Staff Specialist (State) Award, Re [2007] NSWIRComm 191

Staff Specialist (State) Award, Re [2007] NSWIRComm 191 - NSWIRComm 2007 case summary — Zoe

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BACKGROUND 2 In Re Staff Specialists (State) Award (2006) 152 IR 405, a decision given on 24 April 2006, the Full Bench made a new award. In doing so, the Full Bench increased salaries by 14 per cent for all staff specialists, including Emergency Physicians. In that respect the Full Bench stated: We consider this amount of increase properly reflects the increase in the value of work of staff specialists that has accrued since 1991 and takes into account the impact of shortages both in a work value and special case sense as we have discussed. The increase will take effect on and from the date of this decision, although we note that there is agreement between the parties that any increase we award will be back-dated, by administrative action, to 1 July 2005. 3 There were a number of other matters included in the new Award that had been agreed by the parties. The Full Bench summarised these changes at [236]: · A new Normal Duties provision (cl 4) with consequential amendments which introduces more flexible working hours arrangements with appropriate safeguards) for staff specialists and new shift arrangements for emergency physicians; · New provisions relating to the application of managerial allowances (cl 11) but not the amount of allowance; · A new provision relating to Performance Agreements (cl 12) whereby each staff specialist will have a written performance agreement developed jointly by the staff specialist and his or her supervisor; · New part time employment arrangements (cl 13); · A new provision relating to Work Location (cl 14) whereby, subject to certain conditions, a staff specialist may be required to work at any of the hospitals, institutions or other health services conducted by the relevant Public Health Organisation; · A new provision relating to outside practice and other business activities (cl 15); · Additional annual leave for staff specialists required to work a certain minimum number of Sundays during a qualifying period of employment for annual leave (cl 17); · New long service leave entitlements consistent with the public sector standard (cl 18); · New Family and Community Services Leave, Personal/Carer's Leave and Maternity, Adoption and Parental Leave provisions (cll 20, 21 and 22); · A new clause dealing with office, secretarial and administrative support (cl 24); · A new clause dealing with Specialist Medical Administrators (cl 25); · Leave reserved in respect of Workforce Shortage Positions; Medical Indemnity Insurance and Principal Staff Specialist (cl 29); · A new no extra claims provision (cl 30). 4 In relation to the Normal Duties provision of the Award, it is relevant to note the changes that were agreed by the parties. The old clause was in the following terms: Normal Duties means clinical or other duties and responsibilities undertaken by the Staff Specialist: (i) which fall between the hours of 8:00 am and 6:00 pm Monday to Friday; or,

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With the introduction into the Award of the new shift provisions, loaded time in lieu arrangements ceased. However, ASMOF stated that its consent to the new Award provisions was never intended to imply an agreement on its part that staff specialists on 4-day week arrangements (including Emergency Physicians, anaesthetists, radiologists and others) would be required to move to a 5-day week. In this regard, ASMOF contended that the old Award allowed for these arrangements by agreement , as did the new Award. Further, that DOH had the ability under the old Award to withdraw its agreement to any working hours arrangement and that it retained that ability under the new Award. The issue, it said, was not whether a 5-day week was permitted under the Award but whether it was a sensible industrial relations practice. 12 ASMOF said that it had indicated during the negotiations with the HAC that it would resist strongly any attempt by DOH to change the 4 x 10-hour shift working arrangement (made up of 3 x 10-hour clinical shifts and 1 x 10-hour non-clinical shift per week) for Emergency Physicians. 13 In the face of ASMOF's resistance to the suggestion that Emergency Physicians could or should be rostered to work five days per week, DOH did not proceed to implement (by way of a Determination under s 116A of the Health Services Act 1997) the 25 per cent Special Service Allowance. 14 The Commission chaired several conferences over the latter half of 2006. On 18 December, the parties recorded on transcript an interim agreement that involved, inter alia, DOH accepting that Emergency Physicians could maintain the status quo of working only 4 x10 hours shifts per week (with only three of those shifts being clinical), at least until 30 June 2008 and that in the interim, if the parties were unable to settle the issues in dispute via ongoing negotiation, the Commission would be asked to make a binding recommendation on them as to the conditions for Emergency Physician entitlement to receive the said Special Service Allowance.

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23 The rationale for DOH taking the position it did was explained by Mr Anthony Farley, Assistant Director Employee Relations, in his witness statement tendered in the proceedings: PHOs [Public Health Organisations] sought new provisions that would allow them to roster emergency physicians in a way that would ensure that clinical shifts, in particular, would be allocated on the basis of clinical need without the limitation of loaded time in lieu arrangements, which resulted in the hours a full-time emergency physician worked being less than 40 hours per week. They also wanted to be able to roster with an appropriate balance of senior and junior doctors to ensure an appropriate standard of clinical coverage over 24 hours on each of the seven days of a week. The emergency physicians, through ASMOF, had expressed their own concerns about their working arrangements, and in particular, about their inability to move from Level 1 under the private practice remuneration arrangements due to their limited scope to treat private patients in hospital emergency departments. They sought Level 4 remuneration, which was the equivalent of a 25% allowance on top of the Level 1 staff specialist grade. As a way of addressing both the concerns of the PHOs and the emergency physicians, the Department negotiated a new consent Award Normal Duties provision specifically relating to emergency physicians, that allowed for the rostering of normal duties on any five days out of seven from 7am to 12 midnight. As the majority of emergency physicians were working four days per week, the introduction of 5 days per week into the Award as the standard rostering arrangement, meant that PHOs estimated they would receive an additional 43 extra shifts per year per fulltime physician (52 - (5 weeks annual leave) - (4 weeks TESL [Training Education and Study Leave]) = 43). Penalty rate entitlements were introduced for normal duties rostered between 6.00pm and 12 midnight Monday to Friday and from 7am - 12 midnight on Saturdays and Sundays and public holidays. Additionally, an extra week's annual leave could also be accumulated for working a certain number of Sundays. These new Award consent provisions neither restrict the amount of clinical time that can be rostered, nor limit the frequency of rostered evening, weekend or public holiday shifts. PHOs strongly supported these arrangements and indicated that they would provide a significantly higher level of clinical coverage to both major teaching and district hospitals at times and places of greatest clinical need. PHOs believed the Award changes both removed the barriers restricting workforce allocation and established a clear basis for rostering on any seven days of the week. Given the new consent changes would enable PHOs to roster Emergency Physicians on 5 of every 7 days each week, which in turn would greatly increase the number of clinical shifts available to PHOs (the estimated 43 extra shifts per year per fulltime physician), the Department made an offer to pay a special service allowance of 25% to emergency physicians who made themselves available to work 15 of the extra 43 shifts at additional locations (beyond the scope of those required under the standard Work Location provisions of the Award. The 15 shifts (per year), ten of which could involve an overnight stay, would be performed during the course of their rostered 40-hour normal duties, not in addition thereto. The Department and PHOs understood that the transition to the new award provisions applying to emergency physicians would mean considerable changes in their current work practices and that notice of roster change provisions were therefore necessary for both this group of specialists and specialists more generally. Accordingly, the Normal Duties clause of the Award contains specific provisions regarding general changes to Normal Duties rosters (Clause 4 Part B) and transition arrangements for staff specialists employed at the time of the making of the Award (Clause 4 Part C). PHOs indicated to the Department that they believed that a uniform approach to implementing the new Award in regard to the new rostering arrangements of emergency physicians was the preferred approach. The Department liaised with PHOs to develop rostering guidelines for implementation and provided those guidelines to ASMOF prior to issuing them. The guidelines recommended rostering emergency physicians to work four clinical 9 hour shifts per week and 1 eight hour non clinical shift per fortnight (or as an alternative to the non clinical shift, for Department Heads to determine when and at what times emergency physicians would work on non clinical activities). They also specifically allowed for particular arrangements to be negotiated in rural areas, and for the clinical shift load to be reduced for Department Heads and for those emergency physicians with particular responsibilities for training. PHOs consider the new rostering guidelines provide the time sought by emergency physicians for non clinical activities, allow emergency physicians to work a nine-day fortnight, while continuing to confine their rostered normal duties to 40 hours.

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25 ASMOF insisted that the 4 x 10 hour arrangement be maintained with three clinical shifts and one non-clinical shift and that the payment of the Special Service Allowance should not be conditional on Emergency Physicians working a 5-day week. The Federation accepted, however, that if the Special Service Allowance was to be payable there should be a requirement for the Emergency Physician to make him/herself available to provide Special Service, for up to 15 shifts per year (or more by agreement with the relevant Emergency Physician), and shall provide such Special Service as and when determined by the employer during the ensuing 12 months' period subject to certain staffing requirements being met at the host location. 'Special Service' was defined by ASMOF to mean: Provision of clinical support activities to a network of Emergency Departments, including but not limited to clinical redesign projects, quality and safety activities, continuing medical education for non-specialist medical staff and registrar training. The networks will include location(s) falling outside the scope of the Work Location provision of the Award. 26 The significance of the above definition is that rather than Emergency Physicians providing direct clinical care at locations other than their principal work location, they would provide "clinical support activities", although it was conceded this did not rule out involvement in direct patient care where appropriate. 27 It is also important to note that under ASMOF's proposal the Special Services Determination would be implemented immediately. However, the requirement to provide services at sites outside the work location clause of the Award would not arise until certain staffing levels according to a sliding scale, based on Australian Medical Workforce Advisory Council ('AMWAC') staffing recommendations of 11-16 full time equivalent ('FTE') for a major referral hospital and 6-8 FTE for a district/regional hospital, had been achieved so that the off-site responsibilities of Emergency Physicians would increase as staffing levels increased. The point being that hospitals would have to meet the minimum AMWAC staffing levels before off-site services would be provided by Emergency Physicians. 28 The basis of ASMOF's opposition to the DOH proposal was perhaps best summed up in the witness statement of Dr John Sammut, who is an Emergency Physician at Liverpool Hospital and Director of the Intensive Care Unit at Canterbury Hospital. I believe that the continuation of the 4 x 10-hour shift arrangement with 25% non-clinical time is fundamentally important to the survival of emergency medicine as a specialty in NSW. It is one of the key elements of the job that help make it attractive to aspiring junior staff. Emergency Medicine is far from one of the highest paid specialties, but it is the opportunity to practice a suitable work - life balance, in no small part attributable to the 4 shift arrangements, that makes the specialty attractive and competitive. A return to a 5 day week, in my opinion, would be a major deterrent to retention and recruitment of senior staff. I truly believe given the intensity and rostering of the work in and out of hours, without the counterbalance of a 4 shift week the specialty will continue to decline in NSW. Other states have seen the wisdom of the 4 shift arrangement as meeting the needs of the department as well as the individual and the removal of the arrangement in my opinion would further alienate NSW as a place to work. 29 According to Dr Sammut's evidence, the local arrangements that have been put in place such as those at Liverpool Hospital involving 4 x 10 hour shifts, have worked well. Dr Sammut described this arrangement thus: The arrangements at the Liverpool Hospital Emergency Department were arguably typical of the "loaded time in lieu" system. The Director Dr Sue Ieraci, Dr McCarthy and myself met with the General Manager at Liverpool Dr Colin McArthur in late 1994 and we agreed to work a 4 shift roster per week that comprised 3 days, (one of which was for clinical support) and 1 evening. We also agreed to one weekend shift every 3 weeks and when we did, still maintained 4 shifts for that week. (That is, we substituted a weekday day shift for a weekend shift). Hours were specifically not talked about at the General Manager's insistence because the Award at the time did not have an hours provision. Since the late 1990s, fulltime staff have worked one weekend shift every 5 weeks (with the same pattern of substituting one weekday shift for that weekend shift)… This arrangement has been mutually beneficial: the organization has enjoyed senior clinician cover, rostered on site, involved in direct patient care, out of normal hours - a unique arrangement for staff specialists at the time of commencement of this arrangement without the payment of shift penalties. We, as Senior staff benefited by knowing extended hours, direct patient care was being provided by the most senior level of medical staff, our registrars were being supported in their work and the work intensity was made manageable given the fact we were able to perform this work over 4 days. … By agreement between ASMOF and NSW Health, the loaded time in lieu arrangements have now been replaced by a shift work provision in the award that provides penalty rates for evening and weekend work. EVIDENCE Australian Salaried Medical Officers' Federation

