DISPUTE RE NEGOTIATIONS FOR REPLACEMENT INDUSTRIAL AGREEMENT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Department of Health

APPLICANT

-v-

Australian Nursing Federation, Industrial Union of Workers Perth

RESPONDENT

CORAM Senior Commissioner R Cosentino

DATE WEDNESDAY 23 NOVEMBER 2022

FILE NO/S C 40 OF 2022

CITATION NO. 2022 WAIRC 00798

Result Interim Order issued

Representation

Applicant Mr R Andretich and Mr J Carroll of counsel

Respondent Ms B Burke of counsel

Interim Order

WHEREAS on 4 November 2022, the applicant, the Department of Health, filed an application under s 44 of the Industrial Relations Act 1979 (WA) (IR Act) for a compulsory conference to seek the assistance of the Commission to progress negotiations for an industrial agreement to replace the WA Health System - Australian Nursing Federation ‑ Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses ‑ Industrial Agreement 2020;

AND WHEREAS the Department of Health is now seeking interim orders under s 44(6) of the IR Act to stop industrial action planned for 25 November 2022 from occurring;

AND WHEREAS the Commission has had regard to the following matters in determining the Department of Health’s application:

1. The grounds for the application for a conference and background facts, including the details of the Department of Health’s Offer for a replacement agreement made on 15 November 2022, are set out in Order [2022] WAIRC 00792.

2. Since the Order was made, the Australian Nursing Federation, Industrial Union of Workers Perth (ANF) foreshadowed coordinating a ‘one day strike at all WA Public Health workplaces across the state’. This was communicated to members on 17 November 2022, before the Offer was formally rejected by the ANF, and before the ANF had formalised what claims or demands would be advanced by taking industrial action.

3. On 22 November 2022, the ANF formally rejected the Offer made by the Department of Health on 15 November 2022. On the same day, the ANF publicly announced that it is coordinating industrial action for 25 November 2022. It advised the Commission the industrial action would involve:

(a) a state-wide strike across all Western Australian public health services;

(b) whereby employees will be called on to stop work and not attend work between 7.00 am and 9.00 pm on 25 November 2022;

(c) the industrial action will include High Dependency Units, Paediatric Wards, Community Clinics, Mental Health Clinics, operating theatres for Category 2 and Category 3 elective surgeries, and ongoing treatment regimes;

(d) the industrial action will exclude Emergency Departments, Intensive Care Units, Critical Care Units, labour wards, Neonatal ICU, Theatres and Post Anaesthesia Care Units but only for Category 1 elective surgery, and urgent or ‘essential’ clinic and outpatient services;

(e) night shift staffing levels will be maintained; and

(f) employees will be invited to board buses arranged by the ANF to transport them from public hospitals to Parliament house to attend a rally.

4. The ANF informed the Commission that the planned industrial action is in support of a claim by Employees for a 5% increase in the base rate of pay across the board for employees covered by the proposed replacement agreement in each year of the proposed replacement agreement, inclusive of any new allowances.

5. The ANF has confirmed that this claim became the ANF’s formal position on 22 November 2022 after the results of a ballot of members, despite the industrial action being foreshadowed before 22 November 2022.

6. The ANF informed the Commission that no other claims are made, and the terms of the Offer are otherwise acceptable.

7. The Commission is satisfied in these circumstances that the planned industrial action is ‘industrial action’ as defined by s 7 of the IR Act.

8. At the conference held on 22 November 2022, the ANF stated that the planned industrial action would be called off if the Department of Health increased the wages component of the Offer in accordance with paragraph 4;

9. The Department of Health advised that time was needed to consider the ANF’s request, and a response could not be provided by 25 November 2022. The Department of Health requested the ANF defer its planned industrial action to allow the ANF’s demand to be considered, but the ANF refused that request.

10. The ANF agreed at the conference held on 22 November 2022 to provide the Department of Health with written confirmation of the details of the planned industrial action, concurrently with those details being provided to its membership on the evening of 22 November 2022. It did not do so until after the commencement of a further conference for the purpose of determining this application for interim orders, that is, less than 42 hours prior to the planned industrial action.

