PR950276 PR950276 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170MW (8A) Power of the Commission to suspend or terminate bargaining period Metropolitan Ambulance Service and Liquor, Hospitality and Miscellaneous Union (BP2004/4285) Health and welfare services SENIOR DEPUTY PRESIDENT KAUFMAN MELBOURNE, 30 JULY 2004 s.170MW (8A) Termination of bargaining period, threat to endanger the life, the personal safety or health, or the welfare, of the population or of part of it. REASONS FOR DECISION [1] The Metropolitan Ambulance Service ("MAS") has applied pursuant to s.170MW (8) of the Workplace Relations Act 1996 for an order that the Commission suspend or terminate a bargaining period initiated by the Liquor, Hospitality and Miscellaneous Union ("LHMU" or "the Union") on the basis that the circumstances set out in s.170MW (3)(a) of the Workplace Relations Act 1996 exist. The legislation [2] Section 170MW of the Act relevantly provides: "(1) Subject to subsection (8), the Commission may, by order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2) to (7) exists or existed. ... (3) A circumstance for the purposes of subsection (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening: (a) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or (b) to cause significant damage to the Australian economy or an important part of it. ... (8) The Commission: (a) may not make an order under subsection (1), in a circumstance set out in subsection (2), (4), (5), (6) or (7), except on application by a negotiating party; but (b) may make an order under subsection (1), in a circumstance set out in subsection (3): (i) on its own initiative; or (ii) on application by a negotiating party or the Minister." The Hearing [3] I listed this matter at very short notice at the request of the applicant. It seemed to me that the nature of the matter required an urgent hearing. The matter was notified to the Commission on Monday 26 July 2004, and the hearing took place on the following Tuesday, Wednesday and Thursday. These reasons have been prepared in haste and are not as felicitously expressed as I would desire. Mr F Parry, SC, with Mr R Clancy, of Counsel appeared by leave for MAS and the Department of Human Services (DHS), and Mr W Friend, of Counsel appeared by leave for the Union. Factual Matrix [4] MAS employees some 1,300 people, of whom 1,043 are operational, 513 are currently rostered on the road as qualified ambulance paramedics with 128 on annual leave. 165 are rostered as MICA paramedics with 41 on annual leave. There is a reserve roster which has 80 to 100 employees on it. The current operational fleet comprises 16 MICA ambulances, 110 general purpose emergency ambulances, four four-wheel drive ambulances on stand-by, as well as other vehicles in the transport fleet. Air Ambulance has 42 paramedics. The Emergency Communications Victoria Control Room takes 700 to 800 "000" calls per day. These are broken down into "code one", "code two" and "code three", with "code one" being critical cases requiring an urgent immediate response, "code two" being acute non time critical cases and "code three" being non acute or routine cases. Emergency departments at hospitals also categorize incoming patients as "category one", "category two" and "category three", with "category one" patients requiring immediate medical attention, "category two" patients requiring treatment within 10 minutes and "category three" patients requiring treatment within 30 minutes. In normal circumstances the communications personnel in conjunction with a clinician assess the urgency of a "000" call and assign a code number to each patient. Although no evidence was led in relation to these matters I understand them to be uncontentious. [5] On 1 June 2004 the LHMU gave notices of initiation of bargaining periods indicating its intention to make agreements under Division 2 of Part VIB of the Act with the MAS and Rural Ambulance Victoria (RAV). [6] Both ambulance services are parties to certified agreements, the nominal expiry date of each of which is 1 June 2004. Negotiations for the making of new agreements commenced in February 2004. Those were largely joint negotiations involving both MAS and RAV, as well as the Union and the DHS. [7] On 7 June 2004 the Union gave each Ambulance Service notice that it intended to take protected industrial action. The action was to commence, and did commence, at 7.00am Saturday 12 June 2004 and has been ongoing. The protected industrial action comprised the imposition of bans, limitations and restrictions on work that had the impact of reducing the resources available, limiting the use of ambulances as well as a financial impact. [8] Negotiations between the Union, the ambulance services and the Department continued but did not result in an agreement. [9] On 29 June 2004 the Union gave notice that it intended to escalate its bans. It gave a notice of intention to take protected industrial action to both ambulance services. The notices indicated that the existing industrial action would continue and to that would be added additional protected industrial action, the most significant effect of which was that all urgent and emergency patients would be transported to the closest hospital emergency department irrespective of any `bypass' status of that department. The intensified industrial action commenced at 7.00am on Sunday 4 July 2004 and continues. [10] After the intensification of the industrial action, negotiations between the parties continued but have not resulted in any agreement. [11] On 22 July 2004 the Union notified each ambulance service of a further escalation of its protected industrial action. The