Arbitration Week 7 Recap

Key updates

ASMOF has now completed the vast majority cross-examination of the Health Secretary’s key lay witnesses.

The hearing adjourned early on Tuesday 24 February due to a strategic decision not to cross-examine select witnesses scheduled on that day.

This week, the matter moves into expert evidence.

Read on for a full recap and highlights from last week’s proceedings.

Recap: ASMOF’s Position

ASMOF’s position is that there have been significant work value changes and productivity improvements since the last work value case for Staff Specialists. We note that no work value case has ever been run for Doctors in Training (DITs) and Career Medical Officers (CMOs).

Our view is that the roles of DITs, CMOs, and Staff Specialists have changed substantially over the last 20 years, including:

Increased clinical complexity and acuity

Expanded supervisory, training and mentoring responsibilities

Greater administrative and governance obligations

Heightened service demands in the context of workforce shortages, bed block, and increasing expectations from patients and families

Increased expectations regarding productivity, efficiency, system performance and patient outcomes

We have also presented evidence that NSW Health is facing serious recruitment and retention pressures, including:

Greater reliance on Visiting Medical Officers and locums (at higher cost)

Growth in non-standard and local employment arrangements (including Non-Standard Determinations)

Doctors leaving NSW for interstate systems with comparatively better pay and conditions

Ongoing workforce maldistribution, particularly in regional and rural areas

Unsafe workloads and excessive working hours across the system

Staff Specialists increasingly reducing their FTE due to workload and to accept higher paying VMO and Locum work (which pays them for the hours they work) or private practice

These issues are structural, not temporary. The health system is being sustained by the effort, skill and productivity of doctors working in NSW Health, and this increased work value must be properly recognised. That is why your union is advancing 91 claims in our consolidated Award.

NSW Health’s Position

The Ministry argues that overall retention remains relatively stable and that doctors move roles for a range of professional and personal reasons. While acknowledging challenges in regional and rural areas, it says these issues are driven by multiple factors.

The Ministry also maintains that there is a national shortage of doctors across many specialties, which it says is outside NSW Health’s control and limits its ability to significantly expand the medical workforce.

It has emphasised the need for flexible engagement models to maintain service delivery and has characterised the use of Visiting Medical Officers, locums and non-standard arrangements as routine workforce management, rather than evidence of systemic strain.

The Ministry has also sought to downplay the extent of on-call work and onerous hours. It relies on its interpretation of previous case law to argue that the current salary structure should remain in place. The Ministry further argues that introducing a wages model for Staff Specialists would require significant new administrative and governance systems and would detract from the present autonomy and flexibility of their work.

The Week in Review

ASMOF’s legal team has now cross-examined all the Health Secretary’s key witnesses, including:

Chief Medical Workforce Advisor, Ministry of Health

Applications Manager, eHealth

DMS, HNELHD

Manager Medical Training and Administration Unit, SLHD

Employees and Financial Shared Services, HealthShare NSW

Deputy Secretary for Financial and Corporate Services and Chief Financial Officer, NSW Health

Medical Director, HETI

DMS, SWSLHD

Director of Performance Analysis and Reporting, NSW Health

Director, Workforce Insights and Transformation, MoH

Director, Workforce Operational Strategic Unit, MoH

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Key Themes Examined

Given ongoing proceedings, this is a high-level summary of issues explored. The key themes explored during cross examination included:

Workforce vacancies and staffing pressures

Evidence examined how NSW Health measures workforce vacancies, and the limits of centralised data.

Witnesses were questioned about recruitment pressures, maldistribution, and whether current vacancy levels are structural rather than temporary.

It was explored whether part-time Staff Specialists sometimes carry the same on-call load as full-time colleagues due to staffing shortages.

Payroll and rostering systems

Detailed focus was placed on the capacity of StaffLink and eHealth to implement Award variations.

The Ministry’s estimates for implementing payroll changes were tested, including whether they were high level and subject to change.

Evidence raised ongoing wage disparities and inconsistencies in managerial allowances and penalty arrangements.

Financial and budget considerations

Evidence explored how any Award outcome would interact with Treasury processes and annual budget cycles.

Fatigue and safe working hours

Cross examination addressed burnout and fatigue among junior doctors.

Witnesses were questioned about high workloads, missed breaks, overnight work, and exposure to difficult clinical incidents.

Evidence considered whether minimum rest periods and fatigue safeguards are formalised and enforceable or managed informally through local flexibility and the goodwill of doctors.

Supervision, training, and professional development

Pressures on senior doctors were examined, including increasing clinical demand and supervision responsibilities.

Questions focused on whether training and mentoring are being compressed by service delivery obligations, and whether protected time for supervision should occur within rostered hours rather than personal time.

Evidence considered how much training currently occurs outside rostered hours, and that structuring training within rostered hours is the ideal arrangement.

Support for Award provisions

Cross examination explored support for proposed Award clauses, including education allowances, procedural fairness, leave without pay processes, and managerial allowances.

Witnesses were asked whether such clauses are fair and reasonable, and whether greater clarity and structure in the Award would provide consistency and support across the system.

Additional Witness Insights

While the Ministry maintains its formal position as outlined in this email, some of its witnesses acknowledged operational pressures, recruitment challenges and systems issues in certain settings.

Note: Ultimately, the weight to be given to the evidence will be determined by the Commission.

The Week Ahead

This week we move into the next phase of the hearing, with expert witnesses appearing before the Commission. ASMOF’s expert witnesses are:

Prof. John Buchanan

Prof. Martin O’Brien

Prof. Anthony Scott

A Prof. Grace Vincent

Dr Sarah Wise

The expert evidence will address issues such as:

Economic modelling concerning wages and inflation

The reduction in real wages attributable to increases in the cost of living

Interstate comparisons of wages and employment entitlements

Safe working hours and rostering practices

The costing of the claims and their projected impact on the NSW Budget

The findings of ASMOF’s Award Arbitration survey, as reported by Dr Sarah Wise

What’s Next After the Expert Evidence?

Following the conclusion of the expert evidence, our legal team will prepare detailed written submissions to be heard by the Full Bench in late May. We will continue to keep members informed as the matter progresses, and ensure you know exactly what is happening inside the Commission as the case progresses.

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