Speechies in Business

Helping Speech Pathologists in private practice focus on what matters most: their clients

David Kinnane

Happy New Year!

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Happy New Year to all our friends, followers and fellow speech pathologists! We wish you all the best with your practices in 2019.

We’ll be uploading lots of new products this year, so feel free to check back in on a regular basis.

Hope you like our new video and feel free to contact us at hello@speechiesinbusiness.com.au if you’d like to get in touch.

Speechies in Business Speechies in Business
Speechies in Business is owned and operated by David Kinnane, a Certified Practising Speech Pathologist, lawyer, writer and speaker in private practice in Sydney, Australia. You can read more about David’s professional background, qualifications and experience here. David also co-owns and co-manages Banter Speech & Language, an independent private speech pathology clinic, and Bodkin Wood Legal & Advisory, a law firm specialising in allied health issues. David sits on Speech Pathology Australia’s Ethics Board and Professional Standards Advisory Committee and is a part-time Associate Lecturer at the University of Technology Sydney’s Graduate School of Health.

When is a casual employee really a permanent employee?

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In Australian employment law matters, the real world substance of a work relationship often trumps what the contract says.

For example, sometimes people called independent contractors in contracts are really employees. Similarly, sometimes people called casual employees in contracts are really permanent employees – a point recently made clear by the Full Court of the Federal Court of Australia (the Court) in WorkPac Pty Limited v Skene (see case citation and link below).

Casual v permanent employee: Why does it matter?

Unlike permanent employees, casual employees are not entitled to lots of benefits under the Fair Work Act 2009 (Cth) (the FW Act), including paid leave, notice of termination, redundancy pay and paid holidays. To compensate for the lack of these entitlements, casual employees are paid a “casual loading”, currently 25% of base pay for Monday-Friday hours for speech pathologists in private practice under the Health Professionals and Support Services Award (see clause 26.2).

To be a true casual employee, the employee must have no advance commitment as to the duration of their employment or the days (or hours) worked. Some indicators of casual employment include:

  • irregular work patterns;
  • uncertainty as to the period over which employment is offered;
  • discontinuity; and
  • intermittency of work and unpredictability.

Can you side-step the issue by simply defining an employee as “casual” in their contract? 

No.

Things like what the contract says, payments of casual loading, the need to submit timesheets, and the right to terminate at short notice (e.g. 1 hour) are relevant, but not of themselves decisive. Instead, what matters is the real world “objective” substance of the relationship between the employee and employer at the time. For example, there must be no long-term, firm, advance and mutual commitment to work an agreed pattern of hours.

What happens if the employer gets it wrong?

If the employee is really a permanent employee, she/he is entitled to annual leave and other entitlements under the National Employment Standards and/or the Award. In theory, employers should be able to set off any casual loading paid to the employee against these payments. But, in the Skene case, this didn’t happen because the employer had not designated a specific amount or percentage of wages to be casual loading.

Another consequence of getting it wrong is that the employer might be liable for penalties under the FW Act. The Court made it clear that ignorance of the law is no excuse, and that it’s a serious offence to mis-classify a permanent employee as a casual employee.

Bottom line

When deciding whether an employee is casual or permanent, Australian courts apply a substance over form test. Simply labelling an employee as “casual” in the employment contract and/or paying casual loading is not enough to guarantee the employee is truly casual from a legal perspective.

To mitigate the risk, employers should ensure that any casual loading paid to employees is specifically quantified in the employee’s contract and payslips. This may allow the employer to set-off that amount against any claimed entitlements. But the risk cannot be eliminated by legal drafting, as Courts will look at the true relationship between the employer and employee. Employers should therefore seek legal advice to assess the level of this risk for their businesses.

Case: WorkPac Pty Limited v Skene [2018] FCAFC 131. Full case access via the Federal Court of Australia website here.

Principal source: De Flamingh, J. & Kiley, E. (2018). Another casual conundrum: substance over form prevails (again), Law Society of NSW Journal, 72-74.

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Workplace safety for Australian Speech Pathologists in private practice: 8 things you can do this week to make your clinics safer for everyone

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We all want our staff to be safe at work. And most practice owners I know do a lot of work to ensure staff are safe, including employees, contractors and sub-contractors, labour hire employees, students and other volunteers.

