Business Tips and Resources

When is a casual employee really a permanent employee?

21 November 2018 By David Kinnane Leave a Comment

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

11 November 2018 By David Kinnane Leave a Comment

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:

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.

Display the mandatory “Medical Emergency Plan” poster in your clinic. You can access the NSW version here.

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.

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.

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.

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.

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.

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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Australian SLPs: do you store progress notes in a cloud-based practice management system?

9 July 2018 By David Kinnane Leave a Comment

Reputable cloud-based practice management systems, like Cliniko and HealthKit, are becoming more sophisticated. Many Australian SLPs in private practice are using them to store client progress notes.

I’m all for using systems to save time and money. And it’s hard to ignore the (as yet, unrealised) dream of a paperless clinic. But if you are using or planning to use a practice management system to store progress notes online, it’s best to be aware of some of the legal risks, if only so you can think about how best to manage them.

First, it’s worth recapping some key laws that regulate speech pathologists’ progress notes in Australia.

1. Do we need to keep progress notes?

Yes.

In most Australian States, there is a legal requirement to take progress notes. For example, under the NSW Code of Conduct for Unregistered Health Practitioners, we “must maintain accurate, legible and contemporaneous clinical records for each client consultation”. For States and Territories who have not yet implemented the National Code, there is still an ethical requirement (see clause 3.3.6 of the Speech Pathology Australia Code of Ethics).

2. Who owns progress notes?

Generally, as a matter of law, principal speech pathologists own their file notes. Sole practitioners have full ownership of their notes. Employers own the progress notes of their employed speech pathologists. In most cases, the hirer/principal owns progress notes relating to clients served by independent contractors (although this is a bit of grey area and should be documented in the contract between the hirer and the independent contractor).

In group practices, and practices with a high turnover off staff, the analysis of who owns a specific progress note (and who owes legal obligations to retain and protect it) can get complicated quickly.

3. Who, apart from the speech pathologist, has access rights to progress notes?

Clients have statutory access rights to progress, including under the Privacy Act 1988 (Cth) (“Privacy Act”).

Progress notes can also be subpoenaed by a party to litigation, e.g. in Family Court custody disputes or where there is an allegation of professional negligence.

4. For how long do speech pathologists need to keep progress notes?

This varies, State by State. But it’s longer than many people think. In NSW, the ACT, and Victoria, for example, you are required to keep progress notes until a child client turns 25, and, for adults, for seven years from the date of the last service.

You may also need to keep progress notes in some States if you anticipate litigation.

5. What are speech pathologists’ key privacy obligations with respect to progress notes?

For the purposes of the Privacy Act:

speech pathologists in private practice – big or small – are “health service providers”; and
our file notes and reports contain “health information”, which is one of the most sensitive categories of personal information.

This means that, compared to non-health related small businesses, we need to take extra steps to protect our clients’ privacy.

First, we need consent to collect health information. We also need to tell clients how we handle their information, including how we will store and protect it. The most common way of doing this is through a privacy policy and a written notice at or just after intake.

Speech pathologists must take reasonable steps to protect personal information from misuse, interference or loss; and from unauthorised access, modification or disclosure. If we are sending personal information offshore, we must take reasonable steps to ensure no privacy breaches will occur.

Since 22 February 2018, the Privacy Act has imposed a mandatory breach notification requirement on health providers for some data breaches, including breaches that health providers believe are likely to result in serious harm to patients. (You can read more about this here.)

6. Progress notes stored in practice management systems

The laws above apply regardless of how you write progress notes or where you store them. Storing progress notes in a cloud-based practice management system raises a few additional issues speech pathologists need to think about.

To help make the discussion as practical as possible, I looked at the Cliniko and HealthKit Terms of Use as of 9 July 2018. I don’t currently use either service in my practice, but I know both are reputable services used by many speech pathologists.

(a) Who is responsible for complying with Australian laws that regulate progress notes stored on practice management systems?

The speech pathologist.

Health service providers, including speech pathologists, cannot delegate their legal obligations to service providers. Most practice management system companies make this very clear in their terms of use. For example:

Cliniko’s terms state that the speech pathologist using the service “must comply with all applicable rules and regulations, including without limitation privacy laws, and must not infringe or violate third party rights”; and
HealthKit’s terms state that a speech pathologist using the service warrants that they “manage Personal Information in accordance with Australian Privacy Principles….”.

(b) Does the speech pathologist still own their notes?

Probably, though it’s best to check before using a practice management system to store progress notes. For example, Cliniko expressly claims no intellectual property rights over the data or other material speech pathologists provide. HealthKit’s Terms of Use appear to be silent on this point.

(c) Do you need client consent to store progress notes in a cloud-based practice management system?

In our view, yes. And, in their terms, some providers appear to agree with us.

