1 Fair Work Act 2009 s.424—Industrial action Healthscope Operations Pty Ltd T/A Healthscope v Australian Nursing and Midwifery Federation (B2025/272) COMMISSIONER P RYAN SYDNEY, 10 JUNE 2025 Application to suspend or terminate protected industrial action endangering life etc. Introduction [1] At 11:15pm on 20 February 2025, I issued an Order1 suspending industrial action from 6:00am on 21 February 2025 until 8:00am on 22 February 2025, insofar as any such action would be taken by a member of the Australian Nursing and Midwifery Federation (ANMF) who is a birth-suite competent midwife who works within the birthing suite at Newcastle Private Hospital (NPH). [2] I now publish reasons for that decision. [3] The ANMF and Healthscope Operations Pty Ltd (Healthscope) are currently bargaining for an enterprise agreement that will apply to nursing and midwifery employees who work in the 12 private hospitals operated by Healthscope in New South Wales. [4] At approximately 4:00pm on 17 February 2025 (First Notice), the ANMF notified Healthscope of its intention to take the following industrial action at NPH: ANMF NSW Branch members will stop work for a period of twenty-four (24) hours duration commencing at 6:00am on Friday 21 February 2025 and concluding at 6:00am on Saturday 22 February 2025. [5] At approximately 4:19pm on 17 February 2025 (Second Notice), the ANMF notified Healthscope of its intention to take the following industrial action at NPH: ANMF NSW Branch members will stop work for a period of two (2) hours duration commencing at 6:00am on Saturday 22 February 2025 and concluding at 8:00am on Saturday 22 February 2025. 1 PR784612. [2025] FWC 1591 DECISION [2025] FWC 1591 2 (Stop Work Notices) [6] The action is authorised by a ballot declared on 28 October 2024, pursuant to the Protected Action Ballot Order (B2024/1353) issued by Deputy President Hampton on 18 October 2024. [7] At 2:55pm on 20 February 2025, Healthscope lodged an application pursuant to s.424(1) of the Fair Work Act 2009 (FW Act) for an order for the suspension of protected industrial action pursuant to s.424 of the FW Act insofar as any such action would be taken by a member of the ANMF who is a birth-suite competent midwife who works within the birthing suite at NPH. [8] I listed the matter urgently for mention and directions/hearing via video conference at 4:30pm on 20 February 2025. After dealing with some preliminary matters, the hearing commenced at 5:00pm. [9] I exercised my discretion to grant permission to Healthscope to be represented by a lawyer, as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Healthscope was represented by Mr G Fredericks of counsel. The ANMF was represented by its Industrial Officer, Mr C Smith. [10] Healthscope called evidence from Ms Terri Albury, the Director of Nursing at NPH, and Mr Glen Auld, the General Manager of NPH. The ANMF called evidence from Ms Catherine du Plessis, a Clinical Midwifery Specialist at NPH. Ms du Plessis is also employed on a casual basis at John Hunter Hospital (JHH). [11] The following materials were admitted into evidence: • Stop Work Notices (Exhibit 1); • Correspondence from Healthscope to the ANMF dated 19 February 2025 (Exhibit 2); and • Correspondence from the ANMF to Healthscope dated 20 February 2025 (Exhibit 3). Relevant Background [12] Healthscope operates 12 private hospitals throughout New South Wales. At the same time as issuing the Stop Work Notices to NPH, the ANMF issued notifications of protected industrial action for the same period at 7 other hospitals operated by Healthscope in New South Wales. [13] NPH is located in the Newcastle suburb of New Lambton Heights, approximately 500 metres by road from JHH. Although both hospitals are located in close proximity to each other, [2025] FWC 1591 3 they are separate facilities operated by different entities and there is no interaction between their respective records systems.2 [14] NPH is a 189-bed acute care hospital with 11 operating theatres, an intensive care unit, a birthing suite, a 38-bed post-natal ward, and an eight-bed licensed special care nursery.3 [15] The birthing suite contains six-suites and operates 24 hours per day, seven days per week.4 The birthing suite has a “catchment” for expectant mothers that extends as far as Port Macquarie and the Upper Hunter to the north, and Gosford to the south.5 The birthing suite deals with both planned and unplanned (or spontaneous) deliveries.6 Planned deliveries are scheduled for Monday to Friday.7 [16] To work in the birthing suite, a midwife must have attained competency in the relevant skill set and be designed as a birth-suite competent midwife.8 The birthing suite must have a minimum staffing of 2 birth-suite competent midwives to remain open and operate