Health Secretary v Australian Salaried Medical Officers' Federation

Health Secretary v Australian Salaried Medical Officers' Federation | Case summary | Zoe

[25]

The Australian Salaried Medical Officers' Federation (New South Wales) (ASMOF) represents the industrial interests of staff specialists, career medical officers, doctors in training (including interns, residents, and registrars) and medical superintendents who are employed in the NSW Health Service.[1]
ASMOF's members went on strike on 8, 9, and 10 April 2025. ASMOF organised this industrial action from 2 April 2025 and 10 April 2025.
The Health Secretary (the Secretary) seeks an order against ASMOF for contravening dispute orders pursuant to s 139(1) of the Industrial Relations Act 1996 (NSW) (IR Act).
The dispute orders were made by Kite AJ on 1 April 2025 in Health Secretary, Ministry of Health v Australian Salaried Medical Officers' Federation (New South Wales) [2025] NSWIRComm 4 ("the Dispute Order Decision"). Those orders relevantly directed ASMOF to immediately take steps to cease organising and to refrain from taking any industrial action on and from 2 April 2025 for a period of three months, and to remove any reference to the strike action from its website and social media accounts.[2]
On 26 June 2025, the Secretary filed a Summons alleging twelve contraventions of the dispute orders. The Summons was issued by this Court on 30 June 2025.
At the outset, ASMOF admitted that, by organising the industrial action, it contravened the dispute orders during the period 2 to 10 April 2025, save for an allegation that it failed to publish the dispute orders in a prominent position (which the Secretary abandoned at the hearing). ASMOF also accepted that the contravention was objectively serious, that its conduct constituted a deliberate defiance of the dispute orders, and that the industrial action was pre-planned.
It was common ground between the parties that ASMOF's contravening conduct is to be treated as a single course of conduct and, therefore as one contravention.
It was further agreed that the maximum statutory penalty applicable in this case under s 139(4)(a) is $50,000[3] and that, in the exercise of this Court's discretion, any penalty should be set within the range $25,000 to $35,000, with a reduction to reflect ASMOF's admission.
For the reasons that follow, I am satisfied that ASMOF's deliberate contravention of the dispute orders made on 1 April 2025 warrants the imposition of a penalty in the sum of $30,500 pursuant to s 139(3)(e) of the IR Act.

[26]

The present proceeding forms part of a wider industrial dispute concerning the remuneration and working conditions of doctors employed in the NSW Health Service, which is currently the subject of arbitration before a Full Bench of the Commission.
It is also associated with the psychiatrists pay dispute considered in Health Secretary, Ministry of Health v Australian Salaried Medical Officers' Federation (New South Wales) (No 2) [2025] NSWIRComm 27 ("the Interim Psychiatrists Case") at [25], in which the Commission made an interim award for the payment of a temporary attraction and retention allowance to psychiatry staff specialists pending the resolution of the broader doctors pay dispute.
The procedural history of the present contraventions is recorded in the Dispute Order Decision at [1]-[3] and in a Full Bench decision pausing the arbitration of the psychiatrists dispute while industrial action was taking place in Health Secretary, Ministry of Health v Australian Salaried Medical Officers' Federation (New South Wales) [2025] NSWIRComm 5 ("the First Psychiatrists Decision") at [1]-[6].
However, the interrelationship between this matter, the psychiatrists dispute and the broader doctors pay dispute make it necessary to set out the salient features of the underlying industrial dispute and the antecedent events culminating in the contraventions now in issue.
This brief historical account is necessary because one of the principal points of divergence between the parties, which emerged at the hearing, concerned the relevance and effect of ASMOF's motivation in organising the strike action. Counsel for ASMOF, Mr Dixon, submitted that, from the time NSW Health first expressed concerns about the bargaining process being undertaken with respect to the doctors pay dispute on 15 January 2025, through to ASMOF's notification of the intended strike action on 2 April 2025 referred to at [38 ] below, ASMOF had become manifestly frustrated by what it regarded as NSW Health's unilateral withdrawal from that process. It was submitted that ASMOF's threat of and subsequent organisation of industrial action was directed to persuading NSW Health to resume its participation in a bargaining process.
On the other side, Mr Mattson who appeared for the Secretary contended that ASMOF's dissatisfaction with the bargaining process neither justifies nor excuses the deliberate defiance of the dispute orders and that there is no need for the Court "to get into the weeds" of those past matters. I return to this issue at [96 ] below.
The underlying dispute originated with the Secretary filing an application in the Commission on 26 June 2023 seeking the variation of six awards to which NSW Health, ASMOF and the relevant doctors are bound. ASMOF opposed this application and advanced its own claims in respect of those six awards. Those awards are:

