Information for Employees

Last update: 25 March 2020

The impact of COVID-19 and the global mask shortage has put strain on dental practices. In some cases, practice owners are forced to explore options that may impact anyone working at the practice to keep the practice viable. This information has been prepared by the ADA's HR Advisors to help you understand your rights and obligations through this difficult time. 

Please note that this article only relates to National System Employers and their employees.
This article does not apply to practices operating as a sole trader or partnership in Western Australia.

If you have any questions or need clarification and you are an ADA Member, please contact the HR Advisory Team at [email protected] or on 1300 232 462.

The Australia-wide shortage of face masks may start to have significant implications for dental practices given that the majority of supply arises from China and there has been a general ban on exports for some time. There is no current indication as to when supply lines will return to normal.
 
The shortage of face masks will inevitably have a significant impact upon practices, and other businesses in the allied health space, and by extension, their employees.
 
This information is designed to inform employees of steps which a practice may implement and your respective rights in each circumstance.
 

Advance Consideration

 
In response to an anticipated significant reduction in supply, practices may wish to start reviewing operations to mitigate any impact upon patients, employees and the practice. This review may involve assessing future appointments and prioritising according to urgency and clinical need.
 
Where a practice prioritises and reschedules appointments, it may be that various groups of employees are impacted in stages, for example the appointments of hygienists may be cancelled prior to that of dentists given the particular clinical need of patients.
 
Practices are encouraged to engage with employees in a transparent manner to discuss the impact the face mask shortage is, and is likely to have, on the practice, and what, if any, impact is expected upon employees.
 
Despite this, employees are encouraged to also raise this issue with their employer and in doing so are encouraged to explore options and alternatives which may avoid or mitigate the personal impact upon employees. In this respect employees may wish to start the conversation with their family and support network around them as to what alterations to their working circumstances they could accept.
 
Where appropriate the developing situation should be reviewed with accountants, banks or other professional advisors. While this situation is developing rapidly, we are acutely aware that contingency plans, from a personal perspective, may also need to be developed.
 

Employment Impact

 
From the perspective of employee engagement, it is always preferred to reach agreement with your employer concerning steps and measures to address this matter.
 
It may be, for example, that you would be happy to take annual leave or alter your work practices (by agreement) which would avoid the need for formal steps and measures being implemented by the practice.
 
Employees are encouraged to raise these options and alternatives with their employer proactively.
 
Having fully prepared and considered the matter, and its likely impact, it may unfortunately be the case that practices need to take informed steps with employees to minimise the impact upon the practice, patients and individual employees. Options include:
 

Alternative Working Arrangements 


Any variation to an employee’s essential terms and conditions of employment can only be implemented by mutual consent. A practice should not impose a variation to an employee’s terms of employment.
 
Having said that, practices may present various options or proposals to employees in an open and transparent manner which may mitigate the impact of this circumstance. For example, if the practice closed 2 days per week, and employees agreed to reduce their full-time hours from 5 days to 3 days per week, it may ensure the future conduct of the practice over a much greater period of time in which case it is hoped that the supply of face masks is restored. This option may be attractive to some which ensures continued income, albeit reduced, over a longer period of time than may otherwise be the case.
 
There is no obligation upon an employee to agree to any temporary or permeant alteration to their employment conditions. In the event that agreement can not be reached a practice may then proceed to other formal options which it is able to impose without prior agreement.
 
When discussing any such proposal with a practice, employees are encouraged to raise their own proposals, suggestions and alternatives. Employees should also see a reasonable period of time in which to consider any such proposal and provide a response.
 
Prior to agreeing to any such proposal it is highly desirable that general agreement be reached concerning maintaining any period of variation to a minimum, arrangements being constantly reviewed and employment conditions being restored at the earliest opportunity.
 
Any agreement reached should be confirmed in writing and considered/reviewed on an ongoing basis.
 

Access to Annual Leave 


Practices may request, or employees may offer, to take annual leave. The taking and timing of annual leave is typically by mutual consent and an employer should not unreasonably refuse a leave request.
 
Where no agreement can be reached, a practice may be able to direct an employee to take annual leave in certain circumstances.
 

Health Award Covered Employees 


For those covered by the Health Award, which is essentially limited to dental therapists and support services employees, the following options are available:
 
  • dot.jpg In circumstances where the dental practice is temporarily closed an employee may be directed to take paid annual leave during part or all of that period so long as the direction is considered reasonable. Where an employee has insufficient leave accrued for this period, the employee may be required to take leave in advance so long as such a requirement is considered reasonable; or
 
  • dot.jpg Where an employee has excessive accrued leave, an employee may be directed to take leave conditional upon at least 8 weeks’ notice is provided, the direction will result in the employee retaining a minimum balance of 6 weeks and the period of directed leave is not less than 1 week. Unfortunately, the 8 week notice period will rarely result in this being a viable option for many practices in these circumstances.
 

Enterprise Agreements 


Where an employee is covered by an enterprise agreement, the ability to direct an employee to take annual leave will generally be governed by that industrial instrument.
 

Award Free Employees 


A practice may require an award free employee to take a period of paid annual leave but only if the requirement is reasonable. It should be noted that there is no minimum notice requirement associated with award free employees.
Any direction to take leave should be confirmed in writing.
 

Access to Long Service Leave 


In certain circumstances a practice may also direct an employee to take accumulated long service leave (LSL), or LSL in advance where the entitlement has not yet accrued.
 
LSL legislation varies from state to state and as such specific advice should be obtained from the ADA HR Advisory Service in all circumstances.
 
 

Employee Stand Down  


If employees cannot usefully perform work due to circumstances beyond the control of the employer, the Fair Work Act allows an employee to be stood down.
 
This means that employees can be sent home, and asked to remain home, without pay.
 
This information should not be taken as an advice that practices are able to enact a stand down, and specific advice should be taken in all circumstances where a practice proposes to implement a shut down.
 
In general terms a practices should not enact a stand down prematurely or arbitrarily.
 
While it is not a requirement, it is highly advisable that employers should explore all available options with employees which would avoid, or minimise, the impact of a stand down.
 
Where a practice prioritises and reschedules appointments, it may be that stand downs may occur in stages, however, the stand down provisions cannot be applied arbitrarily by employers given that there is a general precondition that the stoppage of work has arisen due to circumstances for which the employer cannot reasonably be held responsible.
 
If a stand down is enacted it is recommended that a practice engage directly with employees, confirm any decision in writing, and continue to engage with impacted employees concerning the duration and length of the anticipated stand down.
 
It should be noted that employees remain employed during any period of stand down and all employment obligations/expectations continue except for the obligation to pay. In this respect employees should not accept alternative employment, even on a temporary basis, without the practices prior consent, or act in a manner which is inconsistent with the ongoing employment relationship (i.e. confidentiality etc.).
 

Employee Support Services

 
It is understood and appreciated that this matter may have a significant impact upon employees.
 
You are encouraged to contact your employer, or the ADA HR Advisory Service, in the event that you require any form of personal support and assistance and all steps will be taken to support you at this time.
 
 
For further information or assistance concerning any matter within this article please do not hesitate to contact the ADA HR Advisory Service on 1300 232 462.