News

How do we manage minimum…

Back

How do we manage minimum staff engagement times and associated issues under the more consumer-directed models we’re facing?

This is Part II of our interview with the Director and Head of Hynes Legal’s Employment and Workplace Relations Practice, Kristin Ramsey. In this article, she speaks to the impact of Industry reforms on minimum staff engagement times and associated issues.

There are some big things on the agenda for the Community Services Industry this year.

We’re expecting:

  • the Productivity Commission to release their report into Increased Competition, Contestability, and Consumer Choice in Human Services
  • the Queensland Government to release their Community Services Industry Strategy
  • the continued roll-out of the NDIS
  •  the continued implementation of consumer-directed care reforms in aged care.

With all of that in mind, we know you’re worried about the impacts on how you do business.

At the beginning of December, we posted the first part of the interview between our Editor, Louise Hughes, and the Director and Head of Hynes Legal’s Employment and Workplace Relations Practice, Kristin Ramsey.

It was our most popular post ever and so now we bring you part two of that interview.

Part II speaks to the impact of Industry reforms on minimum staff engagement times and associated issues.

Here is what happened in that interview.

 

How do we manage minimum engagement times and associated issues under the more consumer-directed models we’re facing?

 

Minimum engagement times.

 

Minimum engagement periods in community services

 

KRISTIN:

Minimum engagement periods do make it very difficult for providers to cope with client demand for services for shorter periods of time.

When clients want services that take less than the minimum engagement period set out in the applicable award you need to really carefully look at your scheduling of services and rostering of staff.

Because whatever the minimum engagement period is, whether it’s 1 hour, 2 hours or 3 hours, that’s the absolute minimum you’re going to have to pay someone per engagement.

There’s no legal way around minimum engagement periods, they are what they are.

You can minimise their impact on wages costs however by either:

  • sending the employee to a client that’s going to use all that time
  • scheduling clients so that employees can go from one to the next, to the next, to the next with a minimum amount of travel or down time.

 

One of the issues that larger providers face is competition with independent contractors.

 

Community services workforce minimum engagement period

 

KRISTIN:

Yes - an independent contractor who is a sole trader, doing the work themselves, has a big advantage over other providers in terms of their ability to provide services in a more flexible manner (and often for a cheaper price). This is because they don’t have to worry about minimum engagement periods, shift loadings, penalty rates or anything like that.

They can pick what price they’re going to provide their services for, and if a client only needs 45 minutes, that’s not a problem to an independent contractor.

This means your organisation needs to not only put in place systems and processes to ensure you can provide your services as efficiently as possible (thereby reducing labour costs and in turn the price you need to charge clients), but you ensure you have some point of difference so that you aren’t competing on price alone.

 

Some providers are saying that they won’t provide services for less than the minimum engagement periods.
 

 

 

KRISTIN:

So, your arrangement with the client may be that whenever you come to their premises, their service needs to correspond with the applicable award minimum engagement period.

In the short term that might be ok, but as more and more new providers come into the market operating as either sole traders or with more flexible business models, clients won’t respond well to such rigidity in the services they are offered.

 

It also comes back to technology.

 

KRISTIN:

We’ve talked about rostering and scheduling briefly.

There’s technology out there that can help businesses to set their rosters and schedules up to maximise efficiency by minimising travel and down time between clients.

Some businesses might need to look into upgrading their rostering and scheduling systems.

 

On the question of clients being allowed to select their own staff.

What happens if we don’t have enough work for individual workers?

 

 

 

KRISTIN:

It’s a tricky one, especially if someone’s particularly popular.

It’s an issue when one client says ‘well, I only want Anne-Maree to provide these services to me’, and everyone else also only wants Anne-Maree to provide them services while no-one wants John.

In this situation the first thing you might want to ask is why doesn’t anyone want John?

Can his skills be improved; what can be done to make him more sought-after?

If you have clients that are repeatedly requesting the same staff member but not requesting others, you have to ask what Anne-Maree is doing that is better than John.

Is it just personal preference or something more?

There might actually be nothing wrong with what John’s doing, people just prefer Anne-Maree from a personal perspective, or vice versa.

But if at the end of the day, you don’t have enough work for some staff, then you might be looking a redundancy situation.

 

How are the changes impacting job security?

 

 

 

KRISTIN:

In my opinion the opening-up of the service market in this area, and the flexibilities that businesses are now required to offer to clients, will inevitably lead to a greater casualisation of the workforce. A move away from more secure forms of employment to less secure, temporary, casual employment is definitely on the cards.

How else can providers meet the changing needs of clients who might want someone this week but someone else next week, want them in 45-minute blocks here-and-there, and want them at all different times of the day but not in continuous blocks?