[28]

The statutory context in which these claims were made and progressed is relevant.
The Secretary made this application after the repeal of s 146C of the IR Act.[4] The former s 146C together with the former Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 imposed a "wages cap" requiring the Commission to give effect to government policy when setting wages for public sector employees. Under that regime, any wage increase to public sector wages was limited to 2.5% per annum, unless unions were able to demonstrate employee-related cost savings or productivity increases.[5] The repeal of this limitation restored the Commission's capacity to effectively arbitrate wage disputes.
The IR Act was also amended with the introduction of a new "mutual gains bargaining" framework in Chapter 2A of the IR Act.[6] Mutual gains bargaining is a collaborative approach to industrial bargaining in which the parties identify and communicate their key needs or interests with a view to reaching an agreement that maximises common interests, and to adopt a consensus-seeking mode of negotiation: IR Act, s 129L(a), (b) and (c). This form of bargaining "aims to create, maintain or strengthen good relationships between the parties": IR Act, s 129L(f). It is thus a form of bargaining the requires a high degree of trust, cooperation and goodwill between the parties. I will return to this aspect of the legislation when assessing ASMOF's submissions as to its motivation for organising the strike action in defiance of the Commission's dispute orders.
In purported alignment with that statutory framework, the NSW Government's Fair Pay and Bargaining Policy 2023 stipulates that mutual gains bargaining is to serve as the primary approach for public sector enterprise bargaining.[7]
In 2024, the parties participated in conciliation before the Commission in the proceedings relating to the staff specialists and medical officers awards referred to at [16 ] above.
On 18 March 2024, Commissioner Sloan recommended that the parties engage in mutual gains bargaining under Chapter 2A of the IR Act. The competing award applications were subsequently stood over pending the parties' participation in this new mode of bargaining.
ASMOF later wrote to the Secretary confirming a schedule of bargaining meetings, indicating its intention to participate in mutual gains bargaining, which NSW Health agreed to undertake. Thereafter, the parties attended pre-bargaining meetings on 22 and 31 July 2024 and 8 and 19 August 2024, followed by an initial bargaining meeting on 9 September 2024 and a further 10 bargaining meetings held between 23 September 2024 and 16 January 2025. The bargaining meetings were led by an independent facilitator.
During this period of bargaining, on 17 October 2024, the Secretary notified a dispute involving the mass resignation of over 180 psychiatry staff specialists employed by NSW Health, which was in furtherance of an industrial demand for a 25% increase in salary for psychiatry staff specialists: the Interim Psychiatrists Case at [8].
On 20 December 2024, Senior Commissioner Constant made dispute orders restraining ASMOF from coordinating, organising or facilitating the mass resignation of psychiatric staff specialists employed by NSW Health, and recommended that the parties continue to engage in mutual gains bargaining: Health Secretary v Australian Salaried Medical Officers' Federation (New South Wales) [2024] NSWIRComm 1081 at [54]-[55].
In January 2025, approximately 200 psychiatric staff specialists tendered their resignations.
NSW Health subsequently raised concerns with the bargaining facilitator and ASMOF that the mutual gains bargaining process was not progressing in a timely manner and expressed a desire to engage the Commission's conventional conciliation and arbitration functions to resolve issues concerning remuneration and working conditions. By letter dated 3 February 2025, NSW Health notified ASMOF of its decision to withdraw from the mutual gains bargaining process.
In response, ASMOF asserted that NSW Health's withdrawal was inconsistent with the good faith requirements attaching to mutual gains bargaining within the meaning of s 129M(1) of the IR Act.
Further, on 10 February 2025, ASMOF's State Council passed the following resolution:

[67]

"(1) The purpose of the civil penalty regime under the FW Act is primarily, if not solely, the promotion of the public interest in compliance with provisions of the Act by the deterrence of further contraventions of the Act.

(2) Reflecting the text of s 546 of the FW Act, the Court's task is to determine what it considers to be an "appropriate" penalty in a particular case. A penalty should not be greater than is necessary to achieve the object of deterrence, and severity beyond that would be oppression. An appropriate penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case.

