Not For Taming - Unionism Of NZ Senior Doctors
NOT FOR TAMING;
UNIONISM OF SENIOR DOCTORS
UNION OF AMERICAN PHYSICIANS
6 SEPTEMBER 2003
ASSOCIATION OF SALARIED MEDICAL SPECIALISTS
Thank you for the invitation to address your important
Convention today. The Association of Salaried Medical
Specialists and the Union of American Physicians and
Dentists have been gradually developing a collaborative
relationship that I hope my participation in your Convention
and your decision to send a representative to our Conference
in November will continue to foster. While there are
fundamental differences between our respective industrial
relations and health systems (let alone size, with New
Zealand’s population of four million and our unitary
political system based on proportional representation), this
is much less significant than what we have in common and
what we can learn from each other.
I suspect that both our unions are rather like a dog with no teeth but with powerful gums. We both may not be able to bite but we surely have a strong grip ensuring that we never let go. Perhaps we are the best grippers in our respective health sectors?
Our union was formed in 1989 with the catalyst being a merging of our previous distinct and separate state sector industrial law into the law that prevailed in the rest of the economy. This included a requirement that any organisation that sought to negotiate collectively on behalf of employees had to be registered as a union. Consequently we were formed, in part, through a coming together of earlier looser associations.
Our membership is open to senior (attending) doctors and dentists, including specialists, who are employees rather than those who are independent contractors or self-employed. The nature of our public system is that, particularly in secondary care, it is publicly provided through 21 district health boards (DHBs). Consequently the large majority of senior doctors working in secondary care are employees, either full or part-time, employed by the public health system. We also have members employed outside the public sector, usually not-for-profit, mainly in primary care.
After our first year our membership was around 60% of its potential. With two exceptions, our membership has increased each subsequent year and now rests at over 90% of our estimated potential (over 2,100), and higher in the public sector. There is also a separate union representing resident doctors. We are affiliated to the peak union body in New Zealand, the Council of Trade Unions, and participate in their internal structures and committees. We also have a collaborative relationship with the NZ Medical Association, which is quite different from the American Medical Association.
Our supreme body is our two-day Annual Conference in which a number of industrial and health policy issues are discussed and debated. The Conference serves as a cradle and flagship for membership involvement, through delegates, in the direction and development of the union. We have a 10-person National Executive elected for biennial terms and have a national office in the capital city, Wellington.
Industrial Law Regime Change
Industrial law is one of the fundamental differences between our two countries. As I understand it you still operate under the Taft Hartley Act passed in the late 1940s. In New Zealand we had separate industrial law for the public and private sectors until 1988. In the state sector it was heavily centralised, based on rigid relativity criteria, and arbitrationist. Since our formation in 1989 we have averaged a radical change in our industrial law every four years, something that Mr Bush might describe as regime change. We are now operating under our third industrial law, each fundamentally different from what it replaced. From centralised arbitration we first moved to national collective bargaining inclusive of a considerably reduced influence of arbitration (1989-1991).
Next, from 1991-2000, we moved to new industrial law, based on neo-liberal ideology, which strongly favoured individualism and individual contracts rather than collective bargaining. However, while we failed to retain national negotiations, we were able to ward off attempts to introduce widespread so-called individual bargaining and all the vulnerabilities and weaknesses that go with it by transiting to single employer collective bargaining, particularly in the public sector. We were also able to successfully use collective bargaining in an artificially created market environment to make considerable gains in issues such as salary increases, subsidised superannuation, annual leave, CME expenses, and enhanced remuneration for working on after-hours call rosters.
Now, since late 2000, we are working under a new legal regime that is based on International Labour Organisation conventions on the recognition of unions and promotion of collective bargaining. These conventions are imported into our new law both in tenor and explicitly. This has given us the opportunity to return to national negotiations in the public sector that are currently underway, although presently verging on collapse because of the short-sighted and inflexible position of our DHBs.
The practical effect of our most recent legal regime is that we do not face the same hindrances and hurdles that you face to be recognised by employers for membership representation and collective bargaining. The requirements to be registered as a union are minimal and do not require employer approval or a balloting process. Further, once registered, unions have rights to collective bargaining, at both a single and multi-employer level. The North American concept of good faith has also been adapted to our law including its application to collective bargaining. There is, however, no obligation to settle or compulsory arbitration requirement.
The considerable obstacles that your union faced over attempting to achieve and retain recognition with the Los Angeles County are something that we simply do not have. Nor do we have the situation, as again occurred with Los Angeles County, where after a certain period of time and process, the employer’s last offer becomes binding on affected employees. Entitlements cannot be unilaterally taken away by an employer.
The second major difference is union coverage. In September 1989 union density (union membership as a proportion of wage and salary earners) in New Zealand was 55.7% while union membership was 684,825. Due to a combination of neo-liberal employment law including ‘free-loading’, unemployment and under-employment, by December 1999 this density had fallen to 21.4% while union membership had collapsed by 56% to 302,405. By December 2001 the trend had halted with a 9% increase in membership (329,919) from the 1999 level and there was also a small increase in density to 22%.
Most of this membership and density collapse occurred in the private sector such as the manufacturing and construction industries. The public sector was not affected as badly and unions with a professional occupational base (eg, teachers, nurses) largely held their own and in some cases increased. Our union was most unusual given the nature of our sustained annual growth.
In contrast with the United States, New Zealand does not have the same degree of membership contestability, particularly in professional occupationally based unions. For example, although there are two doctors unions, ourselves and the Resident Doctors Association, we have both defined our own membership coverage and boundaries and are not in competition with or poaching from each other. This is greatly assisted by the fact that we only have one peak central union organisation, the Council of Trade Unions, compared with your often competing internationals, albeit inside the AFL-CIO.
