Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2025] NSWIRComm 25

Industrial Relations Commission (NSW)|2025-09-09|Before: Chin J

REVISED EX TEMPORE STATEMENT AND RECOMMENDATION

The Health Secretary on behalf of NSW Ambulance wishes to implement a new "On-Duty Relief" position (ODR position) in order to, among other aims, reduce the need for paramedics to be transferred outside their work zones to cover unplanned absences from planned rosters at other stations. The Health Services Union (HSU) and the Australian Paramedics Association (NSW) (APA) oppose the implementation of this position, at least in its proposed form. After a prolonged process of conciliation before the Commission commencing from 28 August 2024, the parties remain in a stalemate.
I have decided to make a recommendation in an attempt to assist the parties to move towards a resolution of this dispute. This recommendation would allow the process of introducing the ODR position to progress to the next stage. However, it stops short of permitting the implementation of the new position and, instead, imposes important procedural conditions on any such implementation.
I will also direct the parties to provide a copy of this statement and recommendation to the senior officers in each interested organisation.

On 28 August 2024, the Health Secretary notified this dispute initially in response to proposed industrial action by paramedics located on the Central Coast. Those paramedics were concerned about NSW Ambulance sending them, during their shifts, to Sydney or Newcastle to cover unplanned absences at stations located in those areas.
This dispute had its origins in a long-standing claim by the HSU for NSW Ambulance to increase the number of paramedics rostered on each shift - that is, to increase "Planned Ambulance Rosters" (PAR) − to fulfil what the unions regard as "full roster maintenance". During the process of conciliating this dispute, one of the HSU's representatives, Mr Hatter submitted on the record that this underlying dispute had "been going on for decades".
Also in the course of this conciliation the parties discussed another proposal to reduce the need for shift movements by conducting a trial for the introduction of the ODR position within the North Sydney zone to take place in January 2025.
The conciliation of the initial dispute was interrupted when, on 20 November 2024, the Health Secretary notified a fresh dispute in response to the HSU (and subsequently also the APA) foreshadowing statewide industrial action in which, among other actions, paramedics were to refrain from participating in shift movements unless certain conditions were met.
I made dispute orders requiring the HSU and the APA and their members to refrain from organising and taking the foreshadowed industrial action on 21 November 2024: Health Secretary (NSW Ambulance) v Health Services Union NSW & Anor [2024] NSWIRComm 12. In this decision, I also recommended that the parties participate in a trial of the ODR position in January 2025 on certain conditions, following which I programmed the dispute for arbitration before me on 27-28 March 2025.
The trial and arbitration were designed to test the adequacy of the proposed ODR position and to provide the HSU and the APA with an opportunity to assess the ODR position and, if necessary, to establish its case − in an arbitrated hearing before the Commission − that the operation of rosters by NSW Ambulance was resulting in adverse health and safety consequences for paramedics and to seek whatever relief it considered was necessary to rectify this state of affairs.
The timing of the scheduled arbitration in March 2025 was the subject of some criticism by the HSU. In a misleading post on its social media the HSU told its paramedic members that the Commission had required paramedics to continue to "put up with" the adverse health and safety impacts arising from the staffing and rostering system for an unreasonably long period of time. I ordered the HSU to correct its message to its members in Health Secretary (NSW Ambulance) v Health Services Union NSW & Anor (No 2) [2024] NSWIRComm 18.
The APA participated in the recommended trial of the ODR position.
The HSU, however, refused to participate in that trial. Instead, the HSU sought leave to appeal both decisions referred to at [8 ] and [10 ]. The HSU's attempt to overturn these decisions was unsuccessful. Leave to appeal was refused by a Full Bench of this Commission in Health Services Union v Health Secretary (NSW Ambulance) [2025] NSWIRComm 1014.
The HSU then applied to have the disputes urgently relisted before me on 28 February 2025. At this hearing Ms Chelsea Barker appeared for the HSU together with the General Secretary of the HSU, Mr Gerard Hayes. By consent, the parties applied to vacate the arbitration that I had listed in March 2025 and the related dispute orders, provided the HSU gave an undertaking to cease and refrain from organising or taking any industrial action proscribed by my prior dispute orders. The reason for vacating the arbitration was said to be to allow "high-level discussions" between the Ministry of Health, the Minister of Health, NSW Ambulance and the HSU to take place. Mr Hayes personally conveyed this undertaking to the Commission on behalf of the HSU. Accordingly, I granted the consent application.
The matters next returned before me on 8 May 2025. Mr Sullivan for the Health Secretary informed me that the result of the trial of the ODR position had been conveyed to the union parties.
Despite having refused to participate in the recommended trial of the ODR position, Ms Barker for the HSU confirmed that the union's stance towards the ODR position had shifted from outright opposition to a willingness to engage in discussions about implementing the position with "an open mind", albeit with concerns about the adequacy of prior consultation, and about whether the trial of the position had been conducted in compliance with the NSW Ambulance Paramedics (State) Award 2023 (the Award). Ms Barker also assured the Commission that it remained the case that the HSU had no intention to take industrial action in respect of this matter in the future.
At this time the parties requested an opportunity for further consultation to take place directly between themselves, which I granted by listing the matter for report back on 10 June 2025, after the parties had produced a document outlining their points of agreement and disagreement with the ODR proposal.
On 10 June 2025, the document referred to in the preceding paragraph had not been produced because the HSU had not returned the document setting out its position. The HSU advocate, Mr Hatter, was concerned that the dispute be confined to the issue of the implementation of the ODR position, without prejudice to the HSU's discussions at the Ministry level concerning its underlying claims for increasing PAR. Although it seemed to me to be uncontroversial by this time, the parties again confirmed that this dispute was so confined, and I directed them to file the document which I had requested on 8 May 2025.
On 10 July 2025, the APA notified a separate dispute about its demand for NSW Ambulance to increase PAR. Neither the APA nor the Health Secretary sought to join this dispute with the disputes before me (a course that was in any event opposed by the HSU). With the consent of the parties, the APA dispute was subsequently allocated to Commissioner O'Sullivan.
Since 10 June 2025, the disputes have returned before me on five occasions, on 10 and 20 June 2025, and 5, 13 and 27 August 2025. This means that the dispute over the introduction of the ODR position has been the subject of 18 conciliation conferences and/or directions hearings before the Commission over a period of 12 months.
The progress between the parties over this period has been barely perceptible.
On 20 June 2025, for example − about 10 months since the initial notification of the dispute − it was necessary for me to direct the HSU to provide to NSW Ambulance a request for further particulars about the proposed ODR position because (I was informed) this was necessary to enable the HSU to consult its members about the position.
Similarly, on 5 August 2025 it was also necessary for me to direct NSW Ambulance to provide the HSU with copies of the terms of engagement used by it during the ODR position trial.
These steps are matters on which I would have expected the parties to have resolved in good faith at a much earlier stage of consultation.
Furthermore, the slow rate of progress is difficult to reconcile with the HSU's prior complaint about the "lengthy" timeframe for arbitrating the dispute in March this year, which was vacated on the HSU's application and with the consent of the Health Secretary.
Nevertheless, the parties have now reached a point at which, in my view, they should be in a position to progress the dispute about the introduction of the ODR position to a new phase.