(3) The assessment of an appropriate penalty may be informed by the factors listed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52 ,152-3 to the extent that those factors relate to deterrence. However, that list is not a rigid catalogue of matters for attention as if it were a legal checklist. Account of the factors listed by French J in CSR, such as an expression of genuine remorse, may moderate the penalty that is appropriate to protect the public interest by deterring future contraventions of the FW Act.

(4) Some concepts familiar from criminal sentencing, such as totality, parity, and course of conduct may assist in the assessment of what may be considered reasonably necessary to deter further contraventions of the FW Act.

(5) The maximum penalties provided for by the FW Act are not reserved for the worst cases. Rather, what is required is that there be some reasonable relationship between the theoretical maximum and the final penalty imposed viewed through the lens of achieving the deterrence which is the purpose of the FW Act civil penalty regime.

(6) In some cases, the circumstances of the contravener may be more significant to the assessment of an appropriate penalty than the circumstances of contravention, because, all other things being equal, a greater financial incentive will be necessary to persuade a well-resourced contravener to abide by the law rather than to adhere to its preferred policy than will be necessary to persuade a poorly resourced contravener that its unlawful policy preference is not sustainable."

[69]

In exercising the discretion to impose a penalty, the Court must give careful attention to the applicable statutory maximum penalty because it invites comparison between the "worst possible case" and the case before the Court and, when balanced with the other relevant factors, provides a "yardstick" for fixing an appropriate penalty.[11] As the High Court explained in Pattinson, the maximum penalty does not otherwise confine the exercise of the court's discretion beyond requiring "some reasonable relationship between the theoretical maximum and the final penalty imposed", which may be established by reference to the circumstances of the contravener and the circumstances of the contravening conduct.[12]
I accept the parties' agreed characterisation of ASMOF's conduct as a single course of conduct and that the applicable maximum penalty is $50,000 pursuant to s 139(4) of the IR Act.
As I explained in the Second Nurses Case at [185], the common law course of conduct principle[13] seeks to prevent an offender from being punished twice for the same "criminality". In Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461; [2010] FCAFC 39 at [39], the Full Court stated that the application of the principle requires a "careful identification of what is "the same criminality" and that is necessarily a factually specific inquiry". In undertaking that inquiry, it is "necessary to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penalties, in order to avoid double punishment".[14]
I am satisfied that there exists a sufficient interrelationship between the factual and legal elements of ASMOF's admitted contraventions in relation to the organisation of industrial action between 2 April and 10 April 2025. The legal interrelationship arises from the fact that ASMOF's contraventions constituted a continuous course of non-compliance with the single set of dispute orders. The factual interrelationship is established by the character of ASMOF's conduct over that eight-day period, which wholly comprised online posts and content and was consistently directed to the coordination, organisation and promotion of the three-day strike. As outlined in [46 ]-[64 ] above, ASMOF's contravening conduct included the publication and continued display of strike-related material on ASMOF's website, the "Cantseeadoctor" website, and its Facebook and Instagram accounts on 2 April 2025, the failure to remove that material between 3 and 10 April 2025, and the publication of further messaging during that period promoting the three-day strike in defiance of the dispute orders. ASMOF also failed to publish the dispute orders on its website by 10:00 am on 2 April 2025. It did so belatedly.
Unlike the Second Nurses Case, no issue of disaggregation arises here. I am satisfied that ASMOF's contravening conduct between 2 and 10 April 2025 formed part of a continuum of coordinated organising activity directed towards the strike days in breach of the dispute orders and therefore constitutes the same "criminality" within the meaning described in Cahill at [39].

[71]

