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Time to reconsider compulsory arbitration

26 October 2016

Last week 3,000 junior doctors went on strike complaining that the hours they work create an unsafe working environment.

Non-urgent services were cancelled and the public were urged to visit their GPs rather than the hospital emergency departments. Other medical staff had to provide essential services.

The New Zealand Resident Doctors' Association has been an active union for many years.

Some years ago they successfully campaigned for pay rises for junior doctors because of the low returns they received for long hours worked.

Now they are campaigning to reduce those long hours.

The issue that district health boards are likely to be facing is if junior doctors reduce their time without a reduction in pay, it could be costly to hire the extra staff needed and difficult to recruit them

The strike raises two important issues.

The first is around the framework society provides for settling industrial disputes generally.

The second issue is how society deals with industrial disputes in an industry where human life is at risk.

In 1894 New Zealand arguably led the world with its Industrial Conciliation and Arbitration Act.

There had been bitter industrial disputes in New Zealand prior to this, particularly in the maritime area between shipping and dockside workers and employers.

With this change, New Zealand had a system where unions of workers could register under the Act. By doing so, they gave up their right to strike and instead agreed to arbitration.

Under arbitration, a third party settled the dispute between the union and the affected employers.

Arbitration in one form or another was part of the New Zealand way of life until relatively recently.

It depended on a high degree of unionisation for its effectiveness if outcomes were to be New Zealand wide. Strikes were allowed in limited situations in the 1970s, but the real seismic shift happened in 1991.

The Employment Contracts Act essentially ended the old regime and brought in a new one. Union membership was now voluntary, not mandatory, and the Arbitration Court was abolished.

Unions had freedom to strike when industrial disputes hit a stalemate. Legislation was introduced to set minimum standards such as the minimum wage, sick leave, parental leave and health and safety entitlements.

Large industrial plants with strong union membership all but disappeared including the motor assembly plants in the Hutt Valley and the allied industries.

Other institutions, such as meatworks and the waterfront also changed. Automation reduced the need for large numbers of manual workers.

So what about strikes in hospitals or by the fire service or others in essential industries?

Our legislation deals with such essential services only by requiring a reasonably lengthy notice period for a strike.

The only outright prohibition on strike action applies to the police and the armed services. Police, in particular, can have their disputes settled through arbitration.

Those working in essential services are generally active members of their relevant union or association. Do readers think that in the case of police, the military, and now hospital workers' wages should be set by arbitration? Or should workers be able to strike?

Has the time come to gather together those involved in callings where human life can be at risk and place them under an arbitration system?

Clearly strikes in areas such as police, fire service, the military and the hospital system would not be supported by the public.

It may make more sense for arbitration to replace strikes and lockouts for those workers. Why have arbitration for police alone? Does it make sense?

In the meantime, we have what some might see as the "law of the jungle" operating in this space and junior doctors may be striking on and off for some time to come.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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