Doctors in Training
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New workplace protections for public hospital doctors
This article discusses a new federal legal regime that is designed to protect doctors (as employees) when advocating for positive change within their hospital and explores the substantially implications for public hospitals who do not proactively manage behaviours in their workplace.
The public hospital system can be observed to have many centres of competing interest. Those who control hospital budgets can be at logger heads with Consultants whose only objective is the best outcomes for their patients. Those who highlight inadequacy in hospital systems or processes may find themselves ‘swimming up stream’. Doctors-in-Training (DITs) pursuing Fellowship may perceive that their only option is to unswervingly comply with prevailing, apparently unreasonable, workplace norms.
In all of these examples, doctors can potentially avail themselves of their newly created “Workplace Rights” under the Fair Work Act 2008 (Cth.) (the FW Act) to resist any actual or threatened “adverse action” made against them by their hospital. This new theme of federal workplace law is likely to be a fast emerging area of litigation and an area of risk for hospitals. Hospital’s need to proactively manage behaviours and be vigilant to stamp out inappropriate conduct because of this new law’s reach into ‘ever day’ aspects of the workplace.
At the time of going to press, legal registration of AMA’s new 2008 DIT Agreement was immanent. It maintains a protection from “industrial harassment” (called “Freedom of Association” under the new Agreement) that has existed under previous AMA entitlements. DIT Members who self advocate, or assist others, to progress a dispute through AMA can avail themselves of the Agreement’s general protection that they not be subject to any detrimental implication as a consequence of their industrial activity or though their involvement with AMA.
While this DIT Agreement entitlement does not cover Consultants, since 1 January 2010 the FW Act has extended these concepts to all classes of employee doctors and broadened the protections under the heading of Workplace Rights. A doctor has a Workplace Right if they are entitled to benefits under one of AMA’s Agreements, or under employment law, or where a doctor initiates a process under an AMA Agreement Dispute Settling Procedure.
A doctor’s Workplace Right is breached if a hospital takes, or threatens to take, an adverse action against the employee doctor. This breach applies equally to a doctor who, as a prospective employee, would have become an employee if not for the adverse action. In the hospital context, the law essentially says that a hospital must not (actual or threaten) terminate, discriminate or prejudice a doctor where the doctor claims for an entitlement, progresses a dispute concerning Agreement compliance or seeks restitution under a hospital policy – bullying & harassment being an example.
Of key import is the empowerment now afforded to a doctor when threats have been made, or actions have been taken, against them as a consequence of having, in good faith, raised a workplace concern. The FW Act requires that the Fair Work Ombudsman (or the Federal Magistrates Court depending on the jurisdiction elected) accept the doctor’s claim of adverse action as having been upheld unless the respondent hospital can prove (on the balance of probabilities) that no adverse action occurred as a direct response to the issue raised by the doctor. This is often referred to as a “reverse burden of proof”. A hospital unable to meet its burden will, on the public record, either be required to make enforceable undertakings that particular behaviours cease or be subjected to a civil penalty Order for each incidence of breach.
Given this reverse burden, hospitals do need to be risk averse when interacting with doctors who seek agreement compliance or raise concerns about management conduct. The conduct of any employee could give rise to hospital liability for adverse action whether the conduct was authorised, known about or not. In a doctor context, examples of adverse actions could be as follows:
A hospital advises affected Consultants that it intends to implement major changes to a Unit’s structure. Using rights available under AMA’s consultation provisions, a Consultant raises serious concerns that suggest a contrary approach to be more clinically appropriate and that to make changes as intended could cause poor patient outcomes. The hospital proceeds as it originally intended and at some later time the Consultant is advised that their contract hours will be reduced. As the Consultant was participating in a process arising from an Agreement (the Workplace Right) and their position was subsequently altered to their prejudice, a legitimate claim could be made for adverse action.
An accredited Registrar leads a group of colleagues in a quest to cause their roster to be redesigned so that it properly and visibly accounts for regular worked overtime. The hospital agrees to redesign the roster because advice it received suggests that to not do so would be in breach of the AMA DIT Agreement. Although the accredited Registrar has always received supervision reports that are satisfactory or better, the next supervision report submitted to their Learned College negatively assess several key areas of performance. As the Registrar was entitled under the Agreement to have the roster redesigned (the Workplace Right) and they were subsequently injured by an unsatisfactory supervision report, a legitimate claim could be made for adverse action.
A doctor has worked at several Victorian public hospitals and is known as a vocal advocate for their employment entitlements. Having unsuccessfully applied for a hospital position, the doctor is told by the rejecting hospital that “trouble makers” always find it difficult to be employed. As the doctor has initiated a process under the AMA Agreement Dispute Settling Procedure when requesting entitlement compliance at former employers (the Workplace Right) and a prospective employing hospital has refused to employ the doctor; a legitimate claim could be made for adverse action.
While hospitals may well have legitimate reasons for their actions, there will need to be an evidentiary trail available to mount a successful defence against any adverse action claim. In the case of the Unit change example, the hospital could show operational requirements required a reduction in the Consultant’s hours. In the case of the accredited Registrar, the hospital could show evidence of their performance decline. In the case of the doctor who was not offered employment, the hospital could show a better credentialed candidate was preferred.
In other words, just because there is an unfavourable outcome for a doctor consequenced by a hospital decision, the hospital’s behaviour is not then automatically defined as being an adverse action under the FW Act. However, if the hospital does not have systems in place to ensure reasoned and reasonable decisions are both made and recorded, adverse action in law may be difficult to disprove.
Through the existence of Workplace Rights, doctors can have comfort that there is a more favourable environment for them to raise issues of concern with their hospital. In addition, hospitals wishing to minimise their risk of breaching the FW Act will establish transparent procedures and policies to ensure they can account for decisions they make. This will further encourage the professionalisation of doctor management, supervision and recruitment to the benefit of public hospitals, patients and doctors.
ANDREW LEWIS
Senior Industrial Relations Adviser
Enquires: Workplace & Advocacy Unit
t. 9280 8722
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