This is an application by the Health Secretary in respect of NSW Ambulance for the making of the following orders and directions pursuant to s 137(1)(a) and 136(1)(a) of the Industrial Relations Act 1996 (the "Act"):
1. Under section 137(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission orders the Health Services Union NSW (HSU), its officers, employees, agents and its members employed in NSW Ambulance (Members) must immediately cease organising and refrain from taking industrial action in the form of a ban on movement of an Employee (as that term is defined in clause 4 of the NSW Ambulance Paramedics (State) Award 2023) to an ambulance station other than the Employee's usual rostered station to work a shift or part of a shift.
2. Under section 137(1)(a) of the Industrial Relations Act 1996 (NSW), the HSU, its officers, employees, agents and its members must not induce, advise, authorise, support, encourage, direct, aid or abet Members to organise or take industrial action contrary to Order 1.
3. Under section 136(1)(a) of the Industrial Relations Act 1996 (NSW), by 5pm on 28 February 2024, the HSU is directed to:
(a) publish in a prominent position on its website, the Ambulance Division of HSU's facebook page 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;
(b) provide, or cause to be provided, a copy of these orders to the HSU's officers employed by the Notifier; and
(c) The HSU must advise the Notifier's legal representative in writing by 7pm on 28 February 2024, of the steps taken to comply with directions 3(a) - (b) above, including the form of communications, and if written, a copy of the communications.
4. The above orders and direction take effect immediately and remain in force until 5.30pm on 29 August 2024 or until further order of this Commission.
The orders seek to address a meeting which is currently scheduled to take place at 7am tomorrow, 28 February 2024 and the length of the meeting is scheduled to be for one hour.
From the evidence which has been brought before the Commission, which is both a written statement of Mr Armitage, dated 27 February 2024, along with a text message of 23 February 2024 from the HSU to a Ms Phan and also a screenshot of a Facebook post which was, as I understand, put up on the Respondent union's Ambulance Division Facebook page along with a witness statement of a Ms Oxley, dated 27 February 2024, which sets out the background to the stop work meeting.
Relevantly, the stop work meeting is to include members of the notifying union, as I understand, including paramedics and it will be attended by members of the union, including paramedics who are either on duty or off duty. So, to the extent that there is a dispute for the purpose of the Act, it is limited to those members of the Respondent union who are rostered to work on 28 February 2024, between 7am and 8 am.
The nature of the industrial action is that those members of the Respondent union who are rostered to work will not attend to incidents which are said to be or prioritised as priority 2A and priority 2B. There is also evidence before the Commission that it would extend to other incidents to be booked into the ambulance officers' CAD system, which are referred to as categories R3, R4, R5, R6 and R7 (the "Industrial Action").
In terms of dealing with the application, the principles relevant to an application of this nature are conveniently set out, in the Notifiers' outline of submissions at paragraphs 7 through to 16, which are replicated below:
7. NSWA is empowered to notify the Commission of an industrial dispute, as an employer who is or is likely to be affected by the dispute (s. 130(1)(b), IR Act).
8. The dispute the subject of the Notification is an "industrial dispute", within the meaning of the IR Act, being a dispute about an "industrial matter" as defined at s. 6 of the IR Act.
9. The "Work Ban" the subject of the dispute is "industrial action" within the meaning of the IR Act, being a practice relating to the performance of work in which it is proposed to restrict, limit or delay the performance of work.
10. 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 36 to 59.
11. At paragraph 37, His Honour noted:
The use of the word "may" in sections 136(1) and137(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).
12. 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.
13. 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 FRNSW v FBEU [2013), 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 J, 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.
14. 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) "Education Department v NSWTF [2010]").
15. The Commission has dealt with applications for dispute orders by NSWA on a number of recent occasions. See: Health Secretary (in respect of NSW Ambulance) v Australian Paramedics Association (NSW) [2023] NSWIRCOMM 1056 (which related to a ban on staff movements); Health Secretary (in respect of NSW Ambulance) v Health Services Union NSW [2023] NSWIRCOMM 1069 and Health Secretary (in respect of NSW Ambulance) v Australian Paramedics Association (NSW) [2023] NSWIRCOMM 1116.
16. A common theme in these decisions is the attention given, in the public interest context, to adverse impacts, and potential risks, to patients arising from industrial action.
