Publications

The Specialist

Issue 58 - March 2004

Proudly Sponsored by:

• To MECA, to MECA, the DHBs Must Go
• MECA Ballot
• MECA Timeline
• Council Of Trade Unions Comments On ASMS DHB Meca Ballot
• Our Words, Our Pills, Our Knives
• ASMS Plans DHB-based Membership Seminars
• Medical Protection Society
• Which Part of the Word 'No' is Not Understood
• Never Say Die
• The Employment Relations Law Reform Bill
• Collective Bargaining Outside DHBs
• Delegate System

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To MECA, to MECA, the DHBs Must Go

Our negotiations with district health boards (DHBs) for a national collective agreement commenced on 29 April 2003 and, after 21 days of negotiations (including 10 in mediation), they have reached a critical stage. The ASMS's objectives in these negotiations has been to both fairly recognise our members for keeping so much of the 'health ship' afloat in such difficult times and to achieve new terms and conditions of employment that can, as part of a wider strategy, serve as an effective recruitment and retention device in an environment of national and international shortages.

By now, in accordance with the requirements of the Employment Relations Act, ASMS members in 20 of the 21 DHBs have voted to participate in the negotiations. The one exception is Northland where members voted instead to have separate negotiations with their DHB which are scheduled to commence on 29-30 March.

Membership Postal Ballot
After 17 days of negotiations (six days of mediation), in December the DHBs made a proposal to settle the main fiscal issues. However, the ASMS negotiating team considered it a weak proposal that failed to achieve both our objectives of fair conditions and recruitment and retention. While we rejected it we agreed the request of DHBs to refer it to our members in a secret postal ballot. Although the ASMS recommended that members reject the proposal, we also provided members with the DHBs' rationale, written by them, for acceptance.

The ballot produced an absolute rejection in each of the 20 DHBs balloted (Northland was excluded). 1100 members (51%) from the 20 affected DHBs participated in the ballot. 924 (84%) voted to reject the DHB's proposal while 176 (16%) voted to accept it. There was a majority for rejection in all 20 DHBs ranging from 64% (Whanganui) to 100% (Tairawhiti). Although we would have preferred a higher response rate, the time of the year (over the summer break) was both difficult and not of our making.

More important, however, is the clear-cut nature of the result (see box for further details). The national vote to accept the DHBs' proposal was on average only 16% (less than 8% all of those balloted) and with 84% in opposition. Further, there was no discernible difference between those DHBs with relatively poorer and superior conditions. The best yardstick for assessing poorer and superior conditions is a mix of enhanced rates for hours worked on after-hours call rosters, salary scales and annual leave.

The DHBs' negotiating team believed that members in those DHBs with poorer conditions were more likely to vote in favour of accepting their proposal. But the results disproved this belief. Compared with the national vote of 16% in favour of acceptance, ASMS members in DHBs with poorer conditions voted consistently with the national trend, in some cases even lower-for example, Auckland (11%), Waikato (16%), MidCentral (15%), Canterbury (19%) and Otago (7%); the main exception was Taranaki (22%). In fact, the highest votes in favour of acceptance were in DHBs with superior conditions-for example, Whanganui (36%), Hutt Valley (25%) and Bay of Plenty (16%). In general, the membership response to the DHBs' proposal was 'too little for too long a period of time'. Members thought that the proposal would not recognise the current value of senior medical staff or do anything constructive for recruitment and retention.

Where are we at?
Following the ballot results the Council of Trade Unions, to which the ASMS is affiliated, made a media statement calling on DHBs to recognise the significance of the rejection vote and to focus on resolving the issues raised by us in the negotiations (see box). Mediation between the ASMS and DHBs resumed on 12-13 February and then again on 26-27 February. After spending much time and heartache trying to repackage its proposal so that it might be acceptable to the ASMS, the DHBs' negotiating team by now resigned itself to admitting that this was an impossible task and it could go no further. It then concluded that its fiscal parameters were insufficient to meet our needs and that a higher level of involvement in the negotiations from DHBs was required. Consequently it was agreed that the DHBs would discuss among themselves greater chief executive involvement and their fiscal parameters.

Three Critical Issues
There are three critical issues of fiscal significance that presently divide the parties (ie, ASMS and DHBs):

1. The ASMS is seeking double-time for the average hours worked on after-hours call rosters, which would be gradually phased in over time, whereas the DHBs' position is time-and-a-third. This is the biggest fiscal issue in that each hour is equivalent to 2.5% of the weekly 40-hour base salary. Currently DHBs range from ordinary time to nearly triple time.
   
2. Salary scales are critical. There are differences between us over when the scales commence and end but the main difference is the margins between the steps based on annual advancement. Compared with the DHBs' position on the mix of equal $3,000 and $4,000 margins, the ASMS is arguing for a mix of $4,000 and $5,000. There are also differences between us over backdating the first salary increase.
   
3. The term or expiry date is critical because it determines the value of the contents. The expiry date signals the next opportunity to re-negotiate the contents of the MECA. Further, the longer the term the greater the importance of additional salary increases. The DHBs proposed expiry date is 30 June 2006-for most DHBs this is a term of around 36 months, although in some cases up to 40 months. The ASMS's proposed expiry date is 12 months earlier, expiring on 30 June 2005.

