Health Sector Code of Good Faith developed: a Health Sector Code of Good Faith, designed to assist relationships between workers and employers, has been developed over the last two years. It sets out rights and responsibilities, most notably when health workers take industrial action.

The Health Sector Code of Good Faith is built on the principle that the public is better served when responsibility and power are shared between government, district health boards (DHBs) and health unions, than when they are wielded against one another.

It was developed in the context of a move towards tripartism in the sector, with the establishment of a health sector tripartite steering group in early 2002 and its subsequent work. The idea of a health sector code of good faith was raised by the then Minister of Labour Margaret Wilson in April 2003. She asked DHBNZ and the Council of Trade Unions (CTU) to consider supporting a sector-specific code, in line with the provisions of the Employment Relations Act (ERA).

A working party of myself, Service and Food Workers' Union lawyer, Luci Highfield, Association of Salaried Medical Specialists' lawyer Henry Stubbs and DHB chief executives Jan White (Waikato), Chai Chuah (Hutt Valley) and Dwayne Crombie (Waitemata) was set up, convened by employment law specialist Peter Chemis. It developed a consensus document, which, after refinement, has been generally accepted as the basis for formal consultation in the sector and promulgation of a Health Sector Code of Good Faith under the ERA.

The process was thrown into temporary disarray in November 2003 when the Ministry of Health expressed a previously unknown view that such a code was futile. The Ministry proposed extracting those parts of the code dealing with strikes and writing them into a proposed amendment to the ERA--section 100D --along with establishing a new power allowing the Minister of Health to impose a code of employment practice on health workers. After concerted opposition by the CTU and DHBNZ, it was withdrawn.

At present the code has no legal effect and will not do so until the Employment Relations Law Reform Bill is enacted. However, as far as NZNO is concerned, the code is effectively in place already, as part of our good faith relationship with DHBNZ.

The principles underpinning the code are promotion of good faith dealings; promotion of collective bargaining; recognition that industrial action is a legitimate bargaining tool; recognition of the role of health professionals as patient advocates; and respect for the Treaty of Waitangi.

The code applies to all DHBs and their contractors, DHB employees and unions, and sets out provisions dealing with general aspects of a good faith employer-employee relationship. The part of the code that has generated most interest is patient safety during industrial action. The major risk to patients in the event of a strike arises from a failure to properly assess risks or failure to plan to manage those risks. Often these failures occur because employers and unions have not been clear who is responsible for safety during a strike.

Any risks to patients also pose serious risk to the effectiveness of industrial action. Nothing would collapse a determined nurses' strike more quickly than the death of a patient. Nothing is more significant in stopping nurses taking strike action in the first place than fear that a patient may come to harm. It is in the interests of both patients and effective industrial action that the critical issue of patient safety is managed. The code does this by making it clear where responsibility lies and setting out the process for ensuring risks are identified and managed.

The code recognises that it is the employer who is responsible for patient safety in a strike. The purpose of giving 14 days' notice of industrial action in the health sector is to ensure the employer understands the nature of the notified industrial action, has time to consider what risks it poses, and to prepare appropriate contingency plans.

A failure by the employer to make adequate provision for safety does not shift responsibility for patient safety to the union or to nurses. The whole point of industrial, action is that it is very difficult for an employer who is unwilling to reach a satisfactory settlement in the course of normal bargaining. Its purpose is to bring an unwilling employer back to the table and to a settlement.

The code focuses contingency planning on the maintenance of "life preserving services" which means:

* crisis intervention for the preservation of life

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

* urgent diagnostic procedures required to obtain information on potentially life threatening conditions.

In order to fulfil this obligation, the employer must undertake effective contingency planning. The plan must minimise the demand for life preserving services. It must also minimise or, ideally, eliminate any reliance on nurses who are covered by the strike notice.

If the employer is unable to ensure all life preserving services are provided, then the code requires the employer to advise the union of this problem, together with details of the contingency plan. The union is required to meet the employer, and both parties must make every effort to reach agreement on the extent of life preserving services needed, the staff needed and a protocol for managing emergencies. Once NZNO is convinced an employer has fully exhausted the options available, our approach would be to work with members with the required skills and experience to arrange how the employer's plan can work safely. Where this required one or more members to provide care, this would be agreed with the members concerned. Any members providing care in these circumstances would still effectively be on strike and would be working under the particular conditions agreed by NZNO, the members concerned and the employer.

However, the preferred resolution to the difficulties of contingency planning in the event of a strike is that the employer reaches a settlement before that scenario is played out.