- On standing out from the SLP crowd. You won’t last long if you market yourself like every other SLP. People are busy and distracted. They want someone who stands out – who is remarkable, and offers what they want. Take some risks with your marketing, but stay ethical. Being different will mean some people won’t like what you do. If you don’t cop any criticism, you should be worried! If you try to please everyone, you won’t please anyone! Read more: Seth Godin, Purple Cow.
- On using social media to build your practice. Most of your clients (like folk in general) are addicted to smart phones and social media. Find out which platforms they love and publish great content on them that answers their questions for free. If you’re marketing to stay-at-home parents, think about Facebook and Pinterest. If you’re marketing to busy professionals, think about LinkedIn. If you’re networking with SLP researchers, other professionals, and students, use Twitter. But write for the platform, and don’t ask for anything until you’ve provided lots of free value. Read more: Gary Vaynerchuk – Jab, Jab, Jab, Right Hook.
- On choosing the right suppliers quickly (then getting on with your life). When it comes to choosing suppliers, there are too many choices! You’re busy running a practice – you don’t have time to become an expert in silly sideshows like photocopiers, practice management and accounting systems, and insurers. Too many choices will paralyse you: lots of options reduces your satisfaction and makes you feel out of control. You’ll end up regretting whatever choice you (finally) make. So make fewer choices! For many things, good enough is good enough. For example, after a bit of research – and I mean a bit! – I opted for Guild for insurance, Camnet for my printer, Timely for my practice management system, Xero for my accounting system, and Officeworks for my stationery. Are they good enough? Yes! Are they the best in the world? Who cares! I want a great practice, not an advanced degree in researching micro-stuff. Check out Barry Schwartz – The Paradox of Choice.
Business Tips and Resources
- On founding a great practice. Design your private practice to increase your freedom and autonomy. Hire talented staff to shore up your weak spots, especially good all-rounders. Before you launch, build you ‘social capital’: your social and professional network. Back yourself, but if you lack confidence to launch solo look for a co-founder. Be stingy on giving others part ownership of your practice. Clearly define everyone’s roles – as founder you are the CEO. Be careful about hiring friends. (See: Noah Wasserman.)
- On starting up your private practice: Starting a business has never been easier. Make a stand for something you care about. Get the core of your business right, then launch. Make your service inimitable by sharing what is unique about you. Then share all you know. Start small and make mistakes while you are obscure. Remember you are in business. Start saying no, and keep your services lean. Be honest, personal and nimble in communications. Communicate with others in your practice honestly. Treat employees like adults – foster independence. Stay agile. Stay focused. (Check out Chris Guillebeau.)
- On connecting with clients. Connect with people honestly. Be authentic. Say “no” and skip events where you can’t be authentic. Be consistent and confident in your communications. Remember communication is about the “3 V’s”: verbal, vocal, visual. Be curious. Listen. Use similarities with your clients to build trust (people are comforted by what they know). (Read Michelle Tillis Lederman.)
So what to do you think? Do any of these ideas inspire you to change the way you plan or run your private practice? Let us know! Send a tweet to @speechiesinbusiness or leave a comment.
Thursday afternoons are a drag. Spark them up with our “SLP Three-piece Thursdays”. Three business tips a week from leading thinkers, distilled and tailored by us for other speech pathologists in private practice.
Subscribe here to get Three-piece Thursdays sent straight to your inbox:[jetpack_subscription_form]
SLP Three-piece Thursday 1. On business planning, focus, and website design
- On business planning: Start with your “why” – the goal or purpose that gives your lives a deeper meaning. Only then move onto the the “how” and “what”. (Check out Simon Sinek)
- On Focus: Distractions are everywhere. But deep work requires intention. Take back control. Focus on one task at a time. Schedule your work and free time. (See Cal Newport). Related reading: Speech pathologists: how to get it all done, even when you’re off your game or feeling burnt out
- On websites and social media: Design for central and peripheral vision. Break your information into bite-sized chunks. Use stories and scaffolds. Give your fans lots of ways to interact with you and your practice. (Read Susan Weinschenk).
