On 28 June 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 Dispute sought the Commission's assistance in relation to impending industrial action in the form of work bans to be undertaken by members of the Health Services Union New South Wales ('HSU') who are employed by the Notifier in the positions of Dispatchers, Control Centre Officers, Duty Control Centre Officers ("DCCO") and Senior Control Centre Officer ("SOCOS") working out of the Southern Control Centre.
Underlying the Dispute, is an interim demand by the notifier for an additional DCCO on the night shift, should there be a Dispatcher available on night shift that is able to act up into the DCCO position.
The notifier has not agreed to this interim demand.
The Dispute was the subject of a number of conciliation conferences before the Chief Commissioner.
At the report back held before the Chief Commissioner on 26 July 2023, the HSU informed the Notifier that its' members at the Southern Control Centre had voted to commence a number of bans, which were to commence on 2 August 2023.
The Dispute was listed for directions on 27 July 2023, draft orders were filed on that day and directions were made for the filing and service of evidence.
The notifier relies on a witness statement of Mr Brent Armitage and the respondent on witness statements of Mr Anton Jamsek and Ms Rachel Moncrieff.
The industrial action, as originally communicated by the HSU to the notifier on 26 July 2023, was slightly varied.
The first is the participation in the management of staff movements and diversion of all such management to duty operations managers. However, the members of the HSU would assist if Duty Operations Managers ("DOMS") were unsuccessful in building a dual crew.
The next form of industrial action, being the third, engagement with Patient Flow or NEPT.
The next was the stamping of authorisation of callouts on F8 screens.
Not dispatching of R5 and R6 responses, except for cardiovascular investigations, neurological investigations and if the member deemed it to be in the patient's interest to complete the transport for diagnoses, it will be dispatched.
The approach is set out in my earlier decision of Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2023] NSWIRComm 1069 (23 June 2023) at paragaphs [13]-[16] which I will apply to this matter.
[13] 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 HonourJustice 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).
[14] 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.
[15] 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.
[16] 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.
Now turning to the arguments that have been advanced why the Order should be made, I note the first one, that it was made by the notifier, is that by reference to cl 41 of the Paramedics and Control Centre Officers State Award 2022, which as I understand, there is nothing said that it does not apply. And in short, there is a capacity under that Award, not mandatory, but a capacity under that Award for a dispute for issues of the nature as underlined in this dispute, i.e., being issues of impacts on health and safety are able to be referred to this Commission or a third party for resolution under circumstances it should be weighing on the Commission's exercise of the discretion that it has not been referred to this Commission.
I note the submission which fell from the respondent, and the evidence as well, which was that there had been some consideration about whether the matters should be referred here. However, the members had voted otherwise. And I will also note the submissions of the respondent union that there may not be capacity for an award to be made and resolution to the dispute of that nature, and secondly, if there were to be recommendations made by the Commission, may not be followed by the HSU.
In the absence of any authority on point, I am not of the view that this matter is one that weighs in favour of the making of the proposed orders. I turn now to each of the forms of industrial action, and it is fair to say that with respect to the first form of industrial action, which was the participation in the management of staff movements and diversion of all such management to duty officers, however, members will assist if DOMs are not successful in building a dual crew.
I note the submissions and the evidence that fell from the parties that the realistic outcome of that ban, or well, the actual impact of that ban will be that the relevant members of the subject who will be participating in this form of industrial action, will not be contacting employees to inform them that they will be transferred or something of the like. That is a role that was done by dispatchers that will now fall back to the duty DOMs. It is conceded by the respondent that this is something that is extra work that needs to be done.
However, I note that the work that is to be performed by the DOMs is either a telephone call or a radio call. I am not satisfied on the evidence before me that this will have any impact on patient safety. I note that there was some reference to what was before the Commission in the earlier case that I cited, which was before me, however, there is nothing in that decision which would suggest that a telephone call or a radio call would be of such significance that it would impact upon patient safety or paramedic safety. So I am not prepared to make an order with respect to that form of an industrial dispute.
Turning to the next form of industrial dispute, which is the ban on dispatching of R3 responses until the virtual clinical care centre has conducted a clinical consultation with external parties and provides relevant notes on the response. I note that the effect of that form of industrial action is the same that will possibly arise from the next form of industrial action, which is engagement with patient flow or NEPT. It was conceded by both of the respondent witnesses that it was possible that this would lead to a delay in certain dispatching of patient, both R3 and those under the patient thorough NEPT. There is evidence from the respondent that this may well lead to a risk to patient safety.
In particular I note paras 55 and 65 of the witness statement of Mr Armitage. In that respect I am prepared and will make orders in the terms sought as varied by the notifier with respect to those two forms of industrial action. Turning now to the stamping of authorisation of callouts on F8 and F9 screens, I am not satisfied that the impact of that form of industrial action will have any impact upon patient or paramedic safety. I see no other grounds that would weigh in favour of the making of an order stopping that form of industrial action.
And turning to the last form, which is the ban on dispatching R5 and R6 responses, except for cardiovascular and neurological investigations and if it is deemed to be in the patient's interests to complete the transport for diagnosis it will be dispatched which seems based on the evidence of Mr Jamsek. There is a capacity for the members of the control centre to make a call on whether a patient, even though they may not be a cardiovascular or neurological investigation, as to whether they should be the subject of that ban and not dispatched.
I am not satisfied - and I note the evidence in the submissions of the notifier that there were two examples provided. There was reference to the CT scan. CT scan. I note that evidence, however, I am not persuaded that based on the evidence of Mr Jamsek as provided that they would not be in a position to identify whether persons in conditions of that nature should not be dispatched under that form of industrial action.
In those circumstances, I am not satisfied that there is a risk to patient health and safety, so I am not prepared to make an order with respect to that form of industrial action. Finally, I should deal with the submissions of the Union wit respect to balancing against - and I should have dealt with that before I leapt into dealing with each form of the industrial action - that the public interest waives against the making of any orders because of the reasonableness of the nature of the demands by the members of the Union.
In my view, I am not satisfied that there is authority to support that proposition. But even if there was, it is not sufficient, in my view, to outweigh any concern that I have that it is contrary to the public interest to make orders which deal with risk to patient safety.
[3]
Orders
The parties are to confer and forward to the Registry orders consistent with this decision.
Daniel O'Sullivan
Commissioner
[4]
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Decision last updated: 21 August 2023