The Health Services Union is one of two unions representing paramedics employed by NSW Ambulance. (The other is the Australian Paramedics Association, a sponsor of this blog). The HSU is advocating that paramedics should not renew their registration when it becomes due on 30 November 2023.  On the Ambulance Division – Health Services Union facebook page they say ‘If the Treasurer is happy to delay paying for professional recognition, surely he’s okay if paramedics defer paying to be registered right?’  Further details can be found on the union’s web page where there is also a link to a pdf document of Frequently Asked Questions.

One of those questions is ‘Will I be stood down?’  The given answer is (emphasis in original):

Paramedics will be invited to renew their registration before 30 November.

  • Under the National Law, health practitioners have a one-month late period after the registration expiry date (30 November) to renew. If an application is received by AHPRA before the end of December, you will remain registered and able to practice. Your registration expiry date on the register of practitioners will be updated only when processing of your application is complete.
  • An application for renewal in the late period will incur a late fee ($30).

If you are stood down, you will be stood down with thousands of other ADHSU paramedics Imagine the pressure of the community on the government if they were to allow this to happen!

Now I’ve always belonged to the union, wherever I’ve worked, and I support the right of workers to take industrial action to maintain and improve their working conditions. Nothing I’m about to write should be considered as reflecting on the merits of the paramedics’ cause or their right to take industrial action.

I have also said, elsewhere in this blog, that I am not an expert in Industrial law and I would usually defer to a union and in particular their legal and industrial officers (see Arranging a shift swap for training (July 14, 2023)).  What follows has to be read in that context, but with that context it seems to me that the question ‘will I be stood down?’ is the wrong question, the right question is ‘will I be dismissed?’

Discussion

During December

Paramedic registration renewal is due by 30 November. The Health Practitioner Regulation National Law (NSW) s 108(2) says:

If a health practitioner does not apply to renew the practitioner’s registration before the practitioner’s period of registration ends, the registration, including any endorsement of the registration, is taken to continue in force until—

(a)        the end of the day that is one month after the day the period of registration would, apart from this subsection, have ended; or

(b)        if the health practitioner applies for renewal of the registration not later than one month after the practitioner’s period of registration ends, the day referred to in subsection (1)(a) or (b).

Effectively there is a one-month grace period. If the paramedics don’t apply to renew their registration by 30 November, they remain registered until the end of December and can continue to practice and use their title. If they apply to renew within that month then their registration continues until the Board decides to renew or refuse their application (s 108(1)).  

Not renewing by 30 November is symbolic, but it doesn’t affect the ability of those paramedics to work nor the ambulance service to employ them. It will cost the paramedics a late fee if they seek to renew their registration during December.

After December

If they do not renew by 31 December, then a paramedic’s registration lapses. At that point they can no longer use the title ‘paramedic’. The Paramedicine Board and the Union’s FAQs do say that there is a ‘fast track’ option to renew in January but that is an application for registration, not renewal so one would remain unregistered until a decision is made to either grant, or refuse registration.

For the purposes of Paramedics and Control Centre Officers (State) Award 2022 (28 July 2022) a paramedic is:

… 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…

It doesn’t specifically say that the person has to be registered with the Paramedicine Board but I think that can be implied given that only a registered person can use the title ‘paramedic’.  I do not have access to the ‘relevant training’ determined by the service, but I would be surprised if it did not include training that leads to registration.

Given that NSW Ambulance officers wear uniforms with the title ‘paramedic’ and are held out as paramedics I infer that is an essential requirement of the job that they are indeed paramedics as defined by the Health Practitioner Regulation National Law (NSW) and the Paramedicine Board – ie they are registered.

If paramedics allow their registration to lapse, they cease to be paramedics and that, to me, sounds like it would be repudiation of their employment.  In Gelagotis v Esso Australia [2018] FWCFB 6092 at [119] the Full Bench of the Fair Work Commission said:

The test for repudiation is whether the conduct of the employee is such as to convey to a reasonable person, in the position of the employer, renunciation either of the contract as a whole or of a fundamental obligation under it. The issue turns upon objective acts and omissions and not on uncommunicated intention.

If an employee is required to be registered to hold their employment and wilfully refuses to renew their registration, then that would suggest that they are no longer willing and able to meet an essential requirement of their job – it is renunciation of their employment as a paramedic because, from that moment, they are not a paramedic.  It would be similar if a person employed as a driver refusing to renew their driver’s licence; they can no longer do the very job they are employed to do.  Just because the intention is to return to work when the dispute is resolved does not change the outcome where the test turns on ‘objective acts and omissions and not on uncommunicated intention’.

Holding Redlich, lawyers, say in an online article ‘Repudiation of an employment contract: Overview and basic principles’:

Repudiation allows the aggrieved party to terminate the Contract if they wish and that desire must be communicated to the offending party for the repudiation to be effective…

[R]epudiation by an employee gives the employer the right to summarily dismiss the employee if it can be shown that the conduct is sufficiently serious that, to the reasonable observer, the employer should no longer be bound by the Contract.

Given that I infer a person cannot be employed and work as a paramedic unless they are indeed registered a as a paramedic, the ambulance service would have grounds to dismiss anyone who let their registration lapse on 1 January 2024.There is no guarantee that if they then renew their registration that they will have a job to go to. 

The HSU says:

… every day during December, the government will be closer to having their paramedic workforce legally unable to respond. Post Jan 1, ADHSU paramedics will continue to front to work in uniform ready to respond, only to be locked out by the employer. Community pressure on the government will be immense.

Post January 1 ADHSU members who have not renewed their registration will no longer be paramedics, so it would be a misnomer to describe anyone who is not registered by 1 January as an ‘ADHSU paramedic’. Further those members will not be entitled to wear a uniform that suggests that they are paramedics (Health Practitioner Regulation National Law (NSW) s 113).  To say they will be ‘ready to respond’ is inconsistent with the acknowledged fact that if they are not registered, they are not legally able to respond, at least not in circumstances that suggest they are paramedics.

The HSU is betting that NSW Ambulance will bow to pressure to keep ambulances on the road, but they may call the HSU’s bluff, dismiss a large part of their workforce and then be able to offer jobs back on different working conditions.  If the paramedics have to come ‘cap in hand’ asking for their job back, it will weaken any future bargaining position. It is a big gamble as individual paramedics, rather than the HSU, have a lot to lose.

Conclusion

If paramedics don’t renew in November but do in December, then it seems the only real implication is that their registration will cost more.  If they do not renew their registration in December, they may face consequences more severe than being ‘stood down’ they may be dismissed on the basis they can no longer meet the requirements for their job. It’s a big gamble by the HSU that the government will bow to pressure rather than see it as a chance to get rid of some of the more troublesome employees.

As noted above however, I am not an expert in industrial law and the HSU lawyers may have a different take on the legal situation, but it is not explained in the FAQs. The FAQs ask ‘Will I be stood down?’.  I think a more important question, that if I was a member of the HSU I would want answered, is ‘Will I be dismissed?’

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.