So what to do you think? Do any of these ideas inspire you to change the way you plan or run your private practice? Let us know! Send a tweet to @speechiesbiz or leave a comment.
For private speech pathologists hiring new graduates, independent contracting arrangements are arguably unethical and undeniably risky. But, sometimes, hiring new graduates as full-time employees isn’t feasible. Maybe workflows are too uneven or insufficient to warrant a full-time hire. And, often, new graduates want flexible arrangements, e.g. to work for a couple of different speech pathologists to get experience in different areas and/or for family reasons.
So what’s the alternative to putting new graduates on dodgy independent contracting arrangements? We count two:
1. If hours of work are reasonably predictable, hire new graduates as permanent part-time employees
Part-time employment is defined in clause 10.1 of the Health Professionals and Support Services Award 2020 (Award). Part-time employees are employees who:
- work less than 38 hours per week on average; and
- have reasonably predictable hours of work.
Before a new part-time employee starts work, the employer and employee need to agree in writing on a regular pattern of work, including:
- the number of hours to be worked each week; and
- the days of the week the employee will work; and
- the starting and finishing times each day.
Employees and employers can be flexible when agreeing these arrangements. For example, it’s possible for the employee and employee to agree:
- different working days and different start and finishing times on alternate weeks, e.g. working Monday and Thursday every first week for the whole day each day, and Tuesday, Wednesday, Thursday for half days every second week; and
- to change the details as time passes and circumstances change. Again, any agreement to change the hours, days and/or starting/finishing times must be in writing signed by both parties.
Wages cannot be less than the Award rates on a pro-rata basis. So, for example, if a part-time employee works 19 hours a week, they must be paid at least half the amount of a full-time employee at Award rates (ordinary hours for full-time employees are 38 hours).
2. If hours of work are not predictable, hire new graduates as casual employees
Clause 11 of the Award deals with casual employment. Casual employees are engaged on an hourly basis, and can work up to and including 38 hours per week. Hourly wages are calculated as at least:
- the minimum hourly rate applicable to the employee’s classification and pay point in which they are employed; plus
- “loading” to compensate for the fact that casual employees are not entitled to many of the paid leave entitlements of full-time employees, calculated as:
- (Monday to Friday) a loading of 25% of the minimum hourly rate; or
- (Saturday and Sunday) a loading of 75% of the minimum hourly rate (see clause 25.1(b) of the Award).
For casual speech pathologist employees:
- each shift (or “engagement”) is treated as a separate contract of employment; and
- the minimum length of a shift is three hours.
As workflows even out, the relationship develops and/or as the graduate builds a case load, employees and employers may find it mutually beneficial to “upgrade” the employee to permanent part-time (or full-time) employee status.
Note that a casual employee may request that their employment be converted to full-time or part-time employment after 12 months in accordance with clause 11.7 of the Award.
Quality, up-to-date legal documentation is key
To ensure you are engaging in ethical employment practices, it’s important that your employment contracts are up-to-date, reflective of the Award, and tailored for the role of a speech pathologist (e.g. aligned with CBOS and Speech Pathology Australia’s Code of Ethics). As with independent contracting arrangements, we’ve come across a lot of poor employment contracts that do not do this.
If you are looking for a solid, up-to-date employment agreement template, check out our:
Current as at 27 December 2020.
For speech pathologists in private practice, hiring independent contractors seems cheaper and more flexible than hiring employees, e.g. if your practice has unpredictable workflows or seasonal “slow” and “busy” periods.
But there are a raft of ethical, client and commercial reasons why it may make more sense to grow your practice with employees. There are also compelling legal reasons not to go down the independent contracting route – at least without first understanding all the risks.
A. Not a new issue
I’ve addressed independent contracting arrangements in speech pathology private practice before. It’s one of those issues I come across regularly – especially with new graduates calling me for guidance about their “first job” contracting arrangements (often after signing on the dotted line).
As a profession, I think independent contracting and ethical employment practices are important topics to address openly.
Recently, we enjoyed an excellent talk by lawyer Anna Elliott about the differences between contractors and employees*. Interestingly, the talk focused on the downsides of getting the employee-independent contractor decision wrong.
