In almost all workplace agreements there is an ‘issues resolution’ or ‘alternative dispute resolution’ process available to the contracting parties, and they are included to protect the employee’s or contractor’s rights and raise issues from time to time.
The AMA (NSW) can assist its VMO members with addressing any issues by following the disputes process. The purpose of this process is to provide a mechanism through which to work through issues in good faith, with an aim to find a resolution that is in the best interests of the VMO, the hospital, and the patients they care for.
Although the process appears formal, it should be approached as a collegiate method of resolution. Certainly, our experience is that almost all issues are resolved through a course of meetings at hospital level. Only occasionally do we find the need to progress to a mediation, whereby an independent workplace mediator will assist in the resolution process. And, only in very rare circumstances will an arbitration be considered necessary.
The disputes process can be invoked for ‘any matter in connection with the contract’ – although does exclude matters relating to reappointment, termination, and suspension (which are dealt with under the appeals process in the Health Services Act 1997).
The case studies below demonstrate the practicality and versatility of the clause.
Disputed payments: AMA (NSW) assisted to secure payment for a VMO of $50,000 in a matter where there had been underpayment over many years where the VMO should have been paid at senior rates and with regional loadings.
Reductions in ‘ordinary’ hours: Under Sessional Contracts, ordinary hours are for the most part either ‘budgeted’ or ‘agreed’ and should be determined by way of annual review with reference to the previous years’ hours as well as taking into consideration the requirements of the Local Health District and the Department. They should not be reduced without reference to those considerations and an attempt to reach agreement between the parties. AMA (NSW) assisted in a dispute regarding a reduction in hours that was imposed unilaterally, and we were able to prevent the implementation of the reduction in hours.
Lack of equipment and safety concerns: Under the VMO Determinations, LHDs are required to provide all ancillary, medical, nursing, and clerical assistance, and facilities, instruments, and equipment reasonably necessary for the proper performance of the services by the VMO. AMA (NSW) has assisted a number of VMOs with negotiations for funding for new or additional equipment to ensure the safe provision of services.
Unreasonable on-call requirements: In cases where departments continually issue on-call rosters that inequitable and causing an unreasonable load upon one VMO. AMA (NSW) has been successful in negotiating amendments to the roster following the notification of a dispute.
Other matters that may be the subject of a dispute include compensation for cancelled operating time when inadequate notice is provided; reallocation of operating time for one VMO to another VMO; compensation for a VMO who was informally stood down; and compensation for the failure to make payments for teaching and committee attendances.
We are aware that many VMOs consider notifying a dispute to be reserved for very significant issues and that doing so may result in adverse consequences for the VMO concerned. This is not the case. As set out above, a dispute can be notified regarding any matter and if a Local Health District was to take adverse action against a VMO for exercising a right under the contract they would be on very tenuous legal ground.
We encourage VMOs to make use of the disputes process. It provides a means for timely resolution of issues and for more significant matters, not only provides a means of resolution but also protects the VMO from action being taken against him or her.
If you would like support with the disputes process, the AMA (NSW) Workplace Relations Team is able to assist in preparing correspondence, attending meetings and mediations, and negotiating resolutions.