WORKPLACE RELATIONS
ARE YOU GETTING ALL YOUR ENTITLEMENTS AS A REGIONAL VMO?
A VISITING MEDICAL OFFICER (VMO) who is appointed to provide services at a regional hospital (known as a “regional VMO”) under the standard Fee-for-Service or Sessional Determination is entitled to additional entitlements over and above those who provide services at metropolitan hospitals. A list of regional hospitals is included in each VMO Determination.
VMOs who provide services at a Rural Doctors Settlement Package (RDSP) Hospital will be remunerated under the RDSP arrangements unless they also provide services at a regional hospital and choose to be remunerated under standard Fee-for-Service or Sessional arrangements.
Below we summarise the additional entitlements for regional VMOs under standard VMO Determinations.
Cancelled operating theatre time
Under the Fee-for-Service and Sessional Determinations, VMOs may be paid for cancelled operating theatre time where inadequate notice is provided. Payment will be made provided the VMO attends the hospital for the relevant period to attend to quality assurance and other activities unless excused from attending by the hospital.
A regional VMO (other than a sessional anaesthetist) can claim payment for the cancelled operating theatre time where less than 14 days’ notice is provided of cancellation. A regional VMO anaesthetist working
under a sessional arrangement can claim where less than 28 days’ notice is provided.
Call-backs
Sessional arrangements
A VMO engaged under a sessional contract is paid for services provided pursuant to a call-back (whether rostered on-call or not) as follows:
a) services provided within the hours of 8.00am to 6.00pm Monday to Friday are paid at the ordinary hourly rate plus a loading of 10%;
b) services provided outside the hours of 8.00am to 6.00pm Monday to Friday are paid at the ordinary hourly rate plus a loading of 25%;
c) services provided on a public holiday are paid at the ordinary hourly rate plus a loading of 50%.
A regional VMO engaged under a sessional contract will be paid a further loading of 10% on call-back services (whether rostered on-call or not) if the VMO’s usual place of residence is within a 50-kilometre radius of the regional hospital where the service was provided.
Fee-for-Service arrangements
Call backs (referred to emergency after-hours medical services) under Fee-for-Service contracts are those services initiated by the hospital for patients who require immediate treatment on a weekend, public holiday or outside the hours of 8.00am and 6.00pm on weekdays.
A VMO is remunerated for emergency after-hours medical services at the rate of 110% of the relevant fee payable under the contract.
A regional VMO will be paid 120% of the fee payable for an emergency after-hours medical service provided the VMO’s usual place of residence is within a 50-kilometre radius of the regional hospital where the service was provided.
Professional support
A regional VMO may claim a Professional Support Payment (PSP) of up to $15,000 (incl. GST) each year. Claims may be made for reimbursement of expenses which include (but are not limited to):
• Travel, accommodation, conference costs for CPD;
• Costs of locum cover while the VMO is on unpaid leave;
• Such other item/s in connection with the ongoing professional support of the VMO as the LHD/ Hospital may approve.
A regional VMO may claim reimbursement of up to $10,000 (incl of GST) each calendar year if the VMO:
1. has been continuously appointed at a regional hospital for the immediately preceding 12-month period; and
2. over the preceding 12 months at (at least) one regional hospital has under a sessional contract provided at least 450 ordinary and/ or call-back hours or under a feefor-service contract has provided services involving fees of at least $100,000; and
3. usual place of residence is within a 50-kilometre radius of (at least) one regional hospital where services have been provided.
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WORKPLACE RELATIONS
A regional VMO may claim reimbursement of up to $5,000 (incl. GST) each calendar year if the VMO:
1. has been continuously appointed at a regional hospital for the immediately preceding 12-month period; and
2. has participated in a one in four or more frequent basis over the preceding 12 months in an on-call roster or emergency after-hours medical services roster; and
3. usual place of residence is within a 50-kilometre radius of (at least) one regional hospital where services have been provided.
The PSP may be claimed each calendar year (1 January to 31 December) and accrues for up to two years.
AMA(NSW) review of the Determinations
AMA(NSW) has been in discussions with the Ministry of Health regarding amendments to the Determinations. The issues AMA(NSW) has raised with the Ministry include:
• indexing of the PSP which has not been increased since 2007;
• the payment of an appropriate loading where the experience of the junior medical staff at the hospital necessitates greater reliance on and attendance by the on-call VMO; and
• the payment of remuneration for services provided from home or elsewhere. dr.
