ASMOF Industrial Report ASMOF Industrial Report April 2015
ASMOF Industrial Report April 2015
1. WAGE FIXING FRAMEWORK - Award increases from 1 July 2013 and 2014 1.1 Wages 2015 With the Baird NSW Government re-elected for a further four year term, the legislative and policy cap on public sector wages of 2.5% can be expected to continue, along with the limitations imposed on the scope and powers of the Industrial Relations Commission of NSW to independently determine public sector wages and conditions of employment.
This is reflected in that thus far the PSA on behalf of public sector employees (the previously referred to Crown employees) have indeed received and accepted an offer of 2.5% from 1 July 2015. ASMOF in conjunction with the Ministry of Health has commenced the process to ensure that the 2.5% wage increase is made available from 1 July 2015 for those in the NSW Health system. In the absence of any unexpected controversy or impediment, attempts will also be made to have these increases adopted in the awards as soon as possible to reduce the necessity of back pay.
1.2 Emergency Physicians special remuneration arrangements Part of the above negotiations however will include ensuring that the current remuneration and conditions of payment for Emergency Physicians are continued beyond end June 2015.
The current remuneration and conditions of payment were rolled over for a further twelve months. All Emergency Physician members received an invitation to participate in a survey regarding any modifications that they may wish to seek to the conditions of payment beyond 1 July 2015.
The survey also sought data regarding vacancies and staffing numbers required - now and into the future. Initial results have now been made available to members. Feedback generally reconfirmed the previously identified priorities from 2012.
1.3 Wages 2014 As per previous updates, the 2.27% wage increase (including to relevant allowances) from 1 July 2014 have been settled in the Industrial Relations Commission of NSW (‘IRC’). These increases applied as follows:
Staff Specialists (State) Award Amended to reflect the 2.27% increase (via Matter Nos IRC 244 and 489 of 2014). Ministry has issued IB2014_042 setting out salary increases.
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Public Hospital Career Medical Officers (State) Award1 Amended to reflect the 2.27% increase (via Matter Nos IRC 260 and 506 of 2014). Ministry has issued IB2014_041 setting out these wage increases.
Public Hospital (Medical Officers) Award2 Amended to reflect the 2.27% increase (via Matter Nos IRC 259 and 505 of 2014). Ministry has issued IB2014_041 setting out these wage increases.
Public Hospitals (Medical Superintendents) Award3 Amended to reflect the 2.27% increase (via Matter Nos IRC 257 and 503 of 2014). Ministry has issued IB2014_041 setting out these wage increases.
Health Professional and Medical Salaries (State) Award Amended to reflect the 2.27% increase (via Matter Nos IRC 257 and 503 of 2014). Ministry has issued IB2014_041 setting out these wage increases.
Crown Employees (Police Medical Officers - Clinical Forensic Medicine)(State) Award Amended to reflect the 2.27% increase (via Matter Nos IRC 243 and 474 of 2014).
Crown Employees (Health Care Complaints Commission, Medical Advisers) Award 2011 This award was amended on 17 September to reflect the 2.27% increase (via Matter No IRC 635 of 2014), with the pay increase, as usual, effective from 1 October.
1.4 No extra claims clause As previously noted, the NSW Government and relevant public sector agencies were pursuing the inclusion in all public sector awards of a no extra claims clause. The matter was dealt with via a hearing before a Full Bench of the Industrial Relations Commission of NSW on 27 November 2014.
The Full Bench on 19 March 2015 handed down its decision, which rejected the approach by the NSW Government and agencies to include the no extra claims clause being sought. However, at least in part, this rejection was due to an observation by the Full Bench that such a clause was not necessary in that the legislative industrial regime in place would not normally permit a ‘further’ claim to arise during the agreed term of the award. This was especially so in one which a wage increase had been included consistent with the current NSW Wages Regulation/Policy.
The decision remains subject of review to establish what consequences, if any, the decision may have in future proceedings.
1 Allowances contained in the award, wages contained in the Health Professional and Medical Salaries (State) Award. 2 Ibid. 3 Ibid.
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Background The NSW Government was seeking such a restriction to be applicable for the next twelve months. Unions have rejected this approach, arguing that pre-existing IRC case law from 2011 established that such clauses would not normally be included in awards without the consent of both. A no extra claims clause is ‘normally’ agreed upon by the parties as part of the outcomes that have been negotiated, and a concession that they constitute a full and final settlement of all matters. It would as a consequence potentially (and artificially) place restrictions on what can be pursued during the life of the award - over and above the limitations imposed by Wages Legislation/Policy.
1.5 Defined Benefit Scheme members (State and Commonwealth) Members will recall from our most recent update, ASMOF along with other public sector unions have been having detailed discussions with the NSW Treasury and Public Sector IR regarding the creation of additional superannuation accounts for those members of defined benefit schemes (eg SSS, SASS).
Concurrent with those discussions were those pertaining to employees who transferred across from the Commonwealth and remained members of Cth defined benefit super schemes (such as CSS and PSS). These employees, that number some 370 in public health, remained until recently without a solution or options being provided by the NSW Government regarding any disadvantage that might be suffered from the wage discounting in 2013 and 2014 for the superannuation guarantee increases (under the current Wages Legislation and Policy - see below).
This resulted in the matter being subject to an appearance last month before the President of the IRC, who scheduled a further report back (and possible conciliation) on 13 March 2015, with the observation that the parties should attempt to progress toward a resolution.
Pleasingly, at that further appearance, public health unions were able to report to the President that the NSW Government has made an offer to pay the additional super contributions to such employees into either a super account nominated by the employee or alternatively into a First State Super account established for this specific purpose.
Whilst a few details remain to be discussed and resolved, this is a very pleasing ‘breakthrough’ and one that should, barring last minute impediments, resolve this issue satisfactorily. A further appearance before the President of the IRC has been scheduled for 15 May 2015. Updates to affected members have occurred and will continue as progress and/or resolution occurs.
Background The purpose of these meetings and discussions are to establish whether the solution being suggested by the NSW Government was sufficient to mitigate any disadvantage that might be suffered from the wage discounting in 2013 and 2014 for the superannuation guarantee increases for those in defined benefit schemes.
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Just before Christmas, the State Authorities Non-Contribution Superannuation Amendment (Relevant Employers) Regulation 2014 was promulgated, which deals with the creation of new, additional superannuation accounts for such members. Responses from the NSW Government to some clarifications sought remain outstanding, but the framework of the solution is in place.
NSW Wages legislation and policy As noted earlier this month, a complaint has been made to the International Labour Organisation regarding the current NSW laws re wages. A pithy summary of this draconian approach to wage fixing, where the outcome is determined prior to the negotiations commencing, with no recourse to the industrial umpire to determine and fix fair wages, was contained in an opinion piece contained in the SMH on 13 March 2015 (with an extract being provided to members).
2. OVERVIEW OF MEDICAL OFFICER ACTIVITIES A SUMMARY/OVERVIEW In the first two months of January and February 2015, officers from ASMOF provided individual advice and assistance to approximately 265 JMO members. (Break down of Classifications: 29 Interns, 40 RMOs and 196 Registrars.) Issues have been an eclectic mix of award based issues, many resolved by seeking to have the proper application of award provisions. They have included: maternity leave entitlements; assistance with fact finding procedures; pay issues, both over and under payment; recognition of service for LSL; study leave; ADO accumulation; parental leave; annual leave issues; quantum of termination monies; breaks; provision of meal breaks; and payment of meal allowances.
