Secretary, Ministry of Health v New South Wales Nurses and Midwives' Association

[2025] NSWIC 20

Industrial Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Secretary, Ministry of Health v New South Wales Nurses and Midwives’ Association [2025] NSWIC 20

Hearing dates:

24 February 2025, 25 February 2025 and 10 March 2025 (final submissions received 14 March 2025)

Date of orders:

12 November 2025

Decision date:

12 November 2025

Before:

Chin J, Vice President

Decision:

(1) Pursuant to s 139(3)(e) of the Industrial Relations Act 1996 (NSW), the Court imposes the following penalties on the respondent:

(a) penalty of $21,000 for contravening dispute orders made by the Commission on 9 September 2024 in respect of the respondent’s conduct on 9 and 10 September 2024;

(b) a penalty of $4,000 for contravening dispute orders made by the Commission on 9 September 2024 in respect of the respondent’s conduct on 12 September 2024;

(c) a penalty of $49,000 for contravening dispute orders made by the Commission on 9 September 2024 (as varied on 18 September 2024) and 18 September 2024 in respect of the respondent’s conduct from 19 to 24 September 2024;

(d) a penalty of $56,000 for contravening dispute orders made by the Commission on 8 November 2024 in respect of the respondent’s conduct from 8 to 13 November 2024.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — industrial disputes — dispute orders — penalty — proper approach to imposing penalty pursuant to s 139(3)(e) of the Industrial Relations Act 1996 (NSW) in light of Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 — purpose of penalty imposed under s 139(3)(e) — standard of proof — calculation of maximum penalties — course of conduct

Legislation Cited:

Evidence Act 1995 (NSW) s 140

Fair Work Act 2009 (Cth) ss 539, 546

Industrial Relations Act 1991 (NSW)

Industrial Relations Act 1996 (NSW) ss 3(a), 3(g), 10, 130(1)(a), 137(1), 138(1), 139, 146C, 357

Industrial Relations Amendment Act 2023 (NSW) Sch 1.2, Sch 1.3

Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (repealed)

Cases Cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458; [2017] FCAFC 53

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 366 ALR 698; [2019] FCAFC 59

Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13

Australian Securities and Investments Commission v Macdonald (No 11) (2009) 256 ALR 199; [2009] NSWSC 287

Australian Workers’ Union, New South Wales v Bluescope Steel (AIS) Pty Limited (2006) 151 IR 153; [2006] NSWIRComm 71

Bluescope Steel Ltd (formerly known as BHP Steel Ltd) v The Australian Workers’ Union, New South Wales [2006] NSWIRComm 338

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Commissioner of Police (NSW Police Force) v Naser [2025] NSWCA 224

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (2023) 322 IR 233; [2023] FCA 72

Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992

Construction, Forestry, Maritime, Mining and Energy Union v Williams (2009) 191 IR 445; [2009] FCAFC 171

Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461; [2010] FCAFC 39

Cook’s Construction Pty Ltd v Brown (2004) 49 ACSR 62; [2004] NSWCA 105

Director General, NSW Department of Health v New South Wales Nurses Association (No 3) [2010] NSWIRComm 190

Director-General, NSW Department of Education and Training v NSW Teachers Federation [2010] NSWIRComm 44

Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363

Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 781

Fire Brigade Employees' Union v Industrial Relations Secretary (on behalf of Fire and Rescue NSW) [2025] NSWIRComm 1063

Health Secretary, Ministry of Health v Australian Salaried Medical Officers' Federation (New South Wales) [2025] NSWIRComm 5

Health Secretary, Ministry of Health v NSW Nurses and Midwives Association [2024] NSWIRComm 1056

Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association [2024] NSWIRComm 3

Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association [2024] NSWIRComm 4

Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association (No 2) [2024] NSWIRComm 9

Health Services Union v Health Secretary (NSW Ambulance) [2025] NSWIRComm 1014

Industrial Relations Secretary v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (2017) 93 NSWLR 723; [2017] NSWSC 71

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Royer v Western Australia (2009) 197 A Crim R 319; [2009] WASCA 139

Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch [2022] NSWSC 263

Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union (NSW) (No 2) (2013) 231 IR 349; [2013] NSWIRComm 25

Secretary, Ministry of Health v New South Wales Nurses and Midwives’ Association (2022) 320 IR 249; [2022] NSWSC 1178

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Trade Practices Commission v Allied Mills Industries Pty Ltd(No 4) (1981) 37 ALR 225

Texts Cited:

Andrew Stewart, Anthony Forsyth, Mark Irving, Richard Johnstone and Shae McCrystal, Creighton & Stewart’s Labour Law (7th ed, 2025, The Federation Press)

Philip Boncardo and Ben Bromberg, “Civil Penalties in Industrial Law” in Deniz Kayis, Eloise Gluer and Samuel Walpole (eds), The Law of Civil Penalties (2023, The Federation Press)

Matthew Peckham, Cam Truong KC, Ian Latham and Amanda Storey, Civil Penalties in Australia (2025, LexisNexis)

New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 1995

Category:

Principal judgment

Parties:

Secretary of the Ministry of Health (Applicant)
New South Wales Nurses and Midwives’ Association (Respondent)

Representation:

Solicitors:
Bartier Perry (Applicant)
Other:
M Dunstan (New South Wales Nurses and Midwives’ Association) (Respondent)

File Number(s):

2024/418919, 2024/431281

Publication restriction:

Nil

JUDGMENT

Table of Contents

Background facts

Genesis of the dispute - paragraph 9

The dispute orders - paragraph 15

The industrial action

The first strike - paragraph 22

The second strike - paragraph 33

The third strike - paragraph 49

Work bans - paragraph 61

Relevant statutory provisions

Dispute resolution - paragraph 67

The former “wages cap” - paragraph 75

Contravention of dispute orders - paragraph 79

The alleged contraventions - paragraph 83

The proper approach to imposing penalties under ss 139(3)(e) and 139(4) of the IR Act - paragraph 88

The Association’s conduct: “organising” industrial action? - paragraph 117

Did the Association publish the Commission’s orders in a prominent position on its website and social media? - paragraph 126

Did the Association fail to cease organising industrial action in the form of work bans from 10 to 30 September 2024? - paragraph 139

The evidence - paragraph 140

Consideration - paragraph 141

The maximum penalty - paragraph 171

The appropriate penalty - paragraph 199

Order - paragraph 229

Introduction

1. Nurses and midwives employed in the NSW Health Service throughout the state who were members of the respondent, the New South Wales Nurses and Midwives’ Association (Association), went on strike on 10 September 2024 (first strike), 24 September 2024 (second strike) and 13 November 2024 (third strike).

2. By two summonses filed on 11 November 2024 (first summons) and 20 November 2024 (second summons), the applicant, the Secretary of the Ministry of Health (Health Secretary), seeks orders imposing monetary penalties on the Association.

3. Together, the first and second summonses allege 27 separate contraventions of orders made by this Commission (when constituted otherwise than as the Industrial Court). The orders in question were made by me on 9 September 2024 (first dispute orders) and by Taylor J, President on 18 September 2024 (second dispute orders) and 8 November 2024 (third dispute orders). Those orders required the Association to cease organising industrial action. They also required the Association to remove any reference to the strike action from its social media accounts and website and to publish the Commission’s orders in a prominent position.

4. The Health Secretary alleges that the Commission’s orders were breached by the Association, not only by reason of its conduct in failing to cease organising the first, second and third strikes, but also by failing to cease organising industrial action in the form of work bans that are alleged to have been imposed from 10 to 30 September 2024 (work bans). The Health Secretary seeks the imposition of penalties totalling $189,000.

5. The Association admits most of the alleged contraventions arising from its conduct associated with the first, second and third strikes. The parties, however, join issue on some aspects of the nature and extent of the Association’s conduct in “organising” the strike action, as well as on the number of contraventions attracting the imposition of penalties in these proceedings.

6. The Association puts in issue 5 of the 27 alleged contraventions. It does not admit one contravention for failure to cease organising any work bans, or four contraventions alleging failures to publish some of the Commission’s orders in a prominent position on its website and social media.

7. I am satisfied that the Association deliberately contravened the first, second and third dispute orders so as to warrant the imposition of four separate penalties in the total sum of $130,000.

8. After first outlining the background facts underlying the Association’s contraventions, the applicable legislation and the alleged contraventions, I address the issues arising as follows:

1. the proper approach to imposing penalties under ss 139(3)(e) and 139(4) of the Industrial Relations Act 1996 (NSW) (IR Act) in light of Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13 (“Pattinson”) (at [88]-[116]);

2. the proper characterisation of the Association’s conduct as “organising” industrial action (at [117]-[125]);

3. whether the Association published the Commission’s orders in a prominent position on its website and social media (at [126]-[138]);

4. whether the Association or its members engaged in work bans, and if so, whether the Association failed to take immediate steps to cease organising those work bans from 10 to 30 September 2024 (at [139]-[170]);

5. identifying the maximum penalty by reference to the proper number of contraventions for which penalties should be imposed having regard to the extent to which the Association engaged in one or more course or courses of conduct (at [171]-[198]); and

6. determining the appropriate penalties (at [199]-[228]).

Background facts

Genesis of the dispute

9. The genesis of the underlying industrial dispute is set out in the decision in which I made the first dispute orders, ^[1] and in the subsequent statements and recommendations made by Taylor J in the course of conciliating that dispute. ^[2] I touch on the salient features of the dispute as follows.

   1. Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association [2024] NSWIRComm 3 at [1]-[11].

   2. Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association [2024] NSWIRComm 4 and Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association (No 2) [2024] NSWIRComm 9.

10. The parties were engaged in negotiations over pay and conditions regarding the Public Health System Nurses' and Midwives' (State) Award 2023 and the Crown Employees Nurses' (State) Award 2023 (the Awards), which expired on 30 June 2024.

11. The expiry of the Awards and the parties’ negotiations followed the repeal of the so-called ‘wages cap’ which restored the Commission’s ability to effectively arbitrate wage disputes and to grant wage increases in recognition of work value. Previously under the wages cap, the Commission was instead required to give effect to government policy on adjusting wages for public sector employees. The result was that, for most of the period from 2011 to 2023, nurses and midwives were unable to obtain a wage increase higher than 2.5% per annum.

12. The parties' negotiation process included the Association serving a log of claims on the Health Secretary on 10 May 2024 and a series of discussions between the parties taking place from 21 May 2024 to 13 August 2024.

13. The crux of the dispute was remuneration.

14. On 13 August 2024, the Association notified the Commission of an industrial dispute about rates of pay pursuant to s 130 of the IR Act. The Association sought, amongst other claims, a 15% increase to remuneration for one year. Following this, the parties appeared before the Commission and the matter was listed for conciliation.

