LEGAL ADVICE ON INDIVIDUAL CONTRACTS
#qldpol #keepourdoctors
AMA Queensland has received further legal advice confirming the unfairness and unreasonableness of the individual contracts proposed for SMOs in Queensland.
Senior Counsel Dan O’Gorman describes it as a “draconian contract of employment” and reiterates our key concerns about the unprecedented stripping away of fundamental employment rights.
We strongly recommend you read the advice in full here.
Paragraph 2 in particular summarises the changes to your employment should you proceed to sign or not sign the contract.
If you do not have time to read the document, these are some key parts:
- 1-The State is able to offer these contracts only after legislating that a number of significant provisions of the Industrial Relations Act 1999 will not apply to SMOs who sign a contract.
- 2-The State is attempting to unilaterally introduce significant changes to the terms and conditions of employment of SMOs in Queensland, changes that will simply strip away some basic employee rights.
- 3-There is nothing that guarantees that SMOs will not be worse off under the contract.If the State believes that SMOs will not be any worse off under the contract, it would be easy for the Minister for Health, or for another senior person on behalf of the State, to make a statement to that effect.
- 4-Remuneration – Remuneration payable under the contractis incapable of precise calculation.
- 5-Termination – SMOs can be arbitrarily dismissed and unfair dismissal provisions will no longer apply.
- 6-Dispute resolution –SMOs will no longer have recourse to the Queensland Industrial Relations Commission and no other dispute resolution process is provided.
- 7-Shift work – SMOs may be required to undertake shift work and extended rosters and the State may vary or amend rosters or shifts as required by the service. Penalty rates are absorbed into vaguetiered remuneration arrangements. Overtime and recall may only be paid on an exception basis (which is not defined).
- 8-Directives and Contracts – The contracts are subject to any applicable Directives. It is not known whether any other Directives (apart from the current Directive which requires that SMOs be engaged under the contracts) will be issued at any stage that might affect SMOs who sign the contract.
- 9-No certainty – SMOs are to a large extent required to take the State on trust in a number of areas. For example, the State has unilateral power to vary the contract in relation to a number of matters including remuneration, hours of work and performance review.
Mr O’Gorman suggests a number of changes are needed to make the contract more in line with modern employer/employee relationships including:
- 1-Aspects of the contract that have not yet been determined should be determined and the details provided to SMOs before they are requested to sign the contract.
- 2-The State should disclose whether it intends to issue any further Health Employment Directives that might affect SMOs’ contracts.
- 3-The remuneration package should be made more certain and, importantly, by outlining how the remuneration to be paid pursuant to Tier 2, Tier 3 and Tier 4 of the SMO’s Total Remuneration Framework is to be calculated.
- 4-The State should confirm or deny whether SMOs are, in reality, being forced to enter the contract, in that, not to do so could result in termination of his/her employment with consequential loss of entitlements.
- 5-The State should outline the types of circumstances in which SMOs could be arbitrarily dismissed, especially in view of the following comments of Lord Millett of the House of Lords:
“Contracts of employment are no longer regarded a purely commercial contracts entered into between free and equal agents. It is generally recognised today that “work is one of the defining features of people’s lives” and that “loss of one’s job is always a traumatic event;” and that “it can be especially devastating” when dismissal is accompanied by bad faith…”
In light of this advice, AMA Queensland continues to urge members not to sign the SMO contract in its current form, after considering your personal situation including individual risks.
Public support for our campaign is growing through media coverage and via the ASMOF website of keepourdoctors.com.au.
Please share the link and encourage your networks to get behind the public health system.
AMA Queensland remains confident a workable, acceptable contract can be achieved if Queensland Health returns to the consultation table.
For more information visit www.amaq.com.au; call the AMA Queensland contract information hotline – 1300 356 155 or the ASMOF hotline -1300 362 193
Source: AMAQ