News

Since our last industrial/legal update we have been busy continuing to represent members in relation to a range of different types of matters. The purpose of this bulletin is to provide you with a quick update about these matters, to give you some insight into the type of work we do on a day-to-day basis and to keep you in the loop about matters affecting the industry, including what steps we took to fix these issues as they arise.

Our job is to advise members and advocate on their behalf in a way/using a legal strategy which protects the member’s best interests. Matters may take anywhere from 3-9 months to resolve, sometimes longer depending on the case. Our legal & industrial team provide advice and assistance throughout this entire time and ensure that the member is well-supported during this process.

Disciplinary Matters

Since July 2019, we have represented 86 individual members in disciplinary matters across the non-emergency patient transport (NEPT) sector and AV including for cases involving:

• delayed responses to cases;
• workplace conflict;
• inappropriate allowance claims;
• driving infringements;
• social media breaches;
• medication management issues; and
• other code of conduct matters.

Out of this group of members, 38 were issued with formal warnings. However, 15 members who were issued with formal warnings had their warnings removed following advocacy by the VAU because we were able to demonstrate with sufficient evidence that the warnings issued in those cases were unreasonable or harsh.

The VAU has also assisted approximately 28 members who have been issued with serious misconduct allegations following investigations by AV’s Professional Conduct Unit (PCU). Examples of what constitutes serious misconduct includes alleged bullying and harassment or sexual harassment, criminal matters outside of work, refusal to follow a lawful and reasonable direction, breaching patient confidentiality, assaulting a patient or alleged drug theft or drug use in the workplace. No member that the VAU has represented before the PCU in relation to serious misconduct matters have had their employment terminated from AV.

Ambulance Victoria – Disciplinary/Investigative Body

PCU review

Since the PCU was formed, the Executive members of the VAU (Danny & Olga) have been advocating for improvements in both the way investigations are conducted by the PCU and the way members treated by the PCU. In the four years the PCU have been operating, we have witnessed firsthand the serious deficiencies with the PCU’s investigation processes and the inappropriate way it treats members.

In 2019, AV engaged a third-party independent consultant to review the PCU and its operation. Our lawyer, Alessandra Moussa and Industrial Officer, Alana Lazdins were consulted during this review. During this process, we provided robust and critical feedback about the failings of the PCU and necessary improvements required to be made to ensure that our members are afforded procedural fairness and natural justice whenever they interact with the PCU during both informal and formal investigations. This included, for example, querying the amount of resources being given by AV to the PCU to conduct their work in a timely and efficient manner and to the standard required to ensure a fair/transparent process. Our concerns were acknowledged, with comments being made by the reviewer to the effect that AV itself recognised that the PCU was not equipped to deal with the complex investigations it was charged to undertake.

In addition to participating in the PCU review we continue to take every opportunity to hold the PCU accountable in the course of providing members with assistance by disputing warnings where possible and assisting members through every step of the disciplinary process, including calling out AV where procedural breaches have occurred.

Proposed AV 2019 Enterprise Agreement – Disciplinary clause

Because we understood that we could not wait or rely on AV to fix the deficiencies with the PCU, to ensure that PCU investigators and AV are held to account and follow proper process when it comes to performance management or disciplinary processes, the VAU developed and drafted the terms of the new disciplinary clause which will feature in the new AV enterprise agreement.

This new clause will make sure that if members are ever subjected to a performance management process, or investigated because of alleged misconduct in the workplace, they will be treated appropriately at each step of the way. In addition, you will have the clear right to challenge the reasonableness of a decision to issue you with warnings under the new dispute resolution procedure in the enterprise agreement.

For updates about the proposed AV 2019 Enterprise Agreement, see further below.

Other Industrial Matters

Grievances & Dispute

We have assisted over 100 members in workplace grievances and matters related to the terms and conditions of their employment. This includes:

• 15 collective disputes across AV and NEPT;
• 13 individual underpayment issues within the NEPT industry (see further below);
• Assisting with individual queries and grievances relating to terms and conditions of employment including:
  • accessing flexible working arrangements;
  • issues affecting graduate paramedics;
  • occupational health and safety issues;
  • transitioning to retirement;
  • pay issues;
  • Australian Health Practitioner Regulation Agency matters including issues related to registration;
  • casual conversion; and
  • issues with AV’s recruitment and promotion process, including the use of psychometric testing.

Trends in the nature of grievances lodged by AV members

The VAU have observed some key trends developing in the nature of the grievances lodged by members employed by AV.

Notably, we have seen an increase in the number of grievances related to applying for FWA’s, requests for permanent allocations and transfers (because transfer lists are stagnant and AV aren’t complying with their own policies) WorkCover matters connected to fitness for duty assessments and issues relating to recruitment and promotion. We have also dealt with issues raised by members in communication centres about rosters, workload and work practices.

While workplace grievances are commonplace, the consistency in the nature of grievances being lodged by members suggests that AV are not adopting fair or consistent approaches in dealing with these matters.