But we can always do better!

Workplace safety laws are numerous and complex, and it’s not surprising that some private practice owners are unsure about even some of their most basic legal obligations. But – as lawyers love to say – ignorance of the law is no excuse.

Private practice owners should of course seek detailed legal advice about their workplace safety legal obligations. But, to help fellow private practice owners in Australia, we thought it would be useful to provide some practical tips about things you can do quickly to improve workplace safety (and work safety law compliance) at your clinic:

  1. Read the regulators’ fact sheets. If you don’t know the “who, what, when, where, and why” of workplace safety laws or even what “PCBU”* means, schedule and spend exactly one hour reading the fact sheets from SafeWork Australia and your State workplace safety regulator, e.g. SafeWork NSW. Even if you think you are up-to-speed, you’re almost guaranteed to learn something new – and to spot gaps in your current practices.
  1. Display the mandatory “Medical Emergency Plan” poster in your clinic. You can access the NSW version here.
Medical Emergency Plan
  1. Put up the “If you get injured at work” poster. This is also mandatory. Display the poster prominently at work. You can download the NSW version here.
  1. Create/revise an Injury Register: If you don’t have one (and you are required to!), create a simple injury register to keep records of injuries that occur at work. Courtesy of WorkSafe Victoria, here’s a good template here.
  1. Double-check your workers compensation arrangements: Details vary State by State, but most private practices (and almost all private practices in NSW) are required to take out workers compensation insurance. In NSW, for example, we buy insurance from a public financial corporation set up by the NSW Government called icare. You can read more about it here.
  1. Implement an infection control procedure. In NSW, Queensland, South Australia and Victoria, Speech Pathologists (as unregistered health practitioners) are required to have infection control procedures. In other States and Territories, it’s probably required anyway under workplace safety laws. You can write your own. Here’s an inexpensive template tailored for speech pathologists, based on the one we use in our practice.
  1. Revise your emergency and first aid plans. Both written plans are legally required in all States:
  • for emergency plans, there’s a useful checklist from SafeWork Australia here.
  • for first aid requirements (e.g. including to have trained first aid providers and first aid kits), check out information from SafeWork Australia here.
  1. Hold a dedicated workplace safety staff meeting. Set up a meeting with all your staff to discuss all the topics above, and workplace safety more generally. Consult with staff about safety in your clinic. Use the opportunity to explain your legal obligations. Also train/remind staff about their obligations to:
  • take reasonable care of themselves;
  • not do anything that would affect the health and safety of others at work;
  • follow your reasonable health and safety instructions, including to:
    • work safely;
    • follow instructions;
    • ask you if unsure about how to perform work safely (especially in higher risk areas like dysphagia treatments and when conducting oro-motor assessments); and
    • report injuries and unsafe and unhealthy situations to you and the health and safety representative at your work.

Of course, there are a lot of other things you need to do to comply with workplace safety laws – we’ve only touched on some of the basics. But doing these 8 things as soon as possible will at least get you started as you strive to make your workplace safer for everyone!

Key sources:

* PCBU stands for “Person Conducting a Business or Undertaking”. If you own a private practice business, that’s you!

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How can we make speech pathology private practice more ‘hospitable’ for our staff and ourselves?

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Workplace stress!

1. Most private practice owners feel it

In a typical month, we might experience cash flow issues caused by late payments and unexpected bills, fake and anonymous online reviews, unexplained spikes in ‘failures to attend’, data privacy challenges, client complaints, social media ‘run-ins’, the odd family law-related subpoena, glitches in clinic and business management systems; and of course staff issues, like motivation and performance challenges, staff turnover and handover problems, and puzzles like how to coordinate staff leave and client coverage. I felt my blood pressure rise just typing that list!

