Australian Paramedics Association (NSW) (respondent)
Representation: S Huang, Crown Solicitors Office (notifier)
B Jacobs Australian Paramedics Association (respondent
File Number(s): 2023/431792
Publication restriction: Nil
[2]
ex tempore DECISION
The Health Secretary has notified the Commission of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Act"). The dispute was notified by email yesterday morning, 29 November 2023. The notification set out:
"The proposed industrial action
1. On 23 November 2023, the Australian Paramedics Association (NSW) ("the APA") sent an email to its members encouraging them to only respond to Priority 1 (1A, 1B and IC) jobs for a 12-hour period (between 7am and 7pm) on 1 December 2023….
2 On 23 November 2023, the APA posted on its Facebook page: 'On December 1, we'll be standing together and taking 12 hours of strike action…' …
3 On 27 November 2023 the APA posted a video on its Facebook page which included the following text: 'Last week, Dr Amanda Cohn brought the action and demands of APA (NSW) to Parliament. On Friday, we'll only be responding to priority emergency calls for 12 hours…' …
Impact
4 The Health Secretary considers that the proposed industrial action constitutes a risk to the health and safety of the public, as well as having flow-on impact on other health entities and emergency services.
Urgency
5 Given that the proposed industrial action is to occur on 1 December 2023, the Notifier requests that the Dispute be listed urgently to allow the parties time to conciliate with the Commission's assistance and, if such conciliation is unsuccessful, to potentially proceed to arbitration prior to 1 December 2023.
Orders sought by the notifier
6 The Health Secretary seeks that the dispute be conciliated with the assistance of the Commission, in the first instance."
A copy of correspondence sent to Australian Paramedics Association (NSW) ("APA") members was attached to the Notification, along with two Facebook Posts relating to the proposed action.
Yesterday, the matter was listed for conciliation at short notice via videolink. A recommendation was made in conciliation that the APA narrow the scope and duration of the proposed industrial action as follows:
" a. The APA members will respond to category 1 a, b and c, 2 (i) and R4 service calls during the period of the ban.
b. The duration of the ban be reduced to 1 hour on 1 December 2023."
At the hearing today, the APA informed the Commission that it had decided not to accept the Commission's recommendation. Today, the APA confirmed that the scope of the industrial action accords with my recommendation above, but they intend to engage in the action for 12 hours. In practice, this means that the APA member will not attend to calls categories as 2A, 2B and R3. More context to these acuity rating is contained at [7] and [28]-[29] of this decision.
As the parties were unable to resolve the matter during the conciliation, a certificate of attempted conciliation was issued. The parties consented to a tight timetable for the filing and serving of submissions and evidence ahead of the arbitration today.
The Health Secretary sought the following orders and directions:
"A. Pursuant to ss. 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders:
1. Australian Paramedics Association (NSW) ("the APA"), its officers and employees, and its members employed in the Ambulance Service of NSW must immediately cease organising and refrain from taking industrial action by those employees engaged as paramedics, being the proposed industrial action on 1 December 2023, described as "strike action" in an email sent by the APA to its members on 23 November 2023, comprising Annexure A to the Notification of an Industrial Dispute filed on 28 November 2023.
2. The APA, its officers, employees, agents and members must cease and refrain from authorising, supporting, encouraging, directing, aiding, abetting or inciting members of the APA to organise or take industrial action contrary to Order A1.
3. These orders take effect immediately and shall remain in force until 11 January 2024 or until further order of the Commission.
B. Pursuant to s. 136(1)(a) of the Industrial Relations Act 1996, the Commission makes the following directions:
1. The APA shall by no later than 1:00pm on 30 November 2023:
a. publish in a prominent position on its website, the APA's Facebook and other social media pages, Order 1 and a direction to members that they comply with those orders and not take the industrial action referred to in Order 1A;
b. send by email to all members a link to Order 1 and a direction to comply with those orders and not take the industrial action referred to in Order 1A;
c. provide or cause to be provided a copy of Orders 1, 2 and 3 above to the APA's representatives employed by the notifier.
2. The APA must advise the notifier's legal representative in writing by 4.00pm on 30 November 2023 of the steps taken to comply with Directions 1(a) to (c) above, including the form of communications, and if written, a copy of any communications, and the further steps it intends to take (if any) to comply with Directions 1(a) to (c) in respect of any relevant member who, by that time, has not been notified."
