Publications

2004 Annual Conference Reports

Executive Director's Address

MECA EMPOWERMENT AND IMPLEMENTATION: BEING OUTCOME FOCUSED
3 NOVEMBER 2004

After previously reported difficult and protracted negotiations, we now have our first national collective agreement, covering members employed in the publicly provided health system, since 30 June 1992 when the last national award/collective contract expired and a combination of the largely pro-employer (now repealed) Employment Contracts Act 1991 and the policy of the National government of the day prevented us from re-negotiating it.  The new multi-employer (DHB) collective agreement (MECA) now applies to 20 of the 21 district health boards with our members in the 21^st (Northland) having the opportunity to vote on joining it in the first half of next year.

This MECA is more than simply a consolidation and enhancement of the various terms and conditions that previously applied in each of the DHBs.  It also represents a significant shift of direction based on membership empowerment.  Over and above the reality of the combination of unfavourable legislation and government policy, in 1992 we were in a much weaker position than we are today.

This difference is due to factors such as:

• In 1992 we were still a young organisation into our fourth year.
• Compared with the then area health boards we now have around 900 more members employed by DHBs (from around 65% then to around 92% now).
• There was limited sense of ownership of the then national terms and conditions of employment because, at least up until 1989, they were determined by a largely invisible and arbitration-type process.  In contrast, the MECA was achieved by a much more visible negotiating process inclusive of regular communications, report back meetings, and postal ballots over both joining the negotiations and reaching settlement.  The sense of membership ownership of the MECA should be much greater than in 1992.
• We have learned much in advocacy and negotiations over the past decade and have a significant number of our members with experience in these areas to various degrees.

Consequently, provided that we are outcome focused, we are much better placed than we were in 1992 to successfully defend and enhance the existence and contents of the MECA in the event of unfavourable legislation or government policy in the future.  Compared with the former national award the MECA has far greater long-term sustainability regardless of the extent to which managerial attitudes, government policy or employment legislation are favourable or unfavourable, malign or benign.

Much of the achievement of the MECA involves negotiating an expanded single core of terms and conditions of employment (eg, salaries, leave, reimbursements and rights) rather than having to negotiate this core 21 different times.  Instead in the 21 DHBs we can now focus our resources on both effective implementation and expanding into ‘non-core’ territory.

The Association will have an important role in ensuring that the basic MECA provisions are adhered to (eg, correct salary scale placements, CME expense amounts, and leave entitlements).  But, much wider than this, empowerment is critical to the implementation, protection and enhancement of the MECA which, in turn, strengthens our ability to achieve empowerment.  By empowerment I mean significantly enhanced senior medical staff influence over their working conditions, at their workplace and within their DHB.

In this context empowerment represents a marked shift towards both doctors being able to say ‘no’ and managers being unable to say ‘no’.  It also means turning around the low morale among senior medical staff.

The MECA has been deliberately structured with an empowerment perspective in mind and both expressly and implicitly recognises this.  It also provides stronger contractual teeth than its predecessor single DHB collective agreements, which should also contribute to its implementation.  But, despite this strengthened contractual basis, both in the short and longer term, empowerment offers much more for members in terms of overall effective outcomes than a narrowly legalistic or contractual approach.

An example of this explicitness is in the preamble to the MECA which includes the following statements:

          Both the Association and DHBs are committed to working together in order to
          establish and strengthen this engagement with and empowerment of senior
          medical and dental officers.

          Both the Association and DHBs recognise that a relationship between DHBs and
          senior medical and dental officers based on engagement between them and
          empowerment of the latter has positive benefits for both recruitment and
          retention of employees.

          This collective agreement is the foundation document for this underlying
          engagement and empowerment relationship between DHBs and senior medical
          and dental officers which is integral to the internal culture of each DHB.

Getting There

In broad terms both the Employment Relations Act and the MECA provide the foundation for addressing and achieving these objectives.  The Act is important because it provides processes for dealing with ‘employment relations problems’ which include, but are much wider than, the specifically defined personal grievance process for unjustified actions and formal dispute processes over application, interpretation and operation of an employment agreement.

The MECA, however, goes further and for this reason is more significant.  It specifically promotes ongoing collective negotiations and responses (over and above collectively negotiating the MECA itself) as stated in the new clause covering underlying principles:

          The parties acknowledge the importance of collegiality within the workplace and will
          actively encourage collective negotiations and responses to workplace challenges
          and issues.

