In Health Secretary (NSW Ambulance) v Health Services Union NSW & Anor (No 2) [2024] NSWIRComm 18 (28 November 2024) the Health Services Union (HSU), one of two unions representing paramedics in New South Wales, has been criticised by the Industrial Relations Commission over how it reported the Commission’s decision to the HSU membership.  At [8] Vice President Chin explained that in an earlier decision (Health Secretary (NSW Ambulance) v Health Services Union NSW & Anor [2024] NSWIRComm 12) he:

… made urgent dispute orders preventing the Health Services Union NSW (“the HSU”) and its members from taking industrial action that was planned by the union in response to what it claimed was the ongoing failure of Health Secretary, with respect to NSW Ambulance (“NSW Ambulance”) to maintain “full roster maintenance”. The union also alleged that this failure has resulted in adverse health and safety outcomes for paramedics arising from matters such as the inadequate provision of crib breaks and excessive extensions of shift overtime…’

The Commission also urged the parties to make use of the Commission’s powers to resolve a dispute by arbitration.  At [5] Chin J:

… observed that the HSU’s evidence presented at the urgent hearing on the dispute orders touching on the adverse health and safety effects of the existing rostering system “may be highly relevant to any consideration of the merits of the underlying dispute” … I urged the HSU’s advocate to bring evidence justifying its serious allegations about health and safety before the Commission to be resolved peacefully by arbitration; and I made it clear that the Commission is concerned about the union’s serious allegations in this regard.

At [6] Chin J said:

It is clear that the Commission made no findings about the industrial merits of the dispute generally and, more specifically, no findings in respect of the HSU’s allegations about the adverse health and safety impacts of the rostering system. Clearly, these matters are to be determined at the arbitration hearing.

In other words, the Commission recognised the seriousness of the allegations but did not determine if there was merit in those allegations, but the Commission did set out a timetable for a reasonably rapid process to determine the matters and resolve the dispute.

Notwithstanding this the HSU communicated to its members via Facebook ([8]) that ‘The IRC has sided with the Ambulance Executive, and aided and abetted very poor public policy’ and ‘The IRC seemed to accept the evidence that paramedics aren’t getting breaks, and are working dangerously long shifts, but asked ADHSU paramedics to put up with the massive injury rate … for several more months’ ([Schedule 1]).  

When the Commission became aware of this Facebook post orders were made requiring the HSU to come before the commission and to show cause why orders should not be made requiring them to remove their post and publish a correction. The HSU did not respond to the Commission’s ‘show cause notice’ ([12]) nor did it appear when the matter was heard by Chin J.   At [13]-[15] Chin J said:

The union’s Facebook post wrongly implied that the Commission has asked paramedics to continue to “put up with” the adverse health and safety arising from the staffing and rostering system for an extended period of time despite having come to a concluded or favourable view about the veracity of the union’s allegations in this regard. The Commission has done no such thing.

The Commission has instead provided the union with an opportunity to resolve its dispute by justifying its allegations in an arbitrated hearing before the Commission. This should have been abundantly clear to the HSU and its representatives.

The Commission has done so with a relatively compressed timetable designed to test the adequacy of the proposal put forward by NSW Ambulance. The Commission has made it clear that, if practicable, it will make every effort to further compress the timetable to ensure that the matter is dealt with in a timely manner. The Commission invites the parties, including the HSU, to make an appropriate application in this regard.

Chin J identified that the Commission had the power to deal with issues on its own initiative (ie without waiting for an application by one of the parties). In this case the Commission wanted to act because (at [18]-[19]) it:

… is vital to the proper and effective functioning of the Commission’s dispute resolution role under the Act that the major industrial parties and their membership understand the true effect and reasoning behind the Commission’s decisions and orders. It is therefore incumbent on sophisticated and responsible industrial parties in this State, such as the HSU, to ensure that their members have an accurate and faithful understanding of the nature and effect of the Commission’s decisions.

Misleading communications of the kind set out in … Schedule 1 are apt to undermine confidence in the system of peaceful, rational and evidence-based industrial regulation under the Act; and to inflame rather than contribute to the resolution of industrial disputes. The Commission will not tolerate this conduct.

The Commission made orders requiring the HSU to remove the offending Facebook post and to publish a correction that says, inter alia (at [Schedule 2]):

The Commission has not yet had the opportunity to consider and determine whether paramedics are not getting breaks and are working dangerously long shifts. This is to be considered in the upcoming hearing, currently to proceed in March.

The Commission did however acknowledge that evidence of adverse health and safety consequences arising from the existing rostering system may be highly relevant when the Commission considers the merits of the HSU’s case in March.

The hearing dates in March were chosen to … shorten the time it will take to arbitrate the dispute to about 4 months, in circumstances where the HSU said it was concerned the Commission’s processes “will take over 6 months and probably 12” months…

The suggestion in the earlier post that the Commission has “asked paramedics to put up with” injuries for an unnecessary period having found in favour of the union’s allegations about those injuries is wrong and is withdrawn.

Conclusion

The criticism of the HSU, in judicial terms was quite strong. It might reflect the temptation of advocates – whether lawyers or industrial advocates – to too closely associate with their client and their client’s interests.  A ‘sophisticated and responsible’ advocate has to keep an objective distance in order to fairly represent their client before the tribunal and to fairly represent the decision of a tribunal to their client.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

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