Industrial Relations Commission New South Wales Medium Neutral Citation: Health Secretary in respect of NSW Ambulance v Health Services Union (NSW) [2024] NSWIRComm 1032 Hearing dates: 20 May 2024 Date of orders: 20 May 2024 Decision date: 21 May 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: A. Pursuant to ss 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders: 1. Health Services Union NSW (the HSU), its officers and employees, and its members employed in the Ambulance Service of NSW (NSWA) must immediately cease organising and refrain from taking industrial action by those employees engaged as paramedics, including the industrial action which commenced on 20 May 2024, including: a. The refusal, by HSU members at Rutherford Ambulance Station, to undertake any jobs assigned to them. b. The refusal of HSU members at Rutherford Ambulance Station to work in accordance with the roster posted by NSWA. c. The Statewide banning of inter-facility (R3) transfers. 2. The HSU, its officers, employees, agents and members must cease and refrain from authorising, supporting, encouraging, directing, aiding, abetting or inciting members of the HSU to organise or take industrial action contrary to Order A1. 3.These orders take effect immediately and shall remain in force until 20 August 2024 or until further order of the Commission. B. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, the Commission makes the following directions: 1. The HSU shall by no later than 5.45 am on 21 May 2024: a. publish in a prominent position on its website, the HSU's Facebook and other social media pages, Order A and a direction to members that they comply with those orders and not take the industrial action referred to in Order A1; b. send by email to all members in the Ambulance Division of the HSU a link to Order A1and a direction to comply with those orders and not take the industrial action referred to in Order A1; c. provide or cause to be provided a copy of Orders A1, A2 and A3 above to the HSU's representatives employed by the notifier. 2. The HSU must advise the notifier's legal representative in writing by 9 am on 21 May 2024 of the steps taken to comply with Directions 1(a) to (c) 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) to (c) in respect of any relevant member who, by that time, has not been notified. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – industrial dispute – industrial action - dispute orders – paramedics – ban on attendance at all jobs – ban on attending Ambulance NSW rosters – ban on patient transfers – HSU concern regarding maintenance of staffing during absences - public interest – risk to public safety – objects of the Act – orders and directions made Legislation Cited: Industrial Relations Act 1996 (NSW) s 3, 130, s 146 Cases Cited: BlueScope Steel (AIS) Pty Ltd v The Australian Workers' Union, New South Wales [2006] NSWIRComm 149 Director General, NSW Department of Health v New South Wales Nurses Association (No 2) [2010] NSWIRComm 163 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 in respect of Ambulance NSW (notifier) Health Services Union NSW (NSW) (respondent) Representation: S Huang, Crown Solicitors Office (notifier) No appearance for the respondent File Number(s): 2024/186926 Publication restriction: Nil DECISION 1. At approximately 4 pm on Monday, 20 May 2024, the Health Secretary notified the Commission of an urgent industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Act") ("Notification"). The issue was that members of the HSU were engaging in the following industrial action: 1. Paramedics at Rutherford Ambulance Station are refusing to take all jobs, including Priority 1A, 1B and 1C jobs. 2. Paramedics across the State are refusing all patient transfers, which are described as R3 transfers. 3. Paramedics at Rutherford Station are refusing to work their roster ("Ambulance NSW roster"), and instead are turning up for shifts in accordance with a roster proposed by the HSU ("HSU roster"). 1. It is understood that the refusal to work the Ambulance NSW roster arose as a consequence of its failure to meet the demand of the HSU that the "intensive care module" be "maintained", meaning positions are backfilled when there are absences. The intensive care module has recently been introduced at the Rutherford Ambulance Station through a process of delivering staff enhancements. 2. The refusal of paramedics to attend all jobs at Rutherford Ambulance Station, and all R3 transfers across the State, were understood to be in response to Ambulance NSW withholding pay from paramedics who attended work in accordance with the HSU roster, rather than the Ambulance NSW roster. 3. The Notification was in the following terms: "1. This dispute relates to industrial action organised or endorsed by the Health Services Union (HSU) at Rutherford Ambulance Station and Hunter & New England Sector. 2. NSW Ambulance (NSWA) has introduced staff enhancements at Rutherford Ambulance Station. The enhancement introduced roster changes were consulted with staff and the relevant unions, including the Health Services Union NSW (the HSU), in accordance with the provisions of the NSW Ambulance Paramedics (State) Award (the Award). The new roster commenced on 11 May 2024. 