On 18 November 2022 the Health Secretary filed a notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW). 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.
The strike was for a 24-hour State-wide strike on Wednesday, 23 November 2022. The Association has taken this action because of the dissatisfaction of the Association and its members with the rates of pay that they receive and the question of nurse-to-patient ratios in the public health system.
Conciliation was unsuccessful before Chief Commissioner Constant, and the matter was listed for directions before me today for arbitration. The notifier sought that the matter be listed for arbitration as soon as practicable. The Association sought additional time for the hearing of the matter, arguing that it should be listed on 3 to 5 days' time, after the industrial action had occurred. In summary, the Association argued that they required additional time to properly prepare for the hearing and the Health Secretary should have lodged the dispute notification earlier. I decided that it was in the interests of justice that the matter be listed on an urgent basis at 2 pm today, providing my reasons for this to the parties.
The Health Secretary read a statement of Anna Lam, the Acting Associate Director, Professional Practice and Strategy, Nursing and Midwifery Service at Western Sydney Local Health District, dated 19 November 2022 (Ex N2), and an affidavit of Elizabeth Allen, the Director Industrial Relations and Management with the New South Wales Ministry of Health, affirmed on 18 November 2022 (Ex N1).
Ms Lam gave evidence in respect of the impact of strikes that had been taken by nurses and/or midwives on 15 February 2022, 31 March 2022, 28 June 2022 and 1 September 2022. The evidence presented by Ms Lam was prepared in conjunction with other staff and mirrored aspects of evidence given in recent proceedings where the Health Secretary sought Dispute orders in the context of the 28 June 2022 strike action. Concerns regarding the preparation of the evidence was raised by Ms Davis but as Ms Lam affirmed the contents of the statement and given the similarities between this and past proceedings, I am satisfied that Ms Lam's evidence is genuine and represents her true understanding of, and opinion on the impact of the proposed strike action.
Based on Ms Lam's experience and observations of those previous strikes, Ms Lam deposed that she anticipates a high level of participation in the strike proposed for 23 November 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 gave evidence she had received information in her role as Director, Industrial Relations and Management, NSW Ministry of Health from Local Health Districts about the impacts of the four previous strikes in 2022. Ms Allen anticipates that the planned strike on 23 November 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 as well as significant flooding impact throughout the State. Her evidence was that as of 16 November 2022, the number of NSW Health Staff in isolation for reasons relating to COVID-19 is almost double what it was about a year ago on 9 November 2021.
The Association did not adduce any evidence in chief in the matter. Ms Davies for the Association submitted that this was because the Association had not had sufficient time to prepare any evidence and that they had been denied procedural fairness by the conduct of the Health Secretary delaying the notification of the dispute. They also alleged that the Health Secretary had breached the Model Litigant obligations by failing to notify the Commission of the dispute earlier. I will return to these points for further consideration as the Association has argued that these are amongst the reasons that orders and directions sought by the Health Secretary should not be made.
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. In addition to oral submissions, the Health Secretary relied upon written submissions.
In the proceedings before me today, the Health Secretary seeks that I make orders and directions pursuant to ss 136 and 137 of the Industrial Relations Act (NSW). In considering the application for dispute orders and directions, I have had regard to s 146 of the Act, namely that in performing its functions, the Commission must take into account the public interest, and specifically the Objects of the Act at s 3, as well as the state of the New South Wales economy and the potential impact orders will have on it.
There is no presumption that the Commission should make dispute orders in proceedings such as these. Every matter is to be considered on its individual merits. I have decided in this matter, based on the evidence and submissions of the parties, it is appropriate that I exercise my discretion to make the orders and directions sought by the Health Secretary.
The evidence of Ms Allen established that the level of participation by the Association's members in the proposed 24-hour strike on 23 November 2022 will likely be high and widespread and may have an adverse impact on patient outcomes and care.
Ms Davis argued that the fact that there is no evidence that the earlier strikes in 2022 have resulted in adverse patient outcomes weighs in favour of not making the orders sought. However, Ms Allen confirmed in re-examination that while she was unaware of any such adverse outcomes, this information had not been sought from the Local Health Districts in communications to her about the effects of the past industrial action.
However, the evidence of Ms Lam and Ms Allen demonstrates that the previous strikes caused disruption, including the postponement of elective surgery. Ms Lam gave evidence that "pressure points" such as Hainsworth Ward (which is a mental health inpatient service) are a genuine concern. She stated, "We have received reports from mental health managers that the NSWNMA is telling staff that they do not need to notify them if they intend to engage in industrial action": N2 at [25] (e). Further in respect of the 1 September 2022 strike, Ms Lam gave evidence that Hainsworth Ward was left with only two mental health nurses for 33 patients in the high security mental health ward when the minimum requirements deemed by the mental health services is at least five: N2 at 21 (i). Ms Lam was not cross-examined in respect of this aspect of her evidence, and in final submissions, the Association complained that their capacity to test this evidence was compromised by the time constraints of the hearing.
