Industrial Relations Commission New South Wales Medium Neutral Citation: Health Secretary in respect of NSW Ambulance v Australian Paramedics Association (NSW) [2023] NSWIRComm 1056 Hearing dates: 25 May 2023 Date of orders: 25 May 2023 Decision date: 25 May 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: Pursuant to ss 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders: (1) The Australian Paramedics Association (NSW) ("the APA"), its officers and employees, and its members employed in the Ambulance Service of NSW must by 7:00 pm today. 25 May 2023, cease taking industrial action described as "Ban on Staff Movements" in annexure A to the notification of an industrial dispute filed on 25 May 2023. (2) The APA, its officers, employees, agents and members must by 7:00pm today, 25 May 2023, cease and refrain from authorising, organising, supporting, or encouraging industrial action contrary to Order 1. (3) These orders take effect immediately and will remain in force until 1 June 2023. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, the Commission makes the following directions: (1) The APA must by no later than 7pm on 25 May 2023: (a) send an email to all members with a link to Order 1, the text of Order 1, and a direction to comply with those orders and not take the industrial action referred to in Order 1; (b) provide or cause to be provided a copy of Orders 1, 2 and 3 above to the APA's representatives employed by the notifier. (2) The APA must advise the notifier's legal representative in writing by 10.00am on 26 May 2023 of the steps taken to comply with Directions l(a) and (b) 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 1 (a) and (b) in respect of any relevant member who, by that time, has not been notified. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders Legislation Cited: Industrial Relations Act 1996, ss 130, 136, 137 Category: Principal judgment Parties: Health Secretary in respect of Ambulance NSW (Notifier) Australian Paramedics Association (NSW) (Respondent) Representation: Mr T Poberezny-Lynch, Crown Solicitor (Notifier) Ms B Jacobs with Ms C Treloar, Australian Paramedics Association (NSW) (Respondent) File Number(s): 2023/166714 Publication restriction: Nil EX TEMPORE decision 1. The Health Secretary has notified the Commission of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996. The dispute was notified verbally to the industrial registrar earlier this morning. A written notification (Notification) by email was received by the industrial registrar later this morning. The notification set out: "1. The dispute concerns industrial action by members of the Australian Paramedics Association employed by the Health Secretary and the Ambulance Service of New South Wales. The industrial action is scheduled to commence on 25 May 2023 and will conclude on 1 June 2023. 2. The Paramedics and Control Centre Officers (State) Award 2022 which covers the relevant members will reach the end of its nominal term on 30 June 2023. The parties have been negotiating for a new award. 3. On 24 May 2023 the APA sent an email apparently to its members advising members that it was implementing 'a week-long ban on staff movements starting tomorrow'." 1. A copy of that email was attached to the Notification and marked as Annexure A. The Notification continued: "4. The APA also published on its website a guide on how to implement the ban on staff movements. 5. The Health Secretary considers that the bans will constitute a risk to the health and safety of patients because it reduces the number of paramedics available to transfer patients. The risk is particularly severe in rural areas where there may only be one paramedic rostered to work at each station." 1. The notification concerns industrial action as follows, as set out in Annexure A, which is the APA email to its members, beginning at the third paragraph: "From the first shift Thursday 25 May 2023 to start of day shift on Thursday 1 June 2023, APA members should refuse all staff movements. 'Staff movements' means, Day relief Staff movements to fill roster gaps Splitting dual crews Moving to Paramedic Response Points/PRPs Crib aways Fluid deployments/movements for area cover greater than 30 minutes away from your home station." 1. It is apparent and agreed that the action proposed is industrial action. The matter was listed for urgent conciliation today at 10.00am at the request of the notifier. That conciliation was unsuccessful and at its conclusion O'Sullivan C issued a certificate of attempted conciliation. After an adjournment for the parties to consider their positions, the matter proceeded to arbitration. 2. The Health Secretary seeks orders that: 1. The Australian Paramedics Association (NSW) ("the APA"), its offers and employees, and its members employed in the Ambulance Service of NSW must immediately cease taking industrial action described as "Ban on Staff Movements" in annexures A to the notification of an industrial dispute filed on 25 May 2023. 2. The APA, its officers, employees, agents and members must cease and refrain from authorising, organising, supporting, encouraging or inciting industrial action contrary to Order 1. 3. Theses order take effect immediately and will remain in force until 30 June 2023 or until further order of the Commission." 1. The Health Secretary submits that the industrial action is a risk to the safety of the public through three matters. 1. It reduces the number of dual crew paramedics and creates a delay in getting care to patients in the community; 2. It creates more single crew paramedics, and it is preferable to have dual crews; and 3. It will have an adverse impact on the dispatch of ambulances because of the complications that the Ambulance Service will face in not being able to readily identify where resources are available. 1. In support, a statement of Wayne McKenna was read. Assistant Commissioner McKenna is acting as Director Aeromedical and Special Operations. The substance of his evidence was that he has been an ambulance employee in both regional and metropolitan areas for 34 years. Assistant Commissioner McKenna is a registered paramedic. He deposed: "13. New South Wales Ambulance uses agreed processes to support the formation and availability of dual crew paramedic resources across the network. These processes include the movement of staff between locations to form dual paramedic crew and reduce the occurrence of single paramedics. … 16. The proposed industrial action will impact the timely availability of dual crew paramedic resources to meet the usual demand for ambulance services in New South Wales and increase the occurrence of single paramedics. 17. This industrial action limits the options managers have to form dual crew paramedic resources across the network and will delay the formation of dual crews who can respond to the community, whilst also giving rise to an increased number of single paramedics at any moment in time. 18. The less dual crew paramedic resources we have available, the less crews we have to respond to "000" calls and where required transport those patients to hospitals or between one hospital and another. The public call for an ambulance when they feel that we are the only ones that can deal with their emergencies. On days when the calls are high, the more crews available means the risk of a delayed response is lower. The industrial action proposed by the APA will reduce the number of dual paramedic crews available over the day, evening and night whilst in effect. The industrial action will, in my view, delay the ability of ambulance to provide the right care at the right place at the right time. 19. As a result of the proposed industrial action, the numbers of predicted dual paramedic crews available to respond to "000" emergency calls at any given time will diminish over the course of the week. This would risk delaying the response of a dual crew paramedic resource to a patient in need of ambulance services and create single paramedics in the area. 20. In my view, a delay in forming dual paramedic crews across a geographic area may put the public at risk of serious harm. This is because a delay in ambulance response time may mean that a seriously ill patient does not receive timely and appropriate care. For example, when a person experiences a cardiac arrest, a timely ambulance response is critical to ensuring the person receives appropriate and potentially lifesaving medical care. In short, the longer someone is without lifesaving treatment, the less chance that person has of surviving. In my view, the proposed industrial action may delay the ability of ambulance to respond to medical emergencies and jeopardises patient safety and wellbeing. 21. The industrial action will also increase the number of single paramedics and, whilst paramedics are able to perform their duties as single responders, it does increase response time and raises risk to patient safety. Ambulance's preference is for dual crew in recognition that in most circumstances a dual crew is preferable for the patient and the responding paramedics. Paramedics in course of dynamic risk assessments are encouraged not to enter scenes that they deem unsafe. On occasion they are waiting for a second officer to attend, there is a delay in starting treatment, which can lead to poor health outcomes, in some cases be critical." 1. Assistant Commissioner McKenna's evidence then addressed the issue of not seeking the Industrial Relations Commission in similar circumstances in the past. The effect of that evidence was that the response of the Ambulance Service was in the context of the circumstances existing today, and I accept that evidence. It was not challenged. 2. Assistant Commissioner McKenna also gave evidence in a little more detail about the process by which single paramedics are moved between stations to create a dual crew and the effect of this was that, unequivocally, the industrial action will result in less cars or crews being available to respond to emergencies. He did give examples in relation to what effectively ended up being single paramedics at Katoomba and Penrith which were unable to be paired and so a car had been lost, and a similar example at Moree and Mungindi which had resulted in one less car being available. 3. During cross-examination, he effectively confirmed that there were a range of options to respond to unplanned vacancies, including the use of part-time paramedics, overtime or casuals. He was taken through an example, which I thought was illustrative, which did show that there is some limitation to the evidence he gave about the loss of ability to form crews, particularly in regional areas, where it was clear that a good part of a shift may be lost in transferring crews between stations to form a dual crew. 4. The Australian Paramedics Association (APA) submitted that the power of the Commission to make such orders is discretionary and that the Commission should have regard to the public interest, in particular Object (a) of the Act. They submitted that the dispute orders would do nothing to resolve the dispute and submitted what was effectively a complaint that there was not good faith bargaining from the Ministry of Health or Ambulance New South Wales. 5. The APA called Brett Simpson who gave evidence that, perhaps perversely, set the scene as to the current circumstances of responses and service by Ambulance New South Wales. Mr Simpson gave evidence that he was a station officer which he described as a first line manager. He translated that into my more old-fashioned terminology as being the second-in-charge of the station, but I understood that to mean he had responsibility for staffing matters and managing crews. As with the example given by Assistant Commissioner McKenna, where there was one person left alone at his station who could be paired up with someone else at another station he might arrange that, or he might try to find someone to do overtime, or parttime and casual people to fill in. 6. His evidence was that the most common way to respond to unplanned vacancies was to move officers from one station to another. That is important because a ban on that is precisely the industrial action that is being undertaken. He gave evidence of multiple issues of lack of available cars for night shift, and he gave examples of his experience of patients waiting extended periods of time for an ambulance to attend, having been called. I note that these were even without the bans being in place. 7. I have concluded that it is common ground that the Ambulance Service is stretched. Almost inevitably then, the public interest will be harmed by industrial action, which will have a negative impact on the ability of the Service to respond to calls for help and to a level that warrants the intervention of the Commission. It appears to be obvious that this would have a greater impact the further the location is from central metropolitan Sydney. Indeed, the examples in evidence were those in such places, for example Katoomba and Moree. That addresses the submission of the APA as to the discretionary nature of the orders sought. It is true that the dispute orders are unlikely themselves to resolve the dispute, but that object is not the only point of a dispute order. 8. As to good faith bargaining, I have little evidence to make any judgement as to its presence or absence. I observe that the Commission is always ready and willing to assist in such bargaining. 9. I propose to make the orders as sought by the notifier with the following changes. 1. Order 1 on the first page of the draft presented pursuant to 136(1)(c) and 137(1)(a) would read "The Australian Paramedics Association NSW, its officers, employees, and its members employed in the Ambulance Service of NSW must, by 7.00pm today, 25 May 2023, cease taking industrial action described as 'Ban on Staff Movements' in annexure A to the notification of an industrial dispute filed on 25 May 2023". 2. Order 2, would be "The APA, its officers, employees, agents and members must, by 7pm today, 25 May 2023, cease and refrain from authorising, organising, supporting or encouraging industrial action contrary to Order 1." 3. Order 3 would be "These orders take effect immediately and will remain in force until 1 June 2023." 1. I will return to why I have amended that third order shortly. 2. Pursuant to 136(1)(a), the directions would be that "The APA must, by no later than 7.00pm on 25 May 2023: send an email to all members with a link to Order 1, the text or Order 1, and a direction to comply with those orders and not take industrial action referred to in Order 1." 3. The original direction (b) becomes otiose because that is what I have ordered in (a). 4. The old (c), will become a new (b), in terms "provide or cause to be provided a copy of Orders 1, 2 and 3 above to the APA's representatives employed by the notifier." 5. Proposed direction 2 would be as drafted but would say "by 10am on 26 May" and will refer only to directions 1(a) and 1(b). 6. The reason for the change to order 3 is that, as Assistant Commissioner McKenna has pointed out, what is sought is contextual at the time. I do not propose to extend it beyond the time that the industrial action was planned. 7. I have come to the view that publishing on the website and social media is effectively punitive. It does not actually communicate to the people involved. They received the earlier information by email. That is how they would expect to receive anything that is contrary to it. Decision 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 Australian Paramedics Association (NSW) ("the APA"), its officers and employees, and its members employed in the Ambulance Service of NSW must by 7:00 pm today. 25 May 2023, cease taking industrial action described as "Ban on Staff Movements" in annexure A to the notification of an industrial dispute filed on 25 May 2023. 2. The APA, its officers, employees, agents and members must by 7:00pm today, 25 May 2023, cease and refrain from authorising, organising, supporting, or encouraging industrial action contrary to Order 1. 3. These orders take effect immediately and will remain in force until 1 June 2023. 1. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, the Commission makes the following directions: 1. The APA must by no later than 7pm on 25 May 2023: 1. send an email to all members with a link to Order 1, the text of Order 1, and a direction to comply with those orders and not take the industrial action referred to in Order 1; 2. provide or cause to be provided a copy of Orders 1, 2 and 3 above to the APA's representatives employed by the notifier. 1. The APA must advise the notifier's legal representative in writing by 10.00am on 26 May 2023 of the steps taken to comply with Directions l(a) and (b) 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 1 (a) and (b) in respect of any relevant member who, by that time, has not been notified. C Muir Commissioner ********** 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: 09 June 2023