ASMS and the escalating DHBs-RDA industrial clash

Given the continuing escalation of the bitter dispute over the negotiation of the MECA covering Resident Doctors’ Association members and the DHBs (whose position is determined by their chief executives with the approval of the Director-General of Health) and understandable confusion over what the issues are, it is timely ASMS again clarifies its position on this industrial minefield.

ASMS has formally written a letter from President Professor Murray Barclay and Vice President Dr Julian Fuller (plus me) to Health Minister David Clark outlining our concerns. Dr Clark has yet to respond but when he met with the ASMS National Executive not quite a fortnight ago, Executive members explicitly called on him to demonstrate leadership, something that to date he has ducked.

The ASMS letter is consistent with but expands on (noting what has subsequently happened) my opinion article  published in the Dominion Post and other Stuff publications in January  (https://www.stuff.co.nz/national/health/109936431/blame-dhbs-not-the-unions-for-the-junior-doctors-strike).  What was anticipated in that article has since eventuated.  As a result we have an avoidable, bitter, protracted conflict between the DHBs which have adopted a ‘winner takes all’ strategy based on assumptions that have not materialised (ie, they have miscalculated) and the RDA, which believes that this is a ‘fight for life’ for vulnerable members after 28 February who depend on DHB employment for their training.

ASMS believes this dispute could have been avoided if the DHBs had accepted our proposal to work with us and the RDA in a non-adversarial process to address the tensions between ‘safer hours’ and continuity of training (and related matters, including handover) related. The latter were already in existence before Schedule 10 became part of the expired RMO MECA.  

ASMS did not immediately get involved in Schedule 10 after the settlement of the expired MECA in 2017, but the feedback from members over time and throughout DHBs meant that we needed to. After studying the document, we discovered it contained much more flexibility than we had been led to believe. For example, roster changes required consensus by those affected before they were implemented, and that consensus was to involve affected SMOs in addition to affected RMOs and management. The document also has provisions for trials and mediation.

The next thing we did was to survey members on their understanding on the detail of Schedule 10. This revealed that few SMOs knew the detail, including that a roster did not have to be deemed to be compliant until the required number of RMOs were available or until serious concerns over continuity of training and related matters were resolved. This led to our next step, which was to advise members of this flexibility and their significant ability to shape the outcome.

Obviously this advice only applied to those rosters where Schedule 10 had yet to be implemented. This led ASMS to undertake another initiative. We approached the RDA about developing a joint Memorandum of Understanding (MoU) to address unintended consequences of Schedule 10, where implemented.  This MoU has recently been agreed and signed by the national presidents of both unions.  It includes explicit recognition by the RDA of these consequences, including continuity of training, clinical handovers, and the impact on SMO workloads. We will soon be sending this to members and writing to the DHBs asking that they become party to the MoU.  It has taken a considerable amount of time and effort for ASMS to achieve this outcome and we hope the DHBs have the sense and maturity to recognise it. Although these consequences of Schedule 10 were unintended, they were also predictable.

The problems associated with Schedule 10 existed long before it was negotiated and agreed in 2017, but Schedule 10 has accelerated these or, at the very least, highlighted them. It is an inevitable consequence of when moves to make working hours safer in an apprenticeship training model based on service delivery generates a demand for more RMOs which then affects the continuity of training, with further implications for clinical handover and continuity of care for the patient. It is compounded by the complexity of RMO rosters.

This requires a nuanced approach in a non-adversarial environment rather than the blunt instrument of collective bargaining. Unwisely, the DHBs declined our approach to go down this path last September and then rejected the subsequent offer of the Medical Council to facilitate discussions on these difficult matters.

Rather, they embarked on a strategy of not seeking to remove Schedule 10 from the RDA MECA but instead removed it from the StoNZ MECA, along with several other provisions largely around weakening the strength of union representation over working hours and rosters. They delayed making explicit their claims to the RDA for about six months until the StoNZ MECA was concluded, and then made a range of claims they knew the RDA would find impossible to accept. Much of this involved accepting things that they had managed to get into the StoNZ MECA. To the RDA, the number of dead rats they were being expected to swallow was inexhaustible.

DHBs knew that from 1 March they would only be required to offer new RMO appointments based on either the StoNZ MECA or an individual agreement based on that MECA. What choice would there really be for RMOs looking to change DHBs for training or personal reasons?  It would create a situation in which many RMOs who depended on DHB employment for their training would have to accept an employment agreement they did not want and which they had opposed.

