Self-interest over patient safety – when dispute orders are needed to quell an industrial tantrum
Strike action is a common strategy of unions to put pressure on employers. However, it’s not a blunt instrument that can be used at the expense of patient welfare; broader considerations do, and should, come into play.
If participants are not conscious of the broader considerations, they may be told that they can’t proceed with strike action, which is what happened to the NSW Nurses and Midwives Association (NSWNMA). We explore this case, where Bartier Perry acted for NSW Health, below.
Pay me more
NSW Health has been in long-running pay negotiations with the NSWNMA.
During negotiations, the NSWNMA took matters into its own hands when, despite having invoked the Industrial Relations Commission’s processes, it organised, and encouraged, its members to engage in strike action when it wasn’t getting what it wanted.
Its conduct was described by Taylor J as a “matter of some concern”: Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association [2024] NSWIRComm 4 at [12].
Parties cannot come to the Commission, invoke its processes, and then have a tantrum when they do not get their way. The Commission has powers to intervene where industrial action is inappropriate.
What was threatened?
On the afternoon of Thursday 5 September 2024, the NSWNMA published a statement on its website that there would be a strike from 7am to 7.30pm the following Tuesday, 10 September. This was in response to pay negotiations, and despite conciliation being scheduled for 18 September.
There wasn’t much time. NSW Health had to act fast.
What could be done?
The Commission has broad powers to deal with industrial disputes under Ch 3 of the Industrial Relations Act 1996 (IR Act). The first step is conciliation. On Friday 6 September, the day after the NSWNMA announcement, NSW Health called on the Commission to urgently deal with its dispute in relation to the planned strike.
Commissioner McDonald in Health Secretary, Ministry of Health v NSW Nurses and Midwives' Association [2024] NSWIRComm 1056 recommended that the NSWNMA and its officers, employees and members refrain from organising and taking any industrial action from 10 to 18 September, the date of the scheduled conciliation.
On Saturday 7 September, the NSWNMA decided it would not comply with the recommendation.
The only option for NSW Health was to move the Commission for dispute orders pursuant to section 137 of the IR Act. They include the ability to order that someone cease or refrain from taking industrial action. There are consequences for contravention.
Whether to make a dispute order is at the discretion of the Commission. It is therefore incumbent on the party moving the Commission to convince it that such an order is necessary. This is not always easy, as illustrated when the Commission stated, 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.
Under the IR Act, the Commission must take into account the public interest. Mandatory considerations outlined in section 146(2) in that regard include:
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the objects of the IR Act
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the economy of NSW and effects of the decision in that regard
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in relation to the public sector, the fiscal position and outlook of the Government and effects of the decision in that regard.
This has been said to involve very broad considerations, beyond those mandated by section 146: Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association [2022] NSWSC 1178 at [50]. The Commission has accepted that this consideration extends to the health and welfare of the citizens of NSW.
In terms of the importance of the ability to make the orders, it was stated in Bluescope:
The ability, in arbitration, to order industrial action to cease—to enable the parties to resolve the dispute efficiently and fairly under the auspices of the Commission rather than leaving the matter to be determined by the economic and industrial power of the participants without reference to the public interest — is one of the most important features of the system created by the Act.
It was with those principles in mind that we were tasked with convincing the Commission that orders should be made here.
Nurses told it was a no go
We were successful at convincing Chin J that the dispute orders were necessary in these circumstances in Health Secretary, Ministry of Health v NSW Nurses and Midwives' Association [2024] NSWIRComm 3, on the following grounds:
- The issues underlying the industrial action were, in effect, the same as the matters already before the Commission for imminent conciliation, and the arbitral powers of the Commission had not yet been utilised
- The conduct of the parties before the Commission, including the NSWNMA’s refusal to comply with the recommendation of the Commission
- The convincing evidence led by NSW Health of the actual and potential impacts of the strike, which included surgeries and treatments needing to be cancelled or postponed
- The status quo provisions of the Public Health System Nurses’ and Midwives’ (State) Award 2023.
Justice Chin ordered that the NSWNMA and its officers, employees and members refrain from organising and taking any industrial action from 10 to 18 September.
There were also associated orders and directions to give effect to that.
Conclusion
When the matter came before Taylor J on 18 September 2024, he made the following comments in Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association [2024] NSWIRComm 4:
[16] Industrial action does not just cost nurses pay. It has, as Chin J identified, real world effects on patients and the public. Patients can have waited significant periods of time for their elective surgery. Those are periods of time when they can be in pain. Their families have been supporting them. Their families are also affected by industrial action. It is not in the public interest that industrial action be taken.
[17] The way to resolve these issues is to utilise the powers of the Commission. But can I say this, the Commission does not arbitrate changes in pay and conditions whilst industrial action is occurring.
These proceedings serve as a sound warning for unions and industrial associations: they can’t have it both ways. They can’t call on the Commission to assist but then throw the toys out of the cot when things don’t move as swiftly as they would like.
Actions have consequences, and parties before the Commission would be well advised to observe and respect its processes.
For employers under threat of industrial action, swift action is required, and there are options to help limit its impacts.
Authors: Darren Gardner, James Mattson and Andrew Yahl