Industrial Relations Commission of New South Wales CITATION: NSW Department of Health and Health Services Union [2008] NSWIRComm 143 NOTIFIER NSW Department of Health PARTIES: RESPONDENT 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 and IRC 1356 of 2007 CORAM: Walton J Vice-President; Grayson DP; Staff J CATCHWORDS: Industrial dispute - Bans imposed by Union whilst applications to vary awards part heard - Award applications involve substantial industrial claims - Overlap between issues raised in award proceedings and issues identified by Union giving rise to dispute - Commission recommended immediate lifting of bans HEARING DATES: 25 July 2008 DATE OF JUDGMENT: 25 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: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice-President GRAYSON DP STAFF J Friday 25 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 AND RECOMMENDATION [2008] NSWIRComm 143 1 By correspondence dated 24 July 2008, Mr T Craft, Acting Director Workplace Relations and Management Branch of the NSW Department of Health advised of the existence of work bans by ambulance officers which had been commenced upon the purported basis of issues raised in correspondence between the General Secretary of the Health Services Union ("the Union") and the Minister for Health. 2 We have treated that correspondence as a notification of dispute and joined it with proceedings which have hitherto been before us as applications by the respective parties for the variation of awards governing ambulance officers (whether by an application for a new award or otherwise). 3 These applications involve substantial industrial claims including claims as to salaries, classifications, hours of work, rosters and numerous conditions of employment. The proceedings have been lengthy and complex with both parties represented by counsel. 4 The award proceedings were adjourned on 1 July 2008 upon the application of the Union so as to enable it to acquire information and to hold conferences with the Ambulance Service of New South Wales in relation to, inter alia, the issue, then the subject of consideration, namely the 10/14 roster issue. 5 The Full Bench reluctantly adjourned the proceedings because the matter was then well advanced but ultimately did so upon the basis of a surety offered by the Union that it would engage in worthwhile discussions with the Ambulance Service of New South Wales so as to grapple fully with the roster issue as well as related issues such as salaries. 6 The award proceedings were, therefore, adjourned into conference between the parties and scheduled to resume in August so as to complete the hearing of the applications. We should emphasise that the issue of rosters brings with it squarely the issue of staffing and has been pursued by the Ambulance Service of New South Wales in the context of its commitment to recruit additional staffing in significant numbers for that purpose. 7 We mention that latter consideration because, in our view, there is an overlap between the issues raised in the application proceedings and the staffing issues identified by the letter sent by the Union to the Minister for Health. The current bans, therefore, stand in the face of the ongoing proceedings before the Commission, the arrangements made under those proceeding for ongoing discussions between the parties and it would appear the requirements of the current awards applying to ambulance officers. Indeed, the bans directly raise an issue as to whether the conferences scheduled between the parties in the award proceedings will continue. 8 This is a grave situation. If we had an application before us today to adjourn the current award proceedings indefinitely, we would have done so without hesitation. As things stand we will visit that issue, if necessary, after the report back upon the recommendation which we intend to make in this Statement. 9 The Ambulance Service of New South Wales applied that we direct a return to normal work. We think that the better course, at this stage, is to instead make a recommendation to such an end as the Union has indicated, at least inferentially, that it is desirous of obtaining a resolution of the current disputation. 10 Having decided upon that course, and for that reason, it will be incumbent upon the Union's officers to do all possible to restore the normal work arrangements. 11 The members of the Union are at a crossroad. They have enlisted the provisions of the Act to agitate (properly) for claims which, if successful, would substantially improve their terms and conditions of employment. In the circumstances of this matter, and the very extensive proceedings before us, we do not believe they can have that advantage and pursue at the same time what, in our view, is contrary conduct. The Union has a special role in ensuring that that position is well understood. 12 In the circumstances, we make the following recommendation: 1. The members of the Health Services Union employed in the Ambulance Service of New South Wales shall cease forthwith and refrain from taking or threatening to take industrial action until further decision of the Commission. 2. The Health Services Union, by its officers and employees, shall take all reasonable steps to ensure that the terms of recommendation 1 are complied with. 3. The NSW Department of Health and the Ambulance Service of New South Wales shall take all available steps to publish this statement and recommendation as a matter of urgency. 4. The parties shall report to the Commission the responses given to this recommendation at 9.30 am on Monday 28 July 2008. 5. The parties have liberty to apply at 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.