3. On Thursday 9 May 2024 Chelsea Barker of the HSU advised NSWA that HSU members at Rutherford Station had unanimously voted to implement bans effective 11 May 2024 and that all HSU members at Rutherford Station will be working the existing Day, Day, Afternoon, Night roster until all modules at Rutherford are appropriately maintained and backfilled… 4. On Friday 10 May 2024 NSWA met with the HSU to regarding the HSU's proposed actions, including concerns about the potential risks of single paramedics resulting from HSU endorsed actions. 5. At 4:40pm on Friday 10 May 2024, Madeleine Stedman of the HSU advised NSWA that their members would perform the Intensive Care module as per the roster posted and approved by the Sector, but that the primary care roster be modified to a Day, Day Afternoon Afternoon roster which was different to the NSWA posted rosters… 6. In response NSWA advised of their serious concerns with the proposed ban and the HSU roster, particularly considering the late notice from the HSU – that being 4:40pm the day before the posted roster was to take effect. NSWA also advised that the HSU roster was not endorsed that staff were expected to work to the NSWA posted roster… 7. HSU members performed the new roster posted and approved by the Sector for the week commencing 11 May 2024. 8. On Wednesday 15 May 2024 Ms Stedman advised NSWA that the HSU members would work to a HSU administered Day, Day, Afternoon, Afternoon roster, with the Intensive Care module covering nights, starting from the first day shift of Monday 20 May 2024… 9. On Saturday 18 May 2024, NSWA emailed Rutherford Ambulance Station paramedics reiterating that staff are to work in accordance with the NSWA posted roster and are not authorised to work outside of the posted roster, and if they did so it would be considered industrial action which would not be in accordance with s 143 of the Industrial Relations Act 1996.. 10. On 20 May 2024 at 10:45 paramedics at Rutherford Station arrived at station to commence an afternoon shift as proposed by the HSU roster. NSWA advised these paramedic to return to work their rostered night shift. 11. At 10:55 20 May 2024 the HSU advised NSWA that because of the above, the HSU will impose a ban commencing immediately that paramedics in the Hunter New England Sector will not be completing R3 transfers… 12. R3 transfers are internal inter-facility transfers for which there were 49,740 incidents for the calendar year of 2023. R3 Transfers are managed as set out in the NSW Ambulance Emergency Response Standards PD2024-008. 13. Around 11:30 NSWA became aware that paramedics on day shift at Rutherford station refused all jobs assigned, including urgent 1A, 1B and 1C jobs. 14. NSWA held an urgent meeting with the HSU at 1200 hours 20 May 2024 to further attempt to resolve the matter. The HSU confirmed that: .. • Staff at Rutherford station will not work to the roster that was posted on 3 May 2024, which commenced and took effect between 11-19 May. The relevant shift of concern is the second night shift which HSU members would not work to. They instead would work to an HSU endorsed roster, which includes an additional afternoon shift. This action is as per the HSU's advice received on 15 May. • Staff at Rutherford would refuse all jobs until NSWA agreed to accept the HSU endorsed rosters (and pay staff who work to the HSU roster). This action was initiated by staff which was as confirmed by HSU in the meeting on 20 May. • Staff across Hunter New England sector would refuse all R3 jobs, as per HSU's email on 20 May. 15. NSW Ambulance requested that the bans be lifted due to staff and patient safety impact, however the HSU indicated the bans will not be lifted unless NSWA pay staff who have presented at Rutherford Station to work an afternoon shift (in accordance with the HSU roster) for that afternoon shift. Impact of bans 16. The proposed bans increase the risk of adverse patient outcomes due to insufficient night duty paramedic cover to meet the needs of the community resulting in delays in time critical responses. In particular, the refusal of paramedics at Rutherford Station to accept any jobs (including Priority 1A, 1B and 1C jobs), leaves the area covered by Rutherford Station without any direct ambulance coverage. Such risks have previously materialised when a delayed response occurred due to the closest available resource not being able to be identified. 17. Additionally, the Health Secretary considers that the HSU has not complied with the dispute resolution procedure prescribed under cl 47 of the Award. Relief sought 18. NSWA seeks that the dispute be conciliated with the assistance of the Commission." 1. The Notification included 7 appendixes, consisting of correspondence between the parties in respect of the industrial action. 2. The matter was listed for compulsory conference at 4:30 pm yesterday. As the matter involved industrial action being taken by paramedics in the Rutherford Region and to facilitate an urgent conference, the matter was listed via telephone. The attempts to conciliate the matter were unsuccessful and a certificate of attempted conciliation was issued. 