In this matter, on 17 April 2023 the secretary of New South Wales Health on behalf of HealthShare NSW notified an industrial dispute to the Industrial Registrar, pursuant to s 130 of the Industrial Relations Act 1996 (Act).
The Health Services Union and some of its members employed to work at HealthShare in the Patient Transport Service, imposed bans from May 2022 affecting the performance of work, and impacting patient transfers in New South Wales. The HSU opposes its members working in the manner directed by the notifier.
The Patient Transport Service (PTS) delivers an on-demand service to lift and transport nonemergency patients who require assistance to attend medical appointments and transfers from home to hospitals and other facilities. From March 2020, because of the COVID-19 pandemic, the patient transfer service changed processes on a continuous, and initially evolving, basis as a response. That was consistent with other parts of the Health Service. This included changing its service model at some point to separate patient transport crews into red COVID transports and green non-COVID transports.
Between 2021 and 2022 the notifier engaged in extensive consultation with staff and the respondent regarding the intention to move back to a model where crews were no longer separated or restricted into green and red transfers. Around May 2022 the notifier formally advised staff and the respondent of its intention to make that change.
The HSU advised the notifier on 12 May 2022 that a vote of its members was conducted, and the members did not support the change. The HSU placed a ban on its members undertaking any green transfers of patients after completing a red transfer within the last 24 hours. There are other aspects, but this is the substance of the ban in place.
The parties engaged in discussions throughout 2022 in an attempt to resolve the dispute. In November 2022 the notifier received a form of endorsement from Dr Kerry Chant, the Chief Health Officer, supporting the transition proposed by the notifier. I will return to this, but the notifier also received the endorsement of the proposed change from the Clinical Excellence Commission (CEC).
Secretary, NSW Health in respect of HealthShare NSW v Health Services Union NSW [2023] NSWIRComm 1085 | Case summary | Zoe
On 25 January 2023 the notifier wrote to the respondent asking for the bans to be lifted and the HSU replied on 3 February 2023stating the bans would not be lifted. The notifier and the respondent attended a compulsory conference before the Industrial Relations Commission on 24 April 2023 and on that date the Commission made recommendations that the bans be lifted. The notifier now seeks arbitration and dispute orders to resolve the dispute.
It is not controversial that the HSU action constitutes industrial action or that, as a consequence, there is an industrial dispute. It is clear that the parties are the Secretary, NSW Health in respect of HealthShare and the HSU, so there is no need to labour the point setting out the basis of each of these.
The Commission has a broad range of powers in arbitration of industrial disputes. These are set out in s 136 of the Act:
136 Arbitration of dispute
(1) The Commission may, in arbitration proceedings, do any one or more of the following -
(a) make a recommendation or give a direction to the parties to the industrial dispute,
(b) make or vary an award under Part 1 of Chapter 2,
(c) make a dispute order under Part 2,
(d) make any other kind of order it is authorised to make (including an order made on an interim basis)..
Set out in s 137 of the Act are the Commission's powers relating to the issuing of dispute orders. Relevant here, and in the form that they are sought, is s 137(1)(a):
137 Kinds of dispute orders
(1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings -
(a) The Commission may order a person to cease or refrain from taking industrial action.
Section 138 of the Act provides that a dispute order may only be made against a party, or a likely party, to the dispute or a member, officer or employee of an industrial organisation that is such a party - and that is the relevant portion of s 138(1) for this dispute.
Section 138(2) provides that a dispute order must set out and identify the persons against whom the order is made and who will be bound, the stated time within which the order is to be complied with, and the period during which it remains in force, and that it may be varied.
In exercising the functions of the Commission, as is set out in s 146 of the Act, the Commission must take into account the public interest. This is set out in s 146(2) in these terms:
146 General functions of Commission
…
(2) The Commission must take into account the public interest in the exercise of its functions and for that purpose must have regard to -
(a) the objects of the Act and
(b) the state of the economy of New South Wales and the likely effect of its decision on that economy.
In written submissions, the notifier set out, beginning at para 19 of the submissions:
"19. The prerequisites to make out a dispute order are satisfied.
