Information for Practice Owners

Last update: 24 March 2020


The impact of COVID-19 and the global mask shortage has created the need for practice owners to consider taking measures to conserve stock of PPE while ensuring staff are treated appropriately and in alignment with national law. The ADA encourages you to treat staff with compassion in this difficult time and has requested the ADA HR Advisory Service team provide relevent information for practice owners.

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.
 

Preparation is key

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:
 
Step 1: Assessing future appointments and prioritising according to urgency and clinical need.
 
Step 2: Rescheduling patients with non-urgent appointments to a future date.
 
Step 3: Assessing future appointments which are urgent, or involving high clinical need, which could be brought forward to fill available spaces made through cancellations or rescheduling. If patients cannot bring forward their appointment, consideration should be given to informing the patient of the possibility of future cancellation.
 
Step 4: Constantly reviewing the developing situation with employees in an open and transparent manner to ensure that they are fully informed. Through this process employees should be invited to raise any proposals or suggestions which may mitigate the future impact upon the practice or employees personally.
 
Step 5: Seeking advice from the ADA HR Advisory Service prior to imposing any condition, standard or practice upon employees or contractors.
 
Step 6: Reviewing the developing situation with business and professional advisors. While this situation is developing rapidly, we are acutely aware that contingency plans, from a business perspective, may also need to be developed.
 

Employment Options

 
From the perspective of employee engagement, it is always preferred to reach agreement with employees concerning steps and measures to address this matter. It may be, for example, that employees would be happy to take annual leave or alter their work practices (by agreement) which would avoid the need for formal steps and measures being implemented by the practice.
 
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 as it will present the practice with significant risk.
 
Having said that, practices should discuss matters with employees in an open and transparent manner although should take care that they are not imposing a variation upon employees, or presenting the variation in a manner where the employee has no practical option but to accept the variation.
 
When raising these matters with employees the practice should be mindful to outline that any suggestion is a “proposal” and is subject to “mutual agreement” and is put forward in a manner which may mitigate the impact upon employees. 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.
 
In presenting this option, employees will generally be concerned with ensuring that any period of variation is kept to a minimum, will be constantly reviewed and will be restored at the earliest opportunity. The practice should address these concerns during any discussion and put steps in place to ensure that these concerns are addressed and considered on an ongoing basis.
 
There are many options for alternative working arrangements and early consultation with employees will generally present some very useful ideas which the practice may not have previously considered.
 

Access to Annual Leave

 
Practices may wish to encourage employees to take accumulated 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.

RESOURCES

>>Direction to take annual leave (employees in all states except WA)
>>Direction to take annual leave (employees in WA only)
 

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.
 
Requiring an employee to take annual leave may be a valid option to minimise the impact upon employees and the practice.
 

Access to Long Service Leave

 
Practices may also wish to consider directing 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 Fact Sheet 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 before any action is taken by a practice.
 
Practices should, however, not enact a stand down prematurely or arbitrarily as to do so may expose the business to dispute or risk.
 
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 a practice should:
 

  • dot.jpg Seek specific advice in all circumstances to ensure that the risks and approach is understood by the practice;

 

  • dot.jpg Engage with impacted employees as soon as possible and provide employees with a reasonable opportunity to present ideas or proposals which may avoid the stand down;

 

  • dot.jpg Confirm the stand down in a meeting and later confirmed in writing;

 

  • dot.jpg Maintain constant contact with employees during the stand down period and provide updates and information which will assist with their ongoing understanding of the matter; and

 

  • dot.jpg Should ensure the continuation, or cancelation, of a stand down is confirmed in writing.

 
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.).
 
Practices should refer to the HR Hub for further resources, materials and letters to assist practices with this process.

RESOURCES

>> Cancellation of Stand Down
>> Continuation of Stand Down
 

Employee Support Services

 
While the impact upon practice owners will obviously be great, practices are also encouraged to consider the personal impact this matter will have upon employees.
 
Consideration should also be given to offering employee support services, such as an Employee Assistance Program, which will ensure that employees are adequately supported 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.