Less Significant Fiscal Issues
But there are other issues of less fiscal significance that we are apart over such as:

• The ASMS is seeking six weeks (ie, 30 days) annual leave whereas the DHBs' position is 27 days. The fiscal significance and difference is miniscule; only of some limited impact as a notional book entry. Already seven DHBs provide six weeks annual leave with another two providing six weeks for many, perhaps most, senior medical staff. There is no good reason why we should not achieve six weeks particularly as it is an international yardstick and because of its real fiscal insignificance. 'Trading' annual leave for something else would be a waste of time because it does not buy anything.
• Subsidised superannuation for those ineligible for the former government schemes (National Provident Fund and Government Superannuation Fund) is a minor fiscal issue because most DHBs, especially the larger ones, already have (or are scheduled to have) the ASMS objective of a subsidy of up to 6% of total gross salary. The DHBs accept our proposal and the only difference between us is minor; when it takes effect for the remaining DHBs.
• There are differences between us on the level of reimbursement of CME expenses but this is no greater an issue than it has been in our single DHB negotiations over the past decade. The fiscal impact of the difference between us is relatively minor.

'Damn Irritants'
In addition, there are issues between us which are of no or minor fiscal significance (because the relatively small costs involved largely or completely already apply) which are, for lack of a better expression, irritations. But this does not denude their importance for many senior medical staff. In the ASMS's assessment, the DHBs are taking a dogmatic, pin-pricking or ill-thought out position on. For example:

• Most of the existing ASMS-negotiated individual DHB collective agreements provide for reimbursement of clinically relevant professional associations (not to be confused with colleges), either in full or up to a certain cap. The DHBs' position is to remove all these entitlements without replacement; ie, a claw-back.
• All our DHB collective agreements provided enabling processes for sabbatical while several also have secondment provisions. Without any justification the DHBs' position is to repeal all of them without replacement; ie, another claw-back.
• Most of our DHB collective agreements provide for six weeks parental leave salary, or equivalent. With one exception the entitlement is 'family friendly'; ie, inclusive of shared care parenting responsibilities. The DHBs are attempting to give national application to the one exception that restricts eligibility to what they describe as the principal care-giver; ie, another claw-back that restricts eligibility.
• The DHBs are seeking to apply across the country performance based criteria that have the potential to restrict advancement through salary scales. Currently members are advancing through the salary scales annually (biennially in Nelson Marlborough) almost entirely without hindrance; ie, this is a potential claw-back.
• The DHBs are seeking to remove existing entitlements to car parking that presently apply in six DHBs; ie, a further claw-back.
  What's behind the DHBs' negotiating position

It is always difficult and risky to attempt to get into the minds of those with whom we are negotiating, even though we have some members on our side of the table well trained in doing so. However, based on the experience of these protracted negotiations and the various lines of argument and rationalisations we have witnessed, some conclusions can be made. In the main they stem from the considerable distance between senior managers and the daily practical working realities facing senior medical staff. This distance includes the failure of these managers to understand the distinct nature of the duties and responsibilities of senior doctors, the pressures they face and the severity of the circumstances in which they work, and why an effective recruitment and retention strategy (of which the MECA is a critical part) is required.

DHBs do not understand sufficiently the true significance of medico-legal responsibilities and their relationship with long hours, anti-social hours and fatigue. They also do not understand sufficiently the implications of the true nature of staffing levels-unfilled permanent positions; smaller fields of applicants for vacancies; excessive reliance on locums, including costs and the implications for continuity of care; and the extent to which the commitment, dedication and long hours of senior medical staff cover for staffing shortages.

Poor planning and short-term approach to costs
DHBs have failed to adopt a coordinated, realistic and longer-term fiscal approach to these negotiations, which are distinctive because they involve a one-off transition from the 21 separate collective agreements to one national agreement. Inevitably the cost impact will vary depending on the current differences between DHBs in the employment conditions for senior medical staff reflecting the differences in which they have been valued in each DHB. Unfortunately and unwisely each DHB, independent of each other, has made its own value judgement of how they valued DHBs. It is not unreasonable to expect that those DHBs that have previously devalued senior medical staff relative to others would continue to do so in their budgeting for these negotiations. DHBs maintain that their budgeting is based on affordability but they have failed to persuade the ASMS negotiating team that this is the case.

DHBs' budgeting is contained in the form of assumptions that formed part of the District Annual Plans (DAPs) that are required under legislation. Not only have the DHBs failed to coordinate their budgeting assumptions for the 2003-04 DAPs but there are also indications that they are repeating this error for the next financial year. Nevertheless these are assumptions that are capable of revision if the DHBs opt to do so.

During the negotiations the DHBs have publicly misrepresented the cost of the ASMS's proposal. Immediately after the ballot result the DHBs claimed that our position would represent an overall cost increase of around 30%. But, in the relative privacy of mediation, they provided specific figures that represented, over an approximate 36 month period (the ASMS proposed expiry date of 30 June 2005 inclusive of one key increase coming in after this date), an increase of between 16-18% annualised at around 5-6%. While we do not necessarily accept the accuracy of their calculations (ie, the increases may be lower), they highlight a significant internal consistency.

