Throughout the month, GPRA receives enquiries from members, as well as stakeholders, supervisors, and practice managers. Reading through previous enquiries can help clarify an issue, or answer your question.
The NTCER and superannuation
Member question: I was wondering if you could help me with a question I have regarding a statement in the NTCER on page 17, about Schedule A Remuneration. I don't understand how superannuation as per the NTCER works in practice because 44.79% + 10.0% does not equal 49.27%.Read GPRA's answer
Payment for ordinary hours for a registrar at the GPT1/PRRT1 level is calculated over a 3 monthly cycle and will be the higher of a) or b) below.
a)The correct base rate of pay for a full-time registrar, plus the statutory rate of superannuation as determined by the Commonwealth, currently 10.0%
b) 49.27% comprising 44.79% of in-hours, after hours and on-call gross billings or receipts, plus the statutory rate of superannuation as determined by the Commonwealth, currently 10% (‘the percentage’)
GPRA member: "I don't understand how this works in practice because 44.79% + 10.0% does not equal 49.27%."
If you check Schedule A of the NTCER: your percentage payment is at least "49.27% comprising 44.79% of in-hours, after hours and on-call gross billings or receipts, plus the statutory rate of superannuation as determined by the Commonwealth, currently 10.0% (i.e. 44.79% + 10.0% of 44.79% = 49.27%).
So, 44.79% of your billings or receipts contribute to your gross wages (provided this is higher than your base rate of pay across the billing cycle) and 4.48% (i.e. 10.0% of 44.79%) of your billings or receipts are paid into your superannuation account.
You can read the NTCER here.
Superannuation not being paid
Member question: My practice isn’t paying me any superannuation, what do I do?Read GPRA's answer
Firstly, while superannuation is part of a registrar’s remuneration, it is not income that is paid directly to the registrar, but rather the employer must pay this into the registrar’s nominated superannuation fund.
It is a legal requirement that the minimum superannuation paid into the registrar’s nominated super fund is the super guarantee, which is currently 10% of ordinary time earnings and must be paid at least four times a year, by the quarterly due dates. Visit the ATO website for more information.
For registrars, this applies to the base rate of pay and any percentage of billings/receipts, which are ordinary time earnings.
Superannuation can be a point of confusion for some GP training practices and GP registrars. Most Fellowed GPs are contractors and do not get paid superannuation; however, as GP registrars are employees training practices are obligated to pay superannuation.
What do I do next?
If you are not being paid superannuation, you should have a conversation with your training practice; you should document such interactions with your training practice.
Remember that mistakes can be made; it is always good to approach these circumstances early on with open, honest communication and with the desire to amicably resolve any misunderstandings. If you need further support, you can contact the GPRA Registrar Advisor.
You should also alert your Regional Training Organisation (RTO) that superannuation is not being paid so they are aware of what is occurring during your training experience. Additionally, if you need support to have a conversation with your training practice, you can contact your Registrar Liaison Officer (RLO).
There are also formal steps for reporting unpaid superannuation to the Australian Tax Office (ATO) which are described on this ATO webpage. However, GPRA advises to first have a conversation with your training practice.
My percentage of billings and superannuation
Member question: I have managed to negotiate a percentage of 50% billings, but my practice is taking super out of that percentage. Is this allowed?Read GPRA's answer
It depends on what is stated in your employment agreement.
If your employment agreement states that the percentage of gross billings is "50% inclusive of superannuation" then, as the superannuation rate is currently 10.0%, your salary is actually 45.45% of billings with 4.55% billings paid into your superannuation fund. (This is slightly above the NTCER minimum, which is 44.79% billings as salary and 4.48% billings is the super contribution.)
However, if your agreement states that the percentage of gross billings is "50% plus superannuation" or “50% exclusive of superannuation”, then the superannuation contribution should not be deducted from your 50% billings rather 5.0% (i.e. 10.0% of 50%) of your total billings is paid into your superannuation fund on top of the 50% of your billings which forms your salary.
Part-time GP registrars and increases to the base rates of pay
Member question: As a part-time GPT1 registrar, does my base rate of pay change once I've completed six calendar months of GPT1 training, or six months full-time equivalent (FTE) training?Read GPRA's answer
Your GP training term is determined by your RTO's assessment of your progression through the AGPT program and is dependent on both completion of 6 months full-time equivalent (FTE) accredited training and satisfactory progression of performance on educational tasks and assessments.
Your RTO will determine the amount of your part-time training that is actually counted towards accredited training. Most RTOs will pro-rata your progression through training so if you are working 0.75 FTE, your time as a GPT1 will simply be extended until you have completed six months of 1.0FTE total.
However (for example) some RTOs will only count 0.5 FTE of part-time training towards progression, even if you actually work (and are paid) 0.75 FTE.
The key point is that you progress from one GP training term to another (and with that, your base rate of pay will change) when your RTO assesses you as having met requirements, rather than just being a GP registrar for six calendar months.
Salary increase on changing GP training term
Member question: I have recently started my GPT2 term in a new practice and my salary hasn't changed compared to my GPT1 term, as I am only getting paid 44.79% of my total billings. Am I being underpaid?Read GPRA's answer
As per NTCER Schedule A Remuneration, your base rate of pay does increase from GPT1 ($39.67/hr) to GPT2 ($47.69/hr) however, the minimum percentage of billings is 44.79% across all levels of training. It is recommended that you check your pay slip and/or follow up with your practice manager to ensure that your base rate of pay is correct.
