Publications

The Specialist

Issue 61 - December 2004

Proudly Sponsored by:

• Being Outcome Focused Over Membership Empowerment: Putting the Second 'C' into the MECA
• Productivity – What Else?
• Resolving the Contradiction and will we have to make their Mothers cry?
• The 16th ASMS Annual Conference
• ASMS Annual Conference Adopts New Constitution
• Payment for Public Holidays
• Code of Good Faith for the Public Health Sector
• Minister of Health's Requirements to DHBs on Clinical Leadership

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Being Outcome Focused Over Membership Empowerment: Putting the Second 'C' into the MECA

Adapted from the report on implementation of the MECA to the 2004 Annual Conference which is available on the ASMS website.

After 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.  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.

The ASMS will have an important role in ensuring that the basic MECA provisions are adhered to (eg, correct salary scale placements, CME expenses, reimbursements and leave entitlements).  Once the MECA is signed the ASMS will write to all DHBs advising them of their immediate specific responsibilities including the implementation of particular entitlements such as the translations to the new national salary scales.

But 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.  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.

Empowerment is critical to the implementation, protection and enhancement of the MECA which, in turn, strengthens our ability to achieve empowerment; ie, 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.

Where do we want to end up? Working backwards
In order to better understand how the ASMS should next proceed, it is best to work backwards by first considering where we want to end up.  After working out where we want to be we can better understand how to get there.

Without commenting on time-frames or priorities (both of which will be variable and should be largely shaped by members locally in each DHB), our specific objectives should be:

• All ASMS members should have a job description based on, and consistent with, the recommended guideline provided in the MECA.
• All regularly worked hours should form part of each member’s job size and be paid accordingly.  This includes non-clinical time.
• We have agreed national guidelines on limitations of hours of work that have practical application at a DHB level.
• We have an agreed practical strategy for addressing the pressures and challenges in services where registrars are not employed that then are able to be applied at a DHB level where applicable.
• A national agreement on arrangements, including enhanced remuneration, for members who work on shifts has been developed and is able to be applied at each DHB where its key elements are not already in place.
• Deficiencies in workplace conditions, resources and accommodation are identified and an agreed plan for remedying them developed and implemented.
• Agreed staffing plans have been developed in all services within all DHBs, including strategies to fix identified gaps between current and required levels.
• Agreed plans have been developed for accessible professional development and education (including sabbatical and secondment) in all services within all DHBs.
• DHB services which have recruitment and retention difficulties have agreed on how they might be addressed including transparent special enhancements and benefits which are consistent within and between each service.
• Satisfactory arrangements and entitlements for internal locum compensation have been negotiated in all DHBs where they do not presently exist.
• A national agreement will have been achieved covering arrangements, including remuneration, for when members are requested to undertake additional work due to the unplanned absence of a resident medical or dental officer.
• The professionalism clauses (eg, primacy of responsibility to patients; speaking out; patient safety; avoidance of suspension for investigations of clinical practice; senior medical staff involvement in appointment processes; and obligation of DHBs to provide a non-punitive quality improvement environment) are honoured, integral to each DHB’s internal culture, and applied according to their tenor and intent rather than in their breach.
• The ASMS is invited to advise DHBs on all relevant proposed reviews, including terms of reference, and that these reviews do not proceed without taking into account and satisfactorily resolving any concerns raised by the ASMS.  Further, an agreed dispute resolution process is actively and expeditiously utilised in order to resolve important differences over any review’s recommendations.
• Following the development of agreed national guidelines, all DHBs will have put in place locally agreed processes for enhanced senior medical staff involvement in DHB decision-making which is based on democratic and mandated processes.

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 ASMS:

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 ASMS of specific groups of members in areas such as hours of work and job sizing.

ASMS 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 be critical to assist through both 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.

Getting Outcome Focused
In order to ensure a focused approach to implementation it is helpful to consider the key issues in the context of the following five bands.

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 ASMS’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 ASMS.  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 ASMS 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.

The MECA is based on the ASMS’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% should be 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.

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-ASMS 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).  Much of the resource needs of our members can be addressed through this process by the development and implementation of these plans.

The MECA is also strong on workplace conditions, resources and accommodation.  Following on from the ASMS’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.  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 ASMS 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 ASMS 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, including recognition of the ‘importance of collegiality’.  Several clauses sustain, enhance and protect professionalism through the creation and enhancement of specific rights which lend themselves less to pro-active work by the ASMS.  Much of the ASMS’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 ASMS 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 ASMS 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.’