safely.9 The usual shift and staffing arrangements in the birthing suite are as follows: • Morning Shift: 3 birth-suite competent midwives; • Afternoon Shift: 3 birth-suite competent midwives; • Night Shift/Weekends/Public holidays: 2 birth-suite competent midwives and 1 on-call birth-suite competent midwife.10 [17] NPH is not licensed to accept expectant mothers under 32 weeks gestation. If an expectant mother does present under 32 weeks gestation, NPH will stabilise the patient in the delivery suite and arrange a transfer to a neonatal intensive care unit (NICU) bed at JHH. If JHH does not have a NICU bed available, a transfer to an alternative NICU within New South Wales will be arranged.11 [18] In 2024, there were 1630 births in the NPH birthing suite, of which approximately 652 (40%) were unplanned.12 2 Transcript at PN96. 3 Transcript at PN44-PN45. 4 Transcript at PN45. 5 Transcript at PN130-PN131. 6 Transcript at PN47. 7 Transcript at PN58. 8 Transcript at PN60. 9 Transcript at PN73-PN74, PN358-PN359. 10 Transcript at PN149, PN354-PN357. 11 Transcript at PN106-PN107, PN360. 12 Transcript at PN45-PN46, PN51, PN196. [2025] FWC 1591 4 [19] As of 20 February 2025, NPH has 698 expectant mothers booked in to deliver at some point in 2025, 85 of whom were greater than 37 weeks gestation.13 A high proportion of those are of advanced maternal age and/or have conceived with the assistance of IVF treatment.14 [20] On a ‘normal’ Friday, the NPH birthing suite expects between 2-8 deliveries, including planned and unplanned deliveries.15 [21] NPH does not employ specialist obstetricians. Specialist obstetricians are engaged as visiting medical officers (VMO) subject to being credentialled to deliver at the NPH birthing suite. There are 15 credentialled specialist obstetricians who can deliver at NPH, 9 of whom are also credentialled to deliver in the public system.16 [22] NPH also provides antenatal support services to expectant mothers if issues arise throughout their pregnancy. Where unplanned antenatal support services are accessed, the expectant mother will be triaged and assessed and either brought into the birthing suite for care or transferred to JHH. Issues requiring antenatal support can occur from as early as 6 weeks gestation.17 Ms du Plessis stated there is “an absolute huge number” of antenatal support calls made to the birthing suite that need to be triaged and assessed, and that this task should be undertaken by a birth-suite competent midwife.18 [23] For those patients who have conceived with the assistance of IVF treatment, they are usually well known to their VMO and the staff at NPH by the time they present to give birth.19 [24] When presenting to give birth, the usual process is that the patient will contact the birthing suite by telephone ahead of their arrival. A birth-suite competent midwife will then contact the patient’s VMO for delivery. If there is an obstetric emergency, the birth-suite competent midwife will triage the patient over the telephone and, in consultation with the patient’s VMO, will decide whether the patient presents to JHH, or whether they are admitted to the NPH birthing suite for any immediate treatment before transfer to JHH.20 [25] Approximately once a week, NPH will transfer an expectant mother to JHH by private car or ambulance. There are generally 3 reasons for a transfer: expectant mothers who are less than 32 weeks gestation; obstetric emergencies/acutely unwell women and/or babies; and, where the NPH birthing suite has no capacity to accept any additional expectant mothers. However, there has not been a transfer for capacity reasons in at least 3 years.21 Where a patient has been transferred to JHH they have not been refused treatment.22 13 Transcript at PN97-PN98, PN198-PN199. 14 Exhibit 2 at [3(e)], Transcript at PN76, PN425. 15 Transcript at PN296, PN303, PN317-PN319. 16 Transcript at PN48-PN49, PN262-PN263. 17 Transcript at PN63-PN64, PN395. 18 Transcript at PN373. 19 Transcript at PN76, PN100, PN426. 20 Transcript at PN61, PN371. 21 Transcript at PN35, PN42, PN139, PN166-PN169, PN202, PN210-PN217, PN360-PN369. 