Health Secretary v Australian Salaried Medical Officers' Federation

Background

1. At the compulsory conference on 18 October 2024 the parties reached an agreement which the Notifier's legal representative placed on transcript and which the Respondent's advocate accepted. The contents of that agreement were: "MATTSON: … That the Federation will not advise, instruct or recommend to its members to submit a resignation prior to 11 November 2024 and say nothing further in that message. Prior to 11 November 2024, the parties will engage in private discussions and mutual gain bargaining meetings. There will then be a report back before the Commission on 11 November 2024 at Parramatta. And finally in respect of the proposed determination, that it won't be issued before Wednesday in principle." (Tcpt 18 October 2024, p 5, 38-45)
2. On 11 November 2024, the Respondent's advocate gave the following undertaking to the Commission: "PICONE: So I have confirmation that ASMOF can continue with the undertaking that it made on 18 October up until 19 December, so that undertaking was that we would not advise, instruct or recommend its members to submit a resignation, so we are happy to continue with that, noting that we also don't have control over our members or any psychiatrist's decision to resign their employment from New South Wales Health, and that was my understanding of the discussions that I had with Ms Onysko prior to this report back, which was the reason for us deferring today's session." (Tcpt 11 November 2024, p 2, 41-48)
3. It is apparent that in referring to the undertaking Ms Picone was referring to the agreement made on 18 October 2024.
4. When a related award matter was before the President on 9 November 2024, the respondent gave an undertaking in broad terms not to organise, encourage or incite industrial action.

Recommendation given by me in conciliation on 17 December 2024

1. On 17 December 2024 the matter was before me for further compulsory conference after the Notifier became aware of: a meeting which took place on 16 December 2024; and a large number of likely or potential resignations following the meeting. At that compulsory conference, I made a recommendation that the union communicate to its members who had resigned, that they reconsider their action to resign. And also, that the union communicate to its members who may be considering resignation, that the members should not put that action into effect at that time.
2. On 18 December 2024, Mr Holland of the Respondent sent an email to the registry of the Commission, copying the Notifier's legal representative. That email was in the following terms: "Dear Registry 2024/00385638 - Health Secretary, Ministry of Health v Australian Salaried and Medical Officers Federation (New South Wales) We refer to the above matter. This email constitutes formal notification of the Union's position regarding the recommendation made at the Compulsory Conference before Senior Commissioner Constant yesterday. At the conference mentioned above, the Union agreed to consider the recommendation to communicate to its members to either reconsider their resignations, if already submitted, and to advise members considering resignation to refrain from doing so. The Union's State Council convened last night to deliberate on this recommendation. After careful consideration, the State Council has determined that it cannot endorse such a recommendation. Since 18 October, the Union has consistently advised Psychiatry members against resigning. This proactive stance has unfortunately resulted in considerable criticism from the Psychiatry group for a perceived lack of support. The decision of Psychiatry doctors to resign following the Ministry of Health's proposal on Friday, 13 December 2024, is an individual decision made by each doctor and is neither endorsed nor facilitated by the Union. The State Council believes that continuing to advocate for a course of action contrary to the deeply held concerns of our members would cause significant reputational damage to the Union. We have copied this email to the applicant for their information."