Resolution of these issues with the view to addressing systemic failings in process and procedure are ongoing and feature as regular VAU agenda items in our consultative committee meetings with AV, which are held bi-monthly.

SRC 10 Hour Roster Dispute

Members will recall that a dispute regarding working 10 Hour Rosters was pursued by all 6 SRC teams in 2019, following the dispute filed by Donnybrook & Mernda Branches blocking the introduction of the 10 Hour Roster at their branches. These SRC’s were subsequently placed on interim blended rosters at the end of 2019 following the filing of their disputes in the FWC.

The VAU are pleased to report that AV have confirmed that the SRC’s will not be returning to 10 Hour Rosters, with the development of final rosters subject to the finalisation of the People Based Rostering Project Team’s work reviewing and reforming the existing rostering guidelines/principles in place at AV. AV will shortly be commencing broader workforce consultation about roster principle/guideline changes and all members are encouraged to participate in this process.

The VAU congratulate all members on this collective win!

The VAU would remind all members in the NEPT sector to check their payslip to ensure that you are being paid correctly and consistent with your relevant agreement/Award provisions. If you are unsure or believe that you are not, then you should contact the VAU via [email protected].

Safety Awareness in the NEPT sector

Since our NEPT organisers Bruce and Kerry McLean have come on board with the VAU they have audited over 60 vehicles on the road within the NEPT industry to bring awareness to members about the importance of reporting safety concerns with the same. These audits have revealed:

• unroadworthy vehicles being used by various NEPT employers;
• unrestrained and inadequately restrained equipment in vehicles creating safety risks for employees; and
• a lack of appropriate ergonomic seating within vehicles likely to create long term injury risks for employees.

The VAU will be writing to the relevant NEPT employers about the issues identified to ensure that steps are taken to rectify these issues as a matter of urgency.

Bruce & Kerry have also recently met with National Patient Transport Pty Ltd (NPT) & WorkSafe to vary the number of HSR’s applying to designated workgroups (DWG) within NPT. Following the conclusion of these negotiations, nominations for HSR positions within this DWG are now open and closing soon. Interested NPT members should submit their expressions of interests directly to NPT and notify their colleagues about their nominations.

NPT Paid Meal Break Dispute

The VAU are progressing with the NPT paid meal break dispute in the FWC. Members will be kept informed as this dispute progresses.

Non-employment related legal matters

Since partnering with Gordon Legal, we have referred 42 members for legal advice or assistance in relation to the following matters:

• family law;
• WorkCover;
• will matters;
• discrimination;
• sexual harassment;
• criminal law matters;
• property law matters;
• AHPRA related matters;
• medical negligence;
• commercial law; and
• traffic infringements.

Members who need a referral for non-employment related legal advice are encouraged to email [email protected] for a referral.

Industry-wide issues and advocacy

NEPT Act Review

The VAU were recently consulted by the Department of Health and Human Services (DHHS) regarding the review of the Non-Emergency Patient Transport (NEPT) Act 2003 (Act). Currently, the purpose of this Act is to establish and manage a licensing scheme for private providers. It is not designed to ensure proper patient care or regulate NEPT providers to ensure that they follow the regulations.

As part of its review of the Act, DHHS have proposed that the purpose of the Act be re-written to provide for stronger regulation within the NEPT industry in terms of clinical oversight and practice, and empower the relevant statutory body to monitor, enforce and penalise NEPT providers for breaching the Act and Regulations.

The VAU provided a written submission in support of this position, calling for the Act to be re-formed to account for oversight and regulation of the NEPT industry.

We will keep members informed in relation to any changes that are made to this Act and what it will mean for members employed by NEPT providers.

COVID-19 – Support and workplace practice changes

Since the pandemic began, the VAU have received hundreds of calls, messages and emails about COVID-19 from members.

Members have been genuinely concerned about the pandemic and there has been a lot of confusion about personal protective equipment (PPE) and COVID-19 procedures.

Unfortunately, this confusion has led to several members seeking support after being threatened with disciplinary action. None of the members the VAU has represented in this situation were subject to disciplinary action.

Industry lobbying and assistance

The VAU have been in daily contact with AV, ESTA, DHHS and the Victorian Government and have advocated for and delivered outcomes including:

• paid special leave where employees are required to self-isolate;
• hotel accommodation for isolating health workers;
• priority testing for health workers;
• banning double loading;
• decent meal break facilities for NEPT crews;
• shower facilities for NEPT crews;
• tympanic thermometers for NEPT crews;
• alternative duties for immunocompromised and pregnant members;
• retaining Tyvek suits;
• full PPE for all crew members attending cardiac arrest cases;
• removing cleaning chemicals that cause chlorine gas;
• ascertaining delayed COVID19 test results; and
• temperature testing of employees for a high temperature on arrival at ESTA.

The VAU is included in weekly Victorian Government health sector COVID-19 union briefings where we have raised many of the issues listed above. We are also on the Government’s PPE taskforce where we have been able to raise issues regarding access to PPE on a regular basis.

