The Commission has before it an application by the Health Secretary for orders to prevent industrial action, which is proposed to occur on Tuesday, 28 June 2022.
It is not in controversy in these proceedings that industrial action is so planned. Ms Sarah Davis, who appeared for the Nurses and Midwives' Association today, described the action as facilitative in that its purpose was to allow the Association's members to attend a special general meeting of the Association to discuss an offer received from the Health Secretary in respect of the proposed variations to the relevant awards. Ms Davis contended that the conduct of the Ministry was such that the Association's members could be forgiven for wishing to attend the meeting during work hours, rather than on their own time and indeed further, that they should be permitted to do so.
I attempted conciliation of the dispute this morning. When it became apparent that further attempts at conciliation were unlikely to bear fruit, I issued a certificate under s 135 of the Industrial Relations Act 1996 ("Act"). The matter proceeded almost immediately into arbitration.
I observe that the Association did seek an adjournment of the arbitration until Monday morning to allow it time to properly prepare for these proceedings. To put that request into context, the notification was made to the Registrar at approximately 6.00pm last evening, Friday 24 June 2022. The notification sought an urgent listing of the matter on Monday morning, 27 June 2022. Due to the inability of the Commission to accommodate that request, the matter was listed on an urgent basis today, being a Saturday. Ms Davis quite rightly said that the Association had had little opportunity to consider the matters raised by the notification and to prepare a case in reply.
Regrettably, due to the circumstances, the Commission had no options to offer the Association, other than a delay of the proceedings today or a further listing of the matter tomorrow, being a Sunday. After considering the matter the Association agreed to proceed to arbitration this afternoon, albeit on the basis that time would be provided for it to consider the evidence and submissions adduced by the Health Secretary in support of her notification.
The Health Secretary read an affidavit of Elizabeth Allen, the Director, Industrial Relations and Management, NSW Ministry of Health, affirmed on 24 June 2022, and a statement of Jennifer Ann Fitzsimons, the Associate Director Professional Practice and Strategy, Nursing and Midwifery Service at Western Sydney Local Health District dated 24 June 2022. I do not propose to attempt to summarise or paraphrase all of the evidence. Suffice it to say I have read that affidavit and that statement. I will refer to that evidence only as necessary.
I have determined to make dispute orders, largely in the form sought by the Health Secretary. I have done so having regard to all of the evidence and submissions put before me today. Two matters in particular have featured prominently in my deliberation.
First, there is evidence that the planned industrial action will cause disruption to the Health Service. Each of Ms Allen and Ms Fitzsimons described the impact that had been caused by previous strikes taken by members of the Association. Ms Fitzsimons in particular opined that she would anticipate that there would be a similar disruption caused by the action proposed to be taken by the Association's members on 28 June 2022.
Ms Davis submitted, and I accept it to a point, that what is being proposed on 28 June is different to the strike that took place, for example, on 31 March 2022. That is, on 31 March 2022 there was a 24 hour State-wide strike called. In the present matter, the evidence is that the stoppages have been called ranging from one hour to 24 hours across what are said to be 39 branches. Ms Davis submitted, in effect, that the notifier's witnesses were comparing apples with oranges.
I accept that the nature of the action proposed for Tuesday is qualitatively and quantitatively different to what occurred on 31 March. It is open to conclude that the disruption is unlikely to be as widespread as that described by Ms Allen and Ms Fitzsimons. But at the same time, as Mr Pararajasingham submitted, that there is a difference does not mean that the impact on the Health Service will be insignificant or tepid in nature.
In this regard I also note the evidence that local health districts are encountering significant personal and carers' leave requests, due to influenza infection, COVID-19 infection, and caring responsibilities. In her affidavit Ms Allen stated that as at 23 June 2021, which I take should mean a reference to 23 June 2022, a total of 1,725 NSW Health staff were in isolation, either due to positive COVID-19 status, exposure to COVID-19 and/or whilst waiting a negative result.
Ms Fitzsimons, for her part, also drew attention to an increase in hospital admissions and high levels of acuity in the Western Sydney Local Health District, and the fact that the proposed industrial action would be occurring during a school holiday period where absence due to annual leave would be expected to be higher than normal.
The second, and significant, factor to which I have had particular regard in determining to make orders is the fact that the members of the Association are covered by awards of this Commission which preclude the taking of industrial action whilst disputes are being resolved. I note, for example, cl 48 of the Public Health System Nurses' and Midwives' (State) Award 2021 is titled 'Disputes'. Clause 48 sets out the steps that will be taken by the parties to resolve a dispute. I note that cl 48(ii) refers to "a dispute which arises in any public hospital or public health organisation regardless of whether it relates to an individual nurse or to a group of nurses". Clause (vi) provides that during these procedures "normal work must continue and there must be no stoppages of work".
The proposed industrial action for 28 June 2022 is at odds with that obligation. I observe, for the sake of completeness that cl 10(f) of the Crown Employees Nurses' (State) Award 2021 is to the same effect as cl 48(vi) of the Public Health System Nurses' and Midwives' (State) Award. To my mind it would be inconsistent with the objects of the Act and the Commission's award-making powers to turn a blind eye to conduct which would be clearly in breach of an employee's award obligations.
