On 22 August 2022 the Health Secretary filed a notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996. The dispute identified in the notification was a State-wide strike called by the New South Wales Nurses and Midwives' Association ("Association") of its members in the New South Wales public health system.
It is not in dispute that the intended strike was for a 24 hour State-wide strike on 1 September 2022. It is also not in dispute that the strike was called as a result of two factors: first, dissatisfaction by the Association and its members with the rates of pay that they receive; and second, the question of nurse-to-patient ratios in the public health system.
The matter was listed for hearing before me today on an urgent basis.
The Health Secretary read a statement of Jennifer Fitzsimons, the Associate Director, Professional Practice and Strategy, Nursing and Midwifery Service at Western Sydney Local Health District, dated 24 August 2022, and an affidavit of Elizabeth Allen, the Director Industrial Relations and Management with the New South Wales Ministry of Health, affirmed on 25 August 2022.
I do not propose to traverse all of the evidence adduced today. Suffice it to say that Ms Fitzsimons deposed as to the impact of strikes that had been taken by nurses and/or midwives on 15 February 2022, 31 March 2022 and 28 June 2022. Based on her experience and observations as a result of those strikes, Ms Fitzsimons deposed that she anticipates a high level of participation in the strike proposed for 1 September 2022 and that elective surgery will be cancelled, there will be reduced theatre operating lists, and theatre activity and clinical services will be moved, postponed or cancelled due to the strike action.
Ms Allen deposed as to the information that she and her team were provided by Local Health Districts as to the impacts of the earlier strikes in 2022 to which Ms Fitzsimons referred. Ms Allen anticipates that the planned strike on 1 September 2022 would have similar impacts. She stated that at this time Local Health Districts are encountering significantly increased personal/carers leave requests due to influenza infection, COVID-19 infections and caring responsibilities. In her affidavit, Ms Allen gave some evidence as to the terms of the awards currently applying to the Association's members and some recent history, to which I will return.
Health Secretary v New South Wales Nurses and Midwives' Association [2022] NSWIRComm 1071 | Case summary | Zoe
The Association read a statement of Renatta Di Staso, a Lead Organiser of the Association, dated 25 August 2022. Ms Di Staso described her involvement in seeking changes to the nurse-to-patient ratios since 2015. She stated that this has been driven by perceived greater workloads experienced by nurses and midwives in the New South Wales Health service, which has been exacerbated by the COVID-19 pandemic. Ms Di Staso stated that the question of nurse-to-patient ratios remains "the single greatest issue for the Association's public sector membership".
At par 19 of her statement Ms Di Staso stated:
"The foremost concern of the Association when taking strike action is to ensure that life-preserving staff are available."
Ms Di Staso deposed as to the efforts made to achieve this objective. She further deposed that she has not been advised of any adverse patient outcomes arising from previous industrial action taken by Association members.
The Association also tendered into evidence a bundle which contained copies of articles taken from newspapers including the Daily Telegraph and the Sydney Morning Herald which might be said, in summary, to highlight the Association's concerns and that of its members with understaffing in the public health system.
During the course of today's hearing I have had the benefit of oral submissions by Mr Pararajasingham of counsel who appeared for the Health Secretary, and Ms Davis who appeared on behalf of the association. I do not propose to traverse all of the submissions or seek to paraphrase everything that each party put to me. I will deal with them as I see necessary to deal with the matters in front of me.
In the proceedings before me today, the Health Secretary seeks that I make orders and directions pursuant to s 136 and 137 of the Industrial Relations Act. In considering the application for dispute orders, I have particular regard to the objects set out in s 3 of the Act and the requirements imposed on the Commission by s 146.
Due to submissions that were made, I have given careful consideration to the particular powers conferred on the Commission by ss 136 and 137 of the Act, particularly having regard to the decision of the Full Bench in Local Government Engineers' Association of New South Wales v MidCoast Council (No 2) [2022] NSWIRComm 1069.
The Association submitted, and I accept, that there is nothing in the Act that compels or requires the making of the dispute orders sought by the Health Secretary. Notwithstanding that, I am satisfied that dispute orders ought to be made. The form of those dispute orders I will return to.
I am satisfied on the evidence that the level of participation by the Association's members in the proposed 24 hour strike on 1 September 2022 will be high and widespread. The evidence of Ms Fitzsimons and Ms Allen in this regard went unchallenged.
I accept that in her oral submissions Ms Davis sought to qualify, to a point, that evidence, largely with assertions as to the possibility that different branches within the Association's membership might opt either not to take the industrial action or to take a lesser form of industrial action. There is no evidence before me that that is the case.
As Ms Di Staso deposed, there is no evidence that the earlier strikes in 2022 have resulted in adverse patient outcomes. In her affidavit and under cross-examination, Ms Allen confirmed that she was unaware of any such adverse outcomes. I am also cognisant of the evidence of Ms Di Staso, supported by that of Ms Fitzsimons, that efforts are and would be made to ensure that "life preserving staff" are available during periods of industrial action.
However, the evidence of Ms Fitzsimons and Ms Allen demonstrates that the previous strikes caused disruption, including the "cancellation" of elective surgery. I digress to observe that, on the basis of Ms Allen's testimony under cross-examination, this may properly be regarded, at least in the majority of cases, as being a reference to the delay or postponement of elective surgery.
In any case, while adverse patient outcomes may not have eventuated, that is not to say that the risk of adverse outcomes was not present. Those risks would equally be present on 1 September 2022. There would inevitably be disruption, delay and inconvenience for patients. Some of those might regard that as an "adverse patient outcome", but I appreciate that that is not the effect of the evidence of Ms Di Staso and Ms Allen.