Having regard to the objective seriousness of the contravening conduct, and its relevance to the level of penalty necessary to achieve both general and specific deterrence, I am satisfied that ASMOF's action in organising the strike was deliberate, premeditated and continued between 2 and 10 April 2025. Following the making of the dispute orders on 1 April 2025, ASMOF's State Council resolved, by majority, to proceed with the planned strike. ASMOF has admitted that its defiance of the dispute orders was a conscious decision of its State Council and that the industrial action had been pre-planned.
As Walton J observed in the First Nurses Case at [837], there is a "a continuing need to deter potential contraveners from disregarding and disobeying the orders of the Commission. But where there has been a flagrant and deliberate defiance, there is a heightened need to give substantial weight to general deterrence". I consider that observation to apply in the present case, with ASMOF's conduct properly characterised within the latter category. That is so for the following three reasons.
First, ASMOF refused to reconsider its resolution to proceed with industrial action notwithstanding the Full Bench's orders in the First Psychiatrists Decision at [24], which made the continuation of the related arbitration proceedings contingent upon ASMOF filing and serving an affidavit giving an undertaking to comply with the dispute orders by 9:30am on 4 April 2025. ASMOF's State Council did not resolve to authorise Mr Holland to provide such an undertaking until 11 April 2025, which was after the strike had concluded.
Secondly, although the dispute orders were ultimately published on ASMOF's website, this occurred within approximately two hours after the deadline imposed by Order 2b.
Thirdly, strike-related material published by ASMOF to its website and social media accounts was not removed by 10am on 2 April 2025 as required by Order 2a and continued to promote the industrial action until the strike concluded on 10 April 2025. Certain communications also demonstrated deliberate defiance of the dispute orders. These included the email sent by ASMOF to its members on 2 April 2025 stating "We remain committed to organizing and executing industrial action, communicating with members via social media and direct channels" (referred to at [47 ] above), the statement of Dr Spooner published to its Instagram account on 4 April 2025 that "Our action from Tuesday, 8 April to Thursday, 10 April will be carried out" (referred to at [55 ] above), and the video published on ASMOF's Facebook account on 7 April 2025 of a press conference held by Mr Holland at St George Hospital stating "We will not be intimidated. We will be striking" (referred to at [58 ] above).
Mr Mattson submitted that the present circumstances bear comparison with my observation in the Second Nurses Case at [124] and [200] that the Association's strike action was undertaken with a "flagrant" and "unapologetic disregard" of the Commission's dispute orders". I accept this submission. Similar observations apply in this matter. ASMOF deliberately breached the dispute orders and did so flagrantly at the time, choosing to delay the related psychiatrists arbitration instead of taking up the Commission's invitation to correct its behaviour and comply with its orders.
ASMOF still refuses to show genuine contrition, expressing only regret that it considered itself compelled to proceed with the strike.
I accept the parties' agreement that specific deterrence is a significant consideration in the present case. This factor may reflect the need to deter a union from committing similar offences in the future.[16] As Walton J observed in the First Nurses Case at [838]-[841], considerations of specific deterrence may arise notwithstanding a long history of good industrial behaviour, particularly where the contravention is brazen and serious and involves a readiness to proceed with industrial action in defiance of dispute orders, even if it constitutes a first contravention.
I accept Mr Dixon's submission that there was no evidence of any ongoing threatened or impending industrial action in connection with the broader doctors pay dispute, which was scheduled to (and did) commence two days after the hearing of this matter. I have taken into account ASMOF's subsequent embracement of the Commission's arbitral processes as the proper means by which to resolve its pay dispute in imposing a penalty that is lower than what might otherwise be warranted.
I nevertheless consider ASMOF's conduct to be brazen and serious and, notwithstanding its history of good behaviour, an element of specific deterrence is required to discourage future attempts to resolve its industrial disputes by contravening the Commission's dispute orders.
These matters also bear directly upon the weight to be given to general deterrence. In accordance with Pattinson and consistently with the approach I adopted in the Second Nurses Case at [200],[17] substantial weight must be given to general deterrence in fixing an appropriate penalty against ASMOF.

[72]

