Nurse Underpaid Union Claim Update 1

CURRENT CIRCULATION: 7,862 DATE: 20th December, 2011 ISSUE NO: 187

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, FGLF.

Nurses underpaid Union claim Update 1 – Urgent Matter

TABLE OF CONTENTS

1. Nurses underpaid Union Update 1 – URGENT MATTER A. All practices will either directly or indirectly will be affected. The practices named and that are still on the list need to respond immediately and not ignore this action.

B. Why did this happen?

C. How does this action work and what are the consequences?

D. Named Practices or their representative did need to attend the Hearing E. Named practices need to prepare written proof to defend a claim to get off the listing.

F. Without Prejudice ‐ Self Incrimination and Confidentiality G. Staff have not consented

H. Not enough notice given to practices

I. Process you must notify the ANF Union

J.

Enterprise Agreements v Individual Flexible Agreement (“IFA”)

K. Union starting to back down?

L. Expression of Interest – no fee or obligation M. What Should You Do Next?

2. 2012 Seminar Presentations and face to face meetings 3. Catching up with David Dahm and the Team 4. Where to from here?

Nurses underpaid Union claim Update 1 – Urgent Matter

1. Introduction

David Dahm had the pleasure of attending the Tribunal Conference hearing on the 19th December, 2011. David represented several of our clients in relation to the Australian Nursing Federations (ANF) national log of claims under the “low paid order”. Other employer unions, the AMA, a Division of General Practice, a Medicare Local and a practice manager were present. The process was intriguing to say the least. We understand 1005 practices in Victoria, New South Wales and Tasmania have been listed in the ANF claim. This has now been culled back to 800. The Tribunal has accepted ANF’s suggested directions for named practices to provide evidence they are compliant with at least the minimum awards including the pay rate and working conditions. We are pleased the Federal AMA President supported our objection to this claim and have indicated this may spread to other States so all practices should take this matter seriously.

A. All practices will either directly or indirectly will be affected. The practices named and that are still on the list need to respond immediately and not ignore this action.

We have asked many questions at the hearing. This edition best explains our interpretation and solution of a subtle but complex issue, where practices have received conflicting advice.

We seek to resolve these concerns in this issue. Please refer to our recent Best Practice News Alert Archives at www.healthandlife.com.au for further information if you are new to this issue.

We have received mostly positive feedback from our alternative national media presence on the issue. Understandably the ANF has expressed their concern about David Dahm’s statements. Naturally, expect opposition from them as we believe most practices are doing the right thing and we are supporting this notion and their intention to keep their negotiations in house. The Union claims are mostly unsubstantiated and they are forcing themselves into the daily running of your practice which we object to, unless practices and/or staff want this, which is a legal right..

A lack of enterprise bargaining agreements does not imply that workers are low paid, as the ANF is trying to argue. To the contrary there is a shortage and the opposite appears to be the case, they are fairly paid. Expensive enterprise agreements and negotiations run by Unions, are not the only types of agreements or processes legally available to employers.

There are cheaper and less invasive alternatives that the Act also allows, which we will cover call Individual Flexibility Agreements (“IFA”) which we raised at the hearing.

Similarly non for profit organisations do not have an implied monopoly on virtuousness.

There are many other well intentioned organisations that have an interest in ensuring practice nurses and practices are collectively not disadvantaged. A mutually respectful debate and common understanding between all interested parties is all that we are encouraging.

B. Why did this happen?

At the hearing we asked many questions of the Union action and duly noted the Commissioners responses. To start with, we guessed the Union commenced this claim as a membership drive opportunity to increase union participation. Health and Life are responding to help explain why this has occurred, what are the implications of the recent events and what, if anything your practice can do to avoid a Tribunal hearing.

This Union action reminds me of two divorce lawyers. One representing the Employee Union and the other Employer Association hoping for the couple to have a total breakdown of communications so they can argue over the spoils of the family home but only the lawyers picnic will win at the end of the day. This is achieved by making unfounded claims that breed mistrust so they can come to the rescue, without consent or explanation of the specific reasons.

The ANF has proposed only one solution to a perceived “low pay” problem and not has not made nurses or practices aware of potentially cheaper, fairer, more flexible and easier alternatives. We are glad the ANF have reluctantly acknowledge an alternative solution called Individual Flexibility Agreements as opposed to enterprise bargaining. This will significantly reduce their opportunity for a legal advisers’ picnic. We did force this issue at the hearing.