previous action was to continue, and has continued. However, in respect of MAS all incidents received on the "000" line, no matter how serious, are to receive an emergency ambulance response and no cases are to be triaged as not requiring ambulance service, or passed onto any other agency. Further, all persons responded to by paramedics are to be transported to the closest available hospital (unless they refuse transport). In other words, all such persons will be taken by ambulance to hospital emergency departments. In addition, all paramedics are to ensure that hospital staff receive a full and comprehensive verbal clinical handover and paramedics are not to clear the case, or the hospital, until a full and comprehensive verbal clinical handover has occurred. The second escalation of industrial action commenced at 7.00am on Monday 26 July 2004 and continues. [12] The ambulance services requested that the applications be heard as a matter of urgency. Initially I indicated that I would hear both matters together, however, on Wednesday 28 July 2004 Mr Parry indicated that he wished to proceed first with the application in respect of MAS and after that matter had concluded, to then proceed with the matter in respect of the RAV. Accordingly from Wednesday morning 28 July 2004 the hearing proceeded only in respect of the MAS application. This decision only deals with the MAS application. the evidence [13] It is common knowledge, and I take judicial notice, that the MAS is primarily concerned with the transport of badly injured or very ill people to hospitals. It conveys those people by utilizing a fleet of ambulances. MAS also operates an air ambulance fleet and interacts with the "000" emergency phone number system whereby calls are relayed to the MAS communications centre which is responsible for dispatching ambulances as assessed. [14] In order to demonstrate that the protected industrial action is threatening to endanger the welfare of the population or of part of it, Mr Parry called four doctors who are respectively the heads of the Emergency Departments in four major hospitals. [15] Mr Parry in opening indicated that he was relying on the alleged threat to the population, or of part of it, as the basis for the termination of the bargaining period. His position was that he was not relying on an alleged threat to endanger the life, the personal safety or health, of the population or of part of it, albeit in his closing submissions he did suggest that there was evidence to suggest such a finding. doctor marcus kennedy [16] Dr Marcus Peter Kennedy is the Director of Emergency Services at the Royal Melbourne Hospital. His responsibilities are to provide day-to-day and strategic management of emergency care at the Royal Melbourne Hospital. He has held that position since April 2003. [17] At the Royal Melbourne Hospital Emergency Department there are typically eight medical staff and 13 or 14 nursing staff working per shift. The Royal Melbourne Hospital is one of two adult major trauma services in Victoria and it also specializes in infectious diseases and renal medicine. hospital early warning system (hews) [18] Doctor Kennedy explained the development of the Hospital Early Warning System. It is a system that was developed several years ago by the hospital sector, the DHS and MAS so that information can be provided of the likelihood of impending bypass situations with the intention that bypass may be avoided. Criteria were developed whereby departments or hospitals could anticipate the likelihood of emergency departments heading towards a bypass situation. The HEWS system operates throughout public hospitals in Victoria. Broadly it entails the hospital taking steps intended to create capacity within the emergency department and to create capacity within the hospital to enable patients to be moved from the emergency department so that pressure may be reduced on the emergency department so that it is not necessary to go to a bypass situation. HEWS also involves the hospital notifying MAS so that some patients may be diverted to hospitals that are not in a HEWS or bypass situation, thereby not increasing the load on hospitals that have notified a HEWS situation. A HEWS notification lasts for one hour. bypass [19] Bypass essentially involves a notification that the emergency department is at capacity and that ambulances should not bring new patients to that emergency department, except in time critical situations. To use Dr Kennedy's words "bypass would be employed when, in the judgement of the clinical staff involved, there were significant risks to patients if the department continued to become more congested or high acuity patients attended the department within the next period of time." He identified the most typical risk as a lack of physical capacity to receive a patient. [20] The decision to place a hospital emergency department on HEWS or bypass is taken at a high level of management by senior clinicians, both medical and nursing, as well as executive staff. [21] At the Royal Melbourne Hospital there are around 30 HEWS episodes per month and eight to ten bypass occasions per month. Doctor Kennedy gave some examples of what occurs when a bypass situation is called and ignored by ambulance crews. [22] An internal bypass incident report for the period 1 July to 26 July was tendered through Doctor Kennedy. It indicates that at the Royal Melbourne Hospital Emergency Department there are 25 cubicles available for patients. The report (Exhibit A2) demonstrates that during that period there were generally significant numbers of people waiting to be placed in cubicles or waiting to be seen. This was