During the negotiations both parties have, without prejudice, floated possible proposals that for whatever reason, have sunk. In one such case the DHBs' negotiating team floated a possible proposal that they subsequently did not pursue because it believed DHB chief executives would run a mile from. It was also for quite different reasons unacceptable to the ASMS. That 'proposal' would have involved average annual increased costs to the DHBs of around 2.5%-3% per annum over an approximate three year period. These figures crudely suggest an annualised difference between the DHBs and the ASMS of somewhere less than 2.5%, on the one hand, and around 5-6% on the other.

There are two factors, however, that these calculations do not take into account. One is what I describe as the 'fudge' factor. That is, those special arrangements where job sizing might be artificially enhanced in order to compensate for the inadequacy of the ordinary hourly rate for average hours worked on after-hours call rosters.

The second, and more significant, is the alternative cost of locums. When permanent vacancies cannot be filled, DHBs often have to resort to the much more expensive alternative of locum employment. It is interesting but not surprising that the Southland DHB has identified its excessive reliance on locums as a significant factor in its fiscal deficit. It is more attractive for longer-term locums who wish to remain in New Zealand to continue as locums rather than accept permanent employment because this would involve a significant pay cut.

The more that a MECA with attractive conditions of employment is an effective recruitment and retention device, the more that the high costs of locum employment can be significantly dented.

Recruitment and Retention
As discussed above, many managers in DHBs are out-of-touch with the recruitment and retention needs for medical and dental positions and this has affected the approach adopted by DHBs in these negotiations. This failure has led them to see senior medical staff less as an asset that produces value and more as a balance sheet cost. Whereas the ASMS considers recruitment, in particular, and retention to be a serious problem confronting DHBs, in these negotiations the DHBs either do not understand or diminish its full significance. In the context of unfilled vacancies locums can be invaluable but there are also concerns over mixed experience of performance in the New Zealand context and the effect on continuity of care.

Nor do DHBs sufficiently appreciate the fact that it is increasingly difficult to attract suitable applicants for vacant positions from either New Zealand trained doctors or from countries and places with training programmes similar to New Zealand's.

'Frothing SMOs'!
A recent informal observation of some members of the DHBs' negotiating team was that, despite the ballot result discussed above, they did not detect the level of frustration and strength of feeling among senior medical staff that the ASMS was reporting. To use their words, they had not seen 'SMOs frothing at the mouth'.

This, in the ASMS's assessment, displayed an extraordinary ignorance of the usual character and behaviour of senior medical staff and is further evidence of the distance from them of many managers who confuse standard courtesy and politeness with compliance and acceptance. It is not the normal practice of senior medical staff to 'froth at the mouth'; 'frothing' was never part of their training programme although perhaps this could be arranged!

What is the way forward?
The ASMS's approach to the MECA negotiations is described as 'best of the best', something which DHBs have denigrated as 'cherry picking'. Although this is the first time that we have used the term 'best of the best', it had in fact been our approach in all our negotiations with individual DHBs and their predecessors since the last national negotiations in 1991. That is, the ASMS has pursued persistently, since 1991, national consistency in all our negotiations based on extending gains made in one part of the country to the rest.

This has been the objective and it remains the same with the MECA negotiations; the only difference is that we have now given the objective the label 'best of the best'. However, it does not mean that the 'best of the best' objective has always been achieved in full or will be in the MECA negotiations. Already we have made compromises on this objective (but based on protecting superior entitlements); after more than 10 months of negotiations and the extensive use of mediation, compromises in the achievement of this objective is hardly surprising. If the ASMS reaches the point where we believe that a proposed settlement can be recommended, then members will have to make the collective assessment of whether we have made the right call.

On the other hand, the DHBs' approach is based on the 'average' with some limited protections for superior provisions. The DHBs maintain that in some cases they have accepted the 'best of the best', the main example of which is superannuation. While this is true, it is qualified by the fact that in the case of superannuation there is a small difference between the 'average' and the 'best of the best' because it is already extensively in place throughout the country and it does not apply to all members. Further, in some cases they are less than the 'average'. As discussed above, these cases include restricting eligibility for paid parental leave and extending performance criteria for salary progression as well as claw-backs such as sabbatical, secondment, reimbursement of professional associations, and car parking.

In broad terms there are two paths forward-either the DHBs or the ASMS collapse the MECA negotiations and we return forthwith to individual DHB collective agreements or we continue with the MECA negotiations.

Collapsing the MECA negotiations would be interesting. It is fair to say that whatever initial reluctance some DHBs might have had, it appears that at this point in time the DHBs are as committed to a national MECA as the ASMS is. DHBs share the ASMS's positive assessment of the overall benefits to the health system that a national MECA might bring.

Further, the DHBs view with nervousness and trepidation a possible return to individual negotiations, and for good reason. Given that most individual DHB collective agreements expired over eight months ago (some over a year ago), much of the pent up frustration would in effect be transferred from an indirect national process to local DHB managers. DHBs will be under considerable pressure to address the issues in the MECA in the most expeditious manner. Unless DHBs are quickly responsive to these issues (something to which we are not accustomed) it seems likely that it will lead to some form of industrial action.
Although it would be resource-intensive this is not new to the ASMS. We have had to adapt quickly to changed circumstances in the past and with some success. In an industrial sense the ASMS is reasonably well placed to focus on individual DHB negotiations even though there would be close monitoring of these negotiations behind the scenes. But in a professional sense it could be disastrous, particularly if these negotiations are, as appears likely, conflict ridden. Relationships between senior medical staff and managers (including those that are respected) would risk destruction with legacies of ill-will remaining for perhaps years. If process is as important as the outcome, or at least of some importance, then there is a high risk of this way forward becoming a 'lose-lose' situation for all. Returning to individual DHB negotiations would also enhance the ability of government, as the funder of DHBs, to distance itself more from any consequential debacle.

