Health Secretary in respect of NSW Ambulance v Health Services Union NSW

Industrial Relations Commission (NSW)|2023-06-23

Ex Tempore DECISION

On 31 March 2023, a notification of industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (the 'Act') was filed in the Registry by the Health Secretary on behalf of New South Wales Ambulance (the 'Dispute').
The notice sought the Commission's assistance in relation to industrial action in the form of work bans instituted by members of the Health Services Union New South Wales ('HSU') who are employed by the Notifier in the position of duty operations managers ('DOM's).
Those work bans are listed in the statement of Wayne McKenna as follows: (a) No actioning of time sheets, save for those to remove Veritas holds. DOMs are required to review notifications where a discrepancy arose between the electronic timesheet platform (eTime) and other source documents (e.g. CREWS - the platform relating to crib breaks, HealthRoster - the platform identifying the location and period for a NSWA staff member's shift, or MyShift- the platform for overtime shifts). That notification is delivered through the governance system called Veritas. Under the ban, relevant Veritas notifications are automatically being approved by DOMs without reviewing the discrepancy. (b) No actioning of IMS reports unless the reported situation creates an ongoing risk or hazard to the health, safety and wellbeing of patients or paramedics of NSWA. IMS reports are used by NSWA to record events and incidents involving patients, staff and property. IMS reports are also used to manage the investigation of incidents, track control measures implemented, and identify trends across the organisation. The use ofIMS is mandated by NSW Health's Incident Management Policy Directive (PD2020_047), a copy of which is behind Tab 18. DOMs, in conjunction with ZMs, are responsible for conducting initial investigations of patient complaints and staff concerns/grievances, and implementing action to resolve the matter. In overseeing clinical care delivered by paramedics, they would also have responsibility to monitor, audit and enter new IMS for clinical compliance and patient safety. Under the ban, DOMs are not actioning or entering IMS records, subject to the five general considerations as outlined in HSU's correspondence behind Tab 15, being: (i) Does the IMS contain information of an incident in which WHS has been breached (either for a paramedic or patient)? (ii) Is there any surrounding context not included in the IMS that could indicate a WHS breach? (iii) Is there an ongoing risk or hazard to the health, safety and wellbeing of a paramedic or patient? (iv) DOMs are to err on the side of caution and in favour of actioning an IMS if there is any doubt from the DOM as to whether there is a risk or hazard that need be actioned. (v) As is always the case with HSU industrial action, DOMs are to always use their discretion and are authorised to exempt any individual IMS from the ban to avoid an adverse outcome to health and safety. (c) No actioning of hospital delays. DOMs have a defined responsibility in the Transfer of Care Escalation protocols, which is an agreed trigger system for delays in the handing over of care of a patient from NSWA to a hospital. Such a protocol is developed in compliance with the NSW Health Policy Directive - Triage of Patients in NSW Emergency Departments (PD2013_047), a copy of which is behind Tab 19. Under this policy: "In the event, that the patient is unable to be offloaded from the ambulance stretcher to an appropriate location within the ED, joint care and monitoring of the patient by ED staff and paramedics will continue until the patient can be offloaded. Transfer of Care should occur as soon as possible." A flowchart summarising NSWA's involvement in the Transfer of Care Escalation protocol is behind Tab 20. These protocols involve DOMs at the initial Emergency Department (Level 1) or Facility (level 2) consultation points where patient handovers exceed 30-60 minutes or 60-90 minutes, respectively. In practice, this means that a DOM will engage with hospital staff and paramedic crews, either in person or via phone, to assist in the handover of patients. DOMs also escalate delays that have reached certain thresholds to hospital executives for further action. Information regarding delays and plans is then shared via various platforms to promote stakeholder awareness of the status of NSWA resources across the system. This is particularly critical to Control Centres that are managing the response of ambulance resources to the community. Accordingly, these bans prevent DOMs from being involved in the escalation process where a patient handover between NSWA and an emergency department exceeds relevant thresholds. (d) A ban on fleet management. DOMs are responsible for co-ordinating, at a station level: (i) the ongoing maintenance of fleets and the availability of vehicles for a given station; and (ii) a response to a critical issue involving a NSWA vehicle (such as a flat tyre, fuel issue, mechanical failure, or collision). The ban would prevent DOMs from participating in management of such issues. (e) A ban on the management of clinical or operational KPls, save for any paramedic welfare checks. DOMs: (i) are responsible for managing clinical and operational KPis for SOs; and (ii) share responsibility, with SOs, to manage the clinical and operational KPis for paramedics. Clinical KPis reflect components of NSWA service requirements to the Ministry of Health, and include matters such as: response times, handover times, and complaints management. In contrast, Operational KPis refer to matters such as professional development plans, complaints management, and serious adverse events reviews (also known as SAERs under the Health Administration Act 1982 (NSW)). (f) The remaining three bans the HSU notified NSWA about on 30 May 2023 refer to the completion of internal electronic forms relating to transferring staff, industrial action and monthly accountability.