In the preceding 18 months ending December 2014, officers from ASMOF had assisted in the recovery of approximately $1 million in underpayments of wages and entitlements, including revised claims regarding overpayments. ASMOF officers continue to attend workplace meetings with individual JMO members regarding work performance, disciplinary and grievance matters. A number of these have been escalated to Dispute Committee Meetings with LHDs.
ASMOF has also been involved in a number of workplace/hospital/sector wide issues affecting JMO members.
B SPECIFIC ISSUES 2.1 Remote Recall The issue continues to be taken up directly with a number of LHDs, the Ministry and in some pending disputes to be notified to the IRC. One may be unkind to suggest that the default position being adopted is to essentially thwart making any such payments. Notwithstanding this, a number of members have received assistance that has resulted in payments being received.
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Ongoing discussions also occurred with the Ministry regarding the inability of the Romulus legacy system to record and facilitate payment of the remote recall. Just prior to Christmas 2014, we were notified by the Ministry that the necessary programing updates to the system had occurred.
2.2 JMO Home Ward Proposal ASMOF and its members continue to grapple with current and future roll-outs of what are variously termed JMO Home Ward rostering proposals (‘proposals’). One has been subject to evolving implementation over the year at Lismore Hospital, which has been subject to two audits and subsequent recommendation from HETI for modifications.
A further trial has now been endorsed by HETI of an analogous proposal at Liverpool Hospital next year, albeit this followed a considerable period of reconsideration that led to adjustments to the model that was originally proposed some twelve months ago. The new hybrid model - the ‘JMO Evening Teams Staffing Trial’ (‘JETS’) - involves a limited trial of the proposal to a number of wards. The Liverpool Hospital RMOA, who had been involved in its development, did not oppose the trial’s introduction.
Documentation was made available to all members at Liverpool Hospital and little or no criticism was forthcoming. Regular updates and/or meetings will be sought with Liverpool Hospital during the trial’s progression.
Both proposals in their various iterations have been the subject of previous representations by ASMOF to Lismore Hospital, Liverpool Hospital and HETI, along with the Ministry of Health. Concerns remain as to the functionality of such proposals however so termed, and what impact it will have upon the medical workforce if such models were further expanded.
Not surprisingly then, at the November meeting of ASMOF State Council, it was adopted that ASMOF should seek a meeting to (further) discuss these concerns and issues. The weight of such concerns can be gauged by representations also made to the Ministry of Health requesting a formal external review to be undertaken of the efficacy and functionality of alternative JMO rostering models (however so called), such as those currently being or proposed to be trialled at Lismore and Liverpool Hospitals, along with those that may be considered into the future.
A meeting occurred on 18 December, which facilitated the start of a dialogue and frank exchange of views with the Ministry and HETI. This dialogue is anticipated to continue during the course of this year.
2.3 Issues arising from Rotations The somewhat ‘itinerant’ nature of Medical Officer training continues to create confusion, unnecessary replication and even non-payment of wages. ASMOF continues to make representations to resolve such issues.
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Some progress has been made. For example, PD2013_028 and IB2014_038 both set out that once an existing staff member has obtained a working with children check, it does not need to be revalidated every time they change their role in the NSW Health Service (other than ensuring that it has not expired). The same applies for vaccination records as they should be held on the employee’s personnel file (IB2014_038).
2.4 JMO rotations/placements at Chris O’Brien Lifehouse The issue of TMF cover (indemnity insurance) for JMO members working at Lifehouse was raised with ASMOF re the protection that was available when interacting or being called upon to provide (non-RPAH) private patients with care/assistance. In response to representations from ASMOF, correspondence was received from the CE of the SLHD. Pleasingly, the correspondence contained appropriate assurances and protections for such medical staff when confronting the clinical situations described above.
A copy of this correspondence was also made available directly to the RPAH RMOA.
2.5 Cashing in additional annual leave As a our recent update, all CMO and JMO members received direct communication from ASMOF regarding a proposal by the Ministry to introduce a capacity to cash in so called “additional annual leave”. It was proposed to introduce this to both the Public Hospital Career Medical Officers (State) Award and Public Hospital Medical Officers (State) Award. The change being proposed was as follows:
An officer with accrued additional annual leave pursuant to this subclause can elect at any time to be paid an amount equivalent to the value of accrued additional annual leave in lieu of taking additional leave, provided also that salary for the period of additional leave paid out will be calculated as if the period of leave was actually taken.
The change being sought is analogous to the variation made to the Staff Specialists (State) Award in 2013. It is also reflective of arrangements in the Public Health System Nurses' and Midwives' (State) Award 2011.
State Council when considering this matter at its meeting on 17 February 2015, whilst noting this proposal appeared uncontentious (and at the sole discretion of the employee), determined that all CMO and JMO members be contacted directly regarding the proposal prior to ASMOF providing its consent (or otherwise).
At its meeting on 18 March 2015, State Council noted that feedback received from members was overwhelmingly positive. The HSU has confirmed it too is supportive of these changes (being a co-union party to the awards in question). Accordingly, State Council adopted the amendments to the Public Hospital Medical Officers (State) Award and Public Hospital Career Medical Officers (State) Award re cashing in additional annual leave, with the ASMOF NSW office being charged top progress the finalisation of any such amendments.
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Note: This proposal picks up on one of the issues identified in our recent surveys on the Public Hospital Medical Officers (State) Award. When surveying these members last year, some 82% of JMO members responding indicated they would favour an option of being able to cash in additional annual leave accrued for working on Sundays and public holidays.
2.6 Maternity leave and intern contracts ASMOF continues to receive contacts from members regarding those on their initial two year contract which is interrupted by a period of parental leave.
Whilst a right exists under the Public Hospital (Medical Officers) Award for a staff member to return to their previous position after a period of (say) maternity leave, the difficulty being encountered has been that the contracts have often expired or alternatively leave insufficient time to complete the required training.
As a result ASMOF undertook extensive consultation with the Ministry advocating that the contract should be amended in such circumstances to permit the completion of initial training. ASMOF has argued that to do otherwise was not in the spirit or intent of the award, or obligations that may arise under relevant anti-discrimination legislation.
The Ministry is currently contemplating its position (currently contained in PD2010_074) but pleasingly has addressed some of this issue in IB2014_038, which now sets out advice from the Ministry to LHDs that
“.. a JMO’s training is not compromised through the taking of maternity or parental leave, their length of training contract of employment is able to be extended to cover the period of that leave and, at the discretion of the LHD where the JMO is working, for up to the remainder of the clinical year (or a longer period where part-time, in line with flexible work arrangements and this has been approved by the College).”
This has not an easy area to negotiate through. But previous norms and assumptions as to how contracts and training should be undertaken cannot remain frozen in time and apply (even if not the intention) an inherent unfairness and lack of regard to basic award rights and those that may also exist in associated discrimination/human rights laws.
2.7 Interns and mandatory training ASMOF has been making representations on behalf of Interns who commenced in 2015 regarding various pressures (or directions) to complete mandatory training prior to commencing employment or alternatively in their own time after commencing - to be completed by a designated date.
ASMOF believes that such training should be supported and undertaken by having sufficient work time made available to complete the training after commencement.
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Arising from various representations to the Ministry, it has responded by confirming that whilst “public health organisations may encourage interns (and other new starters) to start their on-line training prior to commencing work to assist them coming on board NSW Health, it is not a requirement. On commencing employment, time is made available for completion of mandatory training.” [emphasis added]
ASMOF will now be making representations to individual LHDs on behalf of members who have been required to complete the training in their own time.