22 Transcript at PN192. [2025] FWC 1591 5 Stop Work Notices [26] As set out above, at approximately 4:00pm and 4:19pm on 17 February 2025, the ANMF issued the Stop Work Notices to Healthscope. [27] Upon receipt of the Stop Work Notices, Healthscope: • Took steps to identify and arrange for employees with transferable skills to move into each relevant work unit across NPH, including the maternity unit, to ensure as far as possible each unit would be adequately staffed over the planned industrial action. This involved offering shifts to casual employees, part-time employees, as well as offering double-shifts and overtime shifts;23 and • In relation to the maternity unit, rescheduled all planned births scheduled for Friday 21 February 2025 and brought forward 4 planned inductions after consulting the patient’s VMO.24 [28] As at 19 February 2025, and having undertaken enquiries with staff, there was only one birth-suite competent midwife that was available to work in the period of the planned industrial action.25 This prompted Healthscope to send correspondence to the ANMF seeking an assurance from the ANMF that the minimum staffing levels for birth-suite competent midwives will be maintained throughout the period of planned industrial action to ensure the health, safety and welfare of patients is not compromised. The correspondence also advised that NPH has a high proportion of expectant mothers that are of advanced maternal age and/or have conceived with the assistance of IVF treatment, which presents a higher risk to both mother and child, and that the inherent catastrophic risks to patients associated with insufficient staffing in the birthing suite include death and/or serious or permanent injury/disability.26 [29] On 20 February 2025, the ANMF sent correspondence in which it did not provide the assurances sought and suggested that NPH close the birthing suite for the period of planned industrial action and direct any spontaneous deliveries to JHH.27 In her evidence, Ms du Plessis stated that it was possible for spontaneous births to be redirected to JHH and, if necessary, the triage of any antenatal support services could be actioned by an unqualified birth-suite midwife consulting the patient’s VMO.28 [30] At approximately 12:00pm on 20 February 2025, Mr Auld contacted the general manager of JHH to discuss whether any spontaneous births, which would normally be between 2-8 births, could be redirected to JHH. Mr Auld stated that JHH advised they did not have capacity to accept any additional births as they were currently taking patients from Gosford and from across the Hunter/New England Region. Mr Auld understood this to mean that NPH could not, as a matter of course, redirect any spontaneous deliveries to JHH. However, that did not 23 Transcript at PN233, PN325, PN377. 24 Transcript at PN56. 25 Transcript at PN66, PN374. 26 Exhibit 2 at [5]. 27 Exhibit 3. 28 Transcript at PN399-PN403. [2025] FWC 1591 6 affect the standing arrangement to transfer expectant mothers who are less than 32 weeks gestation or obstetric emergencies/acutely unwell women and/or babies.29 [31] In terms of the impact of any changes on expectant mothers, Ms Albury stated that sudden changes to the birthing location and/or obstetrician can be incredibly traumatic and stressful for expectant mothers in what is already a stressful experience.30 Ms du Plessis agreed that the pregnancy term is stressful but doubted whether any changes to the birthing location or the VMO would add to that stress if the birthing suite was closed.31 Legislation [32] Section 424 of the FW Act provides as follows: FWC must suspend or terminate protected industrial action--endangering life etc. Suspension or termination of protected industrial action (1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that: (a) is being engaged in; or (b) is threatened, impending or probable; if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten: (c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or (d) to cause significant damage to the Australian economy or an important part of it. (2) The FWC may make the order: (a) on its own initiative; or (b) on application by any of the following: (i) a bargaining representative for the agreement; (ii) the Minister; 29 Transcript at PN291-PN298, PN307-PN308, PN324. 30 Transcript at PN112, PN115, PN121-PN122. 31 Transcript at PN415-PN423. [2025] FWC 1591 7 (iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L--the Minister of the State who has responsibility for workplace relations matters in the State; (iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory--the Minister of the Territory who has responsibility for workplace relations matters in the Territory; (iii) a person prescribed by the regulations. Application must be determined within 5 days (3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made. Interim orders (4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined. (5) An interim order continues in operation until the application is determined. Consideration [33] Section 424(1) requires the Commission to consider two matters. First, whether protected industrial action is being engaged in or is threatened, impending or probable. Second, if it is, whether the Commission is satisfied that the industrial action has threatened, is threatening or would threaten to have the effects set out in s 424(1)(c) or (d). [34] As to the first matter, I am satisfied