11. At the conclusion of the conference held on 22 November 2022, the Department of Health sought orders to prevent the planned industrial action on the grounds that:

(a) there is a serious and significant risk that the planned industrial action will adversely impact patient and nurse safety;

(b) the planned industrial action will almost certainly compromise the quality of patient care and result in poor clinical outcomes;

(c) there is a serious and significant risk that the planned industrial action will cause total system disruption to the WA Health System;

(d) such industrial action will place additional strain on an already stretched public health system;

(e) to the extent that such action adversely impacts the safe, effective and efficient delivery of public health services, it will, in turn, cause a deterioration in the industrial relations between the parties; and

(f) in the circumstances, the taking of industrial action is an act of bad faith.

12. The Department of Health’s application for interim orders was heard in conference on 23 November 2022. The Department of Health provided the Commission with evidence and documents which:

(a) substantiate its claims that staff absences are higher than usual for reasons including the current industrial action, staff furloughing due to COVID-19 and general sickness;

(b) demonstrate that while Emergency Departments, Intensive Care Units, Labour Wards, etc. may not be included in the planned industrial action, industrial action in other areas will have snowballing effects, or cause blockages in the flow of patients, delays in access to treatment pathways and specialist or expert care, cancellation of elective surgeries, and resulting impacts on patient wellbeing and health outcomes;

(c) demonstrate that the planned industrial action will potentially seriously and adversely impact vulnerable members of the community who rely upon the public health system. For example, persons having mental health crises may be unable to access mental health clinics, and instead be forced to attend Emergency Departments ‑ an environment known not to be conducive to optimal management and treatment of mental health conditions;

(d) demonstrate that the planned industrial action will mean that elective surgery will need to be cancelled, and the WA Health System will need to focus on emergency care only, with more limited capacity to deal with emergency care and the prospect of poor clinical outcomes.

(e) demonstrated that the industrial action will have impacts on those nurses who remain at work, either by choice, by limitation, by adding to their workload and responsibilities; and

(f) demonstrated that while some steps can be taken by the Department of Health to manage staff absences, many such steps are practically precluded by the lack of notice it has received about the scope of the planned industrial action, and the fact that the industrial action will occur throughout that state at the same time. In particular, the state‑wide, concurrent action means that the effects cannot be mitigated by collaboration through the state operation centre, and intensive care, cardiac, trauma, maternity and other high acuity patients cannot be diverted to other hospitals. Further, the state‑wide nature of the industrial action removes the ability to deploy agency staff and assistants in nursing, as the availability of agency staff is inadequate to cover large absences across the whole system.

13. The ANF opposes interim orders being made to stop or suspend the industrial action. It denies that the taking of industrial action is an act of bad faith. It also says that the impacts of industrial action on patient health and safety can be adequately managed because:

(a) regular night shift staffing levels will be maintained;

(b) high risk areas such as Emergency Departments and Intensive Care Units are excluded from the industrial action;

(c) there will be other staff such as doctors, enrolled nurses, physiotherapists, social workers, speech therapists and other allied health professionals available on the day of the planned industrial action who can respond to clinical needs that arise and perform those duties that would ordinarily be performed by nursing staff by deferring their other duties;

(d) employees can choose not to take industrial action;

(e) employees and will put patient safety first;

(f) employees will ‘self manage’ to ensure sufficient staff remain at work to ensure patient safety; and

(g) nurse managers with recent clinical experience can defer management meetings and instead step in and perform bedside duties.

14. The ANF provided the Commission with a document headed ‘ANF Strike Guide to Members’. It says this document sets out the scope of the industrial action and the provisions that are made for ensuring patient safety. At the time of the conference, the document had been uploaded to the ANF’s system for email distribution to be issued to members. The Strike Guide states:

ANF Strike Guide to Members.

November 25 – 7am to 9pm

What are the staffing levels on the day of the strike?

The regular night shift staffing levels.

What about Operating Theatres and PACU’s – Staffing levels to allow for Category 1 cases only. Decisions to be made by ANF members at a local level and contact the ANF for advice where required.

What areas may be excluded from the strike?

ICU, CCU, NICU, ED and labour wards – but decisions are made by ANF members at a local level based on clinical indications.

What about clinics and outpatients

Staffing to allow for essential appointments only.

How do to notify management?

The first thing to do is work out how many staff you require in your ward/unit or area to maintain night shift staffing levels. Then provide the names of those who will be staying and those who will be going to your Manager and we recommend this is done on the day before the strike at your hospital.