2.8 Award review/revamp Members will recall that earlier this year we undertook a survey of members on the Public Hospital (Medical Officers) Award (‘Award’). Results received were subsequently collated and made available. The results importantly validated areas of the Award that need to be subject to most pressing attention and review.
We then undertook the next phase of the Award review process (Stage 2). This was a document made available last month that identified some of the key Award clauses requiring changes; what the feedback said about them in the Award survey; a short commentary on some of the difficulties with them; and some key principles or elements that need to be considered for inclusion in any amended Award clause. This Stage 2 document was made available to assist and prepare members in considering the much more demanding task of determining what changes should actually be made.
We then commenced Stage 3 of the Award review process. Stage 3 sought specific responses in relation to possible award clause alternatives/options. Member responses are currently being collated and will be absolutely crucial in determining what document is finally settled upon to be the basis of negotiations with the Ministry of Health to update the Award.
At this time we are looking to consolidate a document that includes a number of possible amendments to award clauses whilst ‘reserving’ our position in relation to increases to salary levels/allowances as to do otherwise would derail the negotiations before we even start due to the limits imposed by the NSW Government’s wages legislation/policy.
Even some of the Award changes proposed may potentially fall foul of these limitations as well, but far better to start discussions, and then assess progress. Whilst the process to change the Award will face severe barriers, that is not of itself a good enough reason to not try.
2.9 PD2010_074 Medical Officers - Employment Arrangements The Ministry of Health recently provided an amended PD2010_074 [Medical Officers - Employment Arrangements in the NSW Public Health System]. Feedback was requested by Thursday, 2 April.
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In the very limited time made available, the State Council and ASMOF office reviewed the changes proposed, and a number of clarifications, explanations and deficits were noted.
ASMOF subsequently responded to the Ministry and indicated that the timeframe provided was inadequate to permit proper and fulsome consideration of its contents and consultation with members. Accordingly, ASMOF provided its initial comments and feedback on the presumption that these will precipitate a process of consultation and revision, which will allow a more forensic review and examination to occur, and one that will enable proper consultation with those members affected by any change to this policy directive.
In some respects, the review of the policy directive commences the process of discussing/reviewing the Award, as it is difficult to clarify the policy directive without reference to the document that ultimately is the primary source of all workplace entitlements, being the Award.
3. CLINICAL ENGAGEMENT After two years of discussions and negotiations, the President of ASMOF NSW was able to attend a signing ceremony on Tuesday, 17 February 2015, to put into effect a joint statement of cooperation (‘statement’) regarding clinical engagement between ASMOF, the AMA NSW and the NSW Minister for Health, the Hon Jillian Skinner MP.
This is an important and significant step, and one triggered by the ASMOF- AMA sponsored clinical leadership forum held in November 2013. A push toward local decision making and devolution must be accompanied by and mean greater levels of clinician engagement - that is, a partnership with our senior members by management. Significantly, the statement signed by the parties includes a preliminary mechanism to ensure that any engagement must be subject to some ‘measure’ and accountability.
In the statement, the Minister reiterates her commitment to the following initiatives:
One or more executive clinical directors being appointed in each Local Health District and Specialty Network to advise on medical matters and improve links between management and medial clinicians.
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A co-ordinated process through Medical Staff Councils for providing nominations for District board membership to the Minister of Health. Opportunities for Medical Staff Council representatives to attend District Board meetings as observers. The strengthening of clinical councils and the inclusion of the Medical Staff Council Chair on LHD and facility clinical councils. Supporting participation of doctors-in-training on facility clinical councils.
The statement also sets out that the Minister will support results from both the Your Say survey in 2015 (or any future staff survey on behalf of NSW Health) and from ASMOF/AMA surveys relating to agreed questions about the engagement of senior medical clinicians being considered as part of assessing performance under the annual District or Network service agreements and that of the District or Network senior executive management teams. We will also be including JMO members in any ASMOF survey to check on their thoughts and feedback as well.
Partnering with senior clinicians and seeking feedback on their workplaces and the broader health system, will hopefully be able to modify practices and introduce better models of care. It establishes a clear and ongoing commitment to ensure that Districts and Networks engage productively with senior doctors to ensure that patient care remains the centre of activities and decision making.
Discussions continue with the Ministry regarding one important aspect that arose from the Medical Leadership Day, being the development of a partnership agreement or principles to apply at LHD level to improve clinician engagement and a mechanism to ‘measure’ such engagement.
Your Say Survey As noted above, results from both the Your Say survey in 2015 (or any future staff survey on behalf of NSW Health) and from ASMOF/AMA surveys relating to agreed questions about the engagement of senior medical clinicians being considered as part of assessing performance under the annual District or Network service agreements and that of the District or Network senior executive management teams.
The Your Say survey is now open and we have been actively encouraging members to complete the survey as aspects of it will be used to assess the state of clinical engagement across the health system and within LHDs/Networks.
NOTE: ASMOF and the AMA will follow up the Your Say survey with its own soon after, which will contain some of the agreed questions relating to clinical engagement (which will therefore be utilised in any assessment of that engagement), as well as others that we hope will complement our understanding of employee engagement and satisfaction.
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4. GOVERNMENT SECTOR EMPLOYMENT ACT 2013 Last year, the NSW Government passed the Government Sector Employment Act 2013 (’GSE Act’), which is to replace the Public Sector Employment and Management Act 2002 (‘PSEM Act’) from 24 February 2014.
New Regulation and Rules Meetings occurred with the Public Service Commission (‘PSC’) regarding the new draft Regulation and Rules which were promulgated and took effect from 24 February 2014. These largely operationalise the GSE Act.
As noted, only certain aspects of the GSE Act (and Regulation and Rules) immediately apply to the NSW Health Service. But we have been mindful of the broader changes being sought as they impact on members working in the public sector, whilst also having one eye to the future when they may be applied to the NSW Health Service.
Award references The Ministry has recently provided suggested amendments to all public health awards, including those that ASMOF is a party to. Primarily they are geared to address the issue of the replacement of the Public Sector Employment and Management Act with the Government Sector Employment Act and Regulation.
As a result, these have been on the agenda to complete for some time and are progressively occurring with all public sector awards. The intent of these changes is not to vary any existing interpretation or entitlement but rather make sure any reliance on a legislative standard is up-to-date.
The Ministry has also suggested some further ‘tidying up’ of obsolete references and the like (eg Secretary rather than Director General of Health). We are currently having a first review of these, and as four of the awards are in partnership with the HSU, a joint position on those will need to be reached. More as this matter progresses.
5. PUBLIC HEALTH PSYCHIATRY SURVEY - DELIVERY OF MENTAL HEALTH SERVICES INTO THE FUTURE Members were notified of interim results of a survey of public health Psychiatrists undertaken by ASMOF, the AMA NSW and the NSW Branch of the RANZCP on 6 March 2015. Since that time the interim survey results have formed the basis of a number of articles and opinion pieces carried in the Sydney Morning Herald, setting out the poor state of Mental Health
Background The key points identified in the interim results included:
Approx. 1/3 of respondents say the number of doctors employed in mental health has decreased in last 12 months;
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44% say that vacancies are deliberately held vacant for too long or are kept vacant indefinitely; 84% of respondents believe that the resources they have to do their jobs are inadequate or grossly inadequate; 55% say that resources for mental health have got worse or significantly worse over the last 12 months; 49% are dissatisfied or very dissatisfied with working in the public sector; and 25% are likely or highly likely to leave the public sector in the next 12 months.
