Debbie Sage, Attwood Marshall Lawyers Wills and Estates Senior Associate and Accredited Aged Care Professional, investigates the staff shortage crisis currently affecting aged care homes across Australia, and explains what to do in the event your (or your loved one’s) facility is forced to close.
Background
The Fair Work Commission announced last month that an interim 15 per cent wage increase for aged care workers will be rolled out by 30 June 2023.
The long-awaited move was in response to recommendations from the Royal Commission into Aged Care Quality and Safety, which found that low pay was contributing to significant staff shortages in the sector across the nation.
Alarmingly, over the past year several aged care homes have been forced to close – often due to a combination of financial struggles and a lack of staff. Regional, smaller facilities are being hit with closures the hardest.
A 2022 report by the Committee for Economic Development of Australia (CEDA) found Australia has a shortfall of 35,000 aged care workers on average per year, and that 8,000 additional workers are needed to meet international best practice. The lobby group painted a dire situation for the aged care industry, warning that 65,000 workers are leaving the sector annually.
The report pushed for an increase in award wages in the sector alongside the introduction of a new “essential skills visa” as well as better training to attract workers.
With predictions that the staffing crisis will deepen further over the next five years, the industry has been banking on pay rises and migration programs to fill the gaps.
Initially, the federal government had said it would delay the recommended 15 per cent salary increase, instead giving workers a 10 per cent pay rise in mid-2023, with the remaining 5 per cent not applying until mid-2024.
However, on 21 February 2023, the Fair Work Commission announced that an interim 15 per cent pay rise would be rolled out in one fell swoop. The wage increase was also extended to apply not only to all personal care workers and nurses, but also recreational activities officers and head chefs and cooks.
The Commission did not, however include in its decision any increase in rates for administrative staff, kitchen hands, cleaners, gardeners, or maintenance workers.
Are wage increases enough?
Accountancy firm Stewart Brown carries out regular surveys on aged care facilities and home care packages across Australia. In its latest report, which captures financial performance data for the three months up to 30 September 2022, found that staffing capacity is at a “severe shortage” and impacting care service delivery at all levels of aged care.
The company said that the interim decision by the Fair Work Commission to help with the retention of staff still falls well short of what is required, and that the ability to attract and retain staff has reached “a critical stage.”
The United Workers Union has also said it will continue pushing for higher wage increases.
While raising the pay of care workers is one element that the government hopes will address the staff shortage – and in turn keep centres open – other recommendations from the Commission that will be brought into law seem to be adding to the sector’s existing woes.
One of these is a requirement due to be rolled out in July 2023 that aged care providers have at least one registered nurse onsite 24/7.
It is feared that some providers won’t be able to find enough registered nurses to meet the requirement. Health Department figures obtained by ABC News show that there is a workforce gap with 8,400 registered nurses and 13,300 personal care workers needed next year.
Facility operators may consider closing if they can’t find enough registered nurses or think they aren’t meeting the basic standards of care. Exemptions to the requirement for a registered nurse do apply, but each centre will be assessed on a case-by-case basis.
What to do when a facility is closing – your rights
If a provider has decided to close their facility
Once the decision has been made to close a facility, the provider can ask residents to move to another facility. However, the provider must give written notice of their decision, including an explanation of why that decision has been made and the date by which the residents are required to leave. At least 14 days’ notice must be given.
That written notice also needs to set out your rights, such as by directing you to the facility’s internal complaints process, the Department of Health and Aged Care’s complaints investigation scheme, and an advocacy service.
The provider cannot take action to make you leave or imply that you must leave until you are able to find suitable accommodation that meets your long-term needs and affordability – even if the 14 days’ notice period runs out.
Your long-term needs must be assessed by either the Aged Care Assessment Team (ACAT) or two competent medical or health practitioners – one of which must be independent to both the provider and the facility and chosen by you or your representative.
Costs at the new facility
Depending on how long you have been at the previous facility and what kind of room you will be moving into, you may find that you will have to pay a higher room price than what you had originally paid at the previous facility. There may also be other costs and charges that apply to the new facility for your care, such as extra services fees. You may be able to negotiate with the facility in reducing the room price and/or the extra services fees if you find that you will not be using some of the services that are on offer in the package (eg. Foxtel, a hot breakfast etc).
We strongly recommend that you seek legal and financial advice before commencing any negotiations to ensure any discussions you will have before signing the new agreement are going to be suitable for your individual circumstances.
If there is a new operator
New operators do not mean that your facility automatically becomes a new service. If a new operator takes over, then they simply take on all the previous operator’s responsibilities. You will still have all the same rights of security and tenure that you had under the previous operator.
Attwood Marshall Lawyers – helping people at every stage of life and transitioning to aged care
Attwood Marshall Lawyers are big advocates for much-needed change in the aged care sector to better protect the elderly and professionals who work tirelessly looking after the aging community.
When transitioning to aged care, there are often overlapping issues that must be discussed, including reviewing your estate plan (which includes your Will, Enduring Power of Attorney, and an Advance Health Directive) and other legal and financial factors. Our purpose is to help people plan for the future and ensure their wishes are preserved and their best interests are protected.
If you or a loved one needs advice about transitioning to aged care or other legal issues, including reviewing service agreements or an estate plan, please contact our Wills & Estates and Aged Care Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 at any time.
Alternatively, book an appointment online instantly by clicking here.