One of the main vehicles will be the joint consultation committees that each DHB will be required to form with the Association:

          Each employer and the Association will form joint committees based on equal
          representation to consider matters of mutual interest, including matters covered by
          this Agreement.  Unless otherwise agreed these joint committees will meet at least
          three times each calendar year and when requested by either the employer or the
          Association.

These committees will be the means for focusing on many of the issues raised in the MECA.  But they are not confined to these issues alone.  They can consider any other employment related issue that members collectively want to raise from, for example, difficulties in or deteriorating management-senior medical staff relationships to additional enhancements for working on rostered after-hours duties and responsibilities.  The potential scope is unlimited but should be both membership derived and membership driven.  None of this precludes direct representation by the Association of specific groups of members in areas such as hours of work and job sizing.

Association participation in the consultation committees should be building upon our more recently under-utilised local negotiating teams strengthened by the development of our delegate system.  National office involvement will also be critical to assist with resourcing and advocacy.  Participation should include membership involvement through means such as expanded representation on the consultation committees, membership meetings to discuss and deliberate on relevant issues, and print and electronic communications to members.

The MECA also provides other mechanisms—joint taskforces (staffing and professional development and education), national negotiations (enhanced senior medical staff involvement in decision-making and shift arrangements) and national conferences (workforce development and enhanced senior medical staff involvement in decision-making).

Getting Outcome Focused

In order to ensure a focused approach to implementation it is appropriate to now return to the five bands discussed earlier.

1.  Hours of Work

The foundation of hours of work is the MECA’s new job description clause which is a radical departure from the previous clauses in single DHB collective agreements.  They are now based almost entirely on the Association’s own guidelines which then had the status of professional advisory.  Now they make up the new MECA clause which has become the recommended guideline of both DHBs and the Association.  There has to be a very good and self-evident reason why, to one degree or another, the MECA guideline might be departed from.

Implementation of the new job description requirements may, in most cases, best be handled by the consultation committees in terms of setting realistic time-frames.  This might include setting an agreed date when job descriptions offered to new appointees would become based on the MECA clause and when presently employed members would have their current job descriptions aligned with the MECA.  The Association will also have a direct role, additional to the consultation committees, to ensure enforcement of these time-frames for different groups of members where this might be denied or unduly delayed.

Job descriptions neatly lead into job sizing which is now explicitly exigency based (in other words, based on what one regularly has to do due to the imperatives of one’s duties and responsibilities as a professional employee rather than any narrower concept of ‘operational requirements’).  Job size is to be mutually agreed based on routine duties and responsibilities at the workplace, non-clinical duties and responsibilities, duties at locations other than the usual workplace, and rostered after-hours call duties.  It is to ‘objectively reflect the requirements of the service and the time reasonably required for the employee to complete their agreed duties and responsibilities as set out in their job description.’

This will provide an opportunity, on a stronger contractual basis, for members to collectively reassess the adequacy of their job size and to act collectively at both a wider DHB and individual service level to ensure that the hours regularly worked are remunerated.  With the possible exception of rostered after-hours call duties, this does not require diaries; rather it can be based on the known consensus of the average time for scheduled activities (eg, clinics, theatre lists, ward rounds) plus the application of the 30% for non-clinical duties.  Job sizing is now much more straight-forward to apply than when it was first implemented in the early to mid-1990s.

Non-clinical time deserves a special mention.  The MECA is based on the Association’s own definition of what constitutes non-clinical duties (those activities which are not directly related to the care of an individual patient such as supporting professional activities) and includes reference to the endorsement by the Council of Medical Colleges that the time for these duties should be a minimum of 30% of the average time allocated for routine duties and responsibilities (excluding additional leadership and rostered after-hours call duties).  In the context of the whole job descriptions clause and the rest of the MECA, this means that 30% is the norm, the recognised professional standard, and that there has to be a very good and obviously fair reason why this is not the case in either individual circumstances within a particular service or in areas, for example, where the distinction between what is clinical and non-clinical is blurred and therefore the calculation of what comprises 30% is more difficult.