ASMOF, the AMA and the NSW Branch of the College have already discussed these provisional results, and will continue to work together on this issue.
Delivery of mental health services into the future ASMOF, the AMA and the NSW Branch of the College have also discussed (in brief) the changes that have been proposed by the Mental Health Commission in its recent report entitled - Living Well: A Strategic Plan for Mental Health in NSW 2014-2024, give rise to some significant challenges in the way that mental health services are effectively managed and delivered in this state - both in the immediate and into the coming decades. This will be subject to further collective work and dialogue between the organisations.
The Mental Health Commission is to facilitate some dialogue with stakeholders, ASMOF being one such organisation.
We currently await formal notification of this invite.
6. HEALTH PRACTITIONER REGULATION LEGISLATION AMENDMENT BILL 2014 As previously reported to members, the Health Practitioner Regulation Legislation Amendment Bill 2014, was passed by the NSW Parliament near the end of last year. The Bill deals with a number of matters, including a requirement for the Council of a health profession to notify the employer or accreditor of a registered health practitioner of the imposition of conditions (or the alteration/removal of conditions) on the practitioner’s registration concerning their health, conduct or performance.
At a peak meeting with the Ministry of Health at that time, ASMOF raised the issue of how aspects of the Bill would be operationalised to balance the requirements of the Bill and the privacy of the health practitioner involved. Issues such as how the Council will notify an employer - and how that employer would subsequently deal with such information (and whom it may be provided to) - cannot be left to chance.
Pleasingly, the Ministry has agreed to our request that public health unions be involved in discussing and formulating the required policy framework to give the Bill its proper effect. It is anticipated that discussions will commence in the near future.
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Background The Health Practitioner Regulation Legislation Amendment Bill 2014 was subject to ‘confidential’ meetings between the Ministry of Health and public health unions last year under Cabinet in Confidence restrictions. Without breaking such confidentiality, it can be said that the Bill tabled and passed by the NSW Parliament benefited from the process of consultation undertaken. The legislation deals with a number of matters, including:
requiring the Council for a health profession to notify a complainant who makes a complaint against a health practitioner or student of certain outcomes resulting from action taken by the Council in respect of the complaint;
to enable the Civil and Administrative Tribunal to make prohibition orders against former registered health practitioners;
to make it clear that a person whose registration as a health practitioner has been cancelled, or who has been disqualified from being so registered, by the Civil and Administrative Tribunal cannot apply for registration as a health practitioner unless the Tribunal makes a reinstatement order in respect of the person;
to enable the Council for a health profession to order that a contravention of a condition on the registration of a health practitioner that it imposes or alters because of the impairment of the practitioner will result in the contravention being referred to the Health Care Complaints Commission to be dealt with as a complaint against the practitioner;
to require the Council for a health profession to notify the employer or accreditor of a registered health practitioner of the imposition of conditions (or the alteration or removal of conditions) on the practitioner’s registration concerning the health, conduct or performance of the practitioner;
to amend the Health Services Act 1997 to permit public health organisations to share and exchange certain information about the appointments of health practitioners with licensees of private health facilities;
to amend the Private Health Facilities Act 2007 to permit licensees of private health facilities to share and exchange certain information about the appointments of health practitioners with other licensees of private health facilities and public health organisations.
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7. REVIEW OF NSW SPECIFIC REGULATION LAW Members may recall that recently a national review was commenced of the regulatory framework for Health Practitioners currently in place. To compliment this, the NSW Ministry of Health has flagged that it will be undertaking a formal review of the NSW specific components of the Health Practitioner Regulation National Law (NSW), which mostly relates to NSW maintaining its own provisions in handling complaints in respect of registered health practitioners ie HCCC and the like. The national review will not deal with NSW specific aspects of the legislation.
A review to determine whether the objectives of the Act remain valid and appropriate to secure such objectives is a requirement within five years of it commencing operation. The relevant sections of the Act dealing with the NSW specific provisions are contained in Parts 5A and 8, and can be accessed here. A discussion paper is expected soon.
8. MANDATORY TRAINING As updated recently, the Ministry of Health confirmed before Christmas a temporary pause was to be placed upon the current push on senior medical practitioners in the NSW Health Service to complete mandatory training (ie “As discussed, mandatory training requirements for medical specialists and VMOs will not be implemented pending this process”).
However, this position had not seemingly been well canvassed with LHDs/Networks, who continued to press senior medical practitioners (Staff Specialists and VMOs) to abide by the existing cut-off date of end June 2015 for the completion of the designated training.
In response to representations made by ASMOF, the Ministry subsequently reaffirmed to LHDs/Networks that mandatory training requirements for senior medical practitioners are in abeyance4 until the review by the Working Party established completes its work. Accordingly, senior medical practitioners should no longer receive individual emails indicating their compliance or otherwise re the Mandatory Training Modules whilst the current review is underway.
We still await a response regarding our request that a similar approach be adopted for JMOs (Interns, Residents and Registrars).
Background Processes intended to be utilised were reported on and discussed at the ASMOF State Council meeting that occurred on the evening of 17 March 2015.
4 The one exception to this is Fire Safety. The Working Group at its initial meeting indicated agreement that the requirement for Fire Safety training on an annual basis was compelling for the health and safety of staff and patients, and therefore reasonable.
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The meeting noted progress and the proposed orderly progression and review of the current mandatory requirements. Arising from those discussions, the State Council meeting resolved the following:
The ASMOF approach at such meetings will continue to be underpinned by the following key principles;
(i) the need or requirement for the training to be completed; (ii) the frequency that such training is required to be completed; and (iii) the time required to realistically complete such training and is this reasonable.
That the ‘suspension’/flexibility of the current timeframe for completion by senior medical officers (pending the outcomes of the Working Group) be made more generally known to Local Health Districts and Speciality Networks.
That ASMOF should forward correspondence to the Ministry of Health calling for the same process and suspension of timelines to be adopted for Junior Medical Officers (‘JMOs’) as for senior medical officers, as their concerns and difficulties are analogous to those being considered and addressed for senior medical officers via the Working Group.
9. NSW HEALTH MODEL BY-LAWS REVIEW (NO CHANGE IN STATUS) As members will recall, the Ministry of Health wrote to ASMOF late last year notifying it that it was timely to review the content, scope, coverage and utility of the Model By- Laws. An Issues Paper was developed to assist this process.
As a result of the feedback received from members, and after discussing our respective positions with the AMA NSW, a joint submission was developed and provided to the Ministry reflecting the voice of the total profession. It is expected any draft proposals will be made available in April/May 2015.
Background The Model By-Laws broadly cover the following issues: The establishment, membership and function of Board and LHD Committees, including Clinical Councils; Peer selection processes for membership of Clinical Councils; and Medical and Dental Appointments Advisory Committee and Credential (Clinical Privileges) Sub Committee.
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10. NSW HEALTH PATHOLOGY The peak level JCC for NSW Health Pathology with representatives of all relevant public health unions continues in 2015. This remains the ‘clearing house’ to discuss and resolve system wide issues or matters unable to be resolved at the local/sector level.
The NSW Health Pathology Strategic Plan for 2014-18 was also launched in the latter part of 2014, with roadshows occurring with the Chief Executive to discuss and hear from staff. A presentation was also provided to the last peak level JCC meeting on its new values: “the rite way”. It is proposed that these values will become part of the ‘fabric’ as to how NSW HP does business and will feed into local plans.