Background

The Commission as currently constituted listed the matter for a compulsory conference on 4 April 2023 with a further conciliation being undertaken during report backs on 3 and 25 May 2023.
Following the report back of 25 May 2023, a certificate of attempt at conciliation was issued and directions were made for the filing and serving of materials, including witness statements and outlines of submissions by the parties as well as listing the dispute for hearing yesterday, being 22 June 2023.
In accordance with the directions, the Notifier filed outlines of the submissions along with the witness statement of Mr Wayne McKenna and an exhibit to this witness statement. Annexed to the outline of submissions was the form of release sought by the Notifier which in short sought dispute orders under s 137(1)(a) of the Act and directions with respect to further consultation and discussions with the Respondent with respect to the frontline leadership model dated 11 April 2023.
The Respondent filed its outlines of submissions and the witness statements of Mr Phillip Sweet, Mr Joel de'Zuna and Ms Julian Exton in accordance with the directions. Apart from opposing the relief sought by the Notifier, the Respondent, in its outline of submissions, sought that the Commission make a number of alternative recommendations under s 136(1)(a) which included a recommendation that the Notifier increase the number of DOMs State wide.
Immediately prior to the commencement of the hearing the parties had a further attempt to try to resolve the matter but unfortunately there was no success and the matter proceeded forward to a formal hearing at approximately 11am on 22 June 2023.
At the commencement of the hearing, the Respondent gave an undertaking in the terms of the recommendations sought by the Notifier. The matter to be determined now is whether the dispute orders pursuant to s 137 sought by the Notifier should be made and/or whether the Commission would make the recommendations sought by the Respondent.
Following an undertaking given by the Respondent regarding participating in consultation, the Notifier sought the following be orders be made: Proposed Final Orders The Commission makes the following orders pursuant to section 137(1)(a) of the Industrial Relations Act 1996 (NSW): (1) The Health Services Union New South Wales (HSU), its officers, employees, agents and its members employed in NSW Ambulance in the classification of Duty Operations Managers (Relevant Members) must immediately cease organising and refrain from taking industrial action in the form of the following work bans - (a) management of IMS records; and (b) management of clinical KPIs. (2) The HSU, its officers, employees, agents and its members must not induce, advise, authorise, support, encourage, direct, aid or abet Relevant Members to organise or take industrial action contrary to Order 1. (3) These orders take effect immediately and remain in force until 5.30pm on 31 August 2023 or until further order of this Commission. The Commission makes the following direction pursuant to section 136(1) of the Industrial Relations Act 1996 (NSW): 1. The HSU must by no later than 10.00am on 27 June 2023 send by email to the Relevant Members: (a) a copy of these orders; and (b) a direction to comply with these orders to not engage in the work bans identified above.
The respondent, sought the following recommendations be made in resolution of the dispute: 1. NSW Ambulance maintain the rosters of Duty Operations Managers and backfill absences. 2. NSW Ambulance to increase the number of Duty Operations Managers state-wide. 3. The specific number of additional Duty Operations Managers to be implemented is to be done in consultation with Health Services Union members who are Duty Operations Managers, and is to have regard to: a. The increase to paramedics in a Duty Operations Manager's span of control within the last 10 years; b. The specific needs of Duty Operations Managers in each Sector, including geographical coverage.
Following that, each of the witnesses' statements were tendered and the witnesses were the subject of cross-examination. There were final oral submissions made by the parties which also relied upon the outlines of submissions that they had filed and served.