The other path is to continue with the MECA negotiations. This is the view of both the ASMS and the DHBs, at least at the time of writing. Despite the difficulties and differences between us discussed above, we should not lose sight of the fact that much has been gained. This includes improved clauses covering hours of work, job descriptions and job sizing; recognition of non-clinical time; senior medical staff involvement in appointment processes; a fair process for investigations of clinical practice; monitoring workplace resources and accommodation; protection of rights of private practice; and agreements to work together on developing guidelines for limiting hours of work and for enhancing senior medical staff involvement in DHB decision-making. These advances should not be 'sneezed at' and would be difficult to achieve to the same extent and thoroughness in separate DHB negotiations.

Further, with continued persistence and if the DHBs were to adopt realistic financial parameters, we are on the verge of achieving sustainable and significant fiscal advances for members that should also serve as a more effective recruitment and retention device.

Further, DHBs will want to resolve our negotiations before the resident doctors' and nursing national negotiations commence around May-June this year. These latter negotiations both have a serious risk of leading to industrial action because of expected DHB attempts to encroach upon hours of work and rostering provisions in the former and the sheer cost of the pay equity drive in the latter. Clearly if our MECA negotiations are not either resolved or close to resolution by then, the DHBs will be facing enormous difficulties. Further, the government as the funder would find it more difficult to disentangle itself from the process
Nor can an industrial response from the ASMS be discounted if the gap between us continues for too long. This might comprise stopwork meetings but could also include the limited but unprecedented strike action adopted with effect in the South Canterbury DHB last year, which was based on elective procedures but left inpatient and emergency care intact.
I'm sure many ASMS members and DHB managers would concur with W.C. Fields and his oft repeated statement that right now one would rather be in Philadelphia.

Ian Powell
Executive Director

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MECA Ballot

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MECA Timeline

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Council Of Trade Unions Comments On ASMS DHB Meca Ballot

In response to the heavy rejection of the DHBs' proposal to settle the national collective agreement (MECA) negotiations with the ASMS, Ross Wilson, President of the Council of Trade Unions commented:

The DHBs will be buying trouble if they ignore the senior doctors resounding rejection of the latest settlement offer.

These committed public hospital medical specialists provide a vital service to all New Zealanders and we can't afford to lose any more to better paying jobs in the private sector or in other countries.

The ballot is a warning signal that the DHBs must make a realistic settlement proposal, and urgently.

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Our Words, Our Pills, Our Knives

What defines us? - What we do well.

Severe flooding and extensive storm damage have tested the resolve of many in the lower North Island. Whilst the direct effects on healthcare delivery may seem less dramatic than personal wonderment at natural disaster, I have been moved by the examples of individual and group resilience. Stories were told and retold, of individuals seizing responsibility for doing what must be done, without delay or 'permission'. Stories of like-minded groups and communities looking after each other, pitching in and only looking to external aid or relief when exhausted. Stories of local knowledge and skills shining through as the best, quickest solution.

I am reminded of John Dewey's vision of the natural world and understanding how human strivings are situated within it. His philosophy emphasised the social quality of moral life. There being no immutable norms of conduct, individual plans of action are a consequence of communication and willingness to contribute. This requires intelligence, flexibility, open-mindedness and cooperation.

Farmers and others coping with flooding and destruction illustrate that associations of friends and equals (especially in diversity) commonly share practices. Dewey challenges us to extend such practices beyond the confines of intimate communities.
In the everyday world of senior medical officers, we are comfortable within our own intimate communities. We understand the levels of intelligence, flexibility, open-mindedness and cooperativeness in our near colleagues. Do we, should we, understand the intimate communities of those managing, those responding to spreadsheets and those placing external demands upon these managers?

We claim again and again that for all the extra money we hear is poured into healthcare delivery, we see precious little materially benefiting our daily interactions with patients. We see increasing impediments to how many we can see, talk to, prescribe for, interrogate with needle and knife.

Meanwhile our Minister and her Ministry claim that for all the extra money they pour into health care delivery, they see precious little increase in outputs.

Why are these perceptions so far apart? Why does one intimate community perceive inordinate waste in layers of non-health workers, while another intimate community perceives waste in paying more wages?

Can a gulf between perceptions be bridged, when one group is required to spend more time, more energy, more money to ensure audit, quality control, informed consent, safe process for even the same condition in the same patient - let alone any advances in care and cure - while the other group don't see increased input for their dollar, confuse easily counted outputs with hard to count outcomes? Cannot understand that paying more does not equate with an individual ipso facto talking faster, prescribing more, cutting quicker?

I suggest that getting these intimate communities to understand each other is what clinical governance is about. But - we cannot leave it to others to thrust their version of clinical governance upon us. Those who struggle to see where the money goes - where the nine billion vote:Health melts away to six billion at the end user - are tempted to see clinical governance as a way to push responsibility onto clinical shoulders. But will this work without any true chance of clinicians pulling on the real levers of cost and perverse incentives, of accrual accounting and debt:equity rates? Of treating the dollar spent on a patient the same as a dollar left in a bank to gain interest?