You are free to try to negotiate a higher percentage of billings in your employment contract (NTCER cl. 2); however the training practice is under no obligation to meet such a request. A 3-month review (as per NTCER cl 11) may be another opportunity to discuss remuneration and pay cycles with your employer.
Working in an Aboriginal Medical Service (AMS)
Member question: How do I get paid when working with an Aboriginal Medical Service (AMS)? Does the NTCER apply?Read GPRA's answer
The NTCER is not necessarily intended for use in community controlled health workplaces, such as AMS settings (see NTCER cl.3).
Instead, the Regional Training Organisations (RTOs) administer the Aboriginal and Torres Strait Islander Salary Support Program (Salary Support Program), on behalf of the Department of Health, to:
"...provide funding to maximise the number of GP training placements delivered in Aboriginal and Torres Strait Islander health settings to improve access to appropriate, holistic health care for Aboriginal and Torres Strait Islander communities".
Community controlled health services often provide a different model of care that means that registrars would end up on a minimal base rate under the NTCER, due to patient numbers and MBS billing arrangements. In order to provide more incentive, there are generally higher salaried models of employment in these services.
The AGPT Salary Support Program Policy 2018 guides the RTOs and Aboriginal and Torres Strait Islander health facilities in delivering training to registrars including the Salary Support hourly rates (which are significantly higher than NTCER base hourly rates). Therefore, if your AMS (or Aboriginal Controlled Community Health Organisation) placement is being supported by the Salary Support Program, it is suggested that you read this policy and it is also recommended that you follow up with your RTO in regards to training and employment arrangements for registrars at your training facility (which may or may not be participating in the Salary Support Programme).
If the Salary Support Programme is not applicable then, while there is no specific policy guidance that GPRA is aware of, it is reasonable to expect you should be entitled to a contract that is, at a minimum, compliant with NTCER.
Leave payments when earning over base salary
Member question: My practice has not paid me any leave as I earn over the base salary. Is this in breach of the NTCER?Read GPRA's answer
In general, if your employment agreement is consistent with the minimum terms and conditions in the NTCER then the practice does not have to pay separately for any leave taken if the billings percentage exceeds the base hourly salary (inclusive of leave payments made at the base rate).
As per the NTCER (Schedule A), for the purposes of percentage calculations, “the cycle is inclusive of any periods of leave taken”. So, if the registrar's billings percentage is significantly higher than their base rate then essentially leave payments come out of the billings percentage. This means that, in effect, the billings subsidise the registrar's leave. While the AMA and independent legal advice consider that this arrangement is lawful under the Fair Work Act 2009, this is an aspect of the NTCER which GPRA feels is not fair or reasonable and has lobbied strongly for change.
It is important to note that many training practices pay leave separately to the billings reconciliation which is a much fairer way of calculating the percentage payment and significantly reduces the financial disincentive to take leave, supports wellbeing and encourages productivity.
Paying company payroll tax
Member question: I have recently noticed a new deduction of 5% of my billings for company payroll tax. There is nothing mentioned in NTCER about this but my Practice Manager advised that this is an allowable deduction. Is this correct?Read GPRA's answer
Payroll tax is a business expense and should NOT be deducted from employee wages. So as GP registrars, employed according to the NTCER, are considered to be employees, payroll tax should not be deducted from your percentage of your billings. The percentage of your MBS earnings that are retained by the practice (e.g. the practice retains 50.73% of your billings, if you are paid according to NTCER minimum) is to cover business costs including payroll tax.
Correct percentage of payment – paying back the difference
Member question: I get paid base rate for 76 hours per fortnight as per the NTCER. At the end of the month 45% of my total billings for that month are calculated and the difference between this and the base rate that has already been paid to me for the month is my bonus.
When I recently took leave, my base rate pay for the month was actually a bit more than the 45% calculated on total billings at the end of the month. Does this mean I have to pay back the difference as my 45% for the month is less than the base rate payment made?Read GPRA's answer
The NTCER (Schedule A) states that registrars are to be paid the higher of:
(a) base rate of pay or
(b) percentage of billings calculated over the cycle (which is a monthly interval in this case).
This essentially means that registrars are guaranteed to receive, as minimum remuneration, the base rate of pay. If your percentage of billings is less than the base rate paid over a cycle, then the base rate is the only remuneration you will receive for the cycle interval; furthermore, you do not have to pay back any difference.
No payslips provided
Member question: I am not getting a regular pay slip with my fortnightly pay and I think that I might have been underpaid. What do I do?Read GPRA's answer
According to the Fair Work Act (section 536), pay slips have to be provided to an employee within 1 working day of payday, even if an employee is on leave. Details of the information that should be included on your payslip are here.
Once you obtain your payslip, you should be able to determine if you are being underpaid.
If you have been underpaid the Fair Work Ombudsman advises that this "needs to be fixed as soon as possible".
You should follow up with the practice manager and/or your supervisor to resolve this as soon as possible. Your RLO can also support you with this.
