Industrial Relations Commission New South Wales Medium Neutral Citation: Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association (No 2) [2024] NSWIRComm 9 Hearing dates: 8 November 2024 Date of orders: 8 November 2024 Decision date: 08 November 2024 Jurisdiction: Industrial Relations Commission Before: Taylor J, President Decision: Recommendation at para [18] Cases Cited: Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association [2024] NSWIRComm 4 Category: Procedural rulings Parties: Health Secretary, NSW Ministry of Health (Applicant/Respondent) New South Wales Nurses and Midwives Association (Respondent/Applicant) Representation: Ms K Kless, solicitor, for the Health Secretary in all matters. Mr N Dawson, solicitor, for the New South Wales Nurses and Midwives Association in all matters. File Number(s): 2024/242813, 2024/242824 and 2024/297588. Publication restriction: None STATEMENT AND RECOMMENDATION Ex Tempore, amended from Transcript 1. These three matters came before me today for further report back. Matter numbers 2422813 and 242824 are applications by the Health Secretary for new three-year awards that would apply in respect of nurses in the public health system and also nurses covered by the Crown Employees Nurses State Award 2024. The third matter is a dispute notified by the NSW Nurses and Midwives' Association (Nurses Association) which annexed a log of claims which seeks improvements in wages and conditions. 2. On 18 September 2024 I made a Statement published as Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association [2024] NSWIRComm 4, which concluded with the following recommendation: RECOMMENDATION 1.The parties should enter into four weeks of intensive discussions immediately on the basis that; a. as a circuit breaker the Health Secretary agrees to vary the awards to provide an immediate 3% interim increase effective 1 July; and b. the Nurses Federation commit to cease all industrial action that is affecting patient care, pending the outcome of those discussions and any subsequent arbitration. 2. In order for those discussions to be effective, I recommend that on the Health Secretary's side, persons present be not only senior office holders within the Department of Health, but also ministerial level staff in respect of those ministers who ultimately will need to give approval for any alteration to pay offers. 3. Should those discussions not result in a resolution, then these disputes be set down for arbitration expeditiously, and that no industrial action take place while that process is occurring. 1. When these matters next came before the Commission each party committed to adopting that recommendation. 2. As can be seen, one limb of that recommendation was that as a circuit breaker the Health Secretary agreed to vary the awards to provide an immediate 3% interim increase effective 1 July. Consistent with the commitments, that occurred, and nurses then have received an interim 3% increase backdated to 1 July. 3. A second limb of the recommendation involved the parties immediately entering into four weeks of intensive discussions. The parties have informed me that there have indeed been four weeks of discussions which were described as intensive discussions, and certainly there have been multiple meetings. 4. Those discussions were not totally successful in that they did not resolve the overall dispute. They were, however, partially successful, in that some items that were being pursued by the Nurses Association have been agreed in principle, including the claim that involved what has been referred to as a guaranteed two-day break. 5. The discussions, however, were not able to resolve the wage claims. As to that, Mr Dawson, on behalf of the Nurses Association, told me when the matter was before me this morning his client believes that the Health Secretary did not engage in good faith in those intensive discussions because, and I am paraphrasing, it was not until late in the four-week period that she told the Association there was no supplementary funding that would allow for discussions about increases in pay that would, when totalled, amount to a greater overall cost to the public than that which had been the value of the Health Secretary's position before those discussions commenced. That was described by Mr Dawson as being, in the view of the Nurses Association, inconsistent with the commitment that the Health Secretary had given to abide by the recommendation. Ms Kless for the Health Secretary disagreed in strong terms with that characterisation and stated that the Health Secretary had indeed engaged in good faith at all times during the intensive discussions. 6. Ms Kless sought, consistent with the Health Secretary's view of the commitments that had been given, for the matter to now proceed into arbitration relying on the third limb of the recommendation. Namely, that if the discussions did not result in a resolution, then the disputes ought to be set down for arbitration expeditiously and that no industrial action take place while that process is occurring. 7. When these matters were before me earlier this week on Monday, 4 November, and I was informed that the intensive discussions had not been able to resolve all matters, Mr Dawson, on behalf of the Nurses Association, indicated that the Nurses Association was not presently willing to put a counter application before the Commission for improvements in terms and conditions of employment for nurses that would allow the Commission to expeditiously deal with the matter by way of arbitration. 8. Yesterday the Nurses Association advised the Health Secretary and its members of planned Statewide industrial action to take place on Wednesday, 13 November. It is the position of the Nurses Association that it can do that, notwithstanding the commitments it gave to the Commission, because of the aforementioned alleged lack of good faith by the Health Secretary. 9. It is my view that the Nurses Association, in determining to announce further industrial action and to not proceed to engage in a process to allow the disputes to be set down for arbitration expeditiously, is acting contrary to the commitment it gave to the Commission. I view that as a failure by a major industrial party to abide by a commitment given to this Commission. That failure is a matter of particular concern in circumstances where the Health Secretary did in fact increase wages on an interim basis and back pay them to 1 July. 10. I do understand the frustration of the members of the Nurses Association with the lack of progress in this matter. I said on the last occasion that nurses do not take industrial action lightly and that I have no doubt that the members of the Nurses Association feel very strongly that the position taken by the Health Secretary to date does not adequately reflect their work value. 11. Notwithstanding those matters, there is, as the Nurses Association is aware, a solution that does not involve industrial action, namely, to bring the claims of nurses to this Commission and allow it to do its job as the independent umpire. The New South Wales Nurses and Midwives' Association has a well-deserved reputation as a responsible and significant industrial party and yet, there is before me today, a prima facie case that it has twice contravened orders to cease to organise industrial action and I am concerned that it may have an intention to do so again. 12. The Nurses Association understands the scheme of the Act, which is to allow industrial disputes over pay and conditions to be resolved first, and ideally, by conciliation but if that fails, by arbitration. The Act does not contemplate that industrial disputes are to be resolved through the taking of industrial action. In the Statement I made on 18 September 2024, I said, at para 12: "It is a matter of some concern that the Nurses Federation, having invoked the jurisdiction of this Commission to resolve the dispute over its log of claims, then determined not to prosecute that dispute by conciliation and arbitration before this Commission but, instead, by taking industrial action. That is notwithstanding the efforts that this Commission took to deal with this dispute as expeditiously as possible in the manner that I have described." 1. Industrial action next Wednesday is unnecessary. It will cost nurses pay and cause inconvenience and worse to patients and their families. I have, in matter number 330392, shortly before making this statement, made dispute orders in respect of that industrial action. 2. In these matters, I make the following recommendation and directions. RECOMMENDATION 1. I recommend that the New South Wales Nurses and Midwives' Association recommit to the third paragraph of the Recommendation that I made on 18 September 2024, namely, to have each of these disputes set down for arbitration expeditiously and for there to be no industrial action whilst that process is occurring. DIRECTIONS 1. I set these matters down before me at 11.00am on Monday, 25 November 2024; 1. I direct that the parties are to have discussions by no later than midday on 21 November 2024 as to an appropriate timetable for the arbitration of these matters. ********** 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: 08 November 2024