11. STATE-WIDE ROSTERING - HEALTHROSTER Members will recall an update late last year about the pending rollout of HealthRoster, which will interface with StaffLink and be both a rostering platform as well as the record of time worked for payment purposes.
At a recent meeting with public health unions, HealthSupport noted that the provisional rollout schedule provided at the briefing last year had become more measured. As a result, the rollout will not reflect that of StaffLink, where entire LHDs were transferred across on certain dates. Rollout now will occur incrementally, largely based on a site by site basis.
Accordingly, the first entities to have HealthRoster rolled out will be:
eHealth (April); Concord and Balmain Hospitals - solely for nursing staff (May); HealthShare (June); and Dorrigo and Bellingen Hospitals (June).
This schedule may be altered and renegotiated subject to readiness. No other timetable has thus far been established beyond this careful beginning.
As previously reported, in relation to medical practitioners (junior and senior), a Medical and Dental Officers Rostering Advisory Group (and sub working groups) is in place to review the myriad of issues/needs pertinent to medical practitioner rostering. Outcomes will be made available for review by ASMOF and relevant unions.
As noted on a previous occasion, the above work should not result in having a large scale electronic platform that has to continue to have a paper based system running in parallel (in relation to JMO overtime for example). ASMOF’s antipathy to any bundy clock approach to managing senior medical staff has also been well established. Hopefully this cautious approach will aid in preventing difficulties or problems arising.
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12. REVIEW/CHANGE TO NSW HEALTH POLICIES 12.1 NSW Health PD ‘Consent to Medical Treatment - Patient Information’ Members may recall that ASMOF was approached by the Ministry in November 2014 to assist in consultation on a draft new Consent Manual, noting the current version was published in 2005.
Some of the changes include:
consent by “mature minors”; more information on advanced care directives; clarification of the meaning of “Special Medical Treatment”; clarifying consent procedures for mental health patients; and inclusion of various privacy provisions and associated guidelines re disclosure of genetic information.
Following feedback from members and review by ASMOF State Council, feedback was provided. We await further discussions and consultation.
12.2 NSW Health Employment Checks ASMOF was approached by the Ministry to assist in consultation on a proposed new policy directive dealing with employment checks, specifically criminal record checks and working with children checks (currently dealt with in PD2013_028).
The redrafted policy directive contains a number of amendments, including:
A detailed schedule for the phase in of working with children checks;
Updated definitions;
Clarification around agency staff;
Requirements for student coordinators/facilitators; and
Clarification of those positions not covered.
To assist in this process, a meeting occurred between the Ministry, public health unions and Unions NSW to walk through the changes and process. Feedback was provided by the requested date of 12 December 2014.
12.3 Suicidal People - Clinical Assessment and Management by Mental Health Services ASMOF has been approached by the Ministry to assist in consultation on a draft policy directive ‘Suicidal People - Clinical Assessment and Management by Mental Health Services’, designed to replace the current version published in 2005 (PD2005_121).
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The draft new policy, along with the requested feedback form, has been made available to members.
13. NEW TESL POLICY - STATE-WIDE APPROACH As per previous updates, ASMOF undertook further consultation with members on an amended draft that arose from many further months of peak level discussions with the Ministry regarding the development of a state-wide policy framework for TESL.
All Staff Specialist members with an email address available to ASMOF would have received a message from Dr Tony Sara, President ASMOF NSW, regarding the now released policy directive that for the first time establishes a consistent, state-wide approach to TESL.
This new TESL state-wide PD (PD2015_010) is the culmination of a number of years of negotiation with the Ministry of Health, along with the above mentioned consultation with members during 2013 and 2014.
ASMOF has now prepared additional resources to assist you in understanding and applying the new policy to successfully access this most important entitlement. The first is a short summary of the new PD, hopefully distilling the key points and those that have been subject to some change and/or improvement/clarification.
The second is a revamped set of frequently asked questions which will hopefully not only answer most of the ‘usual’ questions raised, but also contains a number of examples extracted from the new PD.
Context It is recognised that a reasonable and consistent state-wide policy is but one leg of the TESL ‘table’. Ensuring consistent application of that policy is now the challenge, along with having prompt and timely payment and reimbursements are others.
14. NORTHERN BEACHES HEALTH SERVICES REDEVELOPMENT Members may recall our recent update in December 2014 that confirmed that the contract with the preferred provider, Healthscope, had been signed for the development and operation of the new Northern Beaches Hospital.
Further correspondence has been received from the NSLHD that confirms that a contract summary will be available in April 2015, which will trigger a recommencement of the consultation process, albeit one now more firmly focussed on that contract and the intentions and approach of Healthscope.
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As this matter has progressed, it has become apparent that the potential for a ‘knock- on’ effect to other existing hospitals in the LHD may arise, so consultation will need to encompass both the new private facility and staffing arrangements and also any changes that may result to other facilities within the LHD. As importantly, and previously noted, the above decision will also create an ‘enclave’ of private service provision that erodes public state-wide services such as Health Pathology NSW.
How can the fragmentation of state-wide services or systems not simply lead to the loss of any economy of scale (and skills and range of services) that will of itself fuel further calls to carve up the remainder?
Background The proposed Northern Beaches Health Service redevelopment was announced in 2013 by the Minister for Health. Some 830 FTE staff (out of a total of some 964 FTE staff) currently employed at Manly or Mona Vale Hospitals (and the services provided) will be affected in this proposal as such services ‘shift’ to the new hospital in 2018.
Manly Hospital will close completely. Mona Vale will remain to provide limited services. A summary of the RFP document provided to the potential proponents was previously made available to members last year.
NOTE: Junior Medical Officers undertaking rotations or training at the new hospital will do so as public health employees whilst working there.
Survey of residents A ReachTEL poll commissioned by the NSW Nurses and Midwives’ Association (‘NSWNMA’) last year found more than 76 per cent of residents surveyed in the state seat of Manly, Premier Baird’s own electorate, were concerned about the NSW Government’s plan for the new Northern Beaches Hospital.
The survey, of 755 local residents on the evening of 21 July 2014, revealed around 66 per cent of respondents aged 18-34 years were worried about the new Northern Beaches Hospital being run by a private operator. An overwhelming 82 per cent of all respondents to the poll also confirmed they were pleased with the level of public health services currently provided in the local area.
To see the full media release issued by the NSWNMA, click here.
Mona Vale Hospital precinct Last year it was confirmed that work was well progressed to establish a future services plan for the Mona Vale Hospital site. This would identify services that would be provided from the site and complement those to be provided by the LHD and Northern Beaches Hospital from 2018. Much of this work remains conceptual, but a future directions plan has been endorsed by the NSLHD Board and has been subject to initial consultation with staff and the community.
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Much of this reflects services that are known to be remaining. Things such as rehabilitation, the establishment of an Urgent Care Centre5, hydrotherapy services, a community care centre, palliative care for example. A Village Green will be central to the site to permit an area of tranquillity.
Thoughts however have also turned as to whether the site could also ‘house’ other integrated services. Ideas include a new ambulance station (in lieu of the present facility at Narrabeen), medical/GP suites, and even aged care services, which could be done in ‘partnership’ with the non-government sector. Consultation with unions was committed to when and if such ideas become tangible proposals.
15. REVIEW OF THE NATIONAL REGISTRATION SCHEME ASMOF was contacted re a review of the national registration and accreditation scheme for health professionals and the capacity to make a submission by 10 October 2014. A consultation paper (104 pages) was released to assist in the process. A response was prepared and provided by ASMOF following consultation with members.