It becomes very difficult to meet those requirements when you have a staff member that you’re obliged to roster and pay for 38-hours a week as a full-time employee.

At the time of this discussion, the RBA had that very day handed down a report indicating that there’s an increase in part-time work.

What they say is that in the Household Services Sector part-time work accounts for 45 per cent of the workforce.

The RBA definition of the Household Services Sector includes a whole heap of industries, but particularly for us, health and social assistance services that takes place in the home.

Statistics in a range of reports are showing that people who are working less than full-time often want more hours than they’re able to get.

These sorts of reforms – with the NDIS and the changes to home care etc – don’t help create secure full-time employment.

They’re great for the end-user, they’re not necessarily great for the employee.

In order for businesses to do what they’re supposed to do; they have to engage more people in less secure employment. They have to engage people as casuals or even look at contracting models.

If you want an overall take on the effect of these changes on the workforce, that’s it from my perspective – an increase in less secure forms of work.

 

Do you know of any changes happening to Industrial Relations legislation that will accommodate the changes in the delivery of services across the Health and Community Services industries, given it is all really just starting with Aged Care and Disability Services?

 

KRISTIN:

The Fair Work Commission is still in the process of reviewing modern awards but I am not aware of any changes through that process that will help providers adapt to this new service delivery model.

Some of the proposed changes may even make it more difficult for providers to provide the level of flexibility that clients will demand.

 

And then on the other hand you have advocates pushing for casual employees to be automatically converted to part-time or full-time when they’ve worked certain regular hours.

 

KRISTIN:

Now, as you can see with some of this stuff, we’ve got client’s needs chopping and changing.

If you’ve had a workforce where you’ve been able to engage casuals and get some flexibility, but then you have to move them over to full-time or part-time, well that’s a step forwards for the employee and the security of their employment, but it’s perhaps a step backwards for the business.

The business will then struggle to manage the flexible service delivery that they are obliged to provide.

With market deregulation occurring across a number of industries, I think we will need to see changes to the Industrial Relations system that will help businesses meet the changing demand on the services they are having to provide.

It’s not realistic to tell a business that they must provide services in this particular way at this particular cost, if it’s not possible for them to do that in the existing industrial relations landscape.

 

LOUISE: 

It comes down to a disconnect between the client need, the business need and the employee need really, doesn’t it?

 

KRISTIN:

Yes.

There’s a lot of focus on the client need.

I am not saying that’s the wrong thing to focus on, but I am concerned that insufficient consideration has been given to the economic impact of these changes on businesses and their employees within the current industrial relations system.

 

On travel time and paying for travel time

Staff travel time is not covered by NDIS pricing, do we have to pay for staff travelling to clients?

 

KRISTIN:

That’s a very big issue for the Industry.

At the end of the day, it depends on what is said in the industrial instrument applicable to your employees.

As a general rule, if you’ve rostered someone to work from 9-to-5, and they have to travel between multiple clients throughout that time, you have to pay them for that whole time – 9-to-5 less any breaks.

So, if you’re requiring them to travel from one client to another, then yes, you would have to pay for travel time.

The only time that you may be able to get away with not paying it, is if you have rostered someone for a broken shift.

So, the employee goes to Sally’s house in the morning for 2-hours, they drive from home to Sally’s house, help Sally for 2-hours and then they’ve got a gap in their day and they’re free from duty for 2-hours. Then they go to Bob’s house in the afternoon for 2-hours. In that circumstance, you wouldn’t have to pay for the travel time or the time between engagements at Sally and Bob’s houses.

 

LOUISE:

Do you see organisation’s exploiting that?

 

KRISTIN:

Maybe not deliberately exploiting, but do I see organisations that don’t understand their obligations in this area.

So, for example, in a roster scenario where you have 2-hours at Sally’s and it then takes half an hour to drive to Bob’s and you’ve got 2-hours at Bob’s, you’ve got organisations that don’t pay that half an hour of travel time.

It would have to be paid unless you’ve rostered it so that people are on split (broken) shifts.

And when you roster split shifts, those minimum engagements kick in every time (which is another thing that some providers don’t realise).

 

LOUISE:

And for those organisations that don’t currently pay the 30-minute travel time, if the employee decided to challenge that, they’d find themselves having to…?

 

KRISTIN:

… back pay for up to 6-years.

 

 

 

LOUISE:

If you are that person that travels from home to your first appointment, does that count as travel time?

 

KRISTIN:

Not usually – very few employees are entitled to paid for the time it takes to travel from home to the start of their job. There are some exceptions though, and again you need to check the industrial instrument applies.

