1
Fair Work Act 2009
s.604—Appeal of decisions
Ambulance Victoria
v
Matthew Richardson
(C2024/3960)
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT HAMPTON
COMMISSIONER WILSON
MELBOURNE, 25 SEPTEMBER 2024
Appeal against decision [2024] FWC 1313 of Commissioner Connolly at Melbourne on
27 May 2024 in matter number C2024/619.
Background
[1] Ambulance Victoria has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth)
(Act), for which permission is required, against a decision1 of Commissioner Connolly
delivered on 27 May 2024 (Decision). Mr Matthew Richardson (the Respondent in this
appeal) had lodged an application against Ambulance Victoria under s.739 of the Act for the
Fair Work Commission (the Commission) to deal with a dispute arising from the Ambulance
Victoria Enterprise Agreement 2020 (the Agreement).
[2] Ambulance Victoria provides emergency and non-emergency ambulance services.
Mr Richardson was first employed by Ambulance Victoria as a Student Paramedic on
24 July 2006. Since then, Ambulance Victoria has employed Mr Richardson in several
positions, including as a Mobile Intensive Care Ambulance (MICA) Paramedic and a MICA
Paramedic Single Responder. At the time the Decision was issued, the parties accepted that
Mr Richardson was employed as a MICA Paramedic and MICA Paramedic Single Responder
under the Agreement during the dates relevant to this dispute.
[3] We will return to this aspect but observe that the evidence before the Commissioner was
that Mr Richardson was employed, after undertaking other roles, as a MICA Paramedic and
was subsequently endorsed to be a MICA Paramedic Single Responder.2
[4] After receiving a complaint made against Mr Richardson from one of its other
employees, Ambulance Victoria advised Mr Richardson through correspondence that he would
be required to undertake alternative duties while an external investigation into a complaint
against him was being conducted. This correspondence stated that it was in everyone’s “best
interest” for Mr Richardson to undertake alternative duties from 21 September 2023.
Mr Richardson did not agree to performing these alternative duties, which were largely
[2024] FWCFB 366
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc1313.pdf
[2024] FWCFB 366
2
administrative in nature and prevented him from performing his principal duties as a MICA
Paramedic on road.
[5] The dispute before the Commission concerned the ‘alternative duties’ assigned to
Mr Richardson and, in effect, whether these were consistent with those that can be given to a
MICA Paramedic in his given circumstances. As further outlined below, the Commissioner
determined that Ambulance Victoria had in this instance failed to comply with clauses 28.1(k)
and 28.1(l) of the Agreement by assigning Mr Richardson with alternative duties instead of the
‘principal duties’ as required by his role under the terms of the Agreement.
[6] Ambulance Victoria seeks to overturn the Decision on various grounds.
Decision under appeal
[7] The important facts of this matter as found by the Commissioner are not generally in
dispute.
[8] The Decision records that Mr Richardson lodged two separate applications with the
Commission under s.739 of the Act on 15 December 2023 (the First Application) and
2 February 2024 (the Second Application). Under the First Application, Mr Richardson
alleged that Ambulance Victoria breached its requirements under ‘Part 8 – Performance and
Disciplinary Procedure’ of the Agreement. The Second Application alleged that Ambulance
Victoria breached its requirements under clause 28.1(k) of the Agreement by not assigning
Mr Richardson his ‘principal duties’ or ‘skills’ as a full-time MICA Paramedic, while being
required to undertake alternative duties. After attending conferences for the First Application
before the Commissioner, Mr Richardson pressed for a determination of the Second
Application. This was the subject of the Decision.