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 ASMS 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 ASMS 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:

District health boards (DHBs) as employers benefit from these employees [senior medical staff] having significant influence in their internal decision-making.

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 ASMS and DHBs to develop agreed national guidelines which will then be referred to local joint DHB-ASMS 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 ASMS’s work, there is much scope for pursuing this objective in each DHB.  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 ASMS’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 ASMS’s endorsement relates to the ‘purpose, extent, process and terms of reference’ of the proposed review.  ASMS 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 ASMS 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 ASMS, 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 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.

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, which expired on 30 June 1992, 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.

Ian Powell
Executive Director

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Productivity – What Else?

As the season of shutdowns and silliness looms, we waver between the celebrations of a new national DHB collective agreement (MECA) and the challenges of its implementation.  We rally to the call for non-clinical time yet hear the clarion call for productivity.  Can the necessity for one live comfortably with the demand for the other?

Recall a Treasury inquiry for an answer to the failure to produce extra operations for extra taxpayer dollars invested in health?  A reasonable question for those responsible for wise spending of whatever tax is redistributed.  Except that further dialogue reveals that the question illustrates the fundamental flaw in the inquiry.  The reason the number of operations was the “measure” was in reality that was all that was counted!  Gordon Davies, Deputy Director-General of Health (DHB Funding and Performance), told the ASMS Annual Conference last month that total case weight numbers have remained the same for many years despite increased funding.  Hospital discharges were no higher!  Any senior doctor, or other health professional, would not be surprised.  Outpatients were not counted in WEIS/DRG/CWD data sent to the Ministry!

So any effort to reduce the need for inpatient care by improving outpatient care fails to register.  Any effort to deliver care in the community, in primary settings, only results in worse results for hospital numbers.  And death equates with any healthy discharge in the counting of outcomes!  All this in the 21^st Century!  These perverse incentives can only drive managers at all levels into spirals of futility, chasing ever vanishing rewards for doing better what their instincts - and those of their SMO partners - tell them are patient focused and improved models of care.

Measured differently – a measured difference
Some have risen above the challenge; have broken out of the production straight-jacket.  Stephen McKernan (Counties Manukau DHB chief executive) also spoke to our Annual Conference giving an impressive insight into what can be achieved when effectiveness rather than production units is the drive for innovation in health care delivery.  When senior respected doctors are encouraged, supported and funded to implement high level models of care: from DHB-wide birth registers linked with well child visits and immunisations, to nurse led community based comprehensive disease management, from GP empowering COPD management to secondary cardiac care outside hospitals.  When these models are seen as the only way to break from the obsession with reporting to the “bottom line”.  And that the economic reality is that “return on investment” can actually be demonstrated – once the models are bedded in and the accountants get their calculators around the true measures of improved health outcome.

And yet SMOs at the ASMS Annual Conference shared seasonal and perennial tales of DHBs individually trying to reinvent local versions of wheels.  Wheels that had been rolled out by neighbours, in nearby New Zealand communities.  That could easily be borrowed, purchased for a pittance, or merely badged anew for local implementation.  Often accused of past patch protection, it appears that clinicians are increasingly frustrated by DHB unwillingness to share and celebrate the successes of other DHBs.  Their insistence on interminable strategy review and external benchmarking rather than adopting New Zealand successes.

It was observed by the Treasurer of the British Medical Association that while the United Kingdom has devolved into four different National Health Services, New Zealand seems to have 21 versions of the NHS.

So how can we escape from this productivity paradigm?  At one level convince the Treasury that the dollar (at least the portion that gets to bedside, roadside, and cotside care) is spent well, and at another convince the patient in front of us that the level of intervention and support we can provide will not depend upon the accident of domicile?  Not by bending to the grindstone of production.  Not by heads down and bums up focus on more units of output.  That has been clearly shown not to work, and be not even counted by the disbursers of the dollars.

Joined up thinking - leading together
What we must do is help our managers at all levels engage with our DHBs.  We must also engage directly with our DHB funders.  We must help them break out of their narrowly focused, hospital and specialist wary approach.  To help them trust the wealth of expertise the country has invested in the SMO workforce.  To use this expertise to continue to improve effectiveness across the spectrum of tertiary, secondary and primary care.  To reward effectiveness rather than productivity of units.

