Industrial Relations Commission of New South Wales CITATION: NSW Department of Health and Health Services Union [2008] NSWIRComm 145 NOTIFIER (OF INDUSTRIAL DISPUTE): NSW Department of Health PARTIES: RESPONDENT (TO INDUSTRIAL DISPUTE): Health Services Union FILE NUMBER(S): IRC 1198 of 2008; IRC 2064 of 2006; IRC 1123 of 2007; IRC 1354 of 2007; IRC 1355 of 2007; IRC 1356 of 2007 CORAM: Walton J Vice-President; Grayson DP; Staff J CATCHWORDS: Industrial dispute - Report Back - Non-compliance with Directions - Ambulance Service to consider further application - Statement issued - Report Back programmed LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 25 and 28 July 2008 DATE OF JUDGMENT: 28 July 2008 NOTIFIER: Mr J Nolan of counsel Ms A Owens NSW Department of Health LEGAL REPRESENTATIVES: RESPONDENT: Mr J Murphy of counsel Mr D Ravlich Health Services Union JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice-President GRAYSON DP STAFF J Monday 28 July 2008 Matter No IRC 1198 of 2008 Notification under section 130 by NSW Department of Health of a dispute with Health Services Union re work bans Matter No IRC 2064 of 2006 OPERATIONAL AMBULANCE OFFICERS (STATE) AWARD Application by Health Services Union for variation re clause 5, classifications, in the Operational Ambulance Officers (State) Award Matter No IRC 1123 of 2007 AMBULANCE SERVICE OF NEW SOUTH WALES SUPERINTENDENT/OPERATIONAL MANAGERS (STATE) AWARD Application by Health Services Union for variation re Clause 4 Matter No IRC 1354 of 2007 OPERATIONAL AMBULANCE OFFICERS (STATE) AWARD Application by NSW Department of Health for new award Matter No IRC 1355 of 2007 AMBULANCE OPERATIONS CENTRE (STATE) AWARD Application by NSW Department of Health for new award Matter No IRC 1356 of 2007 AMBULANCE MANAGERS (STATE) AWARD Application by NSW Department of Health for new award STATEMENT (NO. 3) [2008] NSWIRComm 145 1 On Friday last, we made a Statement and Recommendation which, we understand, has been communicated to a meeting of Ambulance Service sub-Branch delegates of the HSU this morning. That meeting also received the Direction, which we subsequently issued, under s 134(2) of the Industrial Relations Act 1996 with a further Statement this morning (following certain submissions received from Mr J Murphy of counsel on behalf of the Union). 2 Upon the matter being resumed at 12.45 pm today, we were informed that, contrary to motions moved by the General Secretary of the Union, the sub-Branch delegates had decided to refuse to adhere to the Directions so made. 3 All of this has occurred in circumstances where the HSU has been strenuously prosecuting a case for improvements in wages and conditions before us. Those award proceedings continue before us in August. Conferences between the parties have been programmed to discuss some outstanding matters which were due to commence tomorrow morning. 4 We do not agree with the submission made by Mr Murphy in the resumed proceedings today (apparently reflecting the view expressed in the sub-Branch delegates meeting) that there is a complete disconnect between the issues ventilated recently by them through their Union with the New South Wales Government and the issues which have been considered in the arbitration proceedings before us. 5 However, and in any event, that matter is really beside the point. As we have been at pains to point out, the real issue for present purposes is the engagement by the HSU's members employed in the Ambulance Service in serious industrial action, contrary to the provisions of the relevant award, at the very time that the HSU, on their behalf, seeks to act under and takes advantage of the provisions of the Act, which statute permits the Union to bring proceedings on their behalf for improvements in the relevant award. 6 At the end of the day, the Act has both checks and balances which are designed to ensure fair play between employees and their employers. As things stand in this nation at the present time, that Act places employees of the Crown in New South Wales in a very special place. However, at the same time the Act brings with it responsibilities to act consistently with those statutory arrangements. 7 It is no small matter that a Full Bench of this Commission would make a direction in the context of the industrial action which is now taking place. It has done so reservedly in the light that the HSU may have serious grievances with the New South Wales Government. However, the members of the Union engaged in the industrial action in support of those grievances have responsibilities to advance those claims in accordance with the statutory provisions to which we have referred, and, therefore, without such industrial action. 8 These observations and sentiments have been partially expressed so that the delegates of the Union, here assembled today, may hear first hand our observations and be given an opportunity to reconsider their position in that light. 9 In that context, we have decided to not resume the proceedings this afternoon, as sought by Mr Nolan of counsel for the Ambulance Service, but rather to resume the proceedings for Report Back at 9.30 am tomorrow morning. That should leave ample time for a reconsideration of the position adopted by the Union's delegates in their meeting this morning and the Ambulance Service to contemplate any application it may make. However, before adjourning the proceedings we would make two further observations: 1. The HSU must seriously consider just how gravely the present position may place it in breach of the conventions applying with respect to industrial action in this place when such action occurs in the face of proceedings before the Commission; 2. If the matter resumes before us in the absence of a cessation of the industrial action we will examine all relevant matters further agitated before us, including the operation of the Union's rules. _______________________________ 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.