Schedule 1B Code of good faith for public health sector

s 100D

Schedule 1B: inserted, on 1 December 2004, by section 69 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

1 Application

(1)

This code applies to the following parties to an employment relationship in the public health sector:

(a)

district health boards:

(b)

employees of district health boards:

(c)

unions whose members are employees of district health boards:

(d)

other employers to the extent that they provide services to district health boards or the New Zealand Blood Service:

(e)

employees of the employers referred to in paragraph (d) to the extent that they are engaged in providing services to district health boards or the New Zealand Blood Service:

(f)

unions whose members are employees referred to in paragraph (e):

(g)

the New Zealand Blood Service:

(h)

employees of the New Zealand Blood Service:

(i)

unions whose members are employees of the New Zealand Blood Service.

(2)

However, to avoid doubt, subclause (1)(d) and (e) applies in relation to the provision of services only if the services are provided to a district health board or the New Zealand Blood Service in its role as a provider of services.

(3)

Before a district health board or the New Zealand Blood Service enters into an agreement or arrangement with another employer for the provision of services to the district health board or the New Zealand Blood Service, the district health board or the New Zealand Blood Service must notify the employer that this code will apply to the employer in relation to the provision of those services.

(4)

However, failure to comply with subclause (3) does not affect the validity of an agreement or arrangement referred to in that subclause.

2 Purpose

The purpose of this code is—

(a)

to promote productive employment relationships in the public health sector:

(b)

to require the parties to make or continue a commitment—

(i)

to develop, maintain, and provide high quality public health services; and

(ii)

to the safety of patients; and

(iii)

to engage constructively and participate fully and effectively in all aspects of their employment relationships:

(c)

to recognise the importance of—

(i)

collective arrangements; and

(ii)

the role of unions in the public health sector.

3 Interpretation

In this code, unless the context otherwise requires,—

good employer has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000

health professional means—

(a)

an employee who provides services to patients as a health practitioner (as defined in section 5 of the Health Practitioners Competence Assurance Act 2003); and

(b)

any other employee who works in a recognised clinical discipline providing services for the purpose of assessing, improving, protecting, or managing the physical or mental health of individuals or groups of individuals

industrial action means a strike or a lockout

life preserving services means—

(a)

crisis intervention for the preservation of life:

(b)

care required for therapeutic services without which life would be jeopardised:

(c)

urgent diagnostic procedures required to obtain information on potentially life-threatening conditions:

(d)

crisis intervention for the prevention of permanent disability:

(e)

care required for therapeutic services without which permanent disability would occur:

(f)

urgent diagnostic procedures required to obtain information on conditions that could potentially lead to permanent disability

services

(a)

has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000; and

(b)

to avoid doubt,—

(i)

includes cleaning services, food catering services, laundry services, and orderly services; but

(ii)

does not include building construction services.

Schedule 1B clause 3 life preserving services paragraph (d): added, on 22 December 2006, by clause 4 of the Employment Relations (Code of Good Faith for Public Health Sector) Order 2006 (SR 2006/395).

Schedule 1B clause 3 life preserving services paragraph (e): added, on 22 December 2006, by clause 4 of the Employment Relations (Code of Good Faith for Public Health Sector) Order 2006 (SR 2006/395).

Schedule 1B clause 3 life preserving services paragraph (f): added, on 22 December 2006, by clause 4 of the Employment Relations (Code of Good Faith for Public Health Sector) Order 2006 (SR 2006/395).

General

4 General requirements

(1)

In all aspects of their employment relationship, the parties must—

(a)

engage constructively; and

(b)

participate fully and effectively.

(2)

In their employment relationship, the parties must—

(a)

behave openly and with courtesy and respect towards each other; and

(b)

create and maintain open, effective, and clear lines of communication, including providing information in a timely manner; and

(c)

recognise the role of health professionals as advocates for patients; and

(d)

make time to meet as and when required—

(i)

to address not only the industrial issues between the parties but also issues facing the public health sector, the employer, and the employees; and

(ii)

to search for solutions that will result in productive employment relationships and the enhanced delivery of services; and

(iii)

to ensure that any change is managed effectively; and

(e)

recognise the time and resource constraints that may affect their ability to participate fully, and make allowances for those constraints.

