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Speech Pathology Students & Graduates

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.

Image: https://tinyurl.com/ycvxcayp

Australian speech pathologists and new graduates: ethical alternatives to dodgy independent contracting arrangements

25 April 2017 By David Kinnane 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:

  • full-time employee contract;
  • part-time employee contract; and
  • casual employee contract,

templates.

Current as at 27 December 2020.

Image: http://tinyurl.com/k9r7yeh

Speech pathology graduates: Should you volunteer for experience and exposure?

15 February 2017 By David Kinnane Leave a Comment

Every year, I’m approached by speech pathology grads who’ve been offered “opportunities” to work for private practices for free, e.g. to get some experience, prove their value to a prospective employer, or get some exposure to different client groups.

Reality bites

My views on unpaid “internships” and volunteer work for private practices are fairly well known; as is my interpretation of the legal position in Australia.

But I’m not naive.

Things are tough out there for grads in some places. Experience counts. And, as adult professionals, speech pathology graduates like all speech pathologists must make their own decisions in life – as much as I might rage and harp about exploitative practices like a worried parent.

4 questions to ask yourself

I pose four questions to grads mulling whether to do volunteer work, based on excellent advice I once heard Seth Godin give to freelance artists and contractors*:

  1. Are other people getting paid for doing the same work? If so, is it fair that you aren’t, especially if your hirer earns money from your work?
  2. Are you learning something of value? If so, are you learning enough to warrant giving away your services for free?
  3. Will you be given adequate public credit for the value you are providing? Is volunteering for the organisation/practice really likely to bolster your portfolio and make you more marketable?
  4. Does the hirer have a good reputation of hiring and paying speech pathologists who volunteer for a short time; or is the hirer known for a high turnover of staff and/or exploiting its workers? (If you don’t know, ask around – speech pathology is a small world.)

I also tell speech pathology graduates who decide to volunteer to:

(a) read the SPA position statement on volunteering;
(b) buy their own insurance (and not to rely on the hirer’s);
(c) keep the stint as short as possible (certainly no longer than a month); and

(d) trust their instincts and reflect regularly on whether they are getting value for their services.

If it feels like exploitation, it probably is.

* Principal Source: Godin, S. (2016). Freelancer Course via Udemy.

Image: http://tinyurl.com/j6jdy2r

Speech pathologists: do you hate networking? Me too. But let’s do it anyway

26 January 2017 By David Kinnane Leave a Comment

Being in private practice can be lonely. We spend most of our working hours on bookings, reports, planning, parent correspondence and calls, and, of course, assessments and therapy. In 2016, whole weeks went by where I didn’t speak to anyone other than my clients, their families and my admin staff. Quite ironic, really, given that one of our jobs is to help people develop their social language skills!

Why network?

We’re a social species. Being on your own in your clinic – and stuck in your own head – for too long is unnatural and stressful.

Isolation can be de-skilling, too. You need a network of people you like, trust, and admire to bounce ideas off, test your own assumptions, and learn new things. Over time, a lack of social interaction can affect your motivation, the quality of your services, and the health of your business – especially if your business relies on local referrals and word of mouth.

Feel the pain and do it anyway

Now, as a rule, I hate networking. I have to stop myself recoiling from professional “networkers”. You know, smarmy “room workers” who look over your shoulder looking for more important people to meet while nodding and pretending to listen to you. And – middle-age alert – it’s also hard for me to summons the energy after a long day at work to go out, especially on a “school night”.

But, despite the risks and challenges, I’m determined to get out there more this year. I want to meet new people, exchange clinical and business ideas, and build better relationships with local business owners and the communities I serve.

Practical networking tips

So how do I plan to get out and meet and greet new people this year without hating myself in the process?

