What’s new: Hiring For Your Medical Practice In 2020

The employment law space was abuzz in 2019. For those who missed it, here is a snapshot:

3% increase in modern award minimum wages

For financial year 2019-2020, the national minimum wage increased from $719.20 to $740.80 per week or $18.93 to $19.49 per hour based on a 38-hour week. Casual loading of 25% remains unchanged.

The 3% increase was adopted across all modern award pay rates. You should check if you paid your employees correctly post 1 July 2019.

Wage theft

Last year we witnessed an avalanche of alleged wage theft claims involving big name businesses across industries from Commonwealth Bank, Bunnings, Woolworths to Michael Hill. The hospitality industry was the hardest hit implicating the likes of Lucas Group, Merivale Group, Rockpool Dining Group, Grill’d, Chatime, Coffee Club etc… On a brighter note (or not), there were two healthcare providers (dental clinics in Campbelltown and Melbourne CBD) that were caught up in the mix. This trend is unlikely to fizzle out anytime soon.

Whilst some employers have attributed the breaches to payroll software glitches or unintended human error, there seems to be a trend where allegations were made by low level staff or temporary visa holders for exploitative behaviours by employers.

Casual v permanent employee

Since the Federal Court’s decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131 and Birner v Aircraft Turnaround Engineering Pty Ltd [2019] FCA 1085, it has not brought more certainty when it comes to dealing with casuals claiming to be permanent employees.

In WorkPac, the Federal Court ruled that the employee is in fact a permanent employee. Amongst other facts, the employee had a fixed roster given a year in advance and was being paid $55 per hour. The Court ruled that having the employment categorised as ‘casual’ does not in itself determine the employment status (substance over form).

Whereas in Birner the Court made some distinctions that determined the employee was a casual, such as:

• employee was given a roster monthly, weekly or sometimes days in advance;

• employee has all rights to turn down rostered work which the employee did on at least 2 occasions;

• employee’s roster and shifts varied considerably from time to time;

• there was no requirement for formal leave application.

As ‘casual employment’ is not defined by statute, the Court characterised it as both employer and employee have ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern of work’.

Freedom of speech and social media

With the settlement of the Israel Folau and Rugby Australia’s legal dispute, we may not know the extent of an employer’s rights in managing employees’ public expression of personal/political/religious views - especially when they breach company policy/code of conduct that are damaging to the employer.

Nevertheless, in Murkitt v Staysafe Security T/A Alarmnet Monitoring [2019] FWC 5622, the question of proportionality is key when an employer dismissed an employee for a serious breach of social media policy. In this case, the employee published a post that was critical of the employer which The Commissioner found was a valid reason for dismissal. However, The Commissioner then took into consideration her medical history at that time, her length of service, prior disciplinary issues and concluded that the termination was not proportionate to the circumstances.

Apart from the above, more importantly the Fair Work Commission has also completed a 4-yearly review of modern awards as part of the plain language drafting project. Amongst the decisions that impacted the Health Professional and Support Services Award 2010 include:

Definition of “practice”

Prior to this amendment, only “private medical, dental, pathology practice” were included in Clause 3 of the award. The definition has now expanded to include physiotherapy, chiropractic and osteopathic practices.

“All inclusive” annualised remuneration arrangements

From 1 March 2020, if you are paying or intend to pay your employee an “all inclusive” annual remuneration as opposed to strictly based on the award, you are required to ensure that:

• employee agrees to the arrangement;

• calculation formulae including assumptions used in calculation (eg over time, ordinary hours etc…) commensurate the award rates and are properly recorded;

• employees work hours (start, break times) are to be recorded for employees’ acknowledgment at pay cycle with yearly reconciliation to ensure compliance; and

• employees are paid for hours worked beyond the calculation formulae.

In short, the “all inclusive” remuneration package must reflect the benefits/entitlement and must be no lesser than the award.

Definition of “ordinary hours”

The ordinary hours of work for day worker is to be carried out between 7.30am and 9.00pm, Monday to Friday and between 8.00am and 4.30pm on Saturday. These hours vary for shift work and practice that services patients 7 days a week.

Flexibility arrangements, consultation on changes to roster/hours of work and major workplace change

Where there is a genuine need by the employer and employee, they may vary the terms in relation to arrangements for where work is to be performed, overtime rates, penalty rates, allowances or annual leave loading. If the employer is initiating the variation, it is to provide a written proposal to the employee. Overall, the employee must be better off with the new agreement than if had not been made.

If you wish to change an employee’s ordinary hours of work or regular roster, there must be consultation between the parties. The consultation must include information of the proposed change to allow the employee opportunity to give their views, including potential impact it will have on them.

For any major changes you wish to implement in the practice (eg restructure, organisational, technological etc...) that is likely to have significant effects on the employees, you are required to give notice and have discussion with the affected employees.

What you should know:

As an employer or if you are planning to hire this year, it is important to consider the following:

1. If the position(s) is covered by the Health Professionals and Support Services Award [MA000027], check for latest updates on Fair Work Ombudsman’s website to ensure compliance.

2. Review and update your practice’s policies periodically and communicate to your employees. Have one if there isn’t one.

3. Keep abreast with general developments in workplace practices (subscribe to Fair Work’s newsletter or follow them on social media).

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