We must drive clinical leadership.  To help hospitals direct specialist services; to help DHBs to optimise the role of the doctor in modern health services; to lead the recalcitrant and the willing in refocusing on patients, on improved healthcare rather than massaged spreadsheets.

And to achieve this leadership in partnership, we will need to ensure sufficient non-clinical time.  Time beyond the immediate and surrounding clinical demands of patients; time to reflect, audit, critique, advise on what we do and have done; time to effectively counsel, plan and implement improvements.  This time is precious – but absolutely essential if the whole system is to reap the investment in its most expensive health professionals.

Getting the balance of clinical and non-clinical time will not be easy for anyone.  Not for the manager and funder, not for the intensively workaholic SMO.  But for both to work towards this balance is essential for effectiveness to be the true measure of productivity – or else.

That is my seasonal wish, silly or not.  Maybe some of you will share it.

Jeff Brown
National President

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

The national DHB MECA, with its focus on empowerment and the relocation of ASMS members into the ‘engine room’ of DHB decision-making, provides great potential to achieve important ASMS 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 ASMS 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 among all senior medical staff 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.  One possible, rather flippant, description of their attitudes and cultures is the good, the bad, the ‘badder’ and the ugly.  Perhaps a fairer description is that these attitudes and cultures cover the full range of the good and competent; good and competent but distracted (by interminable pressures, excessive external demands and crises); good but overawed; incompetent; competent but pathological; and incompetent and pathological.

All that has happened over the past 15 years is that managers adhering to these various attitudes and cultures have moved around, been reborn and engaged in inbreeding.

There is no question that ‘Plan A’ will be the most effective and productive means of implementation for all parties (‘win-win’ to use the jargon).  The ASMS should use its best endeavours to ‘move heaven and earth’ to ensure that ‘Plan A’ is followed.  But unfortunately 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 new 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’ (or whatever the most apt description) managers cry.  ‘Plan B’ could end up being aptly known as our “FU” strategy!

Ian Powell
Executive Director

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The 16th ASMS Annual Conference

The 16^th ASMS Annual Conference was held at Wellington’s Duxton Hotel on 3-4 November with another record attendance of delegates.  We were honoured by the attendance of Dr David Pickersgill, Treasurer of the British Medical Association, and Dr Robert Weinmann, President of the Union of American Physicians and Dentists.

The Conference was preceded by a well-attended cocktail function on 2 November, generously sponsored by the Medical Assurance Society, which the Minister of Health subsequently described as the ‘best bash in town’.  In addition to international guests and delegates, the around 130 participants included the Minister of Health, MPs of all shades, Health Ministry and DHB officials, President of the Medical Council, the Health & Disability Commissioner, representatives of the Council of Trade Unions, kindred unions and professional associations, academics and both employment and medical-legal lawyers.  The function had two themes—the Melbourne Cup and the achievement of the MECA—with CTU President Ross Wilson and NZ Nurses Organisation Chief Executive Geoff Annals giving brief speeches applauding the latter.

The Conference dinner, again generously sponsored by the Medical Protection Society, was a most enjoyable occasion and included lucid addresses by founding ASMS National President Dr George Downward and guest after dinner speaker Dr Donald Urquhart-Hay.

National President Dr Jeff Brown’s address has already been emailed to members.  Two of the main Conference sessions were on the implementation of the national DHB MECA led by Executive Director Ian Powell (discussed elsewhere in this issue; his report has also been emailed to members) and the new constitution led by Industrial Officer Henry Stubbs.  Other important sessions included:

• Professor John Campbell, President of the Medical Council, on the implementation of the Health Practitioners Competence Assurance Act.
• Achieving clinical leadership in DHBs with Dr Ken Clark (Medical Adviser, MidCentral DHB) and the Hon Annette King, Minister of Health.
• Productivity in DHBs with Gordon Davies (Deputy Director General of Health) and Stephen McKernan (Chief Executive, Counties Manukau DHB).  Officials from Treasury were also present for this session which they found most helpful in developing their own understanding of this sometimes controversial issue.
• Current medical-legal issues, including competency reviews, with Gaeline Phipps and Peter Robinson from the Medical Protection Society.
• Alternative health providers to doctors using anaesthesia as an example with Dr Mark Bukofzer, President of the New Zealand Society of Anaesthetists.
• Implementing the national consultants’ contracts in the United Kingdom with Dr David Pickersgill from the British Medical Association.
• Implications of the European Working Time Directive with Dr Rod Harpin (Northland DHB clinical director and previously a clinical director in England) and Dr David Pickersgill.
• Being a health and safety delegate with Industrial & Policy Adviser, Angela Belich and Dr Paul Owen (the ASMS’s first official health & safety delegate).
• The new statutory code of good faith, with particular reference to the provision of life preserving services during strikes, with Industrial & Policy Adviser, Angela Belich.