I concur with the observation of Commissioner Sloan in Health Secretary v New South Wales Nurses and Midwives' Association [2022] NSWIRComm 1071 in respect of the 1 September 2022 strike as follows at [19]:
"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."
In this regard, I note that the Association did not seek to adduce any evidence to support the proposition that in taking the strike action, their members would ensure the safety of the community. While there was some evidence of this in the correspondence attached to the affidavit of Ms Allen, the Commission was left with an incomplete picture with respect to this: see for example, Ex N1 at pp 24, 25 and 30. In this regard, I note the evidence of Ms Lam about points of particular concern, including ensuring safe staffing levels at the Hainsworth Ward.
The Association's employees 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").
Ms Davis observed in the proceedings that the Commission does not have jurisdiction to assist the Association and its members because the dispute is not with the Health Secretary but with the NSW Government. She argued that although cl 53 of the Public Health System Nurses' and Midwives' (State) Award deals with the question of nurse-to-patient ratios, this is not in respect of all areas of the service. I disagree that the Commission does not have jurisdiction or capacity to assist with the issues associated with the concerns raised by the Association. Indeed, Ms Davis noted in her submissions that there are currently two matters before the Commission relating to the breach of cl 53. No application was made by the Association to vary that clause in the most recent round.
The awards also contain a dispute resolution provision. The Public Health System Nurses' and Midwives' (State) Award states at cl 48(vi) states that, "During these procedures normal work must continue and there must be no stoppages of work, lockouts, or any other bans or 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 Association contended that they would not be in breach of those provisions in taking the strike action on 23 November 2022, because the obligation only applied "During these procedures", meaning while the dispute resolution procedures are being worked through. The Association's submissions on this point have some merit.
A significant aspect of the Association's case was that the Health Secretary had not acted as a model litigant for not notifying the dispute sooner. The Association referred the Commission to [437]-[439] of the decision of Walton J in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association [2022] NSWSC 1178:
"In light of the above discussion about appeals to the Full Bench, I add a further remark about this consideration. Recently, it was observed by Commissioner Sloan in Transport Secretary v AWU at [24] that:
[I]n recent times, the Crown has shown an increased propensity to delay the notification of disputes until the proverbial eleventh hour. This not only places significant pressure on the Commission and its very finite resources; it carries the very real risk that the Commission will be unable to list the matter for hearing in time to deal with the notification and to make any orders in sufficient time to have any utility.
I am not aware of this alleged "increased propensity" by "the Crown". I reach no judgment in that respect. Nor is it clear whether this is a reference to conduct by the Crown Law Officers, State agencies or both. However, if such a practice were to be adopted, then it raises the prospect of inconsistency with the obligation of the State to act as a model litigant: see generally Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333 at 342 (Griffith CJ). In this respect, I respectfully agree with Basten JA (with whom Giles and Bell JJA, as her Honour then was, agreed) in Mahenthirarasa v State Rail Authority (NSW) (No 2) (2008) 72 NSWLR 273; [2008] NSWCA 201 at 279 [22] that:
The principles applicable to a model litigant required [the executive government] to deal with claims promptly, not to cause unnecessary delay, to endeavour to avoid litigation wherever possible, not to resist relief which it believes to be appropriate and not to decline to provide appropriate assistance to the court or tribunal whether expressly sought or not.
Furthermore, the discretion under ss 136 and 137 of the Act to refuse to make dispute orders may be exercised if the party seeking those orders caused a significant, unnecessary and deliberate delay in notifying the dispute and has the effect of frustrating another party's statutory right of appeal by leaving as little time as possible. This is because it would be inconsistent with the objects in s 3 of the Act to allow a party to use the Commission's processes and powers in such a way that the Commission would not be providing a framework of industrial relations that is fair and just."
Apart from alleging the breach of the Model Litigant Rules, Ms Davis argued that this had a direct effect on the Association's capacity to present its case, resulting in a denial of procedural fairness.
The chronology of events leading to the notification of the dispute was set out in the affidavit of Ms Allen at [4]-[6]:
"On 13 November 2022, the NSWNMA sent an email to its members promoting the taking the strike action on 23 November 2022. The email suggests that:
a. the NSWNMA Council has moved a motion calling for a state-wide strike of public health system members on Wednesday 23 November 2022;
(b) Members of the NSWNMA will receive an SMS containing a link to vote on strike action on Monday, 14 November 2022;
(c) The vote will be open for 24 hours and;
(d) Members will be informed of the vote result on Wednesday, 16 November 2022.
