Industrial Relations Commission New South Wales Medium Neutral Citation: Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2024] NSWIRComm 1016 Hearing dates: 29 February 2024 Date of orders: 29 February 2024 Decision date: 29 February 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: 1. Under section 137(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission orders the Health Services Union NSW (HSU), its officers, employees, agents and its members employed in NSW Ambulance (Members) must immediately cease organising and refrain from taking industrial action in the form of a ban on movement of an Employee (as that term is defined in clause 4 of the NSW Ambulance Paramedics (State) Award 2023) to an ambulance station other than the Employee's usual rostered station to work a shift or part of a shift. 2. Under section 137(1)(a) of the Industrial Relations Act 1996 (NSW), the HSU, its officers, employees, agents and its members must not induce, advise, authorise, support, encourage, direct, aid or abet Members to organise or take industrial action contrary to Order 1. 3. Under section 136(1)(a) of the Industrial Relations Act 1996 (NSW) the HSU must: (a) publish by way of electronic newsletter disseminated by email Order 1 and a direction to members that they comply with those orders and not take the industrial action referred to in Order 1 by 9.30am on 1 March 2024; (b) provide, or cause to be provided, a copy of these orders to the HSU's officers employed by the Notifier by 9.30am on 1 March 2024; and (c) advise the Notifier's legal representative in writing by 7pm on 1 March 2024, of the steps taken to comply with directions 3(a) - (b) above, including the form of communications, and if written, a copy of the communications. 4. The above orders and direction take effect immediately and remain in force until 5.30pm on 29 May 2024 or until further order of this Commission. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Industrial action – Public interest – Dispute orders – Dispute orders made Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Bluescope Steel (AIS) Ltd v Australian Workers' Union (NSW) (2005) 138 IR 324 Fire & Rescue NSW on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261 Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2023] NSWIRComm 1069 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 The New South Wales Nurses and Midwives Association (2022) NSWSC 1178 see New South Wales Department of Education v New South Wales Teachers Federation (2010) 194 IR 340 Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2023] NSWIRComm 1044 Texts Cited: NIL Category: Principal judgment Parties: Health Secretary in respect of NSW Ambulance (Notifier) Health Services Union NSW (Respondent) Representation: M Sullivan (Notifier) C Barker (Respondent) File Number(s): 2024/76580 Publication restriction: NIL EX TEMPORE decision 1. On 28 February 2024, a notification of industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (the 'Act') was filed in the Registry by the Health Secretary on behalf of New South Wales Ambulance (the 'Dispute'). 2. The notifier initially sought the Commission's assistance in relation to industrial action which had commenced on or around the conclusion of a stop work meeting on that same day, being 28 February 2024 at 8.00am. 3. The Dispute was the subject of an urgent compulsory conference which took place at approximately midday of that same day, 28 February 2024. During the course of that compulsory conference, it was determined, in a relatively short period of time, that an attempt at going into extensive conciliation may not resolve the dispute in the short term and, on the basis of that, I formed the view that it was appropriate to issue a certificate of attempted conciliation, which was issued on that day. 4. At the conclusion of the compulsory conference, a number of orders were made for the filing and serving of the orders to be sought by the notifier along with the evidence of both parties. The Dispute was then listed for hearing at 10am this morning. 5. The orders and directions filed and sought by the notifier at the hearing was in the following terms: 1. Under section 137(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission orders the Health Services Union NSW (HSU), its officers, employees, agents and its members employed in NSW Ambulance (Members) must immediately cease organising and refrain from taking industrial action in the form of a ban on movement of an Employee (as that term is defined in clause 4 of the NSW Ambulance Paramedics (State) Award 2023) to an ambulance station other than the Employee's usual rostered station to work a shift or part of a shift. 2. Under section 137(1)(a) of the Industrial Relations Act 1996 (NSW), the HSU, its officers, employees, agents and its members must not induce, advise, authorise, support, encourage, direct, aid or abet Members to organise or take industrial action contrary to Order 1. 3. Under section 136(1)(a) of the Industrial Relations Act 1996 (NSW), by 5pm on 28 February 2024, the HSU is directed to: (a) publish in a prominent position on its website, the Ambulance Division of HSU's facebook page and other social media pages, Order 1 and a direction to members that they 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 these orders to the HSU's officers employed by the Notifier; and (c) The HSU must advise the Notifier's legal representative in writing by 7pm on 28 February 2024, of the steps taken to comply with directions 3(a) - (b) above, including the form of communications, and if written, a copy of the communications. 4. The above orders and direction take effect immediately and remain in force until 5.30pm on 29 August 2024 or until further order of this Commission. 1. At the hearing, the notifier relied on a witness statement of Mr Wayne McKenna and that the respondent relied upon the witness statement of Ms Tess Oxley. Both witnesses were cross examined. 