Today’s question relates to sleeping facilities for paramedics with NSW Ambulance. I’m told that NSW Ambulance have been upgrading facilities but I’m asked:
… why [are] new Ambulance stations are not permitted to have Bunks or bedding? In early meetings a Superintendent stated that under our award we have the right to recline, not to lay supine, to which the service purchased cheap uncomfortable lounges and recliners. We have been told time and time again that the reason we cannot have them is due to “WHS” and “the Building Code”. This was raised again in a recent station meeting and those vague answers were what we received.
Now, is this correct that the law prevents us from having beds/bunks be they permanent or temporary? If so, does NSW Ambulance have an obligation to build infrastructure with rest in mind, given the high risk of our role and fatigue management? … [I]f we are permitted to recline (per the award), mitigate risk due to fatigue (potentially due to a job(s)) does the Ambulance service not have a need, onus or at least duty of care to provide an appropriate building which facilitates such amenities?
Where do we stand and what Act or regulations does this (what appears to be poor) decision making fall under; and is there any appellant grounds?
The Work Health and Safety Act does not say that paramedics, or anyone cannot have beds. The WHS scheme does not get into that sort of detail. What the Act says is that that a Person Conducting a Business or Undertaking (a PCBU) must assess and manage risks. If the Ambulance Service thinks it’s a WHS issue, then they must think there is a risk that they are addressing. Some examples I can imagine might be a fear that people are vulnerable, whilst asleep, to the malicious or sleepwalking attention of others; or that staff who go to bed may be too hard to wake in an emergency, so it’s better not to let staff sleep. I’m not saying those are the risks or that denying beds but allowing recliner lounges is a reasonable response; the point is that if it’s a WHS issue then there must be an identified risk and some reasoning to say this is the best response. Unless you know what the WHS risk is that they think they are addressing, you cannot form a view as to whether the response to that risk is an appropriate response.
I can imagine there’s a building code issue if there are standards for bedrooms and the ambulance stations do not meet them, but I cannot access the building code and don’t know what the implications would be if that were true (but note the comments below, written after this post was originally published with links to the Building Code). I note that when I lived in Canberra and was able to inspect a new ACT Ambulance station (as part of their opening ceremonies), they had put single bedrooms, sufficient for their expected crew levels, in their new ambulance stations so it appears it is not an insurmountable issue.
Fatigue management is of course a WHS issue and a very difficult one to manage. The Ambulance Service does have to assess the risks posed by fatigue and come up with ways to minimise that risk. Presumably because ambulance services have to be available 24/7 it is not a risk that can be reduced to zero, but it is a risk that needs to be considered. Providing facilities to sleep when not required to perform other duties is one way to manage that risk but it does not follow that it is the only way. When responding to a risk the PCBU has to come up with a solution that considers (Work Health and Safety Act 2011 (NSW) s 18):
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about–
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
The best way to challenge these sort of decisions, if you think it’s a WHS issue is to take it up with your industrial union or raise it with an Health and Safety Representative who can, if they feel it appropriate, raise it with SafeWork NSW for a determination (Work Health and Safety Act 2011 (NSW) s 68; see also FRNSW Health and Safety representative does not need employer’s permission to do their work (July 2, 2024)).
This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.
This blog is a general discussion of legal principles only. It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.
Australian Emergency Law 
I suspect that the NSW Health Infrastructure Facilities Guidelines have documented a position regarding this. This is based on prior experience in this area; I do not have access to these to make an informed comment. I note that on-call facilities are available in acute facilities for doctors. I note that similar 24/7 facilities in NSWA also do not have access to sleeping facilities.
That’s probably true, but the interesting question is why is their position not to provide beds. Someone somewhere has to have thought it was not a good idea but why?
Offtopic: Since 2015 after being locked up as a paid item the National Construction Code (building code) was made free as it should be. Better still since 2022 it no longer requires registration. It just remains for Australian Standards referenced in law to be made free, as its a bit silly to have things you are supposed to obey (the law) behind a paywall. Thank goodness for Ausltii.
Hi Michael
I hope you are well. We still enjoy reading and sharing your blog!
I note below you said you “cannot access the building code”.