Member question: I'm a registrar in a rural practice with frequent on-call shifts in the local rural hospital. My practice rolls both the on-call allowance and the billings from the rural hospital into the 13-week cycle. Is this correct?Read GPRA's answer
According to clause 10.11 of the NTCER, a registrar may be rostered to be on-call. The NTCER states that this is considered to be “a normal part of general practice”. By clause 10.10, a registrar will be paid for on-call hours “as per ordinary hours”. In addition, if registrars are rostered to be “on-call” and other practitioners at the relevant practice receive an “on-call payment” (that is, an allowance for being on call, as distinct from a payment made for the performance of on-call work), the registrars must also receive that payment (clause 10.11).
Advice GPRA has obtained from legal counsel with expertise in IR law is that the payment of an “on-call allowance” is not in exchange for the performance of work. It is a payment made to compensate the practitioner for holding themselves ready to work outside of ordinary working hours. A doctor does not “bill” an on-call allowance. Therefore these allowances do not fall within the description in Schedule A of “billings or receipts” and so should be paid stand-alone. Furthermore, The NTCER provides a registrar should receive the same allowances as other doctors for being on call (clause 10.11) or, in the case of hospital work, a percentage of such allowances (clause 11.4), noting that this is distinct from payment for work performed when called-in.
Therefore, on-call billings can be included into the 13-week cycle but you should have also been paid at base-rate for the (after) hours when you actually performed work while on-call (as per clause 10.10). However, it is incorrect for the on-call allowance to also be rolled into the 13-week cycle - this should be a stand-alone payment.
Leave entitlements and changing GP training term
Member question: I am just about to finish my term at my current training practice. What happens to the leave that I have accrued but not taken during this training term?Read GPRA's answer
From July through to August, GP registrars across all RTOs will be transitioning into the second training term for the year. As you progress through your GP training, your stage of training (e.g. GPT1/PRRT1, GPT2/PRRT2, GPT3/PRRT3) and/or employing training practice may change. This can impact your leave entitlements if you have any untaken leave at the end of your current training term.
There are two possible scenarios:
- You are continuing with the same employer/training practice for the next term. In this case, any accrued but unused personal and annual leave is carried forward into the next term. When taken in that next term it is paid at the base rate applicable at the time it is taken not the rate at which it was accrued (e.g. leave accrued in GPT1 but taken during GPT2 is paid at GPT2 base rate).
- You are concluding with your current employer and moving to a new practice/employer for the next term. In this circumstance, any untaken accrued annual leave is paid out at the base rate. This payout of leave cannot be included in the percentage calculation; it is paid on top of the percentage for the cycle leading up to the end of employment
Should my unused annual leave be deducted from my percentage billings?
Member question: I am just about to finish my term at my current training practice and will be moving to work at a different practice for my next term. I have one week (38hrs) of annual leave that I have accrued but not taken during my current term. My practice manager is going to deduct this from my percentage billings prior to paying my 13-week payment. Does this sound right?Read GPRA's answer
When your period of employment ends you are entitled to be paid out for any accumulated annual leave that has not been taken during your employment with your training practice, as per Section 90(2) of the Fair Work Act (2009).
According to Schedule A of the NTCER: For the purposes of the percentage calculations, the cycle is inclusive of any periods of leave taken, including annual leave.
Therefore, as your 38hrs of accumulated leave has not been taken during the cycle it cannot be included in the percentage calculation, but rather it must be paid out separately.
Pay when working on a public holiday
Member question: My clinic will be opening for only a morning session on the upcoming public holiday (on Monday). On this day of the week (Mondays) I normally work the whole day—both morning and afternoon sessions. I have been asked to work the morning session on this public holiday. How do I get paid for working this session on a public holiday?Read GPRA's answer
Section 6.7 of the NTCER that applies to your situation, as follows:
"6.7 Public Holidays
A registrar who normally works ordinary hours on the day of the week on which a public holiday falls is entitled to that public holiday as paid leave (i.e. that day is part of the registrar’s ordinary hours of work for that week).
If a registrar works on a public holiday in a practice that is open for normal consultations:
- the registrar will receive their normal pay and equivalent time off in lieu;
- 150% of their ordinary hourly rate of pay or the agreed percentage of their billings/receipts, whichever is the greater (and no time off in lieu).
If a registrar works on a public holiday in a practice that is closed for normal consultations in an on-call capacity, then the registrar will receive their ordinary hourly rate for their usual rostered hours. In this instance, the registrar is not entitled to a paid day off in lieu.
The allocation of public holiday rostering shall be no more onerous than that of other doctors in the practice."
Section 6.7 means that when a registrar is normally rostered to work on the day on which a public holiday falls and the practice is closed, then they receive their base hourly rate (as holiday leave) as per any other employee.
If a registrar works in an on-call capacity for the practice that is closed for normal consultations on a public holiday, then the registrar will receive their ordinary hourly rate for their usual rostered hours. In this instance, the registrar is not entitled to a paid day off in lieu.
If the practice is open on the public holiday then the registrar should be expected to work (unless they are taking annual or sick or any other kind of leave) and either be paid at 150% of the hourly base rate OR be paid the usual base hourly rate and take equivalent time off in lieu (subject to negotiation between the practice and registrar).
So in this situation, as the practice will be open for limited hours on the public holiday, the morning session (i.e. the hours of opening/registrar working) is paid at 150% of the hourly base rate OR usual base hourly rate plus equivalent time off in lieu AND the hours of the afternoon session that the registrar would have normally worked (if there was no holiday) are paid public holiday leave (at the normal base rate).