often due to lack of facilities or an unexpected influx of patients. On 7 July, a bypass was called at 2.00pm and 9.15pm and a HEWS at 7.15pm. As the cubicles were full, up to five people were awaiting cubicles. At 7.15pm there were ambulances still arriving and four patients were in the corridor. At 9.15pm ambulances were still arriving, with two patients in the corridor, two outside on ambulance trolleys and an intubated patient in one of the resuscitation cubicles. On 15 July, seven ambulances arrived during a bypass period. When asked what the hospital did in situations such as those described above, Doctor Kennedy said that attempts would be made to create capacity downstream for the patients by looking for beds elsewhere in the hospital, moving patients out of the Emergency Department into theatre recovery areas if they were critical patients, transferring patients to intensive care after only a brief period in the Emergency Department without the usual level of workup that would enable them to be moved to a more appropriate area, moving patients from trolleys to chairs so that incoming patients could get onto a trolley, and leaving patients on ambulance trolleys. Doctor Kennedy described the stress that such situations place on patients, relatives and hospital staff. doctor peter stewart bradford [23] Doctor Peter Steward Bradford, the Executive Director of Medical Services at Peninsula Health, manages the Frankston Hospital and is also responsible for professional medical issues across Peninsula Health. He told the Commission that there is an Emergency Department at Frankston Hospital which has about 43,000 presentations each year. One third of those people arrive by ambulance. There are 34 bed spaces in the Emergency Department, which is staffed by some eight doctors and 15 nurses on a standard shift. Frankston Hospital utilises the HEWS system and the bypass system. On an average month HEWS is called approximately 30 times and bypass approximately 11 times. [24] Doctor Bradford said that since July, when the bans had been imposed, his understanding is that HEWS and bypass have not been honoured by ambulance crews. By that he meant that ambulances have continued to arrive despite a bypass situation having been called. In July there were 16 bypasses called. [25] On 13 July, at approximately 5.40pm, a day of particularly busy demand the Emergency Department had in excess of 40 patients for several hours and, for a period, in excess of 50 patients. Three bypasses had been called but ambulances continued to arrive during that time. During the third bypass, at one stage, there were 57 patients in the Department which, as I have indicated, has 34 places. [26] During the third bypass, which commenced at 5.00pm, Doctor Bradford and other senior hospital personnel were advised that there existed a crisis situation. There were significant risks for patient care, patients were arriving in ambulances and not being able to be triaged by the triage nurse, there were no spaces left in the Emergency Department and ambulances were continuing to arrive. Because of the perception of a heightened risk situation, greater than the usual risks experienced during ordinary bypasses, and even during other bypasses that the hospital had experienced during the dispute, an internal emergency, a "Code Yellow", was called. That had the result of mobilizing doctors and other staff within the hospital to attend to the Emergency Department and also the freeing up of beds as quickly as possible to mitigate what was seen as a significant risk situation. The "Code Yellow" involved the discharge of patients throughout the hospital wherever possible, the bringing of doctors from other parts of the hospital to the Emergency Department, including one doctor who was assisting in surgery and left that task to proceed to the Emergency Department, leaving a minimum number of staff to complete the surgery. [27] Doctor Bradford identified the risk as being a risk for patients waiting to be triaged, patients who had been triaged and were being assessed in the Emergency Department and other patients in the hospital from whom services had been removed. The "Code Yellow" persisted for one hour. [28] doctor andrew wesley dent Doctor Andrew Wesley Dent is the Director of the Emergency Medical Department at St Vincent's Hospital. The St Vincent's Emergency Department treats around 33,000 patients each year, with about 50% of them being high acuity patients. St Vincent's also participates in the HEWS and bypass systems. St Vincent's goes onto a bypass status four or five times a month and HEWS approximately five times that. [29] As with other hospitals the most acute patients, Code 1, are received even if the hospital is on bypass. Doctor Dent indicated the degree of co-operation between MAS and hospitals in such situations at PN599 of the transcript by citing the example of a person in cardiac arrest. If St Vincent's were on bypass the usual practice would be for the ambulance clinician to ring to discuss the situation with St Vincent's. The clinician would ring to see if the patient could be received notwithstanding that the hospital was on bypass. If steps could be taken to receive that patient, that would be done. [30] According to Doctor Dent, resorting to bypass is a last resort. [31] During the period of the industrial action there have been six occasions that the hospital would have called bypass but has not done so knowing that bypass is not available. However, Doctor Dent said that the Department has contacted a manager at MAS in those circumstances requesting special consideration. The difficulties that St Vincent's experiences when