The Health Services Union (Union) has finalised their internal election over the past fortnight, including the positions of Secretary, Assistant Secretary and the Committee of Management.

What does this mean for health public sector employers over the coming period? Employers within the sector can expect a reinvigorated and re-energised Union presence on their sites and greater industrial engagement from their local Union organiser and Industrial Officer.

Whilst the incumbent ticket has been elected unopposed, aside from the creation of an additional Assistant Secretary position, it’s not all business as usual. The re-election of the incumbent ticket is often perceived as a mandate for the Union to increase their presence on the ground and reinvigorate their broader campaigns. This will be greatly assisted by the public goodwill towards healthcare workers arising out of the COVID-19 pandemic.

With the Union covering a broad range of health sector workers, ranging from hospital cleaners to junior doctors, their density and appetite for state wide campaigns will be a relevant consideration over the coming months and years. Further, with the election of the Albanese Labor Government, a more emboldened Union presence is to be expected, and more importantly, planned for.

We have outlined below the three main areas to keep an eye on.

1. Consultation

Consultation disputes are a common entry point for union campaigns, particularly in circumstances where their membership may be disgruntled about proposed change more broadly. This is true even when the employer is nevertheless entitled by way of managerial prerogative to make such a change.

Many health public sector employees are long term and accustomed to entrenched practices and working arrangements. Where an employer seeks to amend those practices, the myriad of State Awards which cover NSW Health workers proscribe mandatory consultation obligations with the Union and staff with respect to the proposed change. Indeed, the same can be said for those in the private sector.

Failure to adhere to the consultation obligations is likely to lead to a consultation dispute, which may delay the operational changes sought and result in avoidable litigation with the Union.

In working through proposed changes, employers should be mindful of the consultation obligations which arise under the applicable State Award, and also the Work Health and Safety Act 2011, as well as the suite of policies that apply to NSW Health.

Being aware of the layered consultation obligations which exist and engaging proactively on proposed changes can limit the capacity for industrial disputation and subsequent delay and disruption of operational changes.

2. Casual Conversion

The Union has quite effectively utilised federal casual conversion requirements with their aged care membership. Whilst these federal obligations do not carry across to public sector health workers, there are other mechanisms available for the Union to agitate similar campaigns and concerns on behalf of their public sector membership.

The NSW Health Status of Employment Award applies to a broad range of public health employees, and requires NSW Health to limit their use of temporary and casual employment arrangements and term contracts in favour of ongoing employment arrangements.

The Award provides that no positive step is required for casual conversion to occur, instead it occurs as a matter of strict application. Where an employee has been engaged continuously on a temporary contract for more than 13 weeks, the Award as a matter of law simply deems such an employee as permanent.

Disputes of this nature are popular within the Union due to their simplicity, and the substantial impact on the membership and Union reputation where an employee is successfully recognised as permanent. Such disputes have an impact on the status of the relevant employee and may also result in back pay and accrual of relevant leave entitlements. An unexpected conversion can be highly disruptive to funding arrangements, particularly where a permanent position was not accounted for in the circumstances.

Employers within the sector need to be cognisant of the risk of engaging in temporary arrangements of this nature, and be mindful of the length of such arrangements to ensure that the automatic conversion provisions of the Award are not unintentionally enlivened.

3. Right of Entry

Lastly, targeted right of entry campaigns are the bread and butter of union organising, and health agencies can expect an uptake of right of entry notices under both the Industrial Relations Act 1996 and Workplace Health and Safety Act 2011.

The various rights and obligations of right of entry must be strictly adhered to, particularly as civil penalty regimes apply, not just with entry into the worksite itself, but also more broadly in relation to the production and copying of sensitive documents.

Kingston Reid has recently provided training to a Local Health District on the complicated legislative scheme surrounding right of entry, as well as helpful tips and tricks from our lawyers who have worked closely with Unions. We would be happy to provide training across health agencies to ensure that HR and IR managers are well equipped moving forward. Please contact either Lucy or Justine on the details provided below.

Be Prepared

In summary it is important for health sector agencies to be prepared for increased Union presence and activity. Being aware of your obligations, having a plan and seeking advice early is key to managing relationships, achieving internal change and limiting disputation.

Join us at Healthy Workplace Connections

We invite you to join our monthly virtual catchup specifically for HR and IR professionals in the health sector to hear about the latest developments and why they are important and connect with others in the sector. Keep an eye out for the invitation which will be sent soon.

Lucy Shanahan
Partner
+61 2 9169 8405
[email protected]

Justine Amin
Lawyer
+61 2 9169 8415
[email protected]