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Australia
At the beginning of May 2020, as Australia was in the midst of the COVID-19 pandemic, a group of self-employed doctors and their representative organization, the Australian Medical Association (AMA), obtained permission from Australia’s competition regulator, the Australian Competition and Consumer Commission (ACCC) to engage in collective bargaining with privately run hospitals in New South Wales (NSW) over the engagement of those doctors by the hospitals.
The doctors concerned were self-employed and maintained private medical practices. However, they also had arrangements as “Visiting Medical Officers” in Australia’s publicly run hospitals, to perform surgery in Australia’s public health system. These were individual arrangements between each doctor and a public hospital over the terms of that doctors’ practice within the hospital, and there were around 8,000 such appointments.
One of the early responses in Australia to the COVID-19 pandemic was to cancel all elective (non-emergency) surgeries in Australian hospitals.
The goal was to ensure that the Australian health system had the capacity to deal with any significant increase in hospital admissions as a result of the pandemic.
To ensure that aspects of the public medical system continued to operate, arrangements were put in place to allow some public medical care, including elective surgeries, to be conducted in privately run hospitals.
This meant that those doctors who had been providing services to public hospitals, were suddenly needed to provide those same services to privately run hospitals and urgently needed to negotiate with those hospitals over the terms of any engagement.
Individual negotiation, in these circumstances, would have been complex and time consuming, and would have placed the doctors at considerable disadvantage in dealing with large private hospital providers— obstacles that could have impeded the response of Australia’s health system to the COVID-19 pandemic. However, under Australia’s competition laws, genuinely self-employed workers cannot act collectively in setting the terms and conditions of their engagements, as such conduct could constitute an unlawful cartel.
In practice this meant that each doctor would have to negotiate, separately and independently of all other doctors in the middle of a crisis, if doctors were to be found to conduct elective surgeries.
However, while Australia’s competition laws outlaw cartel conduct, there are als o provisions in the laws that recognize that in certain circumstances, there may be benefit to the public in allowing “cartel”-like conduct—collective bargaining—to proceed despite potential risks of anticompetitive outcomes. Those provisions enable the ACCC to permit the conduct to proceed free of any potential liability under cartel laws.