For example, HealthKit’s terms state that speech pathologists using the service must warrant (promise) that they “have disclosed to and obtained the consent of patients that their personal and non-personal data, including health records and payments information, are stored on [HealthKit]…[and] further warrant that [they] have disclosed and obtained patients’ consent for the possible uses of the information stored on this site”. HealthKit’s terms go on to state that speech pathologists using the site warrant that, “where in your reasonable belief the patient is physically or mentally incapable of consent, you have disclosed and obtained the consent of the patient’s guardian, next of kin or other relevant party”.

(d) What happens if the practice management system loses or deletes your progress notes, goes down, if your service is suspended or terminated, if the provider goes out of business, or if the service is otherwise discontinued?

The speech pathologist remains on the hook for the privacy, health record retention and other obligations in respect of progress notes. Even if the management system deletes or otherwise loses your data.

Most practice management system companies are very clear on this. For example:

the Cliniko terms provide that use of their service is at the speech pathologist’s sole risk and that the speech pathologist is solely responsible for any damage resulting from use of their service; and that the entire risk arising out of use, security or performance of their service remains with the speech pathologist. They also make it clear that if there is loss or damage to your data, your only remedy will be for the company to “use reasonable commercial endeavours to restore the lost or damaged data from the latest back-up of such data” maintained by the company. They also make it clear that they do not promise to provide an uninterrupted or error free service.
the HealthKit terms provide that the service is provided on an “as is” and “as available” basis and that they may (among other things) “discontinue this web site and its services or delete the data you provide, whether temporarily or permanently”.

(e) With whom can the practice management system company share progress notes containing health information?

This varies from company to company. For example:

the HealthKit terms state that “sometimes we may transfer information to persons outside Australia (e.g. a contractor located in another country who provides us with services). By giving us your personal information, you consent to such disclosures”. They also state that they can share information with Medicare, the Department of Veterans’ Affairs and “our SMS provider and other third parties that we contract or with whom we integrate for the for the purpose of identifying you”.
the Cliniko terms state that users consent to the company “transferring your data to third party IT providers, including our website host and back-up service provider, outside Australia”. Cliniko’s Privacy Policy states that their use of data that is personal information relating to third parties (including clients) is limited to providing support and technical assistance.

In practice, this means you need to look carefully at the specific provider’s terms of use and privacy policy. In particular, you need to check that the service provider does not claim the right to use your clients’ data for direct marketing, or to sell it to third parties for commercial purposes.

(f) What happens if the practice management provider suffers a data breach involving your progress notes?

The speech pathologist is responsible to their clients and the regulator for compliance with the Privacy Act, including the mandatory notification requirements for serious breaches. To do this – obviously – you need to know that a breach has occurred and speech pathologists should check that their service provider will notify them in a timely fashion that a data breach has occurred. Cliniko, for example, states in their Privacy Policy that they will notify users within 72 hours of discovering a breach.

Bottom line

Storing progress notes on a cloud-based practice management system is an attractive proposition for many speech pathologists. Storing progress notes in the cloud raises compliance issues, including with respect to client privacy and the retention of health records. Regardless of how speech pathologists write and store their progress notes, they are responsible for complying with Australian laws that apply to the creation, storage, use and disclosure of health records.

Disclaimer: The information in this article is for general information purposes only and is not legal advice. This article is current as at the date of its publication. This article does not constitute any kind of legal advice, opinion or recommendation about rights, obligations, remedies, defences, options, or strategies. It cannot be relied on by any person for any purpose. If this article raises any issues for your practice, you should seek independent legal advice based on the facts and circumstances of your situation.

Related articles:

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Speech pathologists, therapy assistants, digital platforms, and the gig economy: some ethics and compliance issues

3 July 2018 By David Kinnane Leave a Comment

Over the last five years or so, there’s been a lot of chatter about how speech pathologists can or should outsource “non-core services” to others – e.g. to therapy assistants or software service providers – to help more clients achieve their goals for less money.

It’s going to happen, whether we like it or not.

Outsourcing is confronting. But it’s nothing new for many professions.

For example, while working for law firms and banks in the early 2000s, I watched the rise and rise of Legal Process Outsourcing (LPO). LPO is now a very big business, where law firms and companies in high cost locations like the US and the UK subcontract some of their client/legal work to other companies in the same country or (more usually) in low cost jurisdictions like India, Chile, the Philippines and Sri Lanka.

In the early days, much of the work outsourced was very low level grunt and churn work. But, as companies and clients got used to the benefits of LPO, and as the LPO providers got more experience and skills, many LPO providers started offering higher value (and higher fee) services that, for some work, threatened to replace the need for in-house lawyers and external lawyers in high cost countries altogether.

LPO is only one kind of a much larger industry called Knowledge Process Outsourcing (KPO), which can occur across borders or within them. To different degrees, KPO has affected a whole host of professions in high cost countries, including tax and accounting, marketing, medical and life science research (including clinical trials), data analysis, business intelligence, engineering and finance.

Is speech pathology work vulnerable to outsourcing?

Yes. At least some of it is.

We tend to think of speech pathology as “outsourcing resistant”. The theory goes that we offer a personal service that requires a qualified speech pathologist to interview, assess, plan, then deliver all aspects of therapy to clients in a room, face-to-face.