Here are some practical networking tips I’ve tried and tested over the years:

  • Join a few different groups. Speech pathology networking events are great way to meet colleagues and exchange practice ideas. But try to go to other events, too, e.g. local Chambers of Commerce or business networking events.
  • Formally RSVP to events. I feel guilty if I say I’ll go and then don’t. By RSVPing, I increase the chance I’ll go!
  • Actually turn up: You’ve had a bad day? Feeling tired? Prefer to go home, put on your pyjamas and binge-watch Netflix? Me too. But go anyway!
  • Be on time. Not just because it’s polite. But so social groups don’t form before you get there. (It’s much harder to break into an established group than to make your own as people arrive.)
  • Small talk. Small talk is under-rated. It helps build trust and to uncover mutual interests. If you are terrible at small talk, spend a few minutes on the day of the event reading the news so you have a few “go-tos” to discuss in the event of an awkward silence. Avoid politics (especially now), religion and other polarising topics. Look for interesting good news stories of general interest, e.g. in the business, arts and entertainment, and sport sections of the paper. If you’re going to a speech pathology event, scan the latest edition of your association newsletter. If you’re going to a local event, scan the local rag. Some (more sophisticated) networkers suggest researching others’ social media profiles and setting up Google News Alerts for any “movers and shakers” attending the event.
  • You’re not alone. Remember, you have something in common with almost everyone, even if it’s just the event and the room you’re in, or the fact you are in business.
  • Buddy up. If you’re worried about being stuck alone all night clutching a drink, take a buddy, but don’t stay with them for the whole event.
  • Be positive, enthusiastic, and energetic. Even if you don’t feel it initially. People are attracted to positive people.
  • Smile, make eye contact, and be the first to say “hello”! Pay attention to their answer!
  • Introduce yourself by talking about the value of what you do: if you are not good at explaining what you do to non-speech pathologists, click here to find a simple structure you can use to do it. Stress who you help, rather than your job title and expertise.
  • Don’t argue: It’s never a good idea to get into a debate with someone you’ve just met, even if you are right. Even if someone says something inflammatory, try to keep emotions out of it and simply move on.
  • If you say something embarrassing or offensive, admit it and apologise. I’m not unaccustomed to putting my foot in my mouth. When I do, I apologise immediately and unreservedly and make a joke at my expense.
  • If you’re struggling to connect, look for others in the same spot. Find others who look just as uncomfortable as you are and join them.
  • Act like a sub-host, rather than a guest. Introduce people to each other. Offer to get people a drink. Don’t wait for others to do all the heavy lifting.
  • Pay attention to others. Express a sincere interest in what others have to say. Talk about what’s important to the other person.
  • Turn off your phone and don’t text. This is particularly important if you use your device as a shield in social events.
  • Ask for business cards and be ready to hand out yours. People tell me business cards are last season in the age of LinkedIn. But I love the ritual of exchanging cards – and it helps me remember names.
  • Don’t be so hard on yourself! Networking is not a performance art. It’s about turning up and being generally interested in others. Don’t worry if your small talk falls flat, if you say something dumb, or if you don’t click with one or more of the other guests. Get back on that networking horse and have another go!

Related articles:

  • Speech pathologists: how to talk about what you do for a living without being “salesy”

Read more:

  • Roane, S. (2016). How to Work a Room: The Ultimate Guide to Making Lasting Connections – in Person and Online. Harper Collins, Sydney, Australia.
  • Carnegie, D. (1936). How to Win Friends & Influence People, available here. Well worth its $4. A good, practical, and quick read, even after all this time!

Image: http://tinyurl.com/j5gjjfq

Australian Speech Pathologists: Ethical Employment Practices 101

14 June 2016 By David Kinnane Leave a Comment

I’m an optimist when it comes to the future of the speech pathology profession. But I’m also a realist.

A. Supply > demand = exploitation?

Although I remain bullish about the long-term prospects of the profession, I agree with many colleagues who think that the current supply of speech pathologists is out of whack with demand in Australia in some areas of practice. For speech pathologists seeking a job in a capital city, the risk of exploitation is real – particularly for new graduates in private practice. As a lawyer, I’ve seen it in some of the cases that come across my desk.

Speech pathology employers face a slew of legal risks in this market, too, particularly when dealing with some of the less clear-cut legal issues. Risks range from civil employee claims to criminal prosecutions, from financial strain to bankruptcy and loss of practising rights.

Some legal risks are unavoidable in business. Others are caused by a lack of knowledge about legal responsibilities or compliance systems to manage them. As with every profession, there are probably also some hirers out there engaged in what I would politely call “questionable practices”. (More on that later.)