Here are some of our key takeaways from Anna’s talk, which we consider highly relevant to Australian speech pathology private practices:
1. Whatever you call your hire (independent contractor or employee), you can’t guarantee a Court or regulator will agree.
- Even with good lawyers and great contracts, there is nothing you can do to guarantee your contractor is really (legally) a contractor.
- The label you use to describe the worker in the contract is relevant, but doesn’t determine the answer on its own.
- If there is a dispute (e.g. with a worker), a Court will look at all of the facts and circumstances to figure out if someone you are calling an independent contractor is really a contractor or an employee.
- There’s a long list of factors Courts look at when deciding whether a hire is a contractor or employee (we’ve talked about some of them before). They include whether the hire:
- has control over her/his work (freedom to decide how, when and where the services are performed);
- can delegate or subcontract their work to others (i.e. can the hire delegate their work to another person);
- is free to engage in other business activities and provide other services to others;
- is really an entrepreneur who owns and operates their own business; and
- is really working for and representing their business (and not yours).
As speech pathologists, let us pause for a second and think about the realities of some common contracting arrangements in our profession:
I’ve seen some arrangements – e.g. involving the short term hire of senior/experienced speech pathologists in practice for themselves to cover for principals or staff on leave – where these factors are present.
I’ve seen (many more) arrangements – particularly involving new graduates and junior members of the profession – that do not satisfy any of these factors, exposing the hirer to the real legal risk that the worker is legally an employee (see below).
I’ve also seen several terribly drafted “independent contractor” contracts in the market where employee and independent contracting concepts are hopelessly muddled. Again, the risks of these arrangements lie mostly with the hirer (see below).
- Different Courts attach different weight to factors/indicators in different cases.
- Different regulators (e.g. the Australian Taxation Office (ATO)) have their own tests for when they think someone is a contractor.
- Different laws define contractors and employees differently for different purposes.
Example: hirers are liable to pay superannuation entitlements for employees and for contracts wholly or principally for the labour of an individual (i.e. where more than 1/2 the contract value is for the worker’s labour, whether physical, mental or artistic). This means that, in some cases, you may be liable for a speech pathologist’s superannuation payments, even if the person is an independent contractor.
Key and recent employee/contractor cases:
- Hollis v Vabu Pty Limited 207 CLR 21 (High Court of Australia)
- On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation  FCA 366 (Federal Court of Australia)
- Tattsbet Limited v Morrow  FCAFC 62 (Full Federal Court of Australia)
- Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd ( FCAFC 37 Full Federal Court of Australia and  HCA 45 High Court of Australia).
2. In any event, is it ethical or commercially sensible to allow unsupervised junior independent contractors to work with your clients?
One of the (many) factors Courts look at to decide if a person is an employee or contractor is whether a worker is or has been supervised by the hirer. Employees are generally supervised by their employers because employers are usually liable for employees’ work. However, true independent contractors are expected to receive no or little supervision.
Clause 3.3.4 of Speech Pathology Australia’s (SPA) Code of Ethics deals with supervision. Among other things, it says SPA members:
- provide appropriate supervision;
- accept responsibility for clinical and support staff, students and volunteers who are assigned to us;
- take reasonable steps to ensure that those clinical staff and students under our supervision:
- understand and apply the Ethics Code; and
- operate within their level of competence; and
- demonstrate and discuss ethical practice with those we supervise to facilitate their ethical reasoning skills.
Not supervising an inexperienced speech pathologist who is working with your clients is a recipe for disaster. Deciding not to supervise a hire (e.g. to help ensure the hire is seen as an independent contractor) may conflict with:
- your ethical duties to clients and to SPA;
- your consumer rights-based duties to clients to ensure you are providing a fit and proper service;
- your insurance obligations to your professional indemnity insurer; and
- your commercial objective to protect your reputation and the reputation of your practice.
This is especially the case with junior members of the profession – and, in particular, with new graduate speech pathologists.