3. The Health Secretary sought dispute orders from the Commission on an urgent basis and pressed for the matter to be listed for arbitration last night. The HSU opposed this. The HSU raised concerns with respect to the futility of the orders being made, because these could not be served on members in the evening in any event. They also submitted that the HSU has serious grievances relating to issues of public safety and health and they would be precluded from effectively putting their position if the matter was to proceed on such an urgent basis. The HSU gave no undertaking that it would cease the industrial action while conciliation was undertaken in respect of the underlying issues that led to the industrial action occurring. Ideally, the Commission would have provided the parties with more time to prepare their cases before determining the matter in arbitration. However, balancing the desirability of this against the risk to public safety alleged by the Health Secretary, I decided that it was appropriate to provide the parties with a short time within which to prepare their case before listing the matter for hearing. 4. The Health Secretary was given until 9 pm to file and serve the material upon which it intended to rely. The HSU stated that it did not wish to be heard and did not seek a timetable with provision for them to prepare, file and serve evidence and submissions. The matter was listed for hearing at 9:30 pm via videolink and the HSU were granted liberty to apply should their position change and they wished to participate in the arbitration. The HSU did not file any evidence or submissions and did not appear at the hearing. 5. The Health Secretary sought the following orders and directions: A. Pursuant to ss 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders: 1. Health Services Union NSW (the HSU), its officers and employees, and its members employed in the Ambulance Service of NSW (NSWA) must immediately cease organising and refrain from taking industrial action by those employees engaged as paramedics, including the industrial action which commenced on 20 May 2024, including: a. The refusal, by HSU members at Rutherford Ambulance Station, to undertake any jobs assigned to them. b. The refusal of HSU members at Rutherford Ambulance Station to work in accordance with the roster posted by NSWA. c. The Statewide banning of inter-facility (R3) transfers. 2. The HSU, its officers, employees, agents and members must cease and refrain from authorising, supporting, encouraging, directing, aiding, abetting or inciting members of the HSU to organise or take industrial action contrary to Order A1. 3.These orders take effect immediately and shall remain in force until 20 August 2024 or until further order of the Commission. B. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, the Commission makes the following directions: 1. The HSU shall by no later than 5.45 am on 21 May 2024: a. publish in a prominent position on its website, the HSU's Facebook and other social media pages, Order A and a direction to members that they comply with those orders and not take the industrial action referred to in Order A1; b. send by email to all members in the Ambulance Division of the HSU a link to Order A1and a direction to comply with those orders and not take the industrial action referred to in Order A1; c. provide or cause to be provided a copy of Orders A1, A2 and A3 above to the HSU's representatives employed by the notifier. 2. The HSU must advise the notifier's legal representative in writing by 9 am on 21 May 2024 of the steps taken to comply with Directions 1(a) to (c) 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) to (c) in respect of any relevant member who, by that time, has not been notified." 1. The Health Secretary relied on the statement of Luke Wiseman, Associate Director Clinical Operations Hunter New England Sector, NSW Ambulance: Ex N1. Mr Wiseman attested to the truth of the statement under oath. The Health Secretary summarised the evidence of Mr Wiseman with respect to the impact of the proposed industrial action as follows (Health Secretary's Outline of Submissions at [6]): "a. In relation to the refusal of paramedics at Rutherford Ambulance Station refusing to take all jobs, there is a significant risk to patient safety. Responses to all category of cases across the zone will be delayed, with serious adverse outcomes for patients being more than a distinct possibility. In the evening, there was a 9 month old with a cardiac incident 4 minutes away from Rutherford Station. Up to 8pm, there were 29 incidents of delayed response. b. R3 incidents are transfers that have been booked by a clinician to facilitate the movement of a patient from one health facility to another. R3 incidents are often time critical. For the period 1 January 2023 to 27 November 2023, NSW Ambulance had 49,740 R3 incidents. Delays in R3 transfers create a significant risk to public safety. ….. d. It is not possible for NSW Ambulance to sufficiently mitigate the risk to the community of the industrial action." 1. In respect of Ambulance NSW's rosters, Mr Wiseman gave evidence that (at [43] of N1): "NSW Ambulance Service Planning demonstrates that the local community and the broader Hunter New England community, is best served by an additional day and night shift rather than a day and afternoon shift, as proposed by the HSU." 1. Mr Wiseman gave the following additional evidence in response to the Commission's questions at the hearing (Tcpt, 20 May 2024, p 13): "Q. Mr Wiseman, I'm just curious, when you speak about the impact of the work bans and there was also some information in your statement around a job that was in fact attended at the discretion of individuals. I'm trying to get a sense of what's actually going on on the ground and I thought you can just describe that maybe in your own words. Is it the case that there a number of jobs that are in fact being attended to by paramedics despite the bans being in place