B. Duty to be informed

In the current job market, knowing your legal rights as an employee is essential. On the employer side, you need to know this stuff if you want to protect your reputation and stay in business: ignorance of the law is no defence if a regulator comes knocking or you get sued.

So here are some employment law basics that everyone in private practice in Australia should know about. None of what follows is intended to be legal advice. But it is intended to alert you to some of the main issues you need to think about when hiring, or being hired as, an employed speech pathologist in private practice in Australia.

C. Key things you should know

1. Legislation

Australian employment arrangements are subject to the Fair Work Act 2009 (Cth).

2. Award

The modern national award for speech pathology employees in private practice is the Health Professionals and Support Services Award 2020 (MA000027). Read it. It takes 20 minutes. If you are a graduate:

  • you are a “Health Professional employee – level 1″ for the purposes of the Award;
  • if you have a Masters degree, you should be paid at least at pay point 4 (currently $1032.90 per week full-time); and
  • if you have a 4-year Bachelors degree, you should be paid at least at pay point 3 (currently $998.40 per week full-time).

These are the rates current as at 1 July 2020.

In addition to minimum wages, the Award covers types of employment (full time, part time, casual), ordinary hours, leave, allowances (such as travel allowance, currently $0.80 a kilometre), termination of employment, redundancy and dispute resolution.

3. Minimum employment standards

Speech pathology employment arrangements are subject to the 10 minimum National Employment Standards covering things like annual leave, long service leave and redundancy pay. Read more about these important topics via the Fair Work Ombudsman:

  • Annual Leave
  • Long Service Leave
  • Redundancy

4. Income tax and PAYG

Employed speech pathologists earn salary and wages that are subject to income tax under the Income Tax Assessment Act of 1997 (Cth) and the Income Tax Assessment Act of 1936 (Cth). This tax is withheld from employees and “paid as you go” (PAYG) by employers on their behalf. You can read more about PAYG here.

5. Superannuation contributions

In addition to employee salaries, employers must make superannuation payments for employees under the Superannuation Guarantee (Administration) Act 1992 (Cth). Currently, these superannuation contributions are equal to 9.50% of an employee’s salary and wages. You can calculate superannuation contributions here.

6. Employment Contracts – key things to look out for and to seek advice on

Before signing up, read your draft employment contract carefully. Unfortunately, as we’ve lamented elsewhere, many of the precedent speech pathology contracts floating around are littered with serious errors. Some contain very outdated references. Some contain straight-out illegal terms.

At a minimum, make sure your contract refers to the correct Award (including pay point), the National Employment Standards and the Fair Work Act 2009 (Cth). Make sure you are being hired as a speech pathologist (seems obvious, but be wary of titles like “consultant” or “advisor”, and especially “assistant” or “support worker”).

Watch out for:

  • overly long probation periods – probation periods should not be longer than six months – and provisions that seek to claw back expenses or costs if an employee is terminated at or before the end of the probation period;
  • clauses that seek to restrict what paid work you can do for others while you are employed;
  • clauses that seek to restrict:
    • where you can work; and/or
    • what kinds or work you can do,
      if/when you leave (I’ve seen some pretty broad restraint of trade clauses out there in the market);
  • clauses that purport to restrict your ability to start your own practice if you leave;
  • minimum numbers of clients you must see every day, especially if the number is disproportionate to your experience levels to do the job ethically; and
  • clauses that purport to make your pay conditional, e.g. on the employer first getting paid by a client or third party.

Prospective employees should also be aware of their key duties to the employer, e.g. to co-operate, to use care and skill, to act with fidelity and good faith (e.g. not to steal business, make secret profits on the side, seek to entice other staff away, not to disclose confidential information to others, not to assert ownership rights over the employer’s intellectual property). A solid written employment contract will deal with many of these terms, but Courts sometimes imply these terms when the contract is silent (or not written down).

7. Sham contracting arrangements – pretending an employee is an “independent contractor”

This is a big topic and warrants a couple of articles on its own.