[9] As noted by the Commissioner, the parties agreed that the question to be determined by
the Commission in relation to the Second Application was:
“Whether the Respondent is complying with clauses 28.1(k) and/or 28.1(l) of the
Ambulance Victoria Enterprise Agreement 2020 (the Agreement) by not assigning the
Applicant to his principal duties or skill as a full-time Mobile Intensive Care Ambulance
(MICA) Paramedic and/or a MICA Paramedic Single Responder, and instead placing
him on alternative duties.”3 (italicised text in the original)
[2024] FWCFB 366
3
[10] Clauses 28.1(k) and 28.1(l) of the Agreement provide as follows:
Clause 28.1(k):
“Mobile Intensive Care Ambulance (MICA) Paramedic is an Ambulance
Paramedic that has successfully completed a Graduate Diploma in Emergency
Health (Intensive Care Paramedic) or equivalent qualification. The principal
duties include assessment, treatment, care and transport of emergency and/or
non-emergency patients in a pre-hospital setting. MICA Paramedics practice
advanced intensive care paramedic skills in accordance with AV approved
Clinical Practice Guidelines.
An employee employed in the classification of Mobile Intensive Care
Ambulance Paramedic may, by agreement, perform other duties that utilise the
skills and knowledge of a paramedic but which do not necessarily involve the
employee providing emergency and/or non-emergency patient care in a pre-
hospital setting.” (bold text in the original)
Clause 28.1(l):
“Mobile Intensive Care Ambulance (MICA) Paramedic Single Responder
is an employee with a minimum two years’ experience as a qualified MICA
Paramedic, who has completed additional training required by the Employer in
order to undertake single responding duties in a non-stretcher vehicle and is
appointed by the Employer to undertake such duties.” (bold text in the original)
[11] Mr Richardson contended at first instance that Ambulance Victoria had obligations to
assign ‘principal duties’ to its employees classified under clauses 28.1(k) and 28.1(l) of
the Agreement, based on the ordinary meaning of the clauses. That is, Mr Richardson submitted
the inclusion of the words 'principal duties include’ in clause 28.1(k) meant that a
MICA Paramedic’s and/or a MICA Paramedic Single Responder’s principal duties must
contain or comprise of any or part of the duties expressly set out in that clause. Further, this
was supported by the ordinary meaning of the second paragraph of clause 28.1(k) which
explicitly provides that other duties may only be assigned in circumstances when there is an
agreement between Ambulance Victoria and a MICA Paramedic covered by the Agreement.
[12] Based upon this construction of the Agreement, Mr Richardson argued that
Ambulance Victoria had ‘breached’ its obligations to provide principal duties (or other duties
by agreement), when it had directed him, while he was employed as a MICA Paramedic and/or
MICA Paramedic Single Responder, to perform alternative duties from 21 September 2023.
[13] Ambulance Victoria, on the other hand, contended that it had not breached
the Agreement on the following basis:
• Clauses 28.1(k) and 28.1(l) do not create any substantive obligations;
• Consistent with its use in other parts of the Agreement, the inclusion of the word
“may” in clause 28.1(k) is permissive rather than restrictive and as such does not
[2024] FWCFB 366
4
prevent Ambulance Victoria from directing a MICA Paramedic under the Agreement
to perform other duties in circumstances where there is no agreement; and
• The Agreement does not impose a restriction on its entitlement to issue lawful and
reasonable directions through a MICA Paramedic’s employment contract.
[14] Ultimately, the Commissioner determined that Mr Richardson’s interpretation of
the Agreement was to be preferred. In reaching his decision, the Commissioner approached the
construction of the Agreement with reference to various authorities of the Commission.4 The
Commissioner also considered the notion of ‘managerial prerogative’ and adopted the view, in
effect, that decisions made by employers based on this prerogative should not be lightly
overturned by the Commission.5
[15] The Commissioner held that clause 28 of the Agreement was more substantive than a
definitions clause, and, in the absence of other provisions dealing with classifications and
associated duties, found that it imposed specific obligations on the parties under the Agreement.
