The Commission has before it a notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 ("Act") made by the Health Secretary in respect of NSW Ambulance.
The Crown Solicitor, acting on behalf of the Health Secretary, verbally notified the Industrial Registrar of the industrial dispute last evening. A short while later, the Crown Solicitor sent an email to the Industrial Registrar attaching a Notification of an Industrial Dispute ("Notification"). The Notification described the dispute as relating to industrial action that was proposed to be taken by members of the Health Services Union NSW ("HSU").
It is uncontroversial that at a stop work meeting on 8 May 2023 members of the HSU endorsed the taking of certain industrial action. In emails dated 8 and 9 May 2023 to Brad Goodwin of NSW Ambulance, Stuart Hatter, the Ambulance Division Secretary of the HSU, provided details of the actions which had been endorsed by the union's members. Those emails are attached as Annexures B and C to the Notification. In those emails, Mr Hatter described a range of actions which were to take place over differing periods of time.
However, only one of those actions is the subject of this dispute. That is described in the documentation as the "paramedics in training support protest". That is described in Mr Hatter's email to Mr Goodwin of 8 May 2023 in these terms:
"Where practical, all paramedics in training phases will be part of a 3-person team. An additional P1 or above paramedic will work as the 'third up' on the car containing a trainee to help support them during that shift. Trainee members are the primary focus of this action. ADHSU members want to enhance training and allow direct one on one mentoring.
• Paramedics in training will form the part of the primary team undertaking the role they would normally do in their training program.
• The paramedic in training will be able to focus on learning while the additional P1+ officer will offer the usual team clinical function and support.
• ADHSU members who are part of a training team will announce via the radio at the commencement of shift that the crew is taking part in the protest and request an additional paramedic be added to the team. …
• Control members will pass that message to NSWA management. The additional resourcing is the responsibility of NSWA not the Control Centres
• If you are unable to form a 3-person crew, members should voice the request over the radio, respond, but no transport will take place until at least two P1 or above paramedics are on the car with the paramedic in training or the patient's condition deems otherwise. 5T trainees will require at least 1 ICP and a P1 and above."
(Emphasis in original)
That industrial action is proposed to occur for 24 hours from the first shift on 11 May 2023. The Health Secretary seeks the intervention of the Commission to prevent the industrial action from taking place. I interpose to observe that it is agreed that the "paramedics in training support protest" is industrial action.
The matter was listed before me today on an expedited basis. I unsuccessfully attempted to resolve the dispute by conciliation and issued a certificate pursuant to s 135 of the Act. After a short adjournment, the matter proceeded into arbitration.
The Health Secretary contends that this industrial action will constitute a risk to the health and safety of patients. She contended that the action would require additional staffing resources where a paramedic intern or trainee is in an ambulance, which would reduce the available on-road resources, potentially reduce the number of available double paramedic crews in transport capable vehicles and potentially create delays in the transportation of patients.
In support of this position, the Secretary read a statement of Wayne McKenna who is the Assistant Commissioner, Director, Metropolitan Operations for NSW Ambulance. Having described some of the operations of NSW Ambulance and its functions, Mr McKenna deposed as to his concerns with the proposed industrial action. They came under two broad headings.
The first was the impact that the industrial action would have on community safety. In this respect, he deposed that the numbers of predicted crews available to respond to "000" emergency calls will diminish by approximately 88 double crewed ambulances within the Sydney metropolitan area during the period of the industrial action and that, as a result of the industrial action, there would be only 260 double crewed ambulances within the Sydney metropolitan area. He stated that he would expect comparable reductions in regional areas.
In Mr McKenna's view, a reduction in the availability of paramedics may put the public at risk of serious harm, as a delay in ambulance response time may mean that a seriously ill patient does not receive timely and appropriate care. Further, the proposed industrial action, by delaying the ability of ambulances to respond to medical emergencies, jeopardises patient safety and wellbeing.
I acknowledge that under cross-examination Mr McKenna accepted that the numbers that he had put forward in the evidence I have just referred to was based on a "worst case scenario". That is, the numbers are based on modelling that assumes that all trainee paramedics engage in the industrial action which they have proposed to take.
The second broad category of risk identified by Mr McKenna was the impact of industrial action on dispatchers. His unchallenged evidence was as follows:
"18. The placing [of] trainees third on a vehicle will limit the options that managers have to move staff around to form double ambulance crews. The limiting of movements will increase the response times but also add to the decisions of the dispatchers. While the dispatchers are highly trained, finding additional backup resources will increase the risk associated with dispatching crews in time critical situations. Crews have not always flagged at sign on their intention to request third on car or assistance to transport. This adds an element of risk and workload to the dispatcher."
