Medical Practices & Foreign Workers: Necessary legal considerations for your practice

Have you been affected by the shortage of skilled workers as a medical practice?  Of course you have, you are in Australia and its 2022!  Many businesses are finding it very challenging to find staff after the pandemic for various reasons.

One possible solution that you may have considered is retaining international talent.  Employing foreign workers in a medical practice allows practices and their patients to benefit from experienced international staff and their varying skill sets. Not only this, it can also be an effective way of addressing the staff shortages currently faced by the medical industry. It’s not easy though, there are a lot of legal requirements that you need to be aware of as a potential employer of a foreign worker. To make this as easy as possible for you, we have compiled a list of the key questions you need to ask yourself before embarking on this path.

Does your prospective employee have a right to work in your practice?

First and foremost, if the individual is not an Australian citizen, permanent resident or New Zealand citizen, they will require a visa with working rights. It wont surprise you to hear that knowingly employing an illegal worker can lead to substantial penalties being incurred by your practice. Therefore, it is prudent that you, as an employer, check that the worker has the legal right to work in Australia which matches your business requirements as a medical practice.

There are various visa types which include full-time working rights, however some visas do not include these rights. In addition to asking a prospective employee to provide you with their visa details, you can check their visa type and the corresponding conditions here. These checks should be done prior to any work commencing, within two days of the visa expiring, as well as each time the employee’s circumstances change. It is best practice to establish a system within your practice that ensures this is frequently monitored.

If you are hiring a doctor, in addition to a right to work in Australia, there is a large professional regulatory system that they must navigate. Australia’s process for International Medical Graduates (IMGs) to work in Australia has been described as incredibly complex.

Just some of the many regulatory hurdles are:

1.Having a recognised medical degree

This means that the school their primary medical qualification comes from must be recognized by both the Australian Medical Council and the World Directory of Medical Schools.

2.Compulsory skills assessment and registration pathway

As part of their registration application, they will need to have their skills assessed by the Australian Medical Council. 

3.English proficiency

There is an English language skills registration standard for medical practitioners, as well as one for nursing and midwifery, paramedicine, as well as a common one for professions including, but not limited to, occupational therapy, physiotherapy and psychology. You can find these standards here. 

Have you met the National Employment Standards (NES)?

This is a very important question to constantly be asking yourself as an employer generally, regardless of whether you have foreign workers or not. The National Employment Standards (NES) apply to everyone working in Australia – including foreign workers. As an established medical practice, you should be well aware of these standards and what they require, however if you’re just starting out as a practice, or would like a refresher, you can find these here.

If you’re an approved business sponsor, are you complying with your Sponsorship Obligations?

If you’re a medical practice wanting to hire a foreign worker, you can potentially apply to become a standard business sponsor and sponsor a skilled worker.

Under the Visas for GPs program, employers sponsoring a visa for an IMG are required to apply for a Health Workforce Certificate. This program, as well as the Better Distribution of Medical Practitioners Initiative, works to ensure upmost benefit for people in regional, rural and remote areas and regulates how many IMGs enter Australia to work in primary health care through the skilled migration program. You can find more information about sponsorship generally here.

If you have been approved and are subsequently able to hire a foreign worker, there are some additional obligations that you must be aware of and comply with, including:

●  Are you keeping records?

If you are an approved business sponsor, you must record related information including employment records, recruitment processes and any correspondence with the Department of Home Affairs.

●   Are you cooperating with inspectors?

If an inspector is reasonably suspicious that there is something ‘dodgy’ going on, they can conduct random checks and have various rights, such as entering your premises, inspecting the processes, interviewing people, making copies of documents and more. It goes without saying that you must cooperate with this process.

●   Are there equivalent terms and conditions of employment?

The position’s duties and responsibilities, as well as the salary, must be the same for foreign workers as it is for Australian workers. If the foreign workers terms are ‘less favourable’ or ‘more favourable’, it can impact the success of the worker’s visa application.

●   Can you readily provide information?

The Australian Border Force may require information about the worker’s employment, particularly where there has been a change of work duties, business structure or legal entity. The Department must be notified of such a change in circumstances within 28 days.

●   Is the sponsored employee working in the position nominated?

The employee must be working in the same position as they were nominated for and cannot work for another business unless it’s an associated entity.

●   Are you paying the associated costs?

You must pay all of the costs of recruitment, sponsorship and nomination – none of which can be transferred to the employee or their family.

●   Is your recruitment practice fair?

Just like when recruiting Australian workers, you must not be discriminatory with your recruitment method or adverse action (e.g. dismissal or alteration of work environment).

●   One last obligation: Skilling Australian Funds (SAF) Levy

This tax levy will need to be paid for workers nominated under temporary and permanent employer-sponsored visas. The amount to be paid will depend on your practice’s annual turnover.

These obligations often don’t finish for between two to five years after the end of the sponsorship. There are various consequences if you breach the obligations above, including warnings, infringement notices, barring or cancellation of the sponsorship, or penalties.

Your Practice’s Culture

Last but certainly not least, whilst it is important that all your legal obligations are fulfilled, you also need to be very aware of your practice’s culture and ensure that the international worker will be treated fairly and fully integrated into your practice.

In our time practising in this area we have seen some very shady conduct by some medical practice owners when it comes to retaining internationally qualified GPs in practices.  We urge all owners considering this course to keep their hands clean when it comes to engaging internationally qualified doctors.

Whilst we don’t provide migration services, we are very happy to assist with preparing or reviewing your commercial documents, such as employment contracts or services agreements. We can also assist if any issues arise under your agreements. You can find our Practitioner Services and Licence Agreement (for Independent Medical Contractors) here, and our Employment Agreement for Registrar Doctors here.

Please note this article is for general guidance purposes. For specific advice or if you have any further questions about how to legally hire a foreign worker for your medical practice, please do not hesitate to contact us here.