AMA(NSW) encourages VMOs to familiarise themselves with their entitlements under the Determinations and to contact the AMA(NSW) Workplace Relations Team by email workplace@amansw.com.au or telephone (02) 9439 8822 . Please reach out to us if there are other changes you would like to see.
PERFORMANCE MANAGEMENT BEST PRACTICE
IT’S
A NEW YEAR and a good opportunity to review current processes and establish best practice for performance management moving forward. Performance management can tie up a lot of time for Practice Owners and Practice Managers and it’s also one of the most common matters about which AMA (NSW)’s Workplace Relations team is asked to assist.
Set Clear Expectations
It’s important to set clear performance expectations as soon as possible, regardless of whether it’s for a new or current employee. Setting expectations puts you and the employee on the same page regarding what an acceptable level of performance may look like.
Informal Feedback
Build informal conversations into day-to-day work or have regular check-ins. This takes away any unnecessary formality and helps to make these conversations feel more natural.
Recognising and acknowledging good performance can be equally as valuable as addressing areas of concern. Communicating what your employee is doing well helps them feel valued, engaged, and encourages them to continue to perform those tasks at that level.
Identify any areas of improvement in their performance and address it as early as possible. The earlier you address it, the higher the likelihood that the concern will be resolved efficiently. Make it clear what is expected moving forward and
what the employee needs to do to reach this performance standard. Communicate how you will be supporting them and ask them if they would like any other forms of support. Helping them feel heard will encourage buy-in and motivate the employee to work towards a shared purpose.
It’s best practice to always document any conversations addressing underperformance for your own records in case you need to refer to these further down the track.
Formal Performance Management
Despite our best efforts, sometimes the employee continues to fail to meet the minimum acceptable standards of performance. There may be some variation in how you formally manage performance issues depending on whether your employee is within their minimum employment period (MEP) and how much more opportunity you are willing to give the employee to improve. MEP is the minimum length of employment the employee needs to be employed for before they can access an unfair dismissal claim if terminated. The MEP is 6 months (or 12 months if the business has less than 15 employees).
Within MEP
You may wish to place the employee on an informal coaching plan, or depending on the extent of their underperformance, you may wish to terminate. There is no requirement under the Fair Work Act (FWA) to provide a reason when terminating an employee.
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WORKPLACE RELATIONS
However, we strongly recommend providing a reason in writing as to why they are being dismissed to mitigate risks around adverse action claims (claims an employee can submit when they believe they have been unlawfully terminated). This is because there is no length of service requirement for an employee to access adverse action claims.
Outside of MEP
Under the FWA, employers are required to afford procedural fairness and justify the outcome when it comes to disciplinary processes. This includes providing notice, affording the employee the opportunity to bring a support person to the meeting, giving a reasonable timeframe for them to consider their responses, and considering their responses before determining an outcome. There must be evidence and documentation throughout a formal disciplinary process and the outcome must be proportionate to the degree of underperformance and other factors. The outcome for a first formal disciplinary process around underperformance could be a warning and a formal performance improvement plan (PIP), for example.
No One Size Fits All
Speak with our Workplace Relations team so you can receive tailored advice and templates for your employee’s situation as there are several considerations and risks to consider. dr.
The AMA (NSW) Workplace Relations Team is available anytime to help members at no extra cost. Contact us at workplace@amansw.com.au or on (02) 9439 8822.Please email workplace@amansw.com.au or call (02) 9439 8822.
OFFSETTING
AWARD-COVERED EMPLOYEES, including private practice support staff, health professionals, and nurses are entitled to overtime, penalty rates, loadings, and allowances in certain circumstances.
‘Offsetting’ describes the practice of paying an employee a flat contractual rate higher than the award minimum for all hours of work, set at an amount intended to cover the employer for those extra award payments.
Otherwise known as ‘setoff’, offsetting is popular as it streamlines payroll processes. However, there are some important considerations to be aware of to make sure the practice is meeting its minimum obligations and to limit the risk of any underpayment claims.
Is it possible to offset?
Off-setting is normally fine, as long as:
a) The employee is still receiving overall at least what they would under the award;
b) The employment contract contains an appropriate offset clause;
c) The employer keeps accurate time and wages records for all hours worked.
How do I make sure the employee is still receiving what they would under the award?