The Health Secretary read the affidavit of Assistant Commissioner Armitage: Ex N1. The Health Secretary summarised the evidence of Assistant Commissioner Armitage with respect to the impact of the proposed industrial action as follows (Health Secretary's Outline of Submissions at [8]):
"…Assistant Commissioner Armitage deposes that:
a. 2A and 2B incidents in 2023 account for just over 15% of incidents, when observing the six NSWA emergency response priorities (codes).3
b. On average NSWA books on average 425 2A and 2B incidents into the CAD system each day. Accordingly, it is estimated that over 200 patients may be compromised over a 12 hour period.4
c. Priority 2A and 2B jobs include, but are not limited to:
i. Priority 2A - Abdominal pain; back pain; moderate falls; mental health conditions; sick patients (Residential Aged Care Facilities); fainting; headache;
ii. Priority 2B - sick patients (Residential Aged Care Facilities); minor falls; minor trauma; post fitting; minor lacerations; ongoing vomiting; minor burns; sick patients (Covid-19).
d. Patients may be assigned a 2A or 2B response priority during the triage of a Triple Zero call however the true condition of a patient may be found to be more serious in nature upon the arrival of paramedics on scene.
e. The proposed industrial action will:
i. extend ambulance response times to patients;
ii. have a downstream system impact to ambulance operations, resulting in a large cohort of delayed incidents, which may compromise the efficiency of the NSW Health network;
iii. result in increased cognitive load on dispatchers and other control centre staff, which may divert attention and focus from activation of ambulance resources to higher priority emergencies and the safe oversight of paramedic welfare in the field; and
iv. gives rise to unnecessary adverse patient outcomes including the deterioration of patient condition and the need for more serious clinical intervention than they would have otherwise needed.
f. Assistant Commissioner Armitage also deposes that if the proposed work ban continues to apply to priority 2I, R3 and R4 incidents, it would mean that approximately 734 patients care would be compromised and this would give rise to adverse patient outcomes that would be unable to be mitigated.
g. It is not possible to sufficiently mitigate against the risk the foreseeable patient safety risk. This is because:
i. The level of participation in the ban is not known and accordingly it is not possible to sufficiently resource the operation to completely safeguard the Triple Zero response to patients in the community.
ii. NSWA's resourcing profiling is based upon demand profiling which sees a natural difference between regional and metropolitan areas. Accordingly, NSWA's ability to appropriately resource and respond to incidents in regional locations will be particularly reduced.
iii. The number of trained NSWA Virtual Clinical Care Centre (VCCC) is limited and would not be able to surge sufficiently to meet the increased demand as a result of the increase pending Priority 2A and 2B incidents."
During cross-examination Assistant Commissioner Armitage gave evidence that:
1. The average time frame for a 2A response is approximately 38 minutes, with 50 per cent of cases being addressed within this timeframe.
2. Although the ProQA system is reliable, this is dependent upon the accuracy of the information provided by the caller.
3. The APA has about 2600 to 2700 members out of a workforce of approximately 6000 paramedics.
4. There will be people available to respond to 2A and 2B work due to incomplete membership, however, he held concerns with respect to regional areas where there may be "clusters" of APA members.
5. A large proportion of the 2A and 2B patients will be triaged again by Virtual Clinical Care Centre who will do call backs to the patients during the industrial action.
The APA submitted that the power of the Commission to make such orders is discretionary and that the Commission should have regard to the public interest, in particular Object (a) of the Act. They submitted that the dispute orders would do nothing to resolve the dispute and the Government has not acted in good fair in their negotiations. I will consider these argument in further detail shortly.
The APA called three witnesses to give evidence:
1. Mr Scott Beaton, Intensive Care Paramedic, Station Officer at Gilgandra in acting Deputy Operations Manager in Central Western NSW. Mr Beaton is also the Vice President of the APA;
2. Mr Jeffery Philip Andrew, Critical Care Paramedic at Bankstown Helicopter Base. Mr Andrew has worked at the Aeromedical Division in both road retrieval and Rescue helicopter as a Critical Care Paramedic for the past 7 years.
3. Mr Brett Simpson, Intensive Care Paramedic. Mr Simpson is the APA President. Mr Simpson is currently stationed at Paddington Station where he is he Acting Duty Operations Manager, Acting Inspector and is responsible for running the station and a team of approximately 40 paramedics.
Each of the APA's witnesses attested to the truth of their statements filed in the matter and were cross-examined in the proceedings.