Shortly, the submissions of the Notifier is that the orders should be made in that it is in the public interest that they should be made. There are two strands or actually three strands that go to the argument.
Strand 1 is that there will be a delay to members of the public seeking the assistance of the Notifier. Mr Armitage, gave evidence of the following examples of this delay which have occurred during previous stop work meetings of the Respondent in 2023:
(a) Stop work 30 June 2023 0700-0800 - 89 year old female (priority 2A severe hip pain) delayed ambulance activation by 53 minutes due to industrial action.
(b) Stop work 30 June 2023 0700-0800 - 78 year old female (priority 2A abdominal pain) delayed ambulance activation by 50 minutes due to industrial action.
(c) Stop work 1 August 2023 0700-0800 - 8 year old female (priority 2A - abdominal pain) delayed ambulance activation by 63 minutes due to industrial action.
(d) Stop work 15 August 2023 0700-0800 -15 year old female (priority 2A-abdominal pain) delayed ambulance activation by 54 minutes due to industrial action.
(e) Stop work 29 August 2023 0700-0800 - 81 year old female (priority 2A-severe back pain) delayed ambulance activation by 72 minutes due to industrial action.
(f) Stop work 14 September 2023 0700-0800 - 86 year old female (priority 2A - fall with head strike) delayed ambulance activation by 62 minutes due to industrial action.
Strand 2 is described as determinate drift and two specific examples were provided in terms of determinate drift.
The first being and this is in exhibit 1, it is said that during a stop work meeting of the HSU of the relevant members on 30 June 2023, that took place between 7am and 8am, that a 30 year old male suffering abdominal pain was not responded to due to industrial action. This case was subsequently upgraded to 2I on a further triple-0 call received 16 minutes later, as the patient's condition deteriorated, and an ambulance was then responded to on the case. Prior to the ambulance's arrival, a third triple-0 call was received as the patient again deteriorated and there was another example provided for a stop work meeting on 13 December 2023, at half past 12.
By way of background, the evidence indicates that there had been, in the calendar year 2023, 24 sixty minute stop work meetings in 2023, presumably which had the same level of work bans in place, i.e. the ban on responding within that 60 minute period to 2A and 2B.
The Respondent union firstly submitted that, in terms of the public interest being attracted, particularly in the context of members of the public waiting and, to a lesser extent, that of a drift, brought to the attention of the Commission of a work instruction and that work instruction provided a definition as to what constitutes a delayed response. That definition was said to be one which is a delay of more than 120 minutes for a 2A or a 2B.
I note that Mr Armitage, under cross-examination, although not having seen that particular work instruction, gave evidence to the effect that there was a definition of a delayed response and that it was in the vicinity of 120 minutes in relation to 2A and 2B calls.
The Respondent's submission was that effectively an inference can be drawn that if the work instruction provided that if there was no need for a report or action to be taken by the supervisors for a delay in respect of 2A and 2B of up to 120 minutes, then, in circumstances where the meeting only takes place in 60 minutes, then it is not a delayed response and it cannot fall into the category of a response that would attract the public interest and, therefore, the granting of the orders.
In terms of the contingent impact upon dispatchers, reliance was placed by the Notifier on the witness statement of Mr Armitage and in particular paragraph 6, which indicated that there would be an increased cognitive load on dispatches and other control centre staff.
In response, the Respondent submitted that that evidence should be given little or no weight, because it was an opinion expressed in circumstances where Mr Armitage has had no experience in working as a dispatcher, nor provided any other acceptable basis upon which he formulated that view.
I am not satisfied, in the circumstances, that the granting of the orders would be in the public interest. In reaching this conclusion I note that during 2023 there were 24 stop work meetings held by the Respondent. Following from those 24 stop work meetings, I note that at no stage there was there any evidence that the Notifier had raised any concerns with the Respondent union.
To the extent that there has been, there has been accompanying examples which have been provided by Mr Armitage on behalf of the Notifiers to where there might have been some delays but not to the level that the Commission is satisfied that they were caused by the actual industrial action that took place. There might have been some delay and there might have been some slippage that took place in the times that there had been some of the stop work meetings.
I should also say that I agree with the submissions of the Respondent union in terms of the cognitive impact on the dispatchers and in those circumstances, the Commission is not minded making the orders and the application is dismissed.
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Decision last updated: 07 March 2024