The dispute orders

15. On 6 September 2024, the Health Secretary also notified the Commission of an industrial dispute. This dispute concerned the Association’s threatened strike action on 10 September 2024, as well as “ongoing industrial action currently being undertaken by members of the NSWNMA across the public health system in the form of stop work meetings, and work bans”.

16. Commissioner McDonald urgently conciliated this dispute on the same day that it was notified. The conciliation culminated in the Commissioner making recommendations that the Association and its members immediately cease organising and participating in industrial action from 10 September 2024 to 18 September 2024: Health Secretary, Ministry of Health v NSW Nurses and Midwives Association [2024] NSWIRComm 1056 at [11].

17. Over the ensuing weekend, the Association’s Council determined that it would not comply with Commissioner McDonald’s recommendation and would continue with the first strike.

18. On 9 September 2024, the Health Secretary sought the first dispute orders, which I made pursuant to ss 136(1)(c) and 137(1)(a) of the IR Act: Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association [2024] NSWIRComm 3 at [33]. The first dispute orders were in the following terms:

“A. Pursuant to s 136(1)(c) and s 137(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission makes the following orders:

(1)   The New South Wales Nurses and Midwives’ Association (“the Association”), its officers and employees, and its members employed in the NSW Health Entities listed in Schedule 1 to the document marked MFI 1 (“Health Entities”) immediately take steps to cease organising and refrain from taking industrial action on and from Tuesday 10 September 2024 to Wednesday 18 September 2024, by those employees engaged by a Health Entity under the Public Health System Nurses’ and Midwives’ (State) Award 2023.

(2)   The Association must by no later than 5.30 pm on Monday, 9 September 2024:

(a)   remove any reference to the strike action of Tuesday 10 September 2024 from its website, social media accounts or any documents linked to its website or social media accounts; and

(b)   publish these orders and directions in a prominent position on its website and social media accounts.

(3)   The Association, its officers, employees, agents and members must not induce, advise, authorise, support, encourage, direct, aid or abet members of the Association to organise or take industrial action contrary to Order 1.

(4)   These orders take effect immediately.”

(Footnotes omitted).

19. I also made directions requiring the Association to notify its members of the first dispute orders and to direct its members to comply with those orders and not take industrial action on 10 September 2024.

20. On 18 September 2024, with the consent of the parties, Taylor J made the second dispute orders pursuant to ss 136(1)(c) and 137(1)(a) of the IR Act in the following terms:

“The Orders made by Chin J on 9 September 2024 are varied as follows:

1. Order 1 is varied by removing the words “Wednesday, 18 September 2024” and replacing them with the words “Monday, 30 September 2024”.

2. I make new Order 2A, as follows: The Association must by no later than 5.30pm on 18 September 2024, post a copy of the orders (as amended) in a prominent position on its websites and social media accounts.

3. I make new Order 5, as follows: The parties have liberty to apply on short notice for this matter to be relisted should urgent circumstances require.”

The next day, Taylor J amended order 2 of the second dispute orders to substitute “19 September 2024” for the reference to “18 September 2024”.

21. On 8 November 2024, Taylor J made the third dispute orders pursuant to ss 136(1)(c) and 137(1)(a) in the following terms:

“1. Pursuant to ss. 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 (NSW), the Commission makes the following orders:

(1) The New South Wales Nurses and Midwives’ Association (“the Association”), its officers and employees, and its members employed in the NSW Health Entities listed in Schedule 1 to these orders (“Health Entities”) immediately take steps to cease organising and refrain from taking industrial action on and from 4.00pm today 8 November 2024 to Friday 29 November 2024 by those employees engaged by a Health Entity under the Public Health System Nurses’ and Midwives’ (State) Award 2023;

2. The Association must by no later than 5.30 pm on 8 November 2024:

(1) remove any reference to the strike action of Wednesday, 13 November 2024 from its website, social media accounts or any documents linked to its website or social media accounts; and

(2) publish these orders and directions in a prominent position on its website and social media accounts.

3. The Association, its officers, employees, agents and members must not induce, advise, authorise, support, encourage, direct, aid or abet members of the Association to organise or take industrial action contrary to Order 1.

4. These orders take effect immediately.”

The industrial action

The first strike

22. On 5 September 2024, the Association uploaded a video on Facebook directing its members to strike for 12 ½ hours on 10 September 2024 from 7:00 am to 7:30 pm. The video featured the Association’s General Secretary, Ms Shaye Candish, explaining that “we know now that the government has failed to meet our deadline of issuing you a new pay offer by close of business today…So now I’m asking for you to join with us and take strike action next week.”

23. The Association also posted on their Facebook page: “BREAKING: Public sector nurses and midwives STRIKE called for TUESDAY 10 SEPTEMBER” and updated the “Value us: public health campaign” section of the Association’s website as follows:

“5 September 2024

The clock has run out. It is time to strike.

Earlier this week we wrote to Health Minister Ryan Park and demanded the NSW government make a better pay offer than its insulting 3% per year, over three years.

For months the NSWNMA and your Log of Claims Committee have made a compelling case for a 15% pay increase over one year. Despite this, the government has shown no willingness to budge.”

(Emphasis in original).

24. On 7 September 2024, the Association’s Council met to consider Commissioner McDonald’s recommendations referred to at [16]. The Council determined unanimously that the recommendation should not be complied with, and the first strike should proceed. Following this, the Association’s website displayed a banner declaring: “Public health system nurses and midwives to STRIKE: 10 Sept 2024” (emphasis in original). The banner contained a button displaying the words “Find out more here” which, when clicked on, redirected to additional content on the strike stating, among other things: “Next Tuesday, 10 September, nurses and midwives will strike from 0700, and we need your voice to send a strong message to the NSW government”.

25. The post embedded a video titled “‘We’ve had enough’ – it’s time to strike”. Below the video, the post included the following statement:

“Yesterday, the NSW Industrial Relations Commission recommended we don’t go ahead with Tuesday’s strike. Your NSWNMA Council met today to consider these recommendations and determined unanimously, the strike on Tuesday will continue. Council does not want to take a backwards step, they are fired up and stand firmly with you – now is the time for action.”

(Emphasis in original).

26. After I made the first dispute orders on 9 September 2024 referred to at [18], the Association’s Council determined that it would not comply with the orders. It informed its members of its decision by posting on the Association’s website. The Association updated the banner found at the homepage of its website to include the following statement: “the NSW Industrial Relations Commission made orders for the NSWNMA to cease industrial action. The NSWNMA Council has determined the orders cannot be complied with and the strike will go ahead”.

27. In addition, the Association updated the “Value us: public health campaign” page of the Association’s website which was accessible after clicking “Find out more here” to read as follows:

Where are we up to?

9 September 2024

We are all angry, we are all frustrated, and we are all ready to go!

Join us tomorrow from 0700, as members strike statewide for improved pay and working conditions. It is time for NSW government recognised the worth of our female-dominated professions.

Today, the NSW Industrial Relations Commission (IRC) made orders against the NSWNMA to cease our industrial action. Click here to see the orders.

Your NSWNMA Council has determined these orders cannot be complied with. Our strike will go ahead tomorrow and Council stands with you as we continue the fight for fair pay until a meaningful offer is delivered.

It is disappointing that the government has pushed this matter into the IRC, trying to get the court system to do its dirty work. For months, we have continuously showed up to negotiation meetings and acted in good faith. We even did their work for them, by identifying savings ready to fund our pay claim.

Yet, the government continues to disrespect and ignore the true value of your work. Not once has government sat down and negotiated your pay.

Our 10 September strike from 0700 is going ahead as planned. Click here to see a list of rally locations.

(Emphasis in original).

28. The post also embedded a video titled: “This government has left us no choice but to fight”. Below the video, the post continued as follows:

What you need to know about the Industrial Relations Commission (IRC)

The IRC has made orders against the NSWNMA and its members, to cease industrial action on 10 September.

Your employer may try to use these orders to dissuade you from taking action. While the NSWNMA can be fined for not complying with the IRC orders, you personally will not face fines for taking part in industrial action.

Remember, your NSWNMA Council is strongly backing members who take part in this important strike. Our industrial action will send a loud and clear message to the NSW government: nurses and midwives deserve more in 2024.

Click here and take a moment to look over our industrial action guidance. This helps outline your rights and responsibilities. Just sign in to Member Central to view the tips.

We never take industrial action lightly. As dedicated nurses and midwives, we strive to provide compassionate, high-quality care to our patients every day. However, the NSW government’s refusal to value us and put a decent offer on the table has left us with no choice.

Our actions will raise community awareness and hold politicians accountable. The haemorrhaging of staff to other states, unlivable pay, and unsafe working conditions must be addressed.

See you tomorrow! Wear your NSWNMA union scrubs, bring your placards, and raise your voice!

(Emphasis in original).

29. The Association also published multiple posts on Facebook, one of which provided a link to the first dispute orders which stated:

Today, the NSW Industrial Relations Commission made orders for the NSWNMA to cease industrial action: nswnma.info/3ASzJyW

NSWNMA Council has determined the orders cannot be complied with and Tuesday’s STRIKE will go ahead.

in original).

30. The Association also posted a video from its President, O’Bray Smith. The post displayed the following quote from the video “Let me assure you, the strike tomorrow IS MOST DEFINITELY GOING AHEAD”. The transcript of Ms Smith’s video is as follows:

Hi members, here we are on the eve of our strike action and we have orders against us to not strike tomorrow. Let me assure you the strike tomorrow is most definitely going ahead and these orders are expected. Let me assure you individual members cannot be fined for their strike action. As an Association we can be, but not you as an individual member. The Council have met and voted for strike action to continue. We're hearing far too many stories of members who can't pay their bills or worse some of our members are being forced to sleep in their cars. This government has left us no choice but to fight. So tomorrow we have our first big strike. We're looking forward to seeing you out in force. Bring your scrubs, bring your chants and bring your enthusiasm because tomorrow we walk and stand as one. You're not alone and together we can win this. Together we fight. Good luck everyone.

31. At 8:59 pm Mr Mattson, the Health Secretary’s solicitor, emailed the Association. The email contained a screenshot of the Association’s website which contained the banner outlined at [24] and asserted that the Association had contravened the Commission’s dispute orders of 9 September 2024 by failing to remove any reference to the strike action of 10 September 2024, and by failing to publish the Commission’s orders in a prominent position on its website.

32. The first strike took place on 10 September 2024, during which the above social media and website posts remained online. The Health Secretary estimated that about 4700 nurses and midwives participated in the strike.