Coming from a union whose density is over 90%, I am bewildered by the corrosive and wasteful American experience of doctors unions, who often share the same or similar values, and reasons for being occasionally competing against each other for members, when your own density is so low and there is such an enormous recruitment potential.
The third main difference is our respective health systems. Apart from the ‘neo-liberal interruption’ of the 1990s, our health system with its strong British origins is based on the principle of single payer with the large majority of funding coming from the state. In essence, the bulk of the system, primary and secondary, is publicly funded. Secondary/tertiary care is largely publicly provided through statute based state-owned district health boards, while primary care is largely privately provided, but significantly state regulated, through self-employed general practitioners. User charges do not apply to access to public secondary care services while the government is planning to move away from the current prevalent system of partial user charges for primary care to a fully capitated system.
As a result of new health legislation effective on 1 January 2001, district health boards became responsible for both primary and secondary care. Previously there was a so-called Chinese Wall between the bureaucratic structures of the two sectors. The large majority of secondary care specialists and other senior doctors are employees (although some are part-time and also work in the private sector). All our district health board members are covered by collective bargaining.
The other key feature of our health system that differs from yours is our no fault accident compensation system whose application is not restricted to workplaces. It includes, for example, sports injuries and accidents. One of the key features of no fault is the absence of the right to sue. This means that, while not unimportant, medical indemnity costs are minimal by comparison with the United States and it is nowhere near the same controversial issue as it is here.
Role of Collective Bargaining
The role of collective bargaining is critical to our existence and effectiveness. It is the core and base of our work and has delivered much of the improvement and new entitlements that we have been able to negotiate for our members. But we do not look at collective bargaining from the standpoint of enhancing ‘pay and rations’. Processes and rights are also important. This includes rights such as speaking out, research and publication, mutually agreed job descriptions and intellectual property.
We are currently embroiled in national negotiations with the 21 district health boards, the first national negotiation for senior doctors since 1991. These have the potential to develop for the first time an effective national recruitment and retention strategy that recognises the competitive international medical labour market in which we operate, and also to jointly develop a new culture of collaboration and cooperation between senior managers and senior doctors that offers significant benefits all round in areas such as workforce development and planning and actively engaging senior doctors in the engine-room of decision-making.
This is part of our membership empowerment strategy, initiated at our Annual Conference last year, in which the expertise and professionalism of senior doctors can be utilised to improve organisational effectiveness and efficiency, something that our health system desperately needs and would greatly benefit from. We do not know whether our health system is adequately funded or not but we do know that it is ineffectively funded. Membership empowerment would help resolve the issue of effectiveness and help clarify the question of adequacy.
Unfortunately these exciting opportunities are being undermined by a short-sighted employer strategy that attempts to put a concrete lid on what we as a union might seek to negotiate and, further, to achieve claw-backs. While claw-backs can only be achieved if we as a union consent, and we will not, it nevertheless sours the tone and undermines the ability to develop a more collaborative and cooperative culture in the health system.
Linkage with Health Policy
Our union is probably more publicly known for the health policy issues that we speak out over. During the 1990s we were strongly critical of the attempt, as part of New Zealand’s ‘neo-liberal interruption’, to impose market forces through an adaptation of the then British internal market and American managed care on our publicly funded health system. This historical ‘interruption’ included several scraps over privatisation attempts, including by American Health Maintenance Organisations. Aetna, for example, attempted to control the funding for one of our main provincial public hospitals. We were among those who successfully opposed this. There is nothing like a slogan such as ‘the Americans are coming’ to galvanise and activate New Zealanders into stroppy opposition.
We have also been actively involved in debates over the adequacy and delivery of health funding, endeavouring to scratch beneath the surface of political claims over funding levels and the need for workforce development and planning that was unfortunately neglected during the 1990s. I like to think that we have helped influence government decisions in recent years to at least officially recognise the importance of workforce development, move from time-limited to permanent baseline funding, and announce longer term funding packages providing better opportunities for district health boards to plan.
We also strongly contested the government’s recent successful attempt to replace our medical registration legislation with new legislation that increased political and bureaucratic control over medical practitioners at the expense of professional self-regulation.
The important point is that active engagement in health policy matters is central to our work as a union, is what our members expect of us, and contributes in no small part to our current high membership levels. Collective bargaining alone is insufficient to explain this level and is integral to medical unionism in New Zealand.
I do not want to give you the wrong impression about New Zealand. It is not the land of milk and honey except in a narrow agrarian context. As discussed above, we are faced with threatened claw-backs and a short-sighted industrial relations strategy in our current round of national collective bargaining while we have also seen for the first time medical registration legislation adopted despite the contrary advice and express opposition of the medical profession. We also suffer from inefficient bureaucratic decision-making, policy development divorced from the reality of the clinical frontline, the excessive export of many of our medical graduates due to high student loans and debt, and critical shortages in the medical and nursing workforces.
But we need to be positive and constantly on the front foot. Medical unionism needs to be flexible, adaptable and wide-ranging in its approach. Without concretizing it too much we should be mindful of, but broader than, the principle of the late Jimmy Hoffa senior who said that principles are important but they should never get in the way of a good deal.
Medical unionism provides key linkages between membership interests and rights to wider health policy issues. They are connected and unionism is the connection. Medical unionism provides the means by which the health system can tap into the collective contributions, influence, strength and wisdom of the most skilled, critical and specialised part of its workforce and the glue that holds so much of our respective health systems together.
Medical unionism should adapt the expression of former Conservative Prime Minister Margaret Thatcher that ‘this lady’s not for turning’ to ‘medical unionism’s not for taming’.