In Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2023] NSWIRComm 1044 (10 May 2023) the Industrial Relations Commission ordered the HSU to withdraw industrial action that was planned for the next day, Thursday 11 May 2023. The orders remain in force until June 30, 2023.

The HSU advised the Ambulance Service that they proposed industrial action as the “paramedics in training support protest”.  The gist of the action was that HSU members would insist on two qualified paramedics with every trainee rather than the usual one trainee with one paramedic. An email from the HSU said (at [4]):

An additional P1 or above paramedic will work as the ‘third up’ on the car containing a trainee to help support them during that shift. Trainee members are the primary focus of this action. ADHSU members want to enhance training and allow direct one on one mentoring.

The email went on to say:

• ADHSU members who are part of a training team will announce via the radio at the commencement of shift that the crew is taking part in the protest and request an additional paramedic be added to the team. …
• If you are unable to form a 3-person crew, members should voice the request over the radio, respond, but no transport will take place until at least two P1 or above paramedics are on the car with the paramedic in training or the patient’s condition deems otherwise. 5T trainees will require at least 1 ICP and a P1 and above.

The Health Secretary sought orders to prohibit this action. At [7]:

The Health Secretary contends that this industrial action will constitute a risk to the health and safety of patients. She contended that the action would require additional staffing resources where a paramedic intern or trainee is in an ambulance, which would reduce the available on-road resources, potentially reduce the number of available double paramedic crews in transport capable vehicles and potentially create delays in the transportation of patients.

The ’worst case’ scenario, predicted by NSW Ambulance was (at [9]):

… the numbers of predicted crews available to respond to “000” emergency calls will diminish by approximately 88 double crewed ambulances within the Sydney metropolitan area during the period of the industrial action and that, as a result of the industrial action, there would be only 260 double crewed ambulances within the Sydney metropolitan area. He stated that he would expect comparable reductions in regional areas.

There was also concern for ambulance despatchers ([12]):

While the dispatchers are highly trained, finding additional backup resources will increase the risk associated with dispatching crews in time critical situations. Crews have not always flagged at sign on their intention to request third on car or assistance to transport. This adds an element of risk and workload to the dispatcher.

The HSU argued that there was discretion in their members.  That is the action would only arise ‘where practicable’ and that the industrial action would be ‘suspended if the “patient’s condition deems otherwise”’ ([15] and [16]). The Ambulance Service argued (at [15]) and the commission agreed (at [16]) that this made the matter more complex as it ‘made the task of contingency planning that much more difficult, as it introduced a further level of uncertainty which made planning difficult’.

The HSU argued (at [20] that there was ‘an entitlement of the paramedics to take industrial action in the course of bargaining’.  The Commission did not rule on any ‘right’ to take industrial action on the basis that ‘there is limited evidence before me that there is in fact bargaining taking place’.  The HSU argued that the action was warranted because ‘… the Government” had made a promise that paramedics would be paid what they are worth as the professionals they are, and that the Government had not met that promise’.  Commissioner Sloan said, however, that there ‘… is nothing beyond what appears to be a protest in the position put by the HSU. There is no evidence of active bargaining in the way that I would normally anticipate would be led if the HSU wished to rely on a “right” to take industrial action.’

It was agreed that the Commission had jurisdiction to make the orders sought but the remedy was discretionary. When deciding whether to make an order the Commission had to consider the public interest (Industrial Relations Act 1996 (NSW) s 146, cited at [22]).

Commissioner Sloan concluded (at [23]) ‘Having regard to the matters to which I have already referred, I am persuaded that this is a case calling for the Commission’s intervention’. He made the orders prohibiting the HSU from continuing with this particular form of industrial action.  The HSU was ordered to take steps to notify its members that the industrial action was not to proceed and to report back on the steps it had taken to that end.

Conclusion

This matter was heard and decided on 10 May and prohibited industrial action that had been planned for 11 May.  I’m reporting it today (13 May) as it takes time for cases to be uploaded and become available.  It follows that today the matter and its effect has largely come and gone save that the orders prohibiting this particular form of industrial action remain in place until 30 June. 

I report the matter, even though the proposed date has passed, on the assumption that it will be of interest to NSW Paramedics, and members of the HSU in particular, to see how the matter was resolved and why the Commission made the orders that it did.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.