or was it just that one instance? A. That, to you my knowledge, it was just that one instance. Q. Okay, and so, you speak to this - hear this at para 38 there's some delays and are you able to provide any detail around how long those delays are? A. Yes, all the delays have been noted in appendix 9. Some of those delays have been quite some time and it's due to the - the resources that have been not dispatched due to the industrial action or they're actually being protracted due to the time, the extended period of time, that they've got to go past, you know, where the paramedics are currently undertaking action and then exceed past that point to the location. Q. And in your own words what impact is this likely to have if it continues, say, for the next seven days? A. Sure, to be really fair, we could actually get to patients that may die and with that it's the failing to respond, you know, to a cardiac arrest, failing to respond a Caesar a patient that we actually, you know, won't be able to clear an airway for, failure to respond to, you know, chest pains that are acutely unwell that require interventions, like, that we can provide, can have detrimental patient safety impacts. Q. Is it possible that someone could have an adverse event as a consequence of this strike action if I don't make these orders to stop the industrial action tonight? A. Absolutely and I think it was, you know, it's been outlined in the case that I placed in there, it was like the unknown that car was responding from, the unknown with the information that was given, so therefore, yes, it can have significant drastic consequences. Q. And what mitigation strategies have you got in place right now and how effective are they in order. A. Yeah, for sure, so we actually have - we've moved staff from other areas around the Rutherford area and site but therefore that means that there's consequences to those other areas as well. We've also looked at, you know, engaging with the LHD particularly around the interfacility transfers and to be really fair, Commissioner, these patients are acutely unwell patients that reside in regional facilities that need to come to tertiary facilities and they may have, you know, really poor outcomes if they actually don't get to where they need to be. So, therefore, it's certainly a quantified risk within our emergency response system but also to our hospital network into which we support." 1. As the matter was heard ex parte, Ms Huang for the Notifier anticipated the case that may have been put against the making of the orders, had the HSU elected to appear at the hearing. In summary, it was put that the HSU is engaged in a broader campaign with respect to paramedic numbers, and that by not acceding to their requests or demands to increase "PAR" (meaning maintained staffing levels), the public safety is being put at risk. The Commission had no objective evidence of the risks to public safety the HSU is concerned with. Consideration 1. 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 objects of the Act contained at s 3 are also relevant. 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]. 2. The Health Secretary referred the Commission to the decision in Director General, NSW Department of Health v New South Wales Nurses Association (No 2) [2010] NSWIRComm 163, where Boland J stated at [18]: "The Commission could not condone industrial action when there is a legislated system of conciliation and arbitration in place for resolving industrial disputes, when it is the Commission's duty to apply that system, when the Association has refused to engage that system and when the industrial action would disrupt the public health system for no good reason." 1. The Health Secretary submitted that the ability, in arbitration, to order industrial action to cease - to enable the parties to resolve the dispute efficiently and fairly under the auspices of the Commission rather than leaving the matter to be determined by the economic and industrial power of the participants without reference to the public interest - is one of the most important features of the system created by the Act: BlueScope Steel (AIS) Pty Ltd v The Australian Workers' Union, New South Wales [2006] NSWIRComm 149 at [26]. I agree with this submission. 2. The Health Secretary submitted that there were two reasons why the Commission should exercise its discretion to make the orders sought: 1. The risk to public safety; and 2. The objects of the Act. 1. I consider these submissions in turn. 2. There is a strong public interest in ensuring the health and welfare of people seeking to access the Ambulance Service. The uncontested evidence of Mr Wiseman was that those interests were being compromised by the industrial action being undertaken. The evidence in respect of public harm was most relevant and of greatest concern in respect of the industrial action being taken by paramedics by not responding to all jobs. It is important to observe that Ambulance NSW has in place systems and processes to mitigate these risks and provide services to people in need. However, I accepted the uncontested evidence of Mr Wiseman that it is not possible to sufficiently mitigate the risk to the community that bans of this type and duration causes because the level of participation in the industrial action cannot be known in advance and impacts on workload to other staffing areas: Wiseman statement at [49]. 