In order to facilitate a ''zipping up" of the gaps in understanding, the gaps at departmental, at hospital, at DHB and at national levels - the many gaps that need engagement - ASMS is commencing local seminars. The first of these will examine "where the money comes from, where it goes and what we get for it?" with contributions from the Minister of Health, DHB and senior medical officers.

We are also surveying at local level to find the true level of vacancies, of gaps in SMO complements, of difficulties in recruitment and retention. To counter the perception at DHB and higher level that there is no problem!! To expose the ridiculously expensive reliance on locums to fill gaps costing three or more times as much as retaining regular staff

We cannot leave these tasks to those who we might expect to perform them. We have to do the "zipping". We must affirm our expertise, our skills, our understanding of true clinical governance. We have to hammer on the doors of the funders and deciders, sit at their tables, demand their attention and understanding. Demand that they ignore us at their peril.

For we will still be here long after many of the office holders have moved on. We will be the ones who continue pick up the pieces, paper over the cracks.

We will continue to mend the broken hearts, the broken promises.

With our words, with our pills, with our knives.

Dr Jeff Brown
NATIONAL PRESIDENT

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ASMS Plans DHB-based Membership Seminars

The National Executive has approved a plan to proceed with membership seminars to be held in as many DHBs as possible. It is expected that the seminars would be around a half-day in duration at a time and date convenient to the local ASMS branch (or branches). The topics for the seminars, perhaps a mix of national and local issues, are intended to be relevant to members and responsive to their needs and will be developed between the relevant branch and the Executive Director.

The first seminar will be held at the Palmerston North based MidCentral DHB on 20 April. It will be opened by the Minister of Health, the Hon Annette King, who will also speak on the objectives of the government's health policy. Other subjects will include Executive Director Ian Powell reporting on the most up-to-date developments in the DHB MECA negotiations and Dr David Galler on his role as the Health Minister's and Health Ministry's Principal Medical Adviser.

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Medical Protection Society

Recently I have been contacted by members or had referral of members by other parties where the problem the doctor was dealing with was not thought to be covered by the MPS indemnity.

Simply put, members will be assisted or may receive advice for any issue that 'arises from the practice of medicine'. As such the range of problems that can attract assistance is rather open ended.

To be informed or to find a member has been struggling with an issue alone, is from a personal point of view of great concern. In all likelihood we at MPS will have encountered the issue already, and will be in a position to offer support including the medico-legal help of the best lawyers in the field.

Whether it is a simple question like 'how long do medical records need to be retained' (10 years) or more seriously a notice of prosecution, we at MPS would encourage you to call 0800 2255677 (0800 CALL MPS). No issue is too small.

Dr P H Robinson
MEDICO-LEGAL ADVISOR
Medical Protection Society

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Which Part of the Word 'No' is Not Understood

Doctors are not responsible for the shortage of resources in our district health boards (DHBs). Yet there remains high community expectation that individual doctors will be there when the patient seeks their help. The community does not expect the doctor to say "no" and certainly expects the doctor to be there when needed and to come when called. Unfortunately the medical profession, at least at the level of the individual doctor, is finding it very difficult to resist the pressure to meet the community's expectation. Some doctors, like the noble but impulsive rescuer, believe they have no choice. But is that actually so? Perhaps there is a choice.

The fact that the public has an expectation that medical treatment will be available at all times and they are entitled to prompt access to a doctor or specialist, when needed does not necessarily mean that doctors, individually or collectively, have a corresponding obligation to be readily available at all times, even by sharing an acute roster, to provide that treatment.
Community expectations can be met only when the community through the government provides the resources necessary to enable those expectations to be met.

There have always been and will continue to be times when the public's expectation as to the availability of medical treatment simply cannot be met. This occurs because at the time or location in question, there are insufficient resources (i.e. funding and skilled healthcare professionals) to meet the demand. This may arise for several reasons: there may be no general practitioner in a remote rural area; the local hospital may not be funded to provide particular services; tertiary level services are available in only a few hospitals and some treatments for rare (or even quite common) disorders may not be available at all in New Zealand through our publicly funded health service.

Increasingly the ASMS is called upon to advise individual members who are struggling to cope at a personal level with this conflict between their own overwhelming sense of obligation to their patients and their patients' (i.e. the community's) expectation that the health service will relieve their suffering. The tension between the doctor's sense of obligation and their patient's need for help is enormous but it can be resolved only by the State. It cannot be resolved by the individual doctor as a small but growing number of our members have discovered to their cost.

The state is directly responsible for the funding of healthcare services in New Zealand and is responsible indirectly through DHBs for the provision of healthcare services to all New Zealanders. In this way it is the DHBs who are responsible for determining the range and level of healthcare services in each community and their degree of accessibility to individual members of the public. Neither doctors nor other healthcare workers can be held responsible for the decisions of the DHBs any more than they can be held responsible for the funding decisions of the government.

The Doctor's Obligations
The doctor's obligations in this context are simple and may be stated quite succinctly: practice safely and do no harm. These precepts are as old, if not older, than Hippocrates and are well understood by all medical practitioners. But what is less well understood is that these precepts also set a limit on the doctor's obligations and help define the circumstances when the doctor may say "no".

In practice, these obligations mean:

• you must work within the standards and guidelines determined by the appropriate professional association for your speciality;
• this includes working within your approved "scope of practice" or comfort zone; and
• you should look after your own health and not work when you are seriously ill or exhausted.

