Today’s question is an industrial law issue but it’s relevant to emergency law given the organisation – NSW Ambulance – and the nature of training – rescue. My correspondent says:
Ambulance has mandated compulsory training that rescue Officers must attend a minimum of 6 training days per year or you will lose your accreditation as a rescue Officer.
There is a current work instruction stating that Officers must organise their shift swaps to attend this mandated compulsory training or get approval from management to attend on overtime.
My question is that if this compulsory training has been mandated by the Ambulance Service then is it their responsibility to get me to training? It is difficult to arrange swaps as you have to rely on others and work around or sacrifice your family life. All attempts to attend on overtime are outright refused even though it is available under the work instruction.
What are my employer’s responsibilities, and can they force you to arrange swaps to attend mandatory training given that swaps are very hit-and-miss?
The experts on industrial law are the trade union industrial officers. As this question required specialist knowledge, I took the unusual step of asking someone else – in this case Bree Jacobs, Industrial Officer at the Australian Paramedics Association – one of the sponsors of this blog. Her answer is:
Advice from the APA
The question asked at the core is really an industrial question surrounding the foundation of the employment relationship.
Can NSW Ambulance require me to change my shifts to attend training?
The employer-employee relationship is underpinned by various obligations, rights and duties which come from various sources including employment contracts, polices, procedures, legislation and case law. One particular duty that many Paramedics would be familiar with is the duty to comply with a lawful and reasonable direction. It would seem that the basis on which NSW Ambulance has requested that staff organise ‘shift swaps’ to attend Rescue Training is through such a direction.
Is asking me to organise a shift swap a lawful and reasonable direction?
The foundation of the employment relationship is one in which an employee presents for work at an agreed upon time, performs agreed upon work and in return is remunerated. I have considered this question in the context of the requirement to swap a shift as being a change to rostered hours. As Paramedics work 24 hours a day, 7 days a week not normal business hours, their hours and roster patterns are outlined in the Paramedics and Control Centre Officers (State) Award 2022.
There are two circumstances in which a posted roster may be changed. I will address each individually below.
Exceptional Circumstances
Paramedics hours of work are dictated by a roster which is ‘posted’ at some time in advance of (but no less than 7 days prior to) the start of the roster period. A ‘posted’ roster may only be changed where there are exceptional circumstances AND at least 7 days’ notice is provided to the affected staff (Paramedics and Control Centre Officers (State) Award 2022 cl 22(a) and (b)).
The NSW Ambulance Specialist Training Work Instruction (WI2022-006) which deals with Rescue Training states that:
”The SOU will disseminate an annual training activity calendar no later than 30 November the year prior to ensure planning time. The training calendar will be constructed to offer repeated learning outcomes to enable flexibility.”
If it is the case that a training calendar is published in this way, it is hard to see what exceptional circumstances would exist that would warrant changing of a roster.
Irrespective of the above, it does appear to be the case that it is not the employer that is changing the individual’s roster but rather that they are making a request of the individual to change their own roster.
Mutual Agreement
The only other circumstance where a roster may be changed is by mutual agreement between the parties ((Paramedics and Control Centre Officers (State) Award 2022 cl 22(f)).
Now I am assuming that the person who asked the question is not agreeable to organising a shift swap to undertake the training but is rather being told that that they are required to do so. The factual circumstances here seem to indicate that NSW Ambulance is relying on mutual agreement on the basis that if the individuals do not agree to the change then they will not be able to complete the ‘mandatory’ training.
Summary
Both employers and employees are required to comply with the provisions of Awards. As such, it would be difficult to see how a direction to arrange one’s own shift swap would be a lawful and reasonable direction.
Is NSW Ambulance required to facilitate my attendance at mandatory training?
I will answer this question using a different example.
Section 5 of the Award has this to say about Paramedic:
(iii) Paramedic means an employee who has successfully completed the necessary and relevant training and work experience as determined by the Service to become a Paramedic and who is appointed to an approved Paramedic position. Provided that such an employee shall be required to undertake and successfully complete further instruction/in-service courses necessary for the maintenance of their clinical certificate to practice and the reissue of their clinical certificate to practice every three years.
In the above clause, Ambulance requires Paramedics to undertake certain clinical training (typically referred to as MCPD) at least every three years. In such cases the employer should (and does) facilitate this in accordance with the rostering provisions. To require attendance on rostered days off is unlikely to be a lawful and reasonable direction and would create an entitlement to overtime.
Is rescue training mandatory?
The question posed to me leads us to an additional question that must be considered. That is, whether the training referred to as ‘rescue training’ is mandatory training.
To answer this, we need to consider the regulatory framework.
The State Rescue Board of NSW
The State Rescue Board of NSW was established by the State Emergency and Rescue Management Act 1989 (NSW) (and I am assuming the questioner is a member of a rescue unit accredited by the State Rescue Board of NSW).
According to the State Rescue Board, NSW Ambulance has six accredited Rescue Units, namely:
- Bomaderry (General Land Rescue, Vertical Rescue and In Water Flood Rescue)
- Cowra (General Land Rescue and In Water Flood Rescue)
- Rutherford (General Land Rescue, In Water Flood Rescue and Vertical Rescue (pre-accreditation))
- Singleton (General Land Rescue and In Water Flood Rescue)
- Tamworth (General Land Rescue, Vertical Rescue and In Water Flood Rescue)
- Wagga Wagga (General Land Rescue, Vertical Rescue and In Water Flood Rescue)
A list of accredited rescue units may be found on the NSW Government website here: https://www.nsw.gov.au/emergency/rescue-and-emergency-management/state-rescue-policy
Obligations in relation to rescue for agencies, units and operators
The State Rescue Board Policy says:
7.02 It is the responsibility of each agency which provides accredited rescue units, to ensure that their rescue operators are trained in accordance with the SRB Policy and their skills are kept current.
