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SUBMISSION TO THE TRANSPORT AND INDUSTRIAL RELATIONS SELECT COMMITTEE ON THE EMPLOYMENT RELATIONS LAW REFORM BILL
26 FEBRUARY 2004
1 INTRODUCTION
1.1 The Association of Salaried Medical Specialists (the Association) represents
salaried senior doctors and dentists. The Association was formed in April 1989
to advocate and promote the common industrial and professional interests of
our members.
1.2 The Association has over 2,300 members, the majority of whom are employed
by District Health Boards (DHBs). About 92% of senior doctors and dentists
employed by public hospitals run by DHBs are members of the Association.
While most of our membership is in secondary/tertiary care in the public sector,
a number work in primary care and outside DHBs. We have members at
hospices, community trusts, iwi health authorities, union health centres, the New
Zealand Family Planning Association and the New Zealand Blood Service.
1.3 The Association is affiliated to the Council of Trade Unions (the CTU). We have
participated in drawing up the CTU submission to the Select Committee and
support the CTU submission. This includes the detailed technical submission.
If the Committee summarises submissions in order to gauge the strength of
support for any particular provision the Association should be counted as
supporting each of the points raised by the CTU.
1.4 This submission is therefore limited to any additional points we feel should be
made because of the Association’s position as a union bargaining for scarce,
skilled, highly trained professionals who are committed to the development of
an equitable and excellent public health service.
1.5 The Association does not wish to make oral submissions.
2 SUMMARY
2.1 Overall the Association supports the provisions of the Employment Relations
Law Reform Bill (ERLRB). Most of our members are employed by district health
boards in public hospitals. We believe that District Health Boards have
benefited from a stronger commitment to collective bargaining under the
Employment Relations Act (ERA). However this has been largely because of a
change in culture generated by the ERA rather than mechanisms being available
in the Act to force reluctant employers to bargain collectively. The mechanism
in this Bill (in particular clauses 6 to 30 and Part 6A 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. We
hope provisions to protect vulnerable employees when their employer changes
will force hospital managers contracting for these services to refocus on quality
rather than cost. (Section 3 below expands upon this point.)
2.2 The Association believes that Clauses 6 to 22 (with the CTU’s suggested
amendments) will help us bargain collectively for doctors employed outside
DHBs and thus aid recruitment and retention of doctors in New Zealand. We
believe that this will ultimately aid the smaller employers of doctors in the
health sector. (Section 4 below expands upon this point.)
2.3 The Association disagrees strongly with the proposed clause 100D because it
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 she is ultimately the employer. (Section 5 below
expands upon this point.)
2.4 The Association has concerns with Part 2 of the Bill, which repeals and replaces
the Equal Pay Act. The Association has been involved through the CTU in the
Pay and Employment Equity Taskforce (for the state sector) and is concerned
that the provisions in the ERLRB have not been drafted in light of the
Taskforce’s report, which is due in March 2004.
2.5 The Association notes with interest the moves towards an enlarged role for the
Employment Relations Authority (Clause 15). 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. (Section 6
expands upon this point.)
3 IMPROVING COLLECTIVE BARGAINING IN THE DISTRICT HEALTH
BOARDS
3.1 In the Association’s submissions on the Employment Relations Bill in 2000 we
noted our unusual position as a union that had made significant gains for its
members under the Employment Contracts Act (ECA). Because our members
were highly skilled and scarce we were able to improve wages and conditions
even in an environment hostile to collectivism. We contrasted this with other
health sector unions who had to focus on protecting conditions. In many cases
they did not succeed and conditions for their members became worse.
3.2 The health sector is composed of interdependent teams. Nurses, junior doctors,
allied health professionals, orderlies, administration and support staff all play a
role in creating a healthy culture. The health and safety of patients depends on
how well these teams work together. The maintenance of a healthy hospital
culture was one of the critical issues identified by the Health Workforce Advisory
Committee[1] in recruiting and retaining the health workforce. Functioning
teams have been repeatedly identified as the crucial element in maintaining
patient safety and improving quality. [2]
3.3 Despite gains in their own pay and conditions most senior doctors observed
that, over the ECA period, their working lives got worse. Teams do not work as
well when some of their number are losing pay and conditions and are stressed
and resentful. Doctors do not work well in the absence of experienced and
valued nursing staff. Hospitals do not work well when administration staff are
decimated or morphed into managers and support staff have been defined out
of the larger team by being sold repeatedly (frequently at the expense of their
wages and conditions) to private employers.
