Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association [2024] NSWIRComm 1056

Industrial Relations Commission New South Wales Medium Neutral Citation: Health Secretary, Ministry of Health v NSW Nurses and Midwives' Association [2024] NSWIRComm 1056 Hearing dates: 6 September 2024 Date of orders: 6 September 2024 Decision date: 06 September 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: Recommendations and procedural directions made - see [11] Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Threatened State-wide strike action by public health system nurses – Union did not oppose Commission making recommendation in conciliation that strike action not proceed as planned – Risk to safety and welfare of patients reasonably self-evident – Conciliation in respect of the underlying dispute has not yet occurred – Recommendations made Legislation Cited: Industrial Relations Act 1996 (NSW), ss 130, 134(2) Category: Procedural rulings Parties: Health Secretary, Ministry of Health (Notifier) NSW Nurses and Midwives' Association (Respondent) Representation: J Mattson (Notifier) N Maher-Boyle (Respondent)

Solicitors: Bartier Perry Pty Ltd (Notifier) File Number(s): 2024/00330392 Publication restriction: None

Recommendation

Ex Tempore (Revised from transcript) 1. On 6 September 2024 the Health Secretary filed a Notification of an Industrial Dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW). The dispute identified in the Notification concerns: 1. ongoing industrial action currently being undertaken by members of the New South Wales Nurses and Midwives' Association across the public health system in the form of stop work meetings and work bans; and 2. threatened industrial action where the Association is calling on its membership to take strike action in the form of a ban on working for 12 ½ hours next Tuesday, 10 September 2024 between 7am and 7.30pm. 1. The dispute has been called on urgently before me this afternoon for conciliation. The Health Secretary has indicated that if the matter is not resolved through conciliation this afternoon, the Secretary will seek to have dispute orders made on Monday following an arbitration. 2. It seems to be not in dispute that the Health Secretary only became aware of the proposed strike action yesterday afternoon. A document publicising the strike to members advises: "This strike will commence at 0700 and conclude at 1930 on 10 September 2024. If you are rostered to work at any time during this span of hours, you should strike during those hours. For example: If you're rostered to work 0700 - 1530, you strike for the whole shift. If you're rostered from 1330 - 2200, you strike from 1330 -1930 and work from 1930 - 2200. If you're rostered for a 12-hour shift from 0700 - 1930, you strike for the whole shift." 1. Preliminary information provided by local managers to the Health Secretary is that northern New South Wales members of the Association propose to strike for 24 hours and at Liverpool Local Hospital up to 36 theatre nurses propose to strike which may have a significant impact on life threatening surgeries. 2. For the purposes of the conciliation only, I am satisfied the strike and the ongoing work bans are having and will likely have, an adverse impact on patient outcomes and care. 3. The Association is taking and proposes to take industrial action due to dissatisfaction with the progress of wage negotiations that have been ongoing since May 2024 and which are due to come before the President for a first conciliation on 18 September 2024, which I understand is the first date the Association indicated it was available to attend a conciliation in circumstances where the Health Secretary lodged applications for new Awards on 1 July 2024 and the Association lodged a dispute on 13 August 2024 in respect of those same wage negotiations and pay and conditions under the Awards. 4. I have also been provided with a copy of a letter from the Minister for Health, Ryan Park, dated today's date which relevantly states the following: "The Ministry remains willing to discuss the award claims further and would like to have a further meeting the NSWNMA before the report back to the Industrial Relations Commission on 18 September. The ministry will make themselves available at a time convenient to the NSWNMA. In the further bargaining meeting the Ministry would like to explore the possibility of structuring the current wage offer in such a way to flow benefits to your members in a more timely manner. I note prior to your announcement of strike action yesterday we had already agreed to your request for a meeting with the Treasurer, Minister for Industrial Relations and myself scheduled for 12 September 2024 to discuss the NSW Government's pay offer and the NSWNMA's claims." 1. The Health Secretary proposes that I make recommendations in conciliation to the effect that the Association and its members should cease taking industrial action on and from 10 September 2024 to Wednesday 18 September 2024, which is the date when the matters come before the President for conciliation. 2. I intend to make the recommendations sought with some minor modifications in circumstances where: 1. the risk to the safety and welfare of patients if the strike goes ahead is reasonably self-evident; 2. the Association has not yet availed itself of conciliation before the Commission; and 3. the Health Minister, the Treasurer and the Minister for Industrial Relations have indicated their willingness to meet representatives of the Association on 12 September 2024 to discuss the Government's pay offer and the Association's claims. 1. The Association has made no submissions this afternoon in opposition to the making of the recommendations in conciliation and have indicated that they will need to seek the views of the Association's elected council before indicating whether the Association will comply with any recommendations that I make this afternoon. 2. In the circumstances I make the following recommendations pursuant to s 134(2) of the Industrial Relations Act 1996, as well as directions for the further conduct of the proceeding: 1. The New South Wales Nurses and Midwives' Association ("the Association"), its officers and employees and its members employed in the NSW Health entities listed in Schedule 1 ("Health Entities") should immediately take steps to cease organising and refrain from taking industrial action on and from Tuesday 10 September 2024 to Wednesday 18 September 2024 by those employees engaged by a Health Entity under the Public Health System Nurses' and Midwives' (State) Award 2023. 2. The Association should remove any reference to the strike action of Tuesday 10 September 2024 from its website, social media accounts or any documents linked to its website or social media accounts by no later than 5pm on Sunday 8 September 2024. 3. The Association, its officers, employees, agents and members should not induce, advise, authorise, support, encourage, direct, aid or abet members of the Association to organise or take industrial action contrary to Recommendation 1. 4. The Association should notify the notifier and its legal representatives by 8am on Monday 9 September 2024 that it has complied with Recommendations 1 and 2. 5. The matter is listed for report back before me at 9am on 9 September 2024 by AVL. 6. The Association is to inform the Health Secretary whether it proposes to comply with the Recommendations by 3pm on 8 September 2024. 7. The parties have liberty to inform the Commission by email before 8.30am on 9 September 2024 that the matter has not resolved and to request the Commission to issue a Certificate of Attempted Conciliation. Janet McDonald Commissioner