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Dr Sally McCarthy 30 Dr McCarthy is the Director of Emergency at Prince of Wales Hospital. Her evidence described the state of the emergency medicine workforce in New South Wales and Australia. Dr McCarthy referred to the reduction in medical school intakes in the 1980s and 1990s, which she said at least partially explained the current shortages in many parts of the specialist workforce, including emergency medicine. She said that given that it takes at least seven years of postgraduate training before a graduate doctor becomes an Emergency Medicine Specialist, it could be safely predicted that the increase in the number of graduates will not impact on the specialist workforce until at least 2015. Therefore, New South Wales, as well as other States and Territories, could expect to be competing for a workforce in short supply for at least another eight years. Dr McCarthy maintained that the dramatic increase in medical students would not flow through to the specialist workforce until several years after 2015. 31 Dr McCarthy referred to reports by AMWAC and the Australian Health Workforce Advisory Committee (AHWAC) on the emergency medicine workforce. She noted that these bodies had concluded that the specialist emergency medicine workforce was undersupplied and that the number of trainees needed to be increased. Further, that recommendations for increased numbers of trainees had not been met, despite the training program being unrestricted. In recent years, Dr McCarthy contended New South Wales' share of new fellows in emergency medicine had not reflected its share of the national population, whereas Victoria has more than its share. In this respect, Dr McCarthy said: NSW had 24% of the new fellows over the 3 years 2001 to 2003, compared with a 33.6% share of the national population. Over the same 3 year period, Victoria had 34.1% of the new fellows but has only 24.74% of the national population. 32 Dr McCarthy made reference to the Medical Training Review Panel (MTRP), a body established by the federal Government, which had also published detailed information on the emergency medicine workforce. The most recent MTRP Annual Report (2006) noted that there had been a 19.3 per cent decrease in the number of emergency medicine trainees at a time when there has been a 15 per cent increase in medical training positions generally. In 2005 only 22 per cent of new fellows in emergency medicine were in New South Wales, compared to 32.8 per cent in Victoria. Only 28.6 per cent of emergency medicine advanced trainees were employed in New South Wales, compared to 33.5 per cent in Victoria. Dr McCarthy said this could be compared to medical training generally, where 33.8 per cent of training occurred in New South Wales, compared to 27.3 per cent in Victoria. 33 Dr McCarthy noted that the Medical Training and Education Council of New South Wales (MTEC) produced a needs analysis of emergency medicine training in May 2005. The analysis contained the following information: · Of the 204 funded emergency medicine training positions in accredited NSW emergency departments, only 53.1% are filled by Australian residents registered with ACEM, and 17.2% are filled by non-Australian residents registered with ACEM. The remaining 29.7% of positions are partially filled by Australian and overseas doctors not registered as trainees, i.e. the positions are either vacant, or filled by non-trainees or filled by locums. · These figures are generally consistent with the findings of an ASMOF survey of emergency departments in October 2006 which concluded that on average, 40-45% of training positions are filled by local graduates; 30% are filled by overseas trainees; the remaining 25-30% at any given time are either vacant or filled by casual staff. · As at 31 March 2005 there were 169.8 FTE funded positions for emergency physicians, of which 84.6% were filled, i.e. a vacancy rate of 15.4%. · Most departments accredited for emergency medicine training in NSW did not meet AMWAC staffing recommendations, i.e. a minimum of 11 (up to 16) FTEs for major referral emergency departments. The 10 such departments (excluding paediatric hospitals) in NSW functioned with 73% of the minimum and 50% of the maximum recommended levels. · In the 18 accredited urban district/regional hospitals, 4 were funded to meet minimum AMWAC recommendations, but only 1 had the funded positions filled. · No major referral hospital met the minimum AMWAC staffing recommendations and only Tweed Heads met the minimum recommendation for regional hospitals. · The system for advanced training has an "inclusive entrance policy", in contrast to some training programs where there is competition for advanced training places in the form of entry examinations, e.g. the Royal College of Physicians. · The shortfall of emergency trainees and specialists has necessitated the employment of many OTDs with a high proportion working within the emergency departments. Like the use of locums, there is a concern about the maintenance of skill level of these OTDs, the nature of their supervision and the sustainability of using both locums and OTDs into the future to provide quality care in emergency departments. · NSW has approximately 34% of the national population yet only has approximately 30% of the pool of available emergency physicians. This means that the specialist to population ratio in NSW of 1:46,423 is below the national average of 1:40,404. 34 Enlarging on the reference to the increasing use of overseas trained doctors (OTDs) and locum medical officers, Dr McCarthy said the burden of the additional supervision associated with the use of OTDs largely falls on Emergency Physicians. She noted there have been numerous publications expressing concern about the lack of an adequate assessment process for these doctors and the lack of a national coordinated approach. In relation to locums Dr McCarthy stated: In October 2005 the Director-General of Health released a draft discussion paper on the use of locum medical officers produced by the Greater Metropolitan Clinical Taskforce (GMCT) at the request of the Minister for Health... The paper expressed significant concerns about the cost, quality and safety, legal and sustainability issues associated with the increasing use of locums… and made a number of detailed recommendations. Although it is not included in the paper, I am aware from my involvement in discussions about these issues that GMCT conservatively estimated that the use of locums was costing the NSW Health System more than $30 million per annum over and above what it would cost to employer permanent staff, with an additional $5 million per annum going to locum agencies. This detail was apparently removed from the draft paper before it was officially released. 35 In summarising what she considered to be the clear indications from available data, Dr McCarthy stated: · Shortages in the specialist medical workforce supply generally will not be affected by increased medical student places until at least 2015, and probably not for several years after 2015. Therefore, we can reasonably anticipate that the areas of the specialist medical workforce that are currently in short supply, including emergency medicine, will remain that way for the next decade. · The burden of supervising and teaching the increasingly large cohort of junior staff and overseas trained doctors will fall to a large extent on emergency physicians. · AMWAC recommendations about the number of emergency medicine trainees have not been achieved. · Contrary to the general trend of increased trainee numbers, there has been a dramatic drop in the number of emergency medicine trainees, from 602 in 1997 to 486 in 2006, the biggest fall of any specialty. · NSW is consistently below Victoria in both the number of emergency medicine trainees and the number of new fellows, despite Victoria having only 75% of the population. This is inconsistent with medical specialist training numbers generally, which tend to reflect population levels. · The situation is in fact much worse than these figures suggest. Of those registered as training in NSW in emergency medicine, 20% - 30% are overseas doctors who are likely to return to their country of origin. Another 25% - 30% of available training positions are vacant, with the hospital positions being either vacant or filled by locum/casual doctors. · The vacancy rate in the funded specialist workforce is approximately 15%. Using the minimum AMWAC recommendations as a basis, the vacancy rate is 27%. · NSW is below the national average emergency specialist to population ratio. · There is a heavy reliance on the use of locums and overseas trained doctors to fill vacancies in the emergency medicine workforce. There continue to be significant doubts about the adequacy of the screening of OTDs.

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(4) Revitalise the commitment and engagement of the public hospital workforce, especially clinicians. 43 In relation to the implications of the research findings for wages policy, Dr Buchanan stated: · The reality of locum arrangements shows NSW Health has considerable capacity to pay two to three times the current award rate to doctors providing specialist ED services, plus 10 - 15% on top of that to locum agencies for a placement fee. · This reality was creating significant resentment amongst the core ED workforce who generally did not have as much flexibility in hours of work or as low levels of responsibility as that enjoyed by locum. This in turn was creating incentives for more ED doctors shifting to locum work arrangements or only being prepared to work on this basis. · the core ED workforce, including ED medical specialists are prepared to consider a wide range of issues to improve the performance of NSW Health's EDs. While issues of cost and pay associated with locums were mentioned as a key issue throughout our research, considerable attention was devoted to identifying structural reforms that would overcome the deep seated labour market problems afflicting, primarily, EDs. · The growth of locum employment is an example of a quite unregulated form of such bargaining, primarily involving individual negotiations with doctors (being assisted by locum agencies as defacto bargaining agents) and hospitals engaging in bidding wars to get scarce labour. These arrangements have increased earnings for the doctors involved but done nothing to address the forces generating the underlying problem. Indeed, we identified in our research that a perverse dynamic has now emerged where the growth of locum employment is now feeding further growth of this form of employment. It is part of the problem - not part of the solution. From the research we were involved it is clear that only outside intervention can break this dynamic, the parties involved were in locked into a trajectory of labour market development that could only be described as unstable and unsustainable if one is concerned about the quality of ED services. 44 In May 2007, Dr Buchanan, in conjunction with Sarah Wise, conducted a 'Survey of NSW Emergency Physicians and Registrars'. Dr Buchanan summarised the key features and findings of this survey as follows: An on-line survey of Fellows and Registrars of the Australian College of Emergency Medicine (ACEM) was undertaken between 11 and 16 May 2007. The response rates were: FACEMs - 62 percent (out of a possible 226), ACEM-registered Registrars - 34 percent (out of a possible 368). The survey found that if the Department of Health's proposal is adopted:

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Dr Rod Bishop 50 Dr Bishop is Director of Emergency Medicine at Nepean Hospital. He was the co-chair of the New South Wales Department of Health Emergency Care Taskforce (2005-2006). Dr Bishop described the initiatives developed and implemented by Emergency Physicians to improve the performance of EDs and the quality of care delivered by those Departments. 51 Reference was made to the NSW Department of Health Annual Report 2005/06, which described various initiatives and improvements in performance. The Annual Report also noted that in the nine months to March 2006, ED attendance increased by 97,457 patients, an increase of 8.5 per cent compared to the same period in the previous year. Dr Bishop also referred to a selection of press releases from the office of the Minister for Health. He said that the picture painted by these press releases was one of steadily improving performance culminating in the February 2007 announcement of the achievement of national benchmarks across all five triage categories for the first time. This improvement in performance, he said, had taken place at the same time as ED attendances have increased dramatically, with all reported figures being between 5.9 and 11.6 per cent per annum. Dr Bishop opined: The Premier and the Minister give credit for this improved performance to the doctors and nurses working in emergency Departments. These improvements would not have been possible without the leadership, dedication and hard work of Emergency Physicians across the state. 52 Dr Bishop also referred to AHWAC and Emergency Care Taskforce reports to summarise and describe the initiatives that have been implemented in New South Wales EDs that have contributed to the improved performance outlined above. The AHWAC report cited six workforce principles that should be used to guide business process redesign in EDs, including the need to "make best use of the capacity and expertise of staff in allocating tasks and roles and recognise experience, knowledge, skills, competencies and qualifications." Dr Bishop highlighted what he considered was the failure of NSW Health to take account of the AHWAC principles in favour of using clinicians as "gap-fillers". He said: NSW Health appears to regard emergency physicians as merely clinical service "gap-fillers" who should be spread across the system as much as possible to plug gaps in the rosters. A similar approach is apparent at the trainee specialist level where NSW Health's only response to the severe vacancy level is to fill the gaps with as many Overseas Trained Doctors (OTDs) and locums as possible. This disastrously simplistic approach takes no account of the quality of the doctors who are being used to plug the gaps at the trainee level. At the specialist level, it gives absolutely no consideration to how the skills of the very limited specialist workforce can best be used to improve service delivery in NSW emergency departments. 53 Dr Bishop described new models of care developed and implemented by Emergency Physicians including Triage and Treat; Fast Track Zones; Process; Short Stay Units; Integrated Care Models; Alternatives to ED models and other initiatives. Dr Bishop stated: Emergency Physicians have been at the forefront of this multitude of innovations and service improvements, and continue to be so. Were it not for emergency physicians participating in clinical re-design projects, bed management committees, ambulance and community liaison committees, work-practice reviews, clinical practice guidelines development and many other processes, in addition to their direct clinical work , the acute care system would not have adapted to the extreme service pressure. These improvements have been made possible with the contribution of emergency physicians at every level - from direct patient care, administration, management, policy and planning initiatives through to national and international research and participation in committees and working groups at all levels of decision-making. Emergency physicians have cooperated with NSW Health to a degree unprecedented amongst other specialties, and facilitated a revolution of care in their specialty. Many, perhaps most, of the initiatives have been suggested and developed by emergency physicians. The Department of Health has failed to recognize this contribution and is instead seeking to restrict the work of Emergency Physicians to direct patient care, ignoring their crucial role in service development and system innovation. The vast number of initiatives and the dramatic service improvement described above could not have happened without the commitment of emergency physicians dedicated to both direct patient care and service improvement, and committing time and skill to system improvement in addition to direct patient care. The commitment of time to these system improvements has only been possible because of the productive use of the dedicated 25% clinical support time available under the current working arrangements. Dr John Sammut 54 I have already referred to part of the evidence of Dr Sammut. In addition, he addressed the non-clinical time issue. In this respect, Dr Sammut referred to correspondence with the College of Emergency Medicine regarding its requirement for 25 per cent non-clinical time for accreditation purposes. The correspondence indicates that a reduction in the 25 per cent non-clinical time would result in loss of accreditation for training for New South Wales EDs. Dr Sammut said: The immediate result of this would be the loss of the Emergency Medicine Registrar workforce from NSW. The consequences of such a loss are almost unimaginable. The non-clinical time issue is therefore very straightforward - it is necessary to retain registrars in NSW. However, this over-riding concern should not obscure the fact that the non-clinical day is used to undertake key aspects of the role of the emergency physicians. These include the ever-increasing demands from the NSW Health bureaucrats for involvement in clinical redesign projects, policy formulation, critical incident management and other so-called non-clinical duties. I do not object to the requirement to be involved in these duties, in fact I see them as an important part of my job. However, I do strongly object to one part of NSW Health insisting on my involvement in these activities at the same time as another part of NSW Health insists that they should take no more than 10% of my time.

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62 Under the heading 'Relationship between the Special Services Agreement and the Recruitment Strategy', Dr Sammut said there needed to be a linkage between the special services to be provided and the strategy to increase the number of Emergency Physicians. The details of the linkage were described earlier in this Recommendation. 63 In a second statement Dr Sammut commented on the deteriorating staffing situation at Liverpool Hospital. He said the Emergency Physicians until February 2007 enjoyed a special deal that involved the provision of Level 4 remuneration. This was successful in attracting and retaining Emergency Physicians to the extent that the FTE improved from 4.4 FTE to 12.8 FTE across the Liverpool/Campbelltown network. This enabled the provision of 2.2 FTE cover at Campbelltown Hospital. Since the removal of this allowance, there have been seven resignations (4.3 FTE) from Liverpool/Campbelltown, with a significant impact on the coverage that can be provided across both Liverpool and Campbelltown. Only 1.0 FTE is currently available to cover Campbelltown. Not included in any of these figures is a 0.5 FTE VMO who worked at Campbelltown, who has also now left. An advertisement in March 2007 for staff specialists attracted no applicants. Re-advertising is taking place now, with no applicants to date. Dr Sammut stated: It is fair to say that are a number of reasons for these resignations but there is no doubt in my mind that the removal of the allowance has played a significant part. I am aware that some of the individuals concerned are looking to reduce the emergency medicine component of their work. Others have expressed an interest in looking at inter-State positions given the more favourable conditions on offer. There is also no doubt in my mind that the current climate of perceived antipathy towards emergency physicians, in particular the uncertainty about future rostering arrangements, has dramatically affected morale at Liverpool which in turn has contributed to the high number of resignations. Of course, resignations tend to have a domino effect in that as people leave the environment becomes more pressured and therefore more people leave.

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Dr Tony Joseph 64 Dr Joseph is the Chair of the New South Wales Faculty of the Australasian College of Emergency Medicine (ACEM) and also the Chair of the ACEM Standards Committee. He is also employed as an Emergency Physician at Royal North Shore Hospital. Dr Joseph described the structure and purpose of ACEM, policies relating to specialist staffing, requirements for training accreditation and ED role delineation. 65 In relation to clinical and non-clinical roles, Dr Joseph stated that a maximum of 70 per cent of working hours should be spent on direct patient care. Clinical support (or "non-clinical") time is required to support the Department with adequate supervision and teaching of juniors, liaison with other services and practitioners, liaison with professional bodies, policy and planning work, coordination of patient flow, quality activities, research, administrative functions such as recruitment, rostering and junior staff appraisals. 66 On requirements for training accreditation, Dr Joseph said the ACEM policy Guidelines set out a minimum extent of specialist supervision for different levels of training hospitals. This ranges from a minimum of 8 FTE Emergency Physicians, each allocated at least 25 per cent non-clinical time, for full (24 months) accreditation to a minimum of 2.5 FTE emergency medicine specialists, each with at least 25 per cent non-clinical time, for limited (6 months) accreditation. EDs with less than 2.5 FTE Emergency Physicians are unable to provide sufficient supervision and trainees to provide accredited training. Any training networks created to distribute trainees can only include EDs accredited for training by ACEM. 67 Dr Joseph noted that according to the 2006 ACEM annual report, whilst Victoria has only 75 per cent the population of New South Wales, there were more Emergency Physicians employed in Victoria (227) than in New South Wales (208). This same document, he said, showed that, in proportion to population, Victoria, Queensland, South Australia and Western Australia were better off for Emergency Physicians than New South Wales.

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Positive Impact of PHO Preferred Approach - rostering would be based on demand and the major gaps in coverage on evenings and weekends would cease. (iii) Current Restriction - Although practices vary, generally Department Heads reduce specialist coverage on public holidays in one of two ways. The first is by changing the roster so that emergency physicians are rostered on that day but not actually required to work. The second is that the roster remains unchanged in respect to the public holiday, however those not rostered to work on the public holiday will have one of their other normal shifts for that week removed from the roster to compensate them for not being rostered on the public holiday. This means they would only have to work three shifts (30 hours) but would still entitled to be paid for forty hours in that week. PHO Preferred Approach - Presentations in emergency departments do not significantly vary on public holidays, and specialist coverage should be either maintained or increased on such days. The seven-day week arrangements negotiated as part of the new award clearly prescribe enhanced arrangements for working public holidays (double time and a half). Therefore reducing the working week by one day for those who are not rostered on public holidays, and also reducing coverage for the public holidays themselves is not considered appropriate for a Monday to Sunday salaried employee. Positive Impact of PHO Preferred Approach - Improved specialist cover for public holidays. (iv) Current Restriction - Presently the majority of Emergency Physicians are generally only required to work at one location, primarily because the current restriction on their normal duties (only three clinical shifts per week and limitations on evening and weekend work) makes it difficult to cover any facility other than the one in which they currently work. Some emergency physicians do make themselves available to work at other facilities on the fifth day of each week but only for additional remuneration (usually VMO rates). PHO Preferred Approach - The new work location clause agreed to by the parties in the new Award could be used to increase coverage at smaller facilities by networking a larger facility to a smaller facility. Emergency physicians working routinely at two locations will provide better and more equitable specialist clinical coverage at different facilities within PHOs.

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· rostered for normal duties on five days of the week Monday to Sunday; and · make themselves available to work 15 shifts in addition to their normal duties shifts at a location or locations falling outside the scope of the Work Locations provision of the Award, as determined by the employer, 10 of which that may involve an overnight stay/s either before or after the shift/s. As with those who do not elect to undertake special service, normal duties will be rostered on the basis of clinical need, with no restriction on rostering evenings, weekends or public holidays (although due consideration will be given to particular personal circumstances). 71 Mr Mead took exception to Mr Farley regarding the work practices of Emergency Physicians as "restrictive". He said, for example: To describe the number of evening and weekend shifts worked by emergency physicians as a restrictive practice is a misunderstanding of the situation and is a good illustration of the fundamental differences between the parties. Emergency physicians have, at their own initiative and unlike any other group of consultants, rostered themselves across 16 hours a day, seven days a week. This was not a Department of Health or even a local hospital management initiative. In the face of severe shortages of non-specialist doctors and in response to patient need, emergency physicians have made themselves available over and above the times that consultant doctors have been expected to be on duty. That this initiative has now been labeled "restrictive" is to a large extent responsible for the souring of the relationship between the Department of Health and the emergency physician workforce. Furthermore, I am consistently advised by emergency physicians that this does not reflect the attitude of the local hospital management, who recognize the value of the after hours services provided. … Rather than "a growing number of restrictions", what in fact has occurred over the last 10 to 15 years is a significant increase in the after hours on duty commitments of emergency physicians. There would be a similarly angry response from any other part of the health workforce who voluntarily took on 16 hour, 7 day a week coverage and were then told by NSW Health that their work practices were restrictive. 72 Mr Farley addressed what he considered to be "major flow on implications to other specialities" if payment of a 25 per cent allowance was not accompanied by an increase in the amount of clinical work performed, and hence the number of shifts available for PHOs to roster at times and places of clinical need. Mr Farley stated: Approximately 56% of all staff specialists, including the 157.5 FTE emergency physicians, in the NSW public health system are employed on Level 1 private practice arrangements. The Level 1 arrangements involve staff specialists assigning any private practice earnings to the PHO and receiving a 20% allowance and guaranteed TESL funding of $26,796 from PHO budgets. In contrast Levels 2 and 3 receive reduced allowances but increased earning capacity through drawing rights and no guaranteed TESL funding where private practice revenue is not sufficient. Levels 4 and 5 staff specialists receive no allowance and no guaranteed TESL funding, but do receive an even greater earning capacity through private practice earnings. The financial implications of paying all Level 1 staff specialists the 25% allowance ($56,000) would be enormous, as would guaranteeing the same payments to staff specialists on Levels 2 to 5. One implication of guaranteeing the 25% allowance regardless of the level chosen by the staff specialist for private practice earnings is that an incentive would be created for staff specialists to elect Level 1 arrangements only because there would be [sic] nexus between income and private practice earnings. Such an outcome would significantly diminish private practice revenue while increasing both salary payments and guaranteed TESL funding from PHO budgets… A significant number of Level 1 staff specialists work a five-day week. Therefore, it is expected that payment of an allowance to emergency physicians to work five days a week will result in immediate flow on claims from all other Level 1 staff specialists who work five days a week. 73 Mr Farley estimated the cost of all staff specialists receiving a 25 per cent Special Service Allowance in some form would be $119.47 million. He added that any costs associated with the Special Service Allowance would have to be borne by Area Health Service budgets and not the Treasury. Mr Farley said it would have been financially viable for PHOs to pay the special service to Emergency Physicians if agreement to the Award provision of five days per week was given (and therefore an extra 43 shifts per year per physician would be achieved) in comparison to paying for the same number of shifts with VMOs ($8.2M as opposed to $11.4M). 74 Mr Farley referred to ACEM's position that the Department's proposed rostering arrangements in respect to the time allocated to non-clinical activities would result in the College refusing to accredit Emergency Departments for the purposes of training new specialists (registrars) in the specialty of emergency medicine. Mr Farley observed that the College's guidelines appear to require a uniform allocation of 25 per cent non-clinical time for all employed Emergency Physicians and did not contemplate an arrangement where some Emergency Physicians might concentrate more of their time on clinical as opposed to non-clinical activities. He said the College guidelines appear not to have regard to the 25 days per year allocated to Emergency Physicians for training, education and study leave as contributing in any way to the 25 per cent requirement for non-clinical time. 75 Mr Farley noted the concern expressed by representatives of the Emergency Physicians that employer representatives had failed to listen, understand and respond to what the Emergency Physicians have been saying. In this respect, Mr Farley stated: We too have felt that our views have not been listened to, understood and responded to. We have felt that each compromise and attempt to find a way through what has been put by the Employer has been dismissed or taken for granted and that no matter how hard or flexibly we have tried to work through issues and reasonably accommodate the interests of both parties, we have been met with an inflexible and unchanging position. 76 In responding to parts of Mr Farley's evidence, Mr Mead considered that Mr Farley's concern at the potential for flow on was overstated. He said that many staff specialists chose to be on Level 1 for business reasons (at the beginning of their career) or superannuation reasons (at the end of their career). Other staff specialists on Level 1 such as psychiatrists do not see a sufficient number of private patients to enable a move to another level. However, Mr Mead said, they do have the choice of a private practice career, or electing to work in both the public and private systems. Mr Mead also stated that allowances paid specifically to Emergency Physicians in other States, notably South Australia and Queensland, have not flowed on to other specialties. 77 Mr Mead added that even accepting it was NSW Health's position that the Special Services Agreement was predicated on a 5-day week, they cannot have been as concerned about flow-on implications then as they now appear to be. Mr Mead said it was ASMOF's understanding that it was always the intent of the parties to "ring-fence" the agreement by means of the requirement to provide services beyond the scope of the work location clause of the Award.