Practice shutdowns and annual leave
Member question: My practice is shutting down over the Christmas and New Years holidays. While I am being paid my base rate of pay for the public holidays (as they are my normally rostered days of work), the practice manager has informed me that I will be required to take days of annual leave over the closure dates which are not considered public holidays. Is this in line with the NTCER?Read GPRA's answer
Yes – this is in entirely consistent with the National Employment Standards (NES), which the are minimum standards applying to the employment of employees defined in the Fair Work Act, and on which the NTCER is based.
According to the NES, “an employer may require an … employee to take a period of paid annual leave, but only if the requirement is reasonable” (Fair Work Act cl. 94(5)).
A requirement to take annual leave would be considered reasonable if the employer’s enterprise is being shut down for a period such as between Christmas and New Year.
This means that if the practice shuts down for a holiday period (for example, Christmas or Easter) you may have to use your annual leave for this period. This is reasonable as there will be no clients, no staff and no work during the shutdown period.
Usually, the practice would have an appropriate policy on this and it would also be discussed with you well in advance, ideally up front during employment negotiations and documented your employment agreement prior to signing off.
If you have not accumulated enough annual leave to cover the practice’s shutdown period, then the NTCER allows for access to leave in advance of accrual, by negotiation (NTCER cl. 6.1), if this is within your maximum entitlement, otherwise leave without pay would be required.
Public holidays & roster changes
Member question: My practice manager has changed my roster so that my day off now coincides with a public holiday. Can they do this?Read GPRA's answer
Public holidays form part of the National Employment Standards (NES).
The NES provides an entitlement for employees to be absent from work on a day that is a public holiday. According to the NTCER (clauses 4 & 5), registrars are engaged as employees and as such, should be paid their base rate of pay for the day when a public holiday falls, provided they normally work ordinary hours on that day of the week (NTCER clause 6.7,).
Furthermore, the Fair Work Ombudsman advises that an employee’s roster can’t be changed to avoid paying them for a public holiday.
BUT this does depend on the details in the registrar’s employment agreement. GPRA's advice is to ensure that your ordinary hours are agreed on prior to commencing a term and that this is itemised and detailed in your employment agreement. An employment agreement is legally binding, and so if rostering detail is specified then this becomes a contractual obligation on the practice and so cannot be altered without your written consent.
If your rostering details are not documented in your employment agreement and/or are only based on a verbal agreement, then alterations to your rostering in relation to public holidays can be difficult to substantiate. Also, clauses in employment agreements that allow for rostering changes subject to clinic requirements can ‘open the door’ for roster alterations for public holidays.
The key point for registrars is to:
- Ensure that all items negotiated and agreed on in relation to your remuneration, working conditions and other terms and conditions (including rostering details)
- that these items are documented in your employment agreement prior to commencing your training term.
Amount of paid sick leave
Member question: How much paid sick leave am I able to take as a GP registrar?Read GPRA's answer
For AGPT Registrars in community general practice:
The National Employment Standards provides for 10 days of paid personal/carer's leave per year, accumulating from year to year if the employee remains in continuous service with the employer.
As per NTCER (clause 6.3), paid personal/carers (i.e. sick) leave can be taken in advance (see also Misunderstanding & Misconception #7).
This means you have 5 days available (in advance) for each 6 month term. Personal leave is paid at base-rate of pay (NTCER cl. 6.3).
On 13 August 2020, the High Court of Australia handed down a decision on how paid personal/carer's leave is accrued and taken under the National Employment Standards (NES). This decision clarified that for part time employees paid personal/carer’s leave is accrued pro rata, based on ordinary hours worked. The NTCER provisions (cl.10.2) regarding pro-rata paid sick leave for part time registrars are consistent with the recent High Court decision.
For RVTS/PEP/GPE/Independent Pathway trainees:
Personal/carer's leave entitlements (both paid and unpaid) will be dependent on the structure of your contract either as an employee or a sole trader.
Maternity Leave while GP Training
Member question: I am starting GP training next year. If I become pregnant can I access maternity leave? Is it paid leave, or unpaid leave.Read GPRA's answer
From a training perspective, you are able to take parental leave as Category 1 Leave from the training program, according to the AGPT Program Leave Policy 2019. This leave will not contribute towards your Training Time and as such it will not be counted within your training time cap.
In terms of employment, maternity leave is dependent on your employment contract. If you are doing a hospital term, you are likely employed in a public hospital under a medical officer award (different awards apply in different states) and generally, you will be entitled to some employer-paid maternity leave under that award.
Once you move into community GP placements you are generally employed as per the National Terms and Conditions of Employment of Registrars, which is not an award but is a required minimum standard of employment for AGPT registrars.
Employer-paid maternity leave is NOT mandated by the NTCER and most GP registrars in practice will not have access to paid leave (except for the Government's Paid Parental Leave Scheme via Centrelink). Theoretically, it is possible to negotiate paid maternity leave as part of your individual employment contract, but GPRA is not aware of any registrars who have successfully won such a clause, or of how any training practice would be in a position to fund such an arrangement.
In summary, if you are in a hospital job you likely will have some paid maternity leave (from the hospital) but if you are in community placements you will likely not have any paid maternity leave from your practice (although you may qualify for the government paid parental leave).