20. The Notifier has endeavoured to resolve the dispute in various discussions with the HSU to achieve the lifting of the bans; this has been unsuccessful. The Notifier engaged the Commission to assist. A recommendation by this Commission did not result in the HSU and its members employed at PTS lifting the bans. The bans remain in place today.
21. The notifier has presented a compelling case for the issuing of dispute orders including:
21.1. It is uncontentious that the Notifier has managerial prerogative to organise and structure the performance of work for the delivery of services to the community of NSW. The way in which the work is being organised in PTS is neither harsh nor unreasonable;
21.2. The Notifier has organised the work to be performed in a safe manner, with negligible risk to the health and safety of workers and patients (and any opposition by the HSU and its members on the grounds of patient safety is nonsensical and irrational);
21.3. Rather than raise an industrial dispute with this Commission about PTS's return to BAU, the HSU unilaterally imposed and maintained bans on the performance of work (and such action should not be condoned);
21.4. The bans are having an unjustifiable and unreasonable effect on the delivery of important and timely patient services, the patient experience and flow-on effects to other health providers and services (as well as having other adverse impacts on PTS administratively and financially);
21.5. The notifier has properly utilised the conciliation and arbitration functions of the Commission to seek to resolve the dispute; and
21.6. Without the dispute order, the ban will not be lifted, as demonstrated by the ongoing failure by the HSU to lift the bans after many discussions and a recommendation by the Commission.
22. Section 146 of the IR Act requires the Commission to take into account the public interest in the exercise of its functions. The public interest is very broad: Secretary of Ministry of Health and New South Wales Nurses and Midwives' Association (2022) 320 IR 249 at [50]. The Commission might intervene to protect the public interest from the damaging effects of industrial action: Fire & Rescue New South Wales on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) NSWIRComm 63 at 4[1]. There is little doubt that the public interest supports PTS being able to conduct patient transfers in an efficient and ordinary (ie business as usual) manner that ensures all patients are treated equally and transferred in a timely manner.
23. The dispute order would not lack utility; in fact, it would have the opposite effect. A dispute order would provide an effective and real basis to resolve the industrial dispute. The dispute order would not be oppressive or harsh, given the lifting of the ban would see the PTS staff work as they ordinarily did pre-COVID-19 and in a manner that is certified safe by the CEC and Dr Chant.
24. A dispute order would be consistent with an important objective of the IR Act, namely 'to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality': s 3(g) of the IR Act. A dispute order is necessary to resolve this dispute: s 146(1)(b) of the Act. As such, it can be said that the Commission's order 'truly focuses on ensuring the resolution of disputes … with the minimum of legal technicality."
The order sought is set out in the notifier's submissions. The Commission will only turn to consider the form of the order, and its correctness if the Commission determines to make an order. That said, the order set out is in an orthodox form.
The notifier led evidence from three witnesses. The first was Brendan Mann who is employed at HealthShare as the Stakeholder Relations Manager for the PTS.
He testified that he was a member of the PTS senior leadership team. He gave evidence that the PTS provides an on-demand service to lift and transport nonemergency patients who require assistance to attend medical appointments, transfers from home to hospital and other facilities. He gave evidence that the PTS has a number of partners, who appear to be outsourced providers, who do the same work as the PTS itself, but at a fee on a commercial basis.
Mr Mann gave evidence that prior to COVID-19 crews would complete both infectious and non-infectious patient transfers in any given shift and there would be no restrictions on crews being unable to complete a non-infectious patient transfer after completing an infectious patient transfer. PTS crews are trained in safety protocols aimed to protect themselves and other subsequent patients from highly infectious patients and their infection. The measures in place prior to COVID-19 for infectious transfers included wearing a surgical mask, donning and doffing procedures and disinfecting high touch points.
Mr Mann set out a long list of COVID related measures now in place. Mr Mann gave evidence that as COVID-19 evolved, HealthShare progressively increased measures over the span of the pandemic in responding to COVID 19. His evidence was that the measures changed as PTS progressed through the pandemic and that they were guided by the CEC recommendations. One of the measures that was implemented was the red and green crews.
He gave evidence of discussions with the CEC, including that the CEC helped PTS to develop procedures and protocols to assist to eliminate or to minimise the risk of COVID-19 transmission. He gave evidence, although it is given directly later, that he understood the CEC had endorsed the PTS's intention to return to a single class of transfer.