its emergency department received more patients than can reasonably be handled are similar to those experienced by the Royal Melbourne Hospital. Extra resources are allocated to triage, trolleys are taken from other departments, people who would otherwise be on trolleys are placed on chairs and " they generally shuffle things around until you can find a way of accommodating 40 people in 24 or 25 spaces ". [32] On 26 July 2004 the St Vincent's Emergency Department had reached a capacity because its two resuscitation cubicles were occupied by patients who required intubation and ventilation. MAS was notified that St Vincent's requested special consideration, however another ambulance turned up during that period with a patient who was able to be cared for in a corridor, after a period of delay. doctor anne-marie kelly [33] Doctor Anne-Marie Kelly is the Director of Emergency at Western Hospital in Footscray. The Emergency Department treats 32,000 adult patients each year. It has 33 treatment spaces, some being trolleys and others, chairs. It is staffed with a mixture of medical staff of specialists and specialists in-training and junior doctors as well as specialist nurses and general RN's. The numbers per shift varies according to the time of day. The average number of doctors on day shift is six, with 10 or 11 nurses on a morning shift, and an additional nurse on afternoon shift, and sometimes an additional doctor, depending on mix and seniority. [34] Doctor Kelly indicated that the Western Hospital goes onto bypass as rarely as possible because bypass is a workload management issue across the health system and she is aware that going onto bypass puts pressure on ambulances services and other hospitals. The Western Hospital only utilises it when it feels that the situation has reached a stage where there would be a risk to patients if more patients were to be admitted to the Department. A bypass situation has been initiated 137 times in the last year. However the process has been changed to try to reduce the instances of bypass and have only been 12 incidents of it in the last four months. At Western Hospital there are approximately twice as many HEWS occasions as there are bypasses. [35] On 8 July 2004 the hospital requested HEWS status at approximately 1.53pm because it had already reached capacity. Shortly thereafter at approximately 2.10pm a bypass situation was called. The Western Hospital in similar vein to the other hospitals would only expect to receive a life threatening emergency during a bypass situation, and then only if there was no viable alternative option. On 8 July six ambulances arrived during the period for which bypass had been requested. They included the transport of one Category 1 patient, a critically ill patient in cardiac arrest, two Category 2 patients and three urgent patients. There was a very high acuity load. The hospital mobilized additional internal resources by trying to find trolleys and was able to provide additional nursing staff because the incidents occurred at around the time of the change of shift. Two additional doctors were mobilized to the Emergency Department, as were additional ventilators. Doctor Kelly felt that although the patients were all treated, their treatment was not optimal; there were unacceptable delays and other patients had to be moved off monitors despite the fact that the Hospital would have preferred not to have done so. However, the emergency patients required those monitors more urgently. [36] Doctor Kelly also gave evidence about a "Code Yellow" called at the Western Hospital on 14 July 2004 due to a fume leak in the Sterilizing Department. That resulted in theatres being closed, lifts being inaccessible to move people to the Intensive Care Unit or to certain other wards. Doctor Kelly was concerned that the hospital would have been unable to treat patients with acute heart attacks or to meet urgent surgery demands. It requested bypass status. The hospital received four ambulances during that period. the union case [37] Mr Friend noted in opening that although Mr Parry in opening his case had put it that the bargaining period was sought to be terminated on the basis that the industrial action that is being taken is threatening to endanger the welfare of the population or of part of it, Mr Parry in his closing submissions had also said that the evidence disclosed that the industrial action is also threatening to endanger the life, the personal safety or health, as well as the welfare of the population or of part of it. [38] The Union's case is essentially that there is insufficient evidence for me to be satisfied that the industrial action is threatening to endanger the life, the personal safety or health or the welfare of the population or of part of it. The Union called its Ambulance Section's Secretary, Mr Rodney Morris. It also called four ambulances officers, Doctor Mark Christopher and Barry Fitzgerald, the Director of the Emergency and Trauma Centre at the Alfred Hospital. rodney william morris [39] Mr Morris denied that the industrial action engaged in by the Union was threatening to endanger the life, the personal safety or health, or the welfare of the population or of part of it. The Union had taken industrial action on several occasions in the past when enterprise bargaining negotiations were taking place and there had been no termination of bargaining periods. The industrial action in the past was of a similar nature to that that is currently being taken. Mr Morris gave evidence in relation to the negotiations that have been taking place to date. He was critical of MAS and DHS asserting that their representatives in the