2. Staff feel it too

When I speak with grads and others who are in their first couple of years of practice, I hear lots of anxieties about speech pathology graduate numbers (particularly in cities), cost-cutting initiatives due to increased competition and privatisation (e.g. reduced hours, cuts in training budgets), limited supervision and mentoring, insufficient “admin time” to call back clients and write reports (and expectations on staff to regularly work outside contracted hours), and struggles to get reimbursed for resources, equipment, petrol, parking and other work-related costs. And I still hear too many stories about straight out ‘shonkiness’ like underpayment of award and other entitlements, sham contracting arrangements, unpaid “internship” offers, and overly restrictive employment contracts.

3. Clients pick up on our workplace stress

One thing I’ve observed in my practice is that clients are very good at picking up on when things aren’t going well behind the scenes. Regardless of how well we try to insulate clients and client care from “back of house issues”, even very young clients can pick on on workplace stress – even when everyone is smiling and pretending everything is fine. And no one wants a grumpy, distracted speech pathologist, even if they are doing a good technical job.

4. Is this just how it is?

Is the stress just reality? Should we all just get used to being stressed out? If so, I can understand why so many of us leave the profession so early.

So what can we do to right the ship? Even if we can’t remove the stressors, how can we make work-life better – for owners and our staff?

5. If you can’t take the heat…air-condition the kitchen?

I’ve been looking recently at what others do in other high stress, people-focused occupations. One of the most stressful industries out there is hospitality.

I’ve written before about the importance of learning from other industries, e.g. in how we handle negative online reviews. I think we can learn a lot from how leading restaurant owners – people with skin in the game – have tried to improve their workplace culture despite the headwinds of stress.

One of the most successful restaurant owners in the USA is Danny Meyer, owner of the Union Square Cafe and Shake Shack. And he has some provocative – and useful – tips on how to succeed. Below, I’ve tried to translate some of his key ideas for speech pathologists in private practice.

6. Change your focus, change your reward system, change your culture, change your outcomes 

(a) The Big 5

All businesses, including private practices, have 5 key stakeholders:

  • customers/clients;
  • staff;
  • communities in which we operate;
  • suppliers; and
  • owners/investors.

(b) Going beyond just providing a service

Obviously, speech pathologists provide a service. “Service”, here, is just the word for the technical delivery of what we do. Offering a good service means that you are offering something of value to people that works.

Providing a quality service is of course necessary if you want to stay in business for long. But many clients want more than just a contractual exchange of services for money.

Many clients want what Danny Meyers calls “hospitality”: speech pathologists not just providing services to clients, but going above and beyond the call of duty for their clients.

(c) Staff come first

Now here’s the counter-intuitive part of Meyer’s philosophy. He says that, if you want to offer true hospitality to clients, you need to start by treating your staff well and rewarding them, first, for helping each other:

I’m going to give you guys the best recipe you’ve ever had in your life. And it only has two ingredients. So it’s really simple. It’s 49 parts performance and 51 parts hospitality. And that’s what you are going to be judged on. That’s how you’re going to get paid. That’s how you’re going to get your bonus. And guess what guys? In this business, the customer is going to come second.

(d) But isn’t the client always right?

Radically, Meyer says no: “No one is right all the time”.

In Meyer’s businesses, staff come first. Each staff member is responsible for doing extraordinary, expected things for each other. For showing off to each other: to model what it’s like to be great at what you do. And to show what it’s like to make other staff feel good.

Meyers says this to his staff:

You’re responsible for doing extraordinary, unexpected things for each other and showing off for each other what it’s like to be great at what you do and even greater, 51%, at how you make people feel and I believe that if you do that for each other, our [clients] are going to be in for a treat when they come in and they’re second.

(e) Virtuous cycle

Focus on your team, your customers, on hospitality, on your culture.

By doing so, you create a long term “virtuous cycle”, a compounding loop that will ultimately lead to greater long-term success.

The key point, here, is as follows:

If you do not invest in your team – if the are not rewarded for going above and beyond the call of duty to make clients feel welcome, pleasantly surprised and delighted – then the virtuous cycle will break. As Meyer says:

I think it gets back to servant leadership, which is: how do you find opportunities on a daily basis to take care of the people who are ultimately going to take care of you? And I inculcate it by talking about it till people roll their eyes because they’re so sick of hearing me talk about it. And I just feel like culture is driven by language. I don’t know any culture in the world that is not glued together by language. Whether it’s your family, your religion, there’s language. And I think that the CEO of a company is the shaman of that culture. And they either have to be more fluent at that language than anybody else or the language is going to go sideways and lose its very special meaning.