that the requirements of s.424(1)(b) are met based on the Stop Work Notices issued by the ANMF on 17 February 2025. [35] As to the second matter, Healthscope relies solely on s.424(1)(c) – whether the protected industrial action has threatened, is threatening, or would threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it. [36] In Minister for Industrial Relations for the State of Victoria v Specialist Diagnostic Services Pty Ltd T/A Dorevitch Pathology; Health Services Union; Australian Nursing and Midwifery Federation32, Commissioner Bissett set out the following summary of relevant authorities: 32 [2017] FWC 4610 at [18]-[21]. [2025] FWC 1591 8 [18] In Victorian Hospitals’ Industrial Association v Australian Nursing Federation the Full Bench of Fair Work Australia (FWA) said: [48] The main issue for consideration in this matter concerns the impact that the protected industrial action being taken and threatened by the ANF and its members is having or is likely to have on the Victorian public health system and the users of the system. Subsection 424(1) requires that FWA must make an order suspending or terminating the protected industrial action that is being engaged in, or is threatened, impending or probable if we are satisfied that it has threatened, is threatening or would threaten to endanger the personal safety or health, or the welfare, of part of the population. [49] It is clear that there must be an appropriate evidential basis to found such a satisfaction. As the High Court said in Coal and Allied Operations Pty Ltd v AIRC in considering somewhat similar provisions in the Workplace Relations Act 1996: ... the nature of the threat as to which a decision-maker must be satisfied under s 170MW(3) of the Act involves a measure of subjectivity or value judgment..[A] decision under s 170MW(3)(b) that industrial action is ‘threatening... to cause significant damage to the Australian economy or an important part of it’... is not simply a matter of impression or value judgment... the decision maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question. [50] We have therefore given careful consideration to all the evidence and submissions presented in the proceedings in reaching our conclusions. [51] We were taken in the proceedings to previous decisions of FWA and its predecessors regarding the meaning of the terms in s.424(1), including the references to “welfare” of the population and the concept of endangerment. These are commonly used words and expressions which are widely understood in the community and which should be given their ordinary meaning. Conduct that puts a person’s physical or mental state at risk of material detriment - or that materially hinders or prevents improvement in a person’s poor physical or mental state - may qualify as conduct that endangers personal health or safety. Although the conduct might not be of such a serious nature as to amount to an endangerment to “life”, it might nevertheless be such as to constitute a significant risk to “personal safety or health”. Conduct that delays or puts off the efficient supply of public health services has the capacity to impact adversely upon the welfare of at least some of the persons who require those services. The impact of the conduct must, however, be more than merely to cause inconvenience to the persons concerned - it must be such as to expose them to danger. [19] In National Tertiary Education Union v University of South Australia a Full Bench of FWA found that “Within the scheme of the Act, the powers in relation to the [2025] FWC 1591 9 suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action.” This finding however needs to be tempered by the language of s.424 of the FW Act which refers to whether the industrial action “has threatened” or “would threaten” such that the harm is not required to be in existence at the time of consideration of the application. [20] In Victoria v Health Services Union of Australia the Full Bench of the Australian Industrial Relations Commission said: The whole of the passage “the life, the personal safety or health, or the welfare, of the population or of part of it” comprises common words and we do not think it helpful to attempt to define them. It will be a matter for the Commission, in each case before it, to determine whether or not it is satisfied that industrial action is threatening to endanger the life, the personal safety or health, or the welfare, of the population or of part of it. [21] In Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union Kaufman SDP, after considering the decision in F & Others v National Crime Commission determined that the approach to the question as to whether the action proposed in the matter before him would “threaten to endanger” should be “on the basis of probabilities rather than possibilities” and also that he “must be satisfied that the protected action would threaten to endanger, not endanger.” That is, in determining if the protected action would threaten to endanger life etc it must be on the basis of the probability of the action doing so, not the mere possibility. [37] Insofar as it might be suggested that the powers to suspend or terminate are intended to be used in “exceptional circumstances” where the harm or threatened harm is “significant”, a Full Bench of the Commission in National Tertiary Education Industry Union v Monash University33 stated: [20] In NTEU v University of South Australia we do not consider that the Full Bench, by its use of the expressions “exceptional circumstances” and “significant harm” in the passages quoted in the Decision, was intending to establish criteria or tests in substitution for or in addition to those found in the language of s.424(1) itself. Rather the Full Bench used those expressions only to characterise the legislative intention that could be gleaned from the Explanatory Memorandum to the Fair Work Bill 2008. It is no doubt the case that the circumstances which would satisfy the criterion in s.424(1)(c) are likely to be exceptional in the sense of being atypical and out of the ordinary, and that a threatened endangerment to life, personal safety, health or welfare under the subsection may well involve the affliction of significant harm. However, that does not mean that in determining any particular case, expressions of that nature not to be found in the actual language of the statute should be determinative of the outcome, and we do not understand the NTEU v University of South Australia to stand for any contrary proposition.34 33 [2013] FWCFB 5982. 34 Ibid at [20]. [2025] FWC 1591 10 [38] Having regard to those authorities, if I find that the planned industrial action is conduct that puts a person’s physical or mental state at risk of material detriment, or that materially hinders or prevents improvement in a person’s poor physical or mental state, this may constitute conduct that endangers personal safety or health, or welfare, of the population or a part of the population within the meaning of s.424(1)(c). If that is the case, I must suspend or terminate the planned industrial action. [39] Turning to the matter before me, the effect of the planned industrial action is that the birthing suite at NPH will not be able to be meet its minimum staffing level to remain open and operate safely. It follows that if the planned industrial action goes ahead, the birthing suite will inevitably close. [40] Of the 698 women registered to deliver at some point in 2025, there are currently 85 women greater than 37 weeks gestation, and on a ‘normal’ Friday, there are between 2-8 deliveries (planned and unplanned). The ANMF submitted that the probable number of spontaneous deliveries occurring during the period of planned industrial action is between zero and 3, and that they can be safely redirected to JHH, noting that JHH has never refused to treat a transferred patient. However, that submission ignores the unchallenged hearsay evidence of Mr Auld, which I accept, that JHH does not have capacity to take additional patients over that period. While ANMF submitted that JHH has never refused treatment to a transferred patient, in the last 3 years transfers have only occurred where the expectant mother was less than 32 weeks gestation, or where there was an obstetric emergency or expectant mother and/or baby were acutely unwell. Any redirection of spontaneous presentations by NPH to JHH will obviously have a compounding impact upon JHH’s capacity, the probable result of which would be a delay in the provision of public health services with the capacity to impact adversely upon the health, safety, or welfare of at least some of the persons who require those services. Having been informed of the limited capacity at JHH, any redirection of spontaneous presentations by NPH to JHH would be irresponsible at best and negligent at worst. [41] The ANMF cited the decision in Telstra Corporation Limited v CEPU35, and submitted that the purpose of the notice requirements is to give the employer the opportunity to respond to the action by making relevant preparations. The ANMF submitted that Healthscope should have contacted JHH much earlier than 12:00pm on 20 February 2025, and had they done so, JHH may have been able to accommodate any additional spontaneous presentations. I do not accept that submission. In my view, it was reasonable for NPH to ascertain the extent to which it could continue to adequately operate facilities and services before contacting JHH. Any suggestion that JHH would have been able to accept