816. The March Orders made by the Commissioner were expressed in clear terms, well
recognisable by industrial participants within the NSW industrial system. I accept the
submission of the prosecutor that the contravention by the defendant were undertaken
in blatant and deliberate defiance of the March Orders.
817. On 30 March 2022, Mr Holmes sent a letter to Mr Minns confirming that the
Association’s Council had "considered the issue and the numbers made available to it of
nurses and midwives on furlough in the Public Health System and continues the
commitment to providing life preserving care, but further resolves to continue the
industrial action voted on by the NSWNMA COD and Branches for Thursday 31 March."
818. The Executive and Council of the Association, who are responsible for management of
the Association, took a conscious decision in the face of the March Orders to proceed
with the 24-hour strike. The defendant’s conduct in its Council resolving to continue
organising the industrial action; sending an email to its members that “[i]t’s time to hold
strong, continue the fight and attend your rally as planned”; issuing of a directive to the
effect that the strike will go ahead in defiance of the orders; and publishing a post on
Facebook that “[n]urses and midwives will be taking strike action tomorrow ... Will you
join us?" was in deliberate defiance of the Commission’s order made on 25 March 2022.
This conduct was not “passive” conduct or a “contravention by omission”. They were
wanton acts by the defendant in disobedience of the order and sanctioned by the
Executive of the Association.
819. There are some factors, however, which ameliorates the objective seriousness of this
contravention. The industrial action was for a short duration of one day and was
envisioned to be of that duration.
820. The defendant had given advance notice to the prosecutor that it intended to take
industrial action and this allowed the prosecutor to notify the industrial dispute to the
Commission. After the March Orders were made, the defendant, through its Branch
representatives, gave notice as to strike action in the days leading up to the strike. I
accept the evidence in the First Fitzsimons Affidavit that this placed significant pressure
on hospitals. However, it is also clear that it did enable hospital nursing management,
albeit under great pressure, to organise meetings, collect information about the number
of striking nurses and midwives, and reorganise surgeries and procedures.
821. The defendant had kept the prosecutor updated on meetings and votes undertaken by
the relevant Branches and promptly replied to inquiries by officers or employees of the
prosecutor about the extent and scope of its industrial action. In some Branches, the
evidence shows that the Branch Executive and Association were encouraging individual
members to advise their Nursing Unit Manager, Midwifery Unit Manager or direct line
manager as to whether they are taking industrial action.
822. The evidence also shows that the defendant and its officers or members within its
Branches made an effort to ensure that life-preserving care could continue and sought to
prevent extreme disruption to patient services. This was reflected in some of the
correspondence to the fact that members of the defendant felt bound by the
International Council of Nurses Code of Ethics and the need to provide safe care in
health practices, services and settings.
823. An example of this can be seen in the Tullamore Multi Purpose Service Branch
(“Tullamore Branch”). A letter sent by Branch President, Ms Emma Schubert, and
Branch Secretary, Ms Julie Strudwick, to the Health Service Manager of Tullamore Multi
Purpose Service, Ms Katrina Mulligan, dated 28 March 2022, which stated that the
Branch is committed to “ensure that life preserving staffing is maintained during this 24
hour [strike] period”. The authors of that letter recognised that “due to the already
existing critical staff shortages at Tullamore and a daily inability to fill the roster, the
members will not have capacity to strike for any length of time”. Members of the
Tullamore Branch imposed work bans and would prioritise and attend to “only direct
essential patient care”; the members on shift on 31 March 2022 would wear a red t-shirt
to work; and, those members would “[t]ake “turns” in a 30 minute “walk out””. This is a
departure from how other Branches had decided to take strike action, which was
predominantly to have their members to stop work for a number of hours.
824. However, there were some places where the executive management and Branch
members were not in agreement. At 5:00pm on 30 March 2022 (the day before the
strike), an organiser employed by the defendant, Mr Mark Murphy, emailed a member
of Nursing management, Ms Marie Baxter, to indicate that the Branch members did not
agree to the Blacktown Mount Druitt Hospital executive’s position of Emergency
Department staffing on the next day. This email was sent very late and, as the First