Director General, NSW Department of Health v New South Wales Nurses Association (No 2) [2010] NSWIRComm 163

Industrial Relations Commission of New South Wales

CITATION: Director General, NSW Department of Health v New South Wales Nurses Association (No 2) [2010] NSWIRComm 163

PARTIES: Director General, NSW Department of Health (Notifier) New South Wales Nurses Association (Respondent)

FILE NUMBER(S): IRC 1330 of 2010

CORAM: Boland J President

CATCHWORDS: INDUSTRIAL DISPUTE - Public sector - Nurses and midwives employed in public health system - Claim for improved wages and working conditions including claim that there be a fixed ratio of nurses to patients - Negotiations between Nurses Association and Department of Health break down - Nurses Association call for stoppage of work - Commission Recommendation that stoppage of work not proceed - Nurses Association declines to accept Recommendation - Application by Director General of Health for dispute orders - Application granted

LEGISLATION CITED: Industrial Relations Act 1996 s 130 s 135 s 136 s 137

CASES CITED: Director General, NSW Department of Health v New South Wales Nurses Association [2010] NSWIRComm 160

HEARING DATES: 19 November 2010

DATE OF JUDGMENT: 22 November 2010

Mr I Taylor of counsel and Mr A Searle of counsel with Ms A Owens (Notifier) LEGAL REPRESENTATIVES: Ms C M Howell of counsel with Ms R Kassis and Ms L McDonald (Respondent)

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BOLAND J, President

Monday 22 November 2010

Matter No IRC 1330 of 2010

DIRECTOR GENERAL, NSW DEPARTMENT OF HEALTH v NEW SOUTH WALES NURSES ASSOCIATION

Notification of an industrial dispute by the Director General, NSW Department of Health relating to proposed industrial action by nurses

DECISION

[2010] NSWIRComm 163

1 On 18 November 2010 the Director General, NSW Department of Health notified the Industrial Relations Commission of the existence of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 ('the Act') in relation to a planned stoppage of work on Wednesday 24 November 2010 by nurses and midwives employed in the public health system. The background to the notification is set out in a Statement and Recommendation of the Commission: Director General, NSW Department of Health v New South Wales Nurses Association [2010] NSWIRComm 160. 2 In that Statement and Recommendation the Commission noted: [2] The stoppage has been called by the New South Wales Nurses Association. The plan is that on 24 November nurses and midwives will provide life preserving services at all times but will reduce services to current night duty staffing levels between 7.00 am and 5.00 pm. A Special General Meeting of the Association has been scheduled for 11.30 am on Wednesday at Sydney Olympic Park Sports Centre, Homebush to enable nurses and midwives to hear a report from the Association's officers on the current state of negotiations with the State Government and to endorse the 'next major steps in the campaign'.

[3] The Association claims that its industrial action is a last resort in response to the State Government's refusal to implement minimum nurse to patient ratios claimed to be necessary by the Association and the Government's refusal to provide a pay and conditions offer 'without unfair strings attached'. The Association has called its campaign ' 1 nurse: 4 patients - The way to safe patient care '.

