The ground breaking National Disability Insurance Scheme (NDIS) is progressively being rolled out in a number of States in Australia, and is set to create a unique headache for providers, which has not been experienced in the past.
The full scheme will be set in place nationally by the 19th of July 2019, will see providers supporting people with disability including their families and carers will now have more options to develop an individualised plan which contains funding to help them achieve their individual goals, learn new skills, enjoy life and obtain a job.
For providers, this means a potential change and restructure in the workforce. Advisers to unregistered and registered providers alike will at some point have to deal with issues that permeate in this scheme, that is, whether the providers are ready to provide the services as required for the individualised plans of participants. In particular, whether a workforce currently has the ability to service as required.
If you are a registered provider or adviser, now is the time to implement the following tips.
Review and check your Industrial Instrument
For some providers there will be an enterprise agreement and for others, a modern award will apply such as the Social, Community, Home Care and Disability Services Industry Award 2010 (Award). Some clauses that will require review include the consultation clauses that is, the steps that an employer must take whenever there is a major workplace change such as redundancy.
With consultations, the case law points towards obligation on employers to give employees an opportunity to discuss the change, and to ensure that assumptions are not made about the outcome of the consultation, it cannot be a “mere formality”. However, the only obligation that the employer has is to ensure that they at least consider any comments or suggestions made by the affected employee. It’s very important to consider this because a breach of a consultation term has led to a fine as high as $384,000.
Another provision under the Industrial Instrument that should be carefully reviewed is any redundancy clause under the Award. The Award may contain a job search entitlement, which is usually one day’s time off without loss of pay during each week of notice to seek other employment. Other modern awards will also have slightly different obligations in regards to any redundancy.
Some enterprise agreements will also have specific clauses that deal with the redundancy of positions; a full consideration should be given to the effect of such clauses. For example, in the Health Professionals and Support Services Award 2010 (Health Award), there is a specific clause about consultations for any changes to rosters or hours of work.
Ensure your employment contracts are drafted correctly
Make sure that there is a termination clause in the contract especially when it comes to salaried staff members or employees with great technical expertise.
There are also commercial and practical reasons why you should ensure the termination clauses are drafted properly. If it’s drafted ambiguously or isn’t included at all in the contract, the employer may be liable for “reasonable notice” which the common law has deemed to be anywhere between six (6) and twenty-four (24) months pay. Such a mistake could lead to quite a hefty payoff.
It’s also important that the parties to the contract have the intention to be bound. In the NDIS rollout, there will be a lot of quick appointments of staff. One of the main issues we see time and again is having a contract unsigned.
Not for any particular reason or even a deliberate reason, but simply because the terms of the contract or some of the terms of the contract are disputed in some way, or if because of the speed of appointment, there were issues with having both parties sign the contract in an administrative sense. Especially if key staff members who will take care of that process are on annual leave or are “swamped” with work.
A decision in the Brisbane District Court recently awarded former Wallabies coach John Connolly a sum of $150,000 mainly because of such a situation. You can read more about that in ‘Why you can’t afford to take your eye off the ball when it comes to old contracts’.
Some other key provisions to review when contracts are drafted include but are not limited to the following:
- Salary changes;
- Role changes;
- Position description variations;
- Transfers to different corporate entities.
Labour Hire arrangements
It may well be because of the requirement of having to obtain more staff quickly that a labour hire arrangement may need to be considered. Under labour hire arrangements an employer provider contracts with a labour hire company to use workers engaged by the provider to perform an act as the host employer.
The workers are not employees of the provider but employees of the labour hire company and as such the labour hire company have only obligations in relation to the employment relationship, however, in practice this may not be as straightforward.
While it may be a great way of bringing on a lot of workers without having to go through the necessary recruitment process, in the past, some of the host employers have been held responsible for breaches by the labour hire workers, particularly in relation to workplace health and safety, unfair dismissal and workers compensation.
Take extra precautions
With this in mind, providers must be very careful and take extra precautions when engaging labour hire agencies. We suggest the following:
- Ensure invoices issued are as agreed and on a timely basis;
- Ensure indemnity clauses in your favour are included in the labour hire agreement. Although keep in mind indemnities have their own limitations, if you do not have these clauses in your agreement there will be difficulty in trying to push down the liability to a labour hire agency;
- Ensure that there is a legally compliant recruitment process in place that screens candidates including that they have working rights to work in Australia or the relevant qualifications and licenses as required;
- Ensure you ask the labour hire agency and have clarity in writing about how the employees are paid and when the labour hire agency will be paying them;
- From a practical point of view, there should also be a clear agreement as to the communication avenues between the provider and labour hire agency.
Need further advice on what to do before, during and after the NDIS rollout? Call NB Lawyers, the lawyers for employers, on +61 (07) 3876 5111.
About the Author
Jonathan Mamaril is the principal and director of NB Lawyers, the lawyers for employers, and a specialist in employment law. Over the last ten years, Jonathan has helped hundreds of employers understand their legal requirements, mitigate risk and liability, protect their reputation and achieve their goals for business growth and expansion.