He further found that the phrase “principal duties include” in clause 28.1(k), when considered
in context, meant:
“that an employee of Ambulance Victoria who has met the requirement of being a MICA
Paramedic or MICA Paramedic Single Responder is to be allocated duties that include,
in whole or in part, the duties specified in the clause. Relevantly, the:
“…assessment, treatment, care and transport of emergency and/or non-emergency
patients in pre-hospital setting.””6 (footnote omitted)
[16] In forming this view, the Commissioner acknowledged that the notion of ‘principal’
duties would not preclude Ambulance Victoria from assigning its relevant employees with
additional or secondary duties. However, the Commissioner held that this did not mean that
Ambulance Victoria can allocate additional or secondary duties that do not include, in whole
or in part, the principal duties identified in clause 28.1 of the Agreement.7
[17] Further, the Commissioner interpreted the phrase “may, by agreement” in clause 28.1(k)
of the Agreement, as being restrictive. That is:
“the plain meaning of these words “may, by agreement” place a clear condition on the
employer that to comply with Clause 28.1(k) and (l), Ambulance Victoria requires the
agreement of a MICA Paramedic or MICA Paramedic Single Responder to not allocate
them the principal duties set out in this provision but allocate them alternative other
duties by virtue of this clause.”8 (italicised text and underlining in the original)
[18] In dealing with the consequences of the preferred construction of the provisions, the
Commissioner, in effect, accepted that Ambulance Victoria could direct its employees,
including to ensure the health and safety of its employees or others, without being said to be in
contravention of the Agreement. He found:
“[104] As identified above, there are a (sic) number of options available to Ambulance
Victoria to direct Mr Richardson to perform alternative duties to those set in the clauses
[2024] FWCFB 366
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28.1(k) or (l) under the Agreement. Clearly, the Respondent could have also acted in
accordance with the Suspension Policy. It is apparent to me that the Respondent could
further explore whether it could have provided Mr Richardson work that included part
of his principal duties prescribed by Clause 28.1(k) or (l), in addition to secondary or
other duties. The Respondent’s position, provided in submissions and the evidence of
Ms Behrens and Mr Georgiou, is that it explored these options but ultimately determined
it is not possible to ensure the complainant’s health and safety in the eventuality that
they may come across Mr Richardson should he be returned to “assessment, treatment,
care and transport of emergency and/or non-emergency patients in pre-hospital
setting”. Whether or not the Applicant may have been allocated to only assessment, only
treatment, or only transport or some other combination of the principal duties, in whole
or in part, specified in Clause 28.1(k) seems to not have been determined.
[105] Another option open to the Respondent also appears to have been to allocate the
Applicant to undertake training duties pursuant to clause 77.3, as identified above. Mr
Richardson’s evidence is that the alternative duties he was allocated to “were largely
administrative”, “could be conducted from home” and amounted to work designed to
promote deskilling of his professional classification and standing as a MICA Paramedic.
Mr Georgiou’s evidence rejects this assertion and in proceedings Mr Georgiou clarified
that there was no risk to Mr Richardson being able to return to his MICA Paramedic
position by being directed to undertake alternative duties for at least 12 months. I accept
this evidence.” (italicised text in the original)
[19] In summary, the Commissioner determined that the Agreement imposed clear
obligations on Ambulance Victoria to allocate its relevant employees under clause 28.1(k) and
clause 28.1(l) with the principal duties either in whole or in part, or to otherwise reach an
agreement with its employees to allocate other duties outside of those specified in
the Agreement. This obligation applied in the case of Mr Richardson. While the Commissioner
turned his mind to the principle of managerial prerogative, he noted that, in this instance, this
principle was outweighed by the clear obligations set out in the Agreement. On this basis, the
Commissioner stated that Ambulance Victoria had, in effect, extinguished its prerogative in
that regard when it entered into the Agreement.
[20] The Commissioner determined that Ambulance Victoria had breached its obligations
under the Agreement, when it allocated Mr Richardson alternative duties from
21 September 2023, which did not include, in whole or in part, any of the principal duties listed
in clause 28.1(k) or 28.1(l) without his agreement.