additional deliveries if contacted sooner is purely speculative. [42] In addition to deliveries, the birthing suite provides antenatal support services to expectant mothers. As stated earlier, there are 698 expectant mothers registered to give birth at NPH at some point in 2025. Although there was no statistical evidence of the level of antenatal support services required on a ‘normal’ Friday, Ms du Plessis described the volume in general terms as “an absolute huge number” of support calls. Issues requiring antenatal support services can occur from as early as 6 weeks gestation and right up to immediately prior to giving birth. Those issues need to be triaged and assessed, and if necessary, the expectant mother is 35 [2009] FWAFB 1698 at [12]. [2025] FWC 1591 11 brought into the birthing suite to be cared for, or if the issue is an obstetric emergency, transferred to JHH. The ANMF submitted that these matters could be dealt with by unqualified birth-suite midwives taking down details and consulting the patient’s VMO, or by NPH engaging VMO’s to be in attendance and ‘on the phones’. [43] If the birthing suite is closed, any expectant mothers requiring non-emergency antenatal support services would need to be redirected to another hospital, other than JHH. If patients were redirected to JHH, or if they presented there on their own volition (the nearest public hospitals that have maternity units beyond JHH are located at Belmont and Maitland), this would place further strain on JHH’s capacity. Even if the birthing suite remained open for the provision of non-emergency antenatal support services, whether a VMO was relaying instructions via an unqualified birth-suite midwife or a VMO was present at NPH and ‘on the phones’, a birth-suite competent midwife would also need to be on duty to assist in the provision of any care and support. The evidence of Ms du Plessis, which I accept, is that this care should be undertaken by a birth-suite competent midwife. Having regard to that evidence, the ANMF’s suggestion36 that the birthing suite could function with midwives who are not otherwise qualified or competent to work in the birthing suite, even if supervised by a VMO, is clutching at straws and prone to disaster. Moreover, that suggestion demonstrates a lack of understanding by the ANMF of the VMO/private hospital arrangements that operate in New South Wales. The credentialled VMOs are contractors that conduct their own medical practices outside of NPH and transition to their own ‘on-call’ arrangements after 5:00pm on a Friday each weekend. Unsurprisingly, the ANMF did not identify (or adduce evidence from) one, let alone a sufficient number of VMO’s that would be available to be ‘on the phones’ at NPH over the 26 hours of planned industrial action. [44] The journey of pregnancy and birth of a child is an immensely joyful experience for the parents and their family. However, it is also a journey that is incredibly stressful for the parents, particularly the expectant mother. As Ms Albury stated, when things go wrong, they go terribly wrong. When difficulties associated with conception and IVF treatment are added into the mix, and/or where the expectant mother may be of an advanced maternal age, as is the case with a relatively high proportion of NPH’s expectant mothers, the risks to mother and child increase and the level of stress is exacerbated. It is patently obvious that any delay in the access to antenatal support services and/or a birthing suite for spontaneous deliveries in these circumstances will endanger the welfare of those expectant mothers, or worse, the personal health and safety of them and/or their babies. Conclusion [45] Having regard to the foregoing, I am satisfied that the planned industrial action is threatening, or would threaten, to endanger the personal safety or health , or the welfare of part of the population, that being those expectant mothers registered to give birth at NPH in 2025 who require access to the birthing suite for antenatal support services and/or for unplanned or spontaneous births. [46] Accordingly, I must suspend or terminate the planned industrial action. The Order I issued on 20 February 2025 suspended industrial action from 6:00am on 21 February 2025 until 36 See Transcript at PN509. [2025] FWC 1591 12 8:00am on 22 February 2025, insofar as any such action would be taken by a member of the ANMF who is a birth-suite competent midwife, and who works within the birthing suite at NPH. COMMISSIONER Appearances: G. Fredericks, of Counsel for Healthscope Operations Pty Ltd. C. Smith, for the Australian Nursing and Midwifery Federation. Hearing details: Sydney (via Microsoft Teams video-link). 2025. 20 February. Printed by authority of the Commonwealth Government Printer <PR788050>