Are there any consequences for those going on strike?

You cannot be disciplined or lose your job for participating in the industrial action if you are a member of the ANF.

Will I still be paid if I am on strike?

The hospital will likely dock your wages, however, the ANF will provide a strike pay subsidy of $150 for any member (who has been a member for at least six months) who has their pay docked for going on strike during the rolling stoppages.

What happens if I am sick that day?

Then you notify your manager in the usual way and you would be paid sick leave for the day.

Can senior nursing/midwifery staff be advised they are not allowed to strike?

No one can be told not to strike. ANF members are responsible and will ensure there is an appropriate skill mix for the morning shift and the afternoon shift.

What about Community Nurses?

You are included in the strike action too with only essential work exempt.

Can I be sent to another area?

ANF members are not to be sent relieving to another area on the day of the stoppage.

15. In my view, the Strike Guide does not provide satisfactory assurance that the planned industrial action will not have serious and significant risks to public health and safety. In particular:

(a) It provides for members to contact the ANF for advice on decisions about staffing levels for Category 1 Operating Theatres and PACU’s. The ANF told the Commission it would have a helpline staffed by industrial officers to provide such advice. Those industrial officers are not qualified to, and will not provide advice on clinical matters. In other words, there is no protection to ensure staffing levels are safe where ANF members are unable to make a decision at the local level. Further, in circumstances where the Strike Guide contemplates decisions about staffing levels being made the day before the planned industrial action, it is unclear how a local level decision can be made about staffing levels where an indication or need for surgery or treatment is unplanned or arises in the course of the industrial action.

(b) The Strike Guide does not specify what, if any, involvement in the industrial action, or exceptions, apply to employees who are on‑call on 25 November 2022. The ANF could not answer what was intended in relation to on‑call employees.

(c) The Strike Guide allows staffing of clinics and outpatients for ‘essential appointments’ only. The Commission was told that there is no common understanding of what is ‘essential appointments’. This is intended to be left to the discretion of ANF members. The ANF reiterated that its members are highly qualified, educated and responsible. The ANF asserted that its members have patient care and safety as their number one priority. However, the ANF did not explain how its members would determine what was an essential appointment, in advance of a patient’s actual presentation. The same observations apply to the reference to ‘essential work’ for Community Nurses.

(d) The Strike Guide refers to ‘rolling stoppages’. This is confusing and potentially misleading. The planned industrial action is taking place concurrently on a state‑wide basis.

(e) The Strike Guide provides that members are not to relieve other areas on the day of the stoppage. This undermines, or is in direct conflict with, the ANF’s submission that the industrial action can be adequately managed through employees who choose not to strike.

16. To the point that nurse managers can step in to fill staff shortages, the Commission notes that nurse managers are covered by the Agreement, are included in the proposed industrial action, and indeed have the most to gain from the ANF’s claim for a 5% wage increase being at the top of the Agreement’s pay scale.

17. Little weight can be given to the ANF’s claim that Employees will voluntarily refrain from striking, or will voluntarily work to ensure patient safety, while the ANF also asserts that its membership is unified, and determined to take industrial action and, further, when the ANF leadership is calling on its membership to remain unified in its campaign for increased wages. The very point of the industrial action is for it to have impacts.

18. The Commission was told that rosters are published which represent the night staffing levels deemed the minimum safe staffing levels designed to align with patient demand. However, patient needs and demands on night shift are not the same as patient needs and demands during the day, so that night shift staffing levels are lower than regular day shift staffing levels. It irresistibly follows that night shift staffing levels are unsafe and do not meet patient demands at other times.

19. To the ANF’s implicit suggestion that staff other than nurses have the qualifications, skills and work capacity to fill shortages in nursing staff, the Department of Health’s witness told the Commission that:

(a) there were existing staff shortages due to furloughing amongst those other staff, especially social workers, such that staff were already over‑stretched; and

(b) there are duties that nurses perform that other staff are not qualified to perform, an example being the administration of medication.

20. The ANF has not suggested that this form of a state‑wide strike with its associated extreme risks is the only form of leverage available to its members for the purpose of advancing members’ claims.

21. I am also satisfied that the Department of Health has inadequate notice of the planned industrial action to be able to manage the anticipated staff shortages or mitigate the anticipated effects so as to ensure safe, timely and quality care of patients and workload support for staff.

