Before the Commission is an industrial dispute notified by the New South Wales Nurses and Midwives' Association, ("Association") to the Industrial Registrar on 21 January 2025. The dispute relates to the nature and extent of consultation with the Association about what was described as "mitigating strategies" or "proposed changes" to the way persons in the community will be cared for by the Western Sydney Local Health District ("District").
The changes were said to be a consequence of the well-publicised decision of psychiatrists employed the Health Secretary decision to resign their employment en mass. Specifically, the proposed measures relate to resignations of psychiatrists at Westmead, Cumberland and Blacktown Hospitals. The District's evidence was that there has been 17 such resignations in recent weeks.
The proposed changes are contained the submissions of the Association and were not in contest. These included:
1. 11 beds being opened in a neurology unit with mental health comorbidities;
2. 4 additional beds in an endocrinology unit for patients with severe eating disorders;
3. 8 beds in a mother and babies' unit frequently called mums and bubs being closed with 4 of those beds being transferred to an antenatal obstetrics and gynaecology unit;
4. 11 beds in K7A, older persons' unit are to be closed.
5. 6 beds in Westmead emergency department will be transitioned from governance of mental health to toxicology, drug and alcohol; and
6. 4 additional beds in neurosurgical K10B ward.
The matter was subject to conciliation before Senior Commissioner Constant. On Friday 31 February 2025 the Senior Commissioner issued a certificate of attempted conciliation, and the President allocated the matter to the Commission as currently constituted for the purposes of arbitration.
The matter was listed for direction yesterday 3 February 2025. The Association sought further conciliation in respect of that matter. At the time, the District did not consent to further conciliation and indicated it intended to press on with its plans. That is what has prompted the urgent application which is currently before me to make directions and/or recommendations.
The Association has confirmed during the proceedings that it did not seek relief in respect to the commencement of the operations of, what has been referred to throughout the proceedings and is known to the parties to be, Unit C53.
The Association's written submissions suggest that the following in the form of directions and/or recommendation should be made by the Commission in respect of the dispute:
1. Western Sydney Local Health District has not completed consultation on the changes first notified in its letter to the New South Wales Nurses and Midwives' Association of 17 January 2025 except insofar as those changes relate to the establishment of unit C53.
2. An industrial dispute is currently in progress pursuant to clause 48 of the Public Health System Nurses' and Midwives' (State) Award 2023 and, accordingly, the status quo as discussed in cl 48(vii) of the Award is the work practices which existed prior to the notification of change sent by Western Sydney Local Health District on 17 January 2025.
3. The respondent is to refrain from implementing any changes, apart from measures related to opening unit C53, whilst the changes remain subject to a dispute. This direction/recommendation shall be in force until the dispute is resolved or for a period of seven days at which the matter will be called on for report back on 11 February 2025.
4. The applicant and respondent are to consult in a bona fide and expeditious manner regarding the changes set out in the correspondence of Western Sydney Local Health District from 17 January 2025 with a view to resolving or narrowing outstanding issues between them prior to the report back on 11 February 2025.
The District resists the making of the proposed directions and or recommendations. It seeks that:
1. The matter be concluded in the public interest and to ensure optimal patient care needs; and/or
2. If the Commission is so minded, that a recommendation be issued to the effect that the Association should immediately co-operate with the District to ensure implementation of the proposed changes without further delay.
Moving to my reasons for my decision today. The first question to be asked in deciding how to finally resolve this matter is whether or not the Commission has the power to make the directions and/or recommendations sought by the Association.
I am concerned that some of the recommendations and/or directions sought by the Association go beyond the power conferred by s 136 of the Industrial Relations Act 1996 (NSW). In respect of the proposed recommendations and or directions, 1 and 2, what is sought is in the nature of declaratory relief which is beyond the power of the Commission. Having said that, it is appropriate that I consider whether the Health Secretary has met its obligations with respect to the requirements to consult with the Association in the context under the Award when deciding what recommendations and/or directions to make. I have done so.
Further, to the extent that what was sought is a direction, the Commission's power to make a direction pursuant to s 136(1)(a) is not intended to be a form of final relief: Local Government Engineers' Association of New South Wales v MidCoast Council (No 2) [2022] NSWIRComm 1069. In the circumstances, I would not be inclined to make a direction of the nature sought. I have instead considered whether to make a recommendation as has been sought by the Association in this matter.
