Speechies in Business

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Retain your speech pathologists with better professional development systems

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Retaining talented speech pathologists is both a top priority and challenge for most private practices. 

Practice owners can increase staff retention in several ways, e.g. with money, clear career paths and promotion opportunities, and by offering flexible work schedules, e.g. part-time and remote working options. 

An often-overlooked retention strategy is on-the-job professional development. It doesn’t have to be expensive and gives speech pathologists something they really want.

Studies in other industries show that:

  • 94% of employees would stay at a company longer if it invested in their career development;
  • bored employees are twice as likely to leave;
  • employees who get professional development are 15% more engaged, and have 34% higher retention; and 
  • organisations with a strong learning culture are 92% more likely to develop new services and processes; 52% more productive; and 17% more profitable than their peers.  

To improve professional development in your practice without ‘breaking the bank’, private practices can:

  • build professional development into their onboarding and induction processes, with training on practice strategy, employee motivation, teamwork and key technical skills;
  • set aside time every month for employees to explore an area of professional interest unrelated to their current caseload;
  • create training rituals, e.g. by scheduling “Drop Everything and Learn” (DEAL) sessions, where everyone stops what they are doing and takes an online course, or by hosting regular journal club meetings led by team members; and
  • offer one-to-one coaching sessions beyond day-to-day supervision, with access to experienced clinicians.

By focusing on professional development, private practices can reduce turnover, improve their reputations as employers, and make their workplaces better for everyone (including clients). 

Key source: Keswin, E. (2022). 3 Ways to Boost Retention Through Professional Development. Harvard Business Review, April, 2022.

Retain your speech pathologists with better professional development systems

This infographic also appears in a recent issue of Banter Booster, our weekly round up of the best speech pathology ideas and practice tips for busy speech pathologists and speech pathology students.

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9 ideas to increase engagement and reduce burn out by designing work your team will love

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If less than 20% of your work consists of things you love to do, you are far more likely to burn out. Practice owners should design work with love in mind:

  1. Encourage staff to set goals, both for their career and personal life.
  2. Invest in each employee’s ongoing education, either directly through training or by giving employees time to pursue their own projects.
  3. Stay connected with your alumni.
  4. Don’t over-rely on standardised competence tools: there is more than one way to be a great speech pathologist.
  5. Organise around teams: workers who feel part of a team are 2.7 times as likely to be engaged, 3 times as likely to be highly resilient, and twice as likely to report a strong sense of belonging.
  6. Hire interesting speech pathologists: each person’s “loves and loathings” can be combined with others to make the team greater than the sum of its parts. Assign projects based on each individual’s strengths and interests.
  7. Discard rituals that erode team trust, like staff rankings based on output-based KPIs.
  8. Pay individual attention to each speech pathologist. Supervisors who check in 1:1 every week drive their team member’s engagement up 77% and reduce turnover by 67%.
  9. Schedule once-a-week 1:1 supervision check-ins. Ask four key questions:
    • What did you love about last week?
    • What did you loathe?
    • What are your priorities for the next week?
    • How can I help?

Source: Buckingham, M. (2022). Designing Work That People Love. Harvard Business Review, June 2022.  

This infographic also appears in a recent issue of Banter Booster, our weekly round up of the best speech pathology ideas and practice tips for busy speech pathologists and speech pathology students.

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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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Australian speech pathologists: is it ethical to hire juniors as independent contractors?

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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.

B. Update

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.

See, the ATO’s information about contractors and superannuation.

Key and recent employee/contractor cases:

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:

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.

Politically, labour hire companies have come under significant parliamentary scrutiny recently, including in Queensland, Victoria and South Australia.

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.

Bottom line

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.

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Speech pathologists: how to build ethical, profitable, high quality private practices that outlast us

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Over the break, while couch-potato gazing at the cricket, I gave some thought to long-term, sustainable business models for private speech pathology practices. Specifically, mine!

When you start out, almost anything you read about launching a small business will at some point hit you with a frightening stat or two, e.g., that 80% of small businesses fail in the first 5 years. I’m not aware of any specific stats on speech pathology practices, but I’d expect that figure to be about right.