Member question: As I move from being a GP registrar to a Fellow, what are the key items (paperwork, registration, etc) I need to organise?Read GPRA's answer
As a new Fellow you will need to reapply for a medicare provider number for wherever you are going to work as a GP. You will be Vocationally Registered (VR) which makes the whole process more streamlined than when you were a GP registrar. You should contact Medicare directly. The Department of Human Services provides information on applying for a Medicare provider number.
If you are continuing to work at the same location where you have been a GP registrar, you can notify Medicare and they will simply remove the expiration date from your current Medicare provider number.
You will also have the option to be registered with the Medical Board of Australia (through AHPRA) as a Specialist General Practitioner. This requires a small fee and more paperwork but it will mean that you have both general and specialist registration (please note that while this is not a necessary step, it is quite nice). Here is a useful starting point:
It is also critical that you notify your medical indemnity insurance immediately of your change in status to working as an independent VR GP. You will likely pay an increased premium.
Lastly, if you are planning to work as a sole trader/contractor GP rather than an employee (which is most common), then it would be wise to talk to an accountant about how to structure your finances and prepare for your tax and superannuation.
Employment agreement while awaiting Fellowship
Member question: I'm currently working as GP registrar and have four months to go on the employment agreement with my training practice. I have recently received my fellowship notification. What does this mean in terms of my current employment arrangement?Read GPRA's answer
Receiving notice of attainment of fellowship from your medical college (ACRRM or RACGP) still requires subsequent actions from you to become formally vocationally registered. If this has not occurred then you may not be registered for your VR Medicare Provider Number.
Therefore, if you wish to continue to work in general practice and bill Medicare, you will need to be employed under registrar conditions to continue to use your registrar (3GA) Medicare Provider Number. This is done through an "Extension Awaiting Fellowship" arrangement, according to the AGPT Extension of Training Time Policy (category 5.2) and organised via your RTO, until such time as all VR paperwork is in place and you have received your new VR provider number.
In this circumstance, it would be entirely reasonable to renegotiate the terms and conditions of your employment during this "awaiting fellowship" period.
While still subject to the NTCER, you will no longer have supervision requirements and adjustments in your share and/or frequency of payment of percentage billings (and/or other terms and conditions) could be considered so as to be more aligned with what would be offered for consultant GPs. This is also consistent with provisions in the NTCER (section 2), in that the: “registrar and employer may negotiate terms and conditions different from those outlined [in the NTCER] by mutual agreement, provided they are no less favourable to the registrar”.
Once your vocational registration paperwork and subsequent Medicare Provider Number is in place then neither you nor your practice are subject to remaining under the conditions set out in the NTCER.
This situation is something practices and registrars should be mindful of when reaching this point of training. A respectful discussion/negotiation between the registrar and practice is highly recommended, well in advance, particularly if you intend on leaving the practice either prior to or once you are vocationally registered.
Restrictive covenant in my employment agreement
Member question: My employment agreement has a "No competition" clause which states that within 12 months after my employment ends, I must not practice within an area less than 10km of the training practice. Are these types of clauses legally enforceable?Read GPRA's answer
“No competition” or restrictive covenant clauses in employment agreements prevent a doctor from practicing in the future, usually within a defined timeframe, within a certain geographic range from their current employer’s practice. These clauses are designed to protect the practice’s client base and business interests.
While such clauses may be relevant for Fellowed GP contractors, GPRA believes that they would be very difficult to uphold for registrars in the training program, as registrars typically do not control their placements and are usually required to move practices to meet their training requirements.
That said, such restraint clauses in an employment agreement are allowed under the NTCER (cl. 17) Restrictive Covenant: "An agreement may be reached between the registrar and the employer regarding reasonable restrictions on the registrar’s employment on leaving the training post, including location and time period, provided that such restrictions do not unreasonably interfere with the completion of the registrar’s training or cause unreasonable hardship for the registrar. The employer and the registrar acknowledge that a restrictive covenant must be reasonable and should not be wider than is reasonably necessary to protect the employer’s interests when judged in terms of the duration and area of its coverage and the activities restrained."
Therefore, the employer can negotiate a restrictive clause, but this is subject to a test of "reasonableness": it must
1. be reasonable, and
2. not unreasonably interfere with the completion of the registrar’s training or cause unreasonable hardship for the registrar.
Effectively, such clauses should not make it impossible to work elsewhere as a registrar (e.g. if you are in an area where there is only one other practice where you can be placed during training or work following fellowship).
Legal advice GPRA has obtained confirms that reasonable restraints, that aim to protect the business interests of the training practice, are lawful. There are many factors that determine whether a restraint is reasonable including:
(a) the length of the restraint;
(b) the geographic area of the restraint;
(c) the size of the town or city in which the restraint operates;
(d) the number of medical clinics falling inside the geographic area of the restraint;
(e) the number of medical clinics falling outside the geographic area of the restraint; and
(f) the capacity of the practitioner to earn a living or to exercise their profession outside of the geographic restraint area.
So it follows that, while a restraint is unlikely to be enforceable in all circumstances, registrars should not assume that a restrictive covenant will be unenforceable.
The GPRA Benchmarking survey results demonstrate that restrictive covenants are included in some registrar employment agreements, with a range of restraints, in terms of duration and geographic distance. However, GPRA recommends that registrars in all training terms should attempt to negotiate for the removal of restrictive covenants from their employment agreements. If this is not possible, carefully consider the impact that such a restraint clause may have on where you plan to practice both as a registrar and as an early career GP; while GPRA is not aware of any legal action being brought against a GP registrar or early career GP in this regard in the past, you certainly should not assume that the restraint will be unenforceable.