There was some debate before me as to the form that any orders or directions should take. Without going into the detail, in the course of that discussion the Health Secretary conceded in some respects that aspects of the orders and directions ought not be pressed and I have taken those observations on board.
There are really two observations to make as to the orders and directions. Firstly, as to the order, the Association submitted that the order should be 'narrowcast' so as to bind only those branches of the Association which had passed resolutions to take industrial action on 28 June. To some extent, this would be supported by the evidence, in that there is nothing before me to directly suggest that the industrial action is likely to extend beyond those branches identified in Ms Allen's affidavit. That being said, Ms Allen does prevaricate to a point as to whether the list that she has provided is or is likely to be complete.
Further in this regard, what has become apparent during the course of the day's proceedings, and I say this carefully and with respect, is that the Association may not exert full control over the conduct by its branches of industrial action. In circumstances where there is some prospect of branches deciding to run their own race, as it were, I am inclined towards a broader, rather than a narrower order.
In saying that, I am mindful that we are here talking about the Health Service, where the interests of patients must be given proper, if not paramount, consideration.
In so far as the directions are concerned, the Health Secretary proposed that amongst the steps required to be taken by the Association to communicate any orders I make was that the Association send an SMS to its members. Ms Davis submitted that such a course of action would come at some significant financial cost to the Association. I am satisfied that the directions that I am about to make go as far as they need to go in so far as the Association's responsibilities to communicate the orders are concerned.
I observed during the course of the proceedings, and I repeat, that the Ministry would no doubt have its own means to communicate my orders to its employees and it should do so, if it is concerned as to the message reaching the farthest corners of its operations.
The final point to address is a submission made by the Association that were the Commission minded to make orders, a recommendation should also issue to the effect that the parties confer with a view to facilitating the attendance at the planned meeting on 28 June by employees who would otherwise be rostered to work. I have determined not to make that recommendation, for two reasons.
First, in so far as those appearing before me today are concerned, I have no doubt that discussions could occur in a professional and appropriate manner to identify employees who might properly be released from their duties to attend the meeting. Based on the evidence though, I am concerned at what disputes might arise at a more local level, as to whether appropriate steps were being taken by managers to facilitate the release of employees or not. I regret to say it, but I would think that the recommendation, while well-intended and proposed, I have no doubt, bona fide by Ms Davis this afternoon, might cause more mischief than the parties anticipate, at the local level.
My second observation would be that, when we are talking about the Health Secretary and the Association, one would hope that such a recommendation ultimately, would not be required.
So for those reasons, I publish my orders and directions.
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Orders and directions
Pursuant to ss 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders:
1. The New South Wales Nurses and Midwives' Association ("the Association"), its officers and employees, and its members employed in the NSW Health entities listed in Schedule 1 ("Health Entities") must immediately cease organising and refrain from taking industrial action on 28 June 2022 by those employees engaged by a Health Entity under the Public Health System Nurses' and Midwives' (State) Award 2021 or the Crown Employees Nurses' (State) Award 2021.
2. The Association, its officers, employees, agents and members must not induce, advise, authorise, support, encourage, direct, aid or abet members of the Association to organise or take industrial action contrary to Order 1.
3. These orders take effect immediately.
Pursuant to s 136(1) of the Industrial Relations Act, the Commission makes the following directions:
1. The Association must by no later than 12 noon on 27 June 2022:
1. remove any reference to the industrial action to occur on 28 June 2022 from its website, social media accounts or any documents linked to its website or social media accounts;
2. publish in a prominent position on its website, the Association's Facebook and other social media pages, Order 1 and a direction to members that they comply with those orders and not take industrial action on 28 June 2022;
3. send by email to all members a link to Order 1 and a direction to comply with those orders and not take industrial action on 28 June 2022;
4. provide or cause to be provided a copy of Orders 1, 2 and 3 above to Association representatives employed by the Notifier, all members of the Association Executive and all members of the Association Council.
1. The Association must advise the Notifier's legal representative in writing by 5:00pm on 27 June 2022 of the steps taken to comply with Directions 1(a) to (d) above, including the form of communications, and if written, a copy of any communications, and the further steps it intends to take (if any) to comply with Directions 1(a) to (d) in respect of any relevant member who, by that time, has not been notified.
Damian Sloan
Commissioner
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Statewide Health Services
NSW Ambulance
NSW Health Pathology
Health Protection NSW
[4]
Shared Services
HealthShare NSW
eHealth NSW
Health Infrastructure
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Local Health Districts and Specialty Networks
Central Coast Local Health District
Far West Local Health District
Hunter New England Local Health District
Illawarra Shoalhaven Local Health District
Mid North Coast Local Health District
Murrumbidgee Local Health District
Nepean Blue Mountains Local Health District
Northern NSW Local Health District
Northern Sydney Local Health District
South Eastern Sydney Local Health District
South Western Sydney Local Health District
Southern NSW Local Health District
Sydney Local Health District
Western NSW Local Health District
Western Sydney Local Health District
Sydney Children's Hospitals Network
Justice Health and Forensic Mental Health Network
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Pillars
Agency for Clinical Innovation
Bureau of Health Information
Cancer Institute NSW
Clinical Excellence Commission
Health Education and Training Institute
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: 01 July 2022