Conference also voted to increase the ASMS membership subscription for the 1 April 2005-31 March 2006 financial year by $20 to $580 (GST inclusive) based largely on anticipated inflation plus the continued need to build up the ASMS’s reserves.

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ASMS Annual Conference Adopts New Constitution

After discussion and debate that lasted for between 2-3 hours and after some amendments, mainly in the area of branch organisation, Annual Conference last month adopted a new ASMS constitution.  This new document attempts to be simple, workable and enabling.  It will be placed on the Association’s website as soon as practical and later sent to all members.

The main purposes of the new constitution are to better facilitate the ASMS in undertaking our daily work efficiently and effectively, while ensuring members (through the various governance structures) have opportunities and are encouraged to actively participate in setting policy and the industrial activities of the ASMS.  The draft constitution also seeks to provide effective and fair processes for members to elect (or appoint), remove and supervise other Association members to leadership, representative or delegate roles.

The objectives of the Association are extracted below and are largely derived from the previous constitution (then known as the Rules):

Objectives
The objectives of the Association are:

1. To protect and promote the interests of members in all aspects of their
   employment;
   
   
2. To advise, assist or represent members to negotiate agreements relating to their
   termsand conditions of employment;
   
   
3. To actively promote and wherever practicable, negotiate comprehensive and fair
   collective employment agreements between members and their employers;
   
   
4. To monitor observance of the provisions of collective employment agreements
   negotiated by the Association on behalf of its members;
   
   
5. To advise and represent members in other matters related to their employment, in
   particular in matters relating to the interpretation and application of the terms and
   conditions of their employment;
   
   
6. To encourage and where appropriate offer training and support for members who
   wish to play a more active role in Association affairs;
   
   
7. To monitor and take appropriate steps to improve the working environment and
   general working conditions of members of the Association;
   
   
8. To promote professional and co-operative workplace practices of the highest
   standards,with particular emphasis on the collective and collegial identification and
   resolution ofworkplace problems and challenges;
   
   
9. To promote close, professional and constructive working relationships with the
   employers of members of the Association;
   
   
10. To promote high standards of professionalism and ethical behaviour in the
    management and delivery of public healthcare services;
    
    
11. To promote close, professional and constructive working relationships with relevant
    clinical or professional organisations, government departments and politicians and
    statutory bodies and other agencies, in support of members’ interests and the
    objectives of the Association;
    
    
12. To support the right of all New Zealanders to equal access to comprehensive quality
    public healthcare services;
    
    
13. To promote policies and engage in public debate on issues relating to the availability
    and delivery of the highest possible standards of publicly funded healthcare
    servicesfor all New Zealanders;
    
    
14. In pursuing these objects, the Association may support, co-operate with or affiliate
    to any other organisation, whether of an industrial, professional or other kind that
    the National Executive or national conference may decide.

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Payment for Public Holidays

The Holidays Act 2003 and its recent amendment have clarified the statutory benefits that an employee must receive for working on one of this country’s eleven public holidays, sometimes referred to as statutory holidays.

Put simply, those benefits are:

• a day-in-lieu, at a later date and
• time-and-a-half for the time actually worked on the public holiday.

However simplicity does not reveal the whole story and the time-and-a-half entitlement under the Act is not without its difficulty.

In popular parlance, time-and-a-half might be supposed to mean time-and-a-half of an individual’s base hourly rate, which in the case of ASMS members would be their FTE base rate (as in either of the Specialists’ or Medical/Dental Officers’ scales in the collective agreement, divided by either 2086 or 2080, being the number of hours generally accepted as being in 52 working weeks).

However the Holidays Act introduces a new concept of relevant daily pay and time-and-a-half is applied to that portion of the employee’s relevant daily pay that relates to the time actually worked on the public holiday.  The Act helpfully prescribes a method of calculating an employee’s relevant daily pay where that is not otherwise obvious, although this method is not without its own difficulties.