3. If you get it wrong, it can be expensive for your practice (and for you personally).
If you think you’ve hired a contractor and, down the track, the worker or a regulator claims the worker is or was really your employee, you may be liable for:
- unpaid employment entitlements (e.g. annual leave, reasonable notice, and civil penalties for breaches of the National Employment Standards);
- Pay As You Go (PAYG) tax penalties up to 100% of the tax that should have been withheld;
- civil penalties for sham contracting arrangements (It’s an offence to represent that an employment contract is an independent contracting arrangement (also known as a contract for services). This is known as “sham contracting”.);
- damages for breach of contract;
- unfair dismissal claim (reinstatement or up to 6 months salary); and/or
- uncapped damages/civil penalties for “adverse action penalties”.
For example, in a 2015 case, the employer company was hit with a penalty of almost $200,000 and the director was fined over $35,000 personally for sham contracting, failure to pay superannuation, holiday, weekend and casual loadings and failure to keep records. (It could have been twice as much if the employer hadn’t admitted contraventions, or if it had involved more than one employee.)
Some of these risks – e.g. sham contracting and unpaid entitlements – remain risks for 6 years from when they first arise. Others may remain for even longer than this.
These risks can also affect your ability to sell your practice, e.g. you might have to give the buyer an indemnity for these risks, and you can’t contract out of statutory obligations.
4. Even “true” independent contractors may be able to claim against you if they think their contract is “harsh or unfair”.
The Independent Contractors Act 2006 (Cth) gives the Federal Court of Australia (on the application of an aggrieved worker) the ability to review contracts that are harsh or unfair, e.g. because:
- the bargaining power of the hirer was much stronger than the contractor, and the hirer used their better bargaining position to put undue pressure on the contractor; or
- you are paying the independent contractor less than they would have received as an employee.
This exposes hirers of independent contractors to additional risks, especially if hiring inexperienced new grads with little bargaining power and not paying them enough.
Read the recent cases:
- Keldote Pty Ltd & Ors v Riteway Transport Pty Ltd  FMCA 1167
- Informax International Pty Limited v Clarius Group Limited (No.2)  FCA 934
5. Hiring staff through labour hire companies is also risky.
In some industries, hirers have attempted to reduce some of the above legal risks by hiring staff through labour hire companies. These are arrangements where the hirer engages the labour hire company to supply staff.
While these arrangements may reduce some risks (e.g. superannuation liabilities), they don’t eliminate others. For example, in the recent Quest case, the High Court of Australia found that using a labour hire company did not eliminate a hirer’s risk of being found to have engaged in sham contracting arrangements.
With the ongoing “Uberfication” of service jobs (including speech pathology), we expect that labour hire companies and the businesses that use them will remain under the spotlight for the foreseeable future.
Speech pathologists who hire independent contractors to work with their clients need to know about the risks. Some legal risks can be reduced by using good quality contracts. But the conduct of the parties – the “real world reality” of the situation – must be consistent with the intended/stated relationship. Regulators and Courts look at all the facts and circumstances to assess whether a hire is really a contractor or an employee. Getting it wrong can be very expensive.
Hiring contractors to provide speech pathology services to staff also gives rise to ethical and commercial risks. These include how to delegate to and supervise staff adequately (especially junior staff), how to monitor the quality of your services, and to protect your reputation.
There are no easy answers here; and I’m not suggesting that the use of independent contracting arrangements in our industry should cease. But speech pathologists who want to hire contracting staff to grow their business should first educate themselves on the legal risks (and take legal advice if unsure), think through the ethical issues, and consider the commercial pros and cons (including to team morale and reputation).
What do I do in my practice to manage these risks? At the moment, I hire staff as employees.
Principal source: * Elliott, A. (2016). “Contractor v Employee: Getting the Relationship Right and the Consequences of Getting it Wrong”. College of Law online course, watched on 17 March 2017.
Important disclaimer: The information in this article is for general information purposes only and is not legal advice. It is current as at its date of publication. It cannot be relied on by any person for any purpose. If this issue raises any issues for your practice, you should seek independent legal advice based on the facts and circumstances of your situation. The application of laws and statutes may vary depending on the circumstances. We do not assume any liability for any damage that may be caused to anyone as a result of any act or omission on the basis of the information contained in this article.