He gave evidence in relation to training, which was extensive.
He gave evidence that from mid-2021 HealthShare decided it wanted to return to a single set of transfers and to end the red and green transfer distinction. He gave evidence of discussions, at length, between the employer and the staff and including the relevant union. I am going to quote para 42 in its entirety.
"42. I note that our four private providers have been operating under BAU since mid-2022. Private providers are required to report to me any transmissions of COVID-19 during a patient transfer. To my knowledge, there has not been a single transmission of COVID-19 to a patient in relation to PTS since the start of the pandemic due to the strict infection prevention and control measures in place. There has only been one patient to staff transmission, which occurred early in the pandemic in December 2020."
He gave evidence of the bans in a form that has already been set out. He gave evidence of the effects of the bans, which was in this form:
"45. The bans have greatly impacted the operation and safety of patients.
46. The bans have made it increasingly difficult for the dispatch team to allocate jobs. Dispatch can only rely on a small bucket of crew who are willing to comply with the BAU protocol.
47. Dispatch team have had to purposefully plan patient transfer so that any potential 'red' trips would be scheduled late in staff members' shifts. This is not conducive to timely patient transfers and hospital workloads.
48. The resulting delays have tied up space at hospitals with those patients not being transported from the hospital until the end of the shift. To delay the arrival of 'red' patients means that hospitals are wasting vital resources such as beds and equipment waiting for those patients to be transferred. The patients are also delayed in their transfer.
49. On countless occasions dispatch has had to assign trips to our private provider crews. I would say roughly 30% of our PTS workload is delegated to our private providers. PTS is trying to get down to 20 per cent. Removal of the bans would greatly assist in doing that and also assist in saving public funds."
Mr Mann gave evidence in reply, disputing poor quality of training. He also gave evidence that the bans were causing difficulties across the health system.
Also giving evidence was Mr Garth Worboys, who is employed at HealthShare as Executive Director - System Service Delivery. He gave a history which is effectively the same as that given by Mr Mann, of the implementation of COVID-19 protocols, the transition back from higher COVID-19 protocols, and the decision of HealthShare to notify staff to remove the red/green transfers and the opposition by the HSU and its members, and the imposition of bans.
Mr Worboys annexed a letter from Dr Kerry Chant, in very brief terms, which endorsed the proposed change. I note that the letter did not detail the changes as such.
Mr Worboys gave evidence that NSW Ambulance does not separate patient transfers between red and green. I place little weight on this evidence as it would have been appropriate for such evidence if much weight was to be given to it, it would have been appropriate if that had been given directly from someone from NSW Ambulance.
As to the impact of the bans, I propose to quote once again from Mr Worboys' statement, beginning at para 46:
"46. I believe the bans have greatly impacted the operation of patient transfers
47. The bans mean that there is almost certainly a delay for patients receiving transfers. If you are a patient that has COVID-19 or is suspected of having COVID-19, PTS will now need to schedule you to receive your transfer at the end of the day, to minimise the risk that the crew performs the transfers in these limited to only other 'red' transfers. This has an impact not only on the patient's experience but the services that we transfer patients between such as hospitals where allocated bed space is needed for other patients. In addition, I am aware of that for many nursing homes handover can only be done prior to 4.00pm in the afternoon.
48. Any additional consideration, such as the ban, that must be factored into the algorithm for scheduling our services, creates unnecessary complications and delays.
49. The impact of the ban include:
(a) significant delays for non-emergency patients in being transported to medical appointments or between facilities especially those who require specialist care;
(b) the requirement to segregate 'red' transfers to the end of PTS crew shifts, meaning patients are waiting several hours to be transferred;
(c) reduced flexibility in efficiency, including obtaining the most optimised routes for patients;
(d) complexity in separating 'red' and 'green' crews is having a major impact on the delivery of timely services impacting patient flows and ultimately patient experience;
(e) increased use of private providers adding to costs, resources and the flexibility of booking patients on demand to ensure continuity of timely and safe services;
(f) impact on PTS crew who are concerned as the number of staff who cannot undertake 'red' at all and how this is seen as unfair as there is uneven workload. This leads to poor organisational culture and is amplified within increases in COVID cases;
(g) other Health agencies, like NSW Ambulance and the private contractors have gone onto managing COVID-19 as any other infection and do not have the same ban placed on them.