DHBs may have an obligation in terms of its funding agreements with the Ministry of Health to provide safe, effective healthcare, including twenty four hour cover seven days a week, in particular services. But that obligation is not discharged by calling on senior doctors to fill the gaps on the acute SMO roster or to do the work of absent registrars or other RMOs, whenever the need arises.

Doctors are not required to work when they are overwhelmed and exhausted. Indeed the employer has a legal duty under the Health & Safety in Employment Act to provide a safe working environment and take appropriate steps to identify and remove workplace hazards. Oppressive workloads and demanding after-hours' rosters are undoubtedly workplace hazards that may cause illness and stress disorders. The Act also requires an employee to take reasonable steps to identify such hazards and avoid them.

When doctors are ill and when doctors are exhausted, they are entitled to say "no" to a request (and even an order) to work additional hours.

Each year, the ASMS supports and advises a small number of members who have worked till they became exhausted. All eventually required professional help from expert clinicians and some were supported by the Doctors' Health Advisory Service (DHAS). However, all of them required long periods off work, in some cases five or six months, before they recovered and were well enough to return to work.

But doctors are also entitled to say "no" before they exhaust themselves. You will probably know when you are exhausted but your colleagues and family are likely to have seen the signs well before you did. If you feel you are exhausted, you probably are exhausted. You may be willing to accept the harm you are doing to yourself but you ought to be concerned that you may be exposing your patients to risk of harm through a simple mistake, error of judgment or an actual oversight that occurred because of your own physical or emotional state.

If you are being overworked and the demands to cover for absent colleagues or do the work of absent junior staff are increasing you should contact the ASMS national office urgently for assistance. If you believe you may be unwell and feeling overwhelmed by increasing workloads and daily pressures you may seek confidential advice from the DHAS, but we would strongly encourage you to call Henry Stubbs (Industrial Officer) or Angela Belich (Industrial & Policy Adviser) at the ASMS national office to discuss your concerns and obtain some practical advice.

While the community may have naive expectations that doctors will always say "yes" and be there for them and their families, your patients would for the most part be appalled to learn that collectively their calls for you to help them, in a health service that is under resourced and understaffed, might actually be damaging your health.

It may be useful to reflect on the lengths a DHB or group of DHBs will go to, to maintain a service when there is a real or threatened strike of nurses, junior medical staff or other key health professionals. There have been times when services have been cancelled and acutely unwell patients have been transferred. The time may soon arrive when whole services will have to be shut down and patients transferred elsewhere because there are insufficient senior doctors available to provide the 24-hour acute roster and the minimum daytime level of service required to meet the needs of a local community.

Doctors are not responsible for the shortage of resources in our DHBs and they are simply not able to overcome them by working harder and shouldering the extra workloads. Even now in, pursuit of the highest professional and ethical standards and based on their strong sense of obligation to their patients, many will try and will fail. In doing so they may well have suffered great personal harm to themselves and may also have damaged their families and possibly unwittingly even their patients.

There is something noble about sacrificing oneself for others, but it is sad when that sacrifice is actually futile and unnecessary. We all have choices and sometimes, even a doctor can say "no".

Henry Stubbs
INDUSTRIAL OFFICER

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Never Say Die

I had the good fortune to be in Britain in both May and December last year. The experience has implications for the importance of persistence and being strategic in our industrial negotiations in New Zealand, including the national DHB collective agreement (MECA) negotiations that are presently at a critical point.

In May the British Medical Association was in serious difficulty with both its general practitioner and consultant members. Like New Zealand, British GPs are largely self-employed 'independent' contractors (although there is a growing number of salaried GPs driven mainly by GPs themselves seeking more secure and family friendly employment) but, unlike New Zealand, they have formal negotiating rights and traditions. For several months the BMA had been involved in negotiations with the government over a new national contract for GPs and, by May 2003, they had reached a tentative agreement over a proposed national agreement that was to be taken back to GPs to vote on in a separate postal ballot.

But there were signs of increasing unease among GPs compounded by confusion and uncertainty that were caused by errors in the initial calculations by the BMA over the benefits of the proposal. This unease came to a head in May with a special BMA GP conference called by dissatisfied 'rank-and-file' GPs rather than their national leadership. There was even speculation that the BMA's negotiating team might resign. Further, opinion polls commissioned by the BMA were reporting only minority support by GPs for the proposal.

It is amazing how quickly difficult circumstances can change. Following the special conference, which required the BMA through its General Practitioners Committee (GPC) to renegotiate the proposed contract, the GPC went on a three day retreat in order to identify a list of further gains and improvements that might be achievable.

Agreement was then reached between the BMA and government on a number of improvements to the original proposal leading to a major turnaround. The general practitioners national contract was then settled following a 79% acceptance vote in a secret postal ballot of BMA GP members.