But is all our work outsourcing-proof?

In practice, low profit margins are probably the biggest disincentive to the large-scale KPO of speech pathology. But, over the last few years:

many practices have their resources and even client data “in the cloud”, often using a range of low cost subscription-based platforms to do so;
many small practices have started to use virtual assistants and automated (or semi-automated) platforms to handle processes like client intake and bookings;
clients are increasingly looking to access basic information about speech pathology needs via YouTube, blogs, social media, e-courses, or e-books;
many of us are assessing and treating clients via telehealth using low cost or free services like Zoom and Skype;
aided by mobile payment and other cloud-based systems, many of us are delivering mobile services without bricks and mortar clinics;
aided by increased competition in some parts of the market, clients and other service “payers” (like the NDIA) are increasingly expecting that “commoditised”, low-value services will be provided for free or at a very low price that is not worth professional time;
more and more SLPs are opting for (or being forced into) independent contracting work. Some – particularly Millennials – are seeking flexibility and work-life balance. Some are doing it because they want to be their own boss. Others are doing it because they can’t find stable employment;
digital platforms like HireUp have developed to match clients with service providers who can help them (including speech pathologists);
health review sites have sprung up to give consumers more transparency and information about our strengths, limitations, services (and waiting lists);
the evidence base has established that some conditions, like childhood apraxia of speech or hypokinetic dysarthria, require more frequent and/or intensive treatment than we’ve traditionally been able to provide one-to-one; and
more universities have started speech pathology programs and more adult colleges have established speech pathology assistant courses, increasing the size of the para-professional workforce with at least some knowledge of speech pathology services.

Some key ethics and compliance issues to consider when outsourcing work to a service provider or assistant

Fundamentally, what separates qualified speech pathologists from assistants like students or therapy assistants is not simply knowledge, but the wisdom about how to apply it appropriately in the best interests of our clients. Being a professional mandates that, in any outsourcing arrangement – big or small – we think carefully through issues like:

client confidentiality and the privacy of health records;
client care and costs information;
informed client consent;
“reserved speech pathology activities” that are too important to be carried out by assistants and service providers who are not speech pathologists; and
contractual arrangements and indemnity and other insurances to address foreseeable risks/events like data breaches and negligence.

None of this is easy – in the legal sector, lawyers have been struggling with these issues for well over a decade. And, to complicate matters, “speech pathologist” is not a protected title in some countries (like Australia), meaning that it’s sometimes very difficult to establish what “reserved speech pathology activities” might mean in a given context, outside of the rules regulating rebates and insurance payments.

What matters most is – of course – the best interests of our clients; and making sure we satisfy our legal and ethical duties to clients, the profession, and to the general public.

In outsourcing professional work to others, we cannot delegate our ethical and legal obligations to clients or the profession.

Disclaimer: This article contains our opinion on some legal and ethical matters in the field of KPO of speech pathology services. Nothing in this article constitutes legal advice.

Related articles:

Principal background references:

Ross, M. (2011). Legal Process Outsourcing: Ethics and Compliance. Legal Information Management, 11, 97-101.

Shuk-Ching Poon, T. (2018). Independent Workers: Growth Trends, Categories, and Employee Relations Implications in the Emerging Gig Economy, Employment Responsibility Rights Journal, (published online, 5 June 2018).

Noronha, E., D’Cruz, P., Kuruvilla, S. (2016). Globalisation of Commodification: Legal Process Outsourcing and Indian Lawyers. Journal of Contemporary Asia, 46(4), 610-640.

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SLP Three-Piece Thursday 7: on productivity, the death of expertise, and more sleep!

14 December 2017 By David Kinnane Leave a Comment

On productivity: Being productive isn’t the same thing as doing more things or being busy. It’s doing the right things. Time, energy and attention are not unlimited: you should be stingy with each. Start with a purpose: three things you want to achieve each month, week and day. Reward yourself for finishing tough tasks. Work less than 50 hours a week. Write down every outstanding task you can think of to free-up brain power. More: check out Chris Bailey.
On the death of expertise: Information wants to be free and is almost infinite these days. The days of making a good living by using ‘secret’ information are ending. But there are some problems. There is too much conflicting information out there on many topics. Many people – especially vulnerable people – have insufficient tools to sift facts from lies; evidence from fiction. Having less skill at a task can make you less likely to recognise your own incompetence. People pay more attention to information that supports what we think is true (confirmation bias). These factors create blind spots: we can miss the obvious. There’s never been a better time to add value by fact-checking and educating people on how to process information. But experts are frequently wrong. For more, read Tom Nichols’ book The Death of Expertise: The Campaign Against Established Knowledge and Why it Matters.
On sleep: Too many of us are exhausted! Sleep more. Rid your bedroom of electronic devices and invest in black-out blinds. Keep a sleep schedule. Set an alarm for bedtime (not just wake-up time). Wake up at the same time every day (even weekends). Nap more during the day. For more, check out Chris Winter’s The Sleep Solution: Why Your Sleep is Broken and How to Fix It.