Industrial Relations Commission of New South Wales CITATION: Director General, NSW Department of Health v New South Wales Nurses Association [2010] NSWIRComm 160 PARTIES: Director General, NSW Department of Health (Notifier) New South Wales Nurses Association (Respondent) FILE NUMBER(S): IRC 1330 of 2010 CORAM: Boland J President CATCHWORDS: INDUSTRIAL DISPUTE - Public health system - Nurses - Plan by Nurses Association to hold stoppage of work of all nurses and midwives in protest at employer's refusal to meet the Association's claims for improved wages and working conditions including a refusal to meet demand for a fixed nurse/patient ratio - Stoppage would cause significant disruption and inconvenience to public hospital system - Would cause elective surgery for 900 patients to be cancelled - Commission offered to deal with dispute expeditiously commencing with early conciliation - Expedition subject to stoppage being cancelled - Strong recommendation that stoppage be cancelled - Parties to report on response to Recommendation LEGISLATION CITED: Industrial Relations Act 1996 s 130 HEARING DATES: 18 November 2010 DATE OF JUDGMENT: 18 November 2010 Mr I Taylor of counsel with Ms A Owens (Notifier) LEGAL REPRESENTATIVES: Ms C M Howell of counsel with Ms R Kassis and Ms L McDonald (Respondent) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J, President Thursday 18 November 2010 Matter No IRC 1330 of 2010 DIRECTOR GENERAL, NSW DEPARTMENT OF HEALTH v NEW SOUTH WALES NURSES ASSOCIATION Notification of an industrial dispute by the Director General, NSW Department of Health relating to proposed industrial action by nurses STATEMENT AND RECOMMENDATION [2010] NSWIRComm 160 1 Today the Director General, NSW Department of Health notified the Industrial Relations Commission of the existence of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 in relation to a planned stoppage of work on Wednesday 24 November 2010 by nurses and midwives employed in the public health system. 2 The stoppage has been called by the New South Wales Nurses Association. The plan is that on 24 November nurses and midwives will provide life preserving services at all times but will reduce services to current night duty staffing levels between 7.00 am and 5.00 pm. A Special General Meeting of the Association has been scheduled for 11.30 am on Wednesday at Sydney Olympic Park Sports Centre, Homebush to enable nurses and midwives to hear a report from the Association's officers on the current state of negotiations with the State Government and to endorse the 'next major steps in the campaign'. 3 The Association claims that its industrial action is a last resort in response to the State Government's refusal to implement minimum nurse to patient ratios claimed to be necessary by the Association and the Government's refusal to provide a pay and conditions offer 'without unfair strings attached'. The Association has called its campaign '1 nurse: 4 patients - The way to safe patient care'. 4 There have been ongoing negotiations between the Association and the Department of Health for some time regarding the terms of a new award, the nominal term of the existing award having expired on 30 June 2010. Indeed, since May 2010 the parties have met 13 times. The Association had put forward a number of claims including general improvements to wages and conditions, a new 'experienced nurse' classification and the claim relating to nurse to patient ratios. The Department made a counter offer in October 2010. Obviously, the negotiations between the parties were unsuccessful. 5 The Department indicated that it would seek to resolve the differences with the Association by proposing a revised award and to that end signalled its intention today to seek a Major Industrial Case before the Commission. In fact the application for a Major Industrial Case was filed in the Registry this afternoon. 6 The Department submitted that if the strike next week were to proceed it would have 'a very significant detrimental effect' on the State's health system and, in particular, on patients whom have elective procedures arranged for next Wednesday, which would need to be cancelled. Counsel for the Department explained that on any given day some 900 patients have elective surgery. This would have to be cancelled next Wednesday if the stoppage went ahead and the surgery for these patients would not be able to be re-scheduled until next year. The stoppage would also impact on emergency departments and there would be a general flow on effect to wards and even the ambulance service. Although facilities might be differently affected by the stoppage because it had been left up to individual centres to decide whether they would join the stoppage and for how long (and the Association would not know the decision of these individual centres until 5.30 pm tomorrow, 19 November), it was indicated that the Department would have to notify patients by midday tomorrow of cancelled surgery next Wednesday. Therefore, all elective surgery would have to be cancelled. 7 The Association submitted the current workload management clause in the award is not proving sufficiently rigorous and that it was essential that adequate staffing levels be provided in order to ensure quality, safe patient care and to protect the health and well being of nurses. The Association complained that the Department had simply turned its face away from the issue of nurse/patient ratios and had refused to countenance such ratios. 8 It is regrettable that the parties allowed their negotiations to deteriorate to the point that serious disruption and inconvenience of the public health system is now under threat. It has always been open to either party to bring the negotiations over wages and working conditions to the Commission so that the Commission might assist through its conciliation processes. I find it difficult to understand why parties such as the present, who have been served so well by this institution over such a long period of time, and which provides the most effective system of resolving industrial differences in the country, wait until the dispute reaches crisis point and they have locked themselves into fixed positions. 9 The Commission is now left with the task, made unnecessarily complicated by the parties, of retrieving lost ground, attempting to avert next Wednesday's stoppage and putting in place a process for addressing the industrial issues between the Department and the Association. 10 I note the Association's desire to have its claim regarding ratios dealt with quickly. That will not be achieved by bringing pressure to bear on the Department through industrial action. The Commission is prepared to move with expedition to address the matters in issue between the parties. The Commission will make a full day available next Thursday 25 November or Tuesday 30 November (whichever is most convenient to the parties) to endeavour to conciliate the issues in dispute. In preparation for that conference the parties are required to prepare a detailed schedule identifying their claims and a short statement setting out their position regarding each claim and why they have rejected the other party's claims. 11 If conciliation proves unsuccessful, despite the difficulties it presents for the Commission's workload, I am prepared to constitute a Full Bench and if the parties regard it as feasible, to at least commence hearing the matter this year and to schedule further hearing dates in the new year. Whether that is achievable depends on the parties themselves. They will need to file and serve their respective applications quickly in order to establish the ambit of the dispute, but I would have thought, given the long process of negotiations, the parties would have largely marshalled their arguments and the evidence underpinning their respective positions. Moreover, the evidence relating to the claim for an experienced nurse classification has, to a significant extent, already been heard in the earlier proceedings, which were adjourned. The parties are to consider the 'Bluescope' process for dealing with their respective claims. By that means, the proceedings will be significantly expedited. 12 In so far as the planned stoppage is concerned, in light of what I have said about expedition, it becomes unnecessary, on any objective criteria, for it to proceed. The fact is it will cause great inconvenience to patients and their families, will result in lost wages that nurses can ill-afford, especially at this time of the year, will put at risk Commonwealth monies that are tied to waiting lists, will disrupt unnecessarily the public hospital system generally and will not make a jot of difference to how the Association's claim is progressed except that if the stoppage does proceed, the Commission will not go out of its way to afford expedition and the matter will take its normal place in the Commission's list. 13 The Commission strongly recommends that the Association by its officers, employees and members employed in the public health system by the Director General of Health refrain from taking industrial action on Wednesday, 24 November 2010 and that the parties redirect their energies towards achieving an expedition. Further, I direct the Association by its officers and employees to take all reasonable steps to ensure that the employees and members of the Association are made aware of my recommendation. 14 The parties are to report their positions to me regarding this Statement and Recommendation at 11.00 am tomorrow, 19 November 2010. Liberty to apply on short notice. ________________________________________ 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.