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

Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association [2024] NSWIRComm 4

Health Secretary, Ministry of Health v NSW Nurses and Midwives' Association [2024] NSWIRComm 3

Re Kemira Tunnel (Arbitration) Acts, 1948 (1949) 48 AR (NSW) 143

Secretary, Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178; (2022) 320 IR 249

Transport Workers Union of Australia v Amalgamated Dairies Pty Ltd & Ors [1942] CthArbRp 81; (1942) 46 CAR 520

CP Mills, New South Wales Industrial Laws (4th ed, 1977, Butterworths)

JA Keely "The Right to Strike under Federal Law" (1951-1954) 5(1) Res Judicatae 38

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

T Dixon / R Kumar (Respondent, instructed by Hall Payne Lawyers)

J Martin (Respondent, instructed by Australian Salaried Medical Officers' Federation (New South Wales))

1. On 1 April 2025 the Commission ordered the Australian Salaried Medical Officers' Federation (NSW) (ASMOF), its officers, employees and members to cease organising and refrain from taking any industrial action on and from 2 April 2025 for a period of three months (the Dispute Orders): Health Secretary, Ministry of Health v Australian Salaried Medical Officers' Federation (New South Wales) [2025] NSWIRComm 4. The orders were issued in light of proposed industrial action including a three-day strike by medical officers in the week commencing 7 April 2025 (the planned strike action).
2. At the time of the making of the Dispute Orders, the Commission was in the course of arbitrating a claim by ASMOF for a new award titled Psychiatry Staff Specialists Attraction and Retention (State) Interim Award 2025 (the psychiatry staff arbitration). By its amended application for relief filed on 3 March 2025, ASMOF is seeking interim relief for psychiatry staff specialists which principally includes the payment of a substantial new Psychiatry Attraction and Retention Allowance (psychiatry allowance).
3. The Commission commenced the arbitration for the psychiatry allowance at its own initiative, with the cooperation of ASMOF and the Health Secretary. It is being conducted in the context of mass resignations having been tendered by psychiatrist staff specialists from in or about December 2024. ASMOF was subject to dispute orders made by the Commission on 20 December 2024 prohibiting the union and its members from coordinating, organising or facilitating the resignation of psychiatry staff specialists in concert with others to further their industrial demands: Health Secretary v Australian Salaried Medical Officers' Federation (New South Wales) [2024] NSWIRComm 1081. ASMOF has applied for leave to appeal this decision.
4. The psychiatry staff arbitration was conducted from 17 to 20 March 2025 and, at this stage, has two more days left to run. Expert evidence is scheduled to be heard on 4 April 2025, with closing submissions on 11 April 2024.
5. On 2 April 2025, media reports asserted that ASMOF were intending to proceed with the planned strike action in defiance of the Dispute Orders.
6. In view of these developments, the Commission urgently relisted the matter on 3 April 2025 for the purposes of giving ASMOF an opportunity to confirm whether they intend to comply with the Dispute Orders; and, if ASMOF does not intend to comply, giving the parties an opportunity to address the Full Bench as to why the psychiatry staff arbitration should not be terminated or adjourned.

1. ASMOF relies on an affidavit affirmed by its officer Mr Holland in which he deposed that ASMOF proposes to direct its psychiatrist members not to take industrial action. He otherwise confirms that in the evening of 1 April 2025 the ASMOF Council resolved to continue with the planned strike action in defiance of the Dispute Orders. ASMOF's submissions draw a distinction between the scope of this matter and the broader industrial purposes of the planned strike action in advance of the interests of all medical officers generally, including staff specialists. ASMOF opposes the dismissal or adjournment of the proceedings, but in the alternative submits that, of those two courses, an adjournment is to be preferred.
2. While the Health Secretary submits that ASMOF's defiance of the Dispute Orders is a reason why its proposed interim award should not be made and is a sufficient reason to dismiss ASMOF's application for an interim award, she accepts the Commission's power to adjourn the proceedings without pressing for the Commission to do so.
3. The only argument advanced in favour of dismissal over adjournment is an assertion of possible "reprisal" action by ASMOF or its members in the event of an adjournment. However, there is no evidence of the prospect of any such reprisal action before the Commission, and the basis for this submission was not explained.

1. Since the abolition of the "wages cap"[1] and the reconstitution of the Commission, including the re-establishment of the Industrial Court of NSW in July 2024, it has been necessary for the Commission to remind major industrial organisations in this state of the nature of the system for the regulation of disputes under the Industrial Relations Act 1996 (NSW) (the Act). In Health Secretary of the Ministry of Health v NSW Nurses and Midwives' Association [2024] NSWIRComm 3, for example, the Commission drew upon the useful collocation and exposition of the principles applicable to the exercise of discretion in making dispute orders set out in Secretary, Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178; (2022) 320 IR 249 at [32] to [59] (Walton J). In particular, the Commission in that decision (at [18]) highlighted the fact that the Act clearly makes the Commission the principal organ to assist with the resolution of industrial disputes, and that Parliament intended for industrial disputes to be resolved by conciliation with the assistance of the Commission, and, if necessary, arbitration.
2. Moreover, the Commission has emphasised the incompatibility between organisations taking matters into their own hands by the use of industrial force while at the same time submitting their dispute in proceedings before the Commission: Health Secretary, Ministry of Health v NSW Nurses and Midwives' Association [2024] NSWIRComm 3 at [23]- [24]. On this important theme, it is instructive to set out the following observations of Walton J in Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178; (2022) 320 IR 249 at [512]- [515]:

512. ... It is plainly inconsistent with the objects and provisions of the Act if, whilst the Commission is seeking to resolve an industrial dispute, the parties to "go their own way" with industrial action. It is contrary to the purpose of Ch 3 of the Act, which is to facilitate the fair and just resolution of industrial disputes with the assistance of the Commission and without the need to resort to industrial action. Accepting argument (ii) [that prohibiting industrial action would take away the union's bargaining power] when the Commission is seized of the dispute would be inconsistent with the statutory scheme.

513. In circumstances when the Commission is actively seized in conciliating or arbitrating an industrial dispute, it has not been accepted in the NSW industrial relations system that a party should be permitted to engage in industrial action so as to increase their bargaining power. Higgins J wrote extracurially that a system of conciliation and arbitration was to be a "new province for law and order" where legally regulated processes were "to secure the reign of justice as against violence, of right as against might": HB Higgins, A New Province for Law and Order (Constable, 1922) at page 60. Its whole design was to prevent, at least to a considerable extent, the need for industrial action and the wielding of economic force to settle disputes. Instead, the Act provides arbitration as an alternative method for disputants - one that has as a level-playing field for both employers and employees to be heard and for disputes to be settled by reason: see Stemp v Australian Glass Manufacturers Co Ltd [1917] HCA 29; (1917) 23 CLR 226 at 243 (Higgins J) ("Stemp v AGM").

514. In Director-General of the New South Wales Department of Education and Communities v New South Wales Teachers Federation [2012] NSWIRComm 93 ("Education Director-General v NSWTF [2012] NSWIRComm 93"), the President, Boland J, after much learning and experience, made the following profound observation at [27]:

The objective [of the Act] is make available an avenue for the "prompt and fair" resolution of disputes by conciliation and arbitration without the need to resort to the "rude and barbarous process of strike and lock-out." The system has worked for the last 110 years as well as, if not better than, any other system devised in the Australian context.

515. Ms Beard's argument, however, may be more readily accepted in the Federal industrial relations system particularly where protected industrial action is a permitted feature in negotiating enterprise agreements. But there is no place in importing into the NSW industrial system concepts that resonate with or emanate from the Fair Work Act 2009 (NSW) ("Fair Work Act") in a collective bargaining sense. The divergence in systems of industrial regulation and the significant different parameters between the Federal and NSW systems has been considered at length in decisions of the Commission: see, eg, State Wage Case 1999 (1999) 88 IR 363 at 389 (Wright J, President, Walton J, Vice-President, Hungerford and Schmidt JJ, and Deputy President Harrison). In Re Pastoral Industry (State) Award, the Full Bench (Walton J, Vice-President, Schmidt J, Deputy President Grayson and Commissioner Connor) surveyed the provisions of the NSW Act and the WR Act and concluded that "the differences which now exist between the two legislative schemes, so far as the respective award making powers of the two tribunals are concerned and how they are exercised in practice, are stark" (at 177 [28]) and that that the Commission's "award making powers under the Act are, at this point in time, considerably broader than those of the AIRC pursuant to the WR Act and are substantially directed to considerably different purposes" (at 178 [29]).

1. The fundamental character of the system of industrial regulation in NSW, vividly highlighted by Walton J in these passages, informs the long-standing and firmly entrenched principle (and practice) of the Commission of disallowing industrial parties access to the Commission's arbitration powers while they organise or take industrial action. As recently and plainly stated by the President: "the Commission does not arbitrate changes in pay and conditions whilst industrial action is occurring": Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association [2024] NSWIRComm 4 at [17].
2. Ever since the introduction of the system of compulsory arbitration in New South Wales, the Commission in its various iterations has taken the view that it is inconsistent for a union to seek to invoke this jurisdiction by an application for an award while its members are on strike. In these circumstances, the Commission may strike out the application or adjourn the proceedings.[2] The learned author CP Mills in his classic text New South Wales Industrial Laws[3] also observed:

In addition to adjourning the hearing of a case, the tribunal may insist that it will only resume the hearing after it has been satisfied that the strike action will not be renewed. For this purpose it may require oral or affidavit evidence from the union and a union which fails to supply the affidavit evidence after being required to do so will be treated as being in contempt: Re Steel Works Employees (BHP Co Ltd) Award 1961 AR 421...".