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The entitlements specifically payable to emergency specialists in SA are greater than the package being offered to emergency physicians in NSW. However when combined with the more generous provisions that are available to all staff specialists in NSW, NSW emergency physicians ($336,284) would still be ahead of SA ($272,224). 80 Ms Blackett also undertook a review of ASMOF's proposed Special Service Agreement. Referring to ASMOF's proposed staffing level provisions that determine whether or not an Emergency Physician will be required to provide special service shifts, Ms Blackett concluded that based on current staffing levels at the 39 New South Wales Emergency Departments that currently employ Emergency Physicians, only four of the facilities would fall into the category where special service would need to be provided, despite all Emergency Physicians being eligible to be paid the allowance. Further, of these four facilities, only one would be required to provide the full 15 shifts. Mr Paul Gavel 81 Mr Gavel is the Director of Workforce Development, Sydney South West Area Health Service. The key focuses of his job are to provide strategic advice to the Chief Executive of Sydney South West Area Health Service on all matters concerning workforce planning, workforce development, human resources strategy, organisational change and workforce learning and development. 82 Mr Gavel was asked to determine the number of Emergency Physician shifts desirable to cover the nine Emergency Departments in Sydney South West Area Health Service (SSWAHS). The principles he followed in determining a possible desirable level of coverage were as follows: · Emergency physician coverage should be provided between 8am and 12am. · Coverage at Liverpool and Royal Prince Alfred should be the same and in these departments, weekday and weekend coverage should be the same. · As a minimum, coverage at Bankstown, Canterbury, Campbelltown, Concord and Fairfield should be the same. · A shift overlap should occur in the mid to late afternoon. 83 Mr Gavel assumed that the existing shift pattern worked by Emergency Physicians would be retained, namely, 4 x 10 hour shifts per week, one of which is non clinical. Mr Gavel concluded that: The total number of desirable shifts on a weekday is 19 and on a weekend the total number of desirable shifts is 13. Over a whole week this translates to a total of 121 clinical shifts across the nine emergency departments. A comparison has been undertaken between the desirable total of 121 clinical shifts per week with the number of shifts available under the current staffing level of 31.68 FTE to determine the additional number of shifts and staffing that would be required to implement the desired shift coverage. It is estimated that an additional 51.36 emergency physician clinical shifts would be required to achieve the desirable coverage. This is equivalent to 21.4 FTE emergency physicians. There are currently 12.8 FTE vacant established emergency physician positions in SSWAHS. Even if these were filled, an additional 8.6 FTE emergency physicians would be required to provide the optimal level of coverage. 84 Mr Gavel observed that the shortfall in shifts could be reduced by a combination of the following:

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· Recruitment, with the priority for SSWAHS being successful recruitment of current SSWAHS emergency medicine trainees as they complete their training · Changes to the way work is organised including rostering, shift duration, clinical and non clinical duties mix, and use of the work location provisions in the Staff Specialists' Award. 85 Dr Sammut made a number of comments/observations about Mr Gavel's statement: · I agree with Mr Gavel's comment that coverage needs to be from 8am to midnight and that there needs to be a shift overlap in the mid to late afternoon. This appears to contradict the NSW Health position that in order to receive the special allowance emergency physicians must work five eight-hour shifts. It is not possible to provide 16 hours of cover per day with overlapping shifts with 8 hour shifts. · Mr Gavel notes there are 12.8 FTE funded vacancies in Sydney South West. The total number of funded positions is 44.6 FTE and therefore the vacancy rate is 29%. The reported number of vacancies is inconsistent with Ms Hyland's statement which identifies fewer FTE vacancies than this in the entire State. · Mr Gavel's calculations, based on the retention of the existing shift pattern, conclude there would need to be an additional 21.4 FTE, i.e. a total of 53.08 FTE. However, there are a number of factors that Mr Gavel has not taken into account including that he makes no allowance for the provision of 7 day per week specialist cover of the Emergency Medicine Short Stay Units; his calculations do not include any provision for sick and other leave entitlements outside annual leave and TESL; no consideration is given to other staffing and most particularly, there is no consideration of registrar numbers and seniority; there is an assumption in the calculations that there will be no growth in patient presentations despite figures showing a 9.2% increase in raw presentations in one year. · He states that rostering patterns and shift overlaps would need to change but does not identify how overlapping shifts would be provided with 8 hour shifts. He does not draw any conclusion about whether the NSW Health proposals would supply the necessary number of shifts with the existing number of staff. On my calculations there would still not be sufficient FTE to provide the required cover, even using Mr Gavel's assumptions. · Mr Gavel identifies recruitment of current trainees as they complete their training as a key issue. However, I am not aware of a single activity that has occurred that suggests that the Area is making any attempt to recruit the registrars. They are not met with, contacted or approached in any way by the Area. I am aware from discussions with my colleagues who are Directors of emergency departments within the Area that they are having significant difficulty getting the Area to agree to offer appointments to registrars who have completed their training. Mr Stephen Christley 86 Mr Christley is the Chief Executive Officer of the Northern Sydney and Central Coast Area Health Service (NSCCAHS). Mr Christley noted that to pay all Emergency Physicians the 25 per cent Special Service Allowance would cost NSCCAHS $1.68M per annum. He stated: Emergency physicians would benefit from the payment of penalty rates and the 25% allowance, the quid pro quo for the public health system would be the increased coverage gained. The combined effect of rostering over five days per week and implementation of special service shifts would reduce the Area Health Services' reliance on locums to staff emergency departments and therefore would free up funds to support payment of the 25% special service allowance. Another potential benefit would be an ability to roster emergency physicians at times where there is currently no specialist coverage eg weekends. This will enhance the supervision provided to junior staff, thereby potentially reducing unnecessary treatment. However, the ASMOF proposal will in no way reduce the number of locums that need to be employed to maintain an appropriate level of clinical coverage. This means that the anticipated source of funding for the 25% allowance has effectively disappeared. Whatever the form of the 25% special service allowance it must be internally funded by NSCCAHS and other Area Health Services. No additional funds have been, or will be, provided for this purpose. This means that in order to pay for this allowance under the ASMOF proposal, NSCCAHS would have to divert resources away from other services. 87 Mr Christley also said that under ASMOF's proposal as analysed by Ms Blackett, the majority of Emergency Physicians in NSCCAHS would receive 25 per cent additional remuneration with no change to their current working arrangements. In the case of those Emergency Physicians at Gosford-Wyong who could be required to undertake special service shifts, these shifts would not constitute additional coverage. The Emergency Physicians would continue to work under their current rostering arrangement and the special service shifts would be part of those normal duties.

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91 Professor McGrath noted that the Models of Care have been developed and designed by emergency clinicians themselves through the Emergency Care Taskforce. Professor McGrath summarised the various Models, including: Triage and Treat, which applies to patients who present at an ED with very limited clinical care requirements and do not require an assessment by a medical officer; Fast Track Zones, which provide an alternative option for emergency care and provide access to timely care for those with minor injury or illness; Monitoring, whereby key time points of the complex high acuity patient journey are defined and used to manage patient flow; Short Stay Units, which are used to facilitate a short stay admission; and Integrated Care Models, which include Psychiatric Emergency Care Centres, Mental Health Liaison Nurses and Aged Care Services Emergency Teams. 92 Professor McGrath also described the alternatives available to ED care, including: Direct Referrals to specialty services (eg, dental, palliative care); Community Acute/Post Acute Care; Telephone Advice Lines; and, Co-located GP Clinics. 93 Professor McGrath referred to the role of Hospitalists whose primary focus is to enhance care for patients in a cross specialty mode throughout the patient's healthcare experience. They specialise in facilitating and co-ordinating the care and care systems for patients in the public health system. Hospitalists work in wards, ED, outpatient departments and community settings with the chronically ill and elderly, and other particularly complex groups. The role includes provision of patient care, as well as facilitation of the patient's care pathway or journey across a number of departments such as ED, wards and the community. 94 Dr McCarthy, in referring to the evidence of Professor McGrath, stated: · Customization and local implementation of the clinical redesign initiatives, without additional resources, has substantially increased the workload of emergency physicians in our department. · The proposed model of doctors who are not specialists goes against the commonly accepted philosophy that inpatients in public hospitals will have access to appropriate specialist medical care. There is little detail about who will train and supervise the hospitalists and the description of the training is very general and does not engender confidence that a clinically competent individual will be produced. The rationale for the support of a new non-specialist workforce as opposed to the further development of the existing emergency medicine workforce is not immediately clear. 95 Dr Bishop, as Co-Chair of the Emergency Care Taskforce, had a major role in drafting the Models of Emergency Care document referred to in Professor McGrath's statement. Dr Bishop said: Having put up CSRPs as a key part of her witness statement, Professor McGrath ignores the crucial investment, both in time and intellectual input, emergency physicians have made to their success. All these Models of Care require administrative work to establish them and make them function safely. Frequent mention is made of protocols to guide the care of the patient. It is emergency physicians who write these protocols, including researching the necessary information and liaising with all appropriate parties. No mention is made of the time that is required to write, review and update these protocols. Ms Deborah Hyland 96 Ms Hyland is Director, Workforce Development and Leadership with the New South Wales Department of Health. Ms Hyland explained that the purpose of the Workforce Development and Leadership Branch was to "plan, develop, facilitate, communicate and evaluate health workforce strategies across the New South Wales public health system, to improve the health outcomes for the people of NSW". Ms Hyland was requested to provide advice on the progress of implementation of the New South Wales Workforce Action Plan and the strategies implemented to address the health workforce issues. 97 Under the heading "NSW Medical Workforce", Ms Hyland provided the following relevant information: · As at December 2006 based on data there were 2,285 Full Time Equivalent (FTE) Staff Specialists (including clinical academics, medical/clinical superintendents) identified in the NSW public health system. · From June 2002 to December 2006, the number of FTE across all categories of salaried medical staff has increased by 16 % (from 5,882 to 6,826). · As at December 2006 there were 4,098 FTE junior medical officers (interns, residents, registrars) working in the public hospital system. This represents a 24.6 %increase since June 2002. · Based on latest available data the number of sessional Visiting Medical Officers (VMOs) has also increased by approximately 12 % from June 2002 to June 2005 (from 3,338 to 4,858). · The proportion of VMO FTE to Staff Specialists has remained constant from June 2002 (21.3%) to June 2005 (22.9%). · The Area of Need Program, administered by NSW Health is designed to recruit overseas trained doctors into hard to fill positions in NSW, particularly in rural and regional centres. · As at 13 April 2007, there were 195 specialist Area of Need positions. Of these 195 positions approximately 45.6 % were filled and approximately 54.3 % were unfilled. · As at April 2007 there were 106 unfilled AON specialist positions, which constitute a vacancy rate of 4.6% of the total specialist workforce. · Of these 195 specialist Area of Need positions a total of five positions were for Emergency Medicine Specialists. Of these, three positions or 60% were filled and two positions were vacant. · A total of 71 % of specialist Area of Need positions were located in regional and rural NSW and 28 % located in metropolitan NSW. 98 Ms Hyland described the NSW State Health Plan, released in March 2007 and the NSW Government Workforce Action Plan: Securing Our Health Workforce, released in March 2005. Also described were initiatives flowing from the meeting of the Council of Australian Governments in July 2006. 99 Ms Hyland said that following negotiations between New South Wales and the Commonwealth on requirements for additional university places to support the future health workforce, three new medical schools were successful in bidding for publicly funded medical student places in New South Wales. This agitation, she said, resulted in an additional 363 publicly funded medical student places in NSW expected to commence between 2007-2008:

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· The University of Western Sydney (UWS) medical school commenced in January 2007 with 95 Commonwealth supported and 8 (est) full-fee paying students. · The University of Wollongong also commenced in January 2007, with 72 Commonwealth-supported and 8 international full-fee paying students. · The University of New England (UNE) and University of Newcastle have established a joint rural medical school with 80 Commonwealth-supported places due to commence in 2008. · In addition, the University of Notre Dame is establishing a Sydney Campus with 100 students due to commence in 2008, of which 80 are Commonwealth funded. 100 Ms Hyland stated: The additional medical student places are an important initiative in addressing medical workforce shortages. However, due to the length of medical school training, the full impact of newly graduating doctors will not be felt for many years with the five-year medical course at the University of Western Sydney resulting in graduates not entering the workforce before 2013. 101 Ms Hyland described improvements in medical specialty training and various funded training programs. She noted that in 2006/07 the NSW Government provided an operational budget for the NSW Institute of Medical Education and Training (IMET) of $4.25M with the 2006/07 investment in postgraduate medical education and training representing an increase of almost $10M since 1994/95. 102 In relation to a review of emergency medicine, Ms Hyland said IMET completed a review of emergency medicine training in 2005 with the aim of establishing a networked program providing specified levels of support to supervisors and trainees. The final report was presented to the Minister for Health in 2005. Ms Hyland said despite best efforts, IMET was unable to secure agreement from ACEM on critical areas and the final review recommendations were unable to address the poor distribution of emergency trainees. On that basis the review was not supported for implementation. Ms Hyland noted that the key reason for non-implementation was the failure of the review to secure agreement of Emergency Physicians to broaden the training base to outer metropolitan, regional and rural hospitals where shortages persist and the need to grow local capacity is critical to both expansion of the emergency medicine specialist workforce and patient care. 103 Ms Hyland described initiatives in respect of the attraction and retention of health professionals supporting Emergency Physicians including nurses, ambulance officers, pharmacists and hospitalists. 104 Ms Hyland advised that the Locum Strategy Implementation Reference Group was established by the Department of Health in October 2005 to oversee implementation of agreed initiatives relating to the use of locum medical staffing in public hospitals. Ms Hyland said the Group identified the need for development of a consistent statewide orientation and induction program for locums. The North Coast Area Health Service was currently developing an online orientation package for locums that would be implemented for use across the State. 105 An example given of the health system response to better locum management was at Maitland Hospital, in the Hunter New England Area Health Service where the use of locums has halved since June 2006. This has been achieved, she said, by the successful recruitment of additional Career Medical Officers, and the Emergency Department achieving accreditation by the Australasian College of Emergency Medicine, which has facilitated recruitment of Emergency Registrars to the Emergency Department. 106 Since March 2006, the management of locums in the Hunter New England AHS has been managed centrally by the Hunter New England Staffing Service. The goals of the service are to reduce or eliminate the high administrative workload for clinical and administrative staff in the Emergency Departments and to provide a standardised and consistent approach to locum bookings and pre-employment checks to ensure only appropriate locum medical officers are engaged to work. 107 In relation to the Workforce Action Plan for EDs, Ms Hyland said this had been provided to ASMOF on 11 April 2007 for comment and input prior to its finalisation. Comment has not yet been received from ASMOF. To address the workforce issues in EDs, Ms Hyland said the Action Plan proposed a number of targeted strategies. Key elements comprised:

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· Supply. · Interstate comparisons. · Australian Medical Workforce Advisory Committee Projections. · International Medical Graduates. · ACEM Accreditation requirements. · Locum Strategies. · Nursing Workforce Strategies. · NSW Emergency Department Workforce Action Plan. 109 As to supply, Ms Hyland noted that in 1999 ACEM implemented a new barrier exam that trainee specialists needed to pass before being able to progress between first and second years of training. She further noted note that following introduction of this new requirement the number of trainee emergency specialists in second year and above (advanced trainees) fell by 157 nationally. Ms Hyland said this decrease in training numbers was felt in both New South Wales and Victoria. Between 2000 and 2001, advanced trainee numbers fell from 219 to 151 in New South Wales and from 200 to 157 in Victoria. Ms Hyland opined: This, rather than other issues such as remuneration, would appear to be a major contributing factor in the decline in supply of emergency medicine trainees that has lead to the available number of qualified EM specialists today. 110 On the issue of interstate comparisons, ASMOF's assertions that New South Wales has fallen behind Victoria in terms of new fellows and trainee emergency medicine specialists were noted by Ms Hyland, who stated in that respect: While the ASMOF outline states that NSW employed only 28.6% of emergency medicine trainees compared to 33.5% in Victoria, these figures do not include first year (provisional) trainees. Analysis of numbers in the ACEM program demonstrates that NSW and Victoria had equal national shares of trainee numbers in 2006 (30%). In reviewing population share, in 2006 NSW was training more than its share of first year EM trainees (34% of all Australian trainees), this number representing a 24% increase over 2005. Further, NSW had a 7% increase in total advanced EM trainees compared to 2005. 111 Ms Hyland also observed that whilst Victoria and New South Wales were the two largest States in terms of population, comparisons between the two needed to take into account their significant differences in terms of physical size, geography and rurality. 112 Ms Hyland noted Dr McCarthy's reliance on AMWAC staffing recommendations for the emergency medicine workforce. In that regard, Ms Hyland stated: While the AMWAC conducted seminal work in describing the medical workforce in Australia, projections were generally only based on historical staffing and practices with the relevant specialist Medical College providing advice on requirements as determined by their collective membership. This means that requirements for medical specialist staffing levels were determined based on the relevant medical college (eg ACEM) guidelines rather than independent evidence. Given the inherent conflict in this approach, NSW Health does not consider that the AMWAC targets are the most informative measure to mandate staffing levels (and therefore shortages) of College Fellows. In terms of projections, it is noted that the AMWAC conducted two separate reviews of the EM workforce over a period of six years with conflicting recommendations. The 1997 AMWAC report Working Party identified a requirement for approximately 1200 EM specialists by the year 2007 and recommended a reduction in Emergency Medicine trainee numbers after 2003. The 2003 AMWAC report recommended that the 1997 AMWAC recommendation to reduce the emergency medicine training program intake from 2003 not be acted upon . Following a review by the Australian Health Ministers' Advisory Council (AHMAC), the AMWAC was disbanded and a methodology for workforce planning that better aligns to service need is now under development. 113 Ms Hyland referred to Dr McCarthy's statements to the effect that there continue to be significant doubts about the adequacy of the screening of OTDs and also that the burden of the additional supervision associated with the use of OTDs largely falls on Emergency Physicians. New South Wales standards in this area, Ms Hyland said, are considered the highest in Australia. International medical graduates (IMGs) entering the public health system must demonstrate to the NSW Medical Board that they have:

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114 In terms of supervision of IMGs, Ms Hyland noted that NSW Health provided dedicated funding to 54 Directors of Clinical Training in hospitals to provide training and support for newly qualified doctors in their first two years of training, including AMC graduates. 115 On the ACEM accreditation requirements, Ms Hyland said the Department was concerned about the restrictive and ambiguous nature of the arbitrary 25 per cent non-clinical time requirement by ACEM in relation to training accreditation. Both the basis of the 25 per cent as a quantum and the nature of activities during the non-clinical time were queried by the Department in correspondence with ACEM. One of the matters discussed was whether the 25 Training Education and Study Leave (TESL) days that each full time staff specialist is entitled to take each year in New South Wales would be considered part of the 25 per cent non-clinical time. The New South Wales representatives of ACEM at the meeting advised that the 25 days TESL would be considered additional to the 25 per cent non-clinical time, notwithstanding that professional development was one of the activities ACEM expected would occur in the non-clinical time. Ms Hyland noted the ACEM guidelines were national but the leave entitlements for professional development varies from State to State. Ms Hyland indicated the Department intended to further pursue its concerns about the accreditation guidelines with ACEM. 116 Ms Hyland referred to various statements by ASMOF witness regarding the lack of significant progress that has been made in relation to the locum issues. Ms Hyland rejected the criticism. For example, she referred to Mr Mead's statement that there does not appear to have been any recruitment campaign by NSW Health to replace locums with career medical officers following the improvements in that Award. Ms Hyland said there has in fact been an 18 per cent (FTE) increase in the number of career medical officers working in the NSW public health system from June 2003 to June 2006. 117 On the nursing workforce strategy, Ms Hyland noted the Audit Office identified the following strategies:

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· Making NSW nurses the highest paid in Australia. · Improving working conditions. · Managing workloads in consultation with the Nurses Association. · Giving more flexibility and control over rosters. 118 As to pay, Ms Hyland said it was a matter of fact rather than a deliberate strategy that New South Wales nurses as a group enjoy the highest rates in Australia. As to working conditions, she noted the study leave and other leave provisions for doctors were exceedingly more generous than for any other health classification, including nurses. As to workload, in terms of the medical profession, discussions were continuing on the intersection with work practice and safe hours. And as to flexibility, Ms Hyland stated it is a local matter that relied on an agreed number of available hours for the position at an identified level, for example, nurse specialist. 119 Ms Hyland said a draft New South Wales Emergency Department Workforce Action Plan had been developed that was informed by discussions with Area Health Services, ACEM and ASMOF representatives and a review of available reports. The plan includes strategies to address supply, distribution, employer of choice, education, service models, innovation and planning. She described some of the initiatives being taken under the Plan and stated that the Department would continue discussions with ASMOF, ACEM and others as part of the development of a final Emergency Medicine Workforce Action Plan. 120 Dr McCarthy made the following comments regarding Ms Hyland's evidence: · Ms Hyland reports that there are 5 emergency medicine Area of Need positions, of which 3 are filled. Emergency medicine does not occur as a specialty outside North America, the UK and Australasia. The remuneration packages in emergency medicine in North America and the UK are much more attractive than NSW can hope to offer and therefore Area of Need positions are of limited use. I am aware of a very small number of emergency specialists who have been recruited into Area of Need positions, some of whom have proved to be unsuitable. · Ms Hyland records a range of health workforce plans and strategies, without specific reference to emergency medicine, apart from a suggestion that general improvements in other specialties have a positive impact on emergency departments. While such a general statement cannot be disputed it can hardly be seriously suggested that there has been any significant impact on the emergency medicine workforce. · NSW Health failed to support the emergency medicine training networks mutually agreed by IMET and the College. These networks were agreed to provide the best networked training possible given the constraints imposed by severe shortages in the specialist and trainee specialist workforce in NSW, as identified by IMET. · Any action plan for the emergency medicine workforce needs to include a recruitment strategy. As written, the NSW Health plan is not a recruitment strategy and does not address the critical issue of the severe shortages in the trainee workforce. Furthermore, the plan appears to be based on the assumption that emergency physician workforce numbers are about right, at least within 2 or 3%. This is simply not correct. Emergency Medicine Specialist Survey

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SUBMISSIONS OF THE PARTIES Australian Salaried Medical Officers' Federation 125 Mr J Nolan of counsel appeared for ASMOF. After addressing the evidence led by ASMOF, Mr Nolan made submissions in support of the Federation's position. Those submissions may be summarised as follows: · The shortage of Emergency Physicians and registrars was highlighted more than a decade ago when a process initiated by area health services resulted in a series of committees, reports and recommendations, but no action was taken. Attempts were made by Emergency Physicians and other clinicians to address some of those recommendations, including work practice reform, but were not supported by NSW Health. · The factual evidence is compelling. The vacancy rate based on funded positions in the emergency medicine workforce in New South Wales in May 2005 was 15.4 per cent. The vacancy rate based on AMWAC staffing recommendations was between 27 per cent and 50 per cent. The New South Wales emergency specialist to population ratio is below the national average. Victoria now employs more emergency physicians and trainees than New South Wales, even though it has only 75 per cent of the population. Australian residents fill only 53 per cent of emergency medicine training positions, with the remainder filled by OTDS or locums, or left vacant. · A report commissioned by the Minister for Health concluded, on a conservative estimate, that the cost of the use of locums in NSW is $30 million above the cost that would have been paid for permanent staff, with an additional $5.2 million going to locum agencies. The issue, therefore, is clearly not the capacity to pay but rather a failure to find any constructive solutions. · The history of the past decade clearly demonstrates that there can be no confidence in the ability of NSW Health to do anything constructive about the crisis in the emergency medicine workforce. · The NSW Health nursing workforce strategy provides an ideal model for an emergency medicine workforce strategy. The three key priorities of this strategy have been identified as valuing and retaining nurses, increasing the home-grown workforce and meeting immediate nursing needs. The strategies used include making NSW nurses the highest paid in Australia, improving their working conditions, managing their workloads in consultation with the union and giving them more flexibility and control over their rosters. · Emergency department attendances are increasing at a rate of about 8 per cent per year and the severity of the illness of the patients is increasing. Registrar numbers are decreasing and there are dramatically increased demands in terms of supervising OTDs and locums. Despite these pressures, the performance of New South Wales emergency departments has improved dramatically over the past few years. There have been significant improvements in access block and off-stretcher time and in February this year New South Wales hospitals met national benchmarks across all five triage categories for the first time. These improvements have only been possible because of the many and various clinical redesign initiatives developed and implemented by Emergency Physicians (and other clinicians). · The response of NSW Health to this outstanding performance in very difficult circumstances is to seek to reduce the flexibility of their working arrangements and, in effect, tell them that they are not working hard enough. The impact of this on the morale of the emergency medicine workforce cannot be over-emphasised. It is not too strong to say that New South Wales Emergency Physicians are disgusted with the approach taken by NSW Health throughout this dispute. This disgust has only been strengthened by the failure of the proposed Workforce Plan to even acknowledge that there is a workforce shortage. · In direct contrast to NSW Health, other states are aggressively recruiting Emergency Physicians and providing not only higher remuneration but a range of flexible employment arrangements, including the 4 x 10-hour shift arrangement. While it is unlikely that a huge number of Emergency Physicians will leave New South Wales, it is already clear that applicants are choosing to accept employment in other states. Perhaps more importantly, NSW Health is not even offering positions to the newly-qualified Emergency Physicians who have trained in NSW. 126 In relation to the latest Emergency Medicine Specialist Survey, Mr Nolan submitted that the vacancy rate meant there were one in five positions vacant. He contended that by any standard, a vacancy rate of this level must be regarded as a major problem. Taken together with the even more serious problems in the trainee specialist workforce (only 53% of training positions are filled by Australian residents), the survey confirmed ASMOF's view that the emergency medicine workforce in New South Wales was in crisis.

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127 Counsel for ASMOF emphasised that the survey only provided information on the vacancy rate in the funded positions. He said ASMOF has previously highlighted the fact that the funded establishment did not necessarily bear any relationship to the activity levels of the emergency department or to AMWAC recommendations (e.g. the funded establishment for Gosford Hospital is significantly lower than the funded establishment for Royal North Shore Hospital, even though the activity levels are similar). It was self evident, Mr Nolan submitted, that the number of funded positions was nowhere in excess of actual specialist staff requirements. It followed, he said, that the funded establishment was not an accurate measure of the number of Emergency Physician positions that should be established. The true vacancy rate must be in fact, significantly higher than the survey suggested. 128 Mr Nolan also explained ASMOF's version of a special service agreement. The proposal was essentially that the original agreement, which was the basis for including the new Normal Duties provision in the Award, and which ASMOF maintained did not link any allowance to extra shifts and reduced non-clinical time, be adopted but with two important differences. The first difference was that rather than the special service being simply clinical shifts, much better use could be made of the skills and experience of Emergency Physicians if the special service involved clinical support to non-specialist medical staff, clinical governance improvements and clinical redesign and training initiatives across a network of hospitals. The second difference was that the requirement to provide services at locations beyond the work location clause of the Award would be directly linked to improvements in staffing by means of a "sliding scale". The key point being that hospitals would have to meet the minimum AMWAC staffing levels before "off-site" services would be provided. Dr Sammut further explained ASMOF's position as follows: [I]f staffing does not meet the minimum AMWAC recommendations then the 25% allowance would be paid but no shifts beyond the scope of the work location clause would be required. It is also confirmed that it is ASMOF's intention that the special service shifts may include clinical duties, although it is our view that it will be a much more effective use of resources if emergency physicians are used to train and support non-specialist doctors, e.g. a week spent training a group of CMOs to provide a better standard of emergency medicine will be a far more effective use of time and resources than a week spent providing clinical services. 129 It was further submitted by Mr Nolan that ASMOF's proposal made it imperative that a successful workforce strategy was implemented in conjunction with the special service agreement. ASMOF proposed that a workforce strategy based on the nursing workforce strategy be put in place in conjunction with the special service agreement. Accordingly, the key elements of the strategy would include payment of the 25 per cent allowance under the conditions proposed by ASMOF and retaining flexibility and control over rosters at the local level. Mr Nolan contended the 25 per cent allowance would "make NSW remuneration competitive but certainly not the highest in Australia". Mr Nolan submitted that the key priorities would be the same as for nurses: valuing and retaining the workforce; increasing the home-grown workforce; and, meeting immediate workforce needs. Department of Health 130 Mr M Kimber of senior counsel appeared for DOH. Mr Kimber identified what he contended were the flaws in ASMOF's position. He submitted that ASMOF's 2005 "special case" claim, determined by the Full Bench in 2006, had the following features that are of critical importance to the matter now before the Commission: (a) It sought the same substantial salary increases for all staff specialists on the basis of work value changes since 1991 and on the basis of shortages in the staff specialist workforce.

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141 DOH contended that this was not self evident and that ASMOF had not presented any evidence to support that current staff establishments were inadequate. It was submitted the 2007 survey was only of emergency medicine specialists and that it did not identify the many other clinical staff working in the Emergency Department that provided direct patient care. 142 Finally, in relation to the survey results, it was submitted that DOH's proposal for a special service allowance sought to utilise the existing staffing resources more flexibly. Mr Kimber submitted: The Department believes that the results of the 2007 Survey supports the Department's proposal for the special service allowance. The Department accepts that emergency physician vacancies exist but maintains that resolution involves not only the continued significant effort in recruitment but better use of the existing resources. Australian Salaried Medical Officers' Federation in Reply 143 In his reply, Mr Nolan referred to ASMOF's rebuttal evidence and, as well, made the following main points: · The projects to improve efficiency and effectiveness have significantly added to the workload of Emergency Physicians and the pressure under which they work. Further, there is no evidence that any of these projects have resulted in the attraction or retention of a single Emergency Physician. · The Department's evidence does not demonstrate any NSW Health strategies that are aimed at increasing the number of Emergency Physicians. On the contrary, NSW Health appears to hold the view in the face of all the available evidence that there is not a shortage of Emergency Physicians. There is no discussion in the NSW Health evidence about the very significant shortage of emergency medicine trainees. · Far from imposing restrictive work practices, Emergency Physicians, at their own initiative, offer far more evening, public holiday and weekend cover than any other consultant-level health professionals. · At no point in its initial evidence did NSW Health address the College of Emergency Medicine training accreditation requirement that there be 25% non-clinical time, despite the unambiguous correspondence from the College about this matter (in accordance with the recommendation of the Commission that advice be sought from the College). It is only in New South Wales that this is a contentious issue. · A survey of Emergency Physicians and registrars conducted by the Centre for Workplace Research reveals that 85% of emergency physicians would choose not to opt-in to the NSW Health proposal and that 52% would reduce their hours or leave their current role if the proposal is implemented. The survey also reveals a 22% vacancy rate in Emergency Physician funded positions. · Emergency Physicians have worked hard to develop and implement the various models of care because they can see the benefits for patient care. However, these initiatives have not improved the environment for Emergency Physicians. On the contrary, they have involved significant additional work and pressure. It is erroneous to see the CSRP initiatives as some form of recruitment and retention incentive. · While there is a willingness from both sides to have further discussions it will be difficult to agree on what needs to be done if NSW Health maintains its position that there is no need to recruit a significant number of Emergency Physicians. 144 In relation to DOH's submissions regarding the Emergency Medicine Specialist Survey, ASMOF submitted noted that the 0 per cent vacancy rate at Concord Hospital may have been technically correct at the time the survey was undertaken but it arose directly from the cancellation of interviews for 1.25 FTE. In other words, the Area had approved the filling of 1.25 FTE but then temporarily cancelled that approval, apparently to prevent the movement of Emergency Physicians from Liverpool Hospital to Concord Hospital, it was submitted. ASMOF understood that the Area intended to re-advertise these positions in the near future. Consequently, it was contended that the vacancy rate at Concord was in fact 21 per cent (1.25 FTE out of 6 FTE). Mr Nolan submitted this anomalous situation should have been identified as such to the Commission. 145 Mr Nolan further submitted that this "technicality" at Concord Hospital must call into question the accuracy of the reported vacancy rates at other hospitals. It also served to highlight the lack of any rational basis for the reported funded establishments of Emergency Departments, he said. The table below (Table 5) prepared by ASMOF uses the "weighted attendances" (i.e. workload) for Sydney South West Area Health Service Emergency Departments provided in Attachment 2 of Mr Paul Gavel's 22 May 2007 witness statement as a basis for comparing funded establishments. ASMOF contended that it clearly demonstrated that the funded establishment is meaningless and should be much higher; e.g. Fairfield attendances were similar to Canterbury and yet the funded establishment was less than one third of the Canterbury establishment. Table 5