Dispute orders sought by the Notifier in arbitration

1. The Health Secretary now seeks the following dispute orders: Pursuant to ss. 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission makes the following dispute orders: 1 The Australian Salaried Medical Officers' Federation (New South Wales) ("the Federation"), its officers, employees, agents, delegates and members cease and refrain from taking any steps to co-ordinate, organise, facilitate or encourage staff specialists employed in the NSW Health Entities listed in Schedule 1 ("Health Entities") to resign from their employment in concert with others to further industrial demands. 2 The Federation, its officers, employees, agents, delegates and members must not induce, advise, authorise, support, encourage, direct, aid or abet members of the Federation to organise or take action contrary to Order A1. 3 The Federation, its officers, employees, agents, delegates and members must not distribute a template resignation letter relating to further industrial demands. 4 These orders take effect immediately and operate for six months.
2. The Health Secretary also seeks a number of directions and recommendations. Some of the recommendations and directions sought were made in full or in part yesterday, including a recommendation that staff specialist members of the Federation who are employed in the New South Wales Health entities listed in sch 1 to the draft orders provided by the notifier, who are psychiatric staff specialists, do not resign from their employment in furtherance of the industrial demands being made on their behalf by the Federation until the matter was next before the Commission.
3. A purpose of this recommendation, in light of the uncontroverted evidence before the Commission yesterday, which I will refer to further below, and the acceptance of the significant impact of what has been referred to as "mass resignations", was to seek to effect a pause in the resignations by the individual psychiatric staff specialists until I could consider what orders I was able, and in my discretion, willing to make, based on the evidence and submissions put to the Commission yesterday.
4. It was not my intention then, nor is it now, nor is it within my power, to prevent an individual medical professional exercising their right to resign. However, given the accepted impact of the loss of these professionals, particularly en masse, from the NSW Health system it is appropriate that an industrial tribunal like the Commission seeks to influence these individuals to see through the industrial process to the end of it, including the process of mutual gains bargaining, before resigning in support of their industrial demands.

Evidence

1. The Health Secretary relied on the following written evidence: 1. Two statements from Melissa Collins, one dated 17 December 2024 ("Collins's first statement") and the second dated 18 December 2024; 2. Statement of Joanne Edwards PSM; 3. Statement of Jo-Anne Karnaghan; 4. Statement of Justine Harris; 5. Statement of Rebecca Nogajski; and 6. A number of documents produced by the Respondent.
2. None of the Respondent's witnesses were cross-examined.
3. Given the urgency with which this dispute is being addressed I will not attempt to summarise all of the evidence.
4. Much of the Health Secretary's evidence went to the impact of the resignations on the NSW Health system and NSW generally. This evidence about the effect of the resignations was not contested.
5. Collins's first statement contained evidence about the use or implementation of "a mass resignation strategy for doctors" by the federal branch of the Australian Salaried Medical Officers' Federation ("Federation") in 2014: par 57 - 61.
6. Ms Collins set out that the then President of the Federation was Dr Tony Sara who is now the current Secretary of the Respondent and he was quoted in an article as being prepared to "exercise the nuclear option" when referring to the hundreds of signed resignation letters at that time: par 59.
7. Ms Collins's evidence was that she was concerned that the strategy implemented by the Federation in Queensland in 2014 was being used currently in NSW by the Respondent.
8. In accordance with this concern, there was material produced by the Respondent which indicated that its assistance may have continued past the date of 18 October 2024.
9. This evidence produced by the Respondent and tendered by the Notifier, such as exhibits N13 and N14, when read together support a conclusion that the Respondent has supported the industrial action.
10. For example: Exh N13 which was produced by the Respondent is a series of WhatsApp messages including various messages from persons whom I accept are Dr Sara and Dr Spooner.
11. This document contains records of various individual messages which are not the proverbial "smoking gun". In fact many of the messages acknowledge that the Federation has given a commitment to the Commission and an intention not to break that commitment. However, on balance and overall, the content of this exhibit is in my determination evidence of ASMOF's passive support of the strategy of mass resignations and gives rise to an inference that the support might rise higher than passive, despite the actual words written in individual WhatsApp messages.