GPRA also suggests, if you have concerns about a restrictive covenant in your employment agreement, that you seek independent legal advice on whether the restraint is reasonable, particularly in relation to the factors above, and how this can be dealt with in terms of your future/preferred work location especially post Fellowship.
Intellectual property in contracts
Member question: I have noticed my contract includes a clause regarding intellectual property (i.e. the GP practice is the sole owner of the rights to any original work/material developed, even outside working hours). I am uncomfortable signing this and was wondering if it is a standard part of a contract?Read GPRA's answer
In general, clauses regarding intellectual property are not unusual in employment contracts. Typically, they specify that any intellectual property developed in the course of your employment belongs to the employer and this is not unreasonable in a professional or corporate environment. As a general principle, an employer owns any intellectual property its employees create during their employment. If, however, intellectual property has been developed by you, other than in the course of employment, then the rights to this intellectual property (i.e. your ideas or inventions) belong to you.
In this situation, the wording of this clause in your employment contract may imply that you are agreeing to a provision that gives your employer the rights to your intellectual property even if it has nothing to do with your work as a GP registrar. While the courts may find such restrictive clauses invalid, you should ensure that you have read your employment contract carefully and fully understand the implications of the contract you are entering into. As such, it is recommended you request that the employer amends this clause before you sign the contract. A formal legal review of the relevant terms of your contract is also recommended, as the specifics of this are dependent on the wording of your individual contract.
Working as a contractor
Member question: Is possible to be a GP registrar employed as a contractor?Read GPRA's answer
The following is legal advice GPRA has obtained regarding GP registrars being engaged as contractors:
“The relationship between registrars and the party that engages their services is one of employer-employee. This is because the salient features of an employer-employee relationship are evident in a registrar-practice relationship (or any combination thereof). Involvement in an apprentice or trainee situation also has a significant impact on whether an individual is viewed by the ATO as a contractor or an employee. Therefore, no matter if you operate as a contractor, or what a signed, legal document with your employer says, your legal relationship with your practice is employer-employee.”
While this issue has not been tested in a court of law, to our knowledge; however, the ATO is clear on the matter.
Therefore, GPRA strongly recommends that all registrars should be treated as employees, not contractors, as per NTCER cl. 4:
"It is a requirement of the NTCER that a registrar is engaged as an employee (see the ATO website). The NTCER gives rise to no other relationship between the parties, such as an independent contractor, partner or agent."
So all registrars should reasonably be engaged as employees. Practices must pay PAYG tax on wages, pay the superannuation guarantee, and provide paid annual leave and paid personal leave for the registrar. Both registrars and supervisors are protected in this arrangement for indemnity and Workcover insurance purposes.
Clauses for the deduction of various practice costs
Member question: I am starting at a new practice and the contract they are offering includes clauses for the deduction of various practice costs including nurse fees and equipment maintenance before applying the percentage calculation. Is this in-line with the NTCER?Read GPRA's answer
The reason why a practice may be seeking to deduct practice costs or exclude certain item numbers for the purposes of percentage calculation (particularly when the practice nurse is doing the primary work) may be because this is consistent with their arrangements for their contractor GPs. However, this approach is not compliant with the NTCER, and should not be applied for GP registrar percentage calculations.
GP registrars are engaged by training practices as an employee. This is consistent with advice from the Australian Tax Office and the NTCER (clause 4) “gives rise to no other relationship between the [registrar and practice], such as independent contractor, partner or agent”.
The NTCER defines gross billings to: "include all fees generated by the registrar at the practice in which they are employed" (NTCER clause 1), and the registrar's "percentage" is calculated from "gross billings or receipts" (NTCER Schedule A). Therefore, all item numbers billed to the GP registrar should be included in their percentage billings calculation.
As employees, and according to the NTCER minimum, GP registrars receive a lower percentage (49.05% including superannuation) of the billings earned compared with contractor GPs (typically 65-70% or more). As such, the share of the registrar’s billings retained by the practice should contribute to the practice costs, including the practice nurse salary.
Finally, prima facie, this approach may also breach Section 324 of Fair Work Act in terms of criteria for permitted deductions from an employee's remuneration (including employee's wage/salary, incentive-based payments, bonuses, allowances).
Can my terms and conditions be changed AFTER I sign my employment agreement?
Member question: My practice manager said there was a mistake made in preparing my contract and has changed my pay rate after I signed the employment agreement and started working at the practice. Is this allowed?Read GPRA's answer
GP registrars are not covered by an industrial award or registered agreement so their employment agreements are common law contracts of employment based on the minimum requirements in the NTCER. RTO accreditation standards require that training practices employ registrars in accordance with the NTCER.
Employers who seek to change the terms and conditions of employment contracts already in operation are entitled to negotiate changes that are agreeable to all parties; however, the employer cannot simply decide to unilaterally change a contract. The employee (i.e. the GP registrar) must agree to any changes to their contract – this should be done in writing - and cannot be coerced into accepting any changes.