22. I have not been persuaded that the risks posed by the planned industrial action can be adequately managed or mitigated because:

(a) The state‑wide nature of the planned industrial action will create system‑wide staff shortages in numbers that cannot be filled by agency staff or assistants in nursing.

(b) The state‑wide nature of the planned industrial action means there is no ability to divert high acuity patients.

23. I am satisfied, on the basis of the evidence presented to me, that there is a serious and significant risk that the planned industrial action will compromise public health and safety, and the health and safety of employees as described in the Department of Health’s evidence. The Department of Health has a statutory duty under the Health Services Act 2016 (WA) to manage the state’s health system, to protect the health of Western Australians and to provide access to safe, high quality health services. The Western Australian community has a clear interest, if not a right, to be able to access safe, high quality health services.

24. The industrial action planned by the ANF appears to be hastily organised without proper planning or consideration of the protection of the Western Australian community.

25. The ANF has contravened the orders I made on 18 November 2022 ([2022] WAIRC 00792). I am aware of public commentary by the ANF indicating that it would contravene any orders made in relation to this application. In light of these facts, at the conclusion of the conference of 23 November 2022, I foreshadowed to the parties that I would, of the Commission’s own motion, consider summonsing any transport provider to a conference at the Commission with a view to making further orders to prevent such transport providers from aiding in the contravention of my orders. Whether such step is necessary will depend on whether the ANF complies with these orders.

AND WHEREAS for the foregoing reasons, in the Commission’s opinion, the interests of the wider community and, in particular, the community’s need for safe, timely, high quality health care point overwhelmingly to the need for orders to prevent the planned industrial action;

AND WHEREAS for the foregoing reasons, the Commission is of the opinion that the planned industrial action at this time will not assist negotiations but will cause the deterioration of industrial relations in respect of the negotiations for a replacement agreement and adversely impact on the community interest, employee’s interests and the Department of Health’s interests;

AND WHEREAS the Commission is of the opinion that orders under s 44(6)(ba)(i) and (ii) of the IR Act are necessary to prevent the deterioration of industrial relations in respect of the negotiation of a replacement agreement until conciliation or arbitration resolves that matter, and to enable conciliation or arbitration to resolve the matter;

NOW THEREFORE the Commission pursuant to the powers vested in it by s 44(6) of the IR Act hereby –

ORDERS:

1. THAT the respondent, by its officers, employees and members, must refrain from taking and cease the specified industrial action.

Specified industrial action means industrial action on and from 25 November 2022 comprising work stoppages, being absent from duty, walking off the job or closing hospital beds.

But excludes:

(a) attendance at a rally organised by the ANF where the attendance is outside rostered work hours.

(b) absences due to genuine illness or injury, or for carer’s leave or on approved leave; and

(c) work stoppages by an employee based on the employee’s reasonable concern about an imminent risk to their health or safety; where the employee did not unreasonably fail to comply with a direction of the Employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Employer means any employer party to the WA Health System ‑ Australian Nursing Federation ‑ Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses ‑ Industrial Agreement 2020.

2. THAT by no later than 10.00 am on 24 November 2022, the respondent is to inform its members employed by an Employer of the terms of this Order and direct its members to comply with this Order* by:

(a) email transmission to such members;

(b) publication of the Order on the respondent’s website;

(c) publication of the Order on the respondent’s Facebook page; and

(d) placing a copy of this Order on the notice boards usually used by any Employer for the purposes of communicating with the Employees.

*Note that the respondent may be liable for a failure by its members to comply with this Order in accordance with the principles in Ducasse v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1995) 76 WAIG 330 at 333.

3. THAT the respondent, by its officers, employees, agents and members are not to direct, encourage, in any way, employees working for any Employer to engage in any specified industrial action, including by paying or offering to pay employees who are absent from duty without authorisation or walk off the job.

4. THAT the respondent by its officers, employees, agents and members are not to engage in public commentary or media statements which incite, promote, encourage, or notify of any specified industrial action.

5. THAT, subject to compliance with these Orders, the parties attend a reconvened compulsory conference on Friday, 2 December 2022 at 10.30 am.

6. This Order remains in force until 23 January 2023 or until varied or revoked by the Commission.

7. The parties have liberty to apply to vary, revoke or extend this Order.

SENIOR COMMISSIONER R COSENTINO