Health Services Union v Health Secretary

1. The appellant contends that the concluding words "contrary to the public interest", correctly understood, are intended to convey that all industrial action is contrary to the public interest at least during conciliation. We do not accept that his Honour was expressing such a view.
2. The appellant accepts that his Honour recognised correctly that the power to make dispute orders is discretionary and, importantly, there is no presumption that industrial action will be stopped. Acceptance of those two propositions is antithetical to the construction of [11] upon which the appellant relies.
3. Further, if that construction were correct his Honour would not have needed to consider the public interest as reflected in:

(1) the evidence of Mr McKenna, in [16] of the first decision, about the impacts on patient care and related matters; and

(2) the state of the evidence, at [17], as to the sufficiency of measures to negate the risks identified by Mr McKenna.

1. His Honour undoubtedly considered the availability of conciliation and arbitration in the Commission as relevant to his exercise of discretion, a proposition that is not only orthodox but entirely consistent with the object of the Industrial Relations Act 1996 (NSW) at s 3(g). In his summary of the grounds informing his decision it was the first of three identified. The other two were the public interest, as discussed in the previous paragraph, and the requirement, under the disputes settlement clause in the NSW Ambulance Paramedics (State) Award 2023, to maintain the status quo with respect to work procedures while the disputes settlement procedures are in place.
2. These factors make clear that his Honour's exercise of discretion involved a balancing of relevant considerations. There is no submission that these were not relevant considerations that could as a matter of discretion lead to dispute orders being made, along with relevant recommendations for the resolution of the dispute, as occurred. We see no error in the approach.
3. The appellant, and the second respondent, place particular emphasis on a sentence in the first decision at [20] which they assert amounts to a broad statement of principle that the Industrial Relations Act does not tolerate any industrial action. The paragraph in question does not appear in that part of the decision in which his Honour gave the reasons for making the orders. Properly understood the paragraph conveys only a refusal to accept a submission made by the appellant at first instance that in the circumstances of the matter before him, which included an assessment of the public interest in respect of a decades-long dispute, arbitration should not occur and instead industrial action should be tolerated.
4. The application for leave to appeal and appeal ultimately seeks to set aside an aspect of the reasoning, or perhaps more accurately, the applicant and the second respondent's understanding of an aspect of the reasoning, in circumstances where it is conceded it was open to the Vice President to make the dispute orders on the facts before him as a matter of discretion.
5. In conclusion, the appellant's case in respect of the first decision depends upon a construction of an element of his Honour's reasoning as expressed in an ex tempore decision that we do not consider open, and which in any event we consider would not have altered the outcome. No question of general principle arises.[1]
6. Before we move to the second appeal, can we add that there is nothing in the first decision which is contrary to the following propositions that we consider uncontroversial:

(1) the Industrial Relations Act does not make industrial action of itself unlawful, absent dispute orders;

(2) there is no presumption that upon industrial action occurring dispute orders will be made; and

(3) whether to issue dispute orders is a discretionary decision that will involve consideration of matters including in particular:

(a) whether to do so would assist with the resolution of the industrial dispute, including to assist the conciliation of such a dispute; and

(b) the wider public interest, including the impact the industrial action will have on the parties and the wider public.

1. In that regard we note the following extracts from the second reading speech to the Industrial Relations Bill 1995 made by the Attorney General and Minister for Industrial Relations, Jeff Shaw QC, to which we were taken by counsel for the Health Services Union:

"If the commission comes to the conclusion that conciliation will not result in a settlement of the dispute, a certificate of attempted conciliation may be issued. Obviously, in considering whether to issue a certificate of attempted conciliation, the commission will take account of a wide range of factors surrounding the dispute, such as the conduct of the parties and the likelihood of reaching agreement. The legislation recognises specifically that conciliation should occur in an environment where the parties may participate free from coercion. The bill therefore provides that the commission must specifically consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally.

...

I have explained earlier how the bill places an obligation on the commission to consider whether industrial action is affecting the chances of proper conciliation. Such a measure should bring comfort to employers who have submitted to conciliation of an industrial dispute.

...

[The Commission] may use any or all of the following devices: continue conciliation; make recommendations or directions; make or vary awards; make dispute orders; and make any other kind of order it is authorised to make, including orders on an interim basis."[2] (Emphasis added.)

1. His Honour's approach was consistent with the propositions we have propounded. In that regard we draw particular attention to the fact that rather than repeat earlier stated principles, at [10] his Honour adopted principles he had expressed in Health Secretary v NSW Nurses and Midwives' Association[3] at [16]-[21] where his Honour said:

"[16] In deciding whether to make the dispute orders, I am duty-bound to give reasons, however succinct, highly compressed or brief might be appropriate in the urgent circumstances in which this application has been brought and heard.

