In Health Secretary in respect of NSW Ambulance v Australian Paramedics Association [2025] NSWIRComm 1023 Commissioner O’Sullivan made dispute orders to prohibit proposed industrial action by the Australian Paramedics Association (APA) (one of the sponsors of this blog).

The background is that NSW Ambulance developed ‘the Mental Health Clinician Response Team (‘MHRCT’)’ ([2]). Commissioner Sullivan said (at [5]-[9]) that the MHRCT was:

… part of the Health Secretary response to mitigate any adverse effects that may be occasioned to the provision of mental health services as a result of potential large-scale resignations of psychiatrists in the NSW public health system.

The program that involves a Special Operations Team’s paramedic (‘SOT’) travelling with a Mental Health Nurse (Clinical Nurse Consultant) (‘CNC’) to attend on mental health cases to provide support and treatment to patients in situ.

SOT paramedics are highly trained in risk and safety, crew resource management and are highly experienced in multiagency partnering to ensure safety. They are able to respond to the highest risk and difficult patient cases, including patients located in remote areas, at the base of cliffs, in confined spaces or flood waters.

The MHCRT program is a variation from an existing program called Mental Health Acute Assessment Team (‘MHAAT’), which had been operating in Western Sydney since 2013. The MHAAT program constituted a mental health clinician and a NSW Ambulance paramedic would attend on patients out of hospital, who were experiencing mental distress out in the community.

It is intended that the MHRCT program will operate in addition to the MHAAT program.

After negotiations failed to resolve issues between NSWAS and the APA, the union wrote to the Ambulance Service (at [20]) advising that:

… the following bans will commence from 7 May 2025:

  1. Refuse to participate in or deliver any training which supports implementation of the MHCRT.
  2. Decline changes to posted rosters to support implementation of the MHCRT.
  3. Decline changes to work location to support implementation of the MHCRT.
  4. Refuse to relocate any SOT vehicles out of their home stations for the purpose of facilitating the MHCRT.
  5. Further, any members partnered with a specialist mental health nurse as part of the MHCRT program should perform a dynamic risk assessment prior to leaving station. If you determine that it is unsafe to take the mental health nurse out with you on a vehicle, you should leave them at station.

The Ambulance Service approached the Industrial Relations Commission seeking orders to prohibit the proposed industrial action.  The parties agreed (at [21]) that one of the relevant legal principles to be applied by the Commission was stated by Boland J in Bluescope Steel (AIS) Ltd v Australian Workers’ Union (NSW) (2005) 138 IR 324, that is:

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.

Even so, the Commission has the discretion to make orders where required. The Ambulance Service (at [25]):

… identified the following two primary bases upon which the Commission should exercise its discretion to make orders:

  1. That there is a potential risk to patient safety should the orders not be made; and
  2. The proposed action is contrary to objects of the IR Act and obligations of parties to utilise the Commission’s processes, including to bargain in good faith and there is a public interest that best efforts are made to resolve disputes, not to prolong them.

The APA argued (at [26]) that:

… the Commission should not exercise its’ discretion to make dispute orders for two principal reasons:

  1. The MHCRT program will expose SOT’s and the CNC Nurses to unacceptable risks to their health and safety; and
  2. There is no logical reason for the introduction of the program, particularly when there are other options such as extending the MHAAT program.

Commissioner O’Sullivan made the orders sought by the Ambulance Service. He said (at [28]-[32]):

Firstly, I am not satisfied that the evidence adduced by the notifier is sufficient to properly buttress a finding that the industrial action will pose a risk to patient safety.

Secondly, in relation to the respondent’s concerns regarding the safety of SOT’s under the MHCRT program, I note that the respondent has not adduced any evidence from any person who is or has been SOT to provide a proper basis as to the concerns expressed by the respondent.

It is also important to observe that approximately 50% of SOT’s are members of the Health Services Union (the “HSU”) and the HSU has not expressed any concerns regarding the safety of the MHCRT program. Furthermore, the … [New South Wales Nurses and Midwives Association], whilst acknowledging that there is a potential risk, they are satisfied that sufficient safeguards have been provided to agree to the implementation of the trial.

Accordingly, I am not satisfied that the MHCRT program constitutes a sufficient risk to the health, safety and wellbeing of members of the respondent such that I should not exercise my discretion to make the orders.

As to the contention that there is no logical reason for the introduction of the MHCRT program, even if this were correct, which I am not, it is not one which would operate as barrier to the exercise of the Commission’s discretion.

His Honour also took the view that the trial should be allowed to operate. To prohibit the trial would impede the resolution of a dispute with the Nurses and Midwives Association and would also stop the parties working to address and resolve their concerns during the trial.  (Although not stated by the Commissioner, one might infer that is what a trial is for, to see how a proposal works).  His Honour agreed to make orders but only for the proposed trial period that is until 5pm on 13 July 2025.

His Honour made orders (at [42]) that the APA ‘and its members employed in the Ambulance Service of NSW (NSW Ambulance) … must not take the industrial action’ nor ‘induce, advise, authorise, support, encourage, direct, aid or abet members to organise or take industrial action’ described in Annexure A as:

Any ban, limitation or restriction affecting the performance of work, or the offering or acceptance of work adopted in connection with industrial disputation concerning the Notifier’s implementation of the Mental Health Clinical Response Team (MHCRT Program), including

  1. Refusal to participate in, or to deliver any training which supports, the implementation of the MHCRT Program.
  2. Without the provision of a proper reason, declining or refusing to accept changes to posted rosters to support implementation of the MHCRT Program.
  3. Without provision of a proper reason, declining or refusing to accept changes to work locations to support implementation of the MHCRT Program.
  4. Refusing to relocate any Specialist Operations Team (SOT) vehicles out of their home stations for the purpose of facilitating the MHCRT Program.
  5. Refusing to partner with a Mental Health Clinical Nurse Consultant (Mental Health CNC) or to attend with Mental Health CNCs mental health cases in the community and provide critical care to urgent mental health needs of patients in the community as part of the MHCRT Program.

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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.