In general terms there are four possible ways in which the implementation of the 30% for non-clinical duties can be applied:

1.      Extra salary through an increase in the job size.

2.      Increased senior medical staffing.

3.      Reduced clinical work.

4.      Various combinations of the above.

Another area of work will be the development of national guidelines to limit the working hours where appropriate.  A yardstick, but not dictate, is the European Working Time Directive based on a maximum of 48 hours per week.  This will involve a national Association-DHB working party and will have to consider various means such as straight limits (eg, an explicit maximum limit on the number of hours to be worked or punitive remuneration above a set number of hours per week).  The Association should use its own communications to invite membership ideas and suggestions.

A related issue is the challenges facing those members in DHBs which do not have either full or any registrar cover.  Again a separate national working party will be established to address this issue and again membership input should be obtained.  The Association will need to ensure that its representatives on this working party are from those affected DHBs.

2.  Resources

Much falls within the broad band of resources—staffing, ‘tools of the trade to do the job’, professional development and education.  The means will include the consultation committees and joint taskforces.

The MECA recognises the importance of resourcing with the following statement contained in its general underlying principles:

          The parties acknowledge the increasingly demanding medico-legal environment in
          which employees are required to practise.  Accordingly the employer undertakes
          to do what it reasonably can to ensure the workplace is well resourced,
          professionally supportive and conducive to a very high standard of individual
          clinical practice.

Resource provision is also implicit in the job descriptions’ clause.  Further, a clause covering ‘mutual obligations’ includes the following statement:

          In particular the employer undertakes to be a good employer and will provide the
          resources and support reasonably necessary to enable the employees to discharge
          their obligations under this Agreement.

Staffing, along with professional development and education, are in the first instance to be dealt with by joint DHB-Association workforce development taskforces looking at the development of agreed staffing plans (inclusive of senior medical staff numbers and composition), recruitment and retention strategies to support these plans, and plans for providing accessible high quality professional development and education (including sabbatical and secondment).

The MECA states:

          In recognition of the senior medical and dental officer workforce development and
          planning challenges facing New Zealand, each employer and the Association will
          establish a joint Workforce Development Taskforce based on equal representation
          to:

          (a) Develop an agreed staffing plan for the appropriate number and composition of
               employers to meet the objective needs facing each employer.

          (b) Develop an agreed recruitment and retention strategy to support this staffing
               plan in (a) above.

          (c)  Develop an agreed plan for the effective provision of and access to high quality
               professional development and education for employees including continuing
               medical education, secondment and sabbatical.

Much of the resource needs of our members can be addressed through this process by the development and implementation of these plans.  In addition to local empowerment, the MECA also provides further accountability with the requirement for the Association and DHBs to convene a national conference around a year later in order to ‘share experiences and consider progress and developments’ arising out of the work of these taskforces.

The MECA is also strong on workplace conditions, resources and accommodation.  Following on from the Association’s earlier perception-based membership survey, it states that DHBs ‘recognise the importance of providing good quality, suitable and safe workplace conditions, resources and accommodation.’

The joint consultation committees will in the first instance be in a position to oversee, through an agreed process, the evaluation of the extent to which these conditions, resources and accommodation are provided and then to develop an agreed plan for remedying any deficiencies.  These matters will be based on membership assessments and perceptions of relative importance but are wide-ranging from information technology to office accommodation, secretarial support, and car parking accessibility and security.

3.   Additional Remuneration Arrangements

We now have new opportunities to pursue additional remuneration arrangements.  Potentially the range of opportunities is unlimited but realistically most will come within the following areas discussed below.

First, the MECA provides for additional recruitment and retention benefits.  It specifically states:

          The employer may agree to provide additional benefits, including special
          allowances, to employees in those services where recruitment and retention has
          or may become a serious problem.

          The level and nature of any recruitment and retention benefits that may be
          provided shall be fair and transparent and have regard to similar recruitment and
          retention benefits provided by the employer in other services.

          When providing a recruitment and retention benefit in a service for the first time,
          the employer shall review the salaries and benefits of existing employees in the
          same service with a view to ensuring fairness and consistency.

