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21 Sep 2015

You will no doubt be aware that the Productivity Commission has recently released its draft report reviewing the current workplace relations framework in Australia. As salaried employees, this is of interest to us all, even if there was nothing in the report specifically targeting doctors.

The Commission found that Australia’s labour market performance and flexibility is relatively good by global standards, but that several deficiencies need to be addressed.

The Commission stressed that changes to the Federal workplace policy were about repairing faults in the existing system, rather than replacing it. This is a good start but, as with any ‘review’, it needs to proceed with caution and not allow any self-interested group to dominate the outcome and sweep away decades of hard-won conditions.  

Of concern is a proposed cut to Sunday penalty rates in some industries. However, the Commission specifically pointed out that the rate cuts would not include employees in emergency services, such as paramedics and nurses. This is a welcome observation, as those support staff in the hospital and health system are vital to the work of doctors in public hospitals. Any erosion of their conditions is likely to impact on morale and staffing. Those of us who work in public hospitals are well acquainted with unsociable hours. The removal of any incentive to work those hours is likely to have a significant impact on patient care. Let us hope that does not become a concern in the future.

However, the major concern for us in the Report is the Commission’s view that a possible new type of agreement that spans individual and enterprise agreements — the ‘enterprise contract’ – should replace the current system which is aimed at promoting collective bargaining. The report states that it would ‘allow for greater opportunities for individual bargaining arrangements’ and it would             ‘effectively amount to a collective individual flexibility arrangement’.  

This would permit employers to vary an award for entire classes of employees, or for a group of particular employees, without having to negotiate with each party individually or to form an enterprise agreement. Effectively, it enables an employer to make individual agreements across entire classes of employees. While it may sound attractive, these changes would be profound and could impact severely on the current collective bargaining culture protecting salaried employees.

If it sounds familiar, that’s because you are probably remembering the Queensland SMO contracts debacle. The move away from collective bargaining, whatever name you give it, leads to chaos, reduced pay and conditions, and a heavy-handed approach to negotiations on the part of the employer.

Also of concern is draft recommendation 16.2, which states that the Australian Government should amend the Fair Work Act 2009 to introduce a new ‘no-disadvantage test’ (NDT) to replace the ‘better off overall test’ (BOOT) for assessment of individual flexibility arrangements. Again, the effects of this change in wording could be profound.

The BOOT allows for enterprise agreements that do not meet certain minimums, as long as the employee receives an offset that means they are better off overall. It is an important broad analysis of a proposed enterprise agreement from the employee’s perspective .

The Commission’s proposed NDT may sound similar, even a mere semantic step from the BOOT, but there is no information yet as to what that test would look like, or what it would consider. If a change is recommended, it is usually for a reason, and the Commission’s report does not provide much detail on it, other than to describe it as ‘holistic’ and a ‘straightforward remedy’. More information is needed on this.

As salaried doctors, most of us are subject to enterprise agreements of some type. This provides us with a degree of certainty about our salary and conditions and the important strength of collective bargaining. Having to fight for basic conditions is time and effort wasted, which could be expended on patient care.

The Commission’s report includes other areas of concern as well. No doubt some of its recommendations will be well received, and they are just recommendations at the moment. But we need to ensure that collective bargaining, which is spearheaded by ASMOF, remains a well-protected right.

It is likely that some of the recommendations will become election issues in 2016, with the Government and the unions facing off over them. I encourage you to look at the report and related information (available at: and remain vigilant about its processes and outcomes.

Published: 21 Sep 2015