50. I am also aware that the ban does not extend to transfers of patients who have, or are suspected of having, other infections, diseases, such as Monkeypox or RSV. …
51. I am not aware of a single reported transmission of COVID-19 since December 2020, due to the improved infection measures, and only one (1) reported patient to staff transmission in December 2020."
Finally, the notifier tendered a witness statement from Kathy Dempsey. She is employed by the Government of New South Wales to work at the Clinical Excellence Commission, as the NSW Chief Infection Prevention and Control Practitioner and Health Care Associated Infection Advisor, Infection Prevention and Control COVID-19 Response Clinical Lead.
Her evidence was that she is a registered nurse with extensive clinical experience of more than 35 years. She holds an undergraduate degree in Nursing, and Master's degree in Hospital Epidemiology and Infection Control from the University of Sydney; a postgraduate certificate in Medical Microbiology and a Diploma in leadership and management.
She gave evidence that she was a credentialed expert in infection prevention and control from the Australasian College of Infection Prevention and Control.
She spoke about the Clinical Excellence Commission and that it is one of the five pillars of NSW Health system. The role of the CEC is to lead, support and promote improved safety and quality in clinical care across the NSW Health system through consultation and collaboration with clinicians, health consumers, other pillars and the NSW Health Ministry. The CEC is the lead agency for infection prevention and control, including during pandemic response.
Consistent with that, the CEC had supported the New South Wales health systems' response to the pandemic, including providing infection prevention and control guidelines and guidelines as to PPE.
She gave evidence of the CEC assisting HealthShare's patient transport service from the beginning of the COVID pandemic and through to currently.
She gave evidence, which was consistent with that of Mr Mann and Mr Worboys, of extensive infection control being introduced at HealthShare in relation to the patient transport service.
I am going to quote from her statement:
"15. In my professional view, I consider that the PTS has gone above and beyond in these infection prevention and control measures."
16. While the procedures in place at PTS do not entirely eliminate the risk of transmission of COVID-19 between transfer patients, it effectively reduces the risk to a negligible degree. …
…
20. I am not aware of any patients of the PTS that have acquired COVID-19 because of a transfer. I consider that a patient using the PTS is at far less risk of getting COVID than attending a shopping centre or other public place.
…
24. The procedures that the PTS were adopting in 2021 and 2022 were endorsed by the CEC as more than sufficient to protect the safety of employees and patients in this service, including as it removed the interim measures and returned to business as usual before COVID-19. The PTS is doing everything it can possibly do to prevent transmission and infections for patient transfers.
…
25. Unless you take away the patient, you will never fully remove the risk of transmission. …
…
26. The CEC has provided similar advice and guidance to other NSW Health agencies throughout the COVID-19 pandemic period to date.
27. Across the system it is common practice to manage and care for patients of variable infectious status and move between these. The implementation of Infection Prevention and Control is designed to break the chain of transmission, with a focus on risk assessment and application of standard precautions for all. I am aware that the PTS has been provided with extensive support from the expertise of the CEC to guide them specifically in this space.
…
28. I understand the HSU has placed a ban on its members performing red and green transfers on the same shift, which is a necessary part of the PTS returning to business as usual.
29. In my professional view, the ban is completely unnecessary. … "
She reiterated those sentiments in her evidence in-reply.
The HSU's submissions as to the principles applicable to making dispute orders, as set out in the Outline of Submissions Respondent were:
"Principles applicable to making dispute orders under s 137(1)(a)
5. The principles applicable to the making of dispute orders under s 137 of the Act were considered by Walton J in Secretary of the Ministry of Health v NSW Nurses and Midwives' Association [2022] NSWSC 1178, at paragraphs 36 to 59.
6. At para 37, Walton J noted:
The use of the word 'may' in sections 136(1) and 137(1) indicate the discretionary nature of the power to make orders … . In so doing, the Commission must have regard to the public interest, objects of the Act and the likely effect on the economy of New South Wales: sections 3, 146(2).