16. NEW WORKING WITH CHILDREN CHECK As previously reported to members, a new Working with Children Check framework (‘WWCC’) was introduced, which had a number of key changes. This included that the responsibility and cost for such checks is now placed on existing and prospective employees. An employee will need to apply for their own check every five years, receive a clearance, and pay the fee of $80.
Unions NSW and public sector unions (including ASMOF) have been challenging this cost shift in the IRC. Unions argue that such costs, previously borne by the NSW Government and agencies, should not be deflected to employees, and as such should be reimbursed to such employees under the new schema.
The NSW Government steadfastly opposed any rethink on its cost shift. It in turn countered that threshold issues existed that of themselves should have the application filed by Unions NSW to establish a reimbursement regime ‘struck out’ or stayed for want of jurisdiction. This was the subject of a hearing before a Full Bench of the IRC on 3 February 2015.
5 The Urgent Care Centre will be staffed by doctors and nurses but will only provide basic services. It will only deal with self-presentations from the community and will not be open to ambulance presentations. Patients requiring further attention will be transferred to the local emergency department (the Northern Beaches Hospital) or elsewhere if specific services or requirements of care are identified.
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In a decision handed down on 19 March 2015, the Full Bench indeed struck out the award application in its current form. It determined that the “effect of the statutory scheme [those changes to the legislation to give effect to the NSW Wages Regulation and Policy] is that the award sought cannot be presently made.”
In large part this was due to the Full Bench considering that the variations to wages and allowances for increases from 1 July 2014 fully dealt with and resolved all matters pertaining to employee related costs. As a result, a limitation existed in what could be further agitated in the following twelve month period from the effect of those increases.
The decision remains subject to review to establish what consequences, if any, the decision may have in relation to this matter and any possible future proceedings.
Background The new Working With Children Check commenced on 17 June 2013, with a revised Regulation released at that time. The Ministry issued a new policy directive [PD2013_028] that also sets out the requirements of the Working With Children Check.
Whilst the amount involved in this matter may appear small at first glance, the principle that the NSW Government can at any time casually shift costs to employees is one that must be resisted, especially in a wages environment that is all one way at the moment.
17. TOPPING UP WORKERS COMPENSATION PAYMENTS (NO CHANGE IN STATUS) Members will be aware from an update in 2013 that most public health awards contain a provision6 permitting sick leave to be used to cover the difference between the amount received as workers' compensation and full pay. Sadly, this came under direct threat from the NSW Government at that time, who sought to unilaterally (and without any off set) strip away this capacity.
This came to a head in late 2013 in another public sector award dealing with the Roads and Maritime Services, with arbitration being pursued by the NSW Government to have the IRC remove such a provision.
6 For example, in Clause 19 Sick Leave in the Staff Specialists (State) Award: “... a Staff Specialist shall not be entitled to sick leave on full pay for any period in respect of which such Staff Specialist is entitled to workers' compensation; provided, however, that the Employer shall pay to a Staff Specialist who has a sick leave entitlement under this clause the difference between the amount received as workers' compensation and full pay. The Staff Specialist's sick leave entitlement under this clause shall, for each week during which such difference is paid, be reduced by that proportion of 1 week which the difference paid bears to full pay.” [emphasis added] Similar provisions exist in all other NSW public health awards dealing with medical practitioners.
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Unions NSW was granted leave to intervene and make submissions in the matter on behalf of a number of affiliates - including ASMOF - who had an interest in the determination of this threshold issue. Pleasingly, Justice Staff subsequently found no basis to overturn such an award entitlement.
Whilst this seemingly put the matter beyond doubt, the NSW Government still provided advice it does not particularly feel that this decision is binding on all and every other public sector award and each should be dealt with on a case by case basis. Public health awards (which have the far superior form of words and no overt reliance on the amended workers compensation legislation - unlike many Crown awards) should not be in the initial firing line but that is not certain.
A consolidated approach from unions will continue to be adopted although it is not intended to take any action that may imperil at first instance health awards.
18. NATIONAL DISABILITY INSURANCE SCHEME Legislation was passed last year by the NSW Parliament to commence the transition toward the National Disability Insurance Scheme (NDIS) framework. This unfortunately revealed that the changes would lead to the effective withdrawal of all NSW public sector provided services by 2018 - services which currently constitute 40% of all those delivered in the sector by some 10,000 of the 14,000 public sector employees working in the area.
Alarm was also raised at the time when it was revealed that the legislation also permitted the relevant Minister to potentially transfer existing public sector staff delivering such services to the replacement NGO provider without their consent - a most draconian power indeed to have at one’s disposal.
The NSW Government has been somewhat reluctant thus far to establish a framework to facilitate transition of employment in a manner that protects current employee conditions of employment when moving to the private sector. This is a major departure from previous outsourcing exercises undertaken by this and previous NSW Governments. It sets a very bad precedent for things to come and any future private sector involvement with public services. Further, the NSW Government has also refused to acknowledge or accept that the state should remain a provider of last resort (thus perversely limiting the choice of users). It won’t even continue to provide services/support to those with more complex needs.
The NSWNMA and the PSA, as well as ASMOF, banded together to start a petition to the NSW Parliament to debate this matter. The objective was to have the necessary 10,000 signatures by October. Pleasingly, at a rally held in October 2014 outside Parliament House, 25,000 signatures were provided to MPs to table in the parliament.
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This clearly reflects the concerns that have been raised by this decision for the NSW Government to vacate the field completely, thus reducing choice. This is not about the NDIS, which all three unions fully support. It is rather the manner and mechanism to be utilised by the NSW Government that will see a seismic shift in how 40% of existing services are currently delivered.
19. A NEW MAITLAND HOSPITAL As members may have heard, the Premier has announced a new hospital for Maitland. But the basis of construction and operating any new hospital remains unclear. At a recent meeting, the HNELHD confirmed that the following actions had recently occurred to facilitate the progression of this announcement:
A clinical statement plan has been completed and approved by the HNELHD Board. This allowed Health Infrastructure to make provisional determinations regarding size, costs etc that would be associated with construction and establishment.
This will facilitate Treasury scrutiny and progression to a so called gateway process to establish by which means the new hospital might be delivered and operated.
At the moment the planning remains predicated on assumptions. No final approval from NSW Government re what services might be provided from the new facility. Clearly that approval will have be an important determinant to finalising the scope and size of the project.
Accordingly, there has been no discussion re procurement at this stage, and is still not expected till later in 2015.
The new hospital may give rise to ‘opportunities’ for consolidating some existing community services but will certainly not change other major existing facilities.
Background Any new hospital could be progressed via one of three differing ways:
i. Funded entirely by the public and remaining to be operated as part of the public health system; or ii. A public private partnership similar to what occurred at the Calvary Mater in Newcastle (whereby the private sector built and continue to maintain the hospital whilst also undertaking employer responsibility and supervision of designated non-clinical staff); or iii. A Northern Beaches model whereby a private provider would build and operate the hospital and provide services to public patients by way of a service agreement with the LHD.
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It would not be surprising if the current NSW Government was to opt for private sector involvement of some sort into the public health space. ["The Baird government remains open-minded on the issue of whether the new Maitland Hospital will be privately operated" (The Daily Telegraph - 19 March 2015)].
20. RIGHTS OF PRIVATE PRACTICE (NO CHANGE IN STATUS) Members may recall that earlier this year ASMOF made representations to the Ministry of Health regarding feedback from some members as to the potential for ‘misguided’ choices being made by LHDs regarding Rights of Private Practice (‘ROPP’), outpatient services, and the ABF framework.