Respondent's evidence

1. The Respondent relied on a witness statement from Carolina Simpson made 18 December 2024.
2. Ms Simpson was cross-examined.
3. Ms Simpson is the Communications Manager of the Respondent and gave evidence about a letter from Mr Phil Minns to Antony Sara about a proposed productivity and efficiency pilot and about a meeting which took place on 16 December 2024.
4. Ms Simpson was one of three ASMOF employees and officers in attendance at the meeting on 16 December 2024. Ms Simpson said that ASMOF did not organise nor chair the meeting.
5. Ms Simpson says that she believes that the meeting was organised by a group of psychiatrists who work for NSW Health known as the "Psychiatry Working Group".
6. Ms Simpson's statement set out a large amount of hearsay evidence. I note no objection was taken to this material. I also note that the Commission is not a court of strict pleadings as s 163 of the IR Act provides: 1. The Commission-- 1. is not bound to act in a formal manner, and 2. is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and 3. is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 1. However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session.
7. Relevantly, Ms Simpson set out at pars 21 and 22 information she obtained from Dr Nicholas Spooner, the President of ASMOF and Dr Sara. 21 I have spoken with Dr Spooner who tells me the following, which I believe to be true: a. ASMOF has been assisting its members who are employed by NSW Health in campaigning for better wages and working conditions; b. It is ASMOF's view that individual or group resignation of psychiatrists working for NSW Health would not constitute industrial action; c. In about October 2024, ASMOF members employed by NSW Health indicated an intention to resign from their employment; d. At about this time, ASMOF assisted those members by providing a template letter by which they could so resign; e. In November and December, ASMOF has given various undertakings in relation to industrial action and the resignation of psychiatrists employed by NSW Health; f. Since giving those undertakings: i. ASMOF has complied with the undertakings; ii. ASMOF has not taken any steps to encourage psychiatrists who work for NSW Health to resign their employment; and iii. ASMOF has not organised or encouraged industrial action being taken by psychiatrists who work for NSW Health. 22 I have spoken with Dr Sara who tells me the following, which I believe to be true: a. ASMOF has been assisting its members who are employed by NSW Health in campaigning for better wages and working conditions; b. It is ASMOF's view that the individual or group resignation of psychiatrists working for NSW Health would not constitute industrial action; c. In about October 2024, ASMOF members employed by NSW Health indicated an intention to resign from their employment d. At about this time, ASMOF assisted those members by providing a template letter by which they could so resign; e. In November and December, ASMOF has given various undertakings in relation to industrial action and the resignation of psychiatrists employed by NSW Health; f. Since giving those undertakings: i. ASMOF has complied with the undertakings; ii. ASMOF has not taken any steps to encourage psychiatrists who work for NSW Health to resign their employment; and iii. ASMOF has not organised or encouraged industrial action being taken by psychiatrists who work for NSW Health.
8. On its face, this evidence would lead me to conclude that ASMOF has not been engaging in the relevant industrial action. However, Dr Sara nor Dr Spooner did not give evidence and no reason was given for their non-attendance at the Commission.
9. In light of the material produced by the respondent and tendered by the notifier, for example in Exhibits N13 and N14 Dr Sara's and Dr Spooner's evidence could have explained the inconsistencies with Ms Simpson's hearsay evidence and would have greatly assisted the Commission. Without an explanation for their absence, such as leave or pre-existing commitments, I infer that their evidence would not have assisted the respondent's case. Consequently, I can put little weight on pars 21 and 22 of Ms Simpson's evidence.

Applicable Principles

1. I referred to the principles in giving recommendations ex tempore yesterday but it is important to recognise the purposes of the Commission making dispute orders and the extent and nature of the powers of the Commission to do so.
2. Sub-sections 136(1) and 137(1) of the IR Act provide that the Commission may, in dealing with an industrial dispute in arbitration proceedings, make a 'dispute order', which includes an order that a person (as specified in sub-s 138(1)) "cease or refrain from taking industrial action".
3. As Commissioner McDonald set out in Industrial Relations Secretary on behalf of the Department of Primary Industries and Regional Development v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Work Bans by Fisheries Officers) [2024] NSWIRComm 1065: "16 It is for the notifier to persuade the Commission that the relief sought should be granted. The Commission's power to grant relief, including the making of dispute orders, is discretionary. There is no presumption that in the face of industrial action an order under s 130 of the Act will be made: Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042 at [23], cited in Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association (2022) 320 IR 249 at [36]. Equally, however there is no presumption against the making of dispute orders. The exercise of that discretion will be informed by the IR Act as a whole, noting in particular ss 3 and 146, and the circumstances of the case."
4. It is for the Notifier to establish that the Respondent is engaging in industrial action, and that the Proposed Dispute Orders or other dispute orders should be made.
5. Relevantly, for the circumstances of this application for dispute orders and the urgency with which it has been heard and the impending Christmas shut down period and the serious impact of the resignations of the psychiatric staff specialists on public health in NSW, the Full Bench of the Commission in Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388 said: 37 It is vital that the Commission recognise the broad discretion granted by [the IR Act] to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it. This will involve a variety of considerations, …, but more usually will include the public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation.