1. In Re Kemira Tunnel (Arbitration) Acts, 1948 (1949) 48 AR (NSW) 143 at 184 Kelly J encapsulated this principle as applied in the New South Wales system:

Contrary to what the Federation and its officers seem to think ... there is neither legally nor in conformity with the principles of social or industrial right conduct, a choice open to them between acceptance of an impartial and adequately endowed arbitration system on the one hand and what is called direct action - the enforcement of industrial claims by organised strength - on the other. In a polity which provides for the adjustment of grievances by means of adjudication unhampered by legislative restrictions, so that if a claim be in accord with natural justice it shall be allowed, the right to strike, postulated by social philosophers who speak of an industrial and economic system in which no such adjudication has been provided, does not survive.

1. Prior to its focus on collective bargaining in place of arbitration, this approach was historically shared under the Commonwealth industrial system: see Transport Workers Union of Australia v Amalgamated Dairies Pty Ltd & Ors [1942] CthArbRp 81; (1942) 46 CAR 520 at 525 ("[b]ut the Court has always recognised the principle that Unions and their members cannot have both arbitration and direct action").[4]
2. The words of Kelly J resonate with renewed force today, particularly in the post-wages cap era. Industrial parties cannot expect to enjoy access to "an impartial and adequately endowed arbitration system" while concurrently exercising their industrial strength by way of direct action to the detriment of the public interest.
3. The system of industrial regulation in New South Wales does not tolerate registered industrial organisations taking direct action that is contrary to the public interest simply because they consider that industrial force may yield greater results for their members than by the process of conciliation and arbitration established under the Act. Once engaged in arbitration, the parties should be in no doubt that the Commission will not continue to arbitrate in the face of any concurrent industrial action.
4. In addition, as Boland J observed in Bluescope Steel (AIS) Ltd v Australian Workers' Union, New South Wales (2005) 138 IR 324 at 106: "[t]he 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."
5. By resolving to defy the Dispute Orders, ASMOF thereby disqualifies itself and its psychiatry staff members from continued access to the Commission's arbitral function. Contrary to the submissions of ASMOF, we consider that there is a substantial overlap between the subject matter of the planned strike action and this arbitration. In the arbitration proceeding, ASMOF has made clear that any allowance granted on an interim basis would be absorbed by the increases in the more general proceedings. That is, there would be no double counting.
6. Even without these considerations, the difficulty is that ASMOF seeks the Commission's assistance while defying its orders.
7. Consistent with its time-honoured approach in these matters, the Commission does not propose to continue with the balance of the psychiatry staff arbitration proceedings while ASMOF maintains this position.
8. Of course, the Full Bench recognises the important public interest served by achieving a fair, reasonable and timely outcome for psychiatry staff specialists and the Health Secretary through the extant arbitration process and is otherwise prepared to proceed with the arbitration.
9. For these reasons we propose to make the following procedural directions, which are designed to provide ASMOF with an opportunity to reconsider its position and to keep the psychiatry staff arbitration on course.

1. Pursuant to ss 136(1)(a) and 162(2)(g) of the Industrial Relations Act 1996 (NSW), the Commission makes the following procedural directions:

(1) The Australian Salaried Medical Officers' Federation (New South Wales) (ASMOF) is to provide or cause to be a provided a copy of this Statement and Directions to all members of the ASMOF Council (being the body that resolved to defy the Dispute Orders) by 3.00pm on 3 April 2025.

(2) The ASMOF Council is to give consideration to this Statement and Directions.

(3) In the event that:

(a) by 9:30 am on 4 April 2024;

(b) ASMOF files and serves an affidavit sworn or affirmed by a responsible officer authorised to speak on behalf of ASMOF providing an undertaking to the Commission that ASMOF will henceforth comply with the Dispute Orders made on 1 April 2025 in Health Secretary, Ministry of Health v Australian Salaried Medical Officers' Federation (New South Wales) [2025] NSWIRComm 4

the arbitration proceedings in this matter will continue as listed on 4 and 11 April 2025.

(4) In the absence of the undertaking referred to in Order 3:

(a) the hearing on 4 and 11 April 2025 in this matter will be vacated; and

(b) the matter will be listed for further directions at 10.00am on 11 April 2025.

03 April 2025 - Amendment to legal representation on cover page

[1] Referring to the Industrial Relations Amendment Act 2023 and the abolition of the requirement for the Commission to give effect to government policy on adjusting wages for public sector employees as contained in former s 146C of the Act.

[2] CP Mills, New South Wales Industrial Laws (4th ed, 1977, Butterworths) at [247], and the cases cited therein.

[3] (4th ed, 1977, Butterworths) at [247].

[4] See J.A Keely "The Right to Strike under Federal Law" (1951-1954) 5(1) Res Judicatae 38, 38-39 and the authorities quoted therein including: In re Federated Seamens' Union of Australasia [1925] CthArbRp 9; (1925) 21 CAR 16 at 19; The Metal Trades Employer's Association v. The Amalgamated Engineering Union, Australian Section and The Australian Society of Engineers [1938] CthArbRp 6; (1937) 39 CAR 7 at 8-9.