Unfortunately, however, the Act does not prescribe whether relevant daily pay relates to an eight hour day, a twenty four hour day or some other number of hours in the day!

The ASMS and District Health Boards NZ (DHBNZ) were concerned that if these various difficulties were left to each DHB and its HR department to address it was likely there would be many disputes and a range of interpretations would quickly emerge around the country, engendering resentment and confusion.

Accordingly ASMS and DHBNZ have agreed on what we consider is a reasonable interpretation and application of the difficult provisions of the Act, referred to above.  This agreement has been recommended to all DHBs and we expect most, if not all of them, will adopt it.[1]  However the agreement recognises and allows for the possibility that individual DHBs may take a different approach where they have already agreed to special on-call or public holiday payment that meet the requirements of the Act.  We would however expect those DHBs to talk to us first.  To date only Canterbury DHB has done so and we accept their approach is a reasonable one.

The ASMS is not aware of ANY other DHB where such special agreements have been negotiated and although we recognise there may be other acceptable methods of calculating an employee’s relevant daily pay, we do not accept that any of our members are currently receiving the full entitlement of time-and-a-half  that the Act requires. 

Relevant Daily Pay
The Holidays Act includes a method for calculating relevant daily pay, which our agreement with DHBNZ has adopted and recommends to all DHBs.

To calculate relevant daily pay, your gross earnings for the four weeks (i.e. 2 pay periods) immediately preceding the public holiday will be divided by the number of days you actually worked (or were on paid leave) during that period.  That figure is then divided by 8 to arrive at what might be called your relevant hourly rate.

If you have worked on the public holiday, bearing in mind that work includes telephone calls at home or elsewhere, actual time back in the hospital or your place of work, plus travelling time to and from your place of work, you are entitled to claim a special public holiday premium payment equivalent to 50% of your relevant hourly rate for all time spent actually working on that day.

It may appear complicated, but it is really quite simple and ensures that the time-and-a-half is effectively applied to your gross hourly rate, which in most (if not all) cases will be significantly greater than your base hourly rate.

Claims to be submitted
Under our agreement with DHBNZ, payroll is required to calculate the relevant hourly rate for each employee who works on a public holiday and it will be necessary for each employee to submit a claim for the time they actually worked that day.   Payment will be made within two pay periods of the claim being submitted. Unfortunately, if you do not submit a claim you will not receive the additional payment, although you will be still be entitled to, and receive, the day-in-lieu.

This agreement has been backdated to Easter 2004 and those of you who have worked any public holiday since then are entitled to submit a claim and will be paid in accordance with this new agreement.  If you have not kept a record of the hours you worked on the public holidays since 1 April, we would expect your employer to accept a claim based on your recollection of the time you spent working that day.

There are Exceptions
There are some DHBs (Bay of Plenty and Hawkes Bay) and some services within other DHBs, where the on-call payments are not included in the individual member’s job size but are based on special 'daily' or hourly payments, or 15 minute units of time for which payment is subsequently claimed.

It is very clear under the Act that these special rates must also be paid at time-and-a-half.  We have no doubt this will rankle with the affected DHBs but we expect them to comply with the law and will take the necessary steps to ensure they do.   It remains to be seen how the requirement to pay these special rates at time-and-a-half will affect the calculation of relevant daily pay under our agreement with DHBNZ but I will discuss this further with the small number of affected DHBs and, if necessary with our lawyers.  This issue should not however delay the implementation of the time-and-a-half provisions under the Act for most of you.

Christmas & New Year 2004
One of the new provisions under the Holidays Act changes for this year and all future years the way the four Christmas/New Year public holidays are treated.  This year Christmas Day and New Years Day fall on Saturdays and Boxing Day and 2^nd January fall on Sundays.  In the past, when this occurred the public holidays would be transferred to the following Mondays and Tuesdays.  This year, for the first time, Saturday and Sunday will be treated as the public holidays for those of you who are required to work on those days and the Mondays and Tuesdays will be 'normal working days'. 

However, for those of you who do not work on the Saturdays or Sundays, the public holidays will be transferred to the following Mondays and Tuesdays.

The important thing to remember is that whatever your working arrangements, you will be entitled to only four public holidays over this period, which attract the statutory benefits of a day-in-lieu and time-and-a-half.  The statutory benefits for working on public holidays apply to only four days over this period for any individual.