Member question: When I started at my current training practice, I had a discussion with my supervisor about taking two weeks of annual leave after Easter. At that stage, they agreed to this request but now the practice manager says I can only take one week of leave because the practice is too busy. I have already made arrangement for a two-week family holiday; what can I do?Read GPRA's answer
The NTCER, clause 6.1, states that “it is up to the employer and registrar to agree on when and for how long paid annual leave may be taken. However, the employer must not unreasonably refuse a registrar’s request to take paid annual leave.”
The difficulty, in this case, is that what was initially agreed for registrar’s leave was based on a verbal discussion.
While verbal agreements are effective and can be enforced as valid and legally binding, there is a downside. Verbal agreements are notoriously difficult to prove which makes the enforcement of a verbal agreement time consuming and challenging. Not only do you need to prove the verbal agreement exists but you also need to provide evidence regarding the actual terms of the agreement, which, in the absence of written documentary evidence, can boil down to one person’s word against the other.
In this case, if the registrar has a detailed record of all their discussions and negotiations with the practice, and copies of all correspondence, such as emails or letters regarding the leave request, then this will provide documentary evidence that there was an agreement and assist in resolving the matter with the practice. However, without any of this written evidence it will be very difficult for the registrar to prove there was an agreement as both parties will be relying on memory in a “he said / she said” scenario.
The key point for registrars:
- Ensure that all items negotiated and agreed are put in writing, ideally in your employment agreement.
- Carefully identify and address each of the terms and conditions of the agreement so both parties have the same understanding and intention. This helps to limit any misunderstandings and disputes further down the track, which paves the way for a more harmonious working relationship. It also provides an accurate record in case the other party fails to live up to his or her side of the agreement, in which case you may need to seek legal advice.
Billings & Medicare
SIPs and PIPs
Member question: What are PIP and SIP payments and do I receive a percentage of these payments?Read GPRA's answer
- Service incentive payments (SIPs) are made to GPs to recognise and encourage them to provide specified services to individual patients.
- The Aged Care Access Incentive is a service incentive payment, paid to the GP's nominated account.
- Rural loading payments are made to practices whose main practice location is outside a capital city or other major metropolitan centre.
Over recent times the PIP has included in excess of a dozen different incentives, and changes from time to time. Practices can apply for as many for which they are eligible.
In general, the PIP payments are made to the practice, not the individual practitioner (GP or GP registrar). According to the NTCER cl 13 "The registrar is not automatically entitled to receive any portion of PIP with the exception of anaesthetic PIP and obstetric PIP. The exact distribution of these payments should be mutually agreed (and noted in the employment agreement), and not disadvantage either the registrar or the employer."
While PIPs are made to the whole practice, the Service Incentive Payments (SIPs) are made to the individual provider of the service, who is working with a practice that is enrolled in the PIP.
SIPs are typically associated with services, such as After Hours Incentive, Aged Care Access Incentive, and an eHealth Incentive.
In terms of receiving the payment, SIPs and PIPs are normally paid quarterly via Medicare and, as per NTCER cl. 13, are "added to a registrar’s gross billings or receipts”.
Billing accurately under Medicare
Member question: There was an error in my Medicare billings where there was an incorrect item claimed which gave a higher benefit than what should have been paid. My practice manager has told me that I am responsible for the full 100% of the repayment to Medicare for this billing error. This seems unfair since the practice retains 50.95% of my MBS earnings; is this correct?Read GPRA's answer
Primary responsibility for correct Medicare billing rests with the practitioner. So, it is important to regularly check the services you provided against the services that have billed to your MBS provider number. The NTCER requires the employer to provide the registrar with their billing information. Your employer should provide ready access to lists of patient billings and associated documentation and records for you to review for any inadvertent breaches. If you become aware of an incorrect payment it is recommended that you immediately let Medicare know, voluntarily, so that any administrative penalty may be avoided.
However, it is not solely your responsibility. Under the Shared Debt Recovery Scheme*, the responsibility for billing accurately under Medicare is shared between the practitioner (the primary debtor) and the organisation employing the practitioner (the secondary debtor). So the employer also has an obligation to ensure that MBS claims are not false or misleading.
More information for GP registrars on the Shared Debt Recovery Scheme is available on the GPRA website.
The Department of Health recommends that practitioners make use of the AskMBS advice service for providers seeking advice on interpretation of the Medicare Benefits Schedule items and rules and the Health Insurance Act 1973 and associated regulations. Providers can contact AskMBS via email at AskMBS@health.gov.au.
*Please note, the Shared Debt Recovery Scheme came into effect on 1 July 2019. Previously, the responsibility for billing accurately under Medicare rested solely on the practitioner.
Access to Medicare Billings
Member question: I don’t have access to my practice’s software and my practice manager is only giving me a printout of weekly billings totals. I am concerned about the accuracy of my billings but my practice manager has told me not to worry because they will sort out any problems. Is this reasonable? Can I request to see all my Medicare Billings and how frequently can I do this?Read GPRA's answer
It is critically important that you have visibility over all Medicare item numbers that are billed to your provider number. As you are partly liable for any errors/incorrect claims, you must be able to see what has been billed in your name.
Also, billings totals may well be different to your Medicare item number records, depending on how your practice bills.
According to the NTCER, clause 11:
"At a registrar’s request the employer must provide access to and explanation of their patient billing information"
And clause 15.3:
"The employer will provide the registrar with billing or receipts information as appropriate. Information on billings or receipts shall be made available to the registrar at a frequency no less than that available to other employed doctors in the same practice.