Appeal grounds
[21] Ambulance Victoria sought to appeal the Decision on two alternative grounds.
[22] The first ground of appeal is that the original decision incorrectly considered
Mr Richardson’s employment as being covered by both of the classifications under
clauses 28.1(k) and 28.1(l) of the Agreement. Ambulance Victoria contends that Mr Richardson
should have been classified only as a MICA Single Responder under the latter clause. On that
basis, it contends that the less prescriptive wording of this classification entitled it to direct
Mr Richardson to perform any particular duties, including alternative duties.
[2024] FWCFB 366
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[23] In the alternative, Ambulance Victoria contends that if Mr Richardson is properly
classified as a MICA Paramedic under clause 28.1(k), rather than 28.1(l), the second operative
paragraph of this classification was misinterpreted in the Decision. That is, the use of the word
“may” in clause 28.1(k) should have been correctly interpreted as being permissive instead of
restrictive. As a result, it contends that the clause does not place a strict requirement on
Ambulance Victoria to obtain agreement in order to assign other duties to its employees. Rather,
it is entitled to assign other duties to MICA Paramedics in other circumstances, such as
instances where there are health and safety concerns or other exigencies of employment in the
public health system that need to be considered. Further, Ambulance Victoria contends that
clause 28.1(k) does not supersede its obligations under work health and safety (WHS)
legislation or their “managerial prerogative”.
Permission to appeal
[24] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s
powers on appeal are only exercisable if there is error on the part of the primary decision maker.
This is so because on appeal the Commission has power to receive further evidence, pursuant
to s.607(2).9 There is no right to appeal under the Act and in this case no right has been created
by the relevant terms of the Agreement. Accordingly, an appeal may only be made with the
permission of the Commission.10
[25] Permission to appeal must be granted if the Commission is satisfied that it is in the
public interest to do so. Permission to appeal may be granted on grounds other than the public
interest.11
[26] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.12 It will rarely be appropriate to grant permission to appeal
unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot
succeed in the absence of an appealable error.13 However, the fact that the first instance decision
maker made an error is not necessarily a sufficient basis for the grant of permission to appeal.14
[27] Given the dispute involved the proper construction of the Agreement, the determination
to be made was non-discretionary and was required in accordance with the “correctness
standard”.15 What follows in relation to this appeal is that we must determine whether the
Commissioner’s answer to the question was correct, and if we conclude that it was wrong, that
would amount to appealable error.
The submissions of the parties
[28] The first ground of appeal concerns the correct classification of Mr Richardson for
present purposes and the implications of clause 28.1(l) of the Agreement. We observe that this
approach was not contended at first instance before the Commissioner, however the agreed
question did permit an alternative answer for each clause.
[29] Ambulance Victoria contends that Mr Richardson was engaged as a MICA Ambulance
Paramedic (Single Responder) and not as a MICA Ambulance Paramedic. This is based upon
the following propositions:
[2024] FWCFB 366
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• The Agreement sets up a series of classification definitions in clauses 26 and 27
and establishes different rates of pay for the classifications.
• Mr Richardson could not have been engaged as both.
• The Agreement also differentiates between the two classes of MICA Ambulance
Paramedics for other purposes including in clause 27.7 which recognises that
certain service as the MICA Ambulance Paramedics counts as service within the
MICA Ambulance Paramedic (Single Responder) classification for the purposes
of incremental progression.
• The evidence was that Mr Richardson was employed and paid as a MICA
Ambulance Paramedic (Single Responder).
[30] As to the consequential issue, Ambulance Victoria contends that there could not have
been a failure by it to comply with both clauses as they are different and clause 28.1(l) of the
Agreement does not contain any restrictions of the kind relied upon by Mr Richardson in
clause 28.1(k). Further, the restrictions in clause 28.1(k) should not be ‘transplanted’ into
clause 28.1(l). The finding made by the Commissioner was therefore an error.
