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.

POSTSCRIPT

After writing this post I received an email from someone who said:

I am not responsible for any IR matters or HR matters, so I am not directly involved in this in NSWA.

I am however involved in determining the ICP scope. The current strategy is that we have identified and fund ICP ambulances (about 10% out of our circa 1100 vehicle fleet). Moving forward these vehicles will have ICP equipment that other vehicles do not (i.e. syringe drivers, ventilators, ultrasound, etc.) as the business cases for these expansions are based on the funded model of care. Also, eventually these locations will have rosters that have dedicated specialist training time, etc. If an ICP is not appointed to these locations, working this roster and participating in this training they will not have the future ICP scope of practice and equipment and they will not be asked to do ICP work by control. This is the friction point between current state and future state that we are in.

With that in mind, would your conclusions/views change? Is an organisation required to pay someone for a role they are not working in when that role changes over time?

I guess the analogy would be a specialist doctor (emergency, ICU, surgeon). When working at the large metro hospital they are paid to be in that specialist role, use all their scope, etc. yet if they elect to take a locum stint at a country hospital, they are not expected to forget their knowledge, but the system may not pay them as a specialist either. 

In answer this question I’m going to give a personal opinion not a legal one. I’m not an HR expert so if don’t know if the organisation is ‘required’ to pay someone for that role, any more than I know whether NSWAS is ‘required’ to pay its ICP paramedics. In the case the subject of this post NSWAS agreed to pay current casual ICP paramedics at the ICP rate regardless of the roster and the Commission refused to give any directions on how the award should be interpreted in the future. 

Do I think NSWAS should pay the ICP rate, yes I do, but I note that the facts in the case and the facts given above are different. The evidence in the case discussed above was:

… 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…

On infers that unlike the ‘specialist doctor’ in the analogy given, the paramedics here are not electing to take a non-ICP job. They don’t know what car they are allocated to until they get there and when they clock on it is noted they are an ICP and will be tasked accordingly. They are going to work as an ICP, the fact there is no ICP car for them does not reflect the work they are willing and available to do.

That is different to a situation where the casual shift is designated as ICP or not, and where they will ‘not be asked to do ICP work by control’.   My personal view – not a legal opinion – is even in these alternative facts, the idea that an ICP will not be identified at such and not ‘asked to ICP work’ is terrible. If there’s an ICP on the car the ambulance service benefits by having a person with that skill available and the community benefits by having an ICP available. If the paramedics and the ambulance service want to provide the best, patient centred care, then you acknowledge that perhaps by luck rather than management there is an ICP available. If a patient would benefit from an ICPs skills and knowledge, even if they don’t have all the equipment, to not send them because they are not ‘rostered’ and to avoid paying them is to short-change the patient and the NSW community.  If the person is an ICP they may make a better diagnosis, and if they are backed up by a rostered ICP crew then they become an extra ICP on the scene for the better delivery of service to the patient.

I also don’t think the analogy works, as NSW Ambulance is the sole employer. If a doctor works at one hospital but takes a shift at another then even if they all come under the umbrella of the health service, there are different employers (local health districts etc). I think a better analogy is the specialist doctor filling a gap in the hospital where they normally work. They may be a specialist intensivist working in a general ward but I would hope that if a patient needed the doctor’s knowledge and skill, whether in that ward or in the ICU that doctor could be called upon and would be expected to provide care to the patients to the best of their skills and knowledge – not that they would not be called upon because today we’re paying you at a lower rate.  That doctor is an employee of that hospital, at work at that hospital, the fact that the employer is directing or asking them to work in an area where their skill set is not expected doesn’t change their employment status and they should, in my view, be paid accordingly.

I also think, at some point, it becomes professionally embarrassing. Take for example a person dual registered as an RN and an EN. If they are offered a shift as an EN, to be paid at the lower rate and not exercise the skills of an RN, then I think at some point they should say ‘no’.  As an RN they need to provide skill and care to their patient, they cannot forget what they know and if there is something that they can do that would make a difference to the patient’s outcome (and I’m really talking about urgent circumstances and a life changing difference) then an RN, or a doctor, or a paramedic, should not let themselves be put in a situation where they are expected not to provide that care.  Equally, an ICP paramedic who agrees to take a shift with another employer, eg a private event health service provider, but is told ‘we’re only employing you as a first aider/medic, we don’t expect you, or want you, to act within an ICP scope of practice’ should seriously consider whether they can take that shift.   That do not want to be in a position where they are asked expected to provide sub-optimal treatment to a patient, even if it would be the best that a lower qualified/less experienced person would provide.

And a health employer should celebrate that ‘although this is usually an EN/non-ICP shift, today we can provide better service because today it’s an RN/ICP filling the role because we needed someone, and they agreed to step in …’

To return to the discussion, if the employer is NSW Ambulance and the employee is an NSW Ambulance ICP I think they should get paid for their knowledge and experience not for what equipment is in the ambulance.  And if that means NSW Ambulance doesn’t fill shifts it has to account, politically, for that.  I don’t think the argument ‘it was not an ICP shift, the only staff member available to fill it was an ICP, so we didn’t fill it because we’d rather leave it unfilled rather than pay our staff member their normal salary’ is unlikely to pass the ‘pub test’ (at least not at my pub).

That I think they should be paid, does not of course answer the legal question of whether the employer is required to pay them.  As to that question, until there is a ruling by the Industrial Relations Commission, I don’t have an answer.

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.