Mr Simpson gave evidence with respect to the patient safety and potential mitigations, including in response to the evidence of Assistant Commissioner Armitage. His evidence included that:
1. Not all staff will participate in the action Those participating will be encouraged by the APA to contact the centre and inform them of their intention to participate: [22] .
2. Patients experience delays in being assessed outside the mandated timeframes for their job categories every day. This includes 2A cases exceeding 1-2 hours, 2B cases exceeding 2 hours and R3 cases often waiting for over 6 hours, with a cited example of a wait longer than 40 hours. Accordingly, the delays are a part of business as usual and can and are managed on a regular basis by the Ambulance service, without difficulty or patient compromise: Ex R3 at [11]-[14].
3. The service often manages spikes in workload such as the potential impact on 200 category 2A and 2B cases. These surges are often unexpected and unplanned: [15]
4. The Service was given a weeks notice of the industrial action and the APA has offered to assist with additional people to monitor the jobs not being attended to. He states that 4 extra staff would be required and this would allow for the monitoring of 4 cases for 15 minutes per hour for every hour of the 12 hour action: [16]; [21].
5. The surge in call backs for the period is within the scope of usual variances for such calls and can be managed by the Service. He also gave evidence of the APA being willing to offer extra resources to assist in this area: [18]; [20].
6. The downstream impacts of the industrial action can be managed, especially with the notice provided and the additional resources offered: [19].
7. The APA has negotiated with the service to reduce the scope of the industrial action.
Mr Simpson gave evidence of a "healthcare system in crisis" and expressed the view that successive governments have ignored the concerns of paramedics. He deposed that paramedics are dissatisfied with their working conditions, are low paid and are suffering from low morale. Mr Simpson relates the industrial action to 10 years of frustration and discontent. He attached a copy of the People Matter Employee Survey which includes reference to 12 % of respondent's agreeing with the statement that they are fairly paid for the work they do: [25]-[33] of R3.
When cross-examined, Mr Simpson agreed that where there is one person who is participating in an action who is paired within another who is not, the ambulance will not be able to attend an incident subject to the industrial action. He also agreed that with the mitigation strategies in place, there would be an impact on services as a result of the industrial action but not a significant impact.
I accept the evidence of Mr Simpson that there are available to the service mitigation strategies to reduce the impact of the industrial action on the public. Further, it is important to that his evidence with respect to the notice given the service and the offers of assistance from the APA were not contested. To some extend the impact the industrial action will have was acknowledged by Mr Simpson at [28], where he said:
"Whilst this action is the most significant action they have voted to take [the APA members], many of them do so with unease in that they know their patients will expect the most from them. Being forced to take this action off will further disenfranchise an already emotionally and physically drained workforce. I have seen Paramedics pushed to consider more extreme action as the dispute has lengthened with no resolution, I fear this will continue to occur should there not be an acceptable resolution."
I found the evidence of Mr Simpson helpful in explaining how the Service could mitigate the health risks associated with the industrial action and its capacity to do so. Although there are mitigation strategies that are available and sensible, there remains no doubt that the Service will be significantly compromised by the industrial action, especially in terms of the potential waiting times for people to gain the assistance they need. I will return to the issue of the impact of the industrial action shortly.
Mr Beaton gave evidence with respect to the operations in Central Western NSW. Mr Beaton gave evidence that:
1. Between 28 August 2023 to 22 October 2023, he has been dispatched to 75 jobs, of which only 9 would be impacted by the proposed industrial action.
2. The proposed industrial action will not increase response times, but will instead keep paramedic in their communities for the time critical jobs.
3. Category 2A and 2B jobs are often held for hours in any event.
Mr Beaton gave further evidence with respect to the need to call upon the assistance of paramedics from neighbouring towns and the significant timeframes people in the region can wait to receive the assistance of the Ambulance service.
Mr Andrew's gave evidence that the risk associated with the industrial action and not responding to lower acuity patients could "easily be mitigated by putting on additional staff to undertake call backs for these cases": [12] of Ex R2. He sought to challenge the evidence of Assistance Commissioner Armitage with respect to the risks of misclassifying patients, stating that the ProQA system triages patients appropriately: [13] of Ex R2.
[3]
Consideration
The Commission's power to grant the dispute orders sought is discretionary. There is no presumption that in the face of threatened industrial action an order under s 130 of the Act will be made: Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042 at [23], cited in Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association (2022) 320 IR 249 at [36]. Section 146 of the Act requires the Commission to take into account the public interest in the exercise of its functions. The objects of the Act contained at s 3 are also relevant. The Commission might intervene to protect the public interest from the damaging effects of industrial action: Fire & Rescue New South Wales on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261at [41].