The document referred to at [16 ] jointly outlining the parties' points of agreement and disagreement with the ODR proposal was filed on 18 June 2025. This document records that the parties agree on two critical propositions:

(1) the implementation of the ODR position is to comply with the provisions of the Award; and

(2) there are benefits to NSW Ambulance and its workforce to have resources to cover for unplanned absences from planned rosters.

However, the HSU is primarily concerned about Award provisions that it says were breached during the trial of the ODR position, and whether these breaches would continue when the ODR position is implemented. It is also concerned about potentially adverse work health and safety (WHS) impacts of the position. The HSU is further concerned that appointment to the ODR position should be voluntary and appointment to the position should attract a monetary allowance.
The APA are also concerned about the voluntariness of appointment to the ODR position, and with potentially adverse WHS outcomes. The APA claims that PAR should be raised regardless of whether the ODR position is implemented (although as noted above its dispute about PAR is being dealt with separately).
NSW Ambulance claims that the trial of the position was Award compliant, and that the position provides a pathway to increasing PAR in a fiscally responsible manner. It is also willing to provide a risk assessment relating to the unions' WHS concerns.
Following the conciliation conference on 27 August 2025, I directed the parties to confer on a proposal for an operational monitoring phase in respect of the ODR position. I also directed the parties to provide my chambers with the terms of any agreement reached as to the proposal, or with competing terms for the conduct of this next phase in lieu of complete agreement.
The disputes returned before me on 9 September 2025.