The consultants' national contract negotiations were facing a different but no less serious situation. In late 2002 the BMA had recommended to its members acceptance of a proposed new national contract for the whole of the United Kingdom. However, in a secret postal ballot this was rejected decisively by a two-thirds majority largely on the grounds of fears of enhanced managerial power, over issues such as hours of work and salary scale progression, and differential treatment of newly appointed consultants in their first seven years.
By May 2003 the BMA was in great difficulty but making determined efforts to get on the front foot again. The Secretary of State for Health (with whom the BMA in effect was negotiating with) was refusing to negotiate with the BMA and instead trying to force through implementation of the rejected proposal at a local level with each NHS Trust. However, through a combination of improved industrial leadership by the BMA, resistance by consultants attempts to implement the rejected proposal in the NHS Trusts, breakthroughs by the BMA in the parallel GP negotiations and for consultants with the Welsh Assembly (devolved government), and a change of Secretary of State for Health, led to a dramatic turn-around.

Although, in contrast to the GPs' negotiations, the BMA was unable to achieve a United Kingdom-wide national contract, it was able to achieve national contracts in each of the four countries. The Welsh national contract is different, and superior, whereas the other three are very similar. In all cases the outcomes were ratified by decisive majorities in secret postal ballots. The outcomes resolved the consultants' concern over increased managerial power and much of the concerns over differential treatment of younger consultants.

These are remarkable outcomes given the serious position that the BMA was in back in May. It is a good reminder how quickly things can change for the better no matter how grim they appear at the time. The BMA succeeded in achieving a United Kingdom-wide contract for GPs and four separate but industrially manageable national consultants' contracts-England, Wales, Scotland and Northern Ireland. Neither looked likely in May but both were achieved by December.

Ian Powell
EXECUTIVE DIRECTOR

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The Employment Relations Law Reform Bill

The Employment Relations Law Reform Bill was introduced to Parliament on 4 December last year and has now been referred to the Transport and Industrial Relations Select Committee. The ASMS has made a submission to the Committee. Our submission was largely supportive of the Bill but opposed the ill-thought out and potentially oppressive 100D.

The Bill is the outcome of the review of the Employment Relations Act 2000, which was promised when the original legislation was passed. The Employment Relations Act created a significantly better environment for collective bargaining then its predecessor the Employment Contracts Act (ECA). For instance we could not have bargained for a national multi-employer collective agreement (MECA) under the previous regime. Nevertheless many staff in the health sector that lost conditions under the ECA have not been able to retrieve their position.

Protecting Vulnerable Employees
The proposed legislation seriously attempts to address the concerns of promotion of collective bargaining, concrete and meaningful good faith provisions, an end to freeloading by non-union members and the protection of vulnerable workers in transfer situations. The Council of Trade Unions (CTU) has proposed a series of amendments to improve these provisions. The ASMS took part in the development of these CTU proposals and we also supported them in our submission to the Select Committee.

The mechanism in this Bill (in particular, if amended as suggested by the CTU submission) are constructive in enabling effective collective bargaining to expand to the less easily organised sections of the public health sector. It may be that provisions to protect vulnerable employees when their employer changes will force health managers contracting for these services to refocus on quality rather than cost. The proposal that the duty of good faith requires the parties bargaining over a collective agreement to conclude a collective agreement unless there is genuine reason not to, could help us bargain collectively for doctors employed outside DHBs and thus aid recruitment and retention of doctors in New Zealand. This would ultimately aid the smaller employers of doctors in the health sector.

Arbitration?
The Bill also proposes an enlarged role for the Employment Relations Authority which is of particular interest in view of the ASMS's longstanding commitment to arbitration for senior doctors. These include;

• A process where any party having serious difficulties in concluding a collective agreement can involve the Employment Relations Authority in a facilitation role;
• The introduction of the ability for the Employment Relations Authority to determine a collective agreement in the event a particularly serious breach of good faith and if other threshold provisions are met.

Use of these provisions in the state sector will require the Authority to take care to distinguish between the government's dual role as employer and lawmaker. In particular, "ability to pay" in the state sector is easily subject to employer manipulation.

Clause 100D and 'Code of Employment Practice'
The ASMS, along with the CTU and the other affiliated health sector unions, strongly opposes one major provision: Clause 100D. This provision requires the Minister of Health (by notice in the Gazette) to approve a 'code of employment practice' providing for the health and safety of patients, employees and the public during strikes and lockouts.

A breach of the code will be a breach of the good faith provisions in the Act and would incur penalties. The ASMS believes that this clause is unnecessary for the protection of the public and has the potential to provide draconian powers to the government in situations of industrial strife. Governments stand very close to the formal employers, the DHBs, and could easily
use this power to coerce workers in a situation they have created (for instance through manipulation of funding.)

The health sector is already classified as an essential service and 14 days notice is required for any strike or lockout. The proposed Clause 100D is not limited to life preserving services and appears to have the potential to make a lawful strike unlawful. The practical outcome of such a provision is in some cases is the unintended consequence of prolonging the underlying industrial dispute that led to the strike call.

In an unprecedented example of co-operation the health unions affiliated to the CTU (including the ASMS) and the DHBs, represented through DHBNZ, last year developed a "Code of Good Faith" which provides (among other things) for a process to preserve patient safety during industrial action. This process includes provision for an independent clinician to adjudicate on what services should be provided to ensure patient safety in life preserving situations. There is no need for Clause 100D in view of the Code of Good Faith agreed by the CTU unions. Clause 100D gives power to the Minister of Health to, unilaterally and uniquely, impose a code of employment practice in the health sector which will abrogate the right to strike in a situation in which the Minister herself is ultimately the employer.