As previously mentioned in earlier bulletins, the VAU is currently advocating Government for improvements to the WorkCover claims process for health workers who test positive to COVID-19 by declaring COVID-19 an occupational disease. To date, we are the only union that has asked for this improvement for all health care workers. We will provide an update about this matter as soon as there are any developments.

Modern Award Review – Paid Pandemic Leave Entitlement

The VAU is an active participant in the modern award review process where the FWC is currently considering changes to Health Sector Industry Awards, including the Ambulance Patient Transport Industry Award 2020 (Award) to provide for a paid pandemic leave entitlement for employees who may be required to self-isolate as a consequence of being exposed to COVID-19, or required to take leave following contracting COVID-19.

The VAU filed an application on behalf of our member and employee of St Johns Ambulance, Alan Stokes seeking to vary the Award to provide these paid leave entitlements. We will keep members informed as this application progresses, with the hearing scheduled in the FWC at the end of June 2020.

Separately the VAU also supported the introduction by the FWC of an unpaid pandemic leave entitlement in the Award and the ability to take annual leave at half pay (see Schedule X to the Award). Members whose employment is regulated by the Award can now access these entitlements.

Enterprise Bargaining

Ambulance Victoria

Since reaching an in-principle agreement with AV in March 2020, the VAU have been working on finalising the terms of the enterprise agreement. This process by its nature takes time to complete and has involved 12 weeks of discussions with AV to agree on the terms to give effect to the agreed changes.

We are currently in final stages of drafting, having reviewed the draft agreement and submitted 22 pages of necessary changes to AV for them to adopt in the agreement. The final agreement will be circulated to members in the coming weeks.

We are also party to the AV Administrative and Management Staff Agreement. This agreement is likely to be rolled over for 12 months with a one-off 2.5% increase to wages for all members. Further updates will be provided soon about this agreement.

Royal Flying Doctor Service

Despite almost reaching final agreement with Royal Flying Doctors Service (RFDS) in January 2020, RFDS have reneged on agreed terms and withdrawn their previous offer relating to wages. They are now trying to bring in a two-tiered wage system which would see new employees paid far less than current employees. They have also removed multiple conditions and reference to the underlying Award as part of their last offer. This would leave employees in a far worse position than they currently are under the existing agreement.

The VAU recently lodged a bargaining dispute application in the Fair Work Commission (FWC) along with the ANMF to resolve these issues. A further two meetings have been arranged to take place in the FWC over the coming months.

In the event we are unable to reach agreement with RFDS, we will likely make an application to hold a protected industrial action ballot to take protected industrial action. Members are encouraged to nominate the VAU as their bargaining representative and send this notice to RFDS. Details about the process of nominating the VAU were shared in a bulletin to RFDS members on 12 May 2020.

Health Select

Despite applications in the FWC over Christmas and subsequent bargaining meetings with Health Select, the VAU are still in the process of negotiating a new agreement on behalf of Health Select members. Health Select have tried to terminate bargaining by withdrawing from bargaining unilaterally.

The VAU will be shortly be seeking bargaining orders from the Fair Work Commission to direct Health Select back to the bargaining table so we can deliver a new agreement for employees that does not leave employees worse off than they would be under the Award. Health Select members will be kept informed about this application as it progresses before the FWC.

Completed bargaining negotiations

Bargaining with NPT and ESTA concluded in mid-late 2019. Both agreements were subsequently approved by the FWC, with the NPT agreement being approved in August 2019 and the ESTA agreement being approved in April 2020.

Other association specific legal matters

Last year the VAU prepared and lodged a trademark application to register/protect the Victorian Ambulance Union logos which have become identifiable with our union (the logo using the VAU acronym and the using our full name, Victorian Ambulance Union). While we were successful with registering the VAU trademark, United Workers Union (UWU) (formerly United Voice) have opposed the registration of our logo using our name, Victorian Ambulance Union. The VAU will be defending our application and we will keep members updated as this matter unfolds.

Separately, we were successful in disputing the “cyber-squatting” of the VAU domain names victorianambulanceunion.org.au, victorianambulanceunion.com.au and victorianambulanceunion.net.au by UWU. Members will recall that these and other domain names using the term ‘Victorian Ambulance Union’ were registered by UWU and their lawyers, Hall Payne Lawyers only days after our formation and the publication of our organisation’s name in June 2019. The decision-maker in this case who determined our application was highly critical of UWU and their lawyer’s conduct and ordered the names to be transferred to the VAU.

Unfortunately, we were not successful in obtaining other domain names (victorianambulanceunion.com, victorianambulanceunion .net and victorianambulanceunion.au) with the decision-making panel deciding 2-1 against us in this case. Despite being unsuccessful with our initial application, the Panel left the door open for re-applying to the panel for a further determination depending on how our trademark application process eventuates.

Delegate Workplace/Industrial Training

The VAU are in the process of arranging for workplace/industrial delegate training for our delegates. We will keep delegates informed about the intended date of this training.

We will continue to provide you with updates about all matters raised in this bulletin as they progress. In the meantime, please contact us if you have any questions.

In Solidarity,