[31] In relation to the fact that this approach was not contended at first instance,
Ambulance Victoria contends that the Full Bench should ensure that the dispute was properly
and fully determined and that it would be unduly technical and unjust to prevent the issue to be
agitated on appeal.
[32] The second ground of appeal concerns the import of clause 28.1(k) of the Agreement
and the relationship between any restrictions in the duties set out therein and other obligations
and rights held by Ambulance Victoria.
[33] In essence, Ambulance Victoria contends that it was dealing with a serious WHS matter
where both the complainant and Mr Richardson were in the same workplace, and it was
necessary to allocate alternative duties to Mr Richardson whilst the matter was being
investigated. Further, the framers of the Agreement did not intend to restrict the nature of the
duties that may be allocated to a paramedic, and this was evident from the absence of any clear
and express words to that effect.
[34] Ambulance Victoria also referred to a series of contractual and statutory rights to give
directions and prevent unsafe work situations which it contends would be thwarted by the
approach adopted by the Commissioner. On that basis, the first part of clause 28.1(k) of
the Agreement should be understood to be the list of indicative duties and the second part seen
as directed at preventing the employer from unilaterally providing menial duties or deskilling
work, which did not apply here. Further, any suggestion of a requirement for an agreement to
be present for any alternative duties as set out in clause 28.1(k) was not reflected in
clause 28.1(l) and this is significant given the circumstances of Mr Richardson.
[35] Finally, Ambulance Victoria contends that its preferred construction is supported by the
text, context and purpose of the provision, and it gives that provision an industrially reasonable,
[2024] FWCFB 366
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practical and common sense operation. This would also avoid what it asserts to be the only
other option in this case, to suspend Mr Richardson.
[36] Mr Richardson submits that the Full Bench should not entertain the first appeal ground
on the basis that this contention was not raised at first instance, was inconsistent with the
manner in which Ambulance Victoria had conducted its case, and was in part reliant upon facts
potentially relevant to the construction that could have been led or contested.
[37] Mr Richardson also contends that clauses 28.1(k) and 28.1(l) had to be read together.
That is, the substantive classification is that of MICA Ambulance Paramedic and the MICA
Ambulance Paramedic (Single Responder) is a MICA Ambulance Paramedic who has the
relevant experience and is, in effect, accredited to perform the higher role and duties set out in
clause 28.1(l).
[38] Mr Richardson further submits that there were various other references to a MICA
Ambulance Paramedic in the Agreement that would be consistent with the notion that a MICA
Ambulance Paramedic (Single Responder) remained a MICA Ambulance Paramedic and that
the restrictions in duties in clause 28.1(k) continued to apply. The only exception was said to
be a provision dealing with incremental progression which was related to wages where there
was a different entitlement intended.
[39] As to the import of clause 28.1(k), Mr Richardson contends that the provision intends
that these are the principal duties that must be allocated to a MICA Ambulance Paramedic (and
a Single Responder), and this was reinforced by the requirement that other duties were to be by
agreement. Further, the approach adopted by the Commissioner did not lead to the dire
consequences contended by Ambulance Victoria, given the options that remained available.
[40] Finally, Mr Richardson contends that the terms of the Agreement were expressly agreed
and differed from the earlier instrument applying to the parties and that any contractual rights
to give directions must be subject to the overriding provisions of the Agreement.
Consideration of the appeal
[41] As the correctness standard applies to the appeal our task is to determine whether we
consider that the Commissioner’s response to the question of the construction of the Agreement
was correct. If we consider that his answer was not correct, our duty is to substitute what we
consider to be the correct answer for that given in the decision.16
[42] The principles of interpretation of enterprise agreements are well established.17 The task
of construing an industrial instrument begins with a consideration of the ordinary meaning of
the words, read in context, and taking into account the evident purpose of the provisions or
expressions being construed. Relevant context will include the provisions of the industrial
instrument as a whole and the place and arrangement of disputed terms in the instrument. The
underlying statutory framework may also provide relevant context, as might prior instrument(s)
from which a particular term has been derived. Regard may also be had to relevant surrounding
circumstances, for the purpose of determining whether there is any ambiguity in a provision of
an industrial instrument.