The second strike

33. On 18 September 2024, the Association updated its website to address its members by claiming that their strike action had achieved a meeting with the Treasurer, the Health Minister, and the Industrial Relations Minister but that it had nevertheless reached a stalemate in talks with the government in the context of conciliation proceedings before the Commission. This notice also stated that the government had until 5:00 pm the following day to make a “meaningful offer”.

34. At this time the Commission had made the second dispute orders referred to at [20]. The post on the Association’s website referred to in the preceding paragraph stated that the Association’s committee of delegates would meet soon to “discuss” these orders.

35. The Association also uploaded a publication titled “Industrial Action Tips Escalating Industrial Action 24 hour strike: from beginning of AM shift on 24 September”. The document was described as offering tips on “how to strike”, provided “steps to take when preparing for the action” and answered “frequently asked questions” about taking industrial action. The document remained available on the Association’s website from 18 September to 24 September.

36. Taylor J then issued a statement which contained a recommendation that “the parties should enter into four weeks of intensive discussions”. This was on the basis that the Health Secretary agrees to provide an immediate 3% interim increase effective 1 July 2024, and the Association commits to “cease all industrial action that is affecting patient care, pending the outcome of those discussions and any subsequent arbitration”: Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association [2024] NSWIRComm 4.

37. On 19 September 2024, the Association updated the homepage of the website to include a banner which stated as follows:

‘Public health system nurses and midwives to STRIKE: 24 Sept 2024 STRIKE’, Nurses and midwives will be on strike statewide starting from the AM shift on 24 September 2024 to demand the NSW government value our professions’.

The banner also contained a link – titled “Find out more here” − to the second dispute orders.

38. The Association’s website also declared that the government had failed to make an offer in accordance with the Association’s deadline and that, despite the second dispute orders: “we are going on strike for 24 hours, from the start of morning shift next Tuesday, 24 September”. The notice included details of three major rallies across the state, namely in Sydney, Tweed Heads and Albury.

39. In addition, the Association made the following post on its Facebook page stating “BREAKING: Public sector members STRIKE CALLED FOR 24 SEPTEMBER”. In the comment section of the post, the Association provided a link to the “Value us: public health campaign” page of the Association’s website which contained the post referred to in the preceding paragraph, describing the link as providing “[m]ore details on the strike, including strike rallies”.

40. At about 5:50 pm, Phil Minns, on behalf of the Health Secretary, sent a letter to the Association outlining the recommendations made by Taylor J. The letter proposed that the Health Secretary would “adopt the recommendations of the Commission, including to commence payment of a 3% increase to salaries and salary-related allowances and facilitate back payment of this increase to be effective from first pay period on or after 1 July 2024” on the condition that the Association “immediately cease and committing to refrain from undertaking industrial action.”

41. In the next few days, the Association maintained the content which it posted on its website on 19 September 2024 pertaining to the planned strike action on 24 September 2024. The website also displayed a banner with the words “Public health system nurses and midwives: 24 Sept STRIKE”.

42. The Association also posted on Facebook notifying its members of the planned 24-hour strike and asking them to advise their managers as soon as possible of their intended strike action to “help plan for both maximum participation and life preserving staffing”.

43. On 21 September 2024, the Association updated the “Value us: public health campaign” section of its website asking its members to “join us on strike and at one of our rallies”.

44. The next day, the Association posted on Facebook:

IT’S STRIKE DJ TIME!

What would be on your strike playlist for this Tuesday?

(Emphasis in original).

45. On 24 September 2024, the Association’s website declared that “nurses and midwives will be on 24 hour statewide strike beginning from the start of the morning shift on 24 September 2024 to demand the NSW government value our professions” and contained the following notice:

Sydney CBD

Where to meet

Location to meet: Hyde Park North (grass patch near fountain), 110 Elizabeth St, Sydney NSW 2000

Date: Tuesday, 24 September 2024

Time: 11:30 AM

Instructions: Meet at Hyde Park North (grass patch near fountain) at 11:30 AM, then march at 12 PM down Macquarie Street to outside NSW Parliament (6 Macquarie St, Sydney NSW 2000).

Getting there

Making your own way there?

Click here for directions.

Train timetable:

[Image of a train timetable]

Hopping on the NSWNMA bus?

RSVP for the NSWNMA bus heading to the CBD from certain locations across NSW: in original).

46. This information was also provided for rallies at other locations, namely “Northern NSW – Tweed” and “Southern NSW – Albury”.

47. The Association also posted a notice on Facebook declaring that “nurses and midwives will be ON STRIKE!” for 24-hours “from today’s morning shift”.

48. On 24 September 2024, a number of nurses and midwives employed by the applicant engaged in industrial action by not attending work. The Health Secretary estimated that about 6500 nurses and midwives participated in the strike.

The third strike

49. On 7 November 2024, the Association made:

1. the following posts on Facebook; and

BREAKING: 24 HOUR STRIKE CALLED FOR 13 NOVEMBER FOR PUBLIC SECTOR MEMBERS!

***Public Sector nurses and midwives will be ON STRIKE on Wednesday, 13 November.

More details here: start="2">

the following post on Instagram:

50. The Association also updated the “Value us: public health campaign” section of its website to inform members of the strike, and to inform them of the availability of buses organised by the Association to transport members to rallies. The Association asserted that “the government now wants to arbitrate in the Industrial Relations Commission and lock in low wages for nurses and midwives for another three years.” The notice also provided the Association’s members with a “prewritten email template” that they could download and use to notify their managers of their intention to take strike action, which they were encouraged to do as soon as they were able in order to “help the NUM/MUM make decisions about what resources will be available during the action”.

51. On 8 November 2024, the Association posted additional material to its social media pages and website. Firstly, the Association posted the following on Instagram accompanied with a video of NSWNMA General Secretary Shaye Candish and Assistant General Secretary Michael Whaites bearing the caption “the negotiations have fallen over”:

“What’s the bigger crime here: us taking strike action, or a government that is refusing to fix the crisis?”

NSWNMA General Secretary Shaye Candish and Assistant General Secretary Michael Whaites have a message for members as we ramp us for strike action next week.

52. Secondly, the Association made a publication available for download on its website titled “Escalating Industrial Action 24 hour strike: from beginning of AM shift on 13 November”. The document was described as offering “industrial action tips” on “how to strike” and provided “steps to take when preparing for the action”. The second page of the document also answered “frequently asked questions” on industrial action.

53. Thirdly, the Association posted a link to an article on LinkedIn published by “The Lamp” (the Association’s magazine) titled “No deal struck” with the caption “Nurses and midwives in the NSW public sector have called a second 24 hour strike as negotiations with the NSW government break down.”

54. Fourthly, the Association posted a link to the third dispute orders referred to at [21] on LinkedIn with the following message:

Today, the NSW Industrial Relations Commission made orders for the NSWNMA to cease industrial action: Council has determined that the orders cannot be complied with and Wednesday’s STRIKE will go ahead.

in original).

55. Fifthly, the Association updated the “Value us: public health campaign” section of its website to provide a link to the third dispute orders and to inform members of the strike:

It’s appalling that we are in this situation again, forced to take strike action – but the NSW government continues to treat nurses and midwives as if we’re not worth the investment.

Today, the NSW Industrial Relations Commission made orders for the NSWNMA to cease industrial action. You can find a copy of the orders here.

Industrial action is a valid means for union members to stand up for fair pay and conditions. It’s important for you to know that only the NSWNMA as an organisation can be fined for strike action. Individual members cannot be fined, so we’re encouraging you to attend on Wednesday.

Wednesday’s STRIKE will go ahead. Don’t be dissuaded or threatened by the many tactics used to try and prevent you from taking action.

What you need to know:

Be prepared for pushback – your employer may attempt to discourage or pressure you to stay on duty, whether through a memo to all staff or a direct call. To help you handle these tactics, read our tips on how to respond here.

Notify your NUM/MUM – if you plan to participate in the strike, it’s essential to inform your NUM/MUM. Use our prewritten email template here to make this process easier.

Your participation in the strike does not need your employer’s approval – you decide if you participate, no one else. Be sure to notify your NUM/MUM as soon as possible so they can plan for the day. If there are concerns about safe staffing levels being maintained, advise your NUM to contact their direct supervisor.

Stand together in solidarity – we must act together, strike together and stand together, just as we have done in the past. It is in our numbers that we have power and protection.

Know your rights – while the NSWNMA can be fined for not complying with such orders, no individual member can be targeted for fines.

Join our briefing webinar – we are hosting a webinar on Monday, 11 Nov at 5pm to answer your questions and address any concerns you have about your rights when taking part in the strike – click here to register.

(Emphasis in original)

56. On 9 November 2024, the Association posted an additional update to their website containing information about the 13 November 2024 rally in Sydney, including arrangements for the Association “busing members” to the rally, a link for members to “click here to secure your seat” and a “strike ready checklist”.

57. On 11 November 2024, the Association published a document that was available for download titled “Industrial action tips: Addressing employer tactics”. The document noted that “the NSW Industrial Relations Commission may make orders against the NSWNMA for taking industrial action. But remember, you cannot be fined as an individual for striking. Only the NSWNMA as an organisation can be fined.” It also provided a template response for members to respond to employer requests while they were taking industrial action.

58. On 12 November 2024, the Association’s homepage carried a banner that noted the effect of the third dispute orders immediately before declaring that “our strike will go ahead as planned”.

59. On the morning of 13 November 2024, the Association posted an image on Instagram that read “STRIKE IS ON!” (emphasis in original). The caption read “Public sector nurses and midwives: ON STRIKE NOW!” (emphasis in original).

60. The third strike took place on 13 November 2024. The Health Secretary estimated that about 6,800 nurses and midwives employed by the applicant engaged in industrial action by not attending work on 13 November 2024.

Work bans

61. Between 26 and 30 August 2024 various branches of the Association notified the applicant about work bans to be taken as part of the pay and conditions dispute. For example, on 26 August 2024, the Royal Prince Alfred Branch of the Association notified that, effective immediately, “members of the RPA NSWNMA branch will not be undertaking any domestic duties (eg, but not limited to: cleaning, physically moving patients, emptying of bins or skips), or any other duty that is performed by another classification of worker”.

62. Similarly, after initially notifying the Lismore Base Hospital of work bans to commence immediately on 27 August 2024, the next day the Lismore Base Hospital Branch of the Association notified further “work to rule” and “bans” commencing on 2 September 2024 as follows:

Work to Rule - Non nursing duties (Clause 44)

Domestic Duties, ordinarily carried out by other classifications, including pushing beds, cleaning of beds and other areas, emptying linen skips, restocking supplies or any duties covered by Award clause 44.