Why?

Lots of us start out in private practice because we want the flexibility and independence of running our own show. We are confident (or confident enough!) in our technical skills as speech pathologists and think we can do things better that where we were before to help clients with their communication or swallowing needs.

But knowing how to be a great speech pathologist is not the same thing as knowing how to run a business. To run a business, you need business knowledge and systems.

Business infancy

When I started my private practice, I was pretty much my clinic, and my clinic was me. My wife and I did all the work ourselves. But as we got busier, and our case load grew in volume and complexity, the work became harder to handle. At one stage, we were working seven days a week – often 12 hours a day – to ensure we kept our therapy service quality high. But, even working 60 hours a week to ensure our clients got the best possible service, “non-client” things started to slide. We just didn’t have the time or energy to attend to all the back office stuff.

Business adolescence

Eventually, we got some help. Initially, with some of the back office tasks we despised (e.g. book-keeping), and then by hiring high-quality staff to help deliver our services. The danger with this “teenager” stage of business is ensuring your quality remains high even though you are not delivering every assessment and therapy session yourself. This was (and remains) hard for a control freak like me! But I knew that my practice would fail in the long run if I couldn’t grow it to a stage beyond my ability to do and control everything myself.

Sometimes during this phase, I felt like retreating back to the comforts of the one-person practice. But then I remembered how awful it felt to be overloaded with work, turning clients in need away as my waiting list ballooned.

Planting seeds for growth at the outset

Successful businesses think about the future. Ideally – in the long run – you want your practice to work even when you’re not there. To achieve this, you need to think like a business-person and plan how your business will develop as it grows. So I looked in the mirror and asked myself:

  • What do you care about the most?
  • Why is your practice an opportunity worth pursuing? Is it aligned with what you care about the most?
  • How do you want to live?
  • How much money do you want (or need)?
  • How much freedom from working at the coalface do you want?
  • What sets your business apart?
  • How will you get clients?
  • What type of clients will you help?
  • How will you deliver your services?

(If interested, you can read more about our start-up philosophy here.)

I then developed a one-page business plan with my purpose front and centre, and my break-even point highlighted in pink.

Even though I didn’t want to, I needed to think like an “entrepreneur”. Now, I know that word has some colourful connotations, and not everyone in private practice is comfortable thinking of their practice as a business. But, as I’ve said before, I think it’s perfectly possible to be both ethical and profitable. In my previous career as a finance lawyer, I observed that it was often the well-meaning, but unprofitable and ill-managed, businesses that were vulnerable to major systems failures and pressures to cut corners at the expense of their clients.

Get out of your own way!

Here’s a quote I love from Michael Gerber:

“The problem isn’t your business; it never has been. The problem is you!”

That was so true with us! We needed to realise that many of our early struggles were caused by the confusion and tension of trying to wear multiple hats at the same time. Every day, in the clinic, I was part:

  • (mostly) speech pathologist, focusing on improving my technical skills to help clients with the latest, evidence-based therapies;
  • manager, focusing on boring (but essential) business and compliance systems, organisation strategies, and finding ways of doing things more efficiently; and
  • entrepreneur, creating new services and products, dreaming up new ways of doing things, looking for opportunities to grow and to connect with others.

The (ongoing) problem is figuring out how much energy to devote to each role at any given time.

How to build a business that lasts

Another top tip I learned from Michael Gerber:

“Pretend that the business you own…is the prototype, or will be the prototype, for 5,000 just more like it!”

Now, as an, ahem, former McDonald’s crew member, I’m not a huge fan of the franchise model for allied health. But I loved the idea of designing my clinic to be systems-dependent rather than owner-dependent. Documenting your key systems:

  • forces you to write down the (sometimes conflicting) contents of your head. I discovered scores of duplicated efforts, wastage and service gaps in my systems just by writing them down;
  • allows others to understand and work to your standards without being micromanaged;
  • ensures people are accountable for their outcomes; and
  • increases the predictability of your service quality.