negotiations were not authorized to make decisions. [40] Mr Morris referred to the Union's bulletin that was published at the time of the initial taking of the industrial action on 10 June 2004 and to the note that stated "In circumstances where the patient is `time critical' and the patient is in a ` life threatening emergency' situation and every second counts, then members are expected to vary or ignore the follow actions in the best interest of the patient(s). In the above circumstances members should continue to focus on the need(s) of the patient(s) to achieve best patient outcomes. Its is expected that this disclaimer will affect less than five (5) % of all cases." I have reproduced the quote in a font size similar to how it appears in the bulletin [41] The bulletin set out 17 industrial actions to be taken and advised that members should read all seventeen actions closely and apply the actions strictly as written. Mr Morris asserted that that note was designed to ensure that the industrial action would not have any of the adverse effects of which MAS complains. [42] Mr Morris rejected any suggestion that the bypass ban places additional pressure on emergency departments of hospitals that are on bypass status. Mr Morris' evidence was to the effect that the bypass system is a flawed system that should not exist. In his view it is a system whereby under-resourced and under-staffed hospitals shift the burden for caring for patients to other hospitals or onto the ambulance service. In his view the bypass system enables hospitals to leave the care of patients to ambulance officers rather than the hospitals having to deal with those patients. In Mr Morris' view by ignoring the bypass alerts ambulances are able to discharge their patients more quickly and therefore to better respond to other people in the community who need an ambulance in emergency situations. In Mr Morris' opinion, once a patient arrives at a hospital then the patient is triaged immediately, within the first minute or two, and the ambulance paramedic is then available to go and "save a life in the community, a life that may not otherwise be saved if the paramedics are tied up doing non-urgent work or a transport to another hospital." In Morris' opinion not only are hospitals under-resourced, there are also not sufficient ambulances. Therefore even in normal circumstances unacceptable delays occur. [43] In relation to the "Code Yellow" incident at the Western Hospital, Mr Morris said that he had been contacted at home on a Sunday afternoon by a senior ambulance manager and informed of the situation. He said that he immediately informed that person that the industrial action would not apply to that hospital and that if anyone questioned it that he should be rung immediately and he gave his phone number. He also gave an example of another patient being transported despite the bans, because the relevant ambulance officer exercised his discretion to ignore the bans. [44] In cross-examination Mr Morris accepted that the bans were designed to put pressure on the Government. He also accepted that the latest bans on pager and email communications were imposed so that ambulance drivers would have no ability to know which hospitals were or were not on bypass. This was done because MAS, notifying hospitals that ambulance officers had been made aware that the hospital was on bypass, was seeking to create conflict between hospital staff and ambulance officers. the ambulance officers [45] Mr Friend called five ambulance officers, all of whom are MICA paramedics. [46] Each gave evidence to the effect that the matters of chronic overcrowding, patients being placed on trolleys in corridors or in chairs in waiting rooms and ambulances queuing up are commonplace and occur, and have occurred, in the past whilst no bans have been in place. [47] Mr Gary Andrew Becker recalled an incident at the Austin Hospital approximately a year ago when that hospital was not on bypass. He had taken a patient with a severely fractured and dislocated shoulder to the Austin Hospital and when it became apparent that the patient would have to be placed in the waiting room because he could not be attended to there, and despite the hospital not being on bypass he reloaded the patient and took him to the Box Hill Hospital where he was able to be seen immediately. This incident seems to me to run counter to the Union's criticism of the bypass system. Had the Austin Hospital been on bypass on that occasion the patient would not have been taken there in the first place. [48] Mr John Gregory Taplin, who works at MICA 6, adjacent to the Frankston Hospital, stated that when the Frankston Hospital, which services the Mornington Peninsula, is on bypass patients must be taken to Dandenong or the Monash Medical Centre or the Alfred Hospital. There are only two MICA ambulances on the Mornington Peninsula and if both of those are required to bypass the Frankston Hospital it can leave that area without an ambulance for an unacceptable period. The bypassing of Frankston Hospital extends the journey by some half hour. doctor mark christopher barry fitzgerald [49] Doctor Mark Christopher Barry Fitzgerald is the Director of the Emergency and Trauma Centre at the Alfred Hospital, a position which he has held for 6 years. He has been a director of an emergency department in hospitals since 1984, having been the Director of the Emergency Department at the St John of God Hospital at Ballarat and the Ballarat Base Hospital for a total period of some 16 years. [50] Doctor Fitzgerald is a strong critic of the bypass system and has been for many years. He candidly stated that he came from a