The HSU called Tess Oxley to give evidence viva voce. Ms Oxley is a paramedic with 14 years' experience, currently working in Campbelltown. Ms Oxley's evidence traversed the question of PAR and what assurances could be provided to ensure that the numbers did not reduce below PAR during the period of any industrial action. She gave evidence of a commitment having been given when similar industrial action was taken in March 2023, with some suggestion that there had been no adverse impact on PAR numbers, at least for the first day of that industrial action.
However, what appears to be uncontroversial is that even if numbers do not fall below PAR, the industrial action will result in fewer ambulances on the road than would otherwise be the case. The evidence of Mr McKenna as to the potential for adverse patient outcomes as a result of having fewer ambulances on the road was not directly challenged.
The HSU placed significant reliance on the use of the words "where practical" in the description of the "paramedics in training support protest". It submitted that these words have a lot of work to do as it allowed for paramedics to exercise their discretion as to whether to engage in the industrial action, which would mitigate against any safety concerns which the Health Secretary contends will arise. Mr McKenna, to the contrary, gave evidence that this level of discretion in fact made the task of contingency planning that much more difficult, as it introduced a further level of uncertainty which made planning difficult.
I understand why the HSU places reliance on those words, just as some comfort could be taken from one of the conditions that anticipates the industrial action being suspended if the "patient's condition deems otherwise". However, the words lack certainty in their application. On balance, I accept the evidence of Mr McKenna that the extra level of discretion which they repose in paramedics adds further to the difficulty in managing any risks that might arise.
I am mindful that Ms Oxley gave evidence that in the industrial action that was taken in March 2023, an agreement had been reached presumably with NSW Ambulance that the words "where practical" would be applied as meaning that the industrial action would only be taken where there were enough P1s to go three-up without dropping below PAR. She stated that this would be the approach that the HSU would keep in place if the industrial action proceeds. As the Health Secretary submitted, there is no evidence that this has been communicated to the broader membership such that the Commission could have any level of comfort that what might have been agreed in March will be the situation in May.
As I say though, it is not an entire answer to the question. Whether or not PAR is maintained, the evidence leads inevitably to the conclusion that there will be fewer ambulances on the road.
Mr McKenna also gave evidence that this is not a risk that could necessarily be addressed through having paramedics working overtime. He identified two broad concerns in this respect. First, it is not always possible to find sufficient paramedics to work overtime and, second, having paramedics working overtime can create its own risks, given that, by definition, it is work beyond an employee's normal working hours.
The HSU also placed some reliance on what was said to be an entitlement of the paramedics to take industrial action in the course of bargaining. There will and should be an opportunity for this Commission to consider and make a proper pronouncement as to the extent to which there is a "right to strike" in New South Wales. This is not the case. The reason I say that is that there is limited evidence before me that there is in fact bargaining taking place. The premise of the HSU's position in what was described by the HSU as to "why" the industrial action is proposed is that "the Government" had made a promise that paramedics would be paid what they are worth as the professionals they are, and that the Government had not met that promise. There is nothing beyond what appears to be a protest in the position put by the HSU. There is no evidence of active bargaining in the way that I would normally anticipate would be led if the HSU wished to rely on a "right" to take industrial action.
As the HSU submitted, 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. I refer here to 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] NSWSC 1178 at [36].
Section 146 of the Act requires the Commission to take into account the public interest in the exercise of its functions. 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] NSWIRComm 63 at [41].
Having regard to the matters to which I have already referred, I am persuaded that this is a case calling for the Commission's intervention.
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Orders and directions
Pursuant to ss 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders:
1. The Health Services Union NSW ("the HSU"), its officers and employees, and its members employed in the Ambulance Service of NSW must immediately cease taking industrial action described as "Paramedics in training support protest" in emails sent from the HSU to NSW Ambulance on 8 and 9 May 2023, comprising Annexures B and C to the Notification of an Industrial Dispute filed on 9 May 2023.
2. The HSU, its officers, employees, agents and members must cease and refrain from authorising, organising, supporting, encouraging or inciting industrial action contrary to Order 1.
3. These orders take effect immediately and will remain in force until 30 June 2023 or until further order of the Commission.
Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, the Commission makes the following directions:
1. The HSU must by no later than 5.00pm on 10 May 2023:
1. publish in a prominent position on its website, the HSU'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 1;
2. 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 1;
3. provide or cause to be provided a copy of Orders 1, 2 and 3 above to the HSU's representatives employed by the notifier.
1. The HSU must advise the notifier's legal representative in writing by 6.00pm on 10 May 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.
Damian Sloan
Commissioner
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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 12 May 2023