Where there are no other employed doctors in the same practice, information as to billings or receipts will be made available to the registrar at a reasonable frequency, by mutual agreement between the practice and the registrar."
In the case where Medicare rejects an item number, and the practice manager makes an adjustment on your behalf, you must have provision to check and correct the item numbers. Failing to do so puts you at risk of Medicare Audit and Professional Services Review, and if incorrect item numbers have been submitted, you are liable to pay a portion of them back.
Depending on what software the practice uses, it is likely that generating daily reports on billings is possible. Speaking with the practice manager or your RTO to have information on billings and receipts made available more frequently is advised.
Resigning from my practice
Member question: My current employment has become untenable for a multitude of reasons. How do I go about ending my employment agreement?Read GPRA's answer
Terminating an employment agreement before completion of a training term is a serious matter. This is reflected in section 19 of the NTCER:
"The employment of a registrar should not be terminated before the completion of the term by the registrar or employer, other than in exceptional circumstances (e.g. serious misconduct) and only where there has been extensive discussion between the employer, practice, supervisor, the registrar and the training provider.”
This situation is very stressful for all parties and has practical implications for the registrar, in terms of progression through the training program and feeling they are leaving patients “in the lurch”.
GP Registrars should seek support and pastoral care from their Registrar Liaison Officer (RLO), Medical Educator, RTO and/or GPRA in this difficult time. Also, be aware of the effects on the training practice, in terms of losing clinical workforce and the patients’ access to care.
All GP registrars need to be aware that resigning prior to completion of a training term can have implications for their training time and that they will need to work with their RTO to gain a new placement or, if this is not possible, they may need to take a period of leave from AGPT. Therefore, it is essential that registrars involve their RTO in any decision to terminate employment prior to the end of their contract.
Assuming that you have discussed in detail with your medical educator, RLO and/or others at your RTO the issues leading to this decision and they will support you in this decision then, according to section 19 of the NTCER, unless a specific notice period is included in your employment agreement you need to give at least one week notice of termination.
It is generally best to resign in writing and keep a copy of your resignation letter. You can then prove that you gave the correct amount of notice and, if necessary, why you have resigned. An employer does not have to let you work out the notice period, but if they say they do not want you to work out the time given, then they have to pay you the difference between the time worked and the notice given.
In a written resignation letter you should specify the date of your resignation and clarify that all accrued entitlements including annual leave and percentage of billings or base salary should be paid on termination. In addition, in accordance with the Superannuation Guarantee (Administration) Act 1992, all unpaid compulsory employer contributions (9.5% current legislated rate) must be made to your nominated superannuation fund.
If you do not give the correct amount of notice when resigning, your employer may be entitled to recover the amount of notice which should have been provided plus further amounts for any damage your employer may have suffered as a result of you not giving the correct notice.
Hours of paid work
Member question: My roster has me working from 8 am to 5 pm on four weekdays, which includes 30 minutes of admin time and a 30 minute lunch break on these days. I also work one half-day a week as well. I am at work for 40 hours per week, but I am only being paid for 38 hours. Is this correct?Read GPRA's answer
Yes. As per the NTCER clause 10.6, activities that occur during your paid ordinary hours include the following:
a) normal general practice activities such as:
- Scheduled consulting time (whether seeing patients or not)
- Home, hospital and nursing home visits including travel time
- Administrative time (e.g. writing notes, telephone calls, reports);
b) practice-based teaching time; and
c) educational release time.
Admin time is 2.5 hours per week (NTCER clause 9.2) for registrars working full time and this is paid time. This allows you to have time to go through patient results and to do other administrative tasks. This is protected time (typically 15 minutes per half-day session) and so you should not have patients booked during this period.
Meal breaks are not included in your ordinary hours (NTCER clause 10.3) and are therefore unpaid. It is important that you do not work (see patients or do admin tasks) during this time as not only because you are not being paid for this period, but having a break is important for your well-being and fatigue management.
Notifying employer of pregnancy
Member question: Do I have to notify my employer as soon as I find out I'm pregnant?Read GPRA's answer
While employees have a choice when to notify their employer that they are pregnant, there may be health and safety, and RTO training roster considerations to do so.
All people in the workforce have a duty to take reasonable care of their own health and safety and to comply with workplace obligations. You and your employer should discuss any changes that need to be made so that your workplace is safe for you while you are pregnant.
Some awards, agreements or workplace policies specifically allow personal leave to be used to attend prenatal medical appointments. In addition to personal/carer’s leave, the Fair Work Act provides for unpaid special maternity leave for eligible pregnant employees and have a pregnancy-related illness.
If you are in the middle of placement for GP Training, it would be a good idea to talk to your RTO as soon as possible to start planning your roster, any parental leave you might wish to take, and perhaps a return to work timeline.
How early into your pregnancy you tell your employer is really up to you. You may want to familiarise yourself with the minimum notice periods if you plan on taking leave under the Fair Work Act. There is more useful information available on working while pregnant (or potentially pregnant) on the Australian Human Right Commission website.
GPRA does not provide professional legal, accounting, financial, taxation or employment advice or any other advice of a professional and expert nature; information provided by GPRA is of a general nature only; if members wish to obtain such professional advice on any matter raised by them with GPRA, they are encouraged to consult an independent suitably qualified expert. Before receiving advice from GPRA, all members should read the full disclaimer.