background of working in rural hospitals where there is no ability to divert ambulances to other hospitals. In Doctor Fitzgerald's opinion, the ethical duty of staff in emergency departments is to treat all patients who present to those departments, and in his view it is not ethical or proper to divert patients to another hospital. Nevertheless his hospital does participate in the HEWS and bypass systems. [51] The Alfred is one of two Melbourne hospitals that have an adult trauma facility, the other being the Royal Melbourne Hospital. The Royal Children's Hospital also has a trauma facility for juveniles. [52] There are 41 bays in the Emergency Department at the Alfred Hospital, all of which are double plumbed. Thus the Emergency Department can accommodate approximately one hundred patients as well as more in the transit lounge in the Trauma Centre. There is also the ability to take additional patients into the wards. The average staffing at the Alfred Hospital Emergency Department is one or two consultant physicians between 7.00am and 2.00am, with another consultant available 24 hours a day for half a week. There are two registrars and one hospital medical officer as well as one intern who does not work during the night. On average there are 16 nurses per shift. [53] Doctor Fitzgerald has instituted a protocol at the Alfred Hospital whereby the calling of bypass involves a very rigorous process which is only activated on objective criteria. [54] Doctor Fitzgerald said that he has seen no difference in the incidence of ambulance arrivals during bypass since the bans have been implemented as compared with the time prior to the implementation of the bans. He accepted that given that trauma and critically ill patients comprise a significant portion of admissions to the Alfred Hospital's Emergency Department they would present during bypass situations in the normal course of events. the submissions [55] There is no dispute between the parties about the jurisdictional prerequisites for the making of the order sought by the MAS. There is no dispute that the Union has initiated a bargaining period pursuant to s.170MI of the Act, nor that the Union has given three valid notices of the taking of protected industrial action. MAS does not contend that the industrial action that is being taken is not protected. There is no dispute that s.170MP has been complied with in that negotiations have taken place prior to the taking of the protected industrial action. Nor is there any suggestion that the industrial action has not been duly authorized. [56] The issue between the parties and the issue that I have to determine is whether the circumstance in s.170MW (3) that enlivens the Commission's discretion to suspend or terminate the bargaining period pursuant to s.170MW (1) exists. [57] Pursuant to s.170MW (1) the Commission may suspend or terminate a bargaining period if it is satisfied that any of the circumstances set out in subsections (2) to (7) exist. [58] In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 1 Gleeson CJ, Gaudron and Hayne JJ noted at p28: "As already explained, the nature of the threat as to which a decision-maker must be satisfied under s170MW (3) of the Act involves a measure of subjectivity or value judgment. A decision under that sub-section would involve appealable error if, for example, regard was had to irrelevant material, relevant material was disregarded, or, although there was some factual material by reference to which the decision-maker might be satisfied, he or she mistook those facts. If the Full Court intended to suggest otherwise, it was wrong. More to the point, however, is that a decision under s170MW (3)(b) that industrial action is "threatening ... to cause significant damage to the Australian economy or an important part of it" (emphasis added) is not simply a matter of impression or value judgment. The presence of the words "significant" and "important" in s170MW (3)(b) indicate that 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. That was the point of the observations of Giudice J with respect to the absence of economic data." [59] Although the High Court was there dealing with subparagraph (b) of s.170MW (3) it is clear that in deciding whether or not I am satisfied that the industrial action is threatening to endanger the life, the personal safety or health, or the welfare of the population or of part of it, my decision involves a degree of subjectivity or value judgement. Nevertheless, there must be evidence before me sufficient to found such a satisfaction. [60] Mr Parry submitted that the words "significant" and "important" in subclause (b) of s.170MW (3) led to the High Court observing that the decision maker must have some basis for his or her satisfaction over and above generalized predictions as to the likely consequences of the industrial action in question. Mr Parry contended that the absence of those adjectives in subclause (a) suggests a lower hurdle than in relation to subclause (b). Whilst I am not required to find that the industrial action is threatening to significantly endanger the life or the personal safety or health, or the welfare of the population or of an important part of it, I nevertheless accept that I must have some basis, on the evidence, for any satisfaction I attain that the requirements of s.170MW (3)(a) have been met. [61] Mr Parry referred me to State of Victoria v HSUA 2 on the meaning of the term "welfare". In the then equivalent provision to s.170MW (3)(a) the Full Bench said: "During the appeal little was put to us as to the meaning of these words in s.170PO(1)(b)(i). ANF, however, submitted that the word "welfare" should be read ejusdem generis with the preceding words ("life ... personal safety ... health") and thus be restricted to situations where life, personal safety or health was endangered. We disagree. In our view, there is no basis for so reading the word "welfare". The Macquarie Dictionary (2nd edition) defines welfare as "the state of faring well; well-being". We see no reason why the word "welfare in s.170PO(1)(b)(i) should have other than its ordinary meaning. 