The surrounding circumstances in which ASMOF engaged in the contravening conduct, including its motivation, are also relevant to deterrence.
ASMOF submitted that the industrial action was directed to compelling the Secretary to resume participation in mutual gains bargaining following the Secretary's letter on 3 February 2025 which notified ASMOF of its intention to withdraw from that process. ASMOF contends that it expected the Secretary to engage meaningfully in mutual gains bargaining in accordance with the legislative and policy framework underpinning that process, namely Chapter 2A of the IR Act and the NSW Government Fair Pay and Bargaining Policy 2023. ASMOF understood this framework to promote cooperation and the primacy of the mutual gains bargaining process, departing from the traditional adversarial processes of conciliation and arbitration.[18]
ASMOF perceived the Secretary's withdrawal from the mutual gains bargaining process as inconsistent with those legislative and policy commitments, a perception which was heightened by what it regarded as insufficient engagement by the Secretary in bargaining meetings, delays arising from the need to obtain government approvals for bargaining positions, and a lack of authority for representatives participating in bargaining meetings.
As I have set out at [29 ]-[38 ] above, ASMOF progressively escalated its position in the weeks following the withdrawal, culminating in an explicit threat of industrial action communicated to the Secretary. On 10 February 2025, ASMOF's State Council passed a resolution which authorised its members to participate in an industrial action campaign, and in the weeks that followed ASMOF communicated with its members regarding the proposed strike action. By letter dated 21 March 2025, ASMOF indicated that it would consider providing an undertaking that it would not engage in industrial action, amongst other things, NSW Health immediately resumed mutual gains bargaining. ASMOF reiterated that position in a further letter of 2 April 2025, stating that it would halt the strike action scheduled for 8 to 10 April 2025 if the Secretary committed to the immediate resumption of negotiations.
Mr Dixon submitted that this context explained, if not justified, ASMOF's organisation of the industrial action, and it was an important element of the circumstances surrounding the contravening conduct. The Secretary's withdrawal from the mutual gains bargaining process was said to be the operative trigger for ASMOF first threatening, and then engaging in, industrial action. Mr Dixon sought to characterise ASMOF's contravention as a form of "reciprocal" action in response to what it perceived to be a breach of the government's commitment to mutual gains bargaining.
ASMOF contended that a penalty at the lower end of the agreed range should be imposed, relying on, amongst other matters, its stated preference to resolve the dispute through the Government's mutual gains bargaining process, and describing its conduct as a "last resort" taken to avoid what has become "long and complex litigation".
I accept that ASMOF's motivation forms part of the surrounding circumstances of the contravening conduct and assists to explain the breaches of the dispute orders: Secretary, Department of Education v Australian Education Union New South Wales Teachers Federation (NSWTF) Branch (No 2) [2022] NSWSC 1365 at [88].
I do not, however, accept that ASMOF's asserted motivation carries any exculpatory or mitigatory significance. There are three reasons for this conclusion.
First, ASMOF's reasoning was misguided. Coercion is the negation of cooperation. As I have outlined at [19 ] above, mutual gains bargaining is a quintessentially cooperative and collaborative approach to bargaining.19[19]t is a "consensus-seeking" process which requires the parties to work together to try and solve their problems.20[20]he bargaining process aims to create, maintain or strengthen good relationships between the parties.21[21]he threat or use of industrial force is fundamentally inconsistent with the principles of mutual gains bargaining enshrined in s 129L of the IR Act. To attempt to coerce a party into this process is to cast the seeds of any mutual gains onto fallow ground.
Secondly, the IR Act does not promote mutual gains bargaining as a separate bargaining stream detached from the orthodox dispute resolution processes of conciliation and arbitration. Rather, the statutory scheme contemplates that where a dispute cannot be resolved through mutual gains bargaining, the matter may proceed to the more conventional dispute resolution processes of the Commission, namely, conciliation and, if necessary, arbitration.[22]
The structure of Chapter 2A is, therefore, directed to the orderly transition of unresolved bargaining into the conventional dispute resolution mechanisms provided for in Chapter 3 of the IR Act. Section 129Q(1) provides that the giving of written notice of a declaration under s 129P(3) is taken to be a notification of an industrial dispute under s 130 of the IR Act. Section 129P(1) provides that where the parties are unable to reach agreement, the mutual gains bargaining may be declared unresolved by either the facilitator or one or both of the parties, whether or not the services of a facilitator have been used.
Prior to the amendment of s 129P(1) of the IR Act,[23] and at the time the Secretary communicated its withdrawal from mutual gains bargaining, s 129P(1) exclusively conferred on the facilitator the power to declare the bargaining unresolved upon the facilitator, and not upon a party where a facilitator had been appointed. In that statutory context, the former s 129P(1) did not permit the Secretary unilaterally to declare the process unresolved. On 31 January 2025, the facilitator wrote to the parties expressing the view that reasonable progress had been made and that continued negotiations offered greater prospects of resolution than arbitration.
Even if the facilitator had declined to make a declaration under s 129P(1), ASMOF, as an industrial organisation of employees, retained the capacity to notify the Commission of the existence of an industrial dispute under s 130(1)(a), thereby enlivening the operation of Part 1 of Chapter 3 of the IR Act. That pathway constituted a lawful means of progressing unresolved mutual gains bargaining processes through conciliation under s 133 and, if necessary, arbitration under s 135, rather than by recourse to industrial action in defiance of the dispute orders.
ASMOF did in fact invoke this dispute resolution mechanism by lodging a dispute notification on 12 February 2025, seeking the Commission's assistance through conciliation and, if necessary, arbitration in relation to its contention that the Secretary had acted contrary to the good faith requirements in Chapter 2A of the IR Act by withdrawing from mutual gains bargaining. Although that notification was subsequently withdrawn, its lodgement demonstrates that ASMOF was aware of, and had already engaged, the statutory dispute resolution processes available to it.
The operation of the Commission's dispute resolution framework was also brought to the parties' attention by Kite AJ in the Dispute Orders Decision at [9], in which his Honour observed that the fact existing awards were listed for programming for arbitration "does not mean that conciliation or negotiation cannot continue with a view to minimising the issues to be arbitrated", and that such a listing "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." In those circumstances, I am unable to accept ASMOF's characterisation of the industrial action as a measure of last resort.
Thirdly, NSW Health's withdrawal from the mutual gains bargaining process was confined to that process and did not amount to a refusal to bargain with ASMOF at all. Rather, its withdrawal reflected a decision not to continue within the mutual gains bargaining framework while remaining prepared to engage the Commission's conciliation and arbitration processes under Part 1 of Chapter 3 of the IR Act_._ In January 2025, NSW Health expressed reservations about the appropriateness and practicality of continuing mutual gains bargaining, including concerns about the timely resolution of issues while ASMOF was simultaneously communicating with members about prospective industrial action. By 30 January 2025, and formally on 3 February 2025, NSW Health withdrew from the mutual gains bargaining process, stating that it had produced little meaningful progress despite extensive engagement and that the escalating psychiatrists dispute overlapped with the matters being pursued in that process and required urgent resolution (referred to at [27 ] above). NSW Health expressed the view that the Commission's conciliation and arbitration functions were the appropriate statutory mechanisms for progressing the dispute.