[17] I do so 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] NSWSC 1178; (2022) 320 IR 249 at [32] to [59] (Walton J).

[18] In exercising the Commission's discretion in this regard, I have in mind Walton J's reference to the second reading speech of the 1995 bill in which it was made clear that the Act encourages employers and unions to use the expertise of the Commission in the resolution of their differences by conciliation and arbitration, as required. 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.

[19] I am mindful that dispute orders are not lightly made by the Commission, that Parliament intended that the making of dispute orders must be a last resort, and that there is no presumption that, in the face of threatened industrial action, a dispute order will be made. I make no such presumption.

[20] The making of such orders is a serious matter. As observed in Director General, New South Wales Department of Education and Training v Managing Director of TAFE and New South Wales Teachers Federation [2010] NSWIRComm 77 at [14] to [15] (Marks J):

"... the regulation of industrial disputes in New South Wales involves the empowerment of a third party umpire to make binding orders on parties which can be enforced through mechanisms established by the State and which include the creation [sic] of civil penalties as part of the armoury of measures that may be taken to ensure compliance with and enforcement of awards orders and determinations.

The existence of a system such as that established by the Industrial Relations Act 1996 reflects a sophisticated and civilised approach to dealing with industrial disputation, ..."

[21] I also agree with the following observations in Bluescope Steel (AIS) Ltd v Australian Workers' Union, New South Wales (2005) 138 IR 324 at 106 (Boland J):

"The making of a dispute order is a serious step, given the consequences for contravention. Persons against whom a dispute order is made are bound to take it seriously, especially members, officials, and employees of organisations who may be putting in jeopardy the very existence of their organisation."

1. We agree with that statement of principles.
2. The second appeal concerns a direction made on 28 November 2024 in Health Secretary (NSW Ambulance) v Health Services Union NSW (No 2) ("the second decision").[4]
3. His Honour made two directions on that date ancillary to the dispute resolution process recommended as part of his first decision.
4. The first direction required the removal of a Facebook post about the dispute orders decision which his Honour regarded as misleading and likely to inflame the dispute rather than contribute to its resolution. There is no challenge to this direction, including no challenge to the finding that the Facebook post was misleading and that it was the proper exercise of power to direct it be removed to assist in the resolution of the dispute.
5. The second direction, motivated by the same considerations as the unchallenged direction, required the appellant to post on its Facebook page a statement, in a form drafted by the Commission, correcting the misleading post.
6. The appellant in its original outline of submissions contended that such a direction is beyond power. In its outline of submissions in reply, the appellant submitted that, if the respondent's submission that the power to give directions under s 136(1)(a) of the Industrial Relations Act is not limited to administrative or procedural facilitative directions, but extends to substantive facilitative directions designed to assist the resolution of the dispute, is accepted the appellant would agree that the direction was within power. In our view, the respondent's submission is correct. The power to give directions extends to giving directions, like both the first direction (not challenged) and the second, which require a party to take steps to facilitate the resolution of an industrial dispute.
7. It was contended that leave to appeal the second decision ought to be given to clarify conflicting authority as to the extent of the power in s 136(1)(a) to grant relief. We were taken to the Full Bench decisions in Local Government Engineers' Association of NSW v MidCoast Council (No 2)[5] and Public Service Association v Secretary for Industrial Relations[6] and decisions at first instance of Sloan C in Public Service Association v Secretary of the Department of Education (COVID-19 Protocols)[7] and Webster C in NSW Nurses and Midwives' Association v Health Secretary in respect of Western Sydney Local Health District.[8] Those decisions confirm that s 136(1)(a) cannot be utilised to seek final relief. None suggest that it cannot be used to make substantive facilitative directions.
8. We would simply add that, should a direction of the type challenged be considered necessary in the future, the preferable course would be to require the publication of a statement made by the Commission correcting the information. We note that the appellant submitted that it had supplied to its members his Honour's dispute orders decision.

[1] [2024] NSWIRComm 12.

[2] Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263; [2005] NSWIRComm 409 at [5].

[3] New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 1995 at 3851-3852.

[4] [2024] NSWIRComm 3.

[5] [2024] NSWIRComm 18.

[6] (2022) 318 IR 259; [2022] NSWIRComm 1069.

[7] [2018] NSWIRComm 1061.

[8] [2022] NSWIRComm 1063.