Navigating through an avoidable industrial storm

Unfortunately, we are confronted by the realistic prospect of resident medical officers’ strike action early next year because of approaches and decisions to date in the negotiations for the RDA-DHBs national RMO MECA. The responsibility for determining the approach to these negotiations by the DHBs rests with their chief executives. For the Resident Doctors’ Association, the responsibility rests with its National Executive (subject to legal balloting requirements).

The current MECA expired on 28 February 2018 but continues in force by statutory protection for a further 12 months unless a settlement is reached before then.

ASMS hopes very much that the DHBs and RDA  can resolve what appear to be fundamental differences between them around the negotiating table. However, despite the public comment on Schedule 10 covering safer hours (maximum of 10 consecutive working days and 4 consecutive night shifts), neither party has claimed to either extend or reduce its scope (or remove) it although the DHBs are seeking to achieve removal by another means (discussed further below).

Trying to dispassionately outline the complexities of the issues and the bargaining process is somewhat akin to walking through a minefield.  So here goes.

Context

There is a dilemma in the way New Zealand trains its doctors. It is through an apprenticeship model based on service provision. This model is a strength of our system producing quality senior doctors and dentists working in our DHBs. But we also have RMO fatigue leading to a push for making working hours safer. The dilemma is that enhancing safer hours requires more RMOs which fragments continuity of training along with effects on handover and patient care. This dilemma and its unintended consequences predates Schedule 10 that was the main outcome of the last RMO MECA negotiation. These need to be addressed but the solution should not involve making RMO working hours less safe.

In the last RMO MECA negotiations, the DHBs never wanted or  expected to agree to Schedule 10.  However, the pressure of two RMO national strikes (late 2016 and early 2017), an effective RDA media campaign, public support, and election year led the previous Health Minister Jonathan Coleman to lever the DHBs to settle. The view of the DHB chief executives to having to settle is best summarised by former United States President Richard Nixon – expletive deleted.

This led to four main drivers behind the DHB chief executives’ strategic direction for the current negotiations:

1. SMO concerns over unintended (but predictable) consequences of safer hours.
    
2. The cost of employing more RMOs to ensure Schedule 10 compliance.
    
3. Revenge.
    
4. Ministry of Health direction (arguably the most important and discussed further below).

The impact on SMOs has been mixed but in many cases severe. There are serious concerns over the effect on continuity of training, handover and the shift in the continuity of patient care from registrars to SMOs. The impact is compounded by a workforce already suffering severe shortages and high burnout.

ASMS’s response has been two-fold. First, once we became aware of it, we advised members of the significant level of implementation co-design in Schedule 10 (involving management, RMOs and SMOs). It is unfortunate that in general DHBs did not advise SMOs of the extent and potential of this co-design influence. Had they done so, at least some of the unintended consequences may have been avoided.

Second, ASMS recommended to both the RDA and  DHBs that the three bodies meet to agree upon a non-adversarial process to address issues that straddle the RMO and SMO workforces in DHBs, including unintended consequences of Schedule 10. Essentially this would be the three bodies being in the same room at the same time trying to work through the same issues.

RDA responded positively to our initiative. While they underestimate the extent of SMO concerns (such as the effect on changeover), the RDA does recognise they exist and need to be addressed.  Unfortunately, the DHBs declined, preferring to address these issues through their collective bargaining strategy. ASMS and RDA are progressing this on our own, but it is disappointing that the DHBs have abrogated their responsibility.

DHBs’ bargaining strategy

The DHBs MECA bargaining strategy is based on the following:

• Commissioning a report on the effects of Schedule 10 by the Sapere consultancy company.  This involved interviewing primarily SMOs (clinical leaders and training supervisors).  This was early in the implementation of Schedule 10 so many of the concerns expressed were anticipated based on earlier safer hours measures.  But it became an important tool in the DHBs’ advocacy.
   
• Understating the potential influence of SMOs in shaping the implementation of Schedule 10.
   
• As discussed earlier, making no claims to remove Schedule 10 or reduce its scope in their MECA negotiations.
   
• Quickly reaching agreement for a separate competing MECA with Specialty Trainees of New Zealand (SToNZ) that removes Schedule 10.
   
• Insisting on clawbacks in their current MECA negotiations with the RDA that they know the RDA could never accept, including diminishing its ability to represent its members.
   
• Until 28 February 2019 the DHBs are legally required to offer the existing RDA-negotiated MECA to new RMO appointments (both first year house officers and RMOs shifting from one DHB to another).
   
• From 1 March 2019, they will be legally required only to offer the SToNZ MECA to new RMO appointments (in a practical sense this will not be until mid-year with the annual changeover at that time). The only thing that would change this would be if an RDA-negotiated MECA was agreed before then. This is highly unlikely as things currently stand because, with the SToNZ MECA in place, the DHBs are now not sufficiently motivated to settle and have adopted a bargaining position that they know the RDA can’t accept.

Ministry of Health

While ASMS is critical of some of the actions of the DHBs there is another player involved that appears to be more directional than previously. DHBs are obliged by law to consult with the Director-General of Health over collective bargaining, including any recommended settlements.  There has been a change, however, under the new Director-General Dr Ashley Bloomfield.  Consultation has morphed into approval even though the law does not provide for it. This was acknowledged recently in respect of other negotiations by the Northland DHB Chief Executive in a staff communication.