And what better message could you give a speech pathologist! We need to communicate better with staff – and to speak to each other in the language of hospitality. If we want to work with people we respect, in workplaces we enjoy, and in businesses that we’re proud of, and in achieving long term success for our clients and practices, hospitality begins with learning to treat each other better – even if it costs practice owners more in the short-term.

Principal source: Reid Hoffman’s interview with Danny Meyer on Masters of Scale.

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For struggling school kids, what’s the difference between seeing a speech pathologist and a tutor?

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Over the years, parents have asked me this a few times. I’ve also been asked why speech pathologists are allied health workers; whereas most tutors come from teaching or education backgrounds.

Clients and their families should be fully informed about this stuff. So here’s my attempt to answer these tricky questions, recognising others may have different views:

Basic distinction: biologically primary and secondary knowledge

As health professionals, most speech pathologists are concerned mainly with helping students with disordered or significantly delayed “biologically primary knowledge” – communication-related knowledge and skills humans are wired to acquire and that most kids get at developmentally appropriate times without being explicitly taught.

Tutors, as education professionals, help kids learn biologically secondary skills, including subject-specific skills that kids learn at school, e.g. about maths. Some kids struggle with one or more subjects at school, and school tutors work with teachers to help them out.

Clear as mud?

Let me explain the difference in more detail by reference to some of the science, specifically evolutionary theory and one of its offshoots, cognitive load theory.

Speech pathologists and biologically primary knowledge

Human brains have evolved to pay attention, process, and respond to information that is significant for survival and reproduction. In other words, we are wired to learn and use “biologically primary” or “core” skills we need to cope in our communities.

Although languages and cultures can look and sound very different from each other on the surface, there are many common features beneath the surface that make us all human. To survive in any human society, people need to manage relationships with other people, other living things (including plants and animals), and their physical surroundings. Although details differ community-by-community, several “core” abilities are needed to do this successfully:

  • In/out grouping skills to help break our social world into categories of people (e.g. family, friends, enemies, races, religions, tribes, States and Nations).
  • Attention to the biological and physical world around us, including skills needed for hunting, horticulture, navigation, and tool use. These skills include knowing movement patterns of potential predators and prey, the ability to form mental representations of our environment, knowledge about the “essence” of different species of plants and animals, and the ability to categorise them.

Human communication skills are much more advanced than those of other species, including the other “Great Apes”, like chimpanzees and bonobos. Some researchers think early-developing communication skills advantaged human babies with care and attention from adults, with later communication skills helping kids (and adults) succeed socially within groups of adults and peers. In other words, developing these skills from a young age helps us to survive within our families and communities and to reproduce.

For most people, biologically primary knowledge is acquired with very little cognitive effort. We’re wired to pay attention to this information and to respond to it efficiently. We apply several rules of thumb to respond to situations requiring primary knowledge quickly and simply. For example, we respond almost automatically to social signals like smiling, and gravitate to things like sport and dance, and hanging out socially with friends. Amazingly, most of us learn how to speak intelligibly in our native language without being taught how to do it.

But some of us don’t. For example, some people have:

Many of my clients have more than one of these issues affecting their communication skills.*

Teacher, tutors and “biologically secondary knowledge”

Biologically secondary knowledge consists of academic and vocational knowledge we need for cultural, vocational, political and knowledge transfer reasons. It includes most of the content in the school curriculum like maths, science, literature, and history.

Unlike the case with biologically primary knowledge, acquiring biologically secondary knowledge tends to be conscious, relatively difficult and effortful for everyone, although some kids struggle more than others. For example, no-one learns algebra, or about the causes of World War I, or the elements of the Periodic Table, or how to program a computer without taking the effort to learn how.

Most of these biologically secondary skills seem to be subject (or domain) specific. That means if you want to get better at algebra, you need to practice solving algebra problems not, say, playing chess or the violin.