[73]

It was common ground that ASMOF's conduct was not directed towards maximising disruption to hospital operations. The point of contention between the parties concerned the extent to which ASMOF's cooperation in fact mitigated the effects of the strike action.
ASMOF provided evidence that it took steps to minimise the impact of the industrial action by providing NSW Health with a detailed plan on 4 April 2025, setting out how the proposed industrial action would take place and the associated mitigation steps. It also established a Rapid Response Team of four representatives, which worked over the weekend of 5 and 6 April 2025 for mitigation purposes. ASMOF further relied upon evidence that, until the strike occurred, the parties engaged in correspondence directed towards mitigating its impact, notwithstanding disagreements arising as to the availability of information necessary for planning the industrial action. It also pointed to a meeting with the Premier on 7 April 2025 in an attempt to avert the strike if the Government agreed to recommence bargaining and reconsider its position.
By contrast, the Secretary contended that ASMOF's assistance made planning difficult, in that ASMOF directed its members not to inform NSW Health whether, or when, they intended to participate in the industrial action. It was further submitted that, although ASMOF had promised to provide details of the proposed industrial action by Wednesday, 2 April 2025, that information was not provided in a timely manner. As a consequence, the Secretary was required to relist the matter before the Commission on two occasions, and the materials ultimately provided were redacted, thereby delaying NSW Health's ability to manage the effects of the industrial action.
I accept that there is no basis to conclude that ASMOF acted with the intention of causing maximum damage or disruption.[24] Nor is there evidence that ASMOF deliberately delayed or diminished its assistance to NSW Health or otherwise acted with the purpose of frustrating NSW Health's capacity to plan for the industrial action.
However, for the reasons advanced by the Secretary, I am satisfied that ASMOF's approach to mitigating the effects of the industrial action was not entirely satisfactory. In particular, there was delay in ASMOF providing information to NSW Health concerning the scope of the proposed industrial action was delayed, which necessitated further intervention by the Commission.
At [6] of the Dispute Orders Decision, Kite AJ observed that ASMOF had foreshadowed that information concerning the proposed industrial action within the respective areas of responsibility of the relevant health entities would be provided on 2 April 2025. That timing would have afforded NSW Health approximately five days' notice before the strike and enabled contingency planning to occur. That material was not provided on that date and was only supplied by ASMOF on the morning of 4 April 2025. The delay occasioned further conciliation before Kite AJ on 3 April 2025, during which Mr Holland undertook to provide the strike plans and associated documentation, noting that collating the material would be an onerous task. When the material was provided on 4 April 2025, NSW Health raised concerns as to its completeness as parts of the information had been redacted. At a further conciliation on 4 April 2025, Kite AJ made directions, which were unopposed, requiring ASMOF to provide all strike plans and related documents and to identify with precision the industrial action to be taken by its members by 2.00 pm that day.
Kite AJ also identified that communications disseminated by ASMOF to its members directed them not to respond to local management requests for notification about attending shifts during the strike period and instead to refer enquiries to union organisers: the Dispute Orders Decision at [6]. His Honour characterised that communication as demonstrating ASMOF's "awareness that minimum staffing may not be met without the respondent's intervention to direct people to work" and "it is discouraging members from advising local management of the scope of industrial action to be taken in their areas": the Dispute Orders Decision at [7].
I agree with Mr Mattson's submissions that, although there is no evidence that ASMOF's approach was adopted with improper intent, it nonetheless had practical consequences for NSW Health's capacity to plan for and manage the industrial action. In those circumstances, ASMOF's efforts to mitigate the effects of the industrial action was not as helpful as it should have been. A centralised communications strategy may have been reasonable in principle, but only if accompanied by the timely provision of information concerning the scope and timing of the proposed industrial action. It was not so accompanied. The delay in providing that information impeded NSW Health's capacity to plan for and manage the industrial action.
In that respect, ASMOF's conduct stands in contrast to the position I addressed in the Second Nurses Case at [216]-[220], where the Association provided timely and direct communications to the Ministry of Health, including urging members to notify local managers as soon as practicable of their intention to take strike action, thereby materially assisting mitigation efforts notwithstanding the scale of the industrial action.
Overall, I accept that ASMOF ultimately cooperated with NSW Health in helping to minimise harm and it did not intend to inflict maximum damage. However, those matters must be assessed in context. ASMOF was organising industrial action of significant magnitude in deliberate contravention of the Commission's dispute orders, and the late provision of information concerning the planned strike occurred against that background. In those circumstances, ASMOF's conduct fell short of what might reasonably be expected of a registered industrial organisation.