Duties ordinarily undertaken by PSOs such as answering phones, doorbells for locked wards and processing paperwork of a purely administrative nature. Only M/NUM and MINIC phones will be answered.

Food services suppliers. Nurses will not collect any food services from kitchen areas. All supplies must be delivered to units. Nurses will no longer prepare breakfast or any meals for patients.

Nurses will not collect non-urgent medications from pharmacy.

Nurses will claim overtime>/=15mins for missed meal breaks and working past rostered hours.

Bans - All Areas

No ad hoc Data collection of QARS, Hand Hygiene or any other audits will be undertaken

Staff will attend Safety Huddles but will not complete the online form.

Members will not complete standardised outcome measures including Mental Health Phase of Care such as HonOS, HoNOSCA &HoNOS65+ that are included in Mental Health outcome measures

Refusal or restrictions to overtime

Under clause 25 of the award, members are encouraged to refuse overtime work. This includes but is not limited to refusal to stay back after the completion of a rostered shift & refusal to work extra shifts. Additionally, all entitled breaks (paid & unpaid) are to be taken with overtime claimed on any missed or partial breaks & on any requirement to stay back. As per Clause 25(iv), (members are not to be compelled to take any overtime as time in Lieu. Members are also not required to sign 10 hour waver (sic) forms & are encouraged to rescind previously signed forms.

63. Other branches of the Association announced work bans to commence on:

• 27 August 2024 (the Tweed Hospital Branch and the Greater Newcastle and Hunter Valley Mental Health Branch);

• 28 August 2024 (the Air Ambulance Branch, the Deniliquin Hospital Branch and the Morisset Hospital Branch);

• 30 August 2024 (the Bathurst Branch, the Patient Transport Branch and the Grafton Base Hospital Branch); and

• 2 September 2024 (the Tweed Heads Community Branch, the Ryde Hospital and Community Health Service Branch, the Byron Central Hospital and Byron Community Health Branches, the South East Regional Hospital Branch, the Royal North Shore Hospital Branch, the Metropolitan Reception and Remand Centre Branch, the Griffith Branch and the Belmont Branch).

64. It is uncontroversial that, on or about 30 August 2024, the Association posted on its website a document titled ‘'Industrial Action Tips: Stop Work, Work to Rule and Work Bans” (the Association’s Work Bans Post). The document defined “stop work” as a strike, “work to rule” as working exclusively within a role description and “work ban” as “a refusal… to complete particular tasks within their role” and stated that “the most effective work bans cause disruption to an employer’s operations or finances”. Under a column titled “What are we doing now? All of them!!” (referring to all three identified forms of industrial action: stop work, work to rule and work bans), the Association’s Work Bans Post provided a list of “work to rule” actions that “we [i.e. the Association] are advising” such as a restriction on duties such as pushing beds. It also stated:

In some specialities, branches have passed resolutions to place work bans on the following activities:

Mental Health: Non-completion of HONOS data entry

ED: Delay the data entry for TOC (Take Over Care), Cat 2 and Cat 3 patients for at least 10 mins.

Members should still be completing patient records, and paperwork that has an impact on clinical care.

(Emphasis in original).

65. For reasons that I will explain below, it is of critical significance that there is no direct evidence of the document referred to in the preceding paragraph appearing or being made available on the Association’s website, nor its contents otherwise being communicated to its members at any time after 30 August 2024, or at any time on and from the date the first dispute orders were made on 9 September 2025.

66. After the first dispute orders were made, the evidence establishes that some work bans did take place at various locations including at Port Macquarie Hospital, Lismore Base Hospital and by nurses engaged in the Patient Transport Service (PTS). The extent of these bans, and the question of the Association’s role in organising such bans, is considered in paragraphs [139]-[170].

Relevant statutory provisions

Dispute resolution

67. The core industrial function of the Commission, conferred by s 10 of the IR Act, is to make awards that set fair and reasonable conditions of employment for public sector and local government employees. It is required to do so in accordance with the objects of the IR Act which are set out in s 3, including “(a) to provide a framework for the conduct of industrial relations that is fair and just” and “(g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality”.

68. The IR Act also empowers the Commission to deal with industrial disputes. The Dictionary to the IR Act defines “industrial dispute” as “a dispute (including a question or difficulty) about an industrial matter”. Section 6 defines “industrial matters” as “matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry”.

69. The provisions of the IR Act make it clear that Parliament intended for the Commission to be the principal organ to assist with the resolution of industrial disputes which may be resolved by a process of conciliation, and, if necessary, by arbitration and the making of awards: Secretary, Ministry of Health v New South Wales Nurses and Midwives’ Association (2022) 320 IR 249; [2022] NSWSC 1178 (“the Nurses Case”) at [33] (Walton J); Health Services Union v Health Secretary (NSW Ambulance) [2025] NSWIRComm 1014 at [15]-[16].

70. Although the IR Act encourages employers and unions to use the expertise of the Commission in the resolution of their disputes by conciliation and arbitration; ^[3] it does not make industrial action of itself unlawful in the absence of dispute orders. ^[4]

    3. The Nurses Case at [32], citing New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 1995 at 3850-3851 (The Hon Jeffrey W Shaw QC).

    4. Health Services Union v Health Secretary (NSW Ambulance) [2025] NSWIRComm 1014 at [13].

71. This stands in contrast to the system for regulating strikes in New South Wales which prevailed for most of the 20^th century, the legislative history of which is comprehensively outlined in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39 (“the PSA Case”) at [57]-[87]. Until the passage of the Industrial Relations Act 1991 (NSW), the Commission and its predecessors had no power to restrain actual or threatened industrial action, because in most cases industrial action would have been presumptively unlawful under the legislation anyway. ^[5] This history demonstrates an increasing emphasis on the resolution of industrial disputes by the Commission, including a significant expansion of the types of dispute order which it was entitled to make. ^[6]

    5. The PSA Case at [75], [86].

    6. The PSA Case at [87].

72. The IR Act’s Dictionary defines “industrial action” broadly as “a strike by employees or a lock-out by an employer” including: “a practice relating to the performance of work, adopted in connection with an industrial dispute, that restricts, limits or delays the performance of work”, or “a ban, limitation or restriction affecting the performance of work, or the offering or acceptance of work, that is adopted in connection with an industrial dispute”, or “any failure or refusal in connection with an industrial dispute to attend for work or to perform work”.

73. Part 2 of Chapter 3 of the IR Act deals with dispute orders. Relevantly, under s 138(1), a dispute order may be made only against a party to the industrial dispute, including an industrial organisation which has the power to notify the Commission of the existence of a dispute under s 130(1)(a).

74. The power under s 137(1)(a) to “order a person to cease or refrain from taking industrial action” extends to “making orders directing an industrial organisation to refrain from directing its members to engage in industrial action or to refrain from organising industrial action as defined in the IR Act”, and “contravention of such orders is not conditional on the strike or industrial action actually occurring”. ^[7] In the PSA Case at [122], Bathurst CJ (Gleeson JA and Simpson JA agreeing) recognised that orders of this kind assist the Commission in performing its functions of resolving industrial disputes through a process of conciliation and arbitration in a “prompt and fair manner” and by providing “a framework for the conduct of industrial relations that is fair and just” in accordance with the objects of the IR Act highlighted at [67] above.

    7. The PSA Case at [125].

The former “wages cap”

75. It is relevant to note that the industrial action at issue in these proceedings was taken to advance a claim for increased wages in circumstances where, until recently before this pay dispute arose, the Commission had been effectively deprived of its ability to fulfil its wage setting function for over a decade.

76. When making any award dealing with the remuneration of public sector employees, former s 146C of the IR Act, together with the former Industrial Relations (Public Sector Conditions of Employment) Regulation 2014, required the Commission to give effect to government policy. This limited any increase in public sector wages to 2.5% per annum, unless unions were able to demonstrate employee-related cost savings or productivity increases. The Regulation was amended on 24 June 2022 to increase the cap from 2.5% to 3%.

77. This so-called “wages cap” had the effect of suppressing public sector wages growth for an extended period from 2011 in the sense that it generally prevented the Commission from awarding an increase greater than 2.5% to recognise matters such as changes in work value and improvements in productivity: Fire Brigade Employees' Union v Industrial Relations Secretary (on behalf of Fire and Rescue NSW) [2025] NSWIRComm 1063 at [90].

78. Since the repeal of s 146C and the reconstitution of the Commission, including the re-establishment of the Industrial Court in July 2024, ^[8] it has been necessary for the Commission to remind major industrial organisations which have been involved in wage-related industrial action that, as I have highlighted above, the nature of the system for the resolution of disputes under the IR Act centres upon the orderly processes of negotiation, conciliation with the assistance of the Commission, and, if necessary, arbitration: Health Secretary, Ministry of Health v Australian Salaried Medical Officers' Federation (New South Wales) [2025] NSWIRComm 5 at [10]. The Association was one of those organisations. ^[9]

    8. Industrial Relations Amendment Act 2023 (NSW): Sch 1.2, 1.3[4].

    9. In the context of the making of the first dispute orders: Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association [2024] NSWIRComm 3 at [17]-[18].

Contravention of dispute orders

79. Section 139 of the IR Act governs the Industrial Court’s power with respect to alleged contraventions of dispute orders. The Court, “on application, must deal expeditiously with an alleged contravention of a dispute order”: s 139(1). It is required, before dealing with the alleged contravention, to summon the person to show cause why the Court should not take action for the contravention: s 139(2).

80. Section 139(3) provides that the Court may, after hearing any person who answered the summons:

(a) dismiss the matter if it finds that the dispute order was not contravened or if it finds that the circumstances were such that the Commission should take no action on the contravention,

(b) cancel the approval of an enterprise agreement,

(c) suspend or modify for any period all or any of the entitlements under an industrial instrument,

(d) cancel the registration of an industrial organisation or take any other action authorised by Division 2 of Part 3 of Chapter 5,

(e) impose a penalty on an industrial organisation or an employer as provided by subsection (4),

(f) make any other determination that the Commission considers would help in resolving the industrial dispute.

81. Section 139(4) provides:

The maximum penalty that may be imposed on an industrial organisation or employer is—

(a) except as provided by paragraph (b)—a penalty not exceeding in total $10,000 for the first day the contravention occurs and an additional $5,000 for each subsequent day on which the contravention continues, or

(b) if a penalty has previously been imposed on the industrial organisation or employer for a contravention of an earlier dispute order—a penalty not exceeding in total $20,000 for the first day the contravention occurs and an additional $10,000 for each subsequent day on which the contravention continues.