The Health Secretary referred the Commission to the decision in Director General, NSW Department of Health v New South Wales Nurses Association (No 2) [2010] NSWIRComm 163, where Boland J stated at [18]:
"The Commission could not condone industrial action when there is a legislated system of conciliation and arbitration in place for resolving industrial disputes, when it is the Commission's duty to apply that system, when the Association has refused to engage that system and when the industrial action would disrupt the public health system for no good reason."
The Health Secretary submitted that the ability, in arbitration, to order industrial action to cease - to enable the parties to resolve the dispute efficiently and fairly under the auspices of the Commission rather than leaving the matter to be determined by the economic and industrial power of the participants without reference to the public interest - is one of the most important features of the system created by the Act: BlueScope Steel (AIS) Pty Ltd v The Australian Workers' Union, New South Wales [2006] NSWIRComm 149 at [26]. I agree with this submission.
The Health Secretary submitted that there were two reasons why the Commission should exercise its discretion to make the orders sought:
1. The risk to public safety; and
2. The objects of the Act.
I consider these submission in greater detail below.
The APA submitted that the Commission should exercise its discretion in not making dispute orders for the following reasons (APA submissions at [16]-[21]):
1. The making of orders will not resolve the industrial dispute.
2. The notifier has not established that a risk to patient safety is created due to the proposed industrial action that is any greater than on any other day.
3. The making of orders is against the public interest for the following reasons:
1. The industrial action proposed is undertaken with the intent of driving improvements to a health system that is not meeting the needs of the community.
2. That despite many years of advocacy from APA (NSW) and other stakeholders, successive Governments have not taken any meaningful action to address these issues.
3. That every day the Government fails to act on the healthcare crisis paramedics and patients' health and lives are put at risk.
1. The making of dispute orders would uphold the status quo and lead to no meaningful change to the deteriorating health outcomes of the people of NSW.
2. That the notifier has failed to negotiate meaningfully on the issues that are the subject of the dispute. The making of dispute orders would give carte blanche to the notifier to continue this.
3. That the making of orders does not support a framework of industrial relations that is fair and just.
4. That the making of orders will only cause further unrest.
With respect to the risk to public safety, the APA submitted that the risk is not borne out on the evidence. Further, it was argued that "past and current inaction on the healthcare crisis by the notifier has created a risk to patient safety that exists every day and that is far more significant than could be caused by the current industrial action". The APA referred specifically to the evidence of Mr Simpson where he states at [24]:
"If I were to accept the submissions of the Government at face value. That is, that 12 hours of action where Paramedics are only refusing to attend low acuity work is enough to cause a 'risk to public safety'. That is a healthcare system in crisis, one that puts the public at risk every day. This is what Paramedics have been trying to sound the alarm on for years while successive Governments have ignored us."
I agree with the APA that the risks to patient safety can be significantly mitigated if the action were to proceed tomorrow. The Service has received notice of the intended action and there are steps that can be taken to assist in the management of the change to operations. The evidence demonstrates that about 200 people may be impacted. Further, it must be acknowledged that the APA has offered to take steps to assist with the mitigation associated with the industrial action. However, to the extent that it was advanced by the APA, I do not think it can be said that the risk to patient safety can be entirely mitigated. In this regard, I accept the evidence of Assistance Commissioner Armitage that triage system is only as good as the information it receives from callers.
Further, the disruption will have a negative impact on wait times for some patients. Although these patients, properly triaged, have lower levels of acuity, they have called the Service for a reason. Examples in the evidence of patients in 2A and 2B who would be subject to the ban include:
Priority 2A - Abdominal pain; back pain; moderate falls; mental health conditions; sick patients (Residential Aged Care Facilities); fainting; headache;
Priority 2B - sick patients (Residential Aged Care Facilities); minor falls; minor trauma; post fitting; minor lacerations; ongoing vomiting; minor burns; sick patients (Covid-19).
The uncontested evidence of Assistant Commissioner Armitage was that an example of a person who may need to wait longer as a result of the industrial action is an elderly patient who had fallen from their bed and is unable to get back up without assistance. From the evidence, it is foreseeable that such a patient may be left unassisted for a period of up to 12 hours tomorrow, depending on the location of the paramedics participating in the industrial action. When asked about the APAs response to this evidence, the APA stated that the impact of patients was acknowledged in the evidence of Mr Simpson as set out above at [28] of Ex R3. That is to say, they know they will be letting down patients, but the bigger picture reason for the industrial action of improving the Service in the long term justifies it. I do not agree. I am concerned that vulnerable people in the community will be significantly impacted by the industrial action. This is an unacceptable consequence of the industrial fall out between the parties.
