Remote Clinical Appraisal - Breakthrough in the IRC on 11 November

12-Nov-2013

An important breakthrough has occurred in this matter, and ASMOF State Council would welcome your thoughts

Background

You would have received updates regarding the progression of this matter, following the decision of the President of the Industrial Court and Industrial Relations Commission to resubmit this matter to be dealt with as an industrial dispute.

During the conciliation that has been ongoing since under the auspices of Commissioner Newall, the starting point of the parties, especially for ASMOF and the HSU, has not surprisingly been the decision of Justice Staff and his guiding principles/steps in relation to what constituted a remote clinical appraisal.

Current Situation

Pleasingly, I can report that at a further appearance before Commissioner Newall yesterday (11 November), a document was tabled, with the parties (ASMOF, HSU and the Ministry of Health) confirming as follows:

   i.   The parties agree that the attached document reflecting a proposed variation/amendment to clause 12 of the Public Hospital (Medical Officers) Award (‘award’) had after exhaustive discussions reached an outcome that could be said to have in principle agreement;
   ii.  Further work was required by the parties on the ancillary/supporting policy to give practical effect to the proposed award variation;
   iii. The status of the appeal proceedings and the original decision of Staff J would need to be settled ie the wording and legal arrangement required if the proposed award amendment was enacted so it would supersede those previous proceedings;
   iv.  The unions indicated that this proposed award variation would now need to be subject of internal processes and/or consultation, and in ASMOF’s case the final endorsement by its State Council, although this was assured to the Commissioner would occur in short order, and whilst the other flagged discussions took place.
   v.   It should also be said that the proposed award variation - if it is to proceed with the consent of the Ministry - would be on the understanding that claims/payments under the amended award clause would be prospective and not retrospective, with this forming part of the discussions involved with item iii above.

Commissioner Newall congratulated the parties on taking the conciliation process seriously and achieving an outcome that appeared to be a “thoroughly sensible one”, and one that would certainly seem to resolve what had appeared to be an intractable dispute at first instance.

Comment

Whilst the proposed award clause does contain a number of requirements to be met prior to payment being triggered, as members would be aware from earlier updates, this matter has been before the Industrial Court and in a decision handed down earlier this year, Justice Staff ‘determined’ the elements that were considered as constituting a remote clinical appraisal for the purposes of triggering a payment under the award.  The parties not surprisingly had to be mindful of this existing decision of the Court.  To deviate or vary from it may have heralded a return to the original position of the Ministry during those proceedings i.e. reject that Registrars for example should be remunerated at all for any calls taken.

In the absence of any progress on the above, the current award provision would remain disputed and moribund as the penalty is not being paid at the moment at all, so the worst of both worlds currently exists - no payment and calls still being made/received.

Part of the continuing background discussion regarding the policy framework that any amended clause would exist within is to ensure that whoever is doing the calling, they should discuss in the first instance with rostered medical staff/consultants the issue and the necessity of disturbing the on call medical staff.  ASMOF has raised during these current proceedings that some of the calls initiated do not necessarily originate from doctors but nurses as well, for example.  As this is contrary to the Court’s existing decision, it is hardly surprising that this deviation from it did not receive much traction.

It is acknowledged that some frustration will exist with this outcome, but the approach adopted by ASMOF has not been from a clean starting point or in isolation of the views of the other parties, including the rather trenchant views held by the Ministry, especially during the original Industrial Court proceedings.

What now?

ASMOF State Council, which now also comprises ten members from the Medical Officer (Intern, Residents, Registrar) State Group, is next scheduled to meet on Tuesday, 19 November 2013, when this matter will be discussed.

On balance, and noting that if the parties cannot reach agreement we would effectively return to either the original appeal proceedings or further arbitration, the advice and recommendation of ASMOF staff and Legal Counsel that have been involved in the case is to adopt the attached award variation.  This also reflects the position of the HSU, and also acknowledges the IRC’s observations and comments noted above.

What do I do?

Let us know any thoughts you might have on the attached document.  Feedback will be collated for the benefit of State Council members when it meets next week.

Nearly there.