In short, hiring independent contractors is a common practice for speech pathologists. It’s usually cheaper for hirers because they don’t have to pay employee entitlements (like leave) or make superannuation contributions or pay PAYG tax instalments. It can also be more flexible for the workers who can work for different hirers and do different kinds of work.

Some of the independent contracting arrangements I see out in the market are, in reality, poorly disguised employment arrangements. It’s a grey area in some cases – the principles are clear, but the application can be tricky. But the legal risks of getting it wrong fall mostly on the hirer/employer. For example:

  • a disgruntled contractor may sue a business claiming he/she is an employee entitled to annual leave and other employee entitlements;
  • Fair Work Australia may fine a business for entering into a “sham” arrangement, i.e. alleging the ’employer’ attempted to disguise an employment relationship as an independent contracting arrangement to avoid responsibility for employee entitlements; and/or
  • the Australian Taxation Office (ATO) may audit and then prosecute the business (and sometimes its owners), e.g. for failing to withhold ’employee’ income and other taxes as required for employees.

If you don’t know much about this important issue, start with these resources:

  • Fair Work Ombudsman: Contractors and employees – what’s the difference?
  • Fair Work Ombudsman: Sham Contracting Arrangements
  • ATO: Employee/Contractor Decision Tool
  • ATO: Difference between Employees and Contractors
  • ATO: Employee or contractor – Myths and facts

If you’re still not sure, seek legal advice before signing up.

8. “Volunteers” doing speech pathology work

This another area of controversy – and one where I hold strong views. Here, I’m not talking about students on placements, which are usually classed as “Vocational Placements” for the purposes of the Fair Work Act and are thus legal.

I’m talking about speech pathology graduates and other speech pathologists being given the “opportunity” to do volunteer work for other speech pathologists, e.g. to overcome a “lack of experience” hurdle. These are sometimes very informal arrangements, with nothing in writing. Other times, they are structured as an “unpaid trial” or “unpaid internships” offering alleged perks like free training, networking opportunities and training.

Spoiler alert: I think many “volunteer arrangements” are legally questionable and should be stamped out.

The Fair Work Ombudsman makes it clear that true volunteers:

  • must not do “productive work” – this would, in my view, clearly capture providing speech pathology services for money and would probably apply to doing free screeners too if they are part of an initiative to generate business for a private practice hirer (which they almost always are);
  • should be the main beneficiaries of the arrangement; and
  • must receive a meaningful learning experience, training or skills development from the position.

Otherwise, there’s a good risk that the “volunteer” is, in reality, an employee and entitled to be paid accordingly. Again, the main legal/economic risks of getting this wrong is on the hirer, although the short-term damage of engaging in dodgy volunteer “hiring” of course hits the volunteers too, with collateral damage to the profession’s reputation.

In my view, short-term, purely observation/shadowing arrangements might be okay, provided the volunteer learns a lot and isn’t expected to do anything productive. But, if the “volunteer” is expected to engage in speech pathology-related professional work to benefit the hirer, the volunteer might have good grounds down the track to make a claim against the hirer for unpaid wages and entitlements (and interest) as an employee – especially if the volunteer comes away from the “opportunity” less than impressed or feeling exploited.

You can read more about unpaid work arrangements here. For members of Speech Pathology Australia, there is a Position Statement on Volunteering in Speech Pathology (behind the members’ wall), which binds members. But the Position Statement is arguably more permissive than employment laws, and remember that your legal obligations come first.

Bottom line

There’s lots of speech pathologists around, especially in big cities, and more competition between private practices than ever before. This makes it hard to land a job; and puts business pressure on private practices to hire efficiently. If we want to avoid a race to the bottom, we must uphold good hiring practices; and, to do that, we need to know our basic employment rights and responsibilities. I hope that this overview was a useful start for some of you pursuing this goal, though you should seek legal advice particular to your own situation before doing (or not doing) something related to any of the topics touched on above.

Just as a nation’s greatness is measured by how it treats its weakest members*, a profession’s greatness is measured by how it treats its new graduates and other vulnerable members. As a profession, we’re good at helping our clients. But we need to help each other, too. A good start is to ensure we meet – and preferably exceed – our employment law responsibilities.

*Quotation: Mahatma Gandhi.

Image: http://tinyurl.com/hfafrtz

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