Industrial Relations Commission New South Wales Medium Neutral Citation: Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association (No 3) [2024] NSWIRComm 16 Hearing dates: 25 November 2024 Date of orders: 26 November 2024 Decision date: 26 November 2024 Jurisdiction: Industrial Relations Commission Before: Taylor J, President Decision: See para [10] for recommendation and directions Cases Cited: Health Secretary (NSW Ambulance) v Health Services Union NSW [2024] NSWIRComm 12 Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association (No 2) [2024] NSWIRComm 9 Category: Procedural rulings Parties: Health Secretary, NSW Ministry of Health (Applicant/Respondent) New South Wales Nurses and Midwives Association (Respondent/Applicant) Representation: Mr S Meehan SC, counsel, for the Health Secretary in 2024/242813, 2024/242824 and 2024/297588; Mr Gardner, solicitor, for the Health Secretary in 2024/330392 Mr N Dawson, solicitor, for the New South Wales Nurses and Midwives Association in all matters. File Number(s): 2024/242813, 2024/242824, 2024/297588 and 2024/330392. Publication restriction: None STATEMENT, RECOMMENDATION and directions 1. These four matters concern an ongoing dispute over pay and conditions for public sector nurses that has given rise to three state-wide stoppages. 2. The parties have been unable to resolve the dispute by discussions and conciliation. They need to now be programmed for arbitration. 3. The current delay by the New South Wales Nurses and Midwives' Association (the Association) to embrace that conclusion is regrettable. That is all the more so given the commitment the Association gave to the Commission in September 2024 that if intensive discussions did not resolve the dispute it would not take industrial action and refer the dispute to arbitration: see Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association (No 2) [2024] NSWIRComm 9. 4. At the report back yesterday I was informed that the Association had not yet made a decision in respect of the recommendation I made on 8 November 2024, that the Association recommit to having matters 2024/242813, 2024/242824, and 2024/297588 set down for arbitration expeditiously and for there to be no industrial action whilst that process is occurring. I was told that the Association was still considering whether to accept the recommendation and that no further state-wide stoppage was being planned. The Association indicated that it would be in a position to inform the Health Secretary of its position by 9 December 2024. 5. As the Vice President, Chin J, stated in Health Secretary (NSW Ambulance) v Health Services Union NSW [2024] NSWIRComm 12 at [11], Parliament intended industrial disputes to be resolved by negotiation between the parties themselves, or conciliation with the assistance of the Commission, and, if necessary, arbitration, and not by taking industrial action contrary to the public interest. 6. The Health Secretary correctly identifies that the current dispute needs to be determined expeditiously, and given that discussions have failed to resolve it, the dispute should now be timetabled for arbitration. To that end I will issue certificates of attempted conciliation in each matter where no certificate has yet been issued. 7. In order for the Commission to exercise its arbitral role most effectively, it needs the cooperation of the parties. Where it is dealing with major reputable industrial parties, such as the current parties, that can usually be assumed. However, if one party chooses to play little or no role, the Commission will nevertheless have to proceed to determine fair and reasonable award conditions of employment. 8. Further, when the Commission proceeds to arbitrate, the Commission will give due consideration as to whether and to what extent it will consider the claims of a party that continues to take industrial action in support of those claims. 9. I would expect that on the next occasion the parties will be able to address the Commission on an appropriate timetable for an arbitration. 10. Against that background, I make the following recommendation and directions. RECOMMENDATION 1. I recommend that the New South Wales Nurses and Midwives' Association commit its claims in these matters to arbitration and not organise or support industrial action in support of those claims pending their determination. DIRECTIONS 1. By 4.00pm on Monday, 9 December 2024 the Association is to inform the Health Secretary as to whether it accepts the above recommendation. 2. By 4.00pm on Tuesday, 10 December 2024 the Association is to inform the Health Secretary of its proposed approach to arbitration, including, if it is to commit its claims in these matters to arbitration, the nature of the claims it will pursue. 3. Between 11 December and 13 December the parties are to have discussions as to a suitable timetable for arbitration, which the parties are to undertake regardless of whether the Association commits its claims to arbitration. 4. These matters will come before me at 10.00am on Tuesday, 16 December 2024 for report back and for the purpose of setting a timetable for arbitration. ********** 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: 26 November 2024