Approach

In terms of the principles relevant to the Commission's consideration as to whether the orders and/or recommendations should be made, I note that the parties do not disagree as to what they should be. Those are conveniently set out by the Notifier in their submissions: [7] The principles applicable to the making of dispute orders under section 137 of the Act were comprehensively considered by his Honour Justice Walton in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives Association (2022) NSWSC 1178, at paragraphs 35 to 59. [8] At paragraph 37, His Honour noted: The use of the word "may" in sections 136(1) and 137(1) indicate the discretionary nature of the power to make dispute orders. In so doing, the Commission must have regard to the public interest, objects of the Act and the likely effect on the economy of New South Wales: sections 3, 146(2). [9] At paragraph 41, his Honour cited with approval the observations of Boland J in Bluescope Steel (AIS) Ltd v Australian Workers' Union (NSW) (2005) 138 IR 324: Dispute orders are rarely made by members of the Commission. Long experience has demonstrated that most matters can be resolved by conciliation and/or arbitration without resorting to the prospect of sanctions. The making of a dispute order is a serious step given the consequences for contravention. Persons against whom a dispute order is made are bound to take it seriously, especially members, officials and employees of organisations who may be putting in jeopardy the very existence of their organisation. [10] At paragraph 46, his Honour stated: Thirdly, the effect on the economy of New South Wales is a mandatory relevant consideration under s146(2) of the Act. In [Fire & Rescue NSW on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261] it was identified that there is a need to protect the public interest from the damaging effects of industrial action: at 272 [41] (Boland J, President, Walton, Vice President, and Staff J) In this respect, any negative effect on the economy, disruption to the provision of essential services, health and safety risks, and the broader implications for the public should be considered. [11] At paragraph 50, his Honour stated: Fourthly when considering the consequences of industrial action, the Commission is not limited to only considering economic impacts The "public interest" is very broad. For example, the public interest can include the effect on primary and secondary school children and their education: see New South Wales Department of Education v New South Wales Teachers Federation (2010) 194 IR 340; [2010] NSWIRComm 55 at 349 [41] (Staff J).
The Respondent points to the decision of Commissioner Sloan in Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042 at [23], in which he states that there is no presumption that an order under s 137(1)(a) will be made and that: The exercise of that discretion will be informed by the Act as a whole, noting in particular ss 3 and 146, and the circumstances of the case.
Most importantly, what I take from the various decisions is the observations or the findings of Boland J in BlueScope Steel and Australian Workers' Union [2005] 130 IR 324 which is adopted by Walton J in the Health Secretary and the New South Wales Nurses and Midwives' Association case which is that dispute orders are rarely made by members of the Commission.
I also note that in the exercise I have got to take into account the objects of the Act and also the public interest in those matters per ss 3 and 146(2): 3 Objects The objects of this Act are as follows - (a) to provide a framework for the conduct of industrial relations that is fair and just, (b) to promote efficiency and productivity in the economy of the State, (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level, (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies, (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, (f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value, (g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality, (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations. 146 General functions of Commission … (2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to - (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy.