The APA also argued that aspects of the Service will be improved if the proposed industrial action occurs tomorrow. The logic was that there will be greater availability for ambulances to attend to more critical patients because they will not be attending to those that are subject to the ban. Whilst this will be the likely consequence of the industrial action, the Commission in not in a position to endorse this as an overall better outcome for the health of safety of the people of NSW. NSW Ambulance has a sophisticated triaging system that accords within international standards. The effect of the industrial action is to subvert that system.
I acknowledge the frustration and passion with which the APA witnesses have expressed their view about the need to engage in the industrial action. I take it from their evidence they feel unheard. However, there is not an objective evidentiary basis upon which the Commission could conclude that the notifier has failed to engage with the APA about its concerns in good faith. I am simply not able to make a finding about the bona fides of the parties' actions during their negotiations. I also disagree with the submission that by making the orders, the notifier would be given carte blanche to continue with its approach given I am not in a position to make an assessment of either parties conduct during their negotiations. I am also unable to make a finding based on the evidence in this matter that by making the orders sought there will be a deterioration of the long term health outcomes for the State of NSW as submitted by the APA.
I agree with the APA that the order is unlikely to resolve the underlying dispute. However, I have been asked to make dispute orders in the proceedings commenced by the Health Secretary in the context of threatened industrial action. The orders I intend to make will finally determine that matter. It is also relevant that the APA has not sought to resolve the dispute with the Health Secretary through the Commission's processes. Throughout the proceedings, the Commission offered to conduct a meaningful conciliation in respect of the APAs concerns. The Commission remains available to assist the parties to resolve the underlying dispute through its processes of conciliation, arbitration and award making powers. The Commission is not able to determine the issue and decide what is fair in under 48 hours.
The Ambulance Service is an important essential service for the community of NSW. It is not a service that the community can be without for a single day. I acknowledge the APA has designed the scope of the proposed industrial action to ensure that patients experiencing the highest acuity will not be impacted. However, I am also concerned that the industrial action is likely to have an impact on highly vulnerable members of our community, including the elderly: see Armitage at 18-(f). There is a strong public interest in ensuring the health and welfare of people seeking to access the Ambulance Service.
I propose to make the orders, but not as sought by the notifier. I will reduce the duration of the effect of the order to operate until 11 January 2023, six-weeks from now. In my view this is long enough for the parties to consider their respective positions and plan for ongoing negotiations.
[4]
Orders and Directions
The Commission makes the following Orders and Directions:
1. Pursuant to ss. 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders:
1. Australian Paramedics Association (NSW) ("the APA"), its officers and employees, and its members employed in the Ambulance Service of NSW must immediately cease organising and refrain from taking industrial action by those employees engaged as paramedics, being the proposed industrial action on 1 December 2023, described as "strike action" in an email sent by the APA to its members on 23 November 2023, comprising Annexure A to the Notification of an Industrial Dispute filed on 28 November 2023.
2. The APA, its officers, employees, agents and members must cease and refrain from authorising, supporting, encouraging, directing, aiding, abetting or inciting members of the APA to organise or take industrial action contrary to Order A1.
3. These orders take effect immediately and shall remain in force until 11 January 2024 or until further order of the Commission.
1. Pursuant to s. 136(1)(a) of the Industrial Relations Act 1996, the Commission makes the following directions:
1. The APA shall by no later than 6:00pm on 30 November 2023:
2. publish in a prominent position on its website, the APA's Facebook and other social media pages, Order 1 and a direction to members that they comply with those orders and not take the industrial action referred to in Order 1A;
3. send by email to all members a link to Order 1 and a direction to comply with those orders and not take the industrial action referred to in Order 1A;
4. provide or cause to be provided a copy of Orders 1, 2 and 3 above to the APA's representatives employed by the notifier.
5. The APA must advise the notifier's legal representative in writing by 7.00pm on 30 November 2023 of the steps taken to comply with Directions 1(a) to (c) above, including the form of communications, and if written, a copy of any communications, and the further steps it intends to take (if any) to comply with Directions 1(a) to (c) in respect of any relevant member who, by that time, has not been notified.
[5]
Amendments
01 December 2023 - Minor amendment made. Converted table to text at paragraph 35.
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Decision last updated: 01 December 2023