7. At paragrpah 41, Walton J cited Boland J in Bluescope Steel Limited v Australian Workers Union (NSW) (2005) 138 IR 324:
Dispute orders are rarely made by members of the Commission. Long experience has demonstrated that most matters can be resolved by conciliation and/or arbitration, without resorting to the prospect of sanctions. The making of dispute orders 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 the organisation.
8. At para 50, Walton J further stated:
Fourthly, when considering the consequences of industrial action, the Commission is not limited to only considering the economic impacts. The 'public interest' is very broad. For example, the public interest can include the effect on primary and secondary school children in their education: see New South Wales Department of Education v NSW Teachers' Federation [2010] NSWIRComm 55 at 349.
9. The Commission can be further assisted by the remarks of Commissioner Sloan in Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWIRCom 1042 at para 23, in which he states:
The exercise of that discretion will be informed by the Act as a whole, noting in particular ss 3 and 146, and the circumstances of the case.
10. Commissioner Sloan also provides at paragraph 23, that there is no presumption that an order under s 137(1)(a) will be made."
The submissions of the union continued, noting that the members had voted up the industrial ban and making the following key points.
1. The majority of patients that utilise PTS are a vulnerable demographic.
2. While there are other COVID precautions in place, the red/green separation is a simple but effective measure that can be put in place to give crews and patients an additional layer of COVID cross infection prevention.
3. That patients who utilise PTS do not live in a post-COVID world.
4. Submitting that HealthShare's poor training and assessment standards of employees should be taken into account.
5. That the red and green separation is consistent with the obligations of the employees in respect of their own health and safety responsibilities.
6. Noting their members' view of their traditional role as patient advocates.
The HSU submitted that by maintaining the separation of red/green crews, the HSU believes that its members are acting consistently with their obligations in relation to work health and safety.
The HSU submissions concluded by submitting that:
"26. While there may be minor reductions in efficiency and productivity as a result of the practice, there are creative ways in which HealthShare booking hub can maximise the number of transfers completed, while still keeping this safety practice in place.
27. Further pursuant to the public interest, the Commission should give consideration to the devastating effects that COVID is still having on aged care.
28. Where the majority of PTS transports involve residents who reside in aged care facilities, this should be the patient demographic that the Commission considers in its exercise of discretion.
29. There are currently 97 residential aged care facilities experiencing active COVID outbreaks across NSW.
30. COVID outbreaks in aged care facilities not only have the potential to cause adverse health outcomes for residents including death, but it also causes a lockdown within the facility.
31. The lockdown itself causes health issues for aged care residents.
32. The aged care industry, its workers and residents, do not live in a post-COVID world where it is viable to return to BAU.
33. Given this, it is expected that health services that primarily deal with elderly or immunocompromised people, such as HealthShare PTS, would take every reasonable precaution in preventing COVID infection of patients in their operation.
34. For these reasons, the Commission can be satisfied that a decision not to issue dispute orders to cease industrial action does not go against the public interest. This is because the industrial bans are in advocacy of patient safety for the reasons outlined above and in the HSU's witness statements.
35. In fact, the HSU submits that making dispute orders for HSU members to cease industrial action would be inconsistent with the public interest.
36. For these reasons, the Commission should not make dispute orders under section 137(1)(a), as submitted by the Notifier."
The respondent called three witnesses. Firstly, Ms Alana Fernandes, who previously worked part-time as a patient transport officer but is now an industrial officer with the HSU.
She gave evidence of the origins of the current dispute but also of HSU views that it was actions by the union that resulted in many of the COVID safe protocols that were put in place by HealthShare.
Her evidence also noted that during the pandemic the patient transport officers were regularly exposed to COVID and were indeed involved the transfer of patients who had come from the Ruby Princess once they were moved into mandatory hotel quarantine.
Ms Virginia Ellis gave evidence that she was employed as a lifestyle and wellness co-ordinator at an aged care facility in Springwood, noting that the facility operates as a 24/7 facility where elderly patients reside. She gave evidence she was aware of the dispute and that some of the residents at the facility she worked at had utilised the PTS.