(3)

To enable employees and their unions to comply with subclause (1), employers must ensure that appropriate steps are taken in their workplaces to encourage, enable, and facilitate employee and union involvement.

(4)

The parties must use their best endeavours to resolve, in a constructive manner, any differences between them.

(5)

Subclauses (2) to (4) do not limit subclause (1).

5 Obligation to be good employer

Every employer must be a good employer.

6 Collective bargaining and collective agreements

(1)

The parties must support collective bargaining, including multi-employer collective agreements, where it is practical and reasonable to do so.

(2)

The parties must, as far as practical and reasonable, support the definition of coverage that best recognises the parties’ commitment to collective employment arrangements.

7 Principles of the Treaty of Waitangi

The parties must recognise and support Part 3 of the New Zealand Public Health and Disability Act 2000 which, in order to recognise the principles of the Treaty of Waitangi and with a view to improving health outcomes for Maori, provides mechanisms to enable Maori to contribute to decision-making on, and to participate in the delivery of, health and disability services.

Collective bargaining

8 Agreement on clinical expert or other suitable person

As part of the arrangement required under section 32(1)(a), the parties must make every endeavour to agree on a clinical expert or other suitable person for the purposes of clause 13(1).

9 Specific things employers must not do during collective bargaining

During collective bargaining employers must not—

(a)

communicate directly with union members in relation to the collective bargaining; or

(b)

negotiate with employees who are not union members with a view to undermining or influencing the collective bargaining; or

(c)

attempt to discourage employees from joining or remaining with the union; or

(d)

contract out services with a view to undermining or influencing the collective bargaining; or

(e)

terminate or fail to renew a contract with another employer who is providing public health services through its employees, with a view to undermining or influencing any collective bargaining between the other employer and its employees.

10 Mutual obligations

(1)

During collective bargaining each party must—

(a)

give thorough and reasonable consideration to the other’s proposals; and

(b)

not act in a manner that undermines the other or the authority of the other; and

(c)

not deliberately attempt to provoke a breakdown in the bargaining; and

(d)

where appropriate, consider ways in which they may take into account tikanga Maori (Maori customary values and practices) in the bargaining.

(2)

If agreement cannot be reached or the collective bargaining is in difficulty, the parties must give favourable consideration to attending mediation without delay, and must consider third party decision-making.

(3)

The parties must recognise that collective bargaining and collective agreements need to—

(a)

provide for the opportunity for participation of union officials, delegates, and members in decision-making where those decisions may have an impact on the work or working environment of those members; and

(b)

provide for the release of employees to participate in decision-making where appropriate, acknowledging the key role of union delegates in the collective representation of union members; and

(c)

provide for union delegates to carry out their roles, including the time needed for communication and consultation with members, and for union delegate education.

Patient safety

11 General obligation for employers to provide for patient safety during industrial action

During industrial action, employers must provide for patient safety by ensuring that life preserving services are available to prevent a serious threat to life or permanent disability.

12 Contingency plans

(1)

As soon as notice of industrial action is received or given, an employer must develop (if it has not already done so) a contingency plan and take all reasonable and practicable steps to ensure that it can provide life preserving services if industrial action occurs.

(2)

If an employer believes that it cannot arrange to deliver any life preserving service during industrial action without the assistance of members of the union, the employer must make a request to the union seeking the union’s and its members’ agreement to maintain or to assist in maintaining life preserving services.

(3)

The request must include specific details about—

(a)

the life preserving service the employer seeks assistance to maintain; and

(b)

the employer’s contingency plan relating to that life preserving service; and

(c)

the support it requires from union members.

(4)

A request must be made by the close of the day after the date of the notice of industrial action.

(5)

As soon as practicable after the employer has made a request but not later than 4 days after the date of the notice of industrial action, the parties must meet and negotiate in good faith and make every reasonable effort to agree on—

(a)

the extent of the life preserving service necessary to provide for patient safety during the industrial action; and

(b)

the number of staff necessary to enable the employer to provide that life preserving service; and

(c)

a protocol for the management of emergencies which require additional life preserving services.

(6)

An agreement reached between the parties must be recorded in writing.

13 Adjudication

(1)

If the parties cannot reach agreement under clause 12(5) they must, within 5 days after the date of the notice of industrial action, refer the matter for adjudication by a clinical expert or other suitable person as agreed under clause 8.

