The two cases, discussed below, were both decided at the end of February and dealt with urgent applications for orders to terminate planned industrial action by the Health Services Union. The Industrial action either has, or would have, already come and gone but it is, I hope, still worth reporting on them.

The first case is Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2024] NSWIRComm 1014 (27 February 2024) (Commissioner O’Sullivan). In this case the Ambulance Service sought orders to terminate planned stop work meetings that were scheduled for        7am on 28 February.  The proposed impact was (at [5]):

… that those members of the Respondent union who are rostered to work will not attend to incidents which are said to be or prioritised as priority 2A and priority 2B. There is also evidence before the Commission that it would extend to other incidents to be booked into the ambulance officers’ CAD system, which are referred to as categories R3, R4, R5, R6 and R7.

The Ambulance service argued that orders should be made to prohibit the to avoid ‘a delay to members of the public seeking … assistance’ ([8]). The service gave examples of delays during other stop work meetings and a case example of a person whose condition got demonstrably worse during the delay ([8]-[10]).

The union referred to an Ambulance Service work instruction that indicated that a response to a 2A or 2B case was considered delayed if it was longer than 120 minutes.  At [14]:

The [Union’s] submission was that effectively an inference can be drawn that if the work instruction provided that if there was no need for a report or action to be taken by the supervisors for a delay in respect of 2A and 2B of up to 120 minutes, then, in circumstances where the meeting only takes place in 60 minutes, then it is not a delayed response and it cannot fall into the category of a response that would attract the public interest and, therefore, the granting of the orders.

The Commission refused to make the orders sought by the Ambulance Service. Commissioner O’Sullivan said (at [17]).

I am not satisfied, in the circumstances, that the granting of the orders would be in the public interest. In reaching this conclusion I note that during 2023 there were 24 stop work meetings held by the Respondent. Following from those 24 stop work meetings, I note that at no stage there was there any evidence that the Notifier had raised any concerns with the Respondent union.

Two days later the parties were back before Commissioner O’Sullivan in Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2024] NSWIRComm 1016 (29 February 2024). This was again an application by the Ambulance Service to prohibit further industrial action that had been agreed to at the meetings held on 28 February and the subject of the decisions discussed above.

The dispute involved the ambulance rosters and the practice of requiring ambulance officers to relocate to another station to create a two-person crew rather than filling vacancies with casual or overtime staff.  At [8] the union led evidence that:

…

b) Where absences aren’t required to be backfilled, there will inevitably be less crews on the road due to absences. Less crews on the road mean that there are less paramedics to respond to jobs. This will naturally lead to a lower level of coverage for the community, and potentially delays or adverse patient outcomes.

c)   Less crews on the road naturally means that existing crews will have to respond to more jobs. This results in a lower likelihood of those crews being able to take their crib break entitlements. This also results in a higher likelihood of those crews being required to perform end of shift overtime. In my experience, this greatly contributes to fatigue and negatively affects paramedic welfare…

The members of the HSU had proposed ‘a ban on the movement from the station they are rostered on at to another station, to work a shift or part of a shift’ ([9]).  Members of the HSU would agree to move to the other station if (at [10]) the ambulance service ‘has been able to fill that gap at the other station through a particular means, be it by use of part time casuals, or in the alternative, if there has been proof that the role has been open to persons to pick up through the manner of overtime for a period of one hour’.  The Commissioner said (at [11]):

In those circumstances, the evidence of Mr McKenna and questioning by myself was that that adds another layer to the filling of the gap at any particular station which has the potential to delay the delivery of services by NSW Ambulance to patients. In particular, Mr McKenna noted in his evidence that this same form of ban had been in place in the Mid North Coast for some time and he gave the following four specific examples of where there had been a delay occasioned, which he alleges are a direct result of the imposition of the bans…

The Commission reiterated(at [13]) that it should be slow to make dispute orders (see More NSW Ambulance industrial action before the Industrial Relations Commission (August 22, 2023) and NSW Patient Transport Service industrial action (August 23, 2023)).  At [14]-[16] Commissioner O’Sullivan said:

The submission of the NSW Ambulance is that … it is in the public interest that the orders are made. It was submitted, that the effect of not making the orders is the potential, as evidenced by those four examples set out earlier in the decision, that the bans create a risk to the health, safety and wellbeing of patients.

The Commission was moved by four specific examples ([11]) which demonstrated the impact of the bans on the delivery of time critical care.  The Commission made orders requiring the HSU to cease the industrial action and to communicate the effect of the orders to the union membership. The orders are to remain in place until 5:30pm on 29 May 2024.

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.