Industrial Relations Commission New South Wales Medium Neutral Citation: Health Secretary in respect of the NSW Health Service, NSW Health Pathology Division v Health Services Union [2023] NSWIRComm 1102 Hearing dates: 29 September 2023 Decision date: 29 September 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: Pursuant to sections 136 (1) (c) and 137 (1(a) of the Industrial Relations Act 1996 the orders sought: 1. The Health Services Union New South Wales (HSU), its officers, employees and members employed by the Secretary Ministry of Health are ordered to immediately cease organising, and refrain from taking industrial action by those employees engaged as Forensic Mortuary Technicians and Senior Forensic Mortuary Technicians in the Forensic and Analytical Service including the planned strike on 2 October 2023. 2. The HSU, it officers, employees, agents, and members must not induce, advise, authorise, support, encourage, direct, aid or abet members of the HSU to organise or take industrial action for a period of four months. 3. The HSU must by no later than 5 pm on 29 September 2023 send by email and mobile telephone message to all members employed in Forensic Medicine a link to Orders made and a direction to comply with those Orders and not take industrial action on 2 October 2023. 4. The HSU must advise the Notifier in writing by 9 am on 2 October of the steps taken to comply with the Orders. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – industrial disputes – Dispute orders – industrial action – public interest considerations – impact on families - dispute orders made Legislation Cited: Industrial Relations Act 1996 (NSW) ss 130, 136, 137, 146 Cases Cited: Fire & Rescue New South Wales on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261 Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042 Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association (2022) 320 IR 249 Category: Principal judgment Parties: Health Secretary (notifier) Health Services Union (respondent) Representation: Gautray, J (notifier) Gallagher A (respondent) File Number(s): 2023/306850 Publication restriction: Nil ex tempore DECISION 1. On 27 September 2023, the Health Secretary ("notifier") notified an urgent industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) in respect of threatened industrial action by Health Services Union ("HSU") members working as Forensic Mortuary Technicians ("FMT"), across NSW Forensic and Analytical Science Service ("FASS") sites in Newcastle, Lidcombe, and Wollongong. On the same day the Commission attempted to conciliate the dispute. The matter was adjourned until 29 September 2023 to facilitate the notifier obtaining further instructions in respect of an offer put by the HSU. When the matter resumed today, the notifier indicated that they were unable to accept the offer put by the HSU. 2. The dispute centres upon two issues, though these are interconnected. The HSU members are disgruntled by ongoing issues with respect to a new IT system known as FMIS. The second issue relates to staffing levels principally in the Lidcombe location. 3. With respect to the issue of resourcing, the notifier submits that the HSU seeks an additional 6 full-time equivalent ("FTE") to be appointed on a permanent basis to the Lidcombe site. The HSU argues that 1 of the 6 positions they seek to be filled as an existing FTE. The existing FTE at Lidcombe is 14.9 which includes the most recent FTE recruit. The issue of staffing levels has been exacerbated by the FMIS IT system. It has also impacted on the capacity to train FMTs and therefore the capacity of the workers to rotate into different areas of the notifier's operation. In turn, this impacts on the skill levels of the FMTs and their levels of engagement in their roles. 4. The notifier has agreed to increase staffing levels by an additional by 2.6 FTE (which includes the disputed 1 FTE). The disputed 1 FTE has already been filled. Recruitment is nearing completion with respect to the remaining 1.6 FTE. The evidence of Mr Symonds, the Director of the FASS, is that the notifier is open to ongoing discussions with the HSU about the issues the subject of the dispute. Both parties acknowledge that the nature of the work is such that it would not be possible to onboard any more people at this time. The HSU has accepted that any increase in staffing would occur over a number of years. 5. The HSU has rejected the position of the notifier and has indicted that members will commence a period of industrial action for 24 hours commencing at 3:30 pm on Monday, 2 October 2023, which happens to be a public holiday. There was some evidence from Mr Symonds that there is often an increase in the number of deceased admitted to the service on long weekends. The HSU has indicated that there will remain at each site one person to conduct admissions and discharges during the industrial action. 6. In considering this matter, it is important to understand the context within which the FMTs work. The Director of FASS, Mr Michael Glen Symonds, explained in his affidavit sworn 29 September 2023: "8. The primary purpose of FASS is to provide independent medical and scientific analysis to the NSW health and justice systems to support coronial and criminal investigations and the health of the community. The secondary purpose of FASS is to conduct environmental analysis. 9. Currently, FASS is divided into two key divisions: (a) Forensic and Environmental Sciences; and (b) Forensic Medicine. 10. The Forensic Medicine facilities operate from three sites – Sydney (Lidcombe), Newcastle and Wollongong. Employees pursuant to this dispute are classified as Senior Forensic Mortuary Technicians and Forensic Mortuary Technicians ("FMT's") as defined in the Health Employees' (State) Award 2022. 11. The FMT's work with other staff classifications including Forensic Pathologists, Radiologists, Radiographers, Forensic Social Workers, Clinical Nurse Consultant and Administrative staff in the provision of the Forensic Medicine service. 12. The FMT's report to either one of the Mortuary Managers who are located at the Lidcombe and Newcastle facilities. 13. Forensic Medicine carries out post-mortem examinations ("PM's") and related testing at the direction of the Coroner to help investigate unexplained and unexpected deaths in NSW. Forensic Medicine is one of several agencies that are involved in the coronial pathway including NSW Police and NSW Department of Communities and Justice. 14. More than 6,000 deaths a year are referred to the NSW Coroner and Forensic Medicine place the highest priority on supporting both the needs of bereaved families as well as the Coroner's role in delivering justice and improving the health and safety of communities across NSW. 15. The budgeted FTE for FMT at Forensic Medicine Sydney is14.9 FTE, which includes the most recent one (1) FTE addition." 1. Mr Symonds gave evidence with respect to the impact of the industrial action at [16] of his affidavit as follows: "16. There would be significant public interest impact if the FMT's were to engage in the proposed industrial actions, including but not limited to: (a) Direct impact on bereaved families associated with the increased timeframes for PM's to be undertaken and for the return of their loved ones to organise funerals. (b) Deceased will not be able to be admitted or released from the Forensic Medicine facilities during this period. This includes all unexplained and unexpected deaths requiring referral to a Forensic Medicine facility. (c) Interruption to the transport of deceased from crime scenes and scenes of death. (d) Bodies will not be able to be viewed by families throughout the period of the action. (e) The delayed processing of deceased will impact families ability to view the deceased in a reasonable state as decomposition may occur over time. (f) Significant interruption of the Coronial process creating a backlog of cases and deceased to be examined (g) Significant flow on effects to partner Agencies including the Department of Communities and Justice, NSW Police and other teams within Forensic Medicine including the Forensic Social Workers who work closely with families regarding the post-mortem and coronial process." 1. With respect to [16](b), throughout the course of this dispute, it was confirmed by the HSU that they at least one FMT would be available for the purposes of admissions and discharges. 2. With respect to [16](c), the evidence demonstrated that rather than families not being able to see the bodies of their loved ones, the impact would be that the bodies could not be seen during the course of the industrial action, commencing 3.30 on Monday. That is to say that viewings may be delayed. 3. With respect to [16](f), Ms Swatt, Senior FMT indicated in her evidence for the HSU also gave evidence that there would be a delay caused as a consequence of the industrial action which is proposed. 4. I note in addition to this that Mr Symonds, in evidence-in-chief, gave viva voce evidence that indicated that there would also be delays in police investigations and, as I have already indicated, he also gave additional evidence that he was committed to working through the issues with staff. 5. Ms Stephanie Swatt, Senior Mortuary Technician gave evidence in chief viva voce. She works in both supervisory and operational roles. Her evidence was as follows and in summary: 1. Ms Swatt's evidence that the impact of the stoppage would be comparable to today's circumstances where there are about five people rostered but only one is present. One person is on planned leave, and two are on non-planned leave. She is absent as she was required to give evidence in the Commission today. She gave evidence that this is not uncommon and that she and other employee have no sick leave left and have had to use annual leave when they are unwell. 2. There would be no impact on admissions and discharges given the staff will remain to conduct these during the strike period. She did however concede that the strike would cause a backlog and delay to the processing of the deceased entering the service. 3. She has excessive leave and other Technicians do too. Under cross-examination she gave evidence that she has 3 weeks of leave, but this is classified as excessive leave in the notifier's systems. She gave evidence that the service has recognised that there is excessive leave which is why an extra 1 FTE was put on. Ms Swatt gave evidence that this was a separate issue from the additional 5 FTE sought by the HSU. 4. The training of new staff is one on one and takes six months to complete. 5. Ms Swatt gave evidence with respect of the FMIS system implemented about 12 months ago. She recalled being a part of some consultation meetings, though was not sure if the HSU had been involved. This was to the effect that although she had personally been engaged in the weekly huddle relating to the project, the people who could make meaningful decisions were not present. Her evidence was to the effect that the new FMIS system has a number of issues that are causing frustrations and an increase in administrative workloads. She said that it slowed down efficiency. 6. Ms Swatt also spoke about some supports in place to assist with issues — a direct email address has been set up and an issues log has been created. She gave evidence that she is personally involved with feedback on the system and spends up to 1.5 hours a week trying to amend the issues. 7. Ms Swatt gave evidence that the situation in Lidcombe required staff to come from Newcastle to assist the FMTs. It was unclear how often this occurred and the circumstances that prompted this. 1. I am sympathetic to the plight of the Technicians. Their frustrations are real. I would have liked to have assisted the parties more and over a longer period with respect to the underlying dispute. There is sufficient evidence before the Commission to find that there are issues that need to be addressed, particularly at the Lidcombe site. I agree with the HSU that there is a public interest in the service being appropriately resourced into the future. There is evidence that some progress towards resolving these issues has been made. The HSU's claim for more staff does not crystalise until it is agreed by the parties that there is some capacity to train more staff. Although the evidence on when that would be is somewhat unclear, I understand from the evidence it would not be for at least another six months. 2. It is not in dispute that the impact of a stoppage will be that the important work that is undertaken by the notifier will be delayed. The extent of the delay would be 24 hours. At short notice, that would have an impact upon grieving families. It is difficult to know how significant that impact would be and I anticipate this impact would be highly variable. There are some families that may need to wait a day to see their loved ones due to visitations being restricted. There was evidence that the returned bodies may be more decomposed as a result of the delay. I reject the HSU's submission that this impact would be the same as a day like today where several staff are absent for various reasons. The strike action would be an additional day of disruption which may otherwise be fully productive. 3. The Commission's power to grant the dispute orders sought is discretionary. There is no presumption that in the face of threatened industrial action an order under s 130 of the Act will be made: Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042 at [23], cited in Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association (2022) 320 IR 249 at [36]. Section 146 of the Act requires the Commission to take into account the public interest in the exercise of its functions. 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) 235 IR 261at [41]. 4. During final submissions, I asked Mr Gallagher to address the question of what more the notifier could practically do at this point to relieve the situation of the FMTs. This was in the context of 2.6 EFT positions being filed and the agreed need for one-on-one training for six months. As I understand his response the answer is nothing. What the HSU is seeking is an immediate undertaking from the notifier that it will do more in the future. 5. Given the matter I have outlined above, and in particular the notifier's undertaking to continue to meet and evaluate the need to increase staffing, and the agreed fact that any increase in staffing will need to occur over a period of years, the concerns of the HSU will not be crystalised until the notifier determines it will not increase the staffing levels further. While the notifier has not acceded to the HSU's request to guarantee staffing numbers, they also have not dismissed making further increases in the future. The Commission will remain available to assist the parties in the process of further discussion and negotiation in the future. 6. Having regard to this and the matters to which I have already referred, I am persuaded that this is a case calling for the Commission's intervention. 7. The parties had an opportunity to confer with respect to the form of the orders. The parties agreed to the form of the orders, except for their duration. 8. I will make the orders sought by the notifier. However, I would reduce the duration from the six months sought by the notifier to 4 months. By then, I expect that the parties will have continued their engagement with respect to the matters that are the subject of the dispute. Hopefully, the parties will also be in a position to know if the additional staff have made any meaningful difference to the problems the FMT are encountering. Further, the parties will also have had an opportunity within that period of time to know whether or not the notifier will accede to a request for further staff to be placed into the service. 9. In the meantime, the Commission remains available to assist the parties in respect of the issues. Orders 1. Pursuant to ss 136 (1) (c) and 137 (1)(a) of the Industrial Relations Act 1996, I make the following orders: 1. The Health Services Union New South Wales (HSU), its officers, employees and members employed by the Secretary Ministry of Health are ordered to immediately cease organising, and refrain from taking industrial action by those employees engaged as Forensic Mortuary Technicians and Senior Forensic Mortuary Technicians in the Forensic and Analytical Service including the planned strike on 2 October 2023. 2. The HSU, it officers, employees, agents and members must not induce, advise, authorise, support, encourage, direct, aid or abet members of the HSU to organise or take industrial action for a period of four months. 3. The HSU must by no later than 5 pm. on 29 September 2023 send by email and mobile telephone message to all members employed in Forensic Medicine a link to Orders made and a direction to comply with those Orders and not take industrial action on 2 October 2023. 4. The HSU must advise the Notifier in writing by 9 am on 2 October of the steps taken to comply with the Orders. Janine Webster 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: 12 October 2023