Angela Belich
INDUSTRIAL AND POLICY ADVISER

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Collective Bargaining Outside DHBs

The non-DHB sector covers general practitioners working for union and community health centres and iwi authorities; general registrants, GPs and specialists working for small community run hospitals; hospices; the Family Planning Association; the Blood Service; and sexual health doctors working for the Wellington Independent Practice Association. Nearly all the funding for these employers comes directly or indirectly from the state.

The long-term aim in the non-DHB area is to move to multi-employer bargaining where possible and to bargain on the basis of relativity with appropriate rates set in negotiations with other employers particularly the DHBs.

Salaried General Practitioners
These members are employed in the capitated practices generally associated with Healthcare Aotearoa. Some instability has been introduced into this area because of the setting up of PHOs. These practices now find themselves competing for patients with practices with a much better capital base. In addition, the unions or community groups that set them up now feel that the political point has been made and are more willing to withdraw or sell-up than hitherto.

Hokianga Health Enterprise Trust
This long-term collective agreement covers GPs working in a deprived area. As from 1 November 2003 the top rate in the collective is $50 per hour (moving to $51.68 in November 2004). This is also the only non-DHB collective agreement that provides an entitlement of six weeks annual leave. The employer recently looked to introduce a variation to this collective to vary the system of tenths and to incorporate ACC funding at present applied for directly by the doctors into salary. Members decided that the change to the tenths was not advantageous. Though not opposed in principle to the incorporation of ACC payments into salary they would like to await the outcome of an ACC review in April before deciding on the figure.

Wellington Primary Health Services
This covers the single largest number of salaried GPs. It is a multi-union, multi- employer collective agreement. Salary rates for the GPs have been improved in a phased way over the last three years to a top rate of $47.89 per hour. The present collective agreement expires next year.

Union and Community Health Centre (Christchurch)
A new collective expiring in at the end of June has now been signed. The top rate in is $51.12 per hour.

Auckland Union Health Centres: Otara, Waitakere and Mt Roskill
Both the Otara and Waitakere collective agreements, which have been in place for some years, have expired (on 30 June 2003). At present the top rate in the expired collective at Otara is $48 per hour and at Waitakere $44 per hour. Waitakere is experiencing problems as the result of the transition to PHOs and Otara is experiencing a high incidence of locum employment

Otahuhu Union and Community Health Centre (now owned by Ngati Whaatua)
Ngati Whaatua Iwi health Authority purchased the centre last year. Negotiations have been going on since last November. A further negotiation this month should see the employer completing their offer. Ngati Whaatua has other centres employing doctors none of whom are members.

Te Oranganui Trust (Wanganui)
This collective agreement expired in December last year. The top rate for a GP in the collective is $55.77 per hour.

Community Hospitals
Queen Elizabeth Hospital (Rotorua)

A collective agreement was settled after negotiations spanning several years and expires in August this year. The top rate in the collective is $80 per hour (salaries include 6% for superannuation).

Central Otago Health Services (Dunstan Hospital, Clyde)
This collective agreement expires in June 2004. It has an 'agree to agree' formula for redundancy. The historical relativity is with Otago DHB MOSSes so we will be looking to the DHB MECA settlement for relativity. The top rate for a MOSS in the collective agreement is $51.73 per hour.

Waitaki Hospital Oamaru
Bargaining has been initiated for the renewal of this collective agreement. Members have been asked to comment on a draft claim and an employer salary offer of 3%. The top rate in the collective is $47 per hour.

Hospices
Pay scales in most hospices bear a direct relationship to DHB scales though other conditions are inferior. The Association has members in a number of hospices and it remains a medium-term aim to bring them under one multi-employer collective. The best opportunity for that will be when the DHB MECA is settled which would resolve the issue of which DHB scale to put forward. Our sole collective agreement (at the Arohanui Hospice Trust in Palmerston North) expired (in September 2003). Members have yet to forward feedback on the draft claim.

New Zealand Blood Service
This collective agreement expires in June 2004. The plan was for the Blood Sevice to become party to the negotiation of a new DHB MECA on the expiry of the first DHB MECA in June 2004. (DHB employers appear to have agreed that the Blood Service could be party to the DHB MECA). However this plan will have to be re thought, as it appears the DHB MECA may not have settled let alone expired again by June 2004. The top specialist rate in this agreement is $69.70 per hour and the top MOSS rate is $48 per hour.

Family Planning Association
This longstanding collective agreement has the lowest rates for doctors in any collective agreement in the country. The collective expires in August 2004. Even after several years of increases beyond the rate of inflation the rates still lag. Though family planning is now a recognised vocational branch of medicine the employers see the appropriate comparison as being between community employers rather than DHBs. The top rate in the collective is $44.25 per hour.

WIPA: Sexual Health Doctors
This collective agreement expires in June 2004. The top rate on the specialist scale is $73.18 per hour and the top MOSS rate is $53 per hour. There is no redundancy provision.

Wellington Peoples Centre
This is a new multi-union collective agreement with the union parties including the Association and Unite (a union that covers the other employees of the Centre). The rate for doctors in the agreement is $43.68.

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Delegate System

The National Executive has decided to proceed with the implementation of a delegate system, as part of the ASMS's membership empowerment strategy, in order to help the ASMS achieve more influence and effective involvement at a workplace level. At this stage we are likely to hold seven regional seminars in the second half of the year. The scheduling of these seminars is likely to be considered by the National Executive at its next meeting on 1 April.

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