She gave evidence of the effect of COVID in aged care. Much of that, historically, is of course notorious. She gave evidence that COVID continues to be of concern in aged care to a greater extent, in her view, than in the public generally and noted that at the time she was giving her statement the facility she worked at was in lockdown due to an outbreak of COVID.
She agreed in cross-examination that patient transfer officers need to meet an aged care home's requirements for COVID prevention when they attend an aged care facility. She also agreed that doctors do not split into red and green streams when they visit patients at the aged care home at which she works.
The third witness was Mr Craig Angus, who is employed part-time as a patient transport officer. His evidence included that the vast majority of patients who are transported are elderly or otherwise of a vulnerable demographic.
He gave evidence of the background to the bans and to the concerns of HSU members that they should remain in place and that the extra protection from the red/green distinction would not be excessively onerous on HealthShare.
He gave evidence complaining about what he asserted was inadequate training and inadequate cleaning of vehicles at the end of shifts.
Two paragraphs in particular capture the gist of a large part of his evidence as to the reasons for the industrial action:
"27. The current infection preventions don't completely remove the risk of COVID infection only reduce. Therefore, there is still a risk of transmission.
…
30. While there may be COVID precautions in place the red green separation protocol is a simple but effective measure that can be put in place to give crews and patients an additional layer of safety from COVID infection."
He gave evidence which, at a high level, challenged the difficulty which would be faced by HealthShare in implementing the red/green distinction.
As I observed during the hearing, I consider that there are three issues that are at the core of the dispute. These are medical issues, secondly the public interest and thirdly whether an employer, having gone through the process diligently of discussion, conciliation and now arbitration, should generally be entitled to a dispute order.
As to the medical issues, there is a lot of detail from each party. From the notifier there was a lot of information about training, about consultation, about current processes and about history and, of course, about endorsement from the Clinical Excellence Commission.
From the respondent, there was a great deal of history as well. There was an emphasis on the fact that red/green is a very practicable thing to be done. The fact that it has been done, that it would be another layer and that of a desire by members of the HSU to do everything that could be done to eliminate risk.
Ultimately, for this issue the Commission is not going to enter the COVID debate. It is a medical question here and the medical expert is the CEC and Ms Dempsey.
The process is safe. It is approved by the proper people and it is not the role of the Commission to judge that. I should say that the process appears to the Commission to be safe, but that it is not the role of the Commission to judge that.
The motives and concern of the respondent's witnesses are accepted as genuine. It is not possible, though, for them to have the Commission effectively question, let alone evaluate, Ms Dempsey.
The second question is the public interest. It was put by the HSU that the public interest would be served to some extent by the ban being in place. I think that issues is largely is dealt with by the analysis that the Commission has given of the medical issues.
The next question is the damage that comes from the bans. It was a submission of the notifier that there did not need to be quantification, that it was clear, effectively, from the evidence that there was some inconvenience, there was delay, there was cost and that there was unnecessary inconvenience caused by the bans.
It was a very strong submission of the HSU that there was no evidence of numbers, no evidence of dollars and no evidence of time. Nothing had been quantified. Indeed, the HSU went so far as to invite the Commission to draw a Jones v Dunkel inference against the notifier because such matters were clearly within the power of the notifier to provide, and they had not been provided.
The third matter is the question of whether the notifier, having used the system, as Mr Mattson appearing for the notifier described it, as the parliament intended that it should, if not automatically, presumptively result in an order being made.
Notwithstanding what I said about the medical issue, in my view the balance between the evidence that is before the Commission in a quantifiable fashion as to numbers, dollars and time is, frankly, not sufficient for the Commission to attract the public interest to the requisite level.
It is clear from the decisions of Walton J, that the Commission will not readily grant dispute orders. The Commission would need some greater confidence or some greater detail outlining why there is delay in terms of numbers, dollars or time that is not manageable within the scope of the business of HealthShare before it would act to issue a dispute order.
The decision has ultimately been finely balanced. The fact that the employer has chosen to use the system had considerable force, but it did not, in the end, persuade the Commission that it should exercise its discretion.
Accordingly, the application is dismissed.
C Muir
Commissioner
[2]
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Decision last updated: 22 August 2023
Parties
Applicant/Plaintiff:
Secretary, NSW Health in respect of HealthShare NSW