To answer the question of whether or not the proposed changes have significant effects such that clause 6 of the Award applies, and if so, has, or is the Health Secretary in breach of those obligations. I note that this issue and other issues raised by the parties, go to whether or not each is complying with the requirements of the Award. I agree with the submissions that were put by Mr Dunstan for the Association that this is a relevant matter in deciding whether the Commission will exercise its discretion to make a recommendation or direction.
The Association claims that the District is in breach of clause 6 of the Award requiring consultation in situations of workplace change having significant effects. The District denies that the changes proposed will have significant effects triggering the operation of clause 6 and further asserts that even it is wrong in this regard, the consultation with the Association has been extensive.
Clause 6 of the Award is in the following terms:
6. Introduction of Change
(a) Where an employer has made a definite decision to introduce changes in organisation, structure, health service delivery, or technology that are likely to have significant effects on employees covered by this award, the employer will notify the Association and employees who may be affected by the proposed changes. Discussions will commence as soon as practicable after such decision has been taken.
(b) "Significant effects" includes:
i. termination of employment;
ii. major changes in the composition, operation or size of the employer's workforce or in the skills required;
iii. changes in employment and/or promotional opportunities or job tenure for a class or group of employees;
iv. the alteration of hours of work for a class or group of employees; or
v. the need for training or transfer of a class or group of employees to other work or location, and the restructuring of jobs.
(c) The employer will discuss with the employees affected and the Association, inter alia, the introduction of the changes referred to in subclause (a) above, the effects the changes are likely to have on employees and any measures proposed by the employer to avert or mitigate the adverse effects of such changes on employees, and will give prompt consideration to matters raised by the employees and/or the Association in relation to the changes.
(d) For the purpose of such discussion, the employer will provide to the employees concerned and the Association all relevant information about the changes including the nature of the changes proposed and the expected significant effects of the changes on employees. Provided that the employer will not be required to disclose confidential information, the disclosure of which would adversely affect the employer, Ministry or Director-General of Health; or is an exempt matter under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).
(e) The provision of communication during maternity, adoption or parental leave is in accordance with Part E, Communication During Leave, of Clause 34 Maternity, Adoption and Parental Leave.
(f) With respect to occupational health safety matters as referred to in the Work Health and Safety Act 2011 (NSW), the provisions of that Act apply, and specifically the provisions under Section 47, "Duty to consult workers", as varied from time to time."
With respect to cl 6(f) and the obligations to consult pursuant to the Work Health and Safety Act 2011 (NSW), ss 47- 48 provides:
47 Duty to consult workers
(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.
…..
(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.
(3) The agreed procedures must not be inconsistent with section 48.
48 Nature of consultation
(1) Consultation under this Division requires -
(a) that relevant information about the matter is shared with workers, and
(b) that workers be given a reasonable opportunity -
(i) to express their views and to raise work health or safety issues in relation to the matter, and
(ii) to contribute to the decision-making process relating to the matter, and
(c) that the views of workers are taken into account by the person conducting the business or undertaking, and
(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.
(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.
There was no disagreement as between the parties that the consultation process commenced on 17 January 2025. There was some difference in the evidence with respect to exactly when the letter was received that day, but it was agreed that it was on 17 January 2025.
As outlined in the District's submissions, what was stated in that letter was that:
(a) The District would continue with the recruitment of psychiatrists in this District and the operational measures were being supported by the Ministry of Health.
(b) The proposed changes were to ensure the priority of care of patients, wellbeing of staff and to minimise disruptions to the provision of heath care services, especially in mental health services emergency departments.
(c) No nurses would be directed to work outside their scope of practice and that the strategies would require the support of the nursing workforce across the District's mental health workforce.