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[43] Further, the language of an industrial instrument is to be understood in the light of its
industrial context and purpose, and not in a vacuum or divorced from industrial realities.
Context is not itself an end. While a purposive approach to interpretation, and not a narrow or
pedantic approach, is appropriate, consideration of the language contained in the text of the
instrument remains the starting point and the foundation of the task of construction.
[44] We begin with a consideration of the classification provisions at the heart of this dispute
having regard to the context of those provisions.
[45] Clause 28 of the Agreement provides the definitions of the various operational
classifications. It appears in Part 4 of the Agreement which also deals with wage increases and
certain provisions associated with the classifications, such as career (classification) progression.
In most cases, the definitions in clause 28 operate by reference to the qualifications and the
general duties to be undertaken. For example, a Patient Transport Officer is ‘… an employee
that has completed the Certificate III Non-Emergency Client Transport or equivalent
qualification and provides basic transport and care for non-emergency patients in stretcher and
other vehicles at a level described in accordance with the requirements of the Non-Emergency
Patient Transport Regulations 2005.’18 (italicised text in the original)
[46] There are two exceptions to this approach. The clauses at the centre of this matter, which
are set out by us earlier, and the classifications relevant to the Advanced Life Support (ALS)
Ambulance Paramedic and the ALS (Single Responder Unit) Ambulance Paramedic in
clauses 28.1(h) and 28.1(i) of the Agreement. In each case, there is a definition for the non-
single responder position based upon a qualification that also then references the principal
duties of that position. There is also the additional paragraph, not found in any of the other
classifications, that an employee in the relevant classification:
“… may, by agreement, perform other duties that utilise the skills and knowledge of a
paramedic but which do not necessarily involve the employee providing emergency
and/or non-emergency patient care in a pre-hospital setting.”
[47] This additional provision, which was found by the Commissioner to represent a
‘limitation’ on the allocation of duties to Mr Richardson, was not part of the enterprise
agreement19 which preceded the present Agreement. We observe that there is no evidence
before the Commission as to any common objective intention concerning the new provision.
[48] It is apparent that by virtue of these additional paragraphs, different arrangements are
intended for the ALS and MICA paramedics classifications.
[49] In each case, the single responder version of these classifications then provides that
these employees have previously been engaged in the non-single responder classification for a
stated period, have undertaken the required additional training, and have been appointed to
undertake such duties. The details of the duties are not specified in the relevant non-single
responder classification. There is also no reference to the principal duties or the capacity to
agree to perform other duties.
[2024] FWCFB 366
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[50] To ascertain the intended relationship between the MICA Paramedic (non-single
responder) classification and the MICA Paramedic Single Responder classification, it is
appropriate to consider the broader context of the Agreement.
[51] The term “MICA Paramedic” is not defined by the Agreement. However, clause 28.1
provides three relevant definitions. The first describes a MICA Paramedic Trainee in
clause 28.1(j) as an ALS Paramedic undertaking a specified graduate diploma or equivalent.
The second (referred to by clause 28.1(k)) is a MICA Paramedic, being an Ambulance
Paramedic (also referred to as an ALS Paramedic) who has completed that qualification. The
third is the MICA Paramedic Single Responder (referred to by clause 28.1(l)) who has specific
experience and has completed additional qualifications.
[52] As set out earlier, clause 28.1(k) also describes principal duties and skills. We consider
that it is sufficiently clear that these are the duties and skills of MICA paramedics generally.