To ensure you don’t unnecessarily need their counselling you have to prove your marriage is a good one to the Employee Union because the Government has given them this right, whether you like it or not.

Never underestimate self interest in these matters. We just want to spend our time more productively on helping clients build their practices and not get them get caught up in these distractions, which is frustrating for everyone.

C. How does this action work and what are the consequences?

The whole process is like some one accusing you of cheating on your tax return without any real evidence and a full tax audit being ordered by the Government forcing the accused to prove their innocence with a looming presumption of guilt being cast over them. By the way, the Tax Office would never operate like that. I know, because we are accountants and registered tax agents as well as practice advisors and David Dahm used to work as an auditor at KPMG.

You must provide information to your accuser and not a more independent and accountable body like the Tax Office, Ombudsman or a Court. It is up to your accuser (the Union) to determine whether you have a case to answer, and not an independent arbitrator. They do not have to state the scope or specific practice braches, nor what rights and obligations you have such as claiming self incrimination as a defence, because you made an innocent mistake. One could feel slightly pressured on this “fishing” expedition.

Furthermore your accuser has total control. They will tell you when or if you have to turn up to Court. The accuser is not required to publish what their review criteria is and how they came to a decision. They will inform you of the progress of your application to be delisted from the action.

If not handled correctly, like all legal stoushes this creates an unprecedented lawyers and advisers’ picnic that can result in fines of up to $33,000 per employee breach. Even Fair Work Australia can be called in to perform audits. The Union are in a position to ensure this fact hangs over your head.

All practices whether named or not need to do something that needs to stand up to the scrutiny of the Union or expect them to be a key feature of your practice. Like tax returns you never know how good of a job your accountant has done until you are audited. Don’t be a hero on this issue make sure your documents are correctly applying the law and your employees have consented without duress.

Our advice has not changed. We express concern over some misleading information some organisations have made to practices and seek to clarify them. This has now become a serious matter as the Union directions we have seen (but not yet published) have been accepted by the Tribunal. This edition covers off on the key points you need to know.

D. Named Practices or their representative did need to attend the Hearing For a start, named practice or their representatives were expected to attend the 19th December 2011 hearing, despite one organisation stating this was not necessary. When your practice is named on a Tribunal or Court document there is no alternative but to attend.

This is first year law and it is not a grey area. We have also had confirmed this again with the law firm advising the organisation that had made the above statement.

The Commissioner has allowed practices an opportunity to appoint representative for this matter to continue to occur without penalty. So doing nothing is not encouraged. When compared to other providers, Health and Life can assist or represent your practice at relatively little or no cost. See below for more information.

E. Named practices need to prepare written proof to defend a claim to get off the listing.

At the hearing we asked the nurses union twice to confirm that they had evidence of underpayment. They elected to defer answering this question until the March 2012 once practices had submitted evidence under their suggested directions. This order was accepted by the Tribunal. Interestingly we did not received support when we raised the legitimacy of the claim from other employer representatives. Practices that have been named will be requested to provide witness statements and evidence such as written employment contracts. Practices should get their house into order by no later than late February 2012.

We did suggest the Union did not have sufficient evidence yet to launch a successful campaign as many practices have not co‐operated with their requests to date. The Union did not comment on this point specifically.

It is curious to note such ambit claims can be made without having to produce any evidence for a low paid order hearing to be called. The Commissioner confirmed the process was above board. What is more concerning is the Union can make claims unilaterally without the consent or complaint of their members.

F. Without Prejudice ‐ Self Incrimination and Confidentiality

We do express concern that employers could incriminate themselves. Therefore all correspondence with the Union must be confidential, without prejudice and the employer reserve its right not to be self incriminated by this process.

Practices should enter into written and signed undertakings with the Union and their employees that supplying any employment information is done so with the employees’ consent and it therefore not in breach of the Privacy Laws and no information can be used to report non‐compliance of any contracts to the Fair Work Ombudsman that could lead to prosecution.

Prosecutions for any non‐compliance can be up to $33,000 per incident. Contact us for further information.

G. Staff have not consented

We did raise the issue that practices that did not employ nurses received letters. We also note a practice that did co‐operate on good faith with the Union requests remained named to appear before the Tribunal despite providing evidence of Individual Flexibility Agreements in place at their practice.

We have also received a number of correspondences and enquiries from practices where the nursing staff are happy with their employment arrangements. Despite this the Union maintains its right to question the appropriateness of these arrangements and are continuing to pursue their allegations with the above practices.