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146 In further responding to DOH's submissions on the survey, Mr Nolan submitted: · ASMOF has presented extensive AMWAC material about recommended staffing levels. It must be pointed out that the survey again demonstrates that no New South Wales hospitals meet the minimum recommended staffing levels. AMWAC was an organization established by Australian Health Ministers with extensive experience in workforce planning. In the face of all the evidence, NSW Health has alleged that AMWAC was unduly influenced by the College of Emergency Medicine. This was, and remains, a baseless assertion - raised for the very first time in these proceedings. NSW Health has not produced any evidence to support this assertion nor any evidence of research that challenges the AMWAC material. · DOH notes that the survey does not identify the many other clinical staff working in emergency departments. These "other clinical staff" include the junior medical staff where the vacancy rates are even higher than the senior medical workforce. DOH has not at any stage responded to ASMOF's evidence about the vacancy rates in the junior medical workforce. · DOH refers to the "continued significant effort in recruitment". Far from there being "continued significant effort in recruitment", there is nothing which could be described as a recruitment campaign by NSW Health at all! ASMOF has produced evidence that emergency physicians seeking positions in New South Wales hospitals have been turned away (e.g. Gosford) and interviews have been cancelled (e.g. Concord). The contrast with the aggressive recruitment campaigns being undertaken by other States could not be more pronounced. · It remains the case that DOH is still denying that there is a shortage. That DOH could maintain its present attitude of denial regarding inadequate emergency specialist staffing levels is even more perplexing when one considers that significantly lower levels of shortages in the nursing workforce were described by the Full Bench as "patently a widespread and serious problem". The evidence in the Nurses' case indicated that there were approximately 2000 positions being actively recruited in May 2002 out of a workforce of approximately 3500. This suggests a vacancy rate in the nursing workforce at that stage of approximately 6 per cent, compared to the Emergency Physician vacancy rate of at least 18 per cent. · ASMOF is unable to understand the reason for this continued denial. DOH's only response to the vacancy level is to propose that the existing workforce be asked to work harder. It is difficult to imagine a more counter-productive response to a situation where there is a highly-skilled and mobile workforce, a national and international shortage, aggressive recruitment campaigns from other employers and presentations to New South Wales emergency departments increasing at the rate of approximately 10 per cent per year.

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CONSIDERATION Shortage of Emergency Physicians 147 The primary basis upon which ASMOF relied for the Special Service Allowance to become payable was the shortage in the public health system of Emergency Physicians and the failure of the Health Department over an extended period to take effective steps to overcome the shortage. This failure, it was submitted, was in the face of Emergency Department attendances increasing at a rate of about 8-10 per cent per year and where the severity of the illness of the patients was increasing. It was submitted that Registrar numbers were decreasing and there were dramatically increased demands in terms of supervising OTDs and locums. Despite these pressures, Mr Nolan submitted the performance of New South Wales Emergency Departments had improved dramatically over the past few years. There had been significant improvements in access block and off-stretcher time and in February 2007 New South Wales hospitals met national benchmarks across all five triage categories for the first time. Mr Nolan contended these improvements had only been possible because of the many and various clinical redesign initiatives developed and implemented by Emergency Physicians (and other clinicians). 148 That there is a shortage of Emergency Physicians was specifically recognised in the substantive work value/special case proceedings. The Full Bench stated at [159]: 159 Whilst the HAC was not prepared to agree that there was a crisis in the public health system because of the shortage of staff specialists, it seems to us, based on the evidence and inspections, there in fact is a crisis in some specialties. In emergency medicine, geriatrics, pathology and psychiatry the burden of shortages is almost overwhelming staff specialists in the public hospital system. 149 The shortage of Emergency Physicians referred to in the Full Bench's decision continues to exist. The latest joint survey confirms that be the case. It is not an overstatement to say the shortage of Emergency Physicians constitutes a very serious problem for the public health system in the State and ASMOF's concern in that regard, and its concern that to date there has not been an adequate rate of improvement, is soundly based in my opinion. But the question I have to ask myself - and it is a difficult one to answer given the seriousness of the shortage problem - is whether, in all of the circumstances, it is appropriate, and whether it would have the required effect of overcoming or at least relieving to a material extent the current shortage, to recommend an unconditional increase of 25 per cent for Emergency Physicians as claimed by ASMOF. 150 I have addressed the question under a number of headings, which follow.

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Full Bench proceedings 151 The shortage of Emergency Physicians is undoubtedly placing additional strains on those working in the public hospital system in a role that is highly demanding in the first place. This was also recognised by the Full Bench: see [126]. Indeed, when one considers the Full Bench's decision as a whole and the evidence in the proceedings, it is apparent that in determining ASMOF's claims for salary increases under the work value and special case principles, the evidence relating to the work of Emergency Physicians, the environment in which they worked (including the fact of shortages), and their dedication and contribution to the public hospital system, were significant factors influencing the Full Bench. 152 It may have been the case that had ASMOF pursued higher increases for Emergency Physicians rather than a common increase for all specialists, that the Full Bench would have been, on the evidence presented, attracted to such a claim. In that regard, it is apparent from the Full Bench decision that not all specialties were affected by work value change or shortages to the same extent. But that was not how the claim was presented (see [87]) and it became necessary for the Commission to adopt an averaging approach: see [130]. 153 ASMOF lodged its original claim with the Commission in July 2004 and amended it in February 2005. In July 2005, the HAC filed its own claim to vary the Award, including claims relating to hours of work and work location, which were amended in November 2005. The parties then made final submissions on their respective claims in that month, including submissions on the HAC's hours of work and location claims. However, negotiations between the parties continued and in April 2006 the Commission was advised that an agreement had been reached, inter alia, on the contentious award variations relating to hours of work and work location and on the terms of an "Emergency Physician Determination". It, therefore, became unnecessary for the Full Bench to rule on these matters.

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Double counting 154 The purpose in plotting this brief history of events leading to the making of the new Award and the agreement on hours of work, work location and special extra-award provisions relating to Emergency Physicians, is to demonstrate that ASMOF had determined from the outset to pursue a common increase for all staff specialists and that it was not the case the Federation was, from the beginning, relying on Emergency Physicians receiving extra by way of some supplementary agreement with the HAC. In other words, it was not the case that ASMOF sought a common salary increase on the basis of an expectation that Emergency Physicians would receive an additional, unconditional increase via extra-award negotiations and that that expectation had been thwarted. Such an expectation could not have arisen until some reasonably firm proposal had been put to ASMOF by the HAC. 155 This is not to be critical of ASMOF at all; no doubt there were good reasons why the organisation sought a common salary increase for all staff specialists. But the point I am making is that it is not the case that ASMOF set out to claim a common award-based increase for all specialists in the expectation that additional increases would flow to Emergency Physicians by another route and that, therefore, ASMOF now had proper cause to complain that its expectations had not been met by the imposition of what it regards as the unacceptable conditions that DOH has attached to access to the Special Service Allowance. 156 The position, therefore is that: ASMOF made a conscious decision to claim a common salary increase for all staff specialists and chose not to differentiate Emergency Physicians; I am now being urged to provide a very substantial, and effectively unconditional, increase for Emergency Physicians on the basis of shortages; the claim is made in circumstances where the Full Bench has already awarded a substantial increase to staff specialists across the board (plus significant increases in managerial allowances) on the basis of a significant amount of evidence relied upon by ASMOF that included the effect of shortages on Emergency Physicians; and, ASMOF did not have an expectation at the time it framed its claim for a new Award that additional increases might be available to flow to Emergency Physicians. 157 In these circumstances, it is impossible to avoid the conclusion that for the Commission to now recommend a further unconditional but substantial increase for Emergency Physicians based primarily on shortages, but also work value factors referred to by ASMOF that have already been taken into account by the Full Bench, would be tantamount to double counting.

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Workforce planning strategies 158 I acknowledge that there is a deep-seated sense of frustration amongst Emergency Physicians, perhaps even anger as Dr Sammut suggests, at what they regard as the Department's failure to address their concerns regarding the longstanding shortages within their specialty and the additional demands that places on them. The frustration is heightened by the extra administrative and training workload the Emergency Physicians find themselves being required to undertake in circumstances where there is a concurrent attempt by the Department to reduce non-clinical time. 159 I consider the frustration I have described has some proper grounding, at least up until the Department was compelled to lay out its plans in the Full Bench proceedings as to what initiatives it was taking to alleviate the problem of shortages. Until then Emergency Physicians felt very much in the dark and believed their contributions to addressing the shortages in their speciality were being largely ignored. More recently, on the Commission's recommendation, the Department set about constructing a specific plan designed to address shortages in emergency medicine with input from ASMOF. I regard this plan as especially important in terms of not only providing an important pathway for resolving the shortages of Emergency Physicians but also as a means of gaining the Physicians' confidence that something concrete is being done. That confidence will not be gained unless Physicians, through their organisation, are involved in the process of developing and implementing the plan and believe that their contributions are genuinely heeded. Whilst I acknowledge that the plan is still in its early stages of development, one thing I consider is lacking is a specific proposal as to how and when the plan will deliver the extra Emergency Physicians where they are needed. ASMOF needs to see something concrete in this regard if its concern about what it regards as the Department's indifference to the shortage problem is to be alleviated. I will leave open the opportunity for ASMOF to bring the matter back to the Commission not before 1 December 2007 if it considers there has been a lack of progress in developing the plan for Emergency Physicians. 160 Further, in developing the plan I believe it is important that the parties have particular regard to the findings in the survey conducted by Dr Buchanan and Ms Wise where it was said: Their [the respondent's to the survey] concern with the Department's proposal is not about the quantum of the proposed salary increase. What troubles them is they believe it will do nothing to stop the decline in working conditions and quality of service provided in the State's Emergency Departments. 161 As I having already observed, an adjustment of 25 per cent is a very substantial increase costing in the order of $8 million, and that is only if it did not flow beyond Emergency Physicians. One of the considerations of the Full Bench in deciding on the amount of increase for staff specialists generally was that it did not want to detract from what it regarded as commendable workforce planning initiatives being implemented by the HAC to address staff specialist shortages. The same consideration applies here: whilst I accept there is a strong degree of understandable scepticism within the ranks of Emergency Physicians regarding the Department's bona fides in addressing the shortages question, it seems to me the initiatives being taken by the Department cannot simply be dismissed on the basis of scepticism that it is not serious about addressing the shortage crisis. If it is not, then it will have to bear responsibility for the consequences. But given the overall complexity of the task, the competing demands on the Department to address shortages in other specialties and health professions, and on the basis of statements by senior Departmental officers that the Department is genuine in attempting to address shortages by putting in place various strategies to that end, it would be injudicious for this Commission to ignore that evidence and to commit the Department to spending $8 million on Emergency Physicians' salaries - money that would inevitably be required to be diverted away from workforce planning - in the hope (because there is no sound evidentiary basis) that it would make a meaningful contribution to attracting and retaining Emergency Physicians who are an exceptionally scarce resource nationally and internationally. 162 In any event, it does not seem to me that money is the complete answer in so far as Emergency Physician attraction and retention is concerned. It is evident that bad decisions made in the past about future specialist needs, and a slowness to recognise the problem, were contributing factors to the current shortage and money will not, of itself, remedy those past mistakes. The lead-time in training new specialists is very considerable. In her evidence Dr McCarthy stated that given that it takes at least seven years of postgraduate training before a graduate doctor becomes an Emergency Medicine Specialist, it could be safely predicted that the increase in the number of graduates will not impact on the specialist workforce until at least 2015. 163 The difficulty created by past bad decisions would seem to present a challenge to any initiative to overcome the shortage of Physicians, be the initiative more money or sound workforce planning. The interim answer, at least in part, would appear to lie in some form of restructuring.