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." [62] I respectfully agree with the observations of the Full Bench and note that the New Shorter Oxford English Dictionary relevantly defines "welfare" as "Happiness, well-being, good health or fortune (of a person, community, etc.)" [63] Mr Friend, for his part, contended that Mr Parry had ignored the word "endanger" in s.170MW (3). [64] The Macquarie Dictionary (3rd ed) defines the verb endanger as "to expose to dangers; imperil". The new Shorter Oxford English Dictionary relevantly defines the verb as "1. Expose (a person) to infringement of his or her rights; make liable to punishment by another person. 2. Put in danger. ... 4. Incur the risk of, chance. 5. Cause the danger of, make probable (something untoward)". I also see no reason to give the word "endanger" in s.170MW (3) other than its ordinary meaning. [65] Mr Friend also took me to what he asserts is the context in which I should assess whether or not I have attained the requisite satisfaction. He referred me to State of Victoria v McBean 3 a decision of a Full Court of the former Industrial Relations Court of Australia. Mr Friend submitted that the constitutional basis for s.170MW is the external affairs power. In McBean there was a question as to whether s.170PO was within the constitutional power of the Commonwealth. He noted that the object of the Division in which that section then appeared was to give effect, in particular situations, to Australia's international obligation to provide for the right to strike. Mr Friend conceded that there is no comparable object in the present Act, but nevertheless sought to rely on the International Covenant on Economic Social or Cultural Rights to support his contention that the exercise of the power under s.170MW (3) is a restriction on the right to strike and that such a restriction needs to be, in the case of the civil service or essential services, accompanied by certain compensatory guarantees. Here, of course, the compensatory guarantee is the ability of the Commission to arbitrate under s.170MX of the Act unconstrained by the provisions of s.89A . Mr Friend took me to that portion of the judgment of the Full Court that quoted from the reports of the Committee of Freedom of Association, a Committee of the governing body of the ILO, wherein the Committee acknowledged that the right to strike can be restricted or even prohibited in the civil service or in essential services insofar as a strike could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees. Mr Parry submitted that s.170MW is supported by the corporations power. It is not necessary that I decide this issue. [66] Although I have serious doubt that the reports of the Committee are relevant given that the objects of the previous Act do not find their way into the current Act, Mr Friend concedes that I am constrained by the words of the current Act and that it is not part of my task to find that the industrial action could "cause serious hardship". [67] Mr Friend also submitted that I should have regard to the objects of the Act with their emphasis on the bargaining parties reaching agreement and their focus on the Commission not intervening except in very restricted circumstances. [68] Mr Friend also submitted that I should draw a Jones v Dunkel 4 inference against MAS because no evidence was led from that organization. Given the alleged threat to endanger the life, the personal safety or health, or the welfare, of the population or of part of it, is at public hospital level it is not clear to me what adverse inference I should draw. [69] Mr Friend also submitted that in exercising my discretion I should have regard to the fact that it lies in the hands of the public hospitals, in reality the Government, to provide sufficient resources to the public hospitals so as to enable them to deal with the situation of ambulances ignoring bypass calls. He submitted that it ill behoves MAS or the Department to complain of endangerment when it is within their power to provide sufficient resources to ameliorate the effects of the industrial action. In reply Mr Parry referred me to the Full Bench decision in State of Victoria v HSUA where the Full Bench rejected a similar submission made when the Health Services Union of Australia sought to terminate its own bargaining period on the basis that the industrial action in which it was engaging was threatening to endanger the life, the personal safety or health, or the welfare of the population or of part of it. There the Full Bench held that the test was objective and it did not matter that the applicant for the termination of the bargaining period had the ability to bring an end to the industrial action that was the cause of the endangerment of its own volition. In my view the comments of the Full Bench are apposite, and even if it be the case that the provision of additional resources would ameliorate the effect of the industrial action, that is not a basis upon which I should refuse to exercise my discretion in a matter such as this. Mr Parry further contended that, in any event, the evidence discloses that significant steps have been taken by public hospitals to work around the