Nursing Fair Work Act Claim And Medicare Audit Tip Off

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Latest Update:20.12.2012

Contrary to the ANF’s grossly misleading representation of our position and for the latest update on what ACTUALLY HAPPENED AT THE MELBOURNE TRIBUNAL HEARING that DAVID DAHM had attended (pro bono) and what your practice needs to do NOW click here.

Date first published 16.12.2011

Nurses underpaid Union names practices and new Medicare Audit Activity  – Urgent Warning to all practice in Australia

Many practices are unaware they need to attend a Fair Work Australia Conference at 10 am in Melbourne on Monday 19th December 2011. The only notification they have received is an unclear fax from the Australian Nursing Federation (ANF) notifying them of their claim and that their practice has been named.

Nearly every practice in Victoria has been named from corporates to solo practices and even Divisions of General practice (anyone in the private sector who employs nurses) so doing nothing will lead to unsustainably significant and unnecessary wage  and administration increases. A worst case scenario is a practice being fined $33,000 per employee breach for not complying with the minimum Award entitlements. Such a unilateral third party action is forcing a practice to open its books to another party who does not always have the collective interest of patients or the practice at heart. A practice has reported to us receiving a letter from the Union and she does not employ nurses. We are concerned about the conduct of this activity and whether it has been actioned in good faith.

Our major concern is that any successful default claim which relies on busy and under resourced practices not being aware or apathetic can be quite detrimental to that practice and the community that relies on accessing their services.

There is a high chance this may result in higher out of pocket patient fees, longer patient waiting times for patients to see their local GP or doctor. This will add to provider burnout making it harder to recruit and retain good staff because practices will unnecessarily be forced to reduce or eliminate their nursing staff support due these unsustainable claims. We support both practices and nurses on this matter and appreciate their hard work and commitment to patients and the practice. Many from both sides do agree with our position to keep negotiations between employer and employee only. The Union’s activity is a matter of significant public interest, this why we have on a pro bono basis raised this issue because employers and employees should be free to choose their employment conditions so long it is not outside the law.  (updated 17.12.2011)

1. STAFF MORALE & TRUST MAY TAKE A HIT Some have commented is this is a generous opportunity for the union can continue to educate their members at the employers expense. This is one of many examples that go beyond a basic underpayment of wages pay claim. Practice will be either forced to consider either increasing their fees, reducing or eliminating nursing staff or moving them off the Award system. This means doctors may end up working longer hours or curtailing services to avoid burnout or alternatively being forced to restructure their business models and legal arrangements at considerable inconvenience and expense.

The biggest concern is the impact on staff morale as it can breed mistrust with owners and management as you this opens the practice to either a Union or Fair Work audit. Furthermore you may lose good people. Unions are trying to force practices into collective bargaining arrangements as opposed to individual agreements. This does not allow a practice to reward better performing staff members without having to give all staff members an increase. Furthermore by allowing a Union or Employer representative into your practice this means a practice may feel pressured to consult an external agency every time a variation in key employment terms are made. They don’t come cheap, it is intrusive and a time consuming process . This can form a breeding ground for Qantas like disputes. Some practice may opt out by simply no longer employing nurses.

2. WHAT DOES THE UNION WANT & DOES THIS AFFECT MY PRACTICE?

It is interesting to note some of their requests many are unprecedented in practice and go beyond Statutory Award entitlements which some would have to question how can these be part of a “low pay” claim action against practices.

For example in their log of claims point 15.3 they are asking:

“In addition, both full and part time employees will be entitled to paid leave to attend external education or conferences relevant to the nursing profession including the ANF Annual Conference Professional Day/s (however titled)”.

The Australian Nursing Federation has named medical practices in Victoria. As predicted New South Wales and Tasmanian practices are also part of this ANF claim. Other States could follow. To see the ANF’s full log of claims and to find out if your practice has been named to work out if you do have a problem download Practice Nurse Award Application November 2011 (3).pdf. Read our article below to see how you can avoid the Tribunal Conference and having an expensive default order being made against you for do nothing. The head in the sand approach won’t work this time. It may prove to be a very expensive and worrying exercise. Staff morale is at risk if you do not have your facts right and the matter is not handled carefully. The Union’s excessive demands are making employers feel they are ripping off their staff which is not true in the majority of cases we have seen. It is the lack of an audit paperwork trail that will prove to be a practices Achilles heel.