3.4 The failed market reforms of the 1990s damaged our public hospitals not only
by setting them up to compete with each other but by attempting to destroy the
co-operation, collegiality and team work that is the natural working environment
of the health professional. The Employment Contracts Act played its part in
this.
3.5 The Employment Relations Act halted this process rather than completely
reversing it. Conditions for nurses and other health workers have, overall, not
made up the ground they lost over this period.
3.6 In the years since the passage of the Employment Relations Act, unions and
employers have attempted to put co-operation and co-ordination back into the
forefront of labour and employer relations in the health sector. The
establishment of an industry organisation, District Health Boards of New
Zealand (DHBNZ), the establishment of the health sector tripartite forum, health
and safety committees at the DHB level and other local initiatives have been put
in place.
3.7 Many of these structures have not been a direct result of any particular
provision in the Employment Relations Act but as the result of a recognition
given to the virtues of co-operation, integration, economies of scale and the
sharing of services.
3.8 One of the most positive of these initiatives has been the Code of Good Faith
agreed between the DHBs and the health unions affiliated to the CTU, which
include the Association.
3.9 The stronger provisions for the promotion of collective bargaining and protecting
vulnerable workers (clauses 6 to 30 and Part 6A amended as suggested by the
CTU submission) may help make conditions for hospital workers better,
improve recruitment and retention, build better teams and improve the culture
at hospitals. This in turn would benefit patient safety.
3.10 Under the ECA we had negotiated collective employment contracts with most
DHBs. In the country’s largest DHB, Auckland, we were prevented from
negotiating a collective because of an ideological preoccupation of the
employer. We believe that it is not coincidental that Auckland DHB is still
struggling to emerge from a situation of poor employee relations and
uncontrollable deficits.
3.11 Where a state employer is dealing with employees that are critical to the
survival of a particular service, on an individual basis they rely unduly on ad
hoc solutions that are impossible to track and create constant problems with
fairness and relativity.
3.12 Our members’ work and their care of their patients is deeply affected by
failures in bargaining strength by groups of poorly paid and vulnerable workers.
For example, in 2003, a new system for the provision of sterile supplies in
Auckland caused the cancellation of operations. Wages in the sterile supply
area were so low that the hospital had not recruited workers who could
understand the instructions to deliver sterile instruments to theatres.
Instruments arrived at theatres with blood still on them and operations had to
be cancelled. In situations where grappling with deficits is the first priority
unions need to be able to force managers to focus on quality rather than short
term cost.
3.13 The consequence of stronger provisions promoting collective bargaining in
DHBs should not be regarded by the government as taking place in a financial
vacuum. Fair pay for nurses and other health professionals, protection for
decent pay and conditions for vulnerable workers in DHBs and good collective
bargaining provisions enabling the employment of sufficiently skilled staff are
aims we support and are necessary conditions for the kind of DHBs the New
Zealand public expects and deserves. The government must ensure that these
advances are funded adequately. Thus DHBs will no longer run on the principle
that what is cheap is better than what is good and the quality of care that New
Zealanders receive in their DHB’s will improve.
4 PROMOTION OF COLLECTIVE BARGAINING IN THE COMMUNITY HEALTH
SECTOR
4.1 The Association has members who are salaried doctors employed in community
hospitals, in hospices, by iwi health authorities, and in union and community
health centres. All of these employers are to some degree (and often wholly)
dependent on revenue that comes from the taxpayer. They compete for
doctors with the DHBs and with private practice. Their funding is never secure
in the long term.
4.2 We have negotiated some collectives covering single employers in all these
sectors. Negotiating in these sectors is very time consuming and resource
intensive because very small numbers of doctors are employed and the
employers are unable to commit to expenditure of a long-term nature.
4.3 Sometimes, as for instance in the case of doctors working for the Family
Planning Association and some union health centres, doctors accept poorer
wages and conditions because of their commitment to the work they are doing.
This leads to long-term recruitment difficulties as the supply of martyrs runs out
and locums have to be employed often at greater cost and with no on-going
commitment to the service.
4.4 In other cases wages are competitive but in all cases conditions are inferior.
This is particularly worrying where provision for continuing medical education is
poor, as it places the quality of the service offered at risk.