The simple way of looking at it is: you typically get paid for travel that occurs during the span of hours that you’re rostered for.

If you’re rostered from 9-to-1, you are entitled to be paid for that whole time no matter what you’re doing, whether you’re travelling or there’s a gap between clients, it doesn’t matter what you’re doing.

If you’ve rostered someone for split shifts and the travel takes place between those two shifts, it’s like the employee is starting their day again each time they go out to visit a client.

You don’t usually have to pay for travel in that circumstance. You might have to pay a kilometer allowance, but you wouldn’t normally pay for travel time in a split shift situation.

Again, it comes back to looking at the way you’re rostering employees and how you’re scheduling your work.

So, if you want to minimise travel time you should:

  • try and group clients together in the one geographical area
  • look at rostering employees so they’re performing broken or split shifts.

Providers want this to be a grey area but I really don’t think it is.

 

 

I think where the confusion arises is that there’s nothing in any of the awards that specifically says you must pay for time spent travelling between clients. Instead, this requirement comes from the general principle that an employee’s hours of work are continuous except for meal breaks.

If you’re rostered from 9-to-1, then those hours are to be worked continuously other than for your meal break and you are entitled to be paid for that whole time no matter what you’re doing.

It’s no different from working in a retail shop if you’re in the shop all day but you don’t have customers for 2-hours.

Maybe you don’t do anything. Maybe you just sit behind the counter looking at your phone for 2-hours.

You’re still entitled to be paid because you were rostered for that time.

It’s no different here if you’re rostered from one time to another, and the way you’re rostered means that you visit several clients; you’re paid for that whole time.

I think providers really need to have a careful look at:

  • what the applicable industrial instruments say about minimum engagement periods, broken shifts and client cancelations
  • whether they’re properly utilising all the tools available to them so they’ve got as much rostering flexibility as possible to limit the dead time they’re paying for.

But the fact that the government funding is based on the period of face-to-face service delivery, has no bearing whatsoever on whether you’re required to pay for travel time or not. These things are unrelated.

 

 


­­­­­­

Key takeaways

 

  • The fact that the government funding is based on the period of face-to-face service delivery, has no bearing whatsoever on whether you’re required to pay for travel time or not.
     
  • If you have an employee rostered from 9-to-1 they’re entitled to be paid for that whole time no matter what they’re doing (including traveling).
     
  • Technology exists which can help providers minimise wages costs through better and more efficient rostering
     
  • Providers really need to have a careful look at:
    • what the applicable industrial instruments say about minimum engagement periods, broken shifts and client cancelations
    • whether they’re properly utilising all the tools available to them so they’ve got as much rostering flexibility as possible to limit the dead time they’re paying for.
       
  • It’s important that you clearly understand the Award you’re operating under and any other related Industrial Relations tools. If you don’t, then seek advice and support.
     

 

Hynes Legal

Hynes Legal is a well-established commercial law firm with a leading national practice in the Aged Care, Retirement Village and Senior Living sectors.

They specialise in advice on Consumer Law compliance and risk management; particularly in respect of Home Care, NDIS and Community Services.

Hynes Legal has a range of products and services to support Service Providers in the provision of Homes Care services, including Home Care Agreements and NDIS Service agreements.

Contact Hynes Legal on (07) 3019 0500 to discuss how Hynes Legal can support your readiness for the move to the consumer law environment. 

 

  

 

 

 

Kristin is Director and Head of Hynes Legal’s Employment and Workplace Relations Practice.

She has over a decade of exclusive industrial relations and employment law experience across a broad range of clients and industry sectors with a particular focus on aged care and retirement living.

Kristin provides legal and strategic advice across the full range of employment, industrial relations, discrimination and workplace, health and safety laws. She takes a highly practical approach to workplace relations issues and aims to use the industrial legal framework to help, not hinder, businesses. Where possible, Kristin works towards a commercial rather than litigious resolution of workplace issues.

Kristin also has particular expertise in conducting high legal HR systems audits, assisting businesses undergoing Fair Work Ombudsman investigations (or prosecutions), and advising on enterprise bargaining (and resultant disputes).

Kristin is the Chair of the Queensland Law Society’s Industrial Relations Committee, sits on the management committee for the Industrial Relations Society of Queensland and is also a volunteer coordinator at Caxton Legal Centre’s employment law clinic.

Kristin was included on the Best Lawyers list for the second consecutive year in 2017 as a leading lawyer in the area of Labour and Employment Law.

 


If you haven’t yet, please subscribe to our fortnightly e-newsletter, IGNITE. 
 

Get IGNITE 

(our awfully useful and entertaining, fortnightly e-newsletter)