ASGP union bid faces serious obstacles

ASMOF is the only group blocking the move to become a registered organisation, but workplace law experts say that may just be the beginning.

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The newly formed Australian Society of General Practice wants to register as a union exclusively representing GPs, but the Australian Salaried Medical Officers’ Federation stands in the way.

ASGP, which is approaching its first birthday, says it plans to “harness the will of [its] membership and use all forms of effective lobbying (legal and ethical) at all levels of government to further general practice in Australia”. 

The group represents GPs, GP registrars and non-vocationally registered GPs.

ASGP President Dr Chris Irwin said having union status – also known as a “registered organisation” under Fair Work – would help the association solidify itself as an authority. 

“We don’t actually 100% need union status to do what it is that we want to do,” he told The Medical Republic. 

“But we do feel that it gives it gives ASGP moral authority to assist GPs in negotiations with government.

“It also does help [us in] situations with GP registrars in that … we can legally help to intervene in matters with regards to training.”

ASMOF is an established trade union representing salaried doctors. The AMA offers all its salaried members free membership to ASMOF, which is the only union the AMA is heavily involved in.

“We’ve been the primary accredited union for salaried medical practitioners in Australia for a very long time,” ASMOF Vice-President Dr Antony Sara told TMR. “We were even recognised by the predecessor to Fair Work.”

Dr Irwin argues that GPs, as a workforce largely made up of independent contractors, are somewhat sidelined by ASMOF as it primarily represents the interest of doctors employed by hospitals or state health departments. 

Other than ASMOF, the Health Services Union is the only other registered organisation claiming to represent health workers. It does not offer GP membership. 

As part of the process to become a registered organisation, Fair Work approaches other registered organisations from the same industry for any objections; ASMOF was the only one to object. 

If ASGP is unable to reach an agreement with the salaried doctors, the matter goes to a hearing in front of the Fair Work Commission.

At the heart of ASMOF’s objection is a quirk central to general practice as a workforce. 

“I own a couple of GP clinics, and one of our board members also owns a clinic,” Dr Irwin said. 

“[ASMOF’s] argument is that they’re concerned as to whether we can be a union that represents employees, if [some of us] are essentially employers ourselves.” 

Dr Irwin denied that practice ownership was a conflict of interest in this specific situation, calling it “extreme semantics”. 

Dr Sara, on the other hand, said ASMOF sees the matter as anything but trivial. 

“I don’t understand how there is not a fundamental conflict of interest in a person who owns a practice [claiming to represent an employee] whose interests are not the same as theirs,” the ASMOF Vice-President said. 

“Someone who employs has different interests to the person who is employed.

“It just doesn’t make sense to me.” 

He said ASMOF “questioned the capacity” of ASGP to “actually be a union”. 

“It would be like Mayne Nickless representing truck drivers – how could they possibly do it?” Dr Sara said. 

“Their interests are completely different. It’d be like Patrick Stevedores representing maritime workers.”

(While most practice owners don’t directly employ GPs in the traditional sense, as in the examples above, last year’s payroll tax ruling means that most contracts will satisfy the definition of employment at least to the satisfaction of NSW Revenue.)

Dr Irwin denied that the two interests are incompatible. 

“The role of ASGP is to improve health care for Australians by adequately lobbying at a state and federal level – preferentially with Fair Work status – to improve working conditions and funding in primary care as well,” he said.

“Of course, it’s mutually beneficial for both general practitioners and general practice clinic owners that GPs are happy and well-funded.”

Despite Dr Irwin’s can-do attitude, industrial relations and labour law expert Professor Anthony Forsyth said ASGP’s union status would depend on whether it could satisfy several legal tests under the Fair Work legislation. 

“One of the main ones is what they call the ‘conveniently belong’ test,” the RMIT professor said.

“What it means is if you’re an applicant for registration like ASGP, you have to show the Fair Work commission that there isn’t another registered organisation already in existence to which your members could more conveniently belong.”

In this context, he said, Fair Work may decide that ASMOF already represents GPs adequately.

This may be compounded by the fact that very little can be done for independent contractors inside the Fair Work framework. 

“If ASGP are trying to say ASMOF doesn’t properly represent these people and we can represent them better, it’s going to be a challenge,” Professor Forsyth said. 

“That’s because there’s not a whole lot they can do; even if they are registered, they can’t collectively bargain.”

Another test which Fair Work will consider is whether ASGP represents the interests of workers and is free from control or influence by any other organisation or by an employer.

“What the commission would be likely to say is, ‘well, this organisation is not free from control or influence by employers, because [some members] run clinics and engage other independent contractors to work as doctors in those clinics,” Professor Forsyth told TMR.

The good news, according to Professor Forsyth, is that ASGP – as Dr Irwin freely admits – does not require Fair Work registration to do what it aims to do. 

Professor Andrew Stewart, an expert in employment and workplace relations law at the University of Adelaide, made similar comments. 

“Union registration used to carry a lot more benefits to it, but right now – if you leave aside things like having a right to enter premises, which only a few unions bother to insist on doing anyway – it’s really only that you have an automatic right to appear before the Fair Work Commission to represent your members’ interests,” he said. 

“And even if you don’t have that automatic right, you can still ask to be heard and [other organisations do it] all the time.”

Professor Stewart said he couldn’t think of a recent instance in which an organisation like ASGP has requested to be heard before the commission and been denied.

“The process of getting registered puts you in – I’m not saying you’re in a world of pain, but I am saying that there are far, far, far more detailed regulation and disclosure requirements to being a registered industrial organisation than there are to being a company or an incorporated association,” Professor Stewart said.

Despite the challenges, Dr Irwin is still hopeful that ASGP will eventually become a union. 

“It’s an uphill battle against very well-funded opponents,” he said.

“I would just urge every GP that thinks that we need a union, that thinks we need adequate representation to protect GPs and patients, to join us or donate to us to help it become a reality.”