82. In light of the penalty imposed in the Nurses Case, it was common ground that s 139(4)(b) applied.

The alleged contraventions

83. In the first summons the Health Secretary alleged 17 contraventions. In summary, of these allegations the Association admitted the following contraventions of the first dispute orders:

1. On 9 and 10 September 2024, the Association contravened order A1 of the first dispute orders by not immediately taking steps to cease organising the first strike on 10 September 2024 (Contraventions 1 and 2). The particulars of Contraventions 1 and 2 referred to the actions that are set out at [24]-[32] above.

2. The Association contravened order A2(a) of the first dispute orders by not removing any reference to the first strike from its website or any documents linked to its website by 5:30 pm on 9 September 2024 (Contraventions 3 and 4). The particulars of Contraventions 3 and 4 referred to the actions that are set out at [24]-[32] above.

3. The Association contravened order A2(a) of the first dispute orders by not removing any reference to the first strike from its social media accounts, namely Facebook and YouTube, by 5:30 pm on 9 September 2024 (Contraventions 5 and 6). The particulars of Contraventions 5 and 6 referred to the actions that are set out at [29]-[30] above.

4. The Association contravened order A3 of the first dispute orders by inducing, advising, authorising, supporting, encouraging and directing its members to take industrial action, namely the first strike, on 9 and 10 September 2024 (Contraventions 9 and 10). The particulars of Contraventions 9 and 10 referred to the actions that are set out at [26]-[32] above and the proposition that “[t]he statements and actions of [the Association], and the failure of [the Association] to comply with the dispute orders A1 and A2, thereby, individually and collectively, continued to authorise, support, encourage and direct members of the Respondent to take strike action”.

84. The Association also admitted the following contraventions of the second dispute orders alleged in the first summons:

1. On 19 September 2024, and again from 20 to 24 September 2024, the Association contravened order A1 of the first dispute orders as varied by order 1 of the second dispute orders by not taking steps to cease organising the second strike on 24 September 2024 (Contraventions 12 and 13). The particulars of Contraventions 12 and 13 referred to the actions that are set out at [35], [37]-[39] and [41]-[48] above.

2. On 19 September 2024, and again from 20 to 24 September 2024, the Association contravened order A2 of the first dispute orders, as varied by order 2 of the second dispute orders, by failing to publish the Commission’s orders in a prominent position on its website by 5:30 pm on 19 September 2024 (Contraventions 14 and 15). The particulars of Contraventions 14 and 15 included as follows:

“(a) The Commission’s orders were published on another page of [the Association’s] website and not on the first page where the strike was advertised.

(b) The Commission’s orders were published on another page of [the Association’s] website, but the orders had to be located by scrolling down the webpage (and were not readily visible when opening that page).”

In addition, it was alleged specifically that “[t]here was no change to the website of [the Association] in relation to the positioning of the orders. Instead, more material was posted promoting the strike, such as details of the rallies”.

3. On 19 September 2024, and again from 20 to 24 September 2024, the Association contravened order A3 of the first dispute orders (the effect of which was varied by the second dispute orders) by inducing, advising, authorising, supporting, encouraging and directing its members to organise or take industrial action, namely the second strike, on 24 September 2024 (Contraventions 16 and 17). The particulars of Contraventions 16 and 17 referred to the actions that are set out at [35], [37]-[39] and [41]-[48] above and the proposition that the statements and actions of the Association, and its failure to comply with orders A1 and A3 of the first dispute orders (as varied) during the relevant periods “thereby, individually and collectively”, continued to “authorise, support, encourage and direct members of [the Association] to take strike action”.

85. The Association did not admit the following contraventions alleged in the first summons:

1. On 9 and 10 September 2024, the Association contravened order A2(b) of the first dispute orders by not publishing those orders in a prominent position on its website (Contraventions 7 and 8). The particulars of Contraventions 7 and 8 included as follows:

“(a) The Commission’s orders were published on another page of [the Association’s] website and not on the first page/homepage where the strike was advertised.

(b) The Commission’s orders were published on another page of [the Association’s] website but the orders had to be located by scrolling down the webpage (and were not readily visible when opening that page).”

In addition, it was alleged specifically that “[a]t 8.59pm on 9 September 2024 the Applicant’s representative wrote to the representative [of the Association] by email asking it to ‘carefully consider its position and comply with the orders of the Commission’. There was no response [from the Association] to this communication”.

2. From 10 to 30 September 2024, the Association contravened order A1 of the first dispute orders by not immediately taking steps to cease organising industrial action, namely work bans (Contravention 11). The particulars of Contravention 11 referred to the Association’s Work Bans Post set out at [64] above, as well as the following additional matters:

“(b) Some of the reported work bans include:

(i) Nurses undertaking patient transport functions at HealthShare NSW Patient Transport Service continually refused to perform patient transport functions each day from 9 September 2024 to 30 September 2024.

(ii) Flight nurses at the Aeromedical Control Centre (ACC) Air Ambulance, NSW Ambulance: refused to perform some administrative, data entry, billing work, and some P5 triaged jobs from 14 September 2024 to 30 September 2024.

(iii) Registered Nurses (RNs) and Clinical Nurse Coordinators (CNCs) at the Virtual Clinical Care Centre (VCCC), NSW Ambulance refused to conduct some Secondary Triage and Referral or assist with the Clinical Advice Line from 14 September 2024 to 30 September 2024.

(iv) From at least 12 September 2024 to 17 September 2024, RNs at the Illawarra Shoalhaven Local Health District engaged in work bans such as refusing to wash beds, refusing to remove linen, refusing to perform Emergency Care Assessment and Treatment (ECAT) protocols, and not collecting medications.

(v) On 12 September 2024, the Port Macquarie Branch Executive of the NSWNMA notified local management at the Mid North Coast Local Health District of actions the local branch will be undertaking "work to rule" and the implementing a number of other work bans, including not completing data entry, not collecting medication, not escorting patients to radiology, not undertaking any clerical work and not discharging patients.

(vi) On or around 13 September 2024, the NSWNMA representatives from the Endoscopy Unit at Lismore Base Hospital advised of numerous work bans to commence on 16 September 2024, including garbage removal, emptying linen, cleaning beds, terminal cleaning and completing paperwork.

(c) There has been no statement published by the Respondent on its website or other forum that has asked members to cease industrial action by imposing work bans.”

86. In the second summons the Health Secretary alleged 10 contraventions of the third dispute orders of which, in summary, the Association admits the following:

1. On 8 November 2024, and again from 9 to 13 November 2024, the Association contravened order 1(1) of the third dispute orders by taking steps to cease organising the third strike on 13 November 2024 (Contraventions 18 and 19). The particulars of Contraventions 18 and 19 referred to the actions that are set out at [49]-[59] above.

2. On 8 November 2024, and again from 9 to 13 November 2024, the Association contravened order 2(1) of the third dispute orders by not removing references to the third strike from its website or any documents linked to its website and its social media accounts, namely Facebook, Instagram and LinkedIn, by 5:30 pm, 8 November 2024 (Contraventions 20 to 23). The particulars of Contraventions 20 to 23 referred to the actions that are set out at [49]-[59] above.

3. On 8 November 2024, and again from 9 to 13 November 2024, the Association contravened order 3 of the third dispute orders by inducing, advising, authorising, supporting, encouraging and directing its members to organise or take industrial action, namely the third strike, on 13 November 2024 (Contraventions 26 and 27). The particulars of Contraventions 26 and 27 referred to the actions that are set out at [49]-[59] above and the proposition that the statements and actions of the Association, and its failure to comply with orders 1 and 2 of the third dispute orders during the relevant periods thereby “individually and collectively” continued to authorise, support, encourage and direct members of the Association to take strike action.

87. The Association did not admit the following contraventions alleged in the second summons:

1. On 8 and 9 November 2024, the Association contravened order 2(2) of the third dispute orders by not publishing those orders in a prominent position on its website (Contraventions 24 and 25). The particulars of Contraventions 24 and 25 included as follows:

“(a) The Commission’s orders were published on another page of [the Association’s] website and not on the first page / homepage where the strike was advertised.

(b) The Commission’s orders were published on another page of [the Association’s] website but the orders had to be located by scrolling down the webpage (and were not readily visible when opening that page).”

In addition, it was alleged in particular that “[t]here was no change to the website of [the Association] in relation to the place of the orders. The website however continued to add content promoting the strike action thereby moving the orders further down the page”.

The proper approach to imposing penalties under ss 139(3)(e) and 139(4) of the IR Act

88. Section 139(3)(e) of the IR Act provides for the imposition of civil penalties. ^[10]

    10. Cf. the PSA Case at [51]. See also the Nurses Case at [65] citing with approval Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union (NSW) (No 2) (2013) 231 IR 349; [2013] NSWIRComm 25 at [55].

89. The Health Secretary contended for an unqualified application of the approach to imposing civil penalties that was established by the High Court in Pattinson. She submitted that there is “no compelling reason in principle, or from the text and structure of the IR Act, to depart from” this approach.

90. In Pattinson at [38]-[39], the High Court held that the “proportionality principle” − which required that a penalty imposed must not be disproportionate to the seriousness of the offending conduct − was not applicable to the imposition of civil penalties because retribution has no part to play. Instead, the majority (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) at [15] held that civil penalties are imposed “primarily, if not solely” for the purpose of deterrence of further contraventions of a like kind, and (at [17]) accepted that “a civil penalty…must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”.

91. This approach means that there is no constraint on the formulation of an appropriate penalty by the objective circumstances of the contravening conduct. ^[11] Because deterrence is the principal object of the imposition of a civil penalty, considerations such as the seriousness of the contravening conduct are relevant only to the extent that they shed light on what penalty is required to achieve general and specific deterrence. ^[12] Similarly, where multiple contraventions are concerned the principles relating to “totality” and course of conduct may be applied “as an analytical tool so as to ensure that the overall penalty is not oppressive or disproportionate in the sense that it is greater than necessary to achieve the object of deterrence”. ^[13]

    11. Philip Boncardo and Ben Bromberg, “Civil Penalties in Industrial Law” in Deniz Kayis, Eloise Gluer and Samuel Walpole (eds), The Law of Civil Penalties (2023, The Federation Press) at 274.

    12. Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992 at [164].

    13. Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992 at [165].

92. The principles guiding the imposition of civil penalties established in Pattinson are succinctly summarised by Wheelahan J in Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 781 at [13]. For the reasons set out below, I adopt and apply these principles with one qualification that is rooted in the distinctive statutory text and context of this Court’s power to impose penalties for the contravention of dispute orders.

