discussion must take into account the circumstances set out in clause subclause 45.1(c).
(f) The discussion in clause 45.1(e) must not delay the employee responding to a code one or priority zero case.
(g) Where an employee is required to work reasonable overtime, the Employer will then consider potential options to reduce the overtime hours or mitigate the impact of the overtime on the employee’s personal circumstances such as family responsibilities, including the dispatch of a back-up resource to the case.
What the EB says, as I read it, is that the call is with the ‘relevant manager’ and the on-road paramedic. If the paramedic contacts the relevant manager and says ‘I’m not doing this overtime’ and the relevant manager agrees then it’s the relevant manager who needs to let comms know that the paramedic is not required to attend. And the EB says it is not for the paramedic to tells the comms team that he or she is not going to work the overtime, he or she has to contact the relevant manager, but not if that would delay a ‘code one or priority zero case’. There really is not an option to refuse to respond to that case even at the end of the shift.
A paramedic who needs to finish on time needs to let their ‘relevant manager’ (not the comms team) know that they will not work overtime as soon as possible and ideally at the start of their shift or even before their shift starts – eg if they know they have a commitment later in the week let the manager know as soon as they know.
If the comms team allocate the job, the paramedic can then decide whether they will work that overtime. If they think it is unreasonable they need to call their regional manager and tell them why it is unreasonable and that will include “I told you yesterday I had to finish on time today because of …”
If the manager thinks the request is ‘reasonable’ in all the circumstances, and the paramedic does not, then either the paramedic works the overtime, or they refuse to work it. Either way, if it were me, I’d be contacting the union and asking them to raise the matter as an industrial dispute. If the paramedic works, the overtime they want dispute resolution to confirm that it was unreasonable and get directions to assist AV not to make unreasonable requests. And if they refuse to work the overtime they want a resolution saying that decision was justified and not a breach of any employment conditions. Either way it would suit both AV and the staff to get some direction.
The problem is that the resolution of what is ‘reasonable’ depends on the circumstances of each case. The paramedic who has worked 3- or 4-hours overtime for the last three shifts has a different case to the one who is on their first shift after several days off. The paramedic who says ‘it’s not reasonable to ask me to respond to a person with a twisted ankle’ is in a different position to a paramedic who wants to refuse to attend a report of a person shot. Any direction, even from an industrial tribunal, is always going to be general in nature and say that the sort of things to be considered are the things listed in cl 45.
One can certainly see that everyone would benefit from some policy direction on the allocation of tasks in the final 30 or 60 minutes of a shift and what jobs should be held over and what ones must not be delayed and a procedure to facilitate clear communication, but absent that the EA says that the issue is a matter for the ‘relevant manager’ and the paramedic involved.
I agree with the Union’s interpretation that
… an AV employee contacts the Regional Manager under 45.1(d) relevant manager (NOT a comms person) and requests on time to finish due to personal circumstances as early as practicable, as outlined in the above screen shot.
The Regional management team may have ‘pushed back and said that this is a resourcing decision and should be left for the communications team to facilitate’ but that is not what the EA says. I’m a believer that you “should say what you mean; and mean what you say”. The EA says it’s up to the ‘relevant manager’ and the paramedic involved so that is what should happen.
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.