NSW Doctors Defy Court, Push Ahead with Historic Strike

A compromise between psychiatrists and the NSW government hangs in a precarious balance as thousands of doctors are potentially going to proceed with their scheduled three-day strike, even after being reprimanded by a judge for defying his court order.

NSW Health and the Australian Salaried Medical Officers’ Federation (ASMOF NSW) were called to an urgent hearing at the Industrial Relations Commission (IRC) on Thursday after union leaders voted to go ahead with their first strike in almost 30 years.

Their decision, which happened on Tuesday night, defied Acting Justice Peter Kite’s orders to call off the strike and hold back from any industrial action for three months. ASMOF still expects a large part of its 9000 members to go ahead with the strike. So far, staff at 32 hospitals have signed up to strike, including a variety of specialties, including surgery, anaesthetics, emergency and intensive care.

NSW Health has promised to manage the impact of the strike on emergency departments to maintain patient safety.

The doctors have demanded a pay raise of up to 30% over an unspecified period. They want their wages to match those of other states. The government has only offered a 10.5% raise over three years.

A separate dispute, over the mass resignation of about 200 public sector psychiatrists, was set to be heard in front of the commission on Friday. Both the union and the state government would’ve provided expert evidence.

However, on Thursday, Kite asked the union’s lawyers why the hearing should move forward if the doctors were going to continue to defy orders not to strike.

The union’s barrister Thomas Dixon said the strikes were “not designed to support” the psychiatrists’ claims but to advance doctors’ concerns “more generally”.

“Why does it matter why you’re striking?” Kite asked back to Dixon, while also adding that it was a requirement under the state’s industrial relations act to comply with the commission’s orders.

Dixon argued that, while they were union members, the psychiatrists had no control over the actions of other union members and would be “affected by a decision they may oppose”.

Kite then suggested that the union “just hasn’t thought through the implications of its resolution” to defy the orders.
“I can’t speculate on that,” Dixon said. “The mass resignations had the potential to affect service delivery in NSW … it’s in everyone’s interests to dissolve the psych dispute expeditiously.”

“You can’t have both”

Andrew Holland, the executive director of ASMOF NSW, said, in an affidavit submitted to court, that he had advised the psychiatrists not to participate in the strike.

Dan Fuller, the barrister representing NSW Health, said that was “just not good enough”.

“Unlawful industrial action should be reason enough to dismiss this proceeding,” Fuller said.

Kite reminded the union’s lawyers that they could not participate in arbitration while simultaneously organising industrial action on at least four different occasions.

“You can’t have both. Full stop,” Kite said.

The commission’s full bench, made up of Kite, Honourable Justice David Chin, and Senior Commissioner Nichola Constant, ordered the union to provide written confirmation that they would be backing down from the strike by 9 am on Friday.

If they didn’t provide this, the hearing would be cancelled and the psychiatrists’ case wouldn’t be heard again until the following Friday, when the commission would decide whether arbitration could continue.