93. The primacy of the purpose of deterrence (specific and general) in the imposition of civil penalties cannot be doubted in light of Pattinson. The universal exclusivity of this purpose, however, has been questioned.

94. In Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (2023) 322 IR 233; [2023] FCA 72 at [85]-[93], Rangiah J considered whether the High Court in Pattinson definitively held that factors unrelated to deterrence could never be applied to reduce a civil penalty. His Honour observed at [88] that “[i]t is possible that the High Court refrained from definitively stating that the only purpose of a penalty is deterrence in order to leave open the possibility that a penalty may be reduced by some public interest or other factors that are inconsistent with deterrence. The utilitarian value of admissions might be in that category” (emphasis in original).

95. Rangiah J (at [92]) ultimately did not consider it necessary to reconcile the discounting of penalties for the utilitarian value of admissions with Pattinson. This was because special leave to appeal on a particular ground had been refused in Pattinson such that there was no dispute before the High Court that the primary judge had erred by imposing penalties without applying the material discount for cooperation to which the respondents were entitled.

96. Nevertheless, Rangiah J held that the utilitarian value of admissions, even unaccompanied by contrition, must be taken into account and may operate to reduce the penalty that would otherwise have been imposed. His Honour so concluded in circumstances where there was no suggestion or argument that discounting a penalty to reflect the utilitarian value of admissions was compatible with the purpose of deterrence. ^[14]

    14. Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (2023) 322 IR 233; [2023] FCA 72 at [69].

97. In addition, and of particular relevance for present purposes, two decisions of the Supreme Court of NSW have qualified the approach endorsed in Pattinson, in point of principle, when applied to the imposition of penalties under s 139 of the IR Act. Firstly, in the Nurses Case, Walton J found some differences between the statutory context of the Fair Work Act 2009 (Cth) and the IR Act such that the principles in Pattinson were not applicable without some qualification. His Honour at [728] said:

“First, although the majority’s judgment was expressed broadly, their Honours nevertheless emphasised that their decision based on the features of the Act in that case, that is, the Fair Work Act: see, eg, at 322 [66]. The civil penalty provisions in s 546 of that Act have a ‘statutory function of securing compliance with provisions of the [statutory] regime’: Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 at 495 [24] (French CJ, Kiefel, Bell, Nettle and Gordon JJ, as Kiefel CJ then was) (‘Commonwealth v FWBII’). In this respect, the purpose of civil penalties in s 546 of the Fair Work Act and s 139 of the NSW Act are distinguishable. Although securing compliance with orders of the Commission is an important purpose, the latter [NSW] regime also serves the important purpose of helping to resolve the industrial dispute between the parties and promoting the system of conciliation and arbitration established by the Act.

(Emphasis added).

98. His Honour observed that the regime for dealing with contraventions of dispute orders under the IR Act is distinguished in this way by empowering the Industrial Court − not only to impose civil penalties − but also to “make any other determination that the Commission considers would help in resolving the industrial dispute” pursuant to s 139(3)(f): the Nurses Case at [729] citing Fagan J in Industrial Relations Secretary v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (2017) 93 NSWLR 723; [2017] NSWSC 71 at [37].

99. His Honour also highlighted the relevance of considering whether an industrial dispute continues to be or is no longer a “live issue” that calls for the Court’s intervention to restore industrial order by imposing civil penalties under s 139(3)(g) specifically to deter further industrial action as a means of dispute resolution: the Nurses Case at [730] citing Bluescope Steel Ltd (formerly known as BHP Steel Ltd) v The Australian Workers’ Union, New South Wales [2006] NSWIRComm 338 at [40] and Director-General, NSW Department of Education and Training v NSW Teachers Federation [2010] NSWIRComm 44 at [40]-[41].

100. His Honour identified a second basis on which to qualify the approach in Pattinson at [733]:

“Secondly, there is a tension with the reference to the ‘cost of doing business’ in Pattinson with s 139 of the Act. The concept of the ‘cost of doing business’ is very understandable in the context of competition and consumer law where, for example, the advantage to be gained from engaging in unlawful anti-competitive behaviour or making misleading and deceptive statements can be clearly seen. It can also be discerned in the facts of Pattinson where the union dues collected from the implementation of a ‘no ticket, no start’ policy can be estimated. But it becomes more difficult for a court to calculate the ‘cost’ or gains, in a monetary amount, from organising or taking industrial action in support of a claim for conditions of employment for its members. The prosecutor did not suggest how this should be calculated or considered in these proceedings.”

101. Despite the differences, his Honour held that deterrence was an important consideration under both regimes and that Pattinson was generally applicable, with some qualifications. Indeed, in the Nurses Case at [732], his Honour nevertheless determined to impose a penalty “that will apply the full force of general deterrence”.

102. Secondly, the Health Secretary rightly conceded that in Secretary, Department of Education v Australian Education Union New South Wales Teachers Federation (NSWTF) Branch (No 2) [2022] NSWSC 1365 (“the Second Teachers Case”), Adamson J adopted the approach taken in the Nurses Case, albeit while also asserting that her Honour’s assessment of penalty nevertheless focussed on deterrence in line with the doctrine in Pattinson. I agree that in the Second Teachers Case her Honour adopted, as a matter of principle, the approach articulated by Walton J in the Nurses Case.

103. Her Honour initially rejected a submission (at [75]) that the Explanatory Note to the Bill which became the IR Act demonstrated that the Fair Work Act and the IR Act were not analogous. However, Adamson J ultimately embraced the proposition that Pattinson could be distinguished because of the differences between the statutes. ^[15] Her Honour held that, pursuant to s 139(3) of the IR Act, a “fine ought be set at an appropriate level having regard to the particular purposes of general and specific deterrence, as well as, to borrow Walton J’s words in [728] of The Nurses Case Case [sic], ‘the important purpose of helping to resolve the industrial dispute between the parties and promoting the system of conciliation and arbitration established by the Act’.” ^[16] Her Honour’s endorsement of the principle that civil penalties under s 139(3) of the IR Act also serve the purpose of resolving the underlying industrial dispute rested upon the premise, articulated by Walton J in the Nurses Case at [728] and [731], that Pattinson can be distinguished because the statutory function of s 546 of the Fair Work Act is not identical to the function served by s 139 of the IR Act.

     15. Contrary to the assertion that her Honour had rejected such a submission in Matthew Peckham, Cam Truong KC, Ian Latham and Amanda Storey, Civil Penalties in Australia (2025, LexisNexis) at 204 [5.26].

     16. The Second Teachers Case at [80].

104. Her Honour otherwise regarded the notion that the only object of civil penalties is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravener and others as being “inapposite” in a case where, in breaching dispute orders, a union can be taken to have been responding to the concerns of its members about the level of their remuneration: the SecondTeachers Case at [78]-[79]. This was because her Honour agreed with Walton J in the Nurses Case at [733] (extracted at [100] above) that the concept of the “cost of doing business” which underpinned the reasoning in Pattinson does not have any particular meaning in this context.

105. I agree with this proposition and reject the Health Secretary’s contrary contention. The Association’s pursuit of its members’ industrial interests in this context is quite different to the concept of “doing business” at least in the sense of engaging in unlawful conduct which may be sufficiently profitable or monetarily rewarding to absorb the “cost” of fines as an acceptable and necessary or consequential expense.

106. The Association contended for the approach taken by Walton J in the Nurses Case which, as I have found, is supported by the SecondTeachers Case, and which I adopt. The effect of this approach, according to the submission ultimately reached by Association, is that the penalty to be imposed should be assessed by reference to the proposition that “there is no current necessity…[for a] deterrent to stop the Association from engaging in ongoing industrial action”. This is because the parties have since agreed to submit their wages dispute to resolution by arbitration before the Commission. I accept the Association’s contention in this regard.

107. At the heart of the Health Secretary’s contention for the unqualified application of the doctrine in Pattinson is the notion that the purpose of the power to impose a penalty under s 139(3)(e) of the IR Act can be distinguished from the purposes underlying the other measures available to the Commission that are set out in that subsection. She submitted that “it is difficult to see” how the imposition of a penalty under s 139(3)(e) (or the exercise of any of the powers under ss 139(3)(b) to (d) “directly achieves” the purpose of resolving industrial disputes; while conceding that s 139(3)(f) plainly is a power to resolve disputes and that taking no action on the contravention pursuant to s 139(3)(a) may be “more directly relevant” to settled disputes.

108. This argument misconceives the particular nature and operation of s 139 of the IR Act. The power to impose a penalty pursuant to s 139(3)(e) for a contravention of dispute orders must be construed alongside its statutory context and the subject matter, scope and purpose of the IR Act as a whole: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]. I make the following two observations about the relevant statutory context and purpose.

109. Firstly, by the terms of s 139(3), the power to impose a penalty may be exercised by itself or in combination with any one or more of the remedies or measures available in s 139(3), including in s 139(3)(f): “any other determination that the Commission considers would help in resolving the industrial dispute” (emphasis added). The reference in (f) to “any other” such determination suggests that each of the measures available to the Commission in s 139(3) are, at least in part, similarly directed to the purpose of helping to resolve the underlying dispute. They may be utilised individually or in any combination to achieve that purpose.

110. Secondly, unlike s 546 of the Fair Work Act, s 139(3) sets out the powers of the Court in dealing with a contravention of only one kind of order, namely, a dispute order under s 137(1). This kind of order serves a specific function. As I have observed at [74] above, such an order is intended to assist the Commission in performing its functions of resolving industrial disputes through a process of conciliation and arbitration in accordance with the objects of the IR Act: the PSA Case at [122]. The imposition of civil penalties for breach of industrial instruments is to be found in another part of the IR Act (s 357).

111. This stands in contrast to s 546 of the Fair Work Act which permits pecuniary penalties to be ordered for contraventions of “civil remedy provisions” set out in the table in s 539 which impose a wide range of disparate obligations including compliance with minimum employment conditions enshrined in the National Employment Standards. It has been observed that “most of the provisions of the Fair Work Act which impose an obligation, provide a protection, or otherwise establish norms of conduct, attract a civil penalty if they are contravened”, ^[17] and that the imposition of civil penalties under s 546 is the primary method of enforcing employment obligations in the federal system. ^[18]

     17. Philip Boncardo and Ben Bromberg, “Civil Penalties in Industrial Law” in Deniz Kayis, Eloise Gluer and Samuel Walpole (eds), The Law of Civil Penalties (2023, The Federation Press) at 264.

     18. Andrew Stewart, Anthony Forsyth, Mark Irving, Richard Johnstone and Shae McCrystal, Creighton & Stewart’s Labour Law (7th ed, 2025, The Federation Press) at [19.34], 758-759.