You should go to https://ncc.abcb.gov.au/editions-national-construction-code
Mind you, the building code is somewhat arcane and frankly can be hard work to find out what features a building should or shouldn’t have. Another curiosity is some jurisdictions, e.g. Tasmania, may apply the code in force at the time the design is undertaken rather than at the time of building. Thankfully we employ three very experienced building surveyors to take the lead on such matters.
Season’s Greetings!
Mark Chladil
Fire Management Planning Officer
Tasmania Fire Service
GPO Box 1526
HOBART TAS 7000
Australia
mobile: 0419-348-485
I live and work on unceded Aboriginal land
Hi Michael,
As always, very interesting reading. What a ridiculous situation. Given the issues with fatigue management & night shift that this is even being debated is nuts.
Here are 4 pages extracted from AV’s branch design guidelines for a contemporary branch. Thought you might find it interesting the disparity between branch conditions north & south of the Murray. There’s no way a branch would be built in Victoria without beds. The last branch I worked in without beds was Shepparton which when I started we dragged mattresses out of a storage cupboard to sleep on the lounge floor (in front of the recliners) and the bedrooms were implemented maybe 2 years after I started as an OH&S solution to manhandling mattresses daily. The need for the mattresses wasn’t in question, just whether they needed to be in situ. That was in 1999. There’s been bedrooms in every branch in Vic that operates 24/7 since, and even on-call locations with no nightshift (eg Orbost & Paynesville built recently) or some ACO locations such as Omeo have bedrooms just in case they are needed ad hoc or regularly in future.
Feel free to deidentify your source & pass this information back to your correspondent.
Cheers & thanks for the interesting reading in 2024. Merry Christmas & look forward to more in 2025.
Check NSW Fire & Rescue arrangements.
Can you please get the jurisdictional NAMES of the regulator right.
In NSW the regulator is SAFE WORK NSW.
Worksafe is Victorian.
Re – the service purchased cheap uncomfortable lounges and recliners. – NSWA HSRs & Ambulance-employed WHS Officers: 1 should have been consulted on the equipment being purchased, and 2. allowed / requested for a potential pre-purchase equipment trial (of recliners vs beds) be done to determine suitability BEFORE changes to the workplace and new furniture was purchased.
We have been told time and time again that the reason we cannot have them is due to “WHS” and “the Building Code”.
Ask them to provide a written reply highlighting both the clauses of the WHS Act/ Reg AND the Clauses of the NSW building code they used to review / make the decision taken
and if they refuse, let them know that you will be contacting SAFE WORK NSW for a Request for service (RFS) /inspectorate visit. &/or have your workgroup HSR (who is a part of the relevant stations staffing) issue a PIN &/or your union rep turn up to this meeting where the information will be given/ raised. HSRs can LEGALLY (using WHS Legislation) when voted in by their workgroup, act for their members on WHS issues affecting their health and safety.
“the law prevents us from having beds/bunks be they permanent or temporary? ” – RUBBISH
THE NSW WHS ACT & REG require a risk management approach be taken to solve workplace issues where a possible H&S concern exists. When assessing a hazard and its risks, Ambulance must use the “top level” Ministry of Health policies (WHS, risk management, incident notification, Emergency Mgmt etc) & follow the ISO standard on risk management – ie using the hierarchy of control. The first step mind you, is elimination of the hazard – and if that is not reasonable (passing a “pub test”) – then there are 5 following steps to minimise the hazard and its risks to the lowest “level/ risk tolerance” possible. Enginered solutions must be used before admin(ie training) or PPE controls are used.
The building codes are interesting – many old stations have been sold off and the areas stations converted into SUPER (merged) stations e.g Summer Hill station was sold and is now student housing. That stations staff got merged with Drummoyne and other Inner West Amb stations – its a new-ish buil;ding located on Parra Rd and Ramsay sts in Haberfield (as the suburb boundary is over the Rd).
The building should be up to the standards of the code in place WHEN IT WAS BUILT (unless there is a reno) – Ambulance’s building infrastructure team had to ensure that in the past. Amb buildings are unlikely to have sleeping facilities – especially at these new amalgamated stations.