3. Mr Wiseman gave evidence of there being 29 incidents of delayed response due to the industrial action being undertaken by members between 10:45 am and 8:00 pm on 20 May 2024: Wiseman statement at [38]. At approximately 6 pm there was a cardiac incident suffered by a 9 month old patient. Paramedics choose to attend to that patient despite the industrial action, as a matter of discretion. Mr Wiseman's evidence was that had this not occurred, there may have been an adverse outcome for that patient. I am satisfied that the public's safety is being compromised by the ban on attending to all jobs. 4. The respect of the R3 bans, Mr Wiseman gave evidence that in the majority of these cases, the movement of a patient from one health facility to another is because the patient requires a more definitive clinical intervention at the receiving hospital and that in his experience, requests are often time critical. He further deposed that there were 49,740 R3 incidents in the 2023 financial year and that the bans would create a significant patient safety risk should there be a delay in responding to patients, and in patients being transferred to a higher acuity facility to access the right level of care: Wiseman statement at [42]. I accept this evidence and that the bans in respect of R3 incidents create a risk to public safety. 5. Finally in respect of the bans in respect of the Ambulance NSW roster in Rutherford Station, the uncontested evidence of Mr Wiseman was that the NSW Ambulance Service Planning demonstrates that the community is better served by the Ambulance NSW roster. This is not clear evidence that the ban creates a direct risk to public safety. However, the evidence demonstrates that the bans in respect of responding to jobs, which I am satisfied arose out of the refusal to work the Ambulance NSW rosters, has had a direct impact on public safety. If the ban on working the Ambulance rosters does not cease, I am concerned the industrial unrest will continue to extend to other bans impacting on public safety. 6. The Health Secretary also submitted that the making of the orders was consistent with the objects of the Act, which the Commission must take into account when exercising its functions. I agree with this submission as it relates to all three bans. The HSU did not avail itself of the assistance of the Commission by notifying a dispute a respect of the concerns underpinning the roster bans. It is inconsistent with the objects of the Act for the HSU to embark on a course of industrial action without first attempting to resolve these issues through the processes available through the Commission: Director General, NSW Department of Health v New South Wales Nurses Association (No 2) at [18] and BlueScope Steel (AIS) Pty Ltd v The Australian Workers' Union, New South Wales [2006] NSWIRComm 149 at [26]. I make no finding with respect to the legitimacy of the HSU's concerns. 7. I decided the balance lied in favour of making the Orders and Directions sought and it was in the public interest to do so. I decided that it was appropriate to make the Orders for a period of three months to provide sufficient time for the parties to seek a resolution with the respect of the underlying issues of concern raised by the HSU. Orders and Directions 1. The Commission makes the following Orders and Directions: A. Pursuant to ss 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders: 1. Health Services Union NSW (the HSU), its officers and employees, and its members employed in the Ambulance Service of NSW (NSWA) must immediately cease organising and refrain from taking industrial action by those employees engaged as paramedics, including the industrial action which commenced on 20 May 2024, including: a. The refusal, by HSU members at Rutherford Ambulance Station, to undertake any jobs assigned to them. b. The refusal of HSU members at Rutherford Ambulance Station to work in accordance with the roster posted by NSWA. c. The Statewide banning of inter-facility (R3) transfers. 2. The HSU, its officers, employees, agents and members must cease and refrain from authorising, supporting, encouraging, directing, aiding, abetting or inciting members of the HSU to organise or take industrial action contrary to Order A1. 3.These orders take effect immediately and shall remain in force until 20 August 2024 or until further order of the Commission. B. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, the (Commission makes the following directions: 1. The HSU shall by no later than 5.45 am on 21 May 2024: a. publish in a prominent position on its website, the HSU's Facebook and other social media pages, Order A and a direction to members that they comply with those orders and not take the industrial action referred to in Order A1; b. send by email to all members in the Ambulance Division of the HSU a link to Order A1and a direction to comply with those orders and not take the industrial action referred to in Order A1; c. provide or cause to be provided a copy of Orders A1, A2 and A3 above to the HSU's representatives employed by the notifier. 2. The HSU must advise the notifier's legal representative in writing by 9 am on 21 May 2024 of the steps taken to comply with Directions 1(a) to (c) 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) to (c) in respect of any relevant member who, by that time, has not been notified. Janine Webster COMMISSIONER ********** Amendments 22 May 2024 - Minor Amendments made 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: 22 May 2024