The Union, when asked, would not outline what criteria they would used to determine which practices would be taken off the list. We seek to force their hand on this issue.

We believe such Union processes must be open and transparent. The Commissioner expressed support for transparency and matters be dealt with on a timely basis.

To this end obtaining statements from your staff that they are happy with their agreements is a critical starting point to getting off this list, in addition to checking for minimum Award compliance. Above all, this must be done with the full co‐operation of your staff and under no circumstances should your staff feel threatened or intimidated in any way, shape or form.

If the nursing staff in your practice are happy with their pay and conditions, please encourage them to write to the Union, stating that they do not consent to being represented by the Union and copy their employer in to that correspondence. Note, your grand mother can represent an employer or employee; there are no rules as to who can and cannot represent either party.

H. Not enough notice given to practices We did express concern as to the late notice practices received in relation to attending the 19th December, 2011 hearing. Many practices had reported receiving less than 7 working days notice, which is unusual. The Commissioner noted that in the interest of fairness giving employers appropriate time to respond is critical. We had won our arguments on this point.

We did not want to be difficult but fair about the process. The Union did express concern this will give enough time for employers to fix up their affairs. The Commissioner did reaffirm it was the Unions responsibility to notify practices directly of the next hearing and giving appropriate time to respond was the fair thing to do. It is not the responsibility of the Tribunal to notify employers but the Union. This is concerning, given the late notice the Union provided regarding the 29th December 2011 hearing. We will do our best to provide website and email updates on key information including on Twitter http://twitter.com/daviddahm.

Also ensure you are on our email list at pa@healthandlife.com.au or contact list so we can keep you up to date.

I.

Process you must notify the ANF Union

You must apply to the ANF for your practice to be taken off the named practices list preferably before March 2012, to avoid any further Tribunal hearings. They will expect you to provide written proof that you are meeting at least the Award requirements e.g. a signed Award compliant employment contract with your employees. This is called an Individual Flexible Agreement (“IFA”). You can purchase templates from us. If you need assistance, see below. There are still no guarantees they will take you off this list for the reasons covered, however at least you will have a provable defence.

J.

Enterprise Agreements v Individual Flexible Agreement (“IFA”)

In simple terms, a practice can either have and enterprise agreement that may or may not need Union involvement; an Individual Flexible Agreement (“IFA”).

A collective enterprise agreement(which conjoins all employees of a named job class like nurses) restricts the ability to reward individual workers that perform better because it standardises remuneration and the process of amending an agreement is further complicated if outside agencies such as employer Associations or employee Unions are involved. So this makes it difficult to recruit and retain your top performers that give the employer that competitive edge. It can also be demoralising for high performing staff.

To the contrary a more expedient, cheaper and popular alternative is using an Individual Flexible Agreement (“IFA”). This overcomes the above limitations of an enterprise agreement.

An IFA involves an employer and employee agreeing directly, without duress regarding what the terms and conditions of and individual’s employment will be. The IFA must meet the minimum National Employment Standards and Award entitlements as are currently prescribed. We have developed extremely cost effective and comprehensive templates with job descriptions you can purchase see our “employment kit” offer http://bit.ly/ixOZV2.

There is no need to have third party organisations involved from employee unions, employers unions or even us. Most clients have been able to prepare them themselves. We have been selling these without any problems since 1st July 2010 when all practices should have had one in place. Late February 2012 is the new deadline for affected practices if you do not have signed employment agreements.

K. Union starting to back down?

Despite the Unions misgivings and our pressure to ensure practices consider IFA’s, it is great they acknowledged at the Tribunal conference the cheaper and less invasive alternative to enterprise bargaining called Individual Flexibility Agreements (IFA).

The Government has published a Best Practice Guide to Individual Flexibility Agreements see http://bit.ly/vnbPQk. This is to reassure practices and employees despite the ANF’s warnings this is a legitimate and simpler alternative to having an expensive external party such as an employer association or employee union enterprise bargaining. We are concerned about the ANF’s scaremongering duress message that hefty fines may apply when considering this alternative solution. That it is important to avoid this line of enquiry.

As detailed below practices can purchase template contracts that include job descriptions and instructions on Award specific issues from our news alert series, that will significantly assist the practice in completing a comprehensive IFA. L. Expression of Interest – no fee or obligation Please register your no fee or obligation interest in Health and Life representing your practice. This applies to existing clients as well. If we have not issued a written statement stating that we have checked your agreement, then please contact us immediately. We are more then happy to have an initial review free of charge, however for a detailed review – hourly standard rates may apply.