[4] There have been ongoing negotiations between the Association and the Department of Health for some time regarding the terms of a new award, the nominal term of the existing award having expired on 30 June 2010. Indeed, since May 2010 the parties have met 13 times. The Association had put forward a number of claims including general improvements to wages and conditions, a new 'experienced nurse' classification and the claim relating to nurse to patient ratios. The Department made a counter offer in October 2010. Obviously, the negotiations between the parties were unsuccessful. 3 The Commission proposed an expedited process for addressing the industrial issues between the parties, but made the process conditional upon the stoppage being called off: [12] In so far as the planned stoppage is concerned, in light of what I have said about expedition, it becomes unnecessary, on any objective criteria, for it to proceed. The fact is it will cause great inconvenience to patients and their families, will result in lost wages that nurses can ill-afford, especially at this time of the year, will put at risk Commonwealth monies that are tied to waiting lists, will disrupt unnecessarily the public hospital system generally and will not make a jot of difference to how the Association's claim is progressed except that if the stoppage does proceed, the Commission will not go out of its way to afford expedition and the matter will take its normal place in the Commission's list. 4 The Commission made the following recommendation and direction: [13] The Commission strongly recommends that the Association by its officers, employees and members employed in the public health system by the Director General of Health refrain from taking industrial action on Wednesday, 24 November 2010 and that the parties redirect their energies towards achieving an expedition. Further, I direct the Association by its officers and employees to take all reasonable steps to ensure that the employees and members of the Association are made aware of my recommendation. [14] The parties are to report their positions to me regarding this Statement and Recommendation at 11.00 am tomorrow, 19 November 2010. Liberty to apply on short notice. 5 On 19 November, the Commission was advised that the Association had convened a meeting of its Council to consider the Commission's Recommendation at 1.00 pm. In the meantime, counsel for the Director General foreshadowed that in the event the stoppage was to proceed, the Director General would seek a certificate of attempted conciliation pursuant to s 135 of the Act and upon the issuance of that certificate would seek orders from the Commission under s 137(1)(a) of the Act. The Commission adjourned until 1.00 pm. 6 In reporting back to the Commission on the outcome of the Council's deliberations, counsel for the Association advised the Commission that the Association had given serious consideration to the Commission's Recommendation but had determined not to accept it and that the stoppage would proceed as planned. The Director General immediately sought the certificate and orders earlier foreshadowed. The certificate was issued pursuant to s 135(7) of the Act and dispute orders were made together with appropriate directions. The Commission indicated it would provide reasons later. These are those reasons. 7 In support of the applications for a certificate and dispute orders, the Director General tendered a statement of Dr Tim Smyth, Deputy Director General, Health System Quality, Performance and Innovation, Department of Health. Dr Smyth in his statement described the impact of the strike action on the public health system and in particular its effect on planned surgery and emergency surgery. Dr Smyth indicated that the impact of the strike would not only be felt on Wednesday 24 November but in the days preceding and the days following. He also stated that some 2,000 patients whose planned surgery would have to be cancelled would face deferral of their surgery until next year. 8 Dr Smyth indicated that the Department would need to notify on 19 November those patients due to have planned surgery on 24 November because of work, travel and family arrangements that were made by such patients in anticipation of the surgery so that they could cancel such arrangements. Surgeons, anaesthetists and suppliers would also need to be informed. 9 Dr Smyth was required for cross-examination. Counsel for the Association sought to minimise the impact of the stoppage and put to Dr Smyth that the impact of the stoppage could not be known by the Department because it would not be aware whether nurses in all facilities would participate in the stoppage or for how long they might stop work. So that there may be sufficient nurses on duty to avoid disruption to emergency surgery and to planned surgery. 10 Dr Smyth was adamant in his evidence that given that only night shift staffing would be available on 24 November, it would be unsafe to proceed on the assumption that there would be sufficient nurses available to enable planned surgery to proceed. Dr Smyth maintained his view that patients would be required to wait longer for critical surgery and that would have a disruptive flow on effect in respect of both planned and emergency surgery. 11 I have no proper basis for rejecting Dr Smyth's evidence. Certainly there was no cogent evidence contradicting Dr Smyth. 12 It seems to me to be a matter of plain commonsense in any event that if staffing levels are to be reduced to 'night duty staffing levels at each facility for the period generally between 7am and 5pm' on 24 November it is inevitable that disruption and inconvenience will be caused to the public health system unnecessarily. 13 The Director General also tendered the witness statement of Annie Owens, Director, Workplace Relations and Management Branch with the Department. Ms Owens' statement dealt with the history of the negotiations between the Department and the Association regarding the Association's claims and the decision of the Association to take industrial action. Ms Owens was not required for cross-examination. 14 For the Association, counsel tendered the statement of Ms Rhonda Kassis, Industrial Officer for the Association. Ms Kassis' evidence went into some detail about the failure of the reasonable workloads clause in the Public Health System Nurses and Midwives (State) Award to reduce excessive and unreasonable workloads on nurses and the history of the development of the claim regarding nurse staffing ratios and skill mix, its importance to nurses and the failure of the Department to respond to the claim in a reasonable way. Ms Kassis also gave evidence about the Association's perspective on the impact of the stoppage, suggesting that patient care would not be compromised. Ms Kassis was required for cross-examination. Consideration 15 It is most regrettable that the situation has deteriorated to the point where the Commission is being asked to make dispute orders. The Commission in the Statement of 18 November 2010 was critical of the parties for failing to involve the Commission at an early stage of their negotiations. The focus has now turned towards the completely unproductive path of sanctions for industrial misconduct rather than resolving the dispute that lies at the heart of the differences between the parties. 16 The Commission recognises the genuine concern reflected in Ms Kassis' evidence that the Association and its members have in relation to nurse/patient ratios and the frustration it has experienced in not making progress in its negotiations in that respect with the Department. The Commission also recognises the Association's claim regarding nurse/patient ratios has very significant implications for the public health system and will not be resolved easily.

