No Award or Unfair Dismissal Rights for Private Practice GPsMarch 5, 2019
The Fair Work Commission (‘FWC’) in the decision of Dr Vahid Sedighi Gourabi v Westgate Medical Centre  FWC 1155 decided that a General Practitioner (‘GP’) working at a private medical centre was not covered by a modern award and did not have unfair dismissal rights.
The decision arose from an unfair dismissal application lodged by a GP under the Fair Work Act 2009 (Cth). Westgate Medical Centre was comprised of two companies that owned and operated three private medical clinics in Victoria that were collectively known as Westgate Medical Centre (‘WMC’). WMC engaged the GP. WMC made a number of jurisdictional objections to the GP’s application which the FWC was required to determine.
The first was whether the GP was covered by a modern award. If so, the FWC would then need to determine if the GP was a contractor or employee. If the GP was a contractor then there would be no unfair dismissal rights. If the GP was an employee then there would be unfair dismissal rights.
If the GP was found to not be covered by a modern award, the second question for the FWC to determine is whether the GP was paid in excess of the annual high income threshold of $145,400 such that he would have no unfair dismissal rights. As the GP earned in excess of the annual high income threshold it was determined that in this instance the GP would not have unfair dismissal rights.
For the purpose of modern award coverage, the FWC examined the Medial Practitioners Award 2010 (‘medical award’). There was no other modern award or enterprise agreement that could have coverage. In order to be covered by the medical award, the GP’s employment, if an employee, needed to fall within the coverage clause of the medical award.
The FWC noted the following relevant clauses of the medical award:
“4.1 This occupational award covers employers of medical practitioners throughout Australia in the classifications listed in clause 14—Minimum annual salaries to the exclusion of any other modern award.”
“medical practitioner means a person who is employed as a medical practitioner in hospitals, hospices, benevolent homes, day procedure centres, aboriginal health services, community health centres, the Red Cross Blood Service, the South Australian Institute of Medical and Veterinary Science, the Victorian Cytology Service or the Victorian Institute of Forensic Medicine
medical practitioner—non specialist means a Career Medical Practitioner, Senior Career Medical Practitioner or Community Medical Practitioner” (emphasis added)
The FWC found that WMC was a general medical practice that did not fall under any of the services for a medical practitioner outlined in the medical award. The FWC was of the opinion that ‘community health centres’ should only apply to those services that receive specific funding from the Victorian Government through the Community Health Program funding and that ‘day procedures’ should only apply to centres registered by the Victorian Government.
Therefore, as WMC, which was a general medical practice, did not fall under any of the services for coverage of the medical award, the GP could not be covered by the medical award. This is despite the fact that he was likely considered a ‘medical practitioner – non specialist’. As no other modern award or enterprise agreement applied, the GP was modern award/enterprise agreement free.
Given this finding, as the GP was paid above the annual high income threshold of $145,400, he was excluded from the unfair dismissal jurisdiction and his application for unfair dismissal was dismissed.
This decision is important for those medical practice employers that employ GPs at general medical practices. If you would like to know more about the implications of this decision, please contact a Livingstones & SHR Group consultant on +61 7 3833 1200.
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