The capacity for effective supplementary negotiations in this area is considerable both in particular services and, in some cases, across a DHB.  The threshold for the provision of additional benefits, including special allowances, is where recruitment and retention has or may become a serious problem.  Next there is a requirement for these benefits to be fair and transparent.  Further, the negotiation of these additional benefits shall have regard to similar benefits already provided by the DHB in other services.  Finally, in order to prevent frustration and inequity, when an additional benefit is being provided in a service for the first time to a new employee, the salaries and benefits of existing employees in that service are also to be reviewed.

Second, internal locum cover is another opportunity.  The MECA provides for DHB responsibility through an undertaking to take ‘all reasonable steps to fill all gaps or vacancies on after-hours call rosters as soon as they occur or are reasonably foreseen’.  It then allows for negotiations over appropriate compensation for increased workload or work pressure where locums or satisfactory alternative arrangements are not provided.  In each DHB where there are not already satisfactory remuneration arrangements, the Association will need to consider whether to negotiate on a service or DHB-wide basis.

Third, at a national level there will be negotiations between the Association and DHBs over arrangements, including remuneration, for when members are requested to undertake additional duties arising from an unplanned absence of resident medical or dental officers.  While this will be a national negotiation this does not preclude separate DHB negotiations, where the situation arises, using the Auckland DHB minimum rate as a benchmark.

Fourth, again on a national level, there will be negotiations to develop agreed arrangements, including enhanced remuneration, for members who work on evening, night and weekend shifts.  Again this does not preclude separate negotiations at an individual DHB level.  These two processes are interconnected.

Finally, while the MECA will provide an enhanced rate of time-and-a-half for average hours worked on rostered after-hours call duties, in two DHBs (Waitemata and Bay of Plenty) and in some services in other DHBs, the enhanced rate is higher.  Particularly in those services where the sense of collectivity and empowerment is high and the pressures of acute rosters also high, there is scope for further creative negotiations.

4.  Professionalism

The MECA explicitly recognises the ethos of professionalism which is the foundation upon which senior medical staff perform their duties and responsibilities.  Senior medical staff are recognised as a ‘distinct occupational employee group’. Further, the ‘importance of collegiality’ to them is also recognised.  These clauses are more to do with processes and rights rather than remuneration and, as such, lend themselves less to pro-active work by the Association.  Much of the Association’s work will be to ensure that they are not breached; for example, the right to speak out provided in the public debate and dialogue clause.

Nevertheless some pro-activity by the Association through the consultation committees may be necessary to ensure that clauses such as ‘professional and patient responsibility and accountability’ are embedded into the consciousness of each DHB, including the statement that the DHBs and Association recognise:

          …the primacy of the personal responsibility of employees to their patients and the
            employee’s role as a patient advocate.

Another example is the clause covering ‘quality improvement environment’ which recognises that ‘there is a difference between errors that may be defined as normal variations in performance and those resulting from negligence.’  Consequently there is ‘no place for a punitive reaction to errors that are not the result of negligence.’  This leads to a DHB responsibility and commitment to provide ‘a quality improvement environment which supports openness, honesty and the freedom to identify and admit mistakes or errors of judgement.’  Again the Association will need to work through the consultation committees to ensure that the intent of this clause forms part of the culture of each DHB.

But there are also clauses covering predominantly new matters.  For example, a new clause covers ‘investigations of clinical practice’, with the purpose of addressing ‘performance concerns relating to clinical practice and its impact on patient safety.’  It provides fair and transparent processes to be followed within specified time-frames.  In particular, it is an express alternative to the use of suspension to deal with such circumstances.  The Association through the consultation committees will have an important role to ensure that this new approach becomes part of the modus operandi in all DHBs.

Another example which the Association will have to likewise work through the consultation committees is the new ‘appointment processes’ clause which is based on transparency, clinical involvement in the setting up of the position (including job description), the appointment committee, and in the checking of qualifications.

5.  Effective and Sustainable Quality Decision-making

Central to the MECA is enhanced senior medical staff involvement in decision-making consistent with the Minister of Health’s letter of expectations to DHBs for the 2004-05 year.  It begins with the following statement in the preamble:

          Senior medical and dental officers are a distinct vocationally trained occupational
          employee group.  District health boards (DHBs) as employers benefit from these
          employees having significant influence in their internal decision-making.  The
          parties recognise both senior medical and dental officers and DHBs have different
          roles, responsibilities and distinctive features.