Is it a risk ? _find out what the business case for moving “the business” and staff was; and if the involved staff doing the proposal write up include WHS – update of equipment – and then even mentioned fatigue risk….. I doubt it
I dont think any real valid H&R assessment has been done by any WHS professional employed by ANSW – unless it was for a Inspector visit.. NSWA-employed WHS staff existed in Metro, and the regions in the past ie 2010-2017ish – but not sure if WHS-specific qualified staff are still employed (ie hold a Masters in WHS or minimum Cert 4 is WHS, or are a member of the professional association(AIHS) – NOT A GENERALIST HR person doing WHS tasks.
AND this involves actually getting information from NSWA on chosen furniture specs etc, -if the procurement was via HealthShare….. DOUBT you will ever get that information, unless you GIPA it.
What I will say, is that if NSWA hierarchy HAVE be prosecuted in the NSW courts for failing to ensure the H&S of staff . Any future failing raised in this forum could impose MUCH harsher personal & business penalties (it would be considered a second offence)
The old WHS prosecution related to a key issue – NSWA we found to have had HR bullying and harassment, and med / drug use and storage info & investigation botched by IR (now classed within Psych Hazards, and with a code of practice to use as the base minimum of work, direction and support needed). The first ANSW prosecution was a result of a Paramedic “questioned” without any support person present . Then we re then so traumatised at the eventual incorrect ramifications of the drug investigation outcome (NEVER PROVEN that drugs were abused by the staff member – that HR said had) – they took their own life (Steve RIP). This sad outcome is reasonable to predict e,g by anyone in a pub (aka the pub test).
At the WHS trial, brought by SWNSW (not the union); ANSW Industrial / HR staff (who should have known better) were found to have incorrectly used – and abused- the policy, processes and procedural fairness owed as a duty of care to said paramedic while being investigated.
NOT ONE SINGLE MANAGER, Director or CE involved WAS DEMOTED – yet a magistrate, identified a cultural failure to conduct investigations without bias (specifically misconduct). THE magistrate ALSO noted ANSW Directors/ senior mgrs with Due diligence responsibilities – failed in their duties – within the code of conduct and policy requirements of fairness and impartiality.
I suspect if it was tried today, vs years ago – It would fall into the NSW Cat 1 Industrial manslaughter law provisions (there was a death) – and there would be greater action taken and penalties issued.
So am i surprised at your raising of this issue – managers & Directors and even the CEs inability to provide the factual evidence to staff – of the decision making process & chosen furniture data & “benefits” vs the non consulted procurement ie to have recliners vs actual beds to rest of recline in. This is a breach of the HSR consultation requirements – and given HR have already caused 1 death – you would hope they would be hyper-vigilant around bad decisions in any aspect of Ambulance staff work.
The managers are like many others private sector workers – who use a veiled, generalised “WHS” answer – to stop questions being asked around poor decision-making.
But where are your workgroup HSRs – and Union delegates / industrial officers on this also ?????. This is their fight – as they have the “UNTESTED” legal protection – to request and obtain the relevant information used to make the decisions ie of not providing beds vs recliners.
Best of luck
I have two responses to this comment:
1) “Can you please get the jurisdictional NAMES of the regulator right. In NSW the regulator is SAFE WORK NSW”. Noted and corrected; thank you.
2) The prosecution of NSW Ambulance under WHS laws not about the investigation into alleged drug theft by a paramedic who later took his own life. It was about how the ambulance service managed access to scheduled drugs see NSW Ambulance fined for breach of Work Health and Safety legislation (May 3, 2023). In that post I say:
The reasoning for this decision in NSW seems to me to be somewhat haphazard. I understand the need of the employer not to allow employees to ‘sleep’ on duty but to ‘recline with their eyes closed’ as this stops unions from insisting on an allowance if the employee is awakened. However, to superimpose the word supine is odd. It simply means lying or reclining face upwards.
As for the idea that perhaps there is some WHS rationale for this is, I think, undermined by the on-call system that is so widely used. The on-call ambulance officer goes to bed, to sleep prone, supine, in a lateral or any position of choice. They are then woken up with a telephone call and tasked with a case. How does the WHS risk assessment for this form of operating vary from an officer reclining with their eyes closed in a station?
Obviously, I am missing something here.