Are employers obliged to engage in Enterprise Bargaining?

CURRENT CIRCULATION: 7,847 DATE: 5th October, 2011 ISSUE NO: 185

Welcome to Health & Life’s free email newsletter service. Tell a friend that we would be happy to add their email address to the distribution list. This service is to provide Health and Life’s clients and those who attended our presentations with up to date information on key financial and practice management issues that may affect your practice. Please do not use this as a substitute to seeking professional advice.

Writer in charge: Mr David Dahm BA.Acc, FCPA, FTIA, Ffin, FAAPM, GLFG.

Are employers obliged to engage in Enterprise Bargaining?

“Negotiation in the classic diplomatic sense assumes parties more anxious to agree than to disagree” Dean Acheson

TABLE OF CONTENTS STOP THE PRESS

Time to change accountants? Free Apple iPad Referral Offer to Say Thank you Medicare Benefit Schedule Interpretation Senate Hearing Update – big changes ahead?

1. Are employers obliged to engage in Enterprise Bargaining?  Practice receptionist dobs in their employer under the Fair Work Act! 2. 2011 Seminar Presentations and face to face meetings 3. Catching up with David Dahm and the Team 4. Where to from here?

STOP PRESS Time to change accountants? Free Apple IPAD Referral Offer to Say Thank you We recently won another new accounting and tax client but were surprised to learn they were not aware that in addition to practice management advice, we are registered tax agents and provide full accounting and taxation services to healthcare professionals as well as practices.

So if you are not happy or you know someone is not happy with their existing advisers or needs a firm specialising in healthcare contact us for a no obligation free consult at pa@healthandlife.com.au and mention this offer.

If you refer us to a practice or it is your own practice that undertakes a full practice restructure* and you or they mention your name as referrer with this offer, as a token of our appreciation you will receive a really cool free ipad valued at $800 for yourself or for the practice. This is a great practice productivity tool. Sorry only one ipad per practice restructure. Just let us know which practice you have referred to us, so we can keep this on our records. This offer applies to new clients/referrals from 5th October 2011 as part of our 20th anniversary celebrations! *we have a pre-approved monthly repayment finance plan for restructures that cover your (our services) investment in us. Repayments average between $400 to $800 per month depending on what the practice requires. This can be a fully recoverable investment by following our recommendations, contact us for more information.

Medicare Benefit Schedule Interpretation Senate Hearing Update – big changes ahead?

As reported in our last news alert edition no. 184 David Dahm was invited on behalf of the Australian Doctors Union to present to 6 Federal Senators in relation to interpretation of the Medicare Benefit Schedule and the Professional Service Review (PSR) activities. We did alleged the investigations did not afford natural justice and David made the allegation the PSR was unconstitutional since 1994, because a High Court ruling made it clear the Government could not interfere in the doctor patient relationship such as limiting how many X rays a doctor could order for a patient.

The hearings did go well, it was a nerve racking experience.– there are some major problems with Medicare’s audit activities.

Medical Observer has picked up on the story for more information read their latest article “RACGP advice on MBS rejected by doctors” the findings will be announced in less than two weeks.

Are employers obliged to engage in Enterprise Bargaining?

1. Introduction The Fair Work Act has reported a case that medical receptionist has dobbed in their practice for underpayment of penalty wages and has won. For more information read the case “Country medical practice faces sanctions after paying staff as it liked”.

This shows practices are now being prosecuted for not complying with the Act and practice staff may not hesitate to take a practice on. This problem is only being compounded by recent aggressive union activities targeting medical and healthcare practices.

We have continued to receive queries from our client and medical practices generally regarding correspondence they have received from the Australian Nurses Federation (ANF) to download their latest log of claims ANF Medical Centres Log of Claims 2011.

This is causing some unrest and is unnecessarily and simply not affordable for most practices.

As predicted their action has spread from Victoria to New South Wales and Tasmania. We expect the rest of Australia will follow. The scaremongering and those practice that unknowingly respond, will fuel the legitimacy of a claim that has no basis if you are paying your nursing staff at the Award or above rates.

It does not help when reputable well intentioned employer/professional organisations and some Divisions of General Practice lend support to these claims by encouraging practices to sign authority forms (this can be a dramatic step in itself) because they believe it is important to respond to an ambit claim.

The real problem is by giving a written permission to an employee or employer representative(s) is like allowing two enthusiastic lawyers permission to engage in a hypothetical fight. The practice is paying for it by risking lower staff moral and paying fees for something that is at this stage an ambit and ambitious claim, that is way above the minimum Award requirements. Not handled correctly this can open up a new can of worms.