The Association's employees, relevantly, are covered by two awards of this Commission, the Public Health System Nurses' and Midwives' (State) Award 2022 and the Crown Employees Nurses' (State) Award 2022. Both of those awards were made by the Full Bench of the Commission on the application of the Health Secretary on 17 August 2022. Short minutes of order giving effect to the Full Bench's decision were signed on 23 August 2022.
In making the awards, the salaries and salary-related allowances were increased to the extent of the Commission's jurisdiction, having regard to the government's wages policy, s 146C of the Act and cll 6 and 6A of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ("Regulation").
I observe that cl 53 of the Public Health System Nurses' and Midwives' (State) Award deals with the question of nurse-to-patient ratios, albeit in perhaps different language. That clause existed long before the 2022 award was made. No application was made by the Association to vary that clause in the most recent round.
I acknowledge, having said that, that the Association's position is that the combination of s 146C of the Act and of the Regulation is that the variation sought to cl 53 would have significant and detrimental impacts on its members' wages position. That being said, I cannot help but note that on the evidence the Association indicated its intention to call the strike the day after the awards were made.
Several matters arise in respect of the awards. First, each of them contains a no extra claims provision: see cl 2 of the Public Health System Nurses' and Midwives' (State) Award and cl 14 of the Crown Employees Nurses' (State) Award.
They also contain a dispute resolution provision. The Public Health System Nurses' and Midwives' (State) Award states at cl 48(vi) that, "During these procedures normal work must continue and there must be no stoppages of work, lockouts, or any other bans of limitations on the performance of work." There is a provision to the same effect in cl 10(f) of the Crown Employees Nurses' (State) Award. The action proposed to be taken by the Association would appear to be inconsistent with those commitments.
The Association submitted that this is not properly to be regarded as a dispute within the meaning of the awards. It argued that the Commission cannot give its members the wage increases that they seek, or deal with the question of nurse-to-patient ratios, due to the public sector wages policy enshrined in the Regulation. Therefore, the Association does not raise a dispute with "the employer" but with "the government". As Ms Davis submitted:
"This is, in essence, a protest."
On that basis, it was contended that cll 2 and 48 of the Public Health System Nurses' and Midwives' (State) Award and their counterparts in the Crown Employees Nurses' (State) Award should have no bearing on whether the dispute orders should or should not be made.
In dealing with those submissions, I note first that the proposed industrial action is, by definition, industrial action under the Act. It will inevitably have a bearing on the performance of work and, as such, is an industrial dispute falling within the auspices of the Commission. Clause 48(ii) of the Public Health System Nurses' and Midwives' (State) Award simply refers to a "dispute arising in any public hospital or public health organisation".
I am not persuaded by the argument that this is not a dispute with the Crown but with "the Government" or, to the extent that such an argument could be made out, that it is of any particular bearing on the exercise of my discretion. I see no reason why cll 2 and 48 of the Public Health System Nurses' and Midwives' (State) Award and the counterpart provisions in the Crown Employees Nurses' (State) Award should not inform the exercise of my discretion.
As I have said in other proceedings, it is not consistent with the objects of the Act to decline to make orders, the effect of which would be to allow the parties to disregard the terms of an award which has been made pursuant to the Act. There is a public interest in ensuring the parties comply with this Commission's instruments.
That being said, the making of dispute orders should not necessarily be taken as indicating that there is no cause for concern in relation to nurse-to-patient numbers or that the matters about which the Association seeks to protest are unfounded or overblown. But this is not the time for those issues to be determined.
To the extent that nurse-to-patient numbers need revision and further regulation, however that occurs, it does not seem that placing patients at the risk of harm and, at the very least, delay and inconvenience, advances the Association's case. I do not accept the submissions that the material contained in the Association's tender bundle should outweigh the issues of patient safety and welfare that have been identified in the Secretary's evidence.
There was some significant discussion as to the form which any orders should take. The Health Secretary provided a draft form of orders. I will not read them out, the parties are aware of what they contain.
Ms Davis submitted that the Commission's powers were constrained by the language of s 137(1)(a) of the Act, in that the Commission may go no further than ordering a person to cease or refrain from taking industrial action. The Association took issue with the orders proposed by the Health Secretary, which would include an order that the Association and others "cease organising" the proposed industrial action; that the Association, its officers, employees, agents and members not induce, advise, authorise, support, encourage, direct, aid or abet members of the Association to organise or take industrial action contrary to the first order; and what might be described as "machinery orders".
I have some sympathy for the submissions made by Ms Davis, having regard to the LGEA matter to which I have referred. In particular, proposed order A3, to me, is more appropriately to be made as directions pursuant to s 136(1) of the Act.
I am, however, satisfied that the proposed orders A1 and A2 are contemplated within s 137(1)(a). I would also observe that orders in those terms were not only made by me in the matter of Health Secretary v New South Wales Nurses and Midwives' Association [2022] NSWIRComm 1047, but have been made in largely the same terms in many decisions of this Commission over an extended period of time. I have not been provided with a sufficient basis on which I would depart from the established practice of this Commission.
Having regard to those matters, this is the outcome:
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 1 September 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 4.00pm on 26 August 2022:
1. remove any reference to the industrial action to occur on 1 September 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 1 September 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 1 September 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 29 August 2022 of the steps taken to comply with Direction 1 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 Direction 1 in respect of any relevant member who, by that time, has not been notified.
Damian Sloan
Commissioner
[2]
Statewide Health Services
NSW Ambulance
NSW Health Pathology
Health Protection NSW
[3]
Shared Services
HealthShare NSW
eHealth NSW
Health Infrastructure
[4]
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
[5]
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: 29 August 2022