Gisborne Hospital nurse and union delegate Christine Warrander came to Wellington to attend the hearing. She's previously told RNZ striking is a last resort because nurses are so burnt out. Photo: RNZ / Ruth Hill
Exhausted nurses are working while sick and injured, missing meal breaks, and live with the constant fear of making a fatal mistake, while some of their patients wait days to have their catheters changed.
That is the daily reality inside Gisborne Hospital's acute care unit, according to nurses' evidence read out in the Employment Court on Monday.
However, health bosses say their plans for a one-hour strike on Wednesday are unlawful and they have asked the judge for an injunction.
Te Whatu Ora lawyer Susan Hornsby-Geluk said the union could not argue the action was about health and safety because there was no immediate threat in this case, as required by the law.
"It must be established that the risk to health and safety would be eliminated or lessened by the strike action, or alternatively safety or health would be enhanced.
"In other words, there has to be a nexus between the risk and the action being taken."
Health and safety could not weaponised to simply put pressure on an employer, Hornsby-Geluk said.
"The focus is on safeguarding health and safety, not on putting pressure on an employer to succumb to particular industrial demands."
Te Whatu Ora's lawyer Susan Hornsby-Geluk - pictured here with colleague Megan Vant - argued the nurses' strike was unlawful because there was no immediate threat to their health or safety. Photo: RNZ / Ruth Hill
Te Whatu Ora accepted the ward was understaffed and was rostering on locums and working to recruit more nurses, she said.
"But it does not accept that workers are in unsafe or unhealthy working conditions."
Judge Kerry Smith, speaking via videolink from Christchurch, noted it appeared nothing had changed since Te Whatu Ora accepted the provisional improvement notice (a written notice requiring legal action on a health and safety problem) in November.
"As I understand the state of the evidence, it's now late May and there's been no completion of that review, despite the five or six months that have gone by, and no change to the number of beds or the pressure on the nursing staff in that time. It's just been status quo, hasn't it?"
Hornsby-Geluk responded that the hospital had accepted most of the union's demands and was working towards them.
But it was not in a position to simply drop bed numbers from 25 to 20 in the ward as the Nurses Organisation wanted.
"It's not in a position to turn patients away or turn them out."
WorkSafe was currently investigating that particular sticking point, but the timeline for that was out of management's hands.
Her colleague, Megan Vant, said arrangements to provide life-preserving services during the strike were not enough to protect patients and staff.
"If the strike goes ahead, there is the potential for serious and irreversible harm to the applicant's staff, patients, their families and communities."
Union lawyer Peter Cranney told the court nurses in the under-staffed unit feared someone would die in their care. Photo: RNZ / Ruth Hill
Union lawyer Peter Cranney said, however, the ward was often reduced to life-preserving services anyway due to chronic understaffing.
"Care rationing was occurring, care and assessments were unduly delayed, there were insufficient essential equipment and supplies, patient dignity was compromised, that is personal care and hygiene was not attended to in a timely manner, workers were unable to take meal breaks."
He read from several affidavits from nurses, some with decades of experience, talking about their fear that someone will die in their care, that they were physically and mentally exhausted.
Judge Smith asked how staff could claim their workplace was so unsafe they had to walk off the job, when they were prepared to return to the same conditions an hour later.
"The answer is that these nurses have shown a willingness to continue to work in dangerous and difficult and stressful conditions, because they care for the patients," Cranney replied.
Judge Smith reserved his decision but indicated he was likely to make a judgement on Tuesday, the day before the strike is due to go ahead.