Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association [2024] NSWIRComm 3

Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association [2024] NSWIRComm 3

Dispute orders were warranted because the industrial action concerned the same issues already notified by the Association and listed for conciliation before the Commission; the Commission's conciliation and arbitration powers had not yet been utilised; the Association refused to comply with Commissioner McDonald's recommendations; the evidence showed significant actual and likely adverse effects on patient care, essential services, health and safety and the public; and continuing industrial action would be inconsistent with the award dispute resolution clause requiring normal work to continue during Commission procedures.

Jurisdiction
Australia
Judgment Date
09 September 2024
Procedural Posture
Industrial Dispute; Application for Dispute Orders Concerning Threatened Industrial Action / Urgent Arbitration Following Attempted Conciliation and Refusal to Comply With Recommendations
Outcome
Dispute orders and directions made in the terms proposed by the notifier with minor amendment.
Legal Topics
['industrial Disputes' 'dispute Orders' 'threatened Strike Action' 'conciliation and Arbitration' 'public Health System Nurses and Midwives' 'industrial Action']
['employment and Industrial Law' 'industrial Relations'] ['industrial Disputes' 'dispute Orders' 'threatened Strike Action' 'conciliation and Arbitration' 'public Health System Nurses and Midwives' 'industrial Action']

Case Brief

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Procedural Posture

Industrial Dispute; Application for Dispute Orders Concerning Threatened Industrial Action / Urgent Arbitration Following Attempted Conciliation and Refusal to Comply With Recommendations

Legal Issues

  1. 1 ['Whether the Commission should make dispute orders requiring the Association, its officers, employees and members to cease organising and refrain from taking industrial action from 10 September 2024 to 18 September 2024.' 'Whether the threatened State-wide strike action and associated industrial action should be restrained where the underlying wage and conditions dispute was already before the Commission for conciliation.' 'Whether the consequences of the planned industrial action for patient care, essential services, health and safety and the public interest supported the making of dispute orders.']

Ratio Decidendi

Dispute orders were warranted because the industrial action concerned the same issues already notified by the Association and listed for conciliation before the Commission; the Commission's conciliation and arbitration powers had not yet been utilised; the Association refused to comply with Commissioner McDonald's recommendations; the evidence showed significant actual and likely adverse effects on patient care, essential services, health and safety and the public; and continuing industrial action would be inconsistent with the award dispute resolution clause requiring normal work to continue during Commission procedures.

Court Disposition

Dispute orders and directions made in the terms proposed by the notifier with minor amendment.

Orders

  • ["Pursuant to s 136(1)(c) and s 137(1)(a) of the Industrial Relations Act 1996 (NSW), the New South Wales Nurses and Midwives' Association, its officers and employees, and its members employed in the listed NSW Health Entities must immediately take steps to cease organising and refrain from taking industrial action...