(2)

The adjudicator must conduct the adjudication in a manner he or she considers appropriate and must—

(a)

receive and consider representations from the parties; and

(b)

in consultation with the parties, seek expert advice if the adjudicator considers that it is necessary to do so; and

(c)

attempt to resolve any differences between the parties to enable them to reach agreement and, if that is not possible, make a determination binding on the parties; and

(d)

provide a determination to the parties as soon as possible but not later than 7 days after the date of notice of industrial action.

(3)

The parties must use their best endeavours to give effect to the determination.

(4)

The parties must bear their own costs in relation to an adjudication.

Public comments

14 Recognition of employees’ right to make public comments

(1)

Employers must respect and recognise the right of their employees to comment publicly and engage in public debate on matters within their expertise and experience as employees.

(2)

However, this clause applies subject to clauses 15 to 17.

15 Employee must first raise matter with employer

Before an employee exercises the right specified in clause 14(1) in relation to the operations of his or her employer, the employee must first—

(a)

raise the matter with his or her employer; and

(b)

provide a reasonable time for his or her employer to respond.

16 When employee may make public comments about employer’s operations

If the employee is dissatisfied with his or her employer’s response or there is no response from his or her employer, the employee may exercise the right specified in clause 14(1) if the employee makes it clear that he or she is—

(a)

speaking in a personal capacity; or

(b)

speaking on behalf of a union with its authority to do so.

17 Confidentiality

When exercising the right specified in clause 14(1), an employee must not breach patient confidentiality or professional confidentiality.

18 Rights of union not affected

To avoid doubt, clauses 14 to 16 do not prevent a union from making public comments or engaging in public debate on any matter relating to the public health sector.

Continuity of employment

19 Outsourcing or direct provision of services

(1)

This clause applies if—

(a)

an employer is a district health board or the New Zealand Blood Service; and

(b)

the employer obtains services from its employees; and

(c)

the employer engages or arranges for another employer to provide some or all of those services—

(i)

to the employer (outsourcing); or

(ii)

direct to patients (direct provision).

(2)

The employees referred to in subclause (1)(b) who are affected by the outsourcing or direct provision are entitled to be employed by the other employer on the same terms and conditions as applied to the employees immediately before the outsourcing or direct provision took effect.

20 Change in provider of outsourced services

(1)

This clause applies if—

(a)

a district health board or the New Zealand Blood Service has outsourced (within the meaning of clause 19(1)(c)(i)) the provision of services to it by another employer; and

(b)

the agreement or arrangement under which the other employer provides those services comes to an end; and

(c)

the district health board or the New Zealand Blood Service makes an agreement or arrangement with a new employer to provide some or all of those services to it.

(2)

The employees of the employer referred to in subclause (1)(b) who are affected by the outsourcing are entitled to be employed by the other employer on the same terms and conditions as applied to the employees immediately before the agreement or arrangement referred to in subclause (1)(b) came to an end.

21 Obligation to notify provisions of clauses 19 and 20

(1)

Before a district health board or the New Zealand Blood Service enters into an agreement or arrangement with a new employer to which clause 19 or clause 20 applies, it must notify the employer of the provisions of clause 19 or clause 20, whichever applies in the circumstances.

(2)

However, failure to comply with subclause (1) does not affect the validity of an agreement or arrangement referred to in that subclause.

(3)

This clause is in addition to clause 1(3).

Remedying breaches of good faith

22 Notice of breach

If a party believes that another party has breached the duty of good faith in section 4, it must bring this to the attention of the party in breach at an early stage.

23 Obligation of party in breach

A party in breach must—

(a)

if the breach can be made good, make good the breach by making every endeavour to restore the other party to the position the other party was in before the breach; or

(b)

if the breach cannot be made good, provide an explanation to the other party.

Transitional

24 Transitional

(1)

This code does not apply to anything done or any matter arising before the commencement of the code.

(2)

However, subclause (1) applies subject to subclauses (3) and (4).

(3)

Subclause (1) does not prevent the code applying in relation to—

(a)

a collective agreement entered into before the commencement of the code; or

(b)

bargaining for a collective agreement that began before the commencement of the code.

(4)

Clause 20 applies even though the agreement or arrangement referred to in clause 20(1)(b) was entered into before the commencement of the code.