Health Secretary, Ministry of Health v NSW Nurses and Midwives' Association

Relief sought and evidence

1. The notifier, the Health Secretary, seeks dispute orders in broadly similar terms to the recommendation made by Commissioner McDonald (see para [9] above).
2. In support of its application, the notifier relied on three witness statements: 1. Statement of Elizabeth Allen dated 8 September 2024 (Exhibit A); 2. Statement of Joanne Edwards dated 7 September 2024 (Exhibit B), and 3. Statement of Katherine Duffy dated 9 September 2024 (Exhibit C).
3. The Association relied on a statement by Ms Renata Di Staso dated 9 September 2024 (Exhibit 1).
4. I have had regard to the written submissions filed by the notifier, undated but authored by Mr James Mattson and provided on 9 September 2024, and also to the submissions provided by the Association signed by Ms Nicola Maher- Boyle and dated 9 September 2024.

Principles

1. In deciding whether to make the dispute orders, I am duty-bound to give reasons, however succinct, highly compressed or brief might be appropriate in the urgent circumstances in which this application has been brought and heard.
2. I do so having regard to 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) 320 IR 249 at [32] to [59] (Walton J).
3. In exercising the Commission's discretion in this regard, I have in mind Walton J's reference to the second reading speech of the 1995 bill in which it was made clear that the Act encourages employers and unions to use the expertise of the Commission in the resolution of their differences by conciliation and arbitration, as required. The Act clearly makes the Commission the principal organ to assist with the resolution of industrial disputes. It is clear that Parliament intended for industrial disputes to be resolved by negotiation between the parties themselves, or conciliation with the assistance of the Commission, and, if necessary, arbitration.
4. I am mindful that dispute orders are not lightly made by the Commission, that Parliament intended that the making of dispute orders must be a last resort, and that there is no presumption that, in the face of threatened industrial action, a dispute order will be made. I make no such presumption.
5. The making of such orders is a serious matter. As observed in Director General, New South Wales Department of Education and Training v Managing Director of TAFE and New South Wales Teachers Federation [2010] NSWIRComm 77 at [14] to [15] (Marks J): "… the regulation of industrial disputes in New South Wales involves the empowerment of a third party umpire to make binding orders on parties which can be enforced through mechanisms established by the State and which include the create of civil penalties as part of the armoury of measures that may be taken to ensure compliance with and enforcement of awards orders and determinations. The existence of a system such as that established by the Industrial Relations Act 1996 reflects a sophisticated and civilised approach to dealing with industrial disputation, …"
6. I also agree with the following observations in Bluescope Steel (AIS) Ltd v Australian Workers' Union, New South Wales (2005) 138 IR 324 at 106 (Boland J): "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."

Consideration

1. With these broad principles in mind, I have decided to make the dispute orders in the terms proposed by the notifier, with some minor amendment. I do so on four principal grounds.
2. Firstly, the ability of the Association to use the Commission's powers, and whether conciliation and arbitration have been used, is a significant factor that informs the discretionary considerations of the Commission when deciding to make dispute orders. It is therefore highly significant that the matters which form the substance of the underlying dispute in respect of which industrial action has been taken and which is planned for 10 September 2024, are co-extensive with the matters that are presently before the President in the dispute proceedings notified to the Commission by the Association itself and which is due to be conciliated on 18 September 2024. The fact that the Commission's extensive conciliation and arbitration powers are yet to be utilised by the parties is a significant factor in favour of issuing the dispute orders in this case.
3. I note that the recent removal of the so-called "wages cap" from the Act has effectively restored the arbitral powers of the Commission. The fact that the Association and the Health Secretary have a dispute currently before the Commission which has not yet proceeded to the first stage of conciliation of the very issues that are motivating the Association's planned industrial action is, to my mind, a powerful factor in exercising the discretion to ensure that the parties utilise, in the first instance, the principal means by which their differences should be resolved in our system in this State, namely, by conciliation and arbitration in this Commission.
4. Secondly, I take into account the conduct of the parties in this industrial dispute, including matters such as whether there has been any good faith bargaining and meaningful negotiations, and participation in conciliation. There are two matters I take into account. Firstly, the limitation of the Health Secretary's bargaining parameters with respect to the Association's wages claim is a significant factor which may explain some of the frustration of the Association's members that has been addressed in evidence in the proceedings today. The Association's concerns about the Health Secretary's approach to bargaining on wages is, in my view, a consideration that ought to be ventilated in the proper context of conciliation and if necessary, arbitration in the proceedings which the Association has brought before the President.
5. I also take into account the Association's refusal to comply with the recommendations made by Commissioner McDonald.
6. Thirdly, the evidence about the consequences of the planned industrial action strongly favours the making of dispute orders. I note in this regard that the Commission is not limited to only considering economic impacts. The public interest to which I must have regard is very broad. In that respect, I take into account the evidence on the actual and likely effects of the ongoing bans and the planned industrial action on patient outcomes and care, on disruption to the provision of essential services, health and safety risks, and broader implications for the public.
7. I do not accept the submission from the Association that the planned industrial action will not compromise patient care in any way. In my assessment, the evidence does not justify this claim. The mere fact that past industrial action may not have led to instances which compromised life-preserving care for patients does not satisfy me that there is no significant risk of compromising patient care with respect to this planned state-wide 12 ½ hours or, indeed, 24-hour blanket withdrawal of labour by Association members.
8. In this regard, I take into account the evidence of Ms Allen about concerns expressed to her directly by relevant officers at Liverpool Hospital that they have been notified that 36 nurses in the operation theatre will be taking industrial action on Tuesday 10 September 2024 and that this will result in all elective surgery being cancelled, with at least some potential to impact the ability to undertake more urgent "category one" surgeries and emergency surgeries at Liverpool Hospital.
9. I take into account the evidence of Katharine Duffy that planned surgeries, including at Tweed Valley Hospital, Lismore Hospital and the hospitals at Casino and Murwillumbah, have been cancelled and that such surgeries, although less urgent than category one surgeries, can include surgeries that are not life threatening, such as orthopaedic surgeries, but nevertheless the postponement of which has the real potential to cause pain and suffering to the patients. I also take into account Ms Duffy's evidence with respect to the cancellation of some treatments for cancer patients at Lismore Base Hospital including chemotherapy treatments.
10. Also relevant is the statement of Ms Joanne Edwards and in particular, her evidence that the planned industrial action will impact on the ability to transfer patients to and from intensive care units (as to which I refer in particular to paragraph 16 of her statement at Exhibit B). There are also flow-on effects with respect to New South Wales Ambulance (from paragraph 28 of her statement) and the flow on effects of cancelling planned surgeries (as outlined from paragraph 31 of her statement).
11. Fourthly, cl 48(v) and (vi) of the Public Health System Nurses' and Midwives' (State) Award 2023 provides that if a dispute has been referred in accordance with the provisions of the Act, then during these procedures, normal work must continue and there must be no stoppages of work, lockouts or any other bans or limitations on the performance of work. The Association has referred the dispute to the Commission under the Act. The Commission's procedures should be utilised in accordance with this award provision. The provisions contained in awards about dispute resolution processes, such as cl 48, are relevant and I consider that it would be inconsistent with the objects of the Act to disregard their terms or obligations under this award.