[74]

I broadly accept the Secretary's evidence as to the impact of ASMOF's strike action as set out in the "Situation Reports" provided through the evidence of Ms Joanne Edwards, Executive Director, System Management Branch in the NSW Ministry of Health. The statistical data recorded in those reports was not in dispute.
The reports were compiled daily during the strike period between 7 April and 11 April 2025. The reports collated data gathered at multiple times throughout each day from different teams within the Ministry of Health and were coordinated by a central team known as the System Flow Centre, which had been established to assist with system management in response to the industrial action.
The reports recorded approximately 9,394 absences by medical officers employed by NSW Health that were attributed to the industrial action. The daily breakdown of absences were approximately 3,343 medical officers on 8 April 2025, 2,968 on 9 April 2025, and 3,083 on 10 April 2025. These figures were not in dispute.
The strike caused significant disruption to the provision of health services across the State. A substantial number of surgical and treatment procedures were required to be rescheduled, including Category 1 procedures, being urgent surgeries required to be performed within 30 days and which may involve life-saving treatment.
The reports indicate that approximately 663 surgical procedures were rescheduled, including 60 Category 1 surgeries, together with 679 oncology appointments rescheduled across 10 LHDs/SHNs, 201 endoscopy procedures (including 108 Category 1 endoscopy cases), 134 cardiac catheter laboratory procedures, and 5,376 outpatient appointments across services including maternity, cardiology, respiratory and paediatrics.
Although there may be some variance in the precise extent of the disruption due to the nature of the reporting process, I accept that the statistical material, together with Ms Edwards' evidence concerning the consequences of delayed surgery and treatment, demonstrates that the strike had significant practical consequences for patients. Those consequences extended to patients' families and carers and to other patients whose procedures were deferred to accommodate altered clinical priorities.
I reject the evidence given by Mr Holland that these consequences could be characterised as "mere disruptions" or that the "residue impact to patients was inconvenience" as the natural result of industrial action. I am satisfied that the disruption caused by the strike was substantial. The rescheduling of surgical procedures and medical treatment would very likely have resulted in real and considerable inconvenience for the affected patients.

[75]