ASMOF received last year formal correspondence from the Ministry quashing that such change is being generated or pursued at a local level, whilst further providing recognition of the importance that ROPP has for clinical services. It includes a commitment that any changes to current practice will be discussed in the first instance with all stakeholders, including ASMOF.
This position and commitment was again reiterated at a recent peak industrial consultative meeting with the Ministry in July, when ASMOF again raised concerns that had been forwarded by members that some facilities had claimed that changes would be made to how certain non-inpatient clinics were ‘classified’ - based on some (misguided) view regarding the impact of activity based funding.
21. ASBESTOS IN HOSPITALS As previously reported, public health unions continue to meet with the Ministry to discuss actions taken and proposed re serious concerns raised regarding the issue of asbestos in hospitals - past and present.
A Peak Union Liaison Committee has been established by the Ministry as one of the responses to the concerns raised. The committee will deal with system-wide issues in relation to asbestos management and the broader perspective.
The management of specific asbestos issues remains the responsibility of the relevant NSW Health facility or entity.
Background Unions NSW headed up the original delegation that met with the Ministry, and the following agreed actions resulted:
The Ministry confirmed it had reiterated to all LHDs/public health organisations of the absolute requirement to maintain asbestos registerers (current and historical), along with having proper asbestos management plans in place;
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A specific meeting involving the Ministry and public health unions would be arranged with Westmead Hospital to discuss specific claims/concerns raised; The Ministry would investigate other specific examples/concerns raised at the meeting; Agreed that considerable utility existed in having LHDs undertake an audit, with such proposals to be subject of consultation at a local level with unions; and The Ministry would further consider the utility of having a regular peak forum on asbestos, drawing together local actions into a more statewide picture of activity.
22. NSW MINISTERIAL LINEUP As notified to members recently, the re-elected Baird NSW Government unveiled its new ministerial line up - which has continuity and some change in health.
The current Minister for Health, the Hon Jillian Skinner remains in the health portfolio, albeit without Medical Research. The portfolios of Mental Health, Medical Research and Assistant Health Minister (along with the new portfolio of Minister for the Prevention of Domestic Violence and Sexual Assault) will now be held by the Hon Pro Goward, previously the Planning Minister.
This means that Minister Goward will now be the responsible Minister for adopting/implementing all/some of the recommendation arising from the Mental Health Commission’s report entitled A Strategic Plan for Mental Health in NSW 2014-2024.
The Hon Gladys Berejiklian will be the new Treasurer and Minister for Industrial Relations (and accordingly responsible for wages policy/legislation).
The full Ministry is listed below for the information of members.
THE NSW MINISTRY Mike Baird: Premier, Minister for Western Sydney Troy Grant: Deputy Premier; Minister for Justice and Police, the Arts, Racing Gladys Berejiklian: Treasurer, Minister for Industrial Relations Adrian Piccoli: Minister for Education Duncan Gay: Minister for Roads, Maritime and Freight; Vice-President of Executive Council Anthony Roberts: Minister for Industry, Resources and Energy Jillian Skinner: Minister for Health Andrew Constance: Minister for Transport and Infrastructure Brad Hazzard: Minister for Family and Community Services, Social Housing Rob Stokes: Minister for Planning Dominic Perrottet: Minister for Finance, Services and Property Gabrielle Upton: Attorney-General Pru Goward: Minister for Mental Health, Medical Research, Women, Prevention of Domestic Violence and Sexual Assault; Assistant Minister for Health
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John Ajaka: Minister for Ageing, Disability Services, Multiculturalism Stuart Ayres: Minister for Trade, Tourism and Major Events; Sport Victor Dominello: Minister for Innovation and Better Regulation John Barilaro: Minister for Regional Development, Skills, Small Business Paul Toole: Minister for Local Government Niall Blair: Minister for Primary Industries, Lands and Water Mark Speakman: Minister for the Environment, Heritage; Assistant Minister for Planning David Elliott: Minister for Corrections, Emergency Services, Veterans Affairs Leslie Williams: Minister for Early Childhood Education, Aboriginal Affairs; Assistant Minister for Education
23. WEEKLY MEMBER UPDATES In addition to the more obvious industrial issues, other matters are also brought to the attention of members via the weekly updates issued for their information or action. Over the last month these included:
ASMOF NSW Branch 2015 elections March 2015 Industrial Report
24. MEMBER UPDATES (SPECIFIC) A number of matters were also brought to the attention of members by specifically targeted email updates and/or provision of relevant documentation.
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FEDERAL UPDATE 25. REVIEW OF THE FAIR WORK ACT Members may recall our most recent update that the Federal Government announced terms of reference on 19 December 2014 for the Productivity Commission review of federal industrial relations laws. The terms of reference were all encompassing and gave the Commission a very wide scope of review and the capacity to make recommendations for changes.
This is demonstrated by the Issue Papers released at the end of January 2015 by the Commission, which drew immediate criticism from the union movement. Ms Ged Kearney, President of the ACTU, said unions will use the inquiry to advocate for improvements to minimum and award wages, and measures to reduce poverty and inequality, which it believes is entirely consistent with a worldwide trend to move away from austerity measures.
“Six years on from the global financial crisis and both the US and Germany are seeking to increase their minimum wage while other countries in Europe have realised the folly of cuts to public services and extra costs for households” [Ms Kearney]
Reflecting the broad ranging nature of the TOR, the five Issue Papers raise a plethora of questions about current and long established workplace entitlements and the legislative framework.
It also poses the question as to how workplace arrangements in state and public services (and any relevant state-owned enterprises) should be regulated (noting many states have retained their own state jurisdiction to manage public sector employment). In particular, the Commission poses to what extent and why, should workplace provisions vary based on the public or private status of an enterprise.
The Commission will be undertaking a public consultation process, which will include receiving submissions, holding hearings, and releasing a draft report to the public. A final report is to be provided to the Federal Government in November 2015.
26. FAIR WORK (REGISTERED ORGANISATIONS) AMENDMENT BILL 2013 (NO CHANGE IN STATUS) The Abbott Government tabled late last year the Fair Work (Registered Organisations) Amendment Bill 2013 (the Bill), which will amend the Fair Work (Registered Organisations) Act 2009 (RO Act) and the Fair Work Act 2009. These changes are said will ensure better governance of registered organisations by establishing a Registered Organisations Commission and aligning penalties and obligations for union and employer association officials with corporations law. Both unions and employer associations have raised concerns regarding the onerous nature of the changes.
The Bill was recently defeated (again) in the Senate.
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27. NORTHERN BEACHES REDEVELOPMENT - PRIVATE SECTOR PROVIDER See Section 14 of this Report. Any private sector provider will be employing staff under the federal IR system.
28. NATIONAL DISABILITY INSURANCE SCHEME - TRANSFER TO THE NGO SECTOR See Section 18 of this Report. Any private sector provider will be employing staff under the federal IR system.
29. ROYAL REHABILITATION CENTRE SYDNEY 29(i) Renegotiate the current NSW (Non-Declared) Affiliated Health Organisations’ Staff Specialist Agreement 2009 Royal Rehabilitation Centre Sydney (‘RRCS’) has approached ASMOF to renegotiate the above agreement to the extent necessary to arrive at a new agreement specific to RRCS. This would leave the existing agreement to remain in place for other AHOs.
In an initial meeting, RRCS has indicated that it is considering the scope of any new agreement ie continue to be a reflection of the award only (and rely on public health determinations and policies as part of the conditions of subsidy) or include all relevant employment conditions within the agreement.
