Health Secretary in respect of NSW Ambulance v Health Services Union

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 submissions in turn.
There is a strong public interest in ensuring the health and welfare of people seeking to access the Ambulance Service. The uncontested evidence of Mr Wiseman was that those interests were being compromised by the industrial action being undertaken. The evidence in respect of public harm was most relevant and of greatest concern in respect of the industrial action being taken by paramedics by not responding to all jobs. It is important to observe that Ambulance NSW has in place systems and processes to mitigate these risks and provide services to people in need. However, I accepted the uncontested evidence of Mr Wiseman that it is not possible to sufficiently mitigate the risk to the community that bans of this type and duration causes because the level of participation in the industrial action cannot be known in advance and impacts on workload to other staffing areas: Wiseman statement at [49].
Mr Wiseman gave evidence of there being 29 incidents of delayed response due to the industrial action being undertaken by members between 10:45 am and 8:00 pm on 20 May 2024: Wiseman statement at [38]. At approximately 6 pm there was a cardiac incident suffered by a 9 month old patient. Paramedics choose to attend to that patient despite the industrial action, as a matter of discretion. Mr Wiseman's evidence was that had this not occurred, there may have been an adverse outcome for that patient. I am satisfied that the public's safety is being compromised by the ban on attending to all jobs.
The respect of the R3 bans, Mr Wiseman gave evidence that in the majority of these cases, the movement of a patient from one health facility to another is because the patient requires a more definitive clinical intervention at the receiving hospital and that in his experience, requests are often time critical. He further deposed that there were 49,740 R3 incidents in the 2023 financial year and that the bans would create a significant patient safety risk should there be a delay in responding to patients, and in patients being transferred to a higher acuity facility to access the right level of care: Wiseman statement at [42]. I accept this evidence and that the bans in respect of R3 incidents create a risk to public safety.
Finally in respect of the bans in respect of the Ambulance NSW roster in Rutherford Station, the uncontested evidence of Mr Wiseman was that the NSW Ambulance Service Planning demonstrates that the community is better served by the Ambulance NSW roster. This is not clear evidence that the ban creates a direct risk to public safety. However, the evidence demonstrates that the bans in respect of responding to jobs, which I am satisfied arose out of the refusal to work the Ambulance NSW rosters, has had a direct impact on public safety. If the ban on working the Ambulance rosters does not cease, I am concerned the industrial unrest will continue to extend to other bans impacting on public safety.
The Health Secretary also submitted that the making of the orders was consistent with the objects of the Act, which the Commission must take into account when exercising its functions. I agree with this submission as it relates to all three bans. The HSU did not avail itself of the assistance of the Commission by notifying a dispute a respect of the concerns underpinning the roster bans. It is inconsistent with the objects of the Act for the HSU to embark on a course of industrial action without first attempting to resolve these issues through the processes available through the Commission: Director General, NSW Department of Health v New South Wales Nurses Association (No 2) at [18] and BlueScope Steel (AIS) Pty Ltd v The Australian Workers' Union, New South Wales [2006] NSWIRComm 149 at [26]. I make no finding with respect to the legitimacy of the HSU's concerns.
I decided the balance lied in favour of making the Orders and Directions sought and it was in the public interest to do so. I decided that it was appropriate to make the Orders for a period of three months to provide sufficient time for the parties to seek a resolution with the respect of the underlying issues of concern raised by the HSU.

Orders and Directions

The Commission makes 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. Health Services Union NSW (the HSU), its officers and employees, and its members employed in the Ambulance Service of NSW (NSWA) must immediately cease organising and refrain from taking industrial action by those employees engaged as paramedics, including the industrial action which commenced on 20 May 2024, including: a. The refusal, by HSU members at Rutherford Ambulance Station, to undertake any jobs assigned to them. b. The refusal of HSU members at Rutherford Ambulance Station to work in accordance with the roster posted by NSWA. c. The Statewide banning of inter-facility (R3) transfers. 2. The HSU, its officers, employees, agents and members must cease and refrain from authorising, supporting, encouraging, directing, aiding, abetting or inciting members of the HSU to organise or take industrial action contrary to Order A1. 3.These orders take effect immediately and shall remain in force until 20 August 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 HSU shall by no later than 5.45 am on 21 May 2024: a. publish in a prominent position on its website, the HSU's Facebook and other social media pages, Order A and a direction to members that they comply with those orders and not take the industrial action referred to in Order A1; b. send by email to all members in the Ambulance Division of the HSU a link to Order A1and a direction to comply with those orders and not take the industrial action referred to in Order A1; c. provide or cause to be provided a copy of Orders A1, A2 and A3 above to the HSU's representatives employed by the notifier. 2. The HSU must advise the notifier's legal representative in writing by 9 am on 21 May 2024 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. Janine Webster COMMISSIONER

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Judgment (6 paragraphs)

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