4.5 The Association aims to bargain on a multi-employer basis in these areas.
Often the employers with whom we have already negotiated collectives are
keen for this to happen. However, most sectors have recalcitrant employers or
employers that are ill equipped for such a negotiation. In these circumstances
we believe that Clauses 6 to 22, with the CTU’s suggested technical
amendments, will be helpful.
4.6 Anecdote suggests that many general practitioners would welcome work as
salaried doctors on competitive salaries with good conditions. Many doctors
want to practice as doctors not as small business people.
4.7 National multi-employer collectives of salaried general practitioners, palliative
care doctors, family and sexual health specialists and youth health doctors
would aid recruitment and retention. The provisions of this Bill would help to
achieve these. More helpful still would be funding of the true cost of employing
doctors by funding agencies.
5 CLAUSE 100D: CODES OF EMPLOYMENT PRACTICE RELATING TO THE
HEALTH SECTOR
5.1 This clause requires the Minister of Health to promulgate a “code of employment
practice” in the Gazette that provides for matters relating to the health and
safety of patients, employees and the public during strikes and lockouts.
5.2 The Association 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.
5.3 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). It should be dropped from the Bill.
5.4 The health sector is an essential service and 14 days notice is already required
for any strike or lockout. The provision is not limited to life preserving services
and appears to have the potential to make a lawful strike unlawful.
5.5 In an unprecedented example of co-operation the health unions affiliated to the
CTU (including the Association) and the DHBs, represented through DHBNZ,
have 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.
5.6 There is no need for 100D in view of the Code of Good Faith agreed by the CTU
unions.
6 GROWTH IN THE ROLE OF THE EMPLOYMENT RELATIONS AUTHORITY
6.1 The Association has had the view since its establishment that independent
arbitration should be available as the last resort for disputes in the health sector
that involve senior doctors.
6.2 Health sector unions are reluctant to strike because of risks to patients and the
fact that consequences of serious and long drawn out industrial action can be
catastrophic. Even very limited industrial action is likely to have the effect of
delaying patient care and inconveniencing or causing stress to patients.
6.3 The Association has taken industrial action only once in its history. This was in
2003 at the South Canterbury DHB. The action did not affect acute services
and did not require transfer of patients but caused disruption to clinics and
procedures. An interesting feature was the overwhelming support senior
doctors received from the local community for their action.
6.4 Clause 15 of the Bill sets out a procedure for involving the Employment
Relations Authority in facilitating the settling of collective agreements. This is a
role that until now has been filled by mediators. It is an expansion in the role
of the Authority, which hitherto filled a much more judicial role. Appropriate
training and guidelines will need to be provided for Authority members.
6.5 Furthermore involving the Authority will not require agreement of the parties but
will require referral of only one of the parties on the grounds listed in 50C.
Certainly many negotiations that the Association has been involved in could
have fulfilled these criteria. Our current District Health Board MECA negotiations
have now been going on for nearly a year. Almost any public health sector
negotiation where industrial action is threatened would fulfil 50C(2). The
amendments suggested by the CTU for Clause 50C(1)(b)(i) and the suggested
deletion of 50C(d) and 50C(2) would limit this process to the situation where it
was most needed.
6.6 50J enables the Authority to make a determination in very limited
circumstances. Overwhelmingly the Associations’ negotiations are carried on in
an atmosphere of good faith. However we believe that this provision provides
an appropriate last resort.
6.7 The Association believes that use of these provisions in the public sector will
require the Authority to take care to distinguish between the government’s dual
role as employer and lawmaker and to carefully protect its objectivity. In
particular “ability to pay” in the state sector is easily subject to employer
manipulation and, in our experience, has been. 50J(7) needs to allow for parties
to object to an Authority member who has previously acted as a facilitator. Use
of this provision in the state sector would require the Authority to develop
specific criteria to limit this potential. The Association awaits developments in
this area with interest.
[1] Health Workforce Advisory Committee The New Zealand health Workforce:
Framing Future Directions, October 2002.
[2] See for instance Helmreich, R and A Merrit Culture at Work in Aviation and
Medicine, 1986; Helmrich, R and H Schafer “Team performance in the Operating
Room” in M Bogner (ed.) Human error in Medicine, 1994; Opie, A Thinking
Teams /Thinking Clients: Knowledge–based Teamwork, 2000; Roberts,
P R Snakes and Ladders: the Pursuit of a Safety Culture in New Zealand Public
Hospitals, 2003.
