Health Secretary (NSW Ambulance) v Health Services Union NSW & Anor

Industrial Relations Commission (NSW)|2024-11-21|Before: Chin J

Background

On 28 August 2024, the Health Secretary, in respect of NSW Ambulance, filed a dispute notification pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("the Act") (matter 2024/317882). This dispute was notified in response to correspondence from Mr David Murphy, a representative of the Central Coast sub-branch of the Health Services Union NSW ("the HSU") on 24 August 2024. The correspondence outlined proposed industrial action planned for 27 August 2024.
The proposed industrial action was for members of the HSU to refuse to undertake a shift movement or transfer outside of the Central Coast zone, subject to negotiation on a case-by-case basis (provided that the overtime list was exhausted) and so-called "fluid" deployments (provided members were entitled to return to their home station to consume healthy food, which they have brought from residence and stored in their home station's fridge).
The dispute was the subject of conciliation by the Commission on 28 and 29 August 2024, 6 and 25 September 2024, 14 and 30 October 2024, and 19 November 2024. For the conciliation period, the parties agreed to proceed on the footing that the proposed industrial action would not apply to movements of paramedics from the Central Coast zone to Sydney or Newcastle for the purpose of avoiding single paramedic responses in accordance with clause 25(l) of the New South Wales Ambulance Paramedics (State) Award 2023.
The parties appeared to reach an impasse and the conciliation of the dispute was adjourned on 19 November 2024. Late on 20 November 2024, the Health Secretary notified a fresh dispute seeking dispute orders to prevent the HSU from taking State-wide industrial action that the union has foreshadowed to take place from the first day shift on Friday 22 November 2024 (matter 2024/432657).
The proposed action is set out in Annexure C to the Dispute Notification filed on 20 November 2024 as follows: ADHSU members are professionals and are authorised to exempt any individual patient from the below actions to avoid undue suffering or an adverse outcome. State-Wide Wear ADHSU Yellow Shield (registered paramedics only) No shift movements (regardless of TFRs)

The substance of the dispute

This resistance of the Central Coast paramedics to being transferred away from the Central Coast zone during their shifts is intrinsically related to the HSU's longstanding claim for NSW Ambulance to increase the number of paramedics rostered on each shift to fulfil what the union regards as "full roster maintenance". The HSU claims that the ongoing failure of NSW Ambulance to do so has resulted in an array of adverse consequences for its members beyond the requirement to transfer to other zones during their shifts to cover unplanned absences. These consequences include adverse health and safety impacts on paramedics arising from matters such as the inadequate provision of crib breaks and excessive extensions of shift overtime. The union contends that its claim for full roster maintenance is necessary to reduce the high injury rates among paramedics in New South Wales. According to the HSU's representative, this underlying dispute has "been going on for decades".
In response, NSW Ambulance proposes to introduce an "On-duty Relief" officer position, the purpose of which is to function as an additional resource to cover for unplanned absences from planned rosters. On 30 October 2024, the parties discussed a proposal to conduct a trial for the introduction of the On-duty Relief positions within the North Sydney zone for a period of approximately nine weeks, to take place in January 2025. The elements of the proposed trial involved the provision of additional crews in the North Sydney zone during the day and during the night, by way of On-duty Relief crews to fill vacancies that arise. Another element was the "ring-fencing" of the North Sydney zone for the purpose of the conduct of this trial, namely, that there would be no transfers from other zones to fill vacancies until all resources and overtime have been exhausted within the North Sydney zone.

The principles

I set out the applicable principles recently in Health Secretary, Ministry of Health v NSW Nurses and Midwives' Association [2024] NSWIRComm 3 at [16]-[21] 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] - [59] (Walton J). I adopt and apply those principles in this matter.
In particular, I emphasise that 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; and not by taking industrial action contrary to the public interest.
I am also mindful that dispute orders are not lightly made by the Commission.