3. WHAT CAN YOU DO TO AVOID THIS URGENT  PROBLEM? The bottom line is you must have a written and signed Individual Flexibility Agreements (IFA) with every employee now before the Fair Work Act or the Union’s people are at your doorstep. Ensure the agreement is formed as a part of a negotiation and not a unilateral one decision by you as the employer. This applies to all practice staff not just nurses. The ANF have started this action it  may spread to other job classifications, if the Tribunal finds that practices are not getting it right. You can purchase instructions and templates. For a quote and more information go to http://bit.ly/ixOZV2 or email us if you have a concern.

Contact us if you have been named at pa@healthandlife.com.au you or your representative is expected to be at the Melbourne hearing on Monday 19th December 2011. Similar claims are being lodged in New South Wales and Tasmania we will post the list of practice affected when we receive this information. All other practices should check their paperwork immediately as this action may spread to all remaining States if successful. If you don’t do anything a default order can be made against your practice and the unsustainable log of claims may be made against your practice and this could to spread to non nursing staff.

4. KEY STRATEGY GET OFF THE UNIONS “NAMED LIST OF PRACTICES” ASAP If your practice has been named, you or your representative will have to go to the Tribunal and get your name off this Claim by proving you have signed Individual Flexibility Agreement that meets the minimum Award requirements. If you can’t prove this you would be misleading the Tribunal which would be an offence. You do not have to meet the ANF log of claims. There is no order at this stage to do so. We don’t believe all their claims will be passed as most practices nurses are paid above Award rates and their conditions are over and above what is required at law like their claim for paid conference leave.

5. GET YOUR PAPERWORK IN ORDER AND ENSURE IT IS FAIR PROCESS The real problem is that some practices have not done their home work and are not in a position to prove in writing they have taken all the appropriate steps to meet the Award requirements to the letter. Attending to this matter immediately is of critical importance. Doing nothing may mean your practice will be forced to open its books to the Union or Fair Work Australia. If you are not ready for them,  the genie will be out of the bottle and they could go back to 1st January 2010 for an underpayment of wages claim which was when the laws were first introduced. Regular readers would know all practice were supposed to be compliant from this date. Even if you have purchased our templates it is important to read and implement the advice carefully. If have not you can purchase instructions and templates. For a quote and more information go to http://bit.ly/ixOZV2 or email us if you have a concern.

Medicare Audit Tip Off and the Senate Enquiry in to the Professional Services Review For a tip off on the new wave of Medicare Audit activity relating to care plans read the article below. To download a copy of our submission, David Dahm quoted in the Hansard Report (they did not accurately quote David despite our attempts to change it) and  the final Senate Report into the Professional Service Review Committee go to http://bit.ly/n9c3oM.

New Care Planning Audit Blitz Tip off – what are they are targeting?

Despite the Medicare Audit Senate hearings recommending Medicare to review the nature and extent of their activities, we can see a new wave of audit activity based on the new rules passed in April 2011 we have reported on earlier. Simply auditors can approach practice staff, referred allied health to source information about your practices Medicare activity with or without your knowledge. We do warn practices to contact an adviser who is aware of these new rules. Some medical defence organisations are not aware of them which can unnecessarily compromise you in an audit. Please go to our archive series for more information.

Specifically care plans are being targeting where practices do not keep written consent copies of the patient and or specialist or allied health provider consenting to the team care planning arrangement. The main area is in relation to dentistry referrals. Please ensure these are kept on file.

 Medicare Benefit Schedule Interpretation Professional Service Review Senate Hearing Update

As reported in our last news alert edition no. 185 David Dahm was invited pro bono 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. Our submission has seen 4 out of 5 of our recommendations adopted in the recent Senate enquiry into the Professional Service Review and David Dahm’s verbal submission has been published in the final Senate Report and Hansards (unfortunately some parts were not quoted correctly despite our efforts to get them amended). For the actual final Senate and Hansard report go to http://bit.ly/vt9u7L. .

It is interesting to note, the investigation of the PSR and Medicare activities has led to a large number of audit cases to be dropped. The Australian has reported PSR panel investigators may have lost their own immunity from prosecution as they were not acting with proper authority. Furthermore the Government has been seeking special leave in the High Court to protect Nicola Roxon and Tony Abbott while they served as Health Ministers.

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David DahmNursing Fair Work Act Claim And Medicare Audit Tip Off