In Short
- Hiring in healthcare requires compliance with specific industry certifications and background checks to meet regulatory standards.
- Establishing clear performance management procedures is essential for fair and lawful employee dismissals.
- Understanding employment laws, including rights and obligations, is crucial in managing healthcare workforce effectively.
Tips for Businesses
Ensure your hiring and firing processes in healthcare comply with both regulatory standards and employment laws. Develop structured procedures for recruitment and dismissal to ensure fairness and legal compliance. Regularly update these processes and provide staff training to adapt to any changes in legislation or industry practices.
As a healthcare provider in Australia, you will likely face unique
challenges when managing your workforce. Specifically, you must
ensure compliance with complex employment and healthcare laws,
protect sensitive patient information and ensure the safety of your
workers. This article explores the essential considerations for
hiring and firing in the healthcare sector, with a focus on
Australian employment laws and best practices.
What Should I Consider When Hiring Workers?
Making good hiring decisions and having a robust onboarding process are critical steps to balance the protection of your business, workers and patients. When hiring workers in your healthcare business, you should:
- seek information and evidence of the candidate's qualifications and training to ensure that only registered practitioners are providing healthcare services (where relevant), including, for example, working with children checks and AHPRA registration checks;
- carefully consider whether the worker is an employee or a contractor;
- prepare comprehensive employment contracts or contractor services agreements to govern the relationship; and
- if they are an employee, familiarise yourself with the applicable modern award (if any) to ensure compliance with minimum entitlements.
Classifying Workers
It is not uncommon for businesses in the healthcare industry to engage contractors to fill gaps in the workforce or to perform specialised healthcare services. You may engage a mix of employees and contractors yourself, and you must correctly classify them.
With the introduction of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, the differences between employees and contractors have become more concrete. You must carefully assess each role to determine the correct classification:
- Employees: generally have set hours, are paid regularly, and work under the direction of the employer; and
- Contractors: usually have more autonomy, should be functionally running their own business, may work for multiple clients, and often use their own equipment.
If you incorrectly classify workers as contractors when they should be employees, you and your business may be in breach of the Fair Work Act. Additionally, you may be in breach of other obligations concerning taxation, superannuation and worker's compensation. Each of these breaches could lead to major financial penalties and back payments.
What Should I Include in My Employment Contracts With Healthcare Professionals?
As a healthcare provider, creating comprehensive employment contracts for employees serve several crucial purposes, including:
- clearly outlining the terms and conditions of employment;
- protecting sensitive patient information and records; and
- safeguarding of your business interests, including your confidential information and intellectual property.
At a minimum, your employment contracts with healthcare professionals should include a:
- confidential information clause that prohibits the disclosure or misuse of the business' confidential information;
- intellectual property clause that requires your employee to assign the ownership of all works created in the course of employment to your business, including patient records;
- qualifications and fitness for position clause that requires the employee to provide evidence of their qualifications and ability to perform the role, to maintain registration at all times, and to make any required disclosures that may affect their ability to perform the role;
- termination clause that details the notice period required of either party to terminate the agreement and specific expectations to return property and patient records on termination; and
- remuneration clause that details the employee's salary and other pay entitlements.
Modern Award Coverage
Modern awards are legal instruments that set out the standard terms and conditions of employment across various industries and occupations. Many healthcare workers are covered by the Health Professionals and Support Services (HPSS) Award. This modern award sets out minimum entitlements for various roles within the healthcare sector. As an employer in the healthcare industry, you should:
- identify which employees are covered by the HPSS Award or other relevant awards;
- familiarise yourself with the the classification levels within the applicable award; and
- ensure compliance with award provisions regarding pay rates, allowances, and working conditions.
Healthcare often involves shiftwork and irregular hours, making it crucial to understand and comply with:
- minimum wage rates, including any applicable loadings for shift work, weekends, or public holidays;
- overtime provisions; and
- industry specific allowances, such as on-call and uniform allowances.
Determining modern award coverage and entitlements can be a complex exercise. An employment lawyer can assist with this exercise.
Best Practices for Termination
Healthcare workers provide crucial support and treatment to vulnerable people. For this reason, you may face a situation where an employee's employment is no longer tenable based on poor performance or misconduct. When making termination decisions, you should consider the risks associated with employment claims, and ensure that you take appropriate steps to mitigate the likelihood of a successful claim.
Mitigating the Risk of Employment Claims
To reduce the risk of unfair dismissal claims or general protections claims, before dismissing an employee for reasons other than serious misconduct, you should:
- identify a valid reason for disciplinary action/termination related to performance or conduct, and not any other unlawful reason e.g. the employee's exercise of a workplace right;
- warn the employee that they risk facing dismissal if they do not improve their performance and allow them to improve;
- offer support and training where reasonable to help the employee improve;
- allow the employee to respond to any allegations of misconduct before moving to terminate employment (where misconduct is the issue);
- keep detailed records of performance issues, conversations, and improvement plans; and
- seek legal advice from an employment lawyer.
Securing the Return of Property and Patient Records
As a healthcare provider, it is crucial that you are able to secure the return of your company property and patient records. This will ensure adequate continuity of care and regulatory compliance. When terminating an employee, you should consider:
- creating a checklist of all items to be returned, including keys, devices, and uniforms;
- implementing protocols to immediately revoke access to electronic health records and ensure the return of any physical patient files; and
- consider reaffirming existing confidentiality and restraint obligations with the employee upon termination.
Employment Essentials Factsheet
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
Navigating employment law in the healthcare sector requires diligence, knowledge, and proactive management. By focusing on developing comprehensive contracts and engaging in best practice when hiring and firing, you can create a positive work environment that supports and protects your business, workers and patients.
Frequently Asked Questions
What should healthcare providers consider when hiring workers?
Healthcare providers should verify candidates' qualifications and training, determine if the role is for an employee or contractor, prepare comprehensive employment contracts or contractor agreements, and understand applicable modern awards to ensure compliance with minimum entitlements.
What are the best practices for terminating healthcare professionals?
When terminating healthcare professionals, ensure you have valid reasons, warn employees and allow improvement, provide support and training, let employees respond to misconduct allegations, and keep detailed records of performance. Secure the return of company property and patient records as well.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