Kelly Watson, Acting Director of Nursing and Midwifery for the District, gave evidence in the proceedings including in respect of the consultation that has occurred in respect of the implementation of the strategies. I note that this evidence was largely uncontested by the parties, including what was contained at paragraph 11 of her statement:
"Following notification to the NSWNMA on 17 January 2025, WSLHD has consistently consulted with the NSWNMA including on the following dates and the purpose of the meetings has been to discuss the proposed changes, and consider/address any feedback and questions from the NSWNMA:
(a) 12:00pm, 20 January 2025. Myself, Graeme Loy (Chief Executive WSLHD), Nicole Grice (Director of People and Culture, WSLHD) attended from WSLHD. Paul Collier, Brooke Craig, Nicole Mason, Kerry Stevens and Renatta Di Staso, were in attendance from NSWNMA.
(b) On 21 January 2025, Ms Stevens, Ashley Dobozy and Ms Mason from the NSWNMA completed a site visit for a walk through at Blacktown Hospital. Myself, Mr Matt Sydenham (Executive Director of Operations, WSLHD) and Melissa Cooke (A/Director of Nursing at Blacktown and Mt Druitt Hospitals, WSLHD) were also present during the walk through. Myself, Mr Sydenham and Ms Cooke showed Ms Stevens, Mr Dobozy and Ms Mason to Wards C51, A81 and C53 at Blacktown Hospital. During that visit, there were no concerns raised about these wards to (m)yself, Mr Sydenham or Ms Cooke.
(c) On 23 January 2025, myself, Mr Sydenham and Ms Swetha Chowdavarapu (A/Director of Industrial and Employee Relations, WSLHD) met with Ms Craig, Mr Collier and members of NSWNMA at 2:00PM via Microsoft Teams.
(d) On 24 January 2025, myself, Mr Sydenham and Ms Chowdavarapu met with Ms Craig, Mr Collier and delegates and members of NSWNMA at 10:00AM on Microsoft Teams.
(e) On 30 January 2025, myself, Mr Sydenham and Ms Chowdavarapu met with Ms Craig, Mr Collier and delegates and members of NSWNMA at 8:00AM on Microsoft Teams.
(f) On 31 January 2025, the NSWNMA conducted a walkthrough of the following wards at Westmead Hospital. It is my understanding that Mr Jason Warwick, Ms Dobozy, Ms Di Staso and Ms Mason of the NSWNMA attended that walk through.
i. Women's Health (Level 4, G Block)
ii. A6A
iii. A3A
iv. K10b
v. Emergency department
WSLHD confirmed in an email of 30 January 2025 that myself and Ms Clemencia Hanna (Work Health Safety Manager, WSLHD) would be available for the NSWNMA during the walkthrough and for any questions. Annexed here and marked "KW2" is an email thread I was copied into regarding the walkthrough. It is noted in KW2 that Mr Collier declined having any WSLHD's representatives attend with them. Ms Hanna advised me that she had a conversation with Jason Markwick of the Association on the afternoon of 30 January 2025 and he emphasised that the NSWNMA did not require any WSLHD representative to be part of the walk through, to which Ms Hanna advised Mr Markwick that if they had any questions or concerns to contact her as she was working from Westmead Hospital that day."
Paul Collier, lead industrial officer, public health organisation team, gave evidence that it was not until 30 January 2024 the Association became aware that the proposed changes other than C53 unit were pressing. He stated that during that meeting Matt Sydenham from the District proposed the Association agree to allow the other strategies, those relating to Cumberland and Westmead hospital, to come into effect. Under cross-examination, he accepted that an email was sent from Ms Grice of the Department which explicitly refers to the additional strategies to be put into place on that date.
It is unnecessary for me to consider whether or not the changes are significant for the following reasons. In my view, the District has consulted with the Association in accordance with any obligations it may have had under the Award. While I appreciate the process was swift and there may have been some confusion about timing and prioritisation of the implementation process, the Association was on notice from 17 January 2025 of the proposed changes.
The District provided an opportunity for the Association to be heard, within reason. The District was not obliged to work to the timeframes of the Association. I also note that the unique context within which the changes are to occur that supported the need for a quick and efficient consultation process to be undertaken.
A question also arose with regards to what is the "status quo" and if it had been breached. The Association relied upon its rights under the Award to the status quo being maintained whilst the dispute is in place; specifically I am referring to cl 48 of the Award. The District submitted that the provision does not apply to the circumstances at hand, referring the Commission to the decision of New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 at [38]-[44].