Practices are being made to feel they are underpaying their staff which is not the case in many instances. The only real concern a practice should have is, if their employment arrangements have

not been written and signed off in an employment contract that refers to the Fair Work Act and Awards entitlements correctly. If you have done this (see below for our free news alert archives) and ensured compliance you can choose to ignore these demands. Do not be intimidated to respond to either a union or employer organisation. Contact us without obligation if you are still not sure.

Read on for information about under what circumstance are employers required to engage in

enterprise bargaining?

These letters are demanding practices engage in Enterprise Bargaining, and in some cases are threatening to seek ‘low-paid bargaining’ orders against those refusing to engage in enterprise bargaining. A copy of the letter and conditions being sought are attached as an appendix to this news

alert. We believe the pay and conditions being sought are outrageous and are far above award entitlements.

So under what circumstance are employers required to engage in enterprise bargaining?

2. An employer can agree or initiate enterprise bargaining with their employees.

3. Employees can, sign a petition and make an application to the Tribunal for a Majority Support Determination to compel an employer to engage in enterprise bargaining.

4. The Tribunal can make a Scope Order to compel an employer to engage in enterprise bargaining in relation to a certain ‘scope’ of employees e.g. nurses.

5. The Tribunal can make a ‘low-paid authorisation’ to compel a group of employers to engage in enterprise bargaining. Usually such orders are sought by unions.

Our advice to employers has always been to do the right thing, pay according to or above the award and, above all, document your arrangements according to your obligations under the National

Employment Standards and any applicable award. Most importantly, ensure you have a document showing the consent of both parties i.e. a signed contract.

If you are meeting your obligations, there is no need to be concerned about enterprise bargaining.

Common errors: 

Misclassifying employee levels – ensure your employees are being paid at the correct level based on their experience, qualifications and job description per the award. Classifying employees at a high level can be just a risky as classifying employees at a level that is too low.



Not having a job description – a clear job description will help in clearly identifying the level your employees are to be paid at. It assists in removing ambiguity. Ensure your employees are aware of their job description by ensuring they sign it as part of their employment agreement. Once this is completed, compare this to the Award requirements.



Treating legal opinions as law – legal opinions are just that: opinions. Don’t take anyone’s word for it unless they can point you to the black and white letter of the law. Many issues in employment law are ambiguous and untested so be cautious when ‘riding on the edge’ of what has been tried and tested.

Can employers be forced to engage in enterprise bargaining?

An employer can only be compelled to engage in enterprise bargaining by a Majority Support Order, a Scope Order or a low-paid authorisation if action is brought by employees or a union to the Fair Work Tribunal. In all circumstances, it is highly unlikely that orders will be issued against employers that can show they are engaging with their employees and are meeting and/or exceeding their obligations under the relevant awards. In fact, in relation to low-paid authorisations, very few (1 or 2) have been issued since the provisions came into operation in 2010.

Before a ‘low-paid authorisation’ is issued the Tribunal must take into account a myriad of issues including the public interest and current terms and conditions of employment of employees who will be covered by the agreement, as compared to industry and community standards. To date no orders have been successfully filed by any union that we are aware of. Ironically they need practices to

volunteer information for this to happen in order to prove their case. This is why the bargaining process could be used is a concern.

What to do RIGHT NOW: 

Ensure ALL of your employees are being paid according to or above their award entitlements and all administrative issues like having a job description have been ticked. Seek assistance with this if you are not sure.



Spend the time to get things right.



Find out if your employees are union members. If you are receiving letters from the ANF and none of your nurses are members of this union (or you do not employ nurses) then do not respond. The ANF has no right to represent nurses who are not their members. Remember, you cannot discriminate against your employees on the basis of union membership.



Engage with your employees; find out if they are happy with their pay. If you make this topic easy for them to approach you, you are less likely to get caught up in industrial relations issues. Then make sure this is in their employment contract.



Ensure you are clear on any authorities you are signing, be it from an employer group or a union.



Ensure you do not breach your privacy obligations. You cannot disclose confidential information about your employees to third party organisation without express consent.



Always get consent to disclose information to third parties in writing. This doesn’t just apply to your patients.

Please contact us if you have queries or concerns. We are more than happy to provide assistance to ensure you are doing the right thing by your employees and are fully complying with your obligations.

Some resources to get you started: The Fair Work Site Fair Work Ombudsman National Employment Standards Award Finder Past Health and Life News Alerts Employment (Template) Kit Alternatively you can purchase our low cost templates to fast track the process. It contains Fair Work compliant terms and conditions as well as job descriptions and instructions on how to be compliant.

