Health Secretary, Ministry of Health v Australian Salaried Medical Officers' Federation

Industrial Relations Act 1996 (NSW)

Public Hospital Career Medical Officers (State) Award 2023

Public Hospital Medical Officers (State) Award 2023

Public Hospitals Medical Superintendents (State) Award 2023

Australian Salaried Medical Officers' Federation (New South Wales) (Respondent)

I Lisser (Industrial Relations Manager) (Respondent)

1. On 25 March 2025, the Health Secretary, Ministry of Health, notified an industrial dispute with the Australian Salaried Medical Officers' Federation concerning proposed industrial action to be taken by medical officers in the week commencing 7 April 2025.
2. The matter was listed for compulsory conference on 27 March 2025. It was adjourned to 28 March 2025 to permit the parties time to consider what had been discussed and develop responses. Further conciliation took place on 28 March 2025 without achieving a resolution. The matter was, again, adjourned to today to allow the parties time to consider recommendations from the Commission and possibly have further discussions concerning those matters. The Commission forewarned that if a compromise could not be reached by today, it would be very likely that I would consider conciliation at an end.
3. Contingent directions were made to prepare for a possible arbitration today. The notifier was to provide any witness statements upon which it would rely by 5pm on 31 March 2025 and the respondent any statements on which it would rely by 10am today. The compulsory conference was listed for report back at 11am. At the report back, the parties advised that no resolution had been agreed, but there appeared to be a misunderstanding of the proposal advanced by the notifier. Accordingly, the matter was, again, adjourned into private conference. Unfortunately, it quickly became apparent that resolution by agreement could not be achieved. Neither party contested that proposition.

1. A certificate under s 135(2) of the Industrial Relations Act 1996 (NSW) was issued and provided to the President. Arbitration of the notifier's application commenced almost immediately. The notifier read the statements of:

(1) Melissa Onysko, Acting Director of Industrial Relations (Medical) and Policy, NSW Ministry of Health;

(2) Dr Steevie Chan, District Director, Medical Services at Central Coast Local Health District;

(3) Dr Andrew Hallahan, Executive Director, Medical Services, Clinical Governance and Risk at Sydney Local Health District;

(4) Joanne Edwards, Executive Director, System Management Branch, NSW Ministry of Health; and

(5) Ms Christie Breen, Director of Clinical Operations at the Children's Hospital at Westmead, part of Children's Hospitals network.

1. There was no objection to any of the statements and the witnesses were not required for cross-examination. The respondent did not call any evidence in reply. I will not attempt to traverse in detail the matters referred to in the statements. In general, the witnesses spoke of:

(1) The statutory obligation of the health services to promote, protect and maintain the health of the people of this state.

(2) The threats of industrial action, of which they were aware and annexed in support several documents including online posts, emails, documents accessible by clicking on links in certain emails, an extract from transcript in which the respondent's executive director gives evidence of his understanding that industrial action, in various forms but including a potential three-day strike in some areas, was to occur in the week of 7 April 2025.

(3) The impact on patients of such industrial action, including the potential for delays in admission or discharge of patients, delays in elective procedures to permit emergency treatment of otherwise more urgent patients, the possibility of junior doctors or less specialised doctors in a particular field having to treat patients they would not otherwise treat, increased waiting times in the emergency department, longer transfer of care times between ambulance and emergency departments and delayed consultation of patients in wards.

1. It is unnecessary to go further because the respondent confirms that industrial action is planned. Mr Lisser submitted that the respondent was aware of the risks industrial action may bring within the health system and intended to give notice to the various health entities of the action to be taken in their areas of responsibility on 2 April 2025. That would provide five days' notice of what was to happen and allow appropriate contingency planning, he submitted. Mr Lisser did not address the issues of delays in treatment, including surgeries, that may be encountered, but did refer to a form, which is part of exhibit six, an email from an employee or officer of the union. In particular, he quoted the last page of the form, which was in the following terms:

"PLEASE NOTE: The Union will be coordinating notification to your employer and will direct you to work if minimum staffing is not covered."

"Please ignore management's request to notify by a certain date. There is no obligation to notify earlier than the announcement of the actions. If you are approached to answer questions around this, redirect them to your organiser..."

1. The quote is important in several respects. First, it demonstrates clearly the respondent has a direct role in organising and coordinating the industrial action. Second, it demonstrates an awareness that minimum staffing may not be met without the respondent's intervention to direct people to work. Third, it demonstrates that it is discouraging members from advising local management of the scope of industrial action to be taken in their areas.
2. There is no doubt that the respondent has a legitimate interest, indeed a duty, to represent the interest of its members. It has participated in a mutual gains bargaining process over several months without success. I make no comment on why that is so - that is, the lack of success - but understand that members may be frustrated that their demands have not been met. They wish to demonstrate the depth of that frustration. I would observe that they have achieved that end.
3. However, the employees involved in these proposed actions are covered by the following awards: the Staff Specialists (State) Award, Public Hospital Career Medical Officers (State) Award, Public Hospital Medical Officers (State) Award, and the Public Hospital's Medical Superintendents (State) Award 2024. These awards are listed before the Commission on 8 April 2025 for programming for arbitration. That does not mean that conciliation or negotiation cannot continue with a view to minimising the issues to be arbitrated. It does, however, provide some certainty that whatever cannot be resolved by agreement can be argued and settled by an award or awards of the Commission in the not too distant future.
4. Given these last two considerations, this industrial action, with its attendant risks to the health of the people of this state, cannot, in the public interest, be justified.
5. Whether to make dispute orders is essentially a question of discretion. There is no doubt that an industrial dispute exists and industrial action is about to be taken. The respondent accepts those propositions. Indeed, it accepts that orders will be made. The respondent argues, however, that the extent of those orders should be reduced. I have understood that to mean that the reference to "members" should be removed from the orders sought. The difficulty with that proposition is, as Mr Lisser submitted, the members are the union. He also submits that the life of the orders should be reduced to one week in lieu of three months.

1. I am satisfied that the public interest is best met, on this occasion, by making the orders as sought by the notifier. I note the submissions of Mr Lisser as to the life of the orders. I propose to address that by granting liberty to the parties to apply for a variation of the orders if new information comes to light justifying such a variation. I therefore make the orders and directions sought by the notifier with the addition of an order five. That order is: liberty is granted to the parties to apply on three days' notice if information emerges justifying a variation of these orders.
2. I direct the notifier to bring in short minutes of the orders in accordance with this decision and file and serve them by 5pm today.