I agree with the District's submissions that it would be inconsistent with the purpose of the clause if the status quo provision were to be interpreted as operating to stop a party from continuing in their business as they usually would while the dispute remains unresolved. However, in my view, it is consistent with the purpose of the clause that it apply in circumstances where it is alleged that a business is operating in a manner inconsistent with the applicable Award and/or laws.
Although that was what was alleged here, for reasons that I have indicated, I do not think the District failed to comply with its obligations pursuant to cl 6 of the Award. It would not be in the public interest for the Commission to make a recommendation or direction based on a breach of the status quo clause where the underlying assertion in the dispute, namely the failure to consult, cannot be sustained.
I note for completeness that the District submitted in his written submissions that the Association had failed to comply with the dispute resolution procedure in the Award at cl 48. This argument was not meaningfully developed in the proceedings, and I am unable to make an adverse finding about the Association's conduct in this regard.
I note that it is in the public interest and it is a matter that I must take into account that the Association be able to confer with the respondent if it has legitimate concerns with respect to changes in the workplace and the health and safety of their members. Ms Dobozy of the Association conceded that the inspection feedback document which was produced and provided to the respondent at about 6pm yesterday is imperfect. Furthermore, it was intended that that document be produced and provided to the District by 6pm on Friday 31 January 2025.
Despite this, from the evidence, I have formed the view that the Association and its members may have legitimate concerns about the implementation of the proposed changes. Ideally the feedback document, as I have indicated, would have been provided at an earlier time, however, I do accept the evidence of Ms Dobozy that there was a considerable amount of work involved in pulling it together.
I do not think it would be fair for the members of the Association not to be heard on their concerns because of the lateness of the report. If the parties are able to work cooperatively together, the success of the implementation of the changes would benefit from consultation on at least some of the matters contained in that document. This is a reason to make the recommendations I have, which I will turn to shortly.
I have also taken into account the implications of making the recommendation that I have on the public who are receiving the relevant care. Ms Watson gave evidence in respect of the impact of delaying the implementation of the proposed changes. Her evidence was (at [13]-[21]):
"Impact of delaying the implementation of the proposed changes
NSW Health promotes the access for patients to care as 'Timely access to safe, quality care. We must ensure they have access to the right care, at the right time and in the right place, with minimum waiting times'. This is referred to in NSW Health's Patient Flow Systems Program and outlined in the following link - https://www.health.nsw.gov.au/ods/Pages/patient-flow systems.aspx#:~:text=The%20NSW%20Patient%20Flow%20Systems,maximised% 20and%20resources%20effectively%20allocated
Prolonged lengths of stays within an emergency department can alter the treatment and care planning for patients which can result in adverse patient outcomes such as, but not limited to, hospital acquired complications leading to patient injury, increased exposure to contracting additional health issues, increased diagnostic testing, extended lengths of hospital stay once transferred to an inpatient bed, and dissatisfaction with the hospital experience.
Overcrowding in the emergency department has a negative influence on the well being and ability to provide high quality patient care. Nursing, medical and other staff within the unit, have health issues associated with this such as stress and occupational burnout. Staff are asked to deal with many differing priorities that they can become disillusioned and fatigued whilst at work which may have a negative impact on colleagues and patients.
Patients who remain in an emergency department often suffer from access block to the right bed at the right time in the right treatment speciality which can then lead to overcrowding in the emergency department which reduces the treatment spaces for new patients entering the facility, requiring work up and treatment.
Attendance at an emergency department, is often stressful for any patient and family. This increases if the patient is suffering from for example, a neurodegenerative neurodiverse disorder, detoxing or withdrawal disorders - any distress or delay can increase this stressful situation significantly. The levels of stress and anxiety can change depending on which part of the department patients find themselves in. For example, the sound intensity in an emergency waiting room and the acute /resus area of an emergency department is higher than that of a single room or a four bedded ward bed. The lighting in the emergency department is artificial and has no windows for natural light and this is kept the same throughout the day and night. This can lead to sensory and stimulation overload for patients which in turn can cause patients to discharge without receiving the right treatment and care they require, without being seen or against medical advice. They can become increasingly angered, agitated or disillusioned by the wait, and question the reasons for treatment.
To assist patients with their recovery they require the following: sleep, diet, exercise, reduction of stress and tension, prevention of worrying and negative thinking and getting care and treatment required. A patient's road to recovery is unable to begin in a busy, overstimulated emergency department for all the reasons discussed above.
Emergency departments length of stay over 12 hours on 28 January 2025 was 15 patients, compared to over 12 hour stays on 17 December 2024 was 7 patients. This show an almost 50% increase on lengths of stays in ED since the resignations have commenced. Annexed and marked is "KW 7" are Excel spreadsheets confirming these numbers generated by WSLHD.
I am aware of a situation that occurred in emergency department at WSLHD involving a 23 yr male on 31 January 2025. The patient was found unconscious in a public stairwell and brought to the emergency department with starvation induced ketosis following a bush walk and dehydration. The male had a recent surgical history of a small bowel resection and hemicolectomy with ongoing Peutz-Jagher disease. The patient required IV fluids and re feeding in order to recover. The male had a medical history of schizophrenia for which he was managed with medication. If the endocrine beds suggested in the changes been able to open he could have been admitted and transferred to the unit within a short period of time for further management and fluids. Unfortunately, the patient remained in the emergency department for forty eight hours and became withdrawn and non-verbal during this time.
I am also aware of another of a female patient who voluntarily presented to the emergency department on 20 January 2025 with history of low mood, auditory hallucinations, seven month postpartum. Following the examination, it was felt that the patient was fatigued due to caring for 3 children with no extended family support. A diagnosis of post-natal depression with a request for admission to a mother and baby unit, which was unfortunately not an option available to WSLHD given the resignations had commenced, or a women's health ward as the mother was exclusively breast feeding her infant. However, we had not opened up any additional beds in women's health and the mother and baby remained in the emergency department for 48 hours before being discharged home with support.
We were required to pull on significant resources in the emergency department and from the women's health ward to support the mother and baby in a highly stimulated and unsustainable environment."
I consider the implications of delaying the change to be of consequence. All of the choices the District makes about its model of care are likely to have an impact on the public they serve. I am required to balance each of these matters and consider the public interest in deciding whether to making the recommendations. In exercising my functions I also need to take that into account s 3, the objects of the Act.
As I have indicated, the Association argued that there is a public interest in ensuring the terms of an Award are adhered to, specifically cl 6 and 47 of the Award. For the reasons I have articulated, I am not persuaded by this argument.
There is a strong public interest in ensuring that the people are serviced in accordance with the District's statutory obligations. This includes ensuring that the quality of care is as high as it can be. I appreciate and have considered the impact any delay on the implementation will have on the public.
There is also a public interest in ensuring that there is an appropriate consultation in the workplace about changes including those that may impact upon the health and safety of the employees affected, as well as those who are receiving the service. This is also consistent with the objectives of the Act.
I have decided not to make the recommendations or directions sought by the Association. However, I have decided to exercise my discretion to make a recommendation that the parties continue to consult for an additional three days before the changes are implemented.
This decision has been finely balanced. I am aware that this means that not all of the matters raised by the Association will necessarily be able to be dealt with before the implementation commences. However, for the reasons I have stated, I think the District has provided a fair and reasonable opportunity to the Association to consult already.
It is my expectation that the parties will continue the discussions after the changes are implemented and in good faith. I will not make any further recommendations to delay the implementation of the proposed changes that have been put forward by the District in this matter.
[2]
Recommendation:
I make the following recommendations:
1. The respondent refrain from implementing any changes referred to in the letter of 17 January 2025 until 12.01 am on Saturday, 8 February 2025.
2. The Association and District are to consult on a bona fide and expeditious manner regarding the proposed changes to be implemented.
3. The parties continue to consult on a bona fide and expeditious manner regarding the changes after they are implemented.
These recommendations do not relate to the opening of Unit C53.
[3]
Order:
I make the following order:
1. The matter be listed for telephone report back at 2 pm on Tuesday, 11 February 2025.
JANINE WEBSTER
COMMISSIONER
[4]
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: 07 February 2025
Parties
Applicant/Plaintiff:
NSW Nurses and Midwives' Association
Respondent/Defendant:
Health Secretary in respect of Western Sydney Local Health District