Consideration

1. The Commission must consider whether there is industrial action taking place and the Respondent's involvement or influence in respect of such industrial action.
2. I noted when making recommendations and directions yesterday before reserving on the question of the orders that the Respondent has sought to convince me that a campaign of mass resignations in support of increased remuneration and conditions of employment co-ordinated by a union is not industrial action.
3. I am satisfied, however, that this campaign is industrial action and the action can be said to be "industrial" in character: see Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 at [120]. I reiterate that it is not the action of resignation by the individuals that is the industrial action but the collective and organised nature of the action in support and furtherance of the union's and the staff specialists' industrial demands.
4. The Respondent asserts that at least since this matter was before me in October this year, it has not supported the mass resignations of the psychiatrist staff specialists and has complied with, and will continue to comply with its undertakings, as such orders are unnecessary and inutile.
5. The Notifier has satisfied me, based on the evidence referred to above that in this circumstance, the campaign of mass resignations has been supported or encouraged by the respondent; although, since 18 October 2024, the respondent has not engaged in the public manner normally associated with industrial campaigns.
6. The resolution of this question turned on the facts of this matter. After considering the totality of the evidence overnight and noting that neither Dr Sara nor Dr Spooner gave evidence, I accept that a Jones v Dunkel inference arises and I am satisfied that the Respondent has encouraged and supported, and to some extent, facilitated the industrial action. By way of example, the drafting of the proforma resignation letter and the collecting and onforwarding of the letters.
7. In deciding whether to exercise my discretion to make orders, with the consequence of potentially exposing the Respondent to a penalty regime in circumstances where the Respondent has not taken an overtly aggressive stance in its support of the industrial action, I have taken into consideration that to date, recommendations by the Commission have not resulted in the resolution of the industrial dispute and in one case the recommendation has been explicitly rejected by ASMOF, stating that it cannot proactively advocate for a position of not resigning. Accordingly, a different response by the Commission is now appropriate.
8. This leads to the question of the utility of the Commission making orders against the Respondent in these circumstances when the individuals are entitled at any time to resign. The respondent also initially raised the question of oppression given the individuals' rights. The Respondent conceded that the orders sought by the Notifier are not oppressive but pressed the point of utility in circumstances where undertakings have been given, and on the respondent's case, have been complied with.
9. The question of utility was addressed by his Honour Justice Walton in Ministry of Health v NSWNMA [2022] NSWSC 1178. At [52] his Honour referred to a discretion identified by DP Harrison in Education Department v NSWTF [2006] not to make dispute orders that are oppressive or lack utility.
10. Given my findings that there has been support by the respondent of the mass resignations and facilitation of this action, I am of the view that there is utility in making orders, even if such utility is limited.
11. While such orders will not prevent individual psychiatrists from resigning, the orders, if complied with, have the potential to slow down large tranches of resignations being submitted at the same time and forming crunch points when the resignations take effect. It may be that this is, in practice, only of minimal impact or effect, but given the serious impact of the loss of one psychiatrist from the public health system, if the number of resignations are reduced at all, particularly at this time of year, there is an obvious benefit to public health generally and to any individual treated by the relevant psychiatrist who did not resign, not to mention the family and other loved ones of the relevant patient.
12. The following orders, recommendations, and directions I make reflect the Commission's obligation to act in the public interest when the relevant industrial action has potential to have a significant impact on public health in New South Wales. While it is not within my power to prevent an individual from resigning, I have sought to fashion appropriate relief by reference to the merits of the industrial dispute and the steps necessary to resolve it, including the mutual gains bargaining that is taking place.