Demands

The background to the dispute is that the bans had been implemented in a response to a refusal by the Notifier to accede to a demand by the members of the HSU that there be a temporary increase in the number of DOMs.
The exact numbers of DOMs sought and the length of time is not entirely clear from the evidence, however, there appears to be a reference in correspondence from the Secretary of the Respondent to the Notifier as there being 30.
Underlying the demand is a claimed unmanageable workload by the members of the HSU referred to as span of control. The evidence, it seems to be uncontroversial, is that the workload has expanded greatly over the last ten years. This has resulted in the DOMs claiming that they have not been able to perform all of their required responsibilities and in particular they point to the provision of paramedic welfare.
Note that there is evidence that the Respondent, in response to this expressed concern, has put into place a number of 'enhancements' and they have been set out in the witness statement again of Mr McKenna, being exhibit 1 at [43]-[44]. There has been acceptance by the witnesses on behalf of the HSU that this has alleviated some of the control but, in their view, it has not gone far enough and that is the reason why the demand is still pushed for an increase in temporary DOMs.
I also note an important matter that I have taken into consideration in whether I exercise my discretion or not is that the evidence of the paramedics is that the bans will not be taken in circumstances where it puts patient and paramedic safety at risk. I understand that there is some criticism that that is left to the discretion of DOMs and, in particular, I note the Respondent's submissions of that in the context of the Incident Management Systems ('IMS') and in particular, there are reports which are relatively short and may not be actioned in circumstances which may then result in a risk to patient welfare and safety, and I will come back to that.

Issues

The arguments that have been advanced by the Respondent, and in my view the Respondent bears the onus of satisfying the Commission that the discretion should be exercised, are as follows.

Public Interest

The first submission concerns the public interest and posits that it is in the public interest for the orders to be made in circumstances where the Notifier is seeking to consult with the Respondent for the introduction of measures which would alleviate the underpinning concerns of the members of the HSU. Reference was made to the potential for some of those matters to be dealt with in the context of conciliation and maybe arbitration before the Commission. It is improper for industrial action to be taken in circumstances where that is occurring.
I agree that that is a proper basis for the Commission to exercise its discretion and I did so in Secretary Department of Education v Australian Education Union of New South Wales Teachers Federation Branch [2022] NSWIRComm 1051. The circumstances of this dispute, however, are different when I am considering that aspect of the exercise of my discretion.
In the current circumstances, the further consultation is in respect to a forthcoming change in frontline management. The introduction of that frontline management, as I understand, and I have not heard anything different, will in and by itself, bring an end to the dispute unless the dispute is brought to an end in a different way by the Notifier acceding to the Respondent's demands.
Therefore, any proceedings that may be brought before this Commission will not be about this industrial dispute and is not known at this point in time so on that basis I am not prepared to exercise my discretion.

