Settlement offer analysis

Posted April 17, 2014

Together members have provided guidance to the doctors on the Together medical contracts Steering Committee and the joint SMO/VMO Taskforce throughout this campaign about what was wrong with the framework and the contracts themselves. Most recently almost one thousand SMO’s and VMO’s provided feedback about the key outstanding issues to inform negotiations last week. See the results here.

New Contract and timeframes

Almost 90% of doctors surveyed suggested their contracts were full of errors and unable to be signed and were critical of the addendum as a solution mechanism. The addendum previously offered to doctors as a solution will now be rolled into the contract itself and new contracts will be issued.  

As part of this latest offer the Minister has announced that the deadline for signing the new contracts has been delayed by 1 month until 31 May 2014 and contracts will take effect on 4 August 2014. Current private practice arrangements will be extended by Health Employment Directive until this date. This will allow doctors and their HHS to fix any errors and properly negotiate the schedules to the contract.

Dispute resolution

Together doctors have sought a robust and binding dispute resolution process, ideally a return to the jurisdiction of the Queensland Industrial Relations Commission (QIRC). The Government did not agree to utilise the QIRC, however the contract itself will provide for a right to dispute resolution.

The contract provides for a senior doctor to seek mediation or other dispute resolution process (including arbitration) and that the HHS will agree. Both sides are bound by the outcome of such a process and the mediator or arbitrator will be paid for by the HHS.

In the case of arbitration the process will be conducted by a Deputy President of the QIRC (or his or her delegate) in accordance with a Health Employment Directive (see here) which sets out the process. The contract refers to the Directive as at a point in time to protect against changes to the process. The process is similar to the QIRC’s current processes and allows for oral and written submissions and the calling of evidence. 

While not the QIRC this process appears to be sufficiently binding, robust and independent to provide a solid avenue for dispute resolution to both SMO’s and VMO’s.

Unfair dismissal   

Together doctors have sought a robust and binding unfair dismissal process, ideally a return to the jurisdiction of the Queensland Industrial Relations Commission (QIRC). For termination for an invalid reason (for example discrimination) the jurisdiction of the QIRC remains in place for senior doctors. In relation to other forms of unfair dismissal (ie for reasons that are unfair or unreasonable) the Government did not agree to utilise the QIRC, however the contract itself will provide for a right to appeal an unfair dismissal and have the matter arbitrated by a Deputy President of the Queensland Industrial Relations Commission who must apply the procedures applicable to a QIRC unfair dismissal claim and may award the same remedies.

While not the QIRC this process appears to be a very robust contractual clause providing strong, contractual, unfair dismissal protection to senior doctors.

Notice

The notice period required to be provided by the doctor or the HHS (other than for dismissal due to serious misconduct) is 6 months or 3 months if elected by the doctor in the contract schedules. This is an important concession and doctors can make a real choice about the notice period they receive from their employer and are required to give on resignation.

Patients vs Profits

Many doctors have raised concerns about the wording of the contract and the contractual shift in power from clinicians to the Health Service bureaucracy and the inherent increase in risk to patients. The contract framework document has been changed to remove the most abhorrent examples of command and control management and restrictions on the clinical autonomy of doctors. The clause relating to termination of a doctor for impairing the profitability, viability and reputation of the Health Service has been removed from the contract as has the specific limitations on the exercise of clinical autonomy that were in clause 6(2). The existence of unfair dismissal and dispute arbitration processes also go a long way to providing an avenue for doctors to resolve conflict with non-medical managers about medical issues.

However, as individual contracts continue to provide strong managerial prerogative it will be up to individual doctors and clinicians collectively to be vigilant about their professional ethics where it comes into conflict with management directions and to also seek advice and support from your union. Taskforce doctors have reminded the Department of their ethical responsibilities to put patients first, including where this is in conflict with their employment contract.

Clinical Support Time

The Director-General has committed to write to each HHS seeking that current clinical support time arrangements to be recorded in the schedules to the contract.  You will need to ensure that you make note of this in your contract negotiation and documentation.

Protection of translated benefits.

The remuneration that is “translated” into the new tier structure has been protected for translating doctors when they accept a new contract with a new HHS as long as they have unbroken service within Queensland Health. This means that the ED25% benefit for emergency doctors and current “option A” benefit translation into Tier 4 are protected. Other translated components such as MMA/CMA and rural and remote incentives that are translated will be retained as long as the eligibility criteria are met.

Location

An Expression of Interest process must be undertaken prior to a directed location change and senior doctors will have the ability to decline a transfer if reasonable grounds exist based on their personal circumstances. Operational or patient safety concerns (as opposed to personal circumstances) could be raised through other consultation or dispute processes. 

Extended rosters

Senior doctors (employed as of MOCA3 certification) will no longer have the right to refuse an extended hours roster outright and the consultation requirements have been watered down compared with MOCA3, however, an Expression of Interest process must be undertaken and a senior doctor may refuse a roster if reasonable grounds can be established to do so. Reasonable grounds may include operation or patient safety concerns as well as personal circumstances including but not limited to family care arrangements, concerns that the shift will lead to adverse patient outcomes, or where the risk of fatigue cannot be mitigated.

Professional Development Leave

The PD clause has been amended so that use of PD leave and allowance may only be directed to address or improve performance issues. Other issues related to access to PD can be disputed under the relevant clause.

Intellectual property

Intellectual property rights can be claimed by Queensland Health only where the new invention etc is related to your actual duties for the employer. Please ensure you review your duties as described in your contract.

Changes to contracts and conditions

The contract may only be varied by the HHS, with your written agreement or where the contract specifically provides for it.

The Director-General cannot change your contract or override it without your agreement, with a Directive and Cabinet cannot do so with a Regulation, other than where it is to your benefit e.g., a wage rise.

Improvement in wages and certain allowances can be arbitrated every 3 years, but there will be no real collective bargaining for any other conditions.

Doctors seeking improvements in their conditions (other than the wages and allowances above) need to go through an advisory committee and the decision is ultimately up to the Director-General.

Collective Bargaining

The Government refused to move on the issue of collective bargaining. This is a significant loss compared to the system pre-contracts as it does not provide certainty for new SMOs or VMOs or a collective “safety net” for continuing senior medical staff.

The current government maintain an ideological opposition to collective bargaining as it is a successful way for groups of employees to secure outcomes from their employer. Collective bargaining also provides commonality of conditions for all.

The campaign action to date has not been able to shift the Government on this point. If you vote to reject the contracts as they exist now it would take significant further action, potentially up until the next state election, to restore collective bargaining rights.

New SMO’s

There have been significant concerns raised by many members about new SMO’s and in particular current doctors in training, who are the senior doctors of tomorrow. While existing entitlements have been, to an extent, protected it is the intent that significant components of the pay and conditions of SMO’s employed after 4 August, will be at the discretion of the HHS CEO.

The meeting at the convention centre passed a resolution that demanded the “Queensland Government ensure that the next generation of senior doctors are afforded the same terms and conditions as are currently being offered to existing specialists. This is essential if we are to continue to attract the best and brightest medical workforce in the country and ensure the sustainability of public hospitals for all Queenslanders”.

Questions or additional comments  

For questions or to clarify points in this fact sheet contact our union office on 1800 177 244 or email health@together.org.au.