For a fixed price quote and more details go to http://bit.ly/ixOZV2.

Email us for a confidential no obligation chat and send us in your contracts if you are not sure to pa@healthandlife.com.au. This may be a simpler alternative to inviting unions and lawyers to reinvent the wheel.

6. 2011 Seminar Presentations Below is a summary of dates for our seminars across Australia. At each seminar there is an opportunity to meet with us face to face for a no-obligation discussion of any practice issues you may have. Email us at pa@healthandlife.com.au to pre-book an appointment.

If you would like your local medical organisation to host a seminar, forward them this email with our seminar details and copy us at pa@healthandlife.com.au. We will contact them directly about presenting in your local area.

We thank you in advance for your interest and support. You would be surprised how it only takes one person to make things happen!

New confirmed programs are detailed below.

Please contact the organisations directly for details about the course program, content and costs.

More seminars will be announced early next year.

Host and Location

Date

Contact Name

Contact Email

Topics

Perth

17th – 22nd October, 2011

AAPM

pa@healthandlife.com.au

*One of one meetings

26th, 27th and 28th October 2001

Ashley Moore

AAPM

Victoria Regional

Contact us if you would like a complimentary meeting pa@healthandlife.com.au

*One of one meetings Contact us if you would like a complimentary meeting Note a couple of spots left strictly first in first serve.

Victoria Gisborne

26th October 2001

Belinda Cara

Central Highlands Time: 10am ‐ General Practice 12pm

Venue: CHGPN, Level 1, 33 Brantome Street, Gisborne

Practice Manager Network - Morning Tea with David Dahm

Book on line at http://bit.ly/pkqR0q

Adelaide

4th November,

Steve Macarounas

Steven.Macarounas@fintuition.com.au Practice set‐up and

The Private Practice

Perth TBA

2011

18th November, 2011

http://bit.ly/r3yOWp pa@healthandlife.com.au

Ashley Moore

pa@healthandlife.com.au

review 

Options for private practice



Setting up your practice



Managing your practice



Preventing fraud in your practice

Practice Set Up Seminar *One on one meetings Contact us if you would like a complimentary meeting

NSW city 30th and regional November, 2011

Darwin city and regional

9th February, 2012

Ashley Moore

pa@healthandlife.com.au

*One on one meetings Contact us if you would like a complimentary meeting

Ashley Moore

QLD city and 10th February Ashley Moore regional 2012

pa@healthandlife.com.au

*One on one meetings Contact us if you would like a complimentary meeting

pa@healthandlife.com.au

*One on one meetings Contact us if you would like a complimentary meeting

7. *So you are looking for that competitive advantage – why not catch up with David Dahm and the Team We can talk about succession planning, business structures, effective tax planning, employee vs contractor agreements, benchmarking and many more topics.

We are using this time to catch up with existing clients. If you are not an existing client, this may be a good opportunity to tell us what is on your mind.

Ask yourself the following questions:     

What new challenges am I facing?

What new opportunities do I anticipate?

What kind of support or expertise would be most helpful to me now?

What changes do I anticipate over the next year or so?

What more can Health and Life do for you, if anything?

We are planning trips and one to one to meetings as detailed above. Please note that this is a first come first serve basis.

In the meantime, feel free to contact us to arrange a no obligation teleconference to get you started on any significant. Email us at pa@healthandlife.com.au

8. Where to from here?

1.

Consult your professional adviser in relation to any advice suggested;

2.

If you require any back issues of our news alerts please email us;

3.

If you are not sure about any issues raised in this broadcast contact David Dahm on 1800 077 222 for an initial no obligation consult or email us at pa@healthandlife.com.au. Health and Life provides comprehensive Practice consulting, accounting, taxation and financial planning advice for group Practices and individuals. Email us for information about our Employment Template kits for providers and support staff and our Doctors pay Calculator.

Which topics would you like to be covered?

If there is a particular topic that you would like covered in one of our future News Alerts, please email pa@healthandlife.com.au and let us know what it is. We will then endeavour to cover your requested topic.

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Copyright Notice 2011 This email, including any attachments, is for the personal use of the recipient(s) only. Republication and re-dissemination, including posting to news groups or web pages, is strictly prohibited without the express prior consent of Health & Life Pty Ltd. Disclaimer Notice Health & Life Pty Ltd’s Best Practice News Alert is designed as a comprehensive and up-to-date Accounting, Practice Management and Healthcare news service to alert readers to the latest in Practice and related developments affecting the medical, dental and allied health professions as they happen. It is published when there is news to report. No responsibility can be accepted for those who act on its content without first consulting us or obtaining specific advice.