2. Underlying the dispute is a concern with respect to what is referred to as the "planned ambulance rosters" or resources, referred to as "PAR" which is explained in the following paragraph of Mr McKenna's witness statement: 23 NSWA uses a concept known as PAR (planned ambulance rosters or resources) in managing resources. Rosters are designed to produce a number of crews of paramedics on each shift. NSWA gave effect to a recommendation made by the Commission on 10 May 2021 to raise what were then referred to as "zone operating levels" to equate with the crew numbers produced, being PAR, at that time. Those roster outputs continue to be recognised as PAR, unless otherwise specified. 1. The respondent's membership, referred to as ADHSU members, concerns with PAR were explained by Ms Oxley in her witness statement as follows: 17. ADHSU members view the PAR model to be contrary to the public interest on the following fronts: a) Members of the public are not receiving the roster outputs that are being funded. b) Where absences aren't required to be backfilled, there will inevitably be less crews on the road due to absences. Less crews on the road mean that there are less paramedics to respond to jobs. This will naturally lead to a lower level of coverage for the community, and potentially delays or adverse patient outcomes. c) Less crews on the road naturally means that existing crews will have to respond to more jobs. This results in a lower likelihood of those crews being able to take their crib break entitlements. This also results in a higher likelihood of those crews being required to perform end of shift overtime. In my experience, this greatly contributes to fatigue and negatively affects paramedic welfare. i. The frequency of missed/ interrupted cribs and extension of shift overtime are high in my experience. ii. For example, in the roster block before I went on leave at the end of December 2023, and the six shifts I have worked since coming back from leave, I have received none of my cribs. iii. In a normal DAY/DAY/NIGHT/NIGHT roster (4 shifts), I would finish on time approximately only once a week. I'm often required to do mandatory end of shift overtime. 18. The HSU attempted to resolve this matter in 2021 through the Industrial Relations Commission. 19. In that matter, the Commission did make a recommendation that NSW Ambulance maintain core roster outputs on a station by station basis, that is that zone operating levels be raised to the level of planned operating rosters so that there is no zone operating level/ planned ambulance roster (PAR) gap for any station, including through the use of overtime. The full recommendation is annexed to this statement at TO – 1. 20. However, last year in 2023, with the implementation of an additional 2500 paramedics through a project known as 'SWIFT', NSW Ambulance has moved away from the recommended practice of maintaining rosters, and has not added all SWIFT paramedic enhancements to PAR. 1. The ban that has been put in place by the members of the HSU employed as employees, as defined under the NSW Ambulance Paramedics (State) Award, is that they have a ban on the movement from the station they are rpostered on at to another station, to work a shift or part of a shift. 2. As part of the ban as well, the HSU has indicated - not necessarily as part of the ban but as a precondition to the ban - that staff, members of the HSU, will move to another station in circumstances where the notifier has been able to fill that gap at the other station through a particular means, be it by use of part time casuals, or in the alternative, if there has been proof that the role has been open to persons to pick up through the manner of overtime for a period of one hour. 3. In those circumstances, the evidence of Mr McKenna and questioning by myself was that that adds another layer to the filling of the gap at any particular station which has the potential to delay the delivery of services by NSW Ambulance to patients. In particular, Mr McKenna noted in his evidence that this same form of ban had been in place in the Mid North Coast for some time and he gave the following four specific examples of where there had been a delay occasioned, which he alleges are a direct result of the imposition of the bans: • Case 40152 Nymboida 16 February 2024 – 1C i. On 16 February 2024, NSW Control Centre received notification at 06:45 that a paramedic at Woolgoolga station was taking carers leave. That paramedic was otherwise to be teamed up to form a dual crew to avoid being single. This is approximately 15 minutes before the commencement of the shift. At 06:58, a dispatcher from Northern Control Centre requested a crew from Coffs Station to move to Woolgoolga Station for the shift. At the time, Coffs Harbour had one crew above PAR for the shift. The approximate travel time between Coffs Harbour and Woolgoolga is 24 minutes. ii. At 07:00 hours crew 4903 called the dispatcher on air and stated, "Just regarding that requested move, due to the current local HSU action we're not moving unless advertised for more than an hour, thanks". The dispatcher then requested that they go to Woolgoolga for area cover. This request was also declined. iii. At 0726, NSWA received a call for ambulance service at Nymboida – case 40152 involving a 72-year-old patient with breathing problems. The case was coded 1C. Crew 408 from Coffs Harbour were assigned at 0733 and took 80 minutes to arrive on scene at 0853. If the staff movement from Coffs Harbour to Woolgoolga had occurred as requested at 06:58, the response time would have been reduced by the approximate travel time between Coffs Harbour and Woolgoolga stations. • Case 40618 - Corindi Beach 27 August 2023 – 1A i. On 27 August 2023 NSWA requested a paramedic from Coffs Harbour station move to Woolgoolga station to form a double crew. At the time, the zone had one crew above PAR for the shift. This request was declined by the paramedic, citing the HSU's staff movement ban. ii. At 15:49, NSW Ambulance received a call for