As you can see an obligation is placed on the agency (in this case NSW Ambulance) to ensure that their rescue operators are trained in line with the stipulated policies and procedures.
There are no guidelines in the policy that stipulate minimum number of annual training days, types of training, currency or frequency requirements. This is left up to the agency (NSW Ambulance in this case) to determine in accordance with the relevant policies, legislative obligations and standards.
What the NSW Ambulance Policies and Procedures say
The Award is silent on the types, frequency and requirements surrounding rescue training so I will move onto consideration of the NSW Ambulance policies and procedures as they relate to rescue training.
I am not aware of the Work Instruction that the questioner references that states that shift swaps need to be used to facilitate attendance at training. There were older iterations of the Work Instruction that include similar provisions around TOIL and shift swaps that were the subject of an industrial dispute brought on by APA (NSW). Those iterations were subsequently amended. The most recent work instruction relating to specialist training for NSW Ambulance that we have sighted is the WI2022-006 Land Based Specialist Training.
I have taken relevant excerpts from the WI and reproduced below:
“Authorised training programs are provided to operational staff to maintain required proficiency levels, that complement recertification and competency based assessments.”
AND
“Specialist paramedics are required to assess and plan their individual training needs in order to maintain baseline proficiencies (typically this involves attendance at no less than 6 training days per calendar year). Attendance requirements should be established with their line manager as early as possible. Wherever possible the PDP process should be used to plan the years training. Short notice release for training (within 7 days) will generally not be supported.“
The WI further states:
“Wherever possible training should be done on shift in early consultation with line management. This is to allow adjustments to rosters for back filling using normal rostering processes such as the use of casuals and part time paramedics.”
AND
“It is acknowledged that at times, it is not always possible for rosters to be adjusted and operational deployments will remain the priority. Should this result in requiring staff to carry out training when not on shift, they are entitled to be paid overtime. Requirement for staff to carry out training when not on shift will only be supported with prior approval of the relevant Associate Director of Clinical Operations in conjunction with the Manager, Special Operations Unit.“
You will note from the above that the Work Instruction states that the preference of NSW Ambulance is that Paramedics complete specialist training on their rostered days on.
The complexity for rescue operators is the requirement to maintain 24/7 coverage to the communities they serve. This means it may not be feasible to be released from rescue rosters to complete training and still maintain coverage to the community. In these circumstances the work instruction states that staff are entitled to be paid overtime when required to undertake training on rostered days off. This is consistent with the Award.
NSW Ambulance is the agency responsible for ensuring adequate training for rescue operators that is also consistent with the Rescue Board’s requirements. Now, the difficulty with the question of whether training is ‘mandatory’ is perhaps the construction of the sentence: “typically this involves attendance at no less than 6 training days per calendar year”. It may be clear to rescue operators their requirements around training each year, but I have not sighted any document that clarifies the exact nature of training requirements – types, duration etc. The construction of the sentence does not in of itself dictate a specific number of mandatory training sessions. The requirement for an individual on my reading could be more, or less than six days. Whether or not this is sufficient and compliant with the requirements is a question I will leave to the experts.
Irrespective of this, there seems to be no contention that there is some amount of training that must be done each year to maintain currency. There is no question that this specific training is mandatory. As stated in the Mandatory Requirements section of the Specialist Operator Scope of Operations, Training, Currency and Authorisation Policy Directive:
Operators must:
“Be trained, current and authorised by NSW Ambulance to practice the suite of specialist skills for which they have been deployed to undertake (i.e. their authorised scope of operations)”
AND
“In the event a specialist operator has not maintained the relevant clinical certification, together with the training, currency and authorisation for their specialist operator role, they cannot continue to operate in that role.”
The Directive goes on to state:
“Failure to meet relevant training, currency and authorisation requirements will be managed according to NSW Ambulance Managing For Improved Performance and/or Behaviour Policy/Procedures (PD2017-024), Managing for Improved Performance and/or Behaviours (PRO2017-028).”
AND
“Compliance is a shared responsibility between NSW Ambulance and individual staff. It is the responsibility of each individual to ensure they comply with the standard required to maintain qualifications and currency for the role(s) in which they are employed.”
This Policy reinforces the regulatory framework which states that the Agency is responsible for ensuring the requirements are met for Rescue Units with obligations placed on rescue operators to also maintain their skills to the requisite standard. If compliance with such requirements is a shared responsibility (which the Directive states it is) then it stands to reason that NSW Ambulance, or its managers have a responsibility to facilitate attendance at training and not simply put the onus on operators to organise attendance at such days. It is also difficult to understand how (or why) operators would be managed through a performance management process when they stand ready and willing to undertake training, according to the questioner, it is the Agency that will not facilitate this.
Conclusion
That is indeed a long answer so to draw out what I think are the APA’s conclusions:
- A direction that paramedics must arrange their own shift swap is not a lawful or reasonable direction.
- The obligation is upon ASNSW to facilitate training either on rostered days on or, if that is not possible, on rostered days off with the employees entitled to be paid at overtime rates.
It is all very well to have those conclusions, and remember they represent an argument rather than a confirmed conclusion. They may be of little help if NSWA has advice that adopts a different interpretation, and service managers insist on directing paramedics to arrange their own shift swap. In that case paramedics would be advised to consult their union (which in NSW may be the APA or the Health Services Union) for assistance and, if necessary escalating, the matter as an industrial dispute to be settled in accordance with industrial law.
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.
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