Pursuant to s 136(1)(a) of the Industrial Relations Act 1996 (NSW), I make the following recommendation:

(1) On and from 17 January 2026, the proposal by NSW Ambulance for the on-duty relief position (ODR position) is to proceed to the next stage to be known as the "operational monitoring phase" (OMP).

(2) NSW Ambulance, the HSU and the APA are to cooperate and participate in the OMP.

(3) The OMP is to be conducted in accordance with the following terms and conditions:

(a) The purpose of the OMP is to monitor the operation of the ODR position to:

(i) ensure that the ODR position operates in a manner that complies with the NSW Ambulance Paramedics (State) Award;

(ii) ensure that the ODR position operates in a manner that complies with the WHS obligations of NSW Ambulance; and

(iii) further assess the efficacy of the ODR position by reference to:

the extent of shift movements after sign-on undertaken by staff other than those in the ODR position; and

the extent to which unplanned vacancies exceed the available ODR position resources.

(b) The OMP is to be undertaken within Hunter Zone 1, which is to be "ring-fenced" for the purpose of operational monitoring of the ODR position in that there is to be no transfers from other zones to fill vacancies until all resources and overtime have been exhausted within Hunter Zone 1.

(c) The OMP will be conducted for a period of 3 months, during which representatives of NSW Ambulance, the HSU and the APA will meet at least on a monthly basis for the purpose of monitoring the operation of the ODR position.

(d) During the OMP, the recruitment and appointment of paramedics to the ODR position is, primarily and in the first instance, to be undertaken on a voluntary basis. NSW Ambulance may only appoint paramedics directly to the remaining ODR positions after all reasonable steps have been taken to fill positions by voluntary appointments.

(e) In recruiting and appointing paramedics to the ODR position for the purpose of the OMP, NSW Ambulance is not to apply any artificial incentives, namely, incentives that it otherwise does not intend to apply as a part of the ODR position generally.

(f) Paramedics who are appointed to the ODR position during the OMP will be entitled, while they occupy the ODR position, to apply for vacant positions under the "Filling Vacant Positions - Staff Transfers Operating Procedure".

(g) The proposal by NSW Ambulance to enable paramedics who apply for vacant positions to be credited with additional points under the NSW Ambulance "Filling Vacant Positions - Staff Transfers Operating Procedure" is to be the subject of consultation with the HSU and the APA.

(h) At the end of the three month OMP period, any implementation of the ODR position by NSW Ambulance outside Hunter Zone 1 is to be conditional on the fulfilment of the following steps and matters:

(i) Representatives of NSW Ambulance, the HSU and the APA are to meet and confer about the results of the OMP by reference to the matters referred to in recommendation 3. The purpose of these discussions is to attempt to reach agreement on any necessary modifications to the ODR position, including in particular as to whether any variations to the Award are necessary to implement the ODR position.

(ii) Within three weeks of the end of the OMP the parties are to report to the Commission on the result of their discussions referred to in the preceding sub-paragraph.

(iii) The parties will submit any residual dispute about the ODR position to a process of further conciliation and, if necessary, arbitration before the Commission.

Pursuant to s 136(1)(a) of the Industrial Relations Act 1996 (NSW), I make the following directions:

(1) NSW Ambulance, the HSU and the APA are to provide a copy of this statement and recommendation to Dominic Morgan (Chief Executive of NSW Ambulance), Gerard Hayes (General Secretary of the HSU), and Brendan McIlveen (Secretary of the APA) respectively by close of business on 9 September 2025.

(2) The parties are to report back to the Commission when the disputes are next listed before the Commission as to whether they intend to comply with the recommendation set out at [32 ] in this statement.

(3) The matter is listed for report back before Justice Chin at 10:00am on 23 September 2025.

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (1)