Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2023] NSWIRComm 1082 Commissioner O’Sullivan was asked to make orders banning certain industrial action by members of the Health Services Union (HSU) working at the Southern Control Centre.  This was an ex-tempore judgment handed down on 1 August (but only appearing in my case law feed today).  An ex tempore judgment is handed down as soon as the case has ended. Sometimes all that is available is a transcript of an oral judgment.  Even if a judge can write out ex tempore judgments with as much care as they do if they reserve the decision. Accordingly this judgement does appear to have a couple of typos for example at [3] and [4] the judgement says:

[3]       Underlying the Dispute, is an interim demand by the notifier for an additional DCCO [Duty Control Centre Officers] on the night shift, should there be a Dispatcher available on night shift that is able to act up into the DCCO position.

[4]       The notifier has not agreed to this interim demand.

The ‘notifier’ is the Health Secretary. It cannot be the case that the notifier is both making the demand that an available Dispatcher act as DCCO and not agreeing to that demand. Presumably the demand for someone to act as DCCO has come from the Union, the respondent to this case.  I make this point as some of the proposed actions are not fully explained one does have to infer some missing information to try to understand the issues.

The proposed work bans were; Controllers would not:

(1)        arrange staff movements ([10]), that is HSU members who are participating in the industrial action, will not contact employees to inform them of changes to their rostered work location. That task would be referred to the Duty Operations Manager who would have to telephone or radio the affected staff ([18]).

(2)        dispatch R3 responses until ‘the virtual clinical care centre has conducted a clinical consultation with external parties and provides relevant notes on the response’ or there had been engagement with ‘patient flow’ or non-emergency patient transport (20]).  Although not explained in the judgement I infer that the intention was to make sure that the patient was ready to go, someone was ready to receive them, and consideration had been given to using NEPT rather than an emergency ambulance.

(4)        stamp the ‘authorisation of callouts on F8 screens’ ([12]) (and without explanation I don’t know what that means).

(3)        dispatch ‘R5 and R6 responses, except for cardiovascular and neurological investigations and if it is deemed to be in the patient’s interests to complete the transport for diagnosis…’ ([22]).

What is of interest is Commissioner O’Sullivan’s comments on the Commission’s approach to a request for orders to in effect prohibit industrial action. He sets out the relevant principles at [14]. First, the power to make the orders is discretionary (not mandatory). In deciding whether to make orders the Commissioner must consider ‘the public interest, objects of the Act and the likely effect on the economy of New South Wales’. Importantly he cites Boland J who said, in Bluescope Steel (AIS) Ltd v Australian Workers’ Union (NSW) (2005) 138 IR 324:

Dispute orders are rarely made by members of the Commission. Long experience has demonstrated that most matters can be resolved by conciliation and/or arbitration without resorting to the prospect of sanctions. The making of a dispute order is a serious step given the consequences for contravention. Persons against whom a dispute order is made are bound to take it seriously, especially members, officials and employees of organisations who may be putting in jeopardy the very existence of their organisation.

His Honour then went through the issues with respect to the proposed industrial action. He found that action 1, requiring the Duty Operations Manager to advise staff of roster changes would have any impact on patient safety and therefore he declined to make the orders sought.

Equally with respect to action 3 he said he was not satisfied that ‘stamping of authorisation of callouts on F8 and F9 screens … will have any impact upon patient or paramedic safety’ ([21]).  Finally with respect to action 4, he noted that dispatchers would continue to dispatch an ambulance ‘for cardiovascular and neurological investigations and if it is deemed to be in the patient’s interests to complete the transport for diagnosis’ and so there was no risk to patient health and safety ([22]-[24]).

That left action 2, withholding the dispatch of R3 cases until others had been consulted. He said (at [20]) ‘It was conceded by both of the respondent [sic] witnesses that it was possible that this would lead to a delay in certain dispatching of patient, both R3 and those under the patient thorough NEPT. There is evidence from the respondent that this may well lead to a risk to patient safety.’  Accordingly, he made orders that this action was prohibited and the HSU was to ‘immediately cease organising and refrain from taking [that] industrial action…’

I have previously reported on ongoing disputes between ambulance and the paramedic unions (the HSU and the Australian Paramedics Association) – see

What is interesting about this latest case is the Commissioner’s conclusion ‘that dispute orders are rarely made by members of the Commission’ ([15]) and his focus on patient and paramedic safety in deciding whether to grant those orders.  That may give some guidance to the unions on how to target ongoing industrial action if that is necessary.

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.