There are no fees or lock in’s with this expression of interest until we get your written consent to charge a fee, we want to represent a no enterprise bargaining required submission to Fair Work Australia. We seek to assist practices in this regard if this is their intention.

If you would like us to act as representatives for your practice please complete and return to us a Form F53. This document is available at www.fwa.gov.au – we do not charge a fee to represent your practice at the Tribunal which is schedule to be a 4 day hearing in June 2012 as long as we have the Form 53. Other agencies may or may not charge for this service or require you to sign up as an annual member. We only will charge a fair fee if you have a real problem. We are offering an initially free no obligation vetting service.

To access this service the employer and your practice staff need to complete this confidential survey by no later than 29th February 2012 so we can compile a report. If people are seeking to take up our offer then these surveys must be completed by no later than the 15th February 2012. The earlier completed the easier it is to ensure compliance so starting now is our best advice: Employer to complete ‐ http://www.surveymonkey.com/s/pracemployer Employee Nurse to complete ‐ http://www.surveymonkey.com/s/pracnurse Please separately notify us if you would like us to assist you. Everybody is encouraged to complete these surveys so we can make a formal submission to Fair Work Australia. So please forward this to other employers and practice nurses outside your practice if you wish your voice heard.

This will also highlight any potential problems you may have, which we can draw to your attention. Please let other practices know about this is a complimentary service.

The information will be de-identified and made confidential to make submissions to the Tribunal if industry representation is required. We will not be encouraging your practice to enter into enterprise bargaining arrangements.

M. What Should You Do Next?

1. Review all your signed nursing and non‐nursing employment agreements for Award compliance. Review the Governments Individual Flexibility rules http://bit.ly/vnbPQk as an alternative to enterprise bargaining.

2. Complete our nurse and employer practice survey to lodge a no obligation of expression of interest for Health and Life to represent your practice. All surveys must be completed by no later than 15th February 2012. Detail any further assistance you may require from us if required by email to pa@healthandlife.com.au.

Employer to complete ‐ http://www.surveymonkey.com/s/pracemployer Employee to complete ‐ http://www.surveymonkey.com/s/pracnurse 3. Confidentially email us at pa@healthandlife.com.au if you have concerns about your agreements, email them to us there is no obligation. Please note, the initial review is free of charge, however for a detailed review – hourly standard rates apply. We will get your permission in writing before proceeding if we intend to charge.

4. Consider purchasing our popular cost and time effective Employment Kit see http://bit.ly/ixOZV2 that provides template employment agreements that are Award friendly with appropriate job descriptions for nurses, practice managers, receptions staff and employee doctors– this can significantly help you quickly complete and Individual Flexibility Agreement.

5. If you are a client of Health and Life please contact us to receive written feedback on your current agreements to ensure they have been prepared correctly.

6. Pass this Best Practice News Alert to you colleagues whether employers or practice nurses outside your practice if they wish to individual negotiate their agreements they are happy with. We feel that it is in everyone’s best interest to share this news alert with the industry, even your Union representative.

7. Ensure if you are sending any information to the Union they sign a written undertaking not to use the information that may self incriminate the employer and it complies with all Privacy and confidentiality requirements that will not be adversely used to affect the practice.

Email us at pa@healthandlife.com.au during the Xmas break we have some skeleton staff that can send you template employment agreements should wish to order the Employment agreement templates. You can pay for them and within 48 hours you practice can get started, so your practice is ready for the March 2012 hearing should you be forced to appear. Eitherway you are not wasting your time, it is a good human resource process to have in place if you do not already have an effective system in place.

2. 2012 Seminar and One to One Meetings Below is a summary of dates for our seminars across Australia. There is an opportunity to meet with us face to face for a no-obligation discussion of any practice issues you may have at each seminar or by personal appointment. 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

Darwin city and regional

3rd February, 2012 to 6th February, 2012

Ashley Moore

pa@healthandlife.com.au

*One on one meetings

‐ ‐

Casuarina Katherine

QLD city and regional ‐ ‐ ‐

South Bank Jimboomba Wynnum

27th and 28th Ashley Moore February 2012

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 Note a couple of spots left strictly first in first serve.

NSW city and regional ‐ ‐

Coffs Harbour Lismore

Ashley Moore 29th nd February 2 March 2012

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.

*So you are looking for that competitive advantage – why not catch up with David Dahm and the Team. See below.

3. Catching 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 on a first come first serve basis.

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

4. 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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