orders

1. I make the following orders pursuant to ss 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996: 1. The Australian Salaried Medical Officers Federation New South Wales ‑ known as the Federation ‑ its officers, employees, agents, delegates and members cease and refrain from taking any steps to coordinate, organise or facilitate psychiatric staff specialists employed in the New South Wales Health entities listed in sch 1 to these orders, to resign from their employment in concert with other psychiatric staff specialists to further their industrial demands. 2. The Federation, its officers, employees, agents, delegates and members must not induce, advise, authorise, encourage, direct, aid or abet members of the Federation to organise or take action contrary to order one. 3. The Federation, its officers, employees, agents, delegates and members must not redistribute to its members who are psychiatric staff specialists the template resignation letter attached to the email of Aiesha Awan of 2 October 2024, which collectively are exhibit N9 in the proceedings; nor distribute to its members who are psychiatric staff specialists new, amended or further templates of a resignation letter relating to further industrial demands. 4. The Federation, its officers, employees, agents, delegates and members must not collect from psychiatry staff specialists nor forward on behalf of psychiatry staff specialists to the notifier or any other Crown entity identified as the employer, any letters of resignation. 5. These orders take effect immediately and operate until 5.00pm on 14 January 2025.
2. I make the following recommendations and directions pursuant to s 136(1)(a) of the Industrial Relations Act 1996: 1. It is recommended that staff specialist members of the Federation who are employed in the New South Wales Health entities listed in sch 1 do not resign from their employment in furtherance of the industrial demands being made on their behalf by the Federation prior to 15 January 2025. 2. It is recommended that the Federation on behalf of its staff specialist members continue to engage in mutual gains bargaining and that it does so in good faith as required by s 129M of the Industrial Relations Act 1996 and, if necessary, engages in conciliation and arbitration. 3. It is recommended that the Federation communicate by its website, email and in any WhatsApp group to all psychiatry staff specialist members that it will engage in mutual gains good faith bargaining and if necessary, conciliation and arbitration in good faith; 4. It is recommended that the Federation communicate and send via its website, email and any other WhatsApp group to all psychiatrist members a statement stating that in the circumstances of ongoing negotiations with the ministry of health, the Federation recommends that you do not give notice of the resignation of your employment prior to 15 January 2025. 5. The Federation is directed: 1. to communicate and send via its website, email and in any WhatsApp group to all psychiatrist members a link to these orders, recommendations and directions by no later than 3.00pm on 20 December 2024; and 2. to inform the notifier and its legal representatives in writing by 6.00pm on 20 December 2024 of the steps taken to comply with the above directions, including providing a copy of any emails and messages. 1. The matter is listed for report back in person at 11.00am on 14 January 2024. N J Constant Senior Commissioner

SCHEDULE 1 - Health Entities Statewide Health Services NSW Ambulance NSW Health Pathology Health Protection NSW

Shared Services Healthshare NSW eHealth NSW Health Infrastructure Single Digital Patient Record Implementation Authority

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 Sydney Local Health District Western NSW Local Health District The Sydney Children's Hospitals Network (Randwick and Westmead) (incorporating The Royal Alexandra Hospital for Children) Justice Health and Forensic Mental Health Network

Pillars Agency for Clinical Innovation Bureau of Health Information Cancer Institute NSW Clinical Excellence Commission Health Education and Training Institute

Amendments 28 January 2025 - Amendment made to paragraph [4], continuation of quote in paragraph [3]. 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: 28 January 2025