Yesterday I reported on a decision by the NSW Industrial Relations Commission to decline some requested dispute orders to end proposed industrial action by paramedic members of the Health Services Union (see More NSW Ambulance industrial action before the Industrial Relations Commission (August 22, 2023).  In that post I quoted Commissioner O’Sullivan who reviewed the legal authorities and said ‘dispute orders are rarely made by members of the Commission’.

That position has been confirmed in another case involving NSW Health and the Health Services Union – Secretary, NSW Health in respect of HealthShare NSW v Health Services Union NSW [2023] NSWIRComm 1085. In this case Commissioner Muir was asked to make orders terminating proposed industrial action by patient transport officers.

The Patient Transport Service had introduced COVID-19 protocols including distinguishing between ‘red’ and ‘green’ transfers. A red transfer was a patient with COVID-19 and one an ambulance was used for a red transfer it could not be used to transfer a non-covid patient. The judgment does not give details on how that process worked but did report that the Health service wanted to remove the distinction between green and red transfers. The HSU wanted to retain them to protect vulnerable patients. The bans proposed by the HSU was that a vehicle and crew used for a ‘red’ transfer could not be used for a ‘green’ transfer for at least 24 hours ([5]).

The parties set out various submissions either as to why the bans should be lifted and the impact they had on patient transport services versus the need for the bans to protect a particularly vulnerable part of the population ie those being transported by the patient transport service.  

The Commission was not being asked to resolve the factual issues but to determine whether it should make an order terminating the proposed industrial action. It declined to do so. At [64] Commissioner Muir said:

It is clear from the decisions of Walton J [in Secretary of the Ministry of Health v NSW Nurses and Midwives’ Association [2022] NSWSC 1178], that the Commission will not readily grant dispute orders. The Commission would need some greater confidence or some greater detail outlining why there is delay in terms of numbers, dollars or time that is not manageable within the scope of the business of HealthShare before it would act to issue a dispute order.

The Commission refused to intervene in the dispute leaving it to the regular dispute resolution processes in the Act, and the parties themselves, to resolve the issues and come to an agreement on how the contained risk of COVID-19 transmission would be managed.

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.