The Secretary submitted that ASMOF has expressed no remorse or contrition. In that regard, reliance was placed on the observations of Besanko, Wigney and Bromwich JJ in Kazal v Thunder Studios Inc (California) (2017) 350 ALR 216; [2017] FCAFC 211 at [167], where their Honours described an expression of regret conveyed on behalf of the defendant by senior counsel at the sentencing hearing, after the defendant had been convicted, as the "wrong kind of sorry".
Mr Dixon submitted that, although ASMOF had not apologised for the industrial action, Mr Holland had expressed "regret" that ASMOF felt compelled to take that course. He submitted that, in the circumstances, it would be difficult for ASMOF to offer a sincere apology given that the industrial action had been deliberately undertaken. Further, Mr Holland's evidence attributed ASMOF's regret to reflect its view that the industrial action would not have been necessary had NSW Health not treated it with perceived "apathy and even disdain", including by withdrawing from the mutual gains bargaining process.
I am satisfied that ASMOF has failed to express genuine remorse or contrition. I accept the Secretary's characterisation that ASMOF's expression of regret should be treated as the "wrong kind of sorry" in the sense described in Kazal. The absence of remorse or contrition nonetheless remains relevant to the assessment of specific deterrence.[25]
I also have regard to the fact that, following the industrial action, ASMOF's State Council resolved on 11 April 2025 to authorise Mr Holland to provide an undertaking to the Full Bench in the First Psychiatrists Decision that ASMOF would henceforth comply with the dispute orders made on 1 April 2025. Mr Holland subsequently provided that undertaking on behalf of ASMOF. The undertaking provided by Mr Holland mirrored the requirements of the dispute orders outlined at [36 ] above, notably in requiring ASMOF to take immediate steps to cease organising, and to refrain from engaging in, industrial action for a period of three months from 2 April 2025.
However, the weight to be afforded to ASMOF's undertaking is limited. It was provided after the contravening conduct had occurred, and ASMOF was otherwise already bound by the terms of the dispute orders.
Although admissions may, in principle, constitute an expression of remorse,[26] I do not consider that ASMOF's admissions in this case to be an expression of this kind. Rather, it is properly characterised and confined as an admission to the nature of its contravening conduct.
Nevertheless, I am inclined to consider that ASMOF's admission has utilitarian value. Taken together with the undertaking provided by Mr Holland, these matters operate to reduce the penalties that would otherwise have been imposed in respect of the strike action: Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (2023) 322 IR 233; [2023] FCA 72 at [93].

[76]

In arriving at the appropriate penalty I undertake the process of "instinctive synthesis", weighing these matters together with all other relevant considerations: Markarian at [39].
The Secretary submitted that a penalty of $35,000, representing approximately 70% of the maximum penalty, would appropriately reflect the need to give substantial weight to both general and specific deterrence.
In that regard, Mr Mattson placed reliance upon the observations I made in the Second Nurses Case at [225], emphasising that penalties for breaches of dispute orders must be fixed at a level sufficient not only to deter the contravener but also to deter others from similar conduct and to encourage industrial organisations to resolve disputes through the system of conciliation and arbitration established by the IR Act. Mr Mattson also sought to distinguish the present case from the First Nurses Case at [861], where Walton J imposed a penalty of $25,000, representing 62.5% of the then applicable maximum penalty for the Association's first contravention.
ASMOF submitted that a penalty of $25,000, representing approximately 50% of the maximum penalty, would be appropriate in the present case. Mr Dixon emphasised that ASMOF is a first-time offender and that the present matter concerns a single contravention. He sought to distinguish the present case from the Second Nurses Case at [228], where I imposed aggregate penalties for four separate contraventions which amounted to approximately 68% of the applicable maximum penalty. Mr Dixon also submitted that ASMOF's contravening conduct is distinguishable from that considered in the Second Nurses Case, where I found that the 27 alleged contraventions should be treated as four separate courses of conduct arising from breaches of three separate dispute orders.
Finally, there was no direct evidence before the Court concerning ASMOF's financial resources or capacity to pay a substantial penalty. However, communications sent by ASMOF to its members on 2 April 2025 included the statement that "the government will likely seek penalties ... [and] we are preparing to raise the necessary funds to defend against this, as it is vital to secure a fair and equitable Award" (referred to at [47 ] above). I infer from those communications that ASMOF anticipated the possibility of penalties and was prepared to meet them.
ASMOF is a significant industrial organisation representing thousands of members. Having regard to the Commission's longstanding experience with the Association as a substantial and well-resourced industrial organisation,[27] there is no basis to reduce the penalty on the ground of its capacity to pay.[28] The statutory maximum penalty in respect of a single contravention is in any event relatively modest.
ASMOF's defiance of the dispute orders was deliberate and sustained. The penalty imposed must therefore reflect the need both to specifically deter ASMOF - albeit a first-time offender − from future breaches of dispute orders and to generally deter other industrial organisations from engaging in similar conduct.[29]
Having regard to the objective and subjective factors identified above, an order should be made under s 139(3)(e) for the payment of a penalty of $30,500.

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Judgment (101 paragraphs)

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