The health industry in Australia, boasting a workforce of over one million people, plays a pivotal role in the country’s overall development and well-being. 

Navigating the intricacies of labour laws in this expansive sector can, however, be daunting, especially given the nuanced and complex nature of modern awards. 

The Health Professionals and Support Services Award 2020 (MA000027) is one such instrument designed to regulate employment terms and conditions. 

Unfortunately, employers often find themselves tangled in its complexities, failing to fully grasp their obligations, leading to unintentional non-compliance. 

This comprehensive guide aims to decode the award, shedding light on the various requirements and guidelines employers need to meet.

Coverage: Who Does the Award Apply To

This modern award applies as both an industry and occupation award.  This means it applies to employers across Australia in the health and allied services industry and their employees in numerous classifications under the award. It also applies to employers who are engaging a health professional, regardless of whether the employer is or is not in the health industry.

Coverage as an Industry Award

The award defines the health industry to include the delivery of:

• Medical services
• Health care services
• Dental services
• Pathology services

Employees who fall under these service delivery sectors include: 

• Dieticians
• Pharmacists 
• Dental hygienists and therapists 
• Counsellors and psychologists 
• Audiologists 
• Speech pathologists 
• Radiographers, sonographers and radiation therapists
• Occupational therapists (unless they work for the educational sector) 
• Chiropractors and physiotherapists
• Podiatrists 

Those who work in support services in the health industry are also governed by this award. Examples of support service employees include: 

• General and administrative services employees such as receptionists, clerks, security offers, gardeners and cleaners 
• Food service employees such as cooks and kitchen hands
• Technical and clinical employees such as dental assistants and laboratory assistants

In addition to these health professional employees, the Health Professionals and Support Services Award covers labour-hire businesses and their employees placed with an organisation.

The award, however, does not cover the following employees: 

• Nurses (Nurses Award)
• Paramedics (Ambulance Award)
• Doctors, general practitioners and surgeons 

Coverage as an Occupation Award

The award applies to employers who engage a health professional, regardless of whether the employer is or is not in the health industry.

Health professionals who are covered by this award include:

• Physiotherapists
• Chiropractors
• Dental hygienists
• Dietitians
• Pharmacists
• Podiatrists

When determining coverage, it is important to review the complete information in the Health Professionals and Support Services Award, including the classifications.

Employment Types

The Health Professionals and Support Services Award recognises three principal categories of employment:

Conditions for Employing a Part-Time or Casual Health Professional Employee

Part-time employees must receive the same entitlements as full-time employees based on their average weekly hours worked, i.e., pro-rata. Among these are benefits such as annual leave and personal leave.

Employees and employers must agree in writing on the days and times of the employee’s work schedule to avoid misunderstandings and ensure clarity. This agreement can be altered only by mutual consent, with changes documented in writing.

If you choose to hire health professionals or support services staff on a casual basis, the terms of their casual employment must include the following: 

• At least 3 hours of pay per shift (or 2 hours for cleaners) 
• A loading of 25% on top of their base rate of pay, compensating for the lack of benefits typically accorded to permanent employees, such as personal leave, annual leave, payment for absences on public holidays, redundancy pay and the provision of notice on termination of employment

Casual Employees Can Request to Convert Employment Type  

As per the National Employment Standards, casual employees have the right to request conversion to full-time or part-time employment at any time after their 12 month anniversary, if they have worked a regular pattern of hours over at least the last 6-months.

Employers must consider these requests in good faith and respond in writing to an employee’s request within 21 days. 

Unless there are sound business reasons, such as a predicted change in the employee’s working hours or business circumstances, quite often the employer must offer conversion. However, employers should carefully review each specific situation with reference to the requirements set out in the National Employment Standards. 

Where an employer has reasonable grounds to refuse a request, they still need to discuss the request with the employee and provide written reasons for their refusal within 21 days of receipt of the employee’s request. 

It is also worth noting that, upon receiving the conversion offer, the employee has the option to decline it.

Hours of Work

The ordinary hours of work for an employee under the award must not exceed 38 hours per week. According to the award, these hours can be averaged over a specified period of up to four weeks.

Span of Ordinary Hours for Day Workers

Day workers work within a fixed span of hours, as indicated below:

What Rostering Arrangements are Available Under the Health Professionals Award?

Under the Health Professionals and Support Services Award, the following rules govern the rostering of ordinary work hours for full-time and part-time employees:

• A roster must be in place for each employee, illustrating their ordinary hours of work over a fortnightly period. 
• The roster must be positioned in a location easily accessible to all relevant staff.
• This fortnightly roster must be posted at least two weeks in advance of the upcoming roster period commencing.
• Unless necessary for the proper functions of the hospital, facility or organisation, any alterations to the roster must be conveyed to impacted employees with a notice period of no less than seven days.

When Should Your Employees Take Their Breaks?

The award provides rules for both paid rest breaks and unpaid meal breaks.

Paid Rest Breaks

Employees are entitled to a paid rest break of 10 minutes for each four hours of work. This break isn’t to be taken in conjunction with another break or at the start or end of a shift.

Employers may determine when employees take these paid rest breaks. 

Unpaid Meal Breaks

Employees are required to take an unpaid meal break of between 30 and 60 minutes after five hours of continuous work. The timing of the break can be varied by agreement between the employer and the majority of employees. An employee who works no more than 6 hours may elect not to take an unpaid meal break, provided the employer consents to this.

Minimum Pay for Employees in the Health Professional Industry

The Health Professionals and Support Services Award stipulates minimum wage rates for various roles, classifications, and experience levels. Employers must pay their employees at least the pay rates and entitlements specified in the award weekly or fortnightly, depending on the pay period cycle. 