29(ii) Renegotiate the current NSW (Non-Declared) Affiliated Health Organisations’ Medical Officers Agreement 2009 RRCS is establishing a private sector ‘niche’ within its current facility. It is understood that the Ministry is agreeable to ‘excise’ such activities from any status as a third schedule hospital. RRCS has said that it will only be employing Registrars and possibly a CMO in the private sector services (in addition to VMOs). All ‘traditional’ services remain as third schedule and retain Staff Specialist staffing at current levels. RRCS has indicated that it would wish to negotiate a new agreement for medical officers that will be applicable to all activities at RRCS (third schedule and private).
30. CHRIS O’BRIEN LIFEHOUSE – RENEGOTIATION OF AGREEMENT Meetings continue regarding Stage 2 of the transition of cancer services from RPAH to Lifehouse as well as renegotiating the current Lifehouse workplace agreements.
Stage 2 In relation to Stage 2, it is understood that: Services to be transitioned from RPA to Lifehouse as part of Stage 2 are to be inpatient care of public patients in the following areas of cancer care: Medical and Radiation Oncology, Breast Surgery; and Head and Neck Surgery. This constitutes activity on average the equivalent of some 28-34 beds. As a result, only be very few (if any) current RPA staff will transfer across to Lifehouse as part of Stage 2. This makes Stage 2 quite unlike Stage 1 and the 140 or so RPA staff who were transitioned across with services. Stage 2 has recently commenced.
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Staff to provide these additional services will accordingly be via recruitment processes by Lifehouse - via direct employment (and thus expected to be covered by the relevant agreement) or via contractual (VMO type) arrangements. Some discussions and further clarification still needed to occur to completely ‘unpick’ the requirements via the service agreement with the SLHD as to how/which anaesthetists and intensivists will provide those services for public patients at Lifehouse (and quite separately what arrangements will be arrived at for private patients).
Agreement negotiations Lifehouse has embarked upon discussions and negotiations with all relevant public health unions regarding the current agreements in place. These will continue in increasing intensity over the coming weeks. All members involved in process. The agreement pertaining to nursing classifications has been endorsed by employees in a workplace ballot and has subsequently been certification by the FWC.
Background Whilst it almost feels like a lifetime ago, it has only been some 18 months since the culmination of two years of debate and negotiation, and the subsequent transition to Chris O’Brien Lifehouse of a number of members who previously worked at RPAH Cancer Services.
The resulting agreement - the Lifehouse Staff Specialists Greenfields Agreement 2013 (‘2013 agreement’) is the federal industrial instrument that covers their employment. This was approved by the Fair Work Commission (‘FWC’) and came into effect on 20 September 2013. The 2013 agreement contains a pay increase of 2.5% from the first pay period on or after 1 July 2014.
NOTE: Junior Medical Officers undertaking rotations or training at Lifehouse do so as public health employees whilst working there.
31. ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION The Royal Commission headed up by Commissioner, the Hon John Dyson Heydon AC QC held its first public hearing on 9 April. An interim report was provided in December 2014 (http://www.tradeunionroyalcommission.gov.au/reports/Pages/default.aspx), with a final report now not being due for a further twelve months, with the Federal Government having extended its reporting deadline by a further twelve months. The Commissioner has begun sending relevant documents to investigating authorities for consideration of any prosecution action that could be pursued.
As part of this process, the Counsel Assisting the Royal Commission had previously made a submission - reflecting their summary and view of events to date. Certain recommendations were also been made. (http://www.tradeunionroyalcommission.gov.au/Submissions/Pages/default.aspx)
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Background The hearings to date have been marked by statements and witnesses airing a series of allegations and claims that at times have remained untested nor being able to be refuted in the Royal Commission by those affected at the time of their making. It is claimed that some witness statements have not been provided directly to potentially affected parties prior to them giving evidence.
The ACTU has boycotted the Heydon Royal Commission's policy development process, labelling it as "deeply inappropriate" on a number of fronts. The ACTU informed the Royal Commission that the peak union body would not respond to the three issues papers released in mid-June, being:
Protections available to whistleblowers Duties of union officials Funding of trade union Elections
The ACTU argues that unions have repeatedly sought more details on the Commission’s policy development processes, but the issues papers released on June 13 required a response by July 11. This timeframe was considered to be insufficient to allow the ACTU to undertake a reasonable consultation process with its affiliates.
The ACTU also contends that the minimal background provided in the issues papers and the questions asked gave the impression the Commission has predetermined the issues or even the investigations. The ACTU has also reiterated previous observations to the Royal Commission that the governance framework for registered organisations needs to be considered as a whole, not in a piecemeal fashion as apparently contemplated by the issues papers.
It was also noted by the ACTU that absent from the issues papers is the notion of freedom of association, specifically the right of workers to create and maintain unions independently of governments and to determine their own structures, activities and program (ILO Convention 87).
32. PROTECTIONS FOR TRANSFERRED STATE PUBLIC SECTOR EMPLOYEES UNDER REVIEW In 2012, the then Gillard Federal Government amended the Fair Work Act 2009 to introduce certain protections to state public sector employees who followed public services that a state government transferred to the private sector.
The amendments, often referred to as the Shorten amendments, provided that a state public sector employee would in those circumstances continue to have the protection of their state conditions of employment via so-called replicated instruments. These protections would remain in place for five years or until amended or varied by the Fair Work Commission as a result, for example, of a new workplace agreement or if some disadvantage arose by maintaining the replicated instruments in place.
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The current Abbott Federal Government has commenced a review of the Shorten amendments to assess whether these are reflective of best practice regulation. If, for example, these current laws at the end of this review were amended or abolished as being unnecessary, it would have the potential to impact greatly on employees working in services that state governments into the future divest to the non-government sector. Such provisions may be essential for the protection of transferred public sector employees.
Another example is the currently proposed Northern Beaches Redevelopment that will see services and employment being transferred to the private sector, the Ministry is only seeking to enforce a two year obligation on the new provider to continue existing conditions of employment for transferring employees. This falls short of the five years that would arise from the current legislative standard.
Whilst reassuring that some guarantee has been included in the intended contractual arrangements in this example7, in the absence of any legislative safety net it will inevitably change the playing field significantly into the future. It is not hard to envision that in the absence of any legislative prescription state governments may feel little compelled to provide any meaningful guarantee.
Unions NSW and affiliates have worked collaboratively toward the development and lodging of a submission to the review.
Dennis Ravlich Executive Director ASMOF NSW Prepared 13 April 2015
Note This will be my last Industrial Report for ASMOF NSW State Council and members prior to my departure. I take this opportunity of acknowledging the cooperation and support of all ASMOF members over the last near four years. It has involved both some confronting and positive situations and experiences, with my arrival at ASMOF (unfortunately!) coinciding with the new wage fixing regime of the NSW Government. But in 2012 we achieved the expansion of our scope of coverage which heralded ASMOF becoming the doctors union for all doctors in this state. Our membership numbers have doubled in two years, and the organisation remains by far the pre-eminent union of doctors in the country, both in sheer size and the professionalism it continues to demonstrate in all relevant arenas.
My best to all members - both professionally and personally.
Dennis
7 As previously discussed when dealing with the transfer of RPAH employees to the Chris O’Brien Lifehouse, the Shorten amendments refer to replicating awards or certified agreements, which do not in respect of NSW Staff Specialists adequately captures the salary and conditions of employment dealt with in various Ministry policy directives and determinations.
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