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Interstate comparisons 164 ASMOF contended that, notwithstanding the long lead times involving in training new specialists, in the meantime New South Wales had to make itself competitive with the other States and the Territories, which presently it was not. Evidence was tendered by both sides as to salaries and conditions applicable to Emergency Physicians in other States and the efforts being made by other States, especially Queensland, to attract such specialists. 165 Ultimately, there was no agreement on the terms of an interstate comparison and the picture is somewhat incomplete because of the difficulty of ascertaining precisely what actually occurs on the ground in the other States. For example, it was not clear whether in South Australia Emergency Physicians any longer receive both a 20 per cent allowance and a 45 per cent allowance. But in considering the respective comparisons and the issues of difference between the parties, when the whole package applicable to Emergency Physicians in New South Wales is taken into account according to Ms Blackett's analysis, I am not satisfied the New South Wales benefits are so out of kilter with those provided in other States that, in the public interest, a levelling up, or leap frogging of the other States, is required. 166 Even if it is the case that New South Wales Emergency Physicians are lagging somewhat behind their interstate colleagues, this Commission has historically been reluctant to give much weight to rates of pay in other jurisdictions. There does not seem to be any public interest in this Commission using the processes provided by its governing statute to engage in a bidding contest for health professionals (or other classes of labour) that are in short supply from time to time. Under the Industrial Relations Act the Commission's duty is to fix fair and reasonable conditions of employment. A large differential between remuneration packages under an award of this Commission compared to what is provided in other jurisdictions may be one indicator of the lesser package not being reasonable but I do not consider it has been demonstrated that is the case in respect of Emergency Physicians, especially in the light of recent Full Bench proceedings in 2005 and 2006 where the salaries and conditions of staff specialists came under very close scrutiny. 167 Another relevant consideration is that the Department is well aware of the competition that exists for these specialists and what it must do to attract and retain them. It has considerable resources at its disposal for that purpose and is entitled to pursue its own measures in addition to or as complementary to anything the Commission might do or not do. At the moment, it is apparent the Department is content to rely on the initiatives it has put in place and continues to put in place to meet the challenge of shortages and opposes any additional unconditional remuneration as a means of attracting and retaining staff specialists. Despite the criticism levelled at the Department by its Emergency Physicians for what they regard as its inertia, the Commission must factor into its deliberations proper regard for the position taken by the Department. It is, after all, not only the employer of Emergency Physicians but also the body that must take responsibility as the provider of health services, including the adequate provision of emergency medicine resources in public hospitals. 168 I note the material tendered by ASMOF to the effect that in the two-year period since June 2005, Queensland had achieved a net increase of 1,036 extra doctors. There is no probative evidence that the remuneration packages provided to Emergency Physicians in Queensland is the reason why that State has increased the number of doctors nor that the increase has been to the material disadvantage of New South Wales. That is, there was no reliable evidence there had been a 'brain drain' of Emergency Physicians from New South Wales into Queensland. Furthermore, the net increase in Queensland occurred across all categories including staff specialists, senior medical officers, registrars, resident medical officers, visiting specialists and interns. No comparable data was available for the same time frame in New South Wales, unfortunately. What data was available (in Ms Hyland's statement) indicated that in respect of staff specialists, interns, residents and registrars, the increase in FTE positions for the 18-month period between June 2005 and December 2006 was approximately 330. But no figures for the relevant period were available for CMOs or VMOs. Flow on

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173 DOH's motive in seeking this arrangement was that it would allow PHOs to roster Emergency Physicians in a way that would ensure that clinical shifts, in particular, would be allocated on the basis of clinical need without the limitation of loaded time in lieu arrangements, which resulted in the hours a full-time Emergency Physician worked being less than 40 hours per week. 174 ASMOF's opposition to the Department's proposal was based on a number of considerations. It seems to me that the main objections were that it diverted the focus away from the problem of shortages of Emergency Physicians; it sought to encroach on the non-clinical time mandated by ACEM, with implications for the accreditation of Emergency Departments for the purposes of specialist training; the intensity of emergency medicine made working more than three clinical days a week unsustainable because of the risk of burnout and the adverse impact on the work/life balance; and, local arrangements had been put in place that were effective in covering weekend and holiday shifts and there was no good reason for these to be overturned. 175 In terms of the principle of what DOH is trying to achieve, that is, improved rostering arrangements to meet clinical needs, there could not be any reasonable objection. I can understand ASMOF's concern that the Department might regard its proposal as being a complete answer to shortages and that the Department might be tempted to make only a token effort to overcome the underlying shortage of Emergency Physicians. That is a matter I have indicated I am prepared to hear more on after 1 December 2007. 176 In so far as the encroachment on non-clinical time is concerned, the fact is at the moment ACEM has certain rules in that regard and unless they are met the relevant Emergency Department will not be accredited for the purposes of specialist training. In the face of existing severe shortages of Emergency Physicians it does not seem to me the Department can afford to lose accreditation and, therefore, will need to comply with ACEM's requirements whilst that body continues to have accreditation rights. 177 I note the debate about just how much time is required for non-clinical work by Emergency Physicians and that the Department is querying, inter alia, why TESL is not counted for that purpose. Further discussion will need to take place on the issue of non-clinical time and the Commission will make itself available if the parties consider that will assist. But I would make the observations that the Department cannot expect Emergency Physicians to carry out an increasing non-clinical load, as the evidence suggests is occurring, and at the same time seek to have the mandatory 25 per cent non-clinical time reduced. Non-clinical work includes but is not limited to the following: · Supervision and training of junior staff and other health professionals · Coordination of patient flow · Liaison with other practitioners and agencies both within the hospital and in the broader community - such as ambulance and retrieval services, community groups, general practitioners (GPs) and other health professionals · Research and teaching, including undergraduate teaching · Educating health care professionals and the community more broadly · Becoming involved in policy formulation, critical incident monitoring and investigation, other quality activities and administration.

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178 The Emergency Physicians' apprehension about the intensity of their work and the prospect of burnout if they were required to work their hours over five days out of seven is a very real concern. It is clearly the case that a significant proportion of Emergency Physicians do not consider they could manage working beyond 3 x 10 hour clinical shifts every week because of the intensity of the work. Moreover, they contend that is not possible to provide 16 hours of cover per day with overlapping shifts using 8-hour shifts. 179 In the survey conducted by Dr Buchanan and Ms Wise it was found that if the Department's proposal was adopted: · only 15 percent (21) of responding FACEMs indicated they would 'opt in' · over half (72) would reduce the hours they worked as salaried specialists, with 15 per cent (21) saying they will leave their current salaried role - over half those who would cut their hours (40) would stay on as VMOs or locums. The remainder would change medical specialty or leave medicine. · 83 percent felt it would make it more difficult to recruitment and retain staff. 180 That such a large proportion of Emergency Physicians would adopt such an attitude to the Department's proposal is obviously a matter that weighs against recommending its adoption. On the other hand, I do find it difficult to understand the rationale behind an Emergency Physician deciding to cut his or her hours or deciding to leave the specialty because a voluntary, opt in arrangement was introduced. In any event, I note that 15 per cent (21) out of the 62 per cent (140) of the Emergency Physicians who responded to the survey indicated they would opt in and that their response was based on the misunderstanding that the 15 shifts to be worked at other locations over a year was in addition to the five shifts per week, which is not the case. I also note the Department considered this degree of positive response was a reasonable foundation upon which its proposal could be launched. These considerations weigh in favour of recommending the proposal be adopted. 181 I could more readily understand ASMOF's opposition to the proposal if it involved all Emergency Physicians being compelled to work a five-day week and to provide 15 shifts at other locations. That would put an entirely different complexion on matters. But that is not the proposition and there would be significant hurdles to be overcome by DOH to achieve such an outcome if, in fact, it could be achieved, other than by agreement. CONCLUSIONS

[146]

182 ASMOF and Emergency Physicians have a genuine concern about the continuing shortage of such Physicians in the public hospital system and the additional pressures that generates for what is already a highly intensive and stressful calling. Their solution is a 25 per cent Special Service Allowance, payable immediately to Emergency Physicians and although there would be an obligation to perform work on 15 occasions over a year at another location than the Physician's principal location, that obligation would not arise unless the host hospital met AMWAC guidelines in respect of staffing levels. According to Ms Blackett's assessment of ASMOF's proposal, based on current staffing levels at the 39 New South Wales Emergency Departments that currently employ Emergency Physicians, only four of the facilities would fall into the category where special service would need to be provided. Further, under ASMOF's proposal it would not be a condition for receiving the Special Service Allowance that Emergency Physicians were required to work a five-day week. It follows that payment of the Allowance would be essentially unconditional. 183 An increase of 25 per cent would be in addition to the 14 per cent increase granted to all staff specialists in 2006. That increase was awarded having regard to shortages of specialists, particularly shortages of Emergency Physicians, and based on work value grounds, the work of Emergency Physicians being prominent in the case put forward by ASMOF. Those same factors are now relied upon by ASMOF in seeking an additional 25 per cent for Emergency Physicians. It would be tantamount to double counting to grant the Special Service Allowance unconditionally. 184 The cost of the Allowance, without taking into account the prospect of flow on, would be $8 million, which the Department would be required to fund. Inevitably, that would require resources to be diverted from other projects, presumably including workforce planning, because on ASMOF's proposal the Allowance would replace the need for alternative recruitment and retention strategies. Whilst a 25 per cent increase in remuneration may be expected to have some positive attraction and retention effect, there is no indication in the evidence presented just what effect that will be, and certainly no evidence to suggest that an increase in remuneration is the best way forward in resolving the shortage crisis. There is no basis, therefore, for this Commission to substitute an expectation that the Allowance may have the desired effect, for a structured, multi-faceted approach specifically designed by workforce planning experts within the Department to attract and retain Emergency Physicians. 185 The cost of the Allowance is unlikely to be limited to $8 million because of the very real risk of flow on, either to other specialties where there are shortages or to staff specialists generally. That is not an acceptable risk given there would be no guaranteed offsetting benefits. 186 DOH's proposal is based on voluntariness. If there are Emergency Physicians willing to accept the conditions proposed by the Department in order to access the Allowance and in doing so the Department is able to increase the flexibility of its rostering arrangement, which will assuredly alleviate to some degree the problems caused by a shortage of Physicians, it does not seem that there is any rational basis for declining to recommend the proposal be adopted. Not all Emergency Physicians find the prospect of working a five-day week unacceptable, as ASMOF's own survey reveals. Moreover, a practice has existed where some Physicians, after finishing their weekly shifts, perform additional shifts in other hospitals as VMOs. 187 A matter the Commission has indicated it will monitor is that in having its proposal endorsed by the Commission, the Department does not downgrade its other efforts to remedy the underlying shortage problem. The Commission has indicated it is prepared to review developments not before 1 December 2007. TERMS OF RECOMMENDATION

At a glance

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Decision date

Before

Source

Judgment (153 paragraphs)

Cases Cited (2)

Cited By (2)