ORDERS

1. Having regard to these four grounds and reasons, I make dispute orders in the following terms: A. Pursuant to s 136(1)(c) and s 137(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission makes the following orders: 1. The New South Wales Nurses and Midwives' Association ("the Association"), its officers and employees, and its members employed in the NSW Health Entities listed in Schedule 1 to the document marked MFI 1 ("Health Entities") [1] immediately take steps to cease organising and refrain from taking industrial action on and from Tuesday 10 September 2024 to Wednesday 18 September 2024, by those employees engaged by a Health Entity under the Public Health System Nurses' and Midwives' (State) Award 2023. 2. The Association must by no later than 5.30 pm on Monday, 9 September 2024: 1. remove any reference to the strike action of Tuesday 10 September 2024 from its website, social media accounts or any documents linked to its website or social media accounts; and 2. publish these orders and directions in a prominent position on its website and social media accounts. 1. The Association, its officers, employees, agents and members must not induce, advise, authorise, support, encourage, direct, aid or abet members of the Association to organise or take industrial action contrary to Order A1. 2. These orders take effect immediately.

DIRECTIONS B. Pursuant to s. 136(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission makes the following directions: 1. The Association must by no later than 6:00pm on Monday 9 September 2024: 1. send by email to all members a link to Orders A1, A2 and A3 and a direction to comply with those orders and not take industrial action on Tuesday 10 September 2024; and 2. provide or cause to be provided a copy of Orders A1, A2 and A3 to Association representatives employed by the Notifier, all members of the Association's Executive and all members of the Association's Council. 1. The Association must advise the Notifier's legal representatives, in writing by 6:30 pm on Monday 9 September 2024, of the steps taken to comply with Directions B1(a) and (b) above, including the form of communications, and if written, a copy of any communications, and the further steps it intends to take (if any) to comply with Directions B1(a) and (b) in respect of any relevant member who, by that time, has not been notified.

SCHEDULE 1 - Health Entities Statewide Health Services NSW Ambulance NSW Health Pathology Health Protection NSW Justice Health and Forensic Mental Health Network Shared Services Healthshare NSW Local Health Districts and Speciality Networks Central Coast Local Health District Far West Local Health District Hunter New England Local Health District Illawarra Shoalhaven Local Health District Mid North Coast Local Health District Murrumbidgee Local Health District Nepean Blue Mountains Local Health District Northern NSW Local Health District Northern Sydney Local Health District South Eastern Sydney Local Health District South Western Sydney Local Health District Southern NSW Local Health District Sydney Local Health District Western NSW Local Health District Western Sydney Local Health District Sydney Children's Hospitals Network Justice Health and Forensic Mental Health Network Pillars Cancer Institute NSW Other Albury Wodonga Health

Endnote

1. This Schedule is reproduced below in a Schedule to this decision.

Amendments 11 September 2024 - Date in paragraph 4 amended from 30 August 2024 to 13 August 2024. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2024