The importance of transferring biologically secondary knowledge to our kids and young adults is the key reason schools, teachers and tutors exist. Great teachers and tutors are highly skilled at teaching subject-matter content to kids in such a way that they learn it.

Are there grey areas, or overlaps between biologically primary and secondary knowledge?

Yes. Probably the best example is reading.

Many kids first learn about books in one-to-one social interactions with a parent while discussing picture books. Shared reading practices often include parent and child pointing, object naming, and language learning mechanisms – all biologically primary systems.

As we discuss in detail here, reading itself is biologically secondary – or unnatural. In human evolutionary terms, it’s a recent development and everyone has learn how to do it. (Otherwise, we’d have near universal literacy, which is – unfortunately – far from the truth.)

Many reading skills are based on biologically primary oral language or other knowledge. Oral language comprehension skills, phonological awareness, vocabulary and naming skills, theory of mind, knowledge of human relationships, knowledge of biology (notably animals and plants) and physical environments contribute to helping kids decode and understand what they read.

Brain studies have shown that reading engages many of the same areas of the brain involved in expressing and processing language (including the Broca’s and Wernicke areas, as well as areas of the brain evolved for object naming. Literacy is thus essentially a language skill. And kids with oral language, social use of language and/or speech disorders are at a heightened risk of having reading problems, including dyslexia.

Learning to read is both a health and education priority. Both speech pathologists and tutors who are up to date on the scientific research and trained in how to apply it know that children learn to read most effectively with systematic, organised and adult-led direct instruction focused, initially, on letter-sound links, blending and segmenting of speech sounds, and word decoding skills using a synthetic phonics approach. Both speech pathologists and tutors with literacy training have an important role to play in helping kids with reading difficulties learn to read.

Other ways speech pathologists can help with reading and academic issues

Many (though not all) of the students I see for reading instruction have underlying language and/or speech deficits. That’s why our literacy assessments include tasks probing underlying primary communication skills, including phonological awareness skills like letter-sound links, vocabulary, receptive and expressive oral language skills, and speech clarity. This can help us figure out whether a child’s reading problems are related to decoding written words into speech, oral language comprehension, or both. (You can read more about this here.)

Language and speech disorders can have long-term academic and social effects on children and teenagers. As children move from learning to read to reading to learn, kids with language disorders can struggle with reading comprehension and writing tasks. They can also struggle with other language-dependent tasks, like understanding academic verbs, maths and other subject-specific vocabulary, complex syntax used in exam questions and school texts, organising their thoughts into written and spoken language at the discourse level (e.g. in stories, presentations, and essays), understanding higher level language (e.g. idioms, jokes, metaphors, and analogies), and planning and executing evidence-based study practices.

Speech pathologists frequently collaborate with teachers and tutors to implement strategies to help students with communication disorders cope with the school curriculum.

Clinical bottom line

I’m lucky to have good relationships with many excellent local teachers and experienced tutors. The key issue is making sure that the student is getting the right help from the right people at the right time. By working collaboratively with:

  • students;
  • parents;
  • teachers, principals, and learning support staff;
  • tutors;
  • allied health colleagues like occupational therapists, audiologists, and education psychologists; and
  • other medical professionals like general practitioners and paediatricians,

we can help clients and their families identify and prioritise communication and other issues affecting academic and social participation at school, treat health issues like communication disorders (and mitigate their effects), and educate students in areas of academic challenge so they can pursue their work and life goals.

Principal sources:

Geary, D. (2008). An Evolutionarily Informed Education. Educational Psychologist, 43(4), 179-195.

Tomasello, M. & Gonzalez-Cabera. (2017). The Role of Ontogeny in the Evolution of Human Cooperation. Human Nature, 28:274-278.

Kirschner, P.A., Sweller, J., Kirschner, F., Zambrano, J. (2018). From Cognitive Load Theory to Collaborative Load Theory. International Journal of Computer-Supported Collaborative Learning, 13:213-233.

This article first appeared on our clinic website, Banter Speech & Language. We’ve received great feedback from speech pathologists about it, and thought it would be helpful to post it on Speechies in Business too.

*For completeness, I should add that some people also have problems swallowing food, drink and/or medicine. Speech pathologists help these people, too.

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