Senior Wellington Hospital doctors Andrew Davies, Daniel Stahlhoven and Maas Mollenhauer on the picketline outside Wellington Hospital in May this year. Photo: RNZ/Ruth Hill
Getting the Employment Relations Authority (ERA) to decide pay and conditions for senior doctors may be the circuit-breaker needed to end the impasse, according to one legal expert.
In a move that is unprecedented for the public sector, Health NZ is applying to the ERA to "fix" the terms of its contract with the Association of Salaried Medical Specialists.
The union has panned the move as "unwarranted" and likely to make its 5500 members even angrier, as they prepare to walk off the job for 48 hours next week.
Employment law specialist Simon Schofield, who teaches at Auckland University, said it may give both sides a way out if all other options were exhausted.
"Genuinely, I think it's a good thing. I think it's a good thing that Health NZ is making this application because it signals an end - or a possible end - to this dispute.
"And whether it's in favour of the doctors, or in favour of Health NZ, that's less of a worry to the public."
It was very rare for the ERA to be called on to "fix" terms in this way, and unprecedented for it to happen in the public sector, he said.
The only two cases in which the ERA had decided terms were Jack's Hardware & Timber, involving two South Island Mitre 10 stores, and the environmental management services company Nelmac.
In the case of Jack's Hardware, the ERA ultimately fixed a pay rate that was comparable to what the opposition (Bunnings) was paying its workers.
"In this environment, they could look at what's being offered [to doctors] in the private sector and Australia to use in terms of fixing.
"The whole health sector is under strain, you can see that from the number of doctors and nurses heading to Australia, so you can understand why the doctors feel they need to strike in order to get a better deal.
"That said, the minister [Simeon Brown] is clear that Health NZ has got to provide a service, and in doing that, it needs to ensure it does the best job it can with the money available, and these are straitened financial circumstances.
"So a balance has got to be struck.
"This dispute is clearly a priority for the minister."
The question for the ERA would be whether the parties had "got to the end of the road" and, if so, what would "fixing" entail in such a challenging environment.
As different parts of the health system operated in such different ways, it was not possible to say whether such an approach could work for nurses, who were also ramping up strike action, he said.
"But absolutely this could [be] applied in terms of other public services, including teachers. The challenge, of course, with regard to teachers as opposed to the health sector is patients.
"While it's inconvenient for teachers to strike and for students to not be in school, there's not that same level of urgency."
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