The Fair Work website has various tools and resources to help you calculate your staff’s wages. 

Alternatively, you can access the pay guide summaries, which contain information about the minimum wages (pay rates), penalties, and allowances. 

However, note that these pay rates are adjusted annually per the national minimum wage. Therefore, you must use the applicable pay guide summary when determining the applicable pay rate, and you must ensure you regularly check such rates to ensure you remain compliant.

Superannuation Guarantee

All employers must pay a superannuation guarantee on behalf of their employees. The current rate is 10.5% of an employee’s ordinary earnings for the 2022–23 financial year. However, this will increase each year by 0.5% until it stabilises at 12% in 2025. 

What Allowances are Available under the Health Professionals and Support Services Award?

Eligible employees under the Health Professionals and Support Services Award receive additional pay, in the form of allowances, for specific work conditions and work-related skills, including: 

These allowances are generally adjusted annually. You can access the full allowance conditions in clause 23 of the Health Professionals and Support Services Award and the allowance rates in the relevant pay guide. 

Higher Duties

Where you require a health support services employee to undertake duties of a higher classification, you must compensate them according to the number of hours they perform these duties. 

If they only perform these higher duties for up to two hours, you simply compensate them for that time by paying them at the higher rate of pay that applies for working at the higher classification. However, if they work beyond the two hours, you must compensate them at the higher applicable award rate for the entire shift. 

In circumstances where they are required to perform the duties of another employee at a higher classification under the award for 5 or more days, you must compensate them at the minimum rate for that higher classification for the entire period that they perform the other employee’s duties. 

What Are Your Obligations When Staff Work Overtime? 

Under the Health Professionals and Support Services Award, overtime entitlements for different categories of employees are as follows:

• Full-time Employees: They earn overtime if they work beyond their ordinary weekly hours or any shift longer than 10 hours.
• Part-time Employees: They earn overtime if they work more than their ordinary  weekly hours, exceed 38 hours in a week, or work any shift longer than 10 hours.
• Casual Employees: They earn overtime if they work any shift longer than 10 hours, or work beyond 38 hours in a week or 76 hours in a fortnight.

Further, where employees miss out on their break between shifts, they are entitled to overtime. 

The award stipulates different overtime rates for different categories of workers: 

Note: Overtime rates are in substitution for and not cumulative with shift work penalties and loadings.

Rest Period After Overtime

Upon working overtime, an employee must receive a break of 10 consecutive hours before starting work again. If the employer requests that the employee resume work without a 10-hour break, the overtime rates continue to apply until the employee is given a 10-hour break.

Are Employees Allowed to Take Time Off Instead of Receiving an Overtime Payment? 

Yes, the Health Professionals Award permits an employer and employee to agree in writing that the employee can take time off in lieu of being paid for overtime. However, you must comply with certain requirements:

• An employee must receive the equivalent time off as the overtime pay they would have received if they had not been granted time off. For example, a full-time or part-time employee who works 2 hours of overtime is entitled to 3 hours off (i.e. 2 x 1.5).
• Both parties must agree to take the time off within six months of working the overtime. If the employee does not take the time off within six months, the employer must pay them for the overtime.
• If the employee requests it at any time, the employer must pay the employee for their overtime.
• The employer cannot pressure or unduly influence employees into taking time off instead of receiving overtime pay.
• The employer must pay overtime to the employee if the employee’s employment is terminated.

Penalty Rates and Shift Work

Penalty rates are an important aspect of the Health Professionals and Support Services Award. They apply when employees are rostered to work unsociable hours, such as on weekends and public holidays. The intention is to fairly compensate workers for the regular inconvenience of working such hours.

Different penalty rates apply depending on the time and day of work:

Note: Remember to add the applicable 25% loading rate if the employee is a casual. 

The following penalty rates apply to shiftworkers (being employees who are regularly rostered to work their ordinary hours outside the span of ordinary hours of work of a day worker): 

Note: These shift work penalty rates do not apply to shift work performed by any employee on Saturday, Sunday, or public holidays, where the weekend penalty rates and public holiday rates that are set out in the table above apply.

What are the Annual Leave Provisions under the Health Professionals and Support Services Award?

The National Employment Standards (NES) prescribe the annual leave provisions for employees covered by the Health Professionals and Support Services Award. 

Employers must pay their employees a 17.5% leave loading in addition to their annual leave entitlements. 

What Alternative Annual Leave Arrangements Can an Employee Request?

• Leave in advance: An employee can take paid annual leave in advance if agreed upon in writing with the employer. 
• Cashing out annual leave: Employees may be able to cash out some of their accrued annual leave as long as certain conditions are met and at least four weeks of accrued annual leave are retained.
• Excessive leave accruals: If an employee has accrued more than eight weeks of paid annual leave (or ten weeks for shift workers), they and their employer may agree to reduce the amount by taking some leave.

Key Takeaways:

Understanding and abiding by the Health Professionals and Support Services Award is vital for employers in the health and allied services industry and those who are covered by this award as an occupation award. 

While this guide offers an in-depth overview of the award’s provisions, it may not cover all individual circumstances, since employment relationships and requirements can be complex. 

For specific advice or more comprehensive information, it is always recommended to consult a legal professional or a trusted advisor well-versed in Australian employment law.

As a leading employment law firm, WilliamsonBarwick has extensive experience advising employers regarding their obligations under the Award. In addition to assisting you in understanding your legal obligations, our lawyers will also assist you in resolving any disputes that may arise. 

Contact us today to discuss your needs and how we can assist you.