Public Holidays and CME
There is one final important point to note, arising from the new MECA: from the time the MECA comes into force (backdated to six months after the date of expiry of your last collective agreement) you will be entitled to a day-in-lieu for each day on which you attend or attended a conference on a NZ public holiday and since 1 April 2004 you will be entitled to time-and-a-half for up to 8 hours attendance at the conference on the particular public holiday.

I have no doubt that each of the matters raised above will raise a number of questions.  If you would like further advice please contact me or Angela Belich at the national office.    

Henry Stubbs
Industrial Officer

Code of Good Faith for the Public Health Sector

[Schedule 1B of the Employment Relations Amendment Act (No. 2) 2004]

The Code of Good Faith for the Public Health Sector has its origins in a successful collaboration between the health sector unions belonging to the Council of Trade Unions (CTU) and District Health Boards New Zealand (DHBNZ).  The ASMS, through Industrial Officer Henry Stubbs, was actively involved in this collaboration which has led to an outcome with which we are proud.

When the Employment Relations Law Reform Bill appeared it included a controversial clause (100D) which allowed the Minister of Health to approve a code of practice by notice in the gazette that provided for the health and safety of patients, employees and the public in the case of strikes or lockouts.  This clause would have allowed the Minister to interfere in the case of industrial action at her whim.

At the same time the CTU and the DHBs had concluded a code of good faith under the existing legislation which covered the issue and bound unions affiliated to the CTU and the DHBs.  After submissions to the select committee and lobbying of government, 100D was withdrawn and replaced in the committee stage of the Bill with the CTU/DHBNZ Code of Good Faith with only relatively minor modification. (The NZ Blood Service is now covered for instance.)

The Code is now part of statute; that is, it is now a schedule (1B) of the Employment Relations Amendment Act (No.2) 2004.  Further, it can only be amended if the Minister of Labour is requested to do so by three-quarters of DHBs and unions who represent three-quarters of union members employed by DHBs.

Who does the Code apply to?
The Code applies to DHBs, the Blood Service and employers providing services to them (and their employees and the unions representing their employees).  So pretty much any services provided in the public health sector.  However, it excludes those services where the DHBs (and Blood Service) are merely funders.

Purpose of the Code
The Code commits those covered by it:

• to develop, maintain and provide high quality public health services (which may be useful support for countering short-sighted and risk-shifting privatisation proposals); 
• to patient safety; and
• to constructive engagement and full participation with the other parties.

Thus there are requirements to act with courtesy and respect, behave openly to meet and make time to meet (within resource limitation).  There are clauses promoting collective bargaining (including MECAs), requiring the participation of Maori with a view to improving Maori health outcomes, and providing continuity of employment when services are contracted out.

Recognition of the Employee’s Right to Make Public Comments
This right, which was first negotiated by ASMS into our collective agreements and now is in our MECA, has been extended to all employees in the public health sector (in slightly modified form).  Employers are required to respect and recognise the right of their employees to comment publicly and engage in public debate on matters within their areas of expertise and experience as employees provided that they raise it first with their employer, allow a reasonable time for their employer to respond and do not breach patient or professional confidentiality.

Patient Safety during Industrial Action
This is the provision of the Code that has generated most interest from members. Under the principal Act the parties to collective bargaining are required to agree a process for conducting the bargaining. The first requirement of the Code is that when they do so they must “make every endeavour to agree on a clinical expert or other suitable person”.  This “clinical expert or other suitable person” may be put in the position of adjudicating on what staff should be provided during a strike.  It is likely that ASMS members may be approached to act as a “clinical expert”.  It is important that if members agree to act in this capacity that they are clear as to what their obligations are and the very tight timeframe that may be involved.

The general obligation to provide for patient safety by “ensuring life preserving services are available to prevent a serious threat to life or permanent disability” is the employers. The provisions below take place within the obligation to give 14 days notice of industrial action in essential services like the health sector.

• Once the employer has received notice of industrial action (or before) they have to produce a contingency plan to fulfil this obligation.
  
  
• If the employer believes that they won’t be able to manage to preserve patient safety without the help of the union members that are on strike they can make a request to the union and its members for help. 
  
  
• The request needs to specify what life preserving service they need help to maintain, what the contingency plan is in relation to that service and what support it needs from union members and must be made by the close of the day after the date that the notice of industrial action is given.
  