[53] There is no definition of the duties contemplated for the Single Responder and on face
value, clause 28.1(l) describes what is required in order for this MICA Paramedic to perform
their MICA duties in the particular way the clause describes; namely, as a Single Responder in
a non-stretcher vehicle. On the other hand, the Single Responder classification is a different
role for the purposes of the higher rate of pay involved. The existence of two classifications is
also reflected in clause 27.7(b), which recognises service of both MICA classifications. This
provision applies to service commencing before 2009 and this is relevant to Mr Richardson
given his length of employment.
[54] Other elements of the Agreement are more consistent with the notion that a
MICA Single Responder is a MICA Paramedic. These include that the “MICA Paramedic
Career Structure” in clause 27.5(c), which took effect in February 2021, includes four MICA
classifications but does not contain a separate classification for the MICA Single Responder.
Further, the following provisions apply to, but do not distinguish between, MICA Paramedics:
• The incremental progression provisions in clause 27.5(f);
• The capacity to require a MICA Paramedic to perform temporary reserve duties
under clause 38.13(a) and to perform relieving duties pursuant to clause 38.18(d);
and
• The provision of 1.5 days leave in lieu for each public holiday penalty payment set
out in clause 63.4.
[55] As a result, we are satisfied that under the Agreement Mr Richardson was a
MICA Paramedic, although he was classified for certain purposes (the context in which he was
to perform those duties and the rate of pay) as a Single Responder. This is also consistent with
the operation of clause 27.7(b) discussed above. That is, although it does retain reference to the
different relevant MICA Paramedic classifications, the effect of the provision is to treat the
service in either classification as being relevant to the pay progression of MICA Paramedics.
[56] What then is the connection between the two classifications for present purposes? In the
absence of any specific duties expressed in the Single Responder classification and given the
[2024] FWCFB 366
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relationship between the classifications and the context set by the Agreement more generally,
we consider that clauses 28.2(k) and 28.1(l) are intended to be read together.
[57] Does the ‘limitation’ in the second paragraph of clause 28.1(k) apply to the
Single Responder classification? Largely for the same reasons we consider that this follows.
[58] This means that the provisions of both clauses 28.1(k) and 28.1(l) are relevant to
Mr Richardson. On that basis, even if we were to grant permission to Ambulance Victoria to
rely upon the first appeal ground, despite contending a different basis at first instance, we would
in any event dismiss it.
[59] We turn to the second appeal ground, which requires us to assess the operation of the
‘limitation’ in the second paragraph of clause 28.1(k). This was the focus of the proceedings at
first instance and the issue determined by the Commissioner.
[60] We have earlier found that the Agreement intends different arrangements to apply to the
MICA Paramedic classification. The second paragraph of clause 28.1(k) is intended to have
work to do.
[61] The difficulty with the proposition advanced by Ambulance Victoria is that under its
approach, the second paragraph has no meaningful role. That is, we accept that in the absence
of a provision which expressly limits the allocation of alternative duties, Ambulance Victoria
would, with some caveats, have the right to direct employees to perform alternative duties
where objectively justified circumstances warranted this action. This is reinforced by the terms
of clause 77.3 of the Agreement which provides:
“the Employer may direct an employee to carry out such duties as are within the limits of
the employee’s skill, competence, qualifications and training consistent with the
classification structure of this Agreement, provided that such duties are not designed to
promote deskilling.”
[62] However, Ambulance Victoria has agreed that certain and different arrangements are
to apply to the nature of duties that a MICA Paramedic can be required to perform.