112. Of course, as was acknowledged in both the Nurses Case and the Second Teachers Case, securing compliance with the dispute orders of the Commission is an important purpose of s 139(3)(e) of the IR Act. However, to limit its function to this extent − and to regard s 139(3)(e) and s 546 of the Fair Work Act as perfectly analogous counterparts as the Health Secretary contends − is to ignore the true nature and purpose of the kind of orders to which the compliance regime in s 139(3) is exclusively directed.

113. This means that it is relevant for this Court to consider whether the industrial dispute continues to be or is no longer a “live issue” that calls for the Court’s intervention to restore industrial order and promote the resolution of the underlying industrial dispute such as by imposing civil penalties specifically to deter further industrial action.

174. There is a difficulty with the Association’s approach to the penalty for Contravention 11. The Association accepted the appropriateness of the Health Secretary’s proposal for separate penalties to be imposed according to the four distinct courses of conduct referrable to each of the four instances or types of industrial action, namely the first, second and third strikes and, separately, the work bans. However, its position on the maximum penalty for Contravention 11 on a single day is inconsistent with this approach in that it conflates into a single course of conduct the Association’s actions in organising the first strike together with the work bans notified at Port Macquarie Hospital.

175. This inconsistency is indicative of the qualitative differences between the actions of the Association in organising the different forms of industrial action in the circumstances as established by the evidence before the Court.

176. The common law course of conduct principle ^[29] seeks to prevent an offender from being punished twice for the same “criminality”. As stated in Construction, Forestry, Mining and Energy Union v Cahill, this requires “careful identification of what is “the same criminality” and that is necessarily a factually specific inquiry”. ^[30] It is “necessary to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penalties, in order to avoid double punishment.” ^[31] A single course of conduct thus requires an interrelationship between the legal and factual elements between the two offences. ^[32]

     29. As distilled in Royer v Western Australia (2009) 197 A Crim R 319; [2009] WASCA 139 at [22], and the authorities discussed in the Nurses Case at [671]-[680].

     30. (2010) 194 IR 461; [2010] FCAFC 39 at [39].

     31. Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 366 ALR 698; [2019] FCAFC 59 at [124].

     32. Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461; [2010] FCAFC 39 at [39].

177. In this case, the legal relationship is established because the contraventions stemmed from the same orders, namely, the first dispute orders. However, I consider that there is an insufficient interrelationship between the factual elements of the first and second contravention groups.

178. Although both instances of industrial action were taken in pursuit of the same ultimate industrial goal - a 15% pay rise for nurses - a “[b]are identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct acts of offending acts or omissions”. ^[33]

     33. Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461; [2010] FCAFC 39 at [39]. See also Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (2021) 307 IR 411; [2021] FCA 622 at [114].

179. All of the contravening and organising conduct of the Association relating to the first group of contraventions was geared towards the promotion and coordination of the first strike only. This was a mass statewide strike involving the complete withdrawal of labour for a limited period (12 ½ hours) that was centrally coordinated by the Association.

180. In contrast, the evidence failed to establish that, at any time after the first dispute orders were made, the Association had continued to organise and coordinate ongoing work bans across the state as part of a centrally coordinated campaign which included the organisation and promotion of the first strike. The provision of the Port Macquarie Letter is, at least on the evidence, an isolated instance of the Association acting through one of its branches to notify the implementation of work bans at a single hospital. It took place two days after the first strike had concluded, and was not contemplated or foreshadowed by the Association’s online communications by which it organised the first strike. The evidence of the Association’s organisation of the first strike did not indicate or imply that work bans would be imposed subsequently at Port Macquarie Hospital, or at any other hospital, either as a continuation or escalation of the withdrawal of labour taken during that strike.

181. Similarly, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458; [2017] FCAFC 53 at [95], the majority (Dowsett and Rares JJ, North J dissenting) distinguished between organising and participating in a blockade on one day and, after the blockade came to an end, making a threat to return the next day. They held that “[t]here was no evidence or explanation about how that threat was part of the original coercion, other than to add a greater sting to it”, and found the subsequent threat to have been “a new, deliberate act of unlawful coercion” which must be penalised as a separate contravention.”

182. A different approach was taken to a work stoppage followed by a threat of further stoppages in circumstances where it was found that the contravener’s conduct in implementing the initial stoppage itself indicated that the stoppage would continue until his demands were met: Construction, Forestry, Maritime, Mining and Energy Union v Williams (2009) 191 IR 445; [2009] FCAFC 171 at [22]-[25].

183. The insufficient connection or interrelationship between the first strike and the work bans notified on 12 September 2024 may be contrasted with the single course of conduct found in the Nurses Case at [681]-[688] where, despite variations in the length of strikes implemented by different branches of the Association at different locations, there was a centrally coordinated effort to strike for a single 24-hour period and where the evidence demonstrated that the Association’s actions were all geared towards that single coordinated strike action.

184. It may also be contrasted with the single course of conduct comprising three instances of industrial action established in the Second Teachers Case at [67], namely: strike action, a ban on implementing all new Government policies and initiatives and the act of walking out of any school that was being visited by a Government Member of Parliament. Adamson J found that they were “three arms of attack” amounting to a single contravention because the applicant in that case had pleaded the contravention in this manner, in circumstances where the union’s organising activity involved communications and “member alerts” directing or authorising members to undertake all three forms of action in a coordinated fashion.

185. The contraventions thus lack any temporal link or other circumstance compelling the conclusion that both the organisation of the first strike and the communication of the Port Macquarie Hospital Letter arose out of substantially the same act, omission or occurrence.

186. The position might have differed if the evidence established that the Association’s conduct in relation to the first strike and the imposition of work bans had proceeded together as a continuum of coordinated organising activity in breach of the first dispute orders. This may have provided a firmer foundation for inferring a sufficient nexus between the first strike and any subsequent work bans. However, for the reasons that I have given at [139]-[170] above, the evidence fell short of doing so.

187. The organisation of work bans at Port Macquarie hospital, which on the evidence before me was organised by the Association independently of the prior statewide strike, is a distinct category of conduct in breach of the first dispute orders. I decline to apply the course of conduct principle in these circumstances. I do not consider that it is necessary to do so to ensure that the overall penalty is not oppressive or disproportionate in the sense that it is greater than necessary to achieve the object of deterrence. ^[34]

     34. Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Ltd [2022] FCA 992 at [165].

188. Therefore, I find that the Association’s actions in notifying the commencement of work bans at Port Macquarie Hospital on 12 September 2024 should be treated as a separate course of conduct in contravention of the first dispute orders which is distinct from the organisation of the first strike, and thus attracts a maximum penalty of $20,000.

189. It follows from my findings that the 27 alleged contraventions should be treated as four separate courses of conduct and contraventions to which applies four maximum penalties in the total amount of $190,000, as follows:

Contravention	Duration	Maximum
First strike – the first dispute orders (Contraventions 1-10 alleged in the first summons)	2 days (9 and 10 September 2024)	$30,000
Work bans – the first dispute orders (Contravention 11 alleged in the first summons)	1 day (12 September 2024)	$20,000
Second strike – the second dispute orders (Contraventions 12-17 alleged in the first summons)	6 days (19 to 24 September 2024)	$70,000
Third strike – the third dispute orders (Contraventions 18-27 alleged in the second summons)	6 days (8 to 13 November 2024)	$70,000
TOTAL	15 days	$190,000

The appropriate penalty

199. It is appropriate for the Court to impose pecuniary penalties on the Association for its contravening conduct. This is common ground. The penalties ought be set at an appropriate level having regard to the particular purposes of general and specific deterrence, as well as − to echo Walton J in the Nurses Case at [728] and Adamson J in the Teachers Case at [80] − “the important purpose of helping to resolve the industrial dispute between the parties and promoting the system of conciliation and arbitration established by the Act.”

200. To the extent that the objective seriousness of the Association’s conduct sheds light on the penalty required to deter future contraventions, I have found that it actively promoted, marshalled and coordinated each of the strike actions and that, on each occasion, it did so flagrantly, stridently and in unapologetic disregard of the Commission’s dispute orders. In these circumstances, there is a heightened need to give substantial weight to general deterrence, as observed in the PSA case at [157] and the First Teachers Case at [397], and consistently with Pattinson. In this case, the overall penalty should reflect the force of general deterrence.

201. I agree with the Health Secretary that the penalties should also reflect an element of specific deterrence to deter the Association from attempting to resolve disputes by contravening the Commission’s dispute orders. I recognise that the Association “has generally had a good record in terms of industrial behaviour over a long period of time, including by complying with orders, directions and recommendations of the Commission, and actively participating in conciliation”: the Nurses Case citing Director General, NSW Department of Health v New South Wales Nurses Association (No 3) [2010] NSWIRComm 190. However, its conduct in contravening the first, second and third dispute orders follows upon its more recent contravening conduct in 2022 as determined in the Nurses Case.

202. Furthermore, as the Taylor J recognised in making recommendations in the midst of the subject dispute in Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association [2024] NSWIRComm 4 at [12]:

“It is a matter of some concern that the Nurses Federation, having invoked the jurisdiction of this Commission to resolve the dispute over its log of claims, then determined not to prosecute that dispute by conciliation and arbitration before this Commission, but instead by taking industrial action. That is notwithstanding the efforts that this Commission took to deal with its dispute as expeditiously as possible in the manner that I have described.”

203. The Commission’s efforts to deal with the dispute referred to by the President in this passage included an offer conveyed to the parties on 14 August 2024 to conciliate the dispute expeditiously, which the Association declined without indicating at that time anything about the potential for industrial action in the form of the first strike held on 10 September. Shortly thereafter on 5 September 2024, the Association notified its members of the first strike.

204. The Association’s contravening conduct was a calculated part of an industrial strategy of prioritising direct action − at least for an initial period − over the peaceful means of dispute resolution by conciliation and arbitration which it had earlier initiated but subsequently eschewed. The Association’s strategy anticipated the making of dispute orders by the Commission. Ms Smith, the Association’s President at the time, for example, told its members that the Association had “expected” the first dispute orders while assuring them that the first strike “is most definitely going ahead”.

205. The circumstances surrounding the contravening conduct in respect of the third strike was particularly egregious. This involved the Association’s failure to adhere to a prior commitment it gave to the Commission that it would cease all industrial action pending discussions with the Health Secretary and any subsequent arbitration, in accordance with the President’s recommendation. In Health Secretary, NSW Ministry of Health v New South Wales Nurses and Midwives Association (No 2) [2024] NSWIRComm 9 at [11] Taylor J said:

“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. I view that as a failure by a major industrial party to abide by a commitment given to this Commission.”