Risks to Public Health and Safety

The main issue that seems to arise, and which by itself on a number of occasions has provided a proper basis for this Commission to exercise its discretion in terms of making dispute orders, is if there is any risk or threat to public health and safety and that includes patients and paramedics themselves.
I note the submission that there has been no hard and fast examples of any of the risks that have been raised by the Notifier in its submissions in evidence actually crystalising or occurring, and the evidence is uncontroversial. But that is not necessarily the only way in which this particular issue needs to be looked at. Any real risk to health and safety is one that would lead to the exercise of the Commission's discretion to make the orders.
However, in considering that, I note, as I did before, that the evidence of the HSU is that they would not enforce the work bans in circumstances where they believe that there is a risk to patient or paramedic health and safety.
It is now time for me to consider each one of those forms of industrial action and whether there is sufficient basis for the exercise of the discretion in the context of patient health and safety.
The first of the work bans is the no actioning of time sheets save for those to remove Veritas holds. I have heard the evidence of Mr McKenna and each of the witnesses and to the extent that it is said that there is a risk to employees' health and safety, the evidence is not to a sufficient standard that would satisfy me that I should exercise my discretion to make an order in the context of the no actioning of timesheets save for those to remove Veritas holds.
I turn to no actioning of IMS reports unless the reported situation creates an ongoing risk or hazards to the health safety and wellbeing of patients or paramedics of NSWA. It is a fine line but when it comes to decisions concerning work, health and safety, or health and safety in general, it should be, and it is appropriate, that I take a cautious approach.
There is some, albeit limited, evidence, that there is a potential risk to patient health and safety for the non-actioning of IMS reports and in particular I note the concession, and properly made, by at least one of the witnesses of the HSU that certain patterns or trends may not be able to be picked up. In those circumstances I am minded to make an order pursuant to s 137(1)(a) concerning no action in the IMS reports.
I turn to no actioning of hospital delays. I suppose explanation of that needs to be given for the purpose of the decision. What that ban refers to is DOMs attending to hospitals in circumstances where ambulance crews are effectively stuck because the patients have not been handed over to the hospital.
Now, there is conflicting evidence. Mr McKenna says that the presence of the DOM more often than not will successfully result in the release of the ambulance crew, returning them to the road. The evidence of Mr Sweet is that rarely, if ever, it results in the ambulance crew being released.
I note that Mr McKenna was a DOM, performing the role similar to what is being performed now, but that was in 2011. Mr Sweet is a current practicing DOM in, one would suspect would be, one of the busier areas of the New South Wales Ambulance operations.
The evidence also provides that zone managers are attending to that so that work is still being done and there is a paucity of evidence suggesting that zone managers attending to that role rather than other roles is causing a risk to health, safety and wellbeing of patients or paramedics. In those circumstances I am not prepared to make a dispute order in relation to the no actioning of hospital delays.
Turning to a ban on fleet management. I am not satisfied that the evidence shows that there will be a risk to patient or paramedic health, safety, wellbeing, and in particular, I note the evidence that each of the DOMs would attend on any traffic incident. In those circumstances, I am not satisfied other evidence could have been brought, or may be brought in the future that would satisfy me that that particular ban may result in a risk to health and safety of patients and paramedics.
Turning now to a ban on the management of clinical or operational KPIs, save for any paramedic welfare checks, the evidence is to a satisfactory level that has persuaded me that I should exercise my discretion to make an order with respect to only clinical KPIs, not operational KPIs, and in particular I note the concessions that have been made by one, if not two, of the union witnesses that there is a potential, albeit remote potential, for a risk to patient welfare.

Proposed Orders

Given it has been four and a half months since these bans have been put in place, I make a direction for the Notifier to craft the orders consistent with the decision to forward to the Respondent, by 10.00am next Monday, 26 June 2023.

Recommendations

As noted from the discussion between myself and Ms Barker, in exercising my discretion not only under s 137 but s 136 I note what I have said in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary, on behalf of the NSW Rural Fire Service [2023] NSWIRComm 1052 ('PSA v Rural Fire Service'). As stated by Walton J in Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431 at [53]: [53] It must be remembered, when construing these powers, that Parliament had understood that arbitration was the final stage of resolving an industrial dispute and the result should produce finality. In Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388; [2005] NSWIRComm 305, the Full Bench (Wright J, President, Walton J, Vice-President and Commissioner Stanton) stated at 403-404 [37] that, in furthering the objects of the Act, "it is vital that the Commission recognise the broad discretion granted by [the IR Act] to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it". This involves a variety of considerations, including the "public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation". This passage was cited approvingly in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39 at 791 [128] (Bathurst CJ with whom Gleeson and Simpson JJA agreed), Health Secretary v NSWNMA at [39] (Walton J) and BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales (2006) 153 IR 176; [2006] NSWIRComm 149 at [24]-[26] (Wright J, President, Walton J, Vice-President, and Marks J).
In PSA v Rural Fire Service I said, and I will apply that here, which is there must be some utility in making a recommendation which would have the effect of finally resolving the dispute. In circumstances where the Notifier has indicated that it would not follow a recommendation made by the Commission in the form sought by the Notifier, I see no utility in making that recommendation.

Daniel O'Sullivan Commissioner 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: 13 July 2023

Industrial Relations Act 1996(NSW)ss 3, 130, 136, 137, 146(2)

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