…
On 16 November 2022, the NSWNMA sent a further email to its members advising that 94% had voted in favour of taking a 24-hour strike on 23 November 2022. …
I understand the branches of NSWNMA will advise hospitals and NSW Health facilities of the outcome of the vote, and to the proposed industrial action that will be taken."
Ms Allen then set out at [7] of her affidavit a table of seventeen (17) Local Health Districts where confirmation of the impending strike action had been received by her or her team.
Ms Allen gave evidence under cross-examination that the Health Secretary was not able to notify the Commission until the scope and scale of the industrial action was known and this did not crystalise until Thursday, 17 November 2022. Indeed, the Heath Secretary argued that it would have been in breach of the Model Litigant Rules to notify prior to this understanding.
I agree with the Association that it would have been desirable for the Health Secretary to notify the dispute earlier and given the recent history of industrial action, they could have reasonably anticipated that the assistance of the Commission would have been required prior to Wednesday, 23 November 2022. However, the Association's conduct in not directly communicating its intentions to the Health Secretary equally contributed to the delay. In this regard, I also note the Association's failure to seek the Commission's assistance to resolve the underlying dispute before making the decision to put the industrial action to a vote of its members.
In response to the question of whether the Association had an obligation to notify a dispute with respect to its concerns about pay and staff ratios, the Association submitted that their concerns are 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". Ms Davis argued that the proposed industrial action was the only option available to the Association to make their claims and they have no alternative. The Commission has jurisdiction to assist the parties with respect to industrial disputes and, despite any restrictions imposed by legislation on potential remedies, the issues raised by the association are just that - they are industrial disputes.
The Association is an experienced industrial player. It has had other proceedings directly analogous to this matter before the Commission this year. They are aware that such matters move quickly and, in my view, although their capacity to prepare their case may have been compromised, they had sufficient time and notice to put forward relevant evidence and arguments in support of their position. Furthermore, given the nature of this and previous matters, the Association ought to have anticipated this matter would come before the Commission even before the impending strike was known to the Health Secretary.
Although I have expressed that it would have been desirable for the Health Secretary to notify the Commission earlier of the dispute, I am not satisfied that the delay was a deliberate attempt to put the Association in a worse off position and I accept the Health Secretary acted relatively swiftly in a quickly evolving situation. I also agree it would have been better if either or both parties reached out to discuss the industrial action prior to the filing of the notification of dispute, but the submission of the Association that the procedures in cl 48 of the award should have been worked through, is unrealistic given the scale of the industrial action proposed and the time the Health Secretary had to contend with it.
I am not obliged to make the orders and directions, but I do not think it is consistent with the objects of the Act to decline to do so. While I am concerned that there are relevant awards in place with no extra claims clauses in operation, I am even more concerned about patient welfare. There is no evidence that the Association's members will be present in sufficient numbers across all of the State to ensure the safety and welfare of patients if the industrial action goes ahead.
The decision to make the orders and directions 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. However, the welfare of patients must take precedence.
The Health Secretary provided a draft form of orders and directions. The Association submitted that the Commission should instead make a recommendation rather than orders, in part because the Association may become deregistered if they breach those orders. This is not a proper basis for the Commission to not make the orders.
[2]
Orders and directions
Having regard to those matters, I have decided to make orders and direction in accordance with those sought by the Health Secretary as follows.
1. 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 23 November 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.
1. Pursuant to s 136(1)(a) of the Industrial Relations Act (NSW), the Commission makes the following directions:
The Association must by no later than 4 pm on Tuesday, 22 November 2022:
1. remove any reference to the industrial action to occur on Wednesday, 23 November 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, its Facebook and other social media pages, Orders 1(a), (b) and (c) and a direction to members that they comply with those orders and not take industrial action on Wednesday, 23 November 2022;
3. send by email to all members a link to Orders 1(a), (b) and (c) and a direction to comply with those orders and not take industrial action on Wednesday, 23 November 2022;
4. provide or cause to be provided a copy of Orders 1(a), (b) and (c), above to Association representatives employed by the Notifier, all members of the Association's Executive and all members of the Association's Council.
1. The Association must advise the Notifier's legal representative in writing by 5:00pm on Tuesday, 22 November 2022 of the steps taken to comply with Directions 2(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 2(a) to (d) in respect of any relevant member who, by that time, has not been notified.
Janine Webster
Commissioner
[3]
SCHEDULE 1 - HEALTH ENTITIES
Statewide Health Services
NSW Ambulance
NSW Health Pathology
Health Protection NSW
Shared Services
HealthShare NSW
eHealth NSW
Health Infrastructure
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
Pillars
Agency for Clinical Innovation
Bureau of Health Information
Cancer Institute NSW
Clinical Excellence Commission
Health Education and Training Institute
[4]
Amendments
24 November 2022 - Minor corrections made to Paragraphs [3], [5], [10], [21], and [27].
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: 24 November 2022