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

Industrial Relations Commission (NSW)|2024-11-28|Before: Chin J

Revised EX TEMPORE decision

In Health Secretary (NSW Ambulance) v Health Services Union NSW & Anor [2024] NSWIRComm 12 ("the Dispute Decision"), I made urgent dispute orders preventing the Health Services Union NSW ("the HSU") and its members from taking industrial action that was planned by the union in response to what it claimed was the ongoing failure of Health Secretary, with respect to NSW Ambulance ("NSW Ambulance") to maintain "full roster maintenance". The union also alleged that this failure has resulted in adverse health and safety outcomes for paramedics arising from matters such as the inadequate provision of crib breaks and excessive extensions of shift overtime: the Dispute Decision at [8].
In response to this concern, NSW Ambulance proposed to introduce an "On-duty Relief" officer position as a means of ameliorating the staffing and roster issue: the Dispute Decision at [9]. The conduct of a trial for this new position in January and February 2025 had been the subject of discussions in a substantial process of conciliation before the Commission which was ongoing at the time the union proposed to take State-wide industrial action.
This is a long-standing dispute between the parties. The union representative had at one point in the conciliation process claimed (on the record) that the dispute had been "going on for decades". Despite the longevity of this dispute, and the fact that the Commission's powers to resolve industrial disputes have been fully restored for almost 12 months, neither the HSU nor Ambulance NSW have asked the Commission to finally resolve their dispute by arbitration.
In this context, together with the dispute orders, I also made recommendations for the conduct of a trial of the "On-duty Relief" officer position in January and February 2025, and programmed the dispute for an arbitration hearing on 27 and 28 March 2025, giving the parties an opportunity obtain and present evidence after the conclusion of the trial. This represented about a 4-month process in circumstances where the HSU had indicated that their members were concerned (because they had been informed by the union's officers) that any arbitration process offered by the Commission would be likely to take up to 12 months.

The HSU Facebook post

The Commission has brought this dispute back at its own initiative to address a matter that has come to its attention since the dispute orders, recommendations and directions for arbitration were made in the Dispute Decision.
My chambers provided the parties with copies of a message posted on the Facebook page of the "Ambulance Division - Health Services Union" on 22 November 2024. It appears to be in response to the Dispute Decision. This post is marked MFI-8 and is attached to this decision as Schedule 1.
I made the following direction in chambers on 27 November 2024: A. The HSU is to come before the Commission at 2.00pm on 28 November 2024 to show cause as to why the Commission should not make the following orders: 1. The Health Services Union NSW ("the HSU") must by no later than 3.00pm on 28 November 2024 remove the post from the Facebook page of the Ambulance Division - Health Services Union. 2. The HSU must by no later than 3.00pm on 28 November 2024 post on the Facebook page of the Ambulance Division - Health Services Union a statement in the terms set out in the document marked "Annexure A" to IRC Orders on 28 November 2024. (A revised version of this document is attached to this decision as Schedule 2).
I indicated that the listing would be vacated, if by 1.00pm on 27 November 2024, the HSU takes the steps identified and informs the Chambers of Chin J that they have been taken.
I also invited the parties to utilise the leave granted to the parties to apply for alterations to the existing timetable for arbitration, and to bring forward the existing hearing dates, if the parties consider that they can adequately prepare for the arbitration within a tighter timeframe. I indicated that the Commission would make every effort to accommodate such an application.
Since the correspondence was sent, my chambers received no communication from the HSU regarding the order, and the matter came be before me for determination today.

Determination

The union's Facebook post wrongly implied that the Commission has asked paramedics to continue to "put up with" the adverse health and safety arising from the staffing and rostering system for an extended period of time despite having come to a concluded or favourable view about the veracity of the union's allegations in this regard. The Commission has done no such thing.
The Commission has instead provided the union with an opportunity to resolve its dispute by justifying its allegations in an arbitrated hearing before the Commission. This should have been abundantly clear to the HSU and its representatives.
The Commission has done so with a relatively compressed timetable designed to test the adequacy of the proposal put forward by NSW Ambulance. The Commission has made it clear that, if practicable, it will make every effort to further compress the timetable to ensure that the matter is dealt with in a timely manner. The Commission invites the parties, including the HSU, to make an appropriate application in this regard.
The Commission has a broad discretion granted by the Industrial Relations Act 1996 (NSW) "to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it". This involves a variety of considerations, including the "public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation": Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388 at [37], cited approvingly in BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales (2006) 153 IR 176 at [24]-[26], and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762 at [128].
The Commission may act on its own initiative to resolve an industrial dispute (s 130(2)) and to inquire into any industrial matter (s 162(2)(j)) which it has done in this matter. The Commission is also empowered to give directions to the parties to an industrial dispute in arbitration proceedings (s 136(1)(a)), which I propose to do.
It is vital to the proper and effective functioning of the Commission's dispute resolution role under the Act that the major industrial parties and their membership understand the true effect and reasoning behind the Commission's decisions and orders. It is therefore incumbent on sophisticated and responsible industrial parties in this State, such as the HSU, to ensure that their members have an accurate and faithful understanding of the nature and effect of the Commission's decisions.
Misleading communications of the kind set out in MFI-8 at Schedule 1 are apt to undermine confidence in the system of peaceful, rational and evidence-based industrial regulation under the Act; and to inflame rather than contribute to the resolution of industrial disputes. The Commission will not tolerate this conduct.

ORDERS

Accordingly, I make the following orders: 1. The HSU must by no later than 4.00pm on 28 November 2024 remove the post from the Facebook page of the Ambulance Division - Health Services Union set out in MFI-8 (as amended today, if at all) (attached to this decision as Schedule 1). 2. The HSU must by no later than 3.00pm on 28 November 2024 post on the Facebook page of the Ambulance Division - Health Services Union a statement in the terms set out in the document marked "Annexure A to IRC Orders on 28 November 2024" set out in MFI-11 (attached to this decision as Schedule 2).

SCHEDULE 1 - FACEBOOK POST FROM 'Ambulance Division - Health Services Union' on 22 November 2024

Schedule 2 -Annexure A to IRC Orders on 28 November 2024 On 22 November 2024 a post appeared on this Facebook page which needs to be corrected, by order of the Commission, as follows: 1. On 21 November 2024 the Commission ordered the HSU and its members to not take industrial action, and required the dispute to be resolved at an arbitration hearing on 27 and 28 March 2025, following a 2-month trial of "On-duty Relief positions". 2. The Commission has not yet had the opportunity to consider and determine whether paramedics are not getting breaks and are working dangerously long shifts. This is to be considered in the upcoming hearing, currently to proceed in March. 3. The Commission did however acknowledge that evidence of adverse health and safety consequences arising from the existing rostering system may be highly relevant when the Commission considers the merits of the HSU's case in March. 4. The hearing dates in March were chosen to allow the parties time to prepare evidence and to accommodate a trial of the On-duty Relief positions. 5. The March hearing was also chosen to shorten the time it will take to arbitrate the dispute to about 4 months, in circumstances where the HSU said it was concerned the Commission's processes "will take over 6 months and probably 12" months. 6. The Commission has invited the HSU to apply for an earlier hearing if practicable, which the Commission will make every effort to accommodate. 7. The suggestion in the earlier post that the Commission has "asked paramedics to put up with" injuries for an unnecessary period having found in favour of the union's allegations about those injuries is wrong and is withdrawn. 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 November 2024

Industrial Relations Act 1996(NSW)ss 130, 136(1)(a), 162(2)(j)

At a glance

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Cases Cited (4)