ambulance services at Corindi Beach involving a 65 year old patient who was unconscious and foaming from the mouth. The case was coded 1A. The single paramedic at Woolgoolga, being approximately 12 minutes normal drive away, was assigned the case. He advised that he was not comfortable to standby as a single responder. A crew from Coffs Harbour was assigned to back up. The travel time from Coffs Harbour to Corindi is 32 minutes normal drive. iii. Had the staff movement occurred as requested at the commencement of the shift, the impact to the patient at Corindi Beach would have been mitigated. • Case 40664 – Arrawarra 27 August 2023 – 2I i. On 27 August 2023 NSWA requested a paramedic from Coffs Harbour station to move to Woolgoogla station to form a double crew. At the time, the zone had one crew above PAR for the shift. This request was declined by the paramedic, citing the HSU's staff movement ban. ii. At 16:39, NSW Ambulance received a call for ambulance services at Arrawarra involving a 78 year old patient who was unconscious or fainting. The case was coded as a 2i. The single paramedic at Woolgoogla was assigned the case. He advised that he was not comfortable to standby as a single responder. A crew from Coffs Harbour was assigned to back up. iii. Had the staff movement occurred as requested at the commencement of the shift, the impact to the patient at Arrawarra would have been mitigated. • Case 40464 – Nambucca Heads 15 February 2024 – 1C i. On 15 February 2024 NSWA requested a paramedic from Coffs Harbour station to move to Nambucca Heads station to form a double crew at Nambucca Heads. At the time, the zone had two crews above PAR for the shift. This request was declined by the paramedic, citing the HSU's staff movement ban. ii. At 11:09 NSWA received a call for ambulance service at Nambucca Heads involving an 83 year old patient with breathing problems. The case was coded as a 1C. The single paramedic at Nambucca Heads and a backup car were assigned. The single paramedic staged at Nambucca Heads Ambulance Station awaiting the arrival of another crew before proceeding resulting in a delay in ambulances attending the patient. Had the staff movement occurred as requested at the commencement of shift, the impact to the patient at Nambucca Heads would have been mitigated. 1. The evidence of Ms Oxley was to the effect that there are alternative forms of filling rosters, rather than having a movement of the type as prohibited by the ban, for want of a better term and that is by the use of casuals, part timers and by the use of overtime. That was another reason why it was said that that was the better course of action. 2. Both parties agreed that the approach to applications of this type are as set out in my earlier decision of Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2023] NSWIRComm 1069 (23 June 2023) in the following paragraphs, which I will apply to this matter: [13] In terms of the principles relevant to the Commission's consideration as to whether the orders and/or recommendations should be made, I note that the parties do not disagree as to what they should be. Those are conveniently set out by the Notifier in their submissions: [7] The principles applicable to the making of dispute orders under section 137 of the Act were comprehensively considered by his Honour Justice Walton in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives Association (2022) NSWSC 1178, at paragraphs 35 to 59. [8] At paragraph 37, His Honour noted: The use of the word "may" in sections 136(1) and 137(1) indicate the discretionary nature of the power to make dispute 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). [9] At paragraph 41, his Honour cited with approval the observations of Boland J in Bluescope Steel (AIS) Ltd 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 a dispute order 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 their organisation. [10] At paragraph 46, his Honour stated: Thirdly, the effect on the economy of New South Wales is a mandatory relevant consideration under s146(2) of the Act. In Fire & Rescue NSW on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261 it was identified that there is a need to protect the public interest from the damaging effects of industrial action: at 272 [41] (Boland J, President, Walton, Vice President, and Staff J) In this respect, any negative effect on the economy, disruption to the provision of essential services, health and safety risks, and the broader implications for the public should be considered. [11] At paragraph 50, his Honour stated: Fourthly when considering the consequences of industrial action, the Commission is not limited to only considering economic impacts. The "public interest" is very broad. For example, the public interest can include the effect on primary and secondary school children and their education: see New South Wales Department of Education v New South Wales Teachers Federation (2010) 194 IR 340; [2010] NSWIRComm 55 at 349 [41] (Staff J). [14] The Respondent points to the decision of Commissioner Sloan in Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042 at [23], in which he states that there is no presumption that an order under s 137(1)(a) will be made and that: 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. [15] Most importantly, what I take from the various decisions is the observations or the findings of Boland J in BlueScope Steel and Australian Workers' Union [2005] 130 IR 324 which is adopted by Walton J in the Health Secretary and the New South Wales Nurses and Midwives' Association case which is that dispute orders are rarely made by members of the Commission. [16] I also note that in the exercise I have got to take into account the objects of the Act and also the public interest in those matters per ss 3 and 146(2): 3 Objects The objects of this Act are as follows— (a) to provide a framework for the conduct of industrial relations that is fair and just, (b) to promote efficiency and productivity in the economy of the State, (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level, (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies, (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, (f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value, (g) 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, (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations. 