There is no doubt that the Director-General of Health is fully aware of the DHBs’ collective bargaining strategy. Further, implicitly at least, he is endorsing it. What is not fully clear is whether (and to what extent) he is requiring or directing it.

The Minister of Health Dr David Clark will also be aware of the strategy, although not necessarily at the same level of detail. We are not aware of any evidence that he is promoting or directing it. This would contradict his public statement commending RDA for its work in improving safer hours for RMOs at a recent conference on this subject.

SToNZ and RMO representation

Members will be aware of the formation of the new SToNZ union. It originates from advanced surgical trainees, but its membership coverage is all RMOs (ie, same as RDA). Within a very short time it has negotiated and ratified a new MECA with the DHBs. In addition to the removal of Schedule 10 (instead, consecutive working days would increase from 10 to 12 and consecutive night shifts from 4 to 7), it appears to include acceptance of the DHBs’ claims that have been rejected by the RDA in the latter’s MECA negotiations.

ASMS does not have a position on SToNZ because we don’t have a view on RMO representation other than this is a matter for RMOs themselves to determine; it is not a matter for either ASMS or the DHBs. As it stands now, the RDA is by far the largest union. It has at least 3,000 more members than SToNZ in a workforce that is relatively small. While the only certain thing in this development is uncertainty and this situation may change, the signs don’t suggest this.

It appears that following the usual downturn with the November changeover, RDA’s membership is increasing. SToNZ has a sustainability challenge with its base among advanced trainees whose time as a registrar is limited. Indeed, it appears that some advanced trainees who would become SMOs or go overseas next year have joined SToNZ for a net financial gain (pay the $400 subscription and receive back pay of around $2,000).

Also important is the fact that unlike RDA, SToNZ does not have the membership critical mass to engage experienced industrial staff to represent members in ongoing matters such as enforcement and protection of employment rights. This is likely to be influential in RMOs determining who represents them.

The concerns raised by SToNZ concerning the impact of Schedule 10 on the continuity of training and handover, for example, are broadly shared by ASMS (with the qualification that while they have increased, they predate Schedule 10). We have a different approach about how to address them.  ASMS preferred addressing it away from the blunt instrument of collective bargaining. Had SToNZ become an advocacy ‘ginger group’ this might have nicely complemented our endeavours. But SToNZ is entitled to make its own decisions and go down the path it chooses.

Our beef is with how the DHBs are using the MECA negotiated with SToNZ. They are using it as a backdoor endeavour to get rid of something (Schedule 10) that RMOs achieved nearly two years ago following national strikes. It is almost as certain as day follows night that, providing RDA retains its current membership levels, the response to this will be industrial strife linked to the key date of 1 March next year (as discussed above). It is reasonable to assume that those who went on strike to achieve a new entitlement are likely to go on strike to protect it.

Had the DHB chief executives accepted our proposal to work with ASMS and RDA on addressing these unintended (but predictable) unintended consequences through a non-adversarial process away from the bargaining table, then this situation could have been avoided. Had the Ministry of Health provided pragmatic ‘advice’ to them then again, the situation could have been avoided.

Pending strike action

RDA has not been twiddling their thumbs while all of this has been going on. They have taken the DHBs’ position in their MECA negotiations back to their members in a ballot, which I understand has overwhelmingly authorised RDA to reject the DHBs’ position. They are expected to conduct a secret ballot very soon (it may already underway – secret ballots for strikes are a legal requirement) for an initial strike next year. Given that the Employment Relations Act requires 14 days’ notice of strike action, this could be as early as mid-January. RDA will have an industrial action strategy that will involve further strikes through to at least March. All of this will be subject to membership support through secret ballots.

This response is as predictable as the unintended consequences of Schedule 10. The key determinants how this further unfolds will be whether RDA retains its reasonably high membership level and collective determination.

The practice has been for ASMS and the DHBs to agree in advance on arrangements, including payments for SMOs undertaking additional duties resulting from planned strikes. However, in 2016 and 2017 the DHBs unilaterally determined these rates, leaving the unsatisfactory situation of members receiving different recommended rates from them and us.

In anticipation of possible strike action and to avoid repeating recent history, ASMS approached the DHBs to explore the possibility of reaching a national agreement. We will be meeting DHBs representatives on Friday 21 December to discuss this further. Hopefully we can reach agreement either then or very soon after.

If RDA members vote for strike action and the DHBs are formally notified, ASMS will forward all DHB-employed members our advice on your rights and responsibilities, including either agreed or ASMS recommended payment rates for additional work. Most likely the earliest we could send you this advice is 7 January.

Did you know about public holidays?

If you would normally work on a public holiday, you are entitled to a day off on full pay. If you actually work or are on call on “any part of” any of these days, you are entitled to a day-in-lieu on full pay at a later date, plus your usual pay for the day worked, plus a loading of 50% of your “relevant daily rate” for every hour worked on the public holiday. The loading would not apply though to any existing T1.5 arrangements. If you are a shift worker, eg, in ICU or ED, and you have a rostered day off on a public holiday, you are entitled to a day-in-lieu on full pay on another mutually convenient day.

Season’s greetings!

The ASMS National Executive and national office staff wish you all a safe and happy holiday season. The national office will close early on the afternoon of Monday 24 December 2018 and reopen on Thursday 3 January 2019. If you have an urgent query over this period, please email sl@asms.nz and someone will get back to you.

Kind regards

Ian Powell
EXECUTIVE DIRECTOR