[63] Clause 28.1(k) involves the specification of principal duties and includes a provision
that provides for the circumstances in which the MICA Paramedic may perform certain other
duties. That is, with agreement. This would not prevent the assignment of additional or
secondary duties provided that the overall duties included the principal duties. This is the
ordinary and natural meaning of the provision when considered in its context. This limitation
would operate subject only to other provisions of the Agreement that might authorise a
unilateral change in duties. In that regard, we observe that a number of such potential provisions
were considered by the Commissioner20 in the context of a contention that these were
inconsistent with the operation of clause 28.1(k) as a limitation. In our view, the Commissioner
correctly determined that these did not displace the express terms agreed in clause 28.1(k).21
[64] We would accept that this approach might restrict the capacity of Ambulance Victoria
to respond to the circumstances in which it found itself with the complaint being made against
Mr Richardson. However, there were other options available to it under the terms of the
[2024] FWCFB 366
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Agreement including the capacity to approach Mr Richardson to seek that agreement and the
utilisation of its suspension policy. We observe that there were also other available options
canvassed in the Decision.
[65] It is common ground that the alternative duties assigned to Mr Richardson were not
agreed to by him and were not consistent with the limitation in clause 28.1(k). In allocating
those duties, Ambulance Victoria was not relying upon any other provisions of the Agreement
that might authorise a unilateral change in duties.
[66] On that basis, the conclusion reached by the Commissioner was correct.
Conclusion and disposition of the appeal
[67] The dispute required that the Commissioner consider and decide:
“Whether the Respondent (Ambulance Victoria) is complying with clauses 28.1(k)
and/or 28.1(l) of the Ambulance Victoria Enterprise Agreement 2020 (the Agreement)
by not assigning the Applicant (Mr Richardson) to his principal duties or skill as a full-
time Mobile Intensive Care Ambulance (MICA) Paramedic and/or a MICA Paramedic
Single Responder, and instead placing him on alternative duties.”
[68] The Commissioner determined the question in the negative. We have found that this
conclusion was correct.
[69] For reasons set out above, we do not consider that it is appropriate to grant permission
to appeal.
[70] The appeal is dismissed.
DEPUTY PRESIDENT
Appearances:
J Tracey SC and A Crocker of counsel for the Appellant.
M Harding SC for the Respondent.
Hearing details:
Melbourne
2024
12 August.
10 IRK HE FAI NOISSIN THE SEA
[2024] FWCFB 366
13
Printed by authority of the Commonwealth Government Printer
PR779126
1 [2024] FWC 1313 (‘Decision’).
2 Appeal Book page 138.
3 Decision at [13].
4 Ibid.
5 Decision at [110].
6 Decision at [78].
7 Decision at [79] to [81].
8 Decision at [94].
9 See Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
10 Section 604(1) of the Fair Work Act 2009 (Cth).
11 Ibid s.604(2).
12 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services
Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] - [46].
13 Wan v AIRC (2001) 116 FCR 481 at [30].
14 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
15 Minister for Immigration and Boarder Protection v SZVFW [2018] 264 CLR 663.
16 Rail Commissioner v Rogers [2021] FWCFB 371 at [61]; RTBU v Laing O’Rourke Australia Construction Pty Ltd [2019]
FWCFB 33 at [23]; Appeals by ASU and CPSU [2013] FWCFB 4752, 234 IR 366 at [13]; AMIEU v Diamond Valley Pork Pty
Ltd [2021] FWCFB 532 at [31].
17 Sydney International Container Terminals Pty Limited T/A Hutchison Ports v Construction, Forestry, Maritime, Mining and
Energy Union [2023] FWCFB 87 at [36] and [37] and the authorities referenced by the Full Bench including James Cook
University v Ridd (2020) 278 FCR 566 at [65], [2020] FCAFC 123, 298 IR 50 at [65], WorkPac Pty Ltd v Skene (2018) 264
FCR 536 at [197]; [2018] FCAFC 131 at [197]; Australian Workers’ Union v Orica Australia Pty Ltd [2022] FWCFB 90 at
[18].
18 Clause 28.1(c) of the Agreement.
19 Ambulance Victoria Enterprise Agreement 2015 (Varied and Extended) AE413830 – previously clause 22.
20 Decision at [95] to [98].
21 Decision at [99].
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc1313.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb10089.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1663.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb371.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb33.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb33.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb4752.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb532.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb87.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb90.htm