It’s important not to ‘set-and-forget’ above-award rates. While it’s not required to check every pay period,
the smaller the difference between the flat rate and the award rate, or the more overtime, weekend, and public holiday work the employee performs, the more frequently you should check that you’re meeting your minimum obligations.
To do this, compare the minimum award entitlements for each hour worked to what the employee was actually paid over a particular pay period.
For example, let’s say you pay a part-time Level 3 receptionist under the Health Professionals and Support Services Award (HPSSA) a flat $32/hour. The employee works 20 hours a week, comprising two 6-hour shifts on Monday and Tuesday (12 hours), and 8 hours on Saturday.
As at the time of publication, the minimum rate for a Level 3 is $25.88 and the Saturday penalty rate is $38.82.
For the week, the employee was paid $640 ($32 x 20). The total award entitlement was $310.56 ($25.88 x 12) plus $310.56 ($38.82 x 8), which equals $621.12.
As you can see, the $640 is greater, so no extra payment would be required.
However, if that employee had picked up an additional overtime shift, or the Monday was a public holiday, it’s likely the flat $32 would no longer be sufficient. In that case the practice would be liable to backpay the employee the difference between what was paid and the total amount owed under the award.
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This is one of the reasons why it’s important to keep accurate time and wages records for all employees.
WORKPLACE RELATIONS
Overtime and penalty rates aren’t the only award obligations to consider, there are also shift loadings, annual leave loading and specific allowances that may apply.
AMA (NSW)’s Workplace Relations Team can also help you check that you’re offsetting correctly.
What does the employment contract need to say?
The contract should stipulate for what purpose the flat contractual rate is paid.
It’s very important to get the wording right, so our AMA (NSW) template contracts include a model offset clause which we provide to members at no extra cost.
The Federal Court recently held that where an employment contract didn’t have an appropriate offset clause, the business was required to backpay the employee to the minimum award overtime rates for overtime worked, despite the fact the employee had already been paid more overall.
Overtime and penalties can range from 150% to 250% of the minimum rate in the HPSSA and Nurses Awards, so it’s important to have a carefully crafted clause in place in your employment contracts if you want to offset lawfully.
What about annual leave loadingcan it be offset?
Both the HPSSA and Nurses Awards stipulate that during a period of annual leave, employees are entitled to annual leave loading, (normally 17.5% of the minimum rate for their classification), on top of what they are ordinarily paid.
Some practices who offset do include the annual leave loading
in the flat rate (in other words, they pay the same rate during periods of annual leave).
However, technically under these Awards, annual leave loading should be paid on top of the ordinary pay. Therefore, we advise that annual leave loading should not be included in the flat rate.
Let’s go back to our example of the Level 3 receptionist on $32/hour. 17.5% of the minimum award rate ($25.88) is $4.53. Adding this on top of the ordinary pay ($32), we get $36.53. This would be the minimum annual leave loaded rate.
What if I pay an annual salary instead of an hourly rate?
The HPSSA award allows Support Services employees at Levels 8 or 9, and Health Professionals at Levels 2,3 or 4 to be paid an annualised salary that includes entitlements such as overtime, penalties, and annual leave loading. In these circumstances it’s possible to avoid having to pay an extra amount during annual leave.
Annualised wage arrangements don’t apply to Support Services employees classified Level 7 or below, so won’t be available for most reception staff. There is no annualised wage arrangements clause in the Nurses Award.
Are there any other options to avoid paying extra during annual leave?
Both awards allow Individual Flexibility Arrangements (IFA’s) to be entered into, which are written agreements between employee and employer that change how certain clauses apply. For example, stipulating that annual leave loading doesn’t apply.
There are significant drawbacks with IFA’s. They can’t be included in the initial offer/contract of
employment and can only be negotiated separately after the employee starts. An employee can also unilaterally withdraw from an IFA with 13 weeks’ notice.
The agreement also needs to leave the employee better off overall than they would be if the agreement wasn’t made and “meet the genuine needs of both the employee and employer”. Clause 5 in each award sets out all the requirements for IFA’s.
What’s the best option?
In most cases, the simplest option for the practice, while still adhering to all requirements would be to
- have an appropriate offset clause in the employment contract;
- periodically check that the employee is still receiving at least what they would under the award, as needed, and;
- pay annual leave loading separately.
It’s also important to keep abreast of minimum award wage increases as they occur. dr.
Our Workplace Relations Team can talk through your particular circumstances and provide any template resources you require. For more information, please email workplace@amansw.com.au or call (02) 9439 8822.
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