Consideration

With these broad principles in mind, I have decided to make the dispute orders in the terms proposed by the notifier, with some amendment. I have also decided to make recommendations and directions for the resolution of the underlying dispute between the parties. I do so on three grounds.
Firstly, the ability of the HSU and the APA to use the Commission's powers, and whether conciliation and arbitration have been used, is a significant factor in this matter. The HSU and APA confirmed that the underlying dispute in the matter being conciliated by the Commission consist of the same issues which have precipitated the foreshadowed industrial action. Despite this, and other than participating in conciliation proceedings in a dispute notified by the Secretary, the HSU has not initiated any proceedings or made any application in the proceedings before the Commission to pursue any relevant relief for their members' grievances. The APA has had no involvement in Commission proceedings on the underlying dispute whatsoever, until its email concerning industrial action this morning. The dispute proceedings involving the HSU had been adjourned on 21 November 2024 for the very purpose of giving the parties an opportunity to advance the matter to arbitration. The fact that the Commission's extensive arbitration powers are yet to be utilised by the parties is a significant factor in favour of issuing the dispute orders in this case.
I note again 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 HSU and the Health Secretary have a dispute currently before the Commission which has not yet proceeded to arbitration of the very issues that are motivating the unions' planned industrial action is 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.
Secondly, the evidence about the consequences of the planned industrial action, on balance, favours the making of dispute orders. I take into account the evidence of the likely effects of the planned industrial action given by Mr Wayne McKenna in his statement dated 21 November 2024 (Exhibit A-1). In particular, Mr McKenna was not cross-examined on his evidence that the proposed ban on staff movements would create a risk of a dual crew not being formed, or of delays in forming such crews, which increases the propensity for single officer responses which increases the risk of adverse patient outcomes. In addition, Mr McKenna reaffirmed that his direct discussions with Control Centre staff indicate that staff movement bans will add additional cognitive load for Control Centre dispatchers, which will introduce a risk of delays in response times. Mr McKenna was able to point to past instances of adverse effects arising from previous staff movement bans, about which he was not cross-examined. I accept his evidence in this regard. Similarly, I accept Mr McKenna's evidence that the limitation on undertaking non-urgent - but (on the HSU's own evidence) potentially time sensitive - "R3, R5 and R6" patient transfers will detrimentally affect the flow of patients from NSW Ambulance through the hospital system and the provision of resources.
The HSU relied on the statement of Ms Tess Oxley dated 21 November 2024 (Exhibit HSU-1). Whilst I accept that her evidence as to the adverse health and safety consequences for hard-working, dedicated and professional paramedics like her, arising from the existing rostering system may be highly relevant to any consideration of the merits of the underlying dispute, I am not satisfied that sufficient measures are in place to negate the concerns for patient care expressed by Mr McKenna, much of which went completely unchallenged in the course of his cross-examination.
Thirdly, cl 47(f) and (g) of the NSW Ambulance Paramedics (State) Award 2023 provides that the status quo with respect to work procedures must continue while the dispute procedures are in place, including the referral of the matter to the Commission. 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 47, 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.
In the course of closing submissions, Ms Barker for the HSU conceded that arbitration of the dispute by the Commission might be "a good process", but expressed her members' concerns about the process potentially taking up to 12 months and, frankly, expressing confidence in achieving the union's aims by the use of industrial force.
For the reasons given earlier, the system of regulation of industrial disputation under the Act does not tolerate this approach. I do not propose to do so.
In my view, the dispute orders should be made and the matter programmed for arbitration, after the parties have had an opportunity to trial the proposed On-duty Relief positions in the zone and under the conditions that were, according to Mr McKenna, requested by the HSU.

Orders

Having regard to these 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 Health Services Union NSW ("the HSU"), its officers and employees, and its members employed in the NSW Ambulance immediately take steps to cease organising and refrain from taking industrial action on and from Friday 22 November 2024 until the conclusion of the arbitration proceedings on 28 March 2025 referred to in the directions made in these proceedings by the Commission on 21 November 2024, as foreshadowed in the notice at Annexure C to the dispute notification filed on 20 November 2024. 2. The Australian Paramedic Association (NSW) (APA), its officers and employees, and its members employed in the NSW Ambulance immediately take steps to cease organising and refrain from taking industrial action on and from Friday 22 November 2024 until the conclusion of the arbitration proceedings on 28 March 2025 referred to in the directions made in these proceedings by the Commission on 21 November 2024, as foreshadowed in the email from the APA dated 21 November 2024 in Exhibit APA-1. 3. The HSU and the APA must by no later than 8.00pm on Thursday, 21 November 2024: 1. remove any reference to the proposed industrial action commencing on 22 November 2024 from its website, social media accounts or any documents linked to its website or social media accounts; 2. publish these orders and directions in a prominent position on its website and social media accounts, and by electronic newsletter disseminated by email to members; 3. provide a copy of these orders to the HSU's and APA's respective officers; and 4. advise the Notifier's legal representative in writing of the steps taken to comply with the directions above, including the form of communications, and if written, a copy of the communications. 1. The HSU and the APA, their officers, employees, agents and members must not induce, advise, authorise, support, encourage, direct, aid or abet members of the HSU and the APA to organise or take industrial action contrary to Order A1. 2. These orders take effect immediately.

Recommendations B. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission makes the following recommendations: 1. The parties participate in a trial of the introduction of on the On-duty Relief positions within the Western Sydney zone for a period of approximately eight weeks, to take place commencing on and from 6 January 2025. 2. The proposed trial is to involve the following elements: 1. the provision of additional crews in the Western Sydney zone during the day and during the night, by way of On-duty Relief crews to fill vacancies that arise; and 2. the "ring-fencing" of the Western Sydney zone for the purpose of the conduct of this trial, namely that there would be no transfers from other zones to fill vacancies until all resources and overtime has been exhausted within the Western Sydney zone.

Directions C. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission makes the following directions: 1. The parties are to report back to the Commission as to the results of the trial referred to in Recommendation B1 on 3 March 2025. 2. The parties are to file and serve any application seeking relief in respect of the disputes by 3 March 2025. 3. The parties are to file and serve and exchange any evidence on which they rely in support of their applications by 24 March 2025. 4. The dispute matters are listed before Justice Chin for arbitration on 27 and 28 March 2025. NOTE: 1. Leave is granted to the Notifier to amend its dispute notification to include the Australian Paramedic Association (NSW). 2. Leave is granted to the parties to apply on 3 days' notice.

Amendments 25 November 2024 - Typographical error 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: 25 November 2024

Industrial Relations Act 1996(NSW)ss 130, 135(3), 136(1)(c), 137(1)(a)

At a glance

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