Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by the NSW Department of Health of a Dispute with Health Services Union re Threatened Industrial Action by Ambulance Crews [2009] NSWIRComm 16 NOTIFIER: NSW Department of Health PARTIES: RESPONDENT: Health Services Union FILE NUMBER(S): IRC 200 of 2009 CORAM: Walton J Vice-President; Grayson DP; Staff J CATCHWORDS: Industrial dispute - threatened industrial action - Certificate of Attempted Conciliation - threat to public - industrial action and conduct contrary to recently made award - orders and award variation made - related proceedings concluded LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 18 February 2009 EXTEMPORE JUDGMENT DATE: 18 February 2009 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 Wednesday 18 February 2009 Matter No IRC 200 of 2009 NOTIFICATION UNDER SECTION 130 BY NSW DEPARTMENT OF HEALTH OF A DISPUTE WITH HEALTH SERVICES UNION RE THREATENED INDUSTRIAL ACTION BY AMBULANCE CREWS Matter No IRC 193 of 2009 OPERATIONAL AMBULANCE OFFICERS (STATE) AWARD APPLICATION BY NSW DEPARTMENT OF HEALTH FOR VARIATION RE TRANSITION PROVISIONS OF NEW HOURS CLAUSE DECISION AND ORDERS OF THE COMMISSION EX TEMPORE [2009] NSWIRComm 16 1 By notification of an industrial dispute filed pursuant to s 130 of the Industrial Relations Act 1996 this afternoon, the NSW Department of Health advised of the existence of an industrial dispute between the Ambulance Service of New South Wales and the Health Services Union regarding proposed industrial action by members of the HSU engaged in the Ambulance Service of New South Wales. 2 Mr J Nolan of counsel for the Department correctly advised that the dispute was urgent. Upon the listing of the matter this evening, it became clear that the members of the Union in the Ambulance Service intended to engage in industrial action commencing at 8.00 am tomorrow which had the potential to adversely affect the health and wellbeing of members of the public who may, during the duration of the industrial action, rely on the services of the New South Wales Ambulance Service. 3 That industrial action consisted of the following (as described by the Union in its correspondence to the Department as exhibited before us): · Ambulance Paramedic crews and officers will only respond to time critical cases (1A-2B); · Ambulance Paramedic crews and officers will only perform hospital transfers of patients from low to higher acuity care; · Patient Transport Officers will only transport patients to hospitals; · Non-compliance with the patient allocation matrix and protocol regarding the notification of off stretcher times; and · No completion of paperwork on cases (excepting details pertaining to patient treatment). This will include non-completion of any statistical data collection. 4 Mr Murphy of counsel, who appeared for the HSU, appropriately conceded that the industrial action (which was indefinite) had the potential for much more serious consequences than bans and limitations which have been imposed by members of the HSU in the Ambulance Service in recent times. 5 There can be no doubt that the proposed industrial action must be considered in a serious and adverse light. Not only does the action endanger members of the public but it is taken as action to achieve an industrial goal which is directly contrary to a recent decision of this Full Bench (which was arrived at after lengthy, contested arbitration). It is also in breach of the dispute settlement procedures prescribed by the award thereby made. Somewhat surprisingly, the industrial action is also taken in the light of recent successful initiatives taken by the HSU on behalf of its members to improve from its perspective some aspects of the operation of that award. 6 Another consideration in the present context is that the industrial action is proposed to be taken against a decision of the Minister for Emergency Services to approve a recommendation of the State Rescue Board regarding the deployment of ambulance paramedic rescue units. We make no comment about the merits of that decision, but observe that the industrial action is taken in circumstances where there are ongoing proceedings before the Commission regarding that matter and where the Union has been given and may expect to be given every opportunity to raise issues about the proposed change. 7 All of this means that, in our view, the industrial conduct now proposed to be engaged in is reprehensible, ill conceived and unnecessary. On other occasions the Commission may have had recourse to alternative remedies such as the making of a recommendation or direction but the present circumstances compel the making of orders for which the employer applies. 8 Given the lateness of the hour at which these orders are made, and given that we intend to make orders directly against the members of the Union engaged in the industrial action, it will be necessary to make consequential orders facilitating service upon those affected. We should also note that we have given some active consideration as to whether we should make orders against the industrial organisation having regard to the fact that the decision to take the industrial action came from the Union's rank and file. However, it is appropriate that orders be made against the Union because the Union has not taken any step available to it under its rules to direct its members to take an alternative course. 9 Before turning to those orders, we note that we have received a submission from the parties that it would be desirable to grant the consent variation to the Operational Ambulance Officers (State) Award made effective from 12 September 2008. Normally the Commission would not entertain such an application in the present circumstances. However, we are minded to act upon the alternative consideration that the variation will most likely facilitate the effective implementation of the award. Hence, we will also make a variation to the award in this decision. 10 In all these circumstances, we make the following orders and awards: 1. The Health Services Union (HSU), by its officers and employees, and its members and delegates employed in the Ambulance Service of New South Wales shall forthwith withdraw all threats of industrial action and refrain from taking any industrial action whatsoever, but, in particular, the industrial action threatened pursuant to the HSU delegates' resolution carried on 18 February 2009; 2. The HSU, by its officers and employees, shall take all necessary steps to communicate the text of this decision and order to all HSU ambulance sub-branches, members and delegates immediately and service upon the sub-branches and delegates may be made effective by the service of these orders by email or other appropriate means; 3. This order shall take effect on and from 11 pm 18 February 2009, and remain in force for a period of three months or until further order of this Commission; 4. The Operational Ambulance Officers (State) Award is varied in accordance with the application filed by the NSW Department of Health on 18 February 2009 in Matter No IRC 193 of 2009. _______________________ 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.