Industrial action in action

We are seeing an increase in industrial action by unions and workers in the form of work bans through to full on strikes. Unions see industrial action as the ‘go to’ device to pressure employers to meet industrial and other demands. Its increased use is having an impact on businesses and the community.

The New South Wales Industrial Relations Commission has, over the last year, issued significant decisions dealing with industrial action. In this article, we examine some of them and the lessons for NSW employers.

There is a legitimate means to resolve disputes

The Industrial Relations Act 1996 (NSW) has a simple process to deal with industrial action which can be summarised as follows:

Both union and employer can lodge a dispute under section 130 of the IR Act. The Commission will seek to resolve the dispute through conciliation and arbitration, and has powers such as issuing a direction or recommendation, or making an award, or even issuing dispute orders.

The IR Act has a clear process to effectively resolve disputes without the need for recourse to industrial action.

Decision 1: The folly of ignoring the Industrial Relations Commission

In September and November 2024, the NSW Nurses and Midwives Association threatened to take (and ultimately took) strike action in the form of one 12½-hour strike and two 24-hour strikes.

Those strikes took place against the backdrop of the Association’s campaign for 15% wage increases. It had lodged an industrial dispute with the Commission, seeking conciliation and arbitration of its wage claim. But rather than follow the process established by the IR Act, the Association used strike action to seek to extract a favourable Government offer.

The Health Secretary applied to the Commission for dispute orders, firstly to prevent the 12½-hour strike. A recommendation was made not to engage in the strike; the Association refused to comply. In Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association [2024] NSWIRComm 3, the Vice President of the Commission – the following business day – granted disputes orders for four reasons:

• the fact that the Commission’s extensive conciliation and arbitration powers were yet to be utilised to resolve the dispute was “a significant factor in favour of issuing the dispute orders in this case”

• the Association’s refusal to comply with the Commission’s recommendations

• the planned industrial action having adverse outcomes for patients and care, disruption to the provision of essential services, health and safety risks, and broader implications for the public

• under the relevant award dispute resolution process, normal work must continue and there must be no stoppages of work, lockouts or any other bans or limitations on the performance of work.

In respect of the subsequent 24-hour strikes, the President of the Commission said in Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association (No 2) [2024] NSWIRComm 9, when making further dispute orders:

It is my view that the Nurses Association, in determining to announce further industrial action and to not proceed to engage in a process to allow the disputes to be set down for arbitration expeditiously, is acting contrary to the commitment it gave to the Commission…

…there is, as the Nurses Association is aware, a solution that does not involve industrial action, namely, to bring the claims of nurses to this Commission and allow it to do its job as the independent umpire.

Despite those dispute orders, on each occasion the Association continued to organise and implement the strikes, causing disruption to health services.

Non-compliance with dispute orders can lead to further proceedings for the imposition of a penalty. Those proceedings were commenced by the Health Secretary; the Industrial Court has reserved its decision on that matter.

Decision 2: Mass resignations may constitute industrial action

In an effort to procure a substantial wage increase, the Australian Salaried Medical Officers Federation (ASMOF) was involved in the mass resignation of psychiatric staff specialists from NSW Health. In Health Secretary v Australian Salaried Medical Officers’ Federation (New South Wales) [2024] NSWIRComm 1081, the Commission was required to consider, for the first time, whether mass resignations constituted industrial action.

In October 2024, the Health Secretary become aware that psychiatrists were planning to resign en masse. ASMOF had prepared a proforma letter of resignation for psychiatrists to sign. The plan was for ASMOF to hold these resignations to deliver to NSW Health at a later time as part of its industrial campaign for more pay.

Despite agreement to not advise, instruct or recommend psychiatrists to resign, by mid-December 2024, mass resignations were imminent. ASMOF refused to comply with the Commission’s recommendation to tell its members who had resigned that they should reconsider their decision, and to tell those considering resignation that they should not go ahead.

ASMOF said it could not proactively advocate for a position of not resigning and that it was not involved in organising the resignations. It argued that employees are entitled to resign (and it is not industrial action to resign).

Senior Commissioner Constant said, “I am satisfied, however, that this campaign is industrial action and the action can be said to be “industrial” in character... I reiterate that it is not the action of resignation by the individuals that is the industrial action but the collective and organised nature of the action in support and furtherance of the union’s and the staff specialists’ industrial demands”.

Unfortunately, WhatsApp messages discovered in the proceedings revealed that ASMOF’s alleged passive support of mass resignations was, in fact, active. Examples of ASMOF’s involvement included drafting the proforma resignation letter and collecting the letters to forward on.

Dispute orders were made seeking to prevent the resignation of psychiatrists.

Decision 3: A decision to not issue dispute orders

The Commission’s power to make dispute orders is discretionary; there is no presumption that in the face of industrial action an order under section 130 of the IR Act will be made. Equally, however, there is no presumption against the making of dispute orders. It is often said that issuing dispute orders is a serious step and not to be taken lightly.

In Secretary, NSW Health in respect of HealthShare NSW v Health Services Union NSW [2023] NSWIRComm 1085, Commissioner Muir refused to issue dispute orders, despite the employer properly engaging the Commission’s processes to resolve the dispute.

In this case, the Health Services Union members employed at HealthShare’s Patient Transport Service imposed bans from May 2022, impacting patient transfers in New South Wales. The union purportedly did so on the grounds of safety and refused to work as directed by HealthShare.

Rather than take disciplinary action against the workers, HealthShare engaged the Commission to resolve the dispute by conciliation, and then arbitration. Conciliation failed, with the union continuing the work bans despite the lack of safety issues.

The evidence demonstrated that the bans were causing significant delays in non-emergency patients being transported to medical appointments and between facilities. Some patients were waiting several hours to be transferred, increased use of private providers was adding to operational costs, and the rostering and booking of patient transfers was becoming extremely complex.

Commissioner Muir said, “The [work] process is safe. It is approved by the proper people and it is not the role of the Commission to judge that. I should say that the process appears to the Commission to be safe”. There was no issue that the direction to work as required was unlawful or unreasonable. 

Ultimately, “the fact that the employer has chosen to use the [IR] system had considerable force, but it did not, in the end, persuade the Commission that it should exercise its discretion”. The Commission said it wanted “numbers, dollars and time” of the impact of the work bans to be swayed to grant the orders.

Lessons learnt

Bartier Perry acted in each of these cases for the Health Secretary. Key lessons include:

• Always, when appropriate, engage with the legitimate processes of the Commission.

• When industrial action is occurring, be prepared to act quickly.

• Consider whether a recommendation or direction will be sufficient to resolve the dispute or whether dispute orders may be needed in arbitration. Prepare the orders you need to resolve the dispute.

• Gather cogent and clear evidence of the industrial action and its organisation. You need to identify the industrial nature of the action and who is to be the subject of the dispute orders (usually the union).

• Gather cogent and clear evidence of the impact of the industrial action, including, where possible, quantification of its impact.

• Given dispute orders are not lightly made, consider other options to address the industrial action, like disciplinary action.

Author: James Mattson

Read Council Connect April 2025 issue

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.