Further, in the Appendix which forms part of the MECA, the following statement appears:

          The parties [DHBs and ASMS]…are committed to empowering the role of employees
          in the decision-making process of each employer inclusive of democratic and
          mandated processes for determining employee representation and involvement.

In an endeavour to give substance to this direction the MECA requires the Association and DHBs to establish a joint national co-ordination committee to develop agreed guidelines which will then be referred to local joint DHB-Association committees for consideration.  This will be followed up, around 12 months later, by a national conference ‘to receive reports, share experiences and consider progress and developments with each employer.’

While this has reasonable levers to give effect to the intent and will form an important part of the Association’s work, there is much scope for pursuing this objective in each DHB level.  Both the ‘consultation’ and ‘patient safety’ clauses provide substance to this objective.

The ‘consultation’ clause has several strong statements including the requirement for each DHB to consult and seek the Association’s endorsement, and ‘give due regard to our advice’, for any proposed review which ‘might result in significant changes to either the structure, staffing or work practices’ affecting senior medical staff and ‘might impact on the delivery and quality of services’.  The Association’s endorsement relates to the ‘purpose, extent, process and terms of reference’ of the proposed review.  Association members affected by the proposed review will also have the right to participate at the earliest practical opportunity.

Further, each DHB will be required to consult with the Association and affected members over whether the recommendations of a concluded review raise ‘any serious professional or clinical concerns’.  In the event of such concerns each DHB:

          …will endeavour to satisfactorily resolve them with the Association and affected
            employees or reach agreement over a process for resolution.

This clause in its totality gives members through the Association considerable influence over the shape, direction and outcomes of reviews, many of which have been so poorly thought out and conducted as to be both fiscally irresponsible and very corrosive on the health professional workforce.  We will also be able to use the quarterly consultation committees in each DHB to require management to table any planned or anticipated reviews in advance of the consultation clause needing to be activated.

The ‘patient safety’ clause is another example of empowering membership involvement in DHB decision-making.  Although more embryonic than the ‘consultation’ clause it nevertheless is explicit:

          Employees who have serious concerns over actual or potential safety risks shall
          make every reasonable effort to resolve them with the employer.

          Where either the Association or the employer believes that the serious concerns
          remain unresolved, they shall develop a process for resolution of these concerns.

Resolving the Contradiction and will we have to make their Mothers cry?

The MECA, with its focus on empowerment and the relocation of Association members in the ‘engine room’ of DHB decision-making, provides great potential to achieve important Association objectives, to considerably enhance the working lives and conditions of our members, and to considerably improve the quality and accessibility of health services and the ‘value for money’ of health funding that would make Treasury’s knees wobble with excitement.

As long as we are outcome focused in our approach, the MECA can provide the means of resolving one of the most fundamental contradictions in the health sector; on the one hand, the enormous potential of senior medical staff to significantly influence and shape the direction and implementation of health policy and, on the other hand, their frustrating inability to exercise this potential.  The challenge for the Association is to overcome this contradiction.  By doing so we can turn around the prevailing sense of powerlessness, disenfranchisement, demoralisation and, even worse at times, victim mentality that is all too evident in all DHBs to one degree or another.

Our ‘Plan A’ is to achieve this by collaboration with DHBs through constructive working relationships and a shared commitment to the implementation of the MECA according to its intent and tenor.  However, we know enough to know that we still have the same range of managerial attitudes and cultures that we have always had at least since the early 1990s—the good, the bad, the ‘badder’ and the ugly.  All that has happened over the past 15 years is that they have moved around, been reborn and engaged in inbreeding.

While ‘Plan A’ will be the most effective and productive means of implementation for all parties (‘win-win’ to use the jargon), a ‘Plan B’ may also be necessary.  Based on the traditional union principle of ‘educate, organise and agitate’, ‘Plan B’ requires an assertive uncompromising approach to secure implementation and not being prepared to tolerate any negative managerial obstruction.  The MECA gives us sufficient teeth to achieve this objective should it be necessary.  To quote Sir Francis Urquhart of ‘House of Cards’ fame, we may have to use the MECA along with our empowerment strategy to do things that will make the mothers of the ‘bad, badder and ugly’ managers cry.  ‘Plan B’ could end up being aptly known as our “FU” strategy!

Ian Powell
EXECUTIVE DIRECTOR