17 Nevertheless, it was always open to either party, or the Association in particular, given its frustration in not being able to make progress with the Department, to approach the Commission for assistance, but no approach was made. It is a weak excuse to say that the Department would only maintain its opposition in Commission's proceedings and that is why no application to the Commission was made. It completely overlooks the Commission's extensive conciliation and arbitration powers. It was submitted by counsel for the Association that the Association wanted the nurse/patient ratio dealt with quickly and it seemed to be suggested an arbitration on such a complex issue would be interminably long, citing the Department's alleged penchant for drawn out arbitration proceedings. 18 Whether the nurse/patient ratio issue needed to be subject to arbitration is something the Commission has not had an opportunity to even consider. But the Association obviously believes that direct industrial action is a short cut to achieving its claims. Whether or not that is right, the Association could have been under no misapprehension about the Commission's attitude. The Commission could not condone industrial action when there is a legislated system of conciliation and arbitration in place for resolving industrial disputes, when it is the Commission's duty to apply that system, when the Association has refused to engage that system and when the industrial action would disrupt the public health system for no good reason. 19 Additionally, the Commission indicated in its Statement of 18 November that it was prepared to expedite dealing with the Association's claims first by conciliation, but if that proved unsuccessful, by arbitration. The Association expressed concern at the prospect of drawn out arbitration proceedings. That is also a concern of the Commission, not only in respect of cases involving nurses, but the public sector generally and parties can expect much tighter case management in future.

20 The first question was whether the Commission should issue the certificate of attempted conciliation. Section 135(4) of the Act provides: When determining whether to issue a certificate of attempted conciliation, the Commission must consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally. In particular, the Commission must give urgent consideration to the effect of industrial action in connection with a demarcation dispute. 21 Section 135(6) provides: The Commission must, without delay, issue a certificate of attempted conciliation on the application of any such person if the person satisfies the Commission that there is no reasonable likelihood that the dispute will be resolved by conciliation. 22 Section 135(7) provides: The Commission must, without delay, issue a certificate of attempted conciliation if the Commission decides that industrial action or duress necessitates the exercise of its arbitral powers. 23 In view of the disruption and inconvenience that will be caused to the public health system and the urgent need to notify patients that surgery planned for next Wednesday 24 November is to be cancelled, I took the view that a certificate should be issued to allow the exercise of the Commission's arbitral powers. 24 It should also be apparent from what I have said that I was satisfied dispute orders should issue. The Association has been a very responsible player in the industrial relations system of the State. On this occasion it has taken steps to ensure that no patient's life will be placed at risk. But despite counsel's attempts to play down the effects of the strike on the public health system, it is evident there will be considerable disruption. I am able to accept there may be public sympathy for the nurses' claims. I would not imagine, however, there would be much sympathy from the hundreds of patients who have been waiting months for their surgery for such operations as knee or hip replacements, heart and cancer surgery and who will now have to wait perhaps for months longer, or from women who may be forced to wait longer for a caesarean section because of the shortage of operating theatres, in circumstances where there was a very clear path open to the Association to have its claims dealt with quickly and the Association refused to follow it. 25 I confirm the orders made on 19 November as follows: A. Pursuant to s 136(1)(c) and s 137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders: 1. The NSW Nurses Association by its officers, employees and members employed in the public health system by the Director General of Health are hereby ordered to refrain from taking industrial action in connection with the Association's current claim for increased wages and improved working conditions in the Public Health System Nurses and Midwives (State) Award and in connection with the Association's claims regarding Nurse Ratios and Skill Mix. 2. The NSW Nurses Association, its officers, employees and members employed in the public health system by the Director General of Health are hereby ordered to cease and refrain from authorising, organising, supporting, encouraging or inciting industrial action, for a period of one month in connection with the Association's current claim for increased wages and improved working conditions in the Public Health System Nurses and Midwives (State) Award and in connection with the Association's claims regarding Nurse Ratios and Skill Mix. B. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, the Commission makes the following directions: 1. The NSW Nurses Association and its officers are hereby directed to take all reasonable steps to ensure that the employees and the members of the NSW Nurses Association comply with orders A1 and A2, including notifying its members of the said orders by posting the Orders in a prominent position on its website no later than 19 November 2010. 2. Service of orders A1 and A2 and direction B1 may be effected by sending a facsimile copy to the NSW Nurses Association or by handing a copy of these orders and directions to an officer or employee of the NSW Nurses Association by 4.00 pm on 19 November 2010. C. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, the Commission makes the following direction: 1. These orders and directions shall take effect from 4.00 pm on 19 November 2010 and shall remain in force for one month unless, on formal application, they are varied or rescinded in the meantime. _____________________________

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