  
• Not later than four days after the request has been made, “the parties must meet and negotiate in good faith and make every reasonable effort to agree” on the extent and staffing of the services and a protocol for the management of any additional emergencies.
  
  
• If there is no agreement, then, within five days after the notice of industrial action the issue is referred to the “clinical expert or other suitable person” who receives representations from both parties, seek expert advice (if necessary),attempt to resolve any differences and provide a determination to the parties within seven days of the notice of industrial action.

The parties then have to use “their best endeavours to give effect to the determination.”

The process requires quick action and it may be that contingency plans for industrial action become one of the risks that each department needs to add to their repertoire.

Angela Belich
Industrial & Policy Adviser

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Minister of Health's Requirements to DHBs on Clinical Leadership

For several years health ministers have sent DHBs (and their predecessors) ‘letters of expectations’ (a cute way of describing requirements or instructions). For most of the 1990s they were narrowly and contractually focused including emphasising unrealistic, unreasonable and unsuccessful requirements for ‘fiscal neutrality’ in collective agreement settlements.

In recent years, particularly since 2000, the parameters have widened from narrow fiscal to quality and access issues consistent with the move away from the commercialised health system of the 1990s. In her letter for the 2004-05 financial year (sent in December 2003) the Hon Annette King made the following statements concerning clinical leadership in an attached appendix under the heading ‘Shared Decision Making’:

While the final responsibility for DHB strategy rests with boards and for operational decisions with Chief Executives, decisions will be best informed when clinicians are involved at all levels of the decision-making process.

DHBs are expected to make progress in this area (and I recognised several DHBs have effective measures to involve clinical staff). One means to achieve this would be for DHBs to ensure that clinicians are appointed to those teams, committees and boards responsible for the DHB’s policy development and operational functions. In this way, clinicians will be engaged in such matters as priority determinations, resource allocation, service redesign and service configuration.

The challenge for the Minister will be to monitor and evaluate how successful her expectations are being realised in practice in all DHBs.

Subsequently, on 4November, speaking at a session at the ASMS’s Annual Conference on ‘achieving clinical leadership in DHBs, the Minister made the following concluding observations:

I would like to summarise the situation as I see it regarding clinical leadership in New Zealand.

I believe clinical leadership is the leadership of change. Leadership is about becoming the focus for change and taking responsibility for change, working with and acknowledging the efforts of others in that change.

The role of the clinical leader is to guide their colleagues through change. Clinical leaders should seize the opportunity to work with government and communities to adopt an agenda to improve societal health.

Senior doctors have a vital role to play both as clinicians and as decision makers. Effective clinical governance requires the support of District Health Boards. Collaboration and co-operation are the key elements of successful relationships. Open engagement and early consultation with senior doctors will go a long way toachieving better results in this area.

In my most recent Letter of Expectation to DHBs, I highlighted the importance of shared decision making. I said that ‘decisions will be best informed when clinicians are involved at all levels of the decision-making process.’ One way to achieve this is to ensure that clinicians are appointed to those teams, committees and boards responsible for the DHB’s policy development and operational functions. If this occurs clinicians will be involved in areas such as priority determinations, resource allocation and service redesign and configuration.

Our government has placed a particular focus and importance on healthcare. This has given us the opportunity to improve the care of patients markedly, but it cannot be realised unless health professionals lead change. No amount of structural reform, policy development or management change will achieve the patient-focused outcomes we all want.

It means that clinical input into all aspects of DHB decision-making is vital if we are to maximise the gains from our investment in health. Medical specialists need to be high up in those consultation processes. And you must take some responsibility for making that happen. You must be proactive within your organisations, and ensure that your views are represented. And you must also be receptive to the views and ideas of your colleagues.

We are relying on your input not only within your own DHBs but also for you to become involved in College affairs and in wider regional service configurations beyond your own DHB boundaries.

Improving quality is central to the vision we all share for our health system, and we must enable a culture of quality improvement to get those outcomes. If we do not support and foster that culture then the cooperation that allows real quality improvement cannot occur.

Real quality improvement will only be achieved if it occurs at all levels of the health sector. For such an approach to make a difference to patients, it is essential it is a bottom-up initiative. We need to measure what we do, trial new interventions and measure results. Quality improvement must become part of what we do every day, a core function of all our jobs. This requires vision, leadership and some resource. It will not happen unless people like you spearhead the approach.

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