bans. However, Mr Friend referred to passages in the transcript that indicate that hospitals have not, in all instances, allocated sufficient additional staff to cope with unexpected influxes when bypasses are ignored. Given that lack of physical resources and space plays a large part in the reason that hospitals declare a bypass, those submissions carry little weight. conclusion [70] Ambulance services are one of the essential services upon which members of the community rely in times of personal emergency. By its very nature the ambulance service is called upon to transport to hospitals people who are usually very ill, sometimes in perilous and life threatening conditions or who are suffering severe trauma as a result of serious injury. The situations when people require urgent hospitalization are stressful for the patients as well as their relatives, not to mention the ambulance crews and hospital staff. [71] The nature of the industrial action taken pursuant to the notices given under s.170MO of the Act has been described earlier in these reasons. The actions that are of particular concern to MAS are the bans that came into force on 4 July 2004: " 5. Participation in and cooperation with the Hospital Early Warning System is banned. 6. All urgent and emergency patients will be transported to the closest hospital emergency department irrespective of `by-pass' status unless for reasons of patient request or compliance with State Trauma Guidelines." [72] To these have been added the bans that came into force last Monday, 26 June 2004, especially: "1. All cases/events received on the `000' line, (Code 1, Code 2, or Code 3), will receive an emergency ambulance response and no cases will be triaged or passed onto any other dispatcher, sub-contactor, agency, section or division by any MAS ambulance communications members. 2. All persons responded to by paramedics will be transported to the closest available hospital, (unless they refuse transport), and no persons will be triaged as `Services Not Required', `No Ambulance Care Required' or any such categorization" [73] The evidence has disclosed that the bans effective from 12 June 2004 have exacerbated the already unsatisfactory situation when hospital emergency departments are on bypass. At such times senior medical and administrative staff have made the decision that patient health and safety would be compromised if more patients are brought to a hospital emergency department because there is insufficient space or insufficient resources, physical or human, to properly treat additional patients. [74] Although there was understandably little evidence about the effects of the bans that had come into force the day before these proceedings began, it is apparent from their nature, that they are intended to compound the effects of the bypass bans. These bans are likely to further compromise the delivery of emergency services to those in most need. [75] The evidence has also disclosed that when emergency departments are extremely stretched services and equipment are sometimes withdrawn from patients in general wards, thereby compromising their optimum treatment. [76] The bans were designed, as Mr Morris admitted, to put pressure on the government by disrupting the hospital emergency system. [77] I am satisfied that the industrial action that is being taken to support or advance claims in support of the proposed agreement is threatening to endanger the welfare of part of the population. I am also satisfied that the industrial action is threatening to endanger the life, the personal safety or the health of part of the population. [78] The part of the population referred to above is that part of the population of Victoria serviced by the Metropolitan Ambulance Service that might require transport to hospital by ambulance. It is also that part of the population in general wards in hospitals serviced by MAS that might have health care services temporarily withdrawn whilst resources are redirected to emergency departments experiencing an influx of admissions as a consequence of the industrial action. Exercise of Discretion [79] I must now consider whether in the exercise of my discretion I should suspend or terminate the bargaining period. Both parties acknowledge that there is little likelihood of agreement being reached during the period of suspension were I to suspend the bargaining period. Accordingly, it seems that if any order is to be made it should be one of termination of the bargaining period. [80] Given the threat that I have identified I consider that I should exercise my discretion to terminate the bargaining period. I also consider it to be in the public interest, particularly having regard to the effects of the industrial action, both actual and potential, to declare, pursuant to s.170MW (10), that neither the Union nor MAS is allowed, for a period of six months, from today's date, to initiate a new bargaining period in relation to the matters specified in the "2004 Enterprise Bargaining Claims" attached to the Union's Notice of Initiation of Bargaining Period dated 1 June 2004. The order will come into effect at 12.00 noon today. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances: F. Parry , SC, and R. Clancy , of counsel, for the Metropolitan Ambulance Service and the Department of Human Services. W. Friend , of counsel, for the Australian Liquor, Hospitality and Miscellaneous Workers Union. Hearing details: 2004. Melbourne: July, 27, 28, 29, 30. Printed by authority of the Commonwealth Government Printer <Price code C> 1 (2000) 203 CLR 194. 2 Print L9810, McIntyre VP, Williams DP and Hingley C, 3 March 1995. 3 1996 68 IR 442. 4 (1959) 101 CLR 298