Publications / Employment
In our focus of 7 May, we discussed the introduction of the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Bill 2015 (Bill) into the Queensland Parliament. The Bill was passed last night. As flagged in that article, the Treasurer and Minister for Employment and Industrial Relations made amendments to the Bill to repeal the provisions mandating contracts for all senior medical officers (SMOs) and restore their rights to collectively bargain.
The Bill (including all of the changes discussed in our article of 7 May) is likely to take effect next week.
What is happening to high-income guarantee contracts?
From the day that the amendments take effect, chapter 6A of the Industrial Relations Act 1999 (Qld) will be repealed. As a consequence:
- all high-income guarantee contracts (HIGCs) (including SMO contracts) will no longer be known as HIGCs
- those former HIGCs will continue to have effect as common law contracts of employment termed ‘continuing contracts’
- those employees covered by such contracts will no longer be excluded from bringing claims that their dismissal was harsh, unjust or unreasonable, and
- those employees covered by such contracts will no longer be excluded from bargaining for a certified agreement.
The amendments to the Bill make it clear that the repeal of chapter 6A (and the change from a HIGC to a continuing contract) does not constitute a termination of employment for those employees on HIGCs or entitle them to a payment of money or other compensation.
How do the changes affect SMOs?
The amendments contain a range of provisions aimed at SMO contracts. In particular, they foreshadow the eventual move of SMOs from HIGCs to new collective arrangements (a certified agreement (MOCA4), or arbitrated determination, underpinned by a modern award). The move to collective arrangements would then terminate the ‘continuing contracts’.
Prior to the new collective arrangements being finalised, the former HIGCs will continue to apply as continuing contracts. Existing industrial instruments (ie. MOCA3) will not apply to SMOs immediately upon commencement of the amendments.
Are SMOs reverting to MOCA3?
Although MOCA3 will not immediately apply to SMOs, the amendments build in an ability for either the Department of Health or a union party to MOCA3 to apply (from 1 August 2015) to the Queensland Industrial Relations Commission (QIRC) to re-enliven MOCA3 (other than its private practice provision) and the relevant underpinning awards. If such an application is made, the QIRC must make an order to re-enliven those instruments so that they apply to SMOs. MOCA3 (other than its private practice provision) and the relevant underpinning awards would then apply to SMOs and their continuing contracts (other than for private practice and employment details) would terminate.
If the QIRC re-enlivens MOCA3 and its underpinning awards for SMOs, they will apply to SMOs until MOCA4, or an arbitrated determination, commences applying to SMOs.
Modern award for SMOs?
As outlined in our earlier article on the Bill, the amendments require the Commission to ‘wash’ awards that have already been modernised by the QIRC, including the Resident Medical Officers’ (Queensland Health) Award – State 2014, to incorporate material which was previously not allowable.
The amendments to the Bill made last night additionally require the QIRC to treat the pre-modern SMO Awards (the District Health Services – Senior Medical Officers and Residential Medical Officers’ Award – State 2012 and the Medical Superintendents with Right of Private Practice and Medical Officers with Right of Private Practice – Queensland Public Hospitals, Award – State 2012) as relevant awards for the purposes of the washing exercise. The Explanatory Notes to the Bill make it clear that the intention of this is that the QIRC will make one modern award for resident medical officers and SMOs.
Once the modern award has been appropriately washed, MOCA4 can then be finalised.
Along with the reinstatement of the ability to bargain and challenge dismissals for being harsh, unjust or unreasonable, from the date that the Bill commences operating, SMOs will again be able to bring industrial disputes to the QIRC or challenge administrative decisions about their employment in a judicial review application.
The relationship between health employment directives (HEDs) and industrial instruments will be altered to provide that an HED cannot override an industrial instrument unless the terms and conditions in the HED are more favourable to the employee than those in the industrial instrument.
These changes will represent a significant shift in the management of SMOs in Queensland.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.