ASMS is not commenting on the specific details of the MECA negotiations between the RDA and the DHBs. What we are critical of is their overall bargaining strategy for RMOs as summarised above. ASMS does not have a position on whether RMOs should join RDA or StoNZ. That is up to RMOs to determine. It is not, however, for DHBs to influence this through legal levers. 

The DHBs’ overall strategy has assumed that because of their increased legal leverage, sufficient members would leave the RDA and join StoNZ, thereby rendering the RDA ineffective. To date, at least, this has proven to be a miscalculation. The RDA’s membership is about the same as it was before the November changeover and, on the best information available, it has around 3,000 more members than StoNZ (it also seems that some RMOs are members of both). This does not mean that ASMS is ‘pro RDA’. It simply means that we recognise this reality and the right of RMOs to determine representation. While ASMS has a position on what has led to the industrial dust-up, we do not have a position of supporting these strikes.  We recognise that RMOs have a lawful right to strike.  Our focus is more on ensuring that life preserving services requirements are met and supporting members in this difficult time.

ASMS surveys of clinical leaders in seven DHBs indicate SMO shortages of around 20% (which helps explain why we have a disgracefully high burnout rate). We are concerned that the DHBs are failing to factor these SMO shortages into their approach to the consequences of Schedule 10. The unintended consequences of Schedule 10 are compounded by these shortages. One cannot confidently predict but the consequences might have been much less with a stable, sustainable senior medical workforce to help with addressing, for example, how we train RMOs and the continuity of patient care.

ASMS is also seriously concerned that New Zealand depends on many of the current RMO cohort becoming the DHB-employed specialists of the future. There is a real risk that many of them will have had such a negative experience of DHBs seeking to exploit their dependence on DHB employment for their training that they will be turned off DHB employment.  They do have international options. The losers will be the existing overworked specialists and patients.

Recent developments

Mediated negotiations are currently underway between the RDA and the DHBs.  The fact that they are continuing is encouraging. ASMS hopes that this leads to an agreed pragmatic outcome in a timely manner. It is reported that the RDA has a strong mandate for a five-day strike but has deferred giving formal notification (the law requires a minimum of two weeks) while negotiations appear useful at least.

ASMS has written to Peter Bramley (Nelson Marlborough chief executive and lead chief executive for the DHBs in their current dispute with the RDA) advising of two serious membership concerns that have been raised with us.

The first is that many senior medical staff, regardless of the DHB they work in, they are experiencing a high level of pressure because of the industrial dispute that has led to the level of strike action undertaken to date ranging from fatigue to exhaustion.  This pressure cannot be allowed to continue.

Second, the nature of the communications that come out in his name and sent to a wide audience, including senior medical staff in each of the DHBs, imply that SMOs by continuing to provide medical and dental care and diagnosis in order to prevent risk of death or permanent harm are somehow on the side of the DHBs in this dispute.  Rather, they see it not as taking sides but doing what a responsible medical or dental practitioner would do in extreme circumstances. Meanwhile, the Council of Trade Unions has adopted a firm resolution on this dispute at its national council of affiliated unions last week, despite the RDA not being an affiliate. The resolution states:

That the CTU expresses concern in the strongest possible terms to the district health boards for the collective bargaining strategy adopted in their MECA negotiations with the Resident Doctors’ Association which includes (a) the undermining of a union that is in bargaining with the potential effect of ‘union busting’ and (b) taking advantage of the vulnerability of resident doctors due to their dependence on changing DHB employment for their training.  Further, the CTU urges the Government to urgently require DHBs to discontinue this strategy forthwith and to communicate this resolution to the DHBs and Government.

The resolution was jointly developed, agreed and proposed by ASMS and the NZ Nurses Organisation as the two unions most directly affected by the dispute without being formally part of it.  The wording is consistent with the approach in the letter from ASMS to the Minister of Health discussed earlier in this ASMS Direct.

Did you know..?

Did you know that Māori SMOs can join Te Ohu Rata o Aotearoa  (the Māori Medical Practitioners Association) through teora@teora.maori.nz and Pasifika SMOs can join the Pasifika Medical Association (pacifichealth.org.nz).

Both organisations are active across the wider health sector and we encourage members eligible to join to do so. We consider these as professional associations relevant to SMOs duties and responsibilities as per clause 21.2(f) of the MECA (Work Related Expenses).

Kind regards,

Ian Powell
EXECUTIVE DIRECTOR