Secretary, Ministry of Health in respect of Hunter New England Local Health District and New South Wales Nurses and Midwives’ Association [2021] NSWIRComm 1046
At about 2.30pm today, a dispute notification was received from the Hunter New England Local Health District (HNELHD). In the notification, the HNELHD contended that throughout yesterday and today nurses have been reporting to their local managers their intention to walk off the job following branch meetings of the respondent, the New South Wales Nurses and Midwives' Association, ("the respondent" or "the association").
The Commission convened a compulsory conference at 4pm today for the purposes of trying to understand the situation and resolve the dispute. During the listing, Mr Dawson on behalf of the association raised an issue with respect to the notifier, namely that the HNELHD does not have standing to bring such a matter and seek the orders it has in these proceedings.
Ms Allen, on behalf of the Health Secretary, joined the conciliation conference after becoming aware of the industrial action taking place and entered her late appearance.
During the conciliation conference it became apparent that the matter was unable to be resolved. Both parties were provided with an opportunity to make an election pursuant to s 173 of the Industrial Relations Act 1996 (NSW) and both declined that opportunity. The matter was listed for hearing of the application for the orders sought by the Health Secretary at 6.30pm this evening.
Prior to the hearing, the Health Secretary forwarded to the Commission draft minutes of order in respect of the industrial action taking place. The orders sought were directed at the association, its officers, employees and its members, and any employees who fall within the classification contained within the Public Health System of Nurses and Midwives (State) Award 2019.
Of course, the orders in this form are far broader than the industrial action that was subject of the original notification relating to the HNELHD. This was the subject of some controversy before the Commission this evening, which I will turn to shortly.
Before the Commission, Ms Allen of the Health Secretary gave an affirmation and then proceeded to give evidence in support of the notifier's application with respect to information she had received about industrial action taking place across four local health districts, including:
1. The Hunter New England Local Health District,
2. The Illawarra Shoalhaven Local Health District,
3. The South Western Sydney Local Health District, and
(4) The Nepean Blue Mountains Local Health District.
Ms Allen also gave evidence with respect to the practical impact some of this industrial action was having upon the operation of the relevant facilities. I accept her evidence that the industrial action, at some site locations, is presenting a risk to public safety. This is a serious matter that the Commission cannot ignore in considering the application.
The notifier tendered into evidence a number of documents. Specifically, these included letters and resolutions from Belmont Hospital and Springwood Branches of the association resolving that members take industrial action, and a printout of posts from the respondent's Twitter account, which included a statement to the effect that seven hospitals and health services took action for staff ratios. Some decided to stop work, others closed beds, although all facilities remained open to the public.
The respondent objected to the evidence as it related to districts other than the HNELHD on the basis that it was not the subject of the dispute being arbitrated before the Commission, which only related to that particular local health district. Mr Dawson argued that there was a separate dispute that had been notified to the Commission in respect of the Illawarra Shoalhaven Local Health District, to be arbitrated tomorrow at 7.30am and the Commission should not cut across that matter, as to do so would be an abuse of process.
The Commission is not a court of proper pleading. Section 163 of the IR Act provides that the Commission is not bound to act in a formal manner and is not bound by the rules of evidence and may inform itself on any matter in a way that it considers to be just and is to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms.
It is not uncommon for matters to be arbitrated with respect to issues that were not originally contained in the original dispute notification. What is required is that the parties are provided with notice of those issues and given an opportunity to respond to them.
The respondent was provided with a copy of the form of the orders sought by the notifier ahead of the arbitration this evening. The respondent was also informed clearly of the Commission's intention to consider the orders being sought, acknowledging that the industrial action was broader than the HNELHD and inviting the parties to make any application they wished in light of this.
The respondent did not adduce any evidence in respect of the matters raised by the notifier, nor did they make any application to have the matter stood down to enable this to occur. This is not a criticism of the respondent. However, given the concerns raised by the Health Secretary with regards the prospect of ongoing industrial action, the absence of the clear submission or evidence as to what other action may or may not occur in the future did not assist the respondent's resistance to the orders sought by the notifier.
Having very carefully considered these issues, I have decided that it is appropriate that the form of the orders be such that they apply to all local health districts in New South Wales Health. I do not agree with the respondent's submission that there is insufficient basis to do so, although I have thought about those submissions very carefully.
There is evidence before the Commission that industrial action has taken place across seven different work locations, cutting across a number of different local health districts. There is evidence before the Commission that is not contradicted that the industrial action is putting public health at risk. The form of the letters and resolutions in evidence from the two branches of the respondent is strong evidence that the industrial action is a part of a broader campaign encouraging members of the respondent to take industrial action. There is no evidence from the respondent to contradict this.
It is neither practical nor appropriate that the Health Secretary be required to manage that industrial action through separate applications relating to different local health districts purely on the basis that the situation evolved quickly and where they were not aware of the co-ordination of the action taking place when the dispute notifications were lodged in this Commission. That was because, in part, the respondent did not tell NSW Health about the industrial action that was to occur.
I note that there are a very broad range of issues of concern contained in the letters in evidence by the respondent's members and my ruling does not mean that these issues do not have a sound basis in fact. However, for the reasons I have given, I have decided that it is appropriate to make orders aimed at ensuring that industrial action experienced today within NSW Health ceases.
I do, however, agree with the respondent that the order should be reasonably capable of being complied with. Having carefully considered the submission of the respondent on the form of the orders, I have decided to make the following orders.
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Orders
I make the following orders:
1. The New South Wales Nurses and Midwives' Association, (the Union), its officers, employees and its members, are ordered to not engage in any industrial action, including the form of a strike or work bans by any employees who fall within the classifications contained within the Public Health System Nurses and Midwives' (State) Award 2019.
2. The Union, its officers and members are ordered to not threaten to engage in any industrial action, including in the form of a strike or one or more work bans by any of the Employees.
3. The officers of the Union are to take all practical steps to ensure compliance with orders 1 and 2.
4. These Orders take effect immediately and remain in force until and including 30 June 2021 or until further order of this Commission.
Pursuant to 136(1) of the Industrial Relations Act, the Commission directs:
(a) The Union must, by no later than 12.01am on 3 June 2021, take all reasonable steps to ensure or cause to be issued a communication to all members of NSW Health informing them of the orders set out above.
(b) The Union must, by no later than 12.01am on 3 June 2021, post a copy of the orders on prominent positions on its website and the union's social media, such as its own Facebook page.
Janine Webster
COMMISSIONER
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Decision last updated: 23 June 2021