206. The Association conceded that this conduct carries weight in the Commission’s assessment of the objective seriousness of its conduct with respect to the third strike. As to this, the only submission put in its favour was that the Association’s “commitment” to the Commission fell short of a binding undertaking. It may be accepted that the Commission’s recommendations made in the course of conciliating industrial disputes are not binding on the parties. It is not necessary to determine the enforceability of the Association’s commitment to abide by the President’s recommendation. It suffices to observe that, by resiling from that commitment the Association acted unlawfully in contravention of the third strike orders.

207. The Association’s conduct in this regard is to be deprecated. It is a significant blot on the Association’s historical record as a good and responsible industrial citizen. And it diminishes the extent of leniency that this record would otherwise have warranted.

208. The Association conceded that there is “some level of greater seriousness” of its contravening conduct in organising the third strike (in comparison to the preceding two strikes) because of its failure to abide by its commitment to the Commission. I agree. The penalty to be imposed for this contravening conduct should reflect the greater seriousness of the Association’s conduct and the concomitant need for deterrence.

209. At the other end of the spectrum is the relatively low objective seriousness of Contravention 11 involving the work bans at Port Macquarie Hospital. The evidence does not demonstrate this to be anything other than an isolated instance of organising activity by one branch of the Association, which may or may not have resulted in the implementation of actual work bans at Port Macquarie Hospital. I consider the need for deterrence against future contraventions of this kind to be modest.

210. I accept that the motivation of the Association and its members is part of the circumstances surrounding the contravening conduct. It is clear from the Association’s historical record that nurses do not take industrial action lightly. And it is clear from the evidence of the Association’s communications with its members that they strongly believed that their pay and conditions were not appropriate, and felt very intensely that the position taken by the Health Secretary did not adequately reflect their work value.

211. The scheme of the IR Act is, however, designed to encourage employers, such as the Health Secretary, and employee organisations, such as the Association, to resolve their disputes by conciliation and arbitration instead of taking or organising industrial action in defiance of the Commission’s orders. Unlike the position of some public sector workers who took direct action during the era of the former wages cap, the Association’s contravening conduct cannot be explained by frustration with any constraint on the Commission’s capacity to resolve its pay dispute to the satisfaction of the Association and its members: Cf. the Second Teachers Case at [88]. In making the first dispute orders, I emphasised the need for the parties to utilise the Commission’s extensive conciliation and arbitration powers which were effectively restored after the repeal of s 146C and the reconstitution of the Commission, including the re-establishment of the Industrial Court in July 2024 (see at [75]-[78] above): Health Secretary, Ministry of Health v NSW Nurses and Midwives’ Association [2024] NSWIRComm 3 at [24].

212. I broadly accept the Health Secretary’s evidence of the impact of the strike actions, which was largely recorded in “situation reports” provided by Ms Allen. Although not derived from Ms Allen’s first-hand knowledge, these reports were provided contemporaneously at multiple times throughout the day, collated information gathered by multiple teams at the Ministry of Health and were coordinated by a central System Flow Centre that was set up to assist with management of the strike action.

213. These reports contained estimates that a total of over 18,000 nurses participated in taking industrial action across the three strikes. The strike actions resulted in significant impacts on the provision of health services across the state. Although Ms Allen could not identify any forced closures of entire facilities or wards, there were significant numbers of bed closures, i.e. about 76 beds were closed during the first strike, 167 during the second strike and 113 during the third strike. There was also evidence that a substantial number of surgical cases had to be cancelled or rescheduled, i.e. up to about 520 surgical cases during the first strike, 545 during the second strike and 711 during the third strike.

214. I accept that, given the nature of these records, the true extent of the strike impacts may vary from these figures. However, even accounting for the real possibility of such variance, I am satisfied that the Health Secretary has demonstrated that the disruption caused by the strike action was substantial and not insignificant. Some cancelled or rescheduled surgical procedures very likely resulted in real and considerable inconvenience for the affected patients.

215. However, the evidence of the strike impacts relied on by the Health Secretary was not as extensive as it might have been. Except perhaps in one instance at Coffs Harbour Acute Mental Health Unit involving an agitated patient who experienced prolonged seclusion, the evidence did not disclose any specific adverse health outcomes for individual patients.

216. In addition, I accept Ms Allen’s evidence to the effect that there was a significant degree of co-operation and assistance provided by the Association in mitigating the effects of each of the strikes, including timely communications with Ms Allen’s team at the Ministry and with local managers about the anticipated staffing shortfalls at various health facilities. I note, however, that her evidence was that the extent of this co-operation was mixed or variable, with some instances or problematic or delayed responses from the Association.

206. The length of the contravening conduct associated with the second strike must be seen in the context that the Association was, in the contravention period leading up to the second strike, actively engaged with the Health Secretary in conciliation proceedings before Commissioner Muir in attempting to ameliorate the effects of the strike including by the provision of minimum staffing levels to ensure patient care.

207. It is also the case that, although the contravention concerning the second strike continued over six days, strike action occurred over only one 24-hour period. This was also the case for the contravention concerning the third strike which also continued for a period of six days.

208. Overall, the evidence shows that the Association’s actions were not designed to inflict maximum disruption to the operations of the NSW Health Service. I accept that the Association made some significant efforts to reduce the impact of patients throughout each of the strike days, including by participating in conciliation before the Commission during the period leading to the second strike.

209. This effort was also evident in some of the Association’s communications with its members urging them to notify their managers of their intention to take strike action as soon as possible in order to allow them to plan for their absence, and emphasising the need to plan for “life preserving staffing” levels, notwithstanding the Association’s call for maximum participation. In this respect, the responsible nature of the Association’s actions redounds to its credit in my assessment of the likelihood of the Association reoffending.

210. However, I accept the Health Secretary’s submission that the Association has not expressed any remorse or contrition. This is relevant to the need for specific deterrence. The most that the Association was able to muster was an acknowledgement from the bar table by Mr Dunstan, expressly on instructions, that its contravening conduct was “serious”. This is not an expression of remorse nor contrition. Indeed, the Association chose not to call any evidence at all. The Court did not have the benefit of any evidence from any of the Association’s officials explaining the circumstances of its conduct or offering any indication of remorse for the disdain with which it repeatedly treated the Commission’s orders and, as demonstrated by the abandonment of its commitment to abide by the President’s recommendation, the Commission’s dispute resolution process generally. There is no suggestion by the Association that its admission of the contraventions relating to the strike actions demonstrates contrition on its part.

211. Nevertheless, the utilitarian value of the Association’s admissions to most (but not all) of the pleaded contraventions, even unaccompanied by contrition, must be taken into account. I accept that this consideration operates to reduce the penalties in respect of the strike actions that would otherwise have been imposed: Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (2023) 322 IR 233; [2023] FCA 72 at [93].

212. I weigh these matters, together with all the relevant factors, in the process of instinctive synthesis through which I am required determined the appropriate penalties: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [39].

213. The final matter that I take into account, for the reasons I have expressed at [99]-[116] above, is the fact that the industrial dispute is no longer a “live issue” that calls for the Court’s intervention to restore industrial order by imposing civil penalties specifically to deter further industrial action as a means of dispute resolution. Since the Association’s contravening conduct it has, together with Health Secretary, commendably resumed the path of orderly and peaceful dispute resolution through the Commission’s arbitration process, as intended by the IR Act. The Association’s subsequent return to the conciliation and arbitration system established by the IR Act justifies the imposition of penalties that are somewhat lower than what might have been necessary to promote the resolution of the underlying industrial dispute such as by deterring further industrial action.

214. It is important to set the penalties at levels that it will deter not only the Association but also others who may consider breaching dispute orders and to encourage such organisations to resolve industrial disputes in accordance with the system of conciliation and arbitration provided in the IR Act. The major public sector industrial parties in this state can be in no doubt that, in the post-wages cap era, there is no excuse (if ever it was so considered) for attempting to resolve disputes by taking industrial action in defiance of the Commission’s dispute orders when they now have access to an impartial, fully restored and adequately endowed arbitration system: Cf. Health Secretary, Ministry of Health v Australian Salaried Medical Officers’ Federation (New South Wales) [2025] NSWIRComm 5 at [16].

215. As the NSW Court of Appeal has recently emphasised in a different context, a central aspect of the rule of law in any democratic society requires parties to comply with the orders made by the courts in determining their disputes: Commissioner of Police (NSW Police Force) v Naser [2025] NSWCA 224 at [16]. ^[35] This applies equally to the Commission’s dispute orders that are made as an integral part of the scheme and design of the IR Act for the orderly and peaceful resolution of industrial disputes.

     35. Citing Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 629 at [79], quoted with approval in AGL Energy Ltd v Hardy (No 2) [2017] FCA 863 at [40]. See also Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129; [2006] FCAFC 118 at [43].

216. There was no evidence before me of the Association’s resources or capacity to pay substantial fines. However, on the basis of Mr Dunstan’s invitation for the Court to infer that the Association is a significant industrial organisation with thousands of members, and having regard to the Commission’s longstanding experience with the Association as very substantial and well-resourced industrial organisation, ^[36]  there is no reason to reduce the penalty based on the Association’s capacity to pay. ^[37]

     36. See the Nurses Case at [751] and the authorities referred to therein.

     37. See the Nurses Case at [751] and the authorities referred to therein.

217. Having regard to the matters referred to above, I have determined to impose four penalties in the total sum of $130,000. Applying the principle of totality, I am satisfied that this overall penalty is not oppressive or disproportionate in the sense that it is greater than necessary to achieve the object of deterrence.

Order

229. I make the following order:

1. Pursuant to s 139(3)(e) of the Industrial Relations Act 1996 (NSW), the Court imposes the following penalties on the respondent:

1. a penalty of $21,000 for contravening dispute orders made by the Commission on 9 September 2024 in respect of the respondent’s conduct on 9 and 10 September 2024;

2. a penalty of $4,000 for contravening dispute orders made by the Commission on 9 September 2024 in respect of the respondent’s conduct on 12 September 2024;

3. a penalty of $49,000 for contravening dispute orders made by the Commission on 9 September 2024 (as varied on 18 September 2024) and 18 September 2024 in respect of the respondent’s conduct from 19 to 24 September 2024;

4. a penalty of $56,000 for contravening dispute orders made by the Commission on 8 November 2024 in respect of the respondent’s conduct from 8 to 13 November 2024.

**********

Endnotes

Amendments

12 November 2025 - "there is no reason to reduce the penalty based on the Association’s capacity to pay" added at the end of the second sentence in paragraph [227]

Decision last updated: 12 November 2025