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 this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy. 1. The submission of the NSW Ambulance is that, bearing in mind the relevant principles, it is in the public interest that the orders are made. It was submitted, that the effect of not making the orders is the potential, as evidenced by those four examples set out earlier in the decision, that the bans create a risk to the health, safety and wellbeing of patients. 2. It was also submitted by Mr Sullivan on behalf of NSW Ambulance that the bans also have the potential to place at risk the health, safety and wellbeing of other paramedics, and there was reference drawn to the following paragraph of Mr McKenna's evidence regarding dispatchers: 51 The limiting of movements not only increases response times but also adds factors to the decision to be made by Control Centre staff. While Control Centre dispatchers are highly trained, their decision making is grounded in processes and procedures that dispatch the nearest paramedic resource to an incident in time critical situations. The industrial action adds an additional cognitive load for dispatchers and introduces an element of risk and uncertainty that outcomes which would normally flow from established procedure will be interrupted, resulting in delays in response time and allocation of resources. 1. On the issue of potential delay, I note Ms Oxley, on behalf of or as a witness for the respondent, conceded that the imposition of the extra layer for the filling of the gap might provide a delay to the delivery of service to a patient. 2. The respondent submitted by reference to the decision of this Commission in Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2023] NSWIRComm 1044 which was that the reduction in the number of rostered staff caused by staff movement rather than filling with other staff, including by use of overtime, in and by itself, also causes a risk to patient and paramedic health and safety. 3. The difficulty I have with that submission is that it is not supported by evidence, except to the extent that it is referred to by Mr McKenna in his statement that was before the Commission on the earlier date. Yet, that is to be contrasted with the hard and fast examples in evidence before the Commission given by Mr McKenna of what occurred at Woolgoolga and also Nambucca Heads, being the four different examples that were given. 4. In those circumstances, I am minded and have decided to exercise my discretion to issue orders. 5. The orders and directions I intend to make are, in the main, consistent with the draft orders and directions sought by the notifier. 6. In relation to orders in paragraphs 1 and 2, there is no change to either one. 7. The direction in paragraph 3(a), will be amended to state that under s 136(1)(a) of the Industrial Relations Act 1996 (NSW), by 9.30am on 1 March 2024, the HSU is directed to, by electronic newsletter, disseminated by email, order 1 and a direction to members that they comply with those orders and not take the industrial action referred to in order 1. 8. There is no change to the direction in paragraph 3(b) and the time in paragraph in paragraph 3(c) will be changed from 28 February 2024 to 1 March 2024. 9. In terms of the date for the orders, I am not persuaded that six months is appropriate in the circumstances. I note the finding of Walton J referred to earlier in this decision that dispute orders are rarely issued. There are ways and means in which the parties can try and alleviate the differences between themselves. 10. I also note the submissions of the respondent, although not conceding that orders should be made, but if there were to be orders made, they should be no longer than three months. 11. In those circumstances, I intend to make the orders to be made and remain in force until 5.30pm on 29 May 2024. 12. The Commission makes the following orders and directions: 1. Under section 137(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission orders the Health Services Union NSW (HSU), its officers, employees, agents and its members employed in NSW Ambulance (Members) must immediately cease organising and refrain from taking industrial action in the form of a ban on movement of an Employee (as that term is defined in clause 4 of the NSW Ambulance Paramedics (State) Award 2023) to an ambulance station other than the Employee's usual rostered station to work a shift or part of a shift. 2. Under section 137(1)(a) of the Industrial Relations Act 1996 (NSW), the HSU, its officers, employees, agents and its members must not induce, advise, authorise, support, encourage, direct, aid or abet Members to organise or take industrial action contrary to Order 1. 3. Under section 136(1)(a) of the Industrial Relations Act 1996 (NSW) the HSU must: 1. publish by way of electronic newsletter disseminated by email Order 1 and a direction to members that they comply with those orders and not take the industrial action referred to in Order 1 by 9.30am on 1 March 2024: 2. provide, or cause to be provided, a copy of these orders to the HSU's officers employed by the Notifier by 9.30am on 1 March 2024; and 3. advise the Notifier's legal representative in writing by 7pm on 1 March 2024, of the steps taken to comply with directions 3(a) - (b) above, including the form of communications, and if written, a copy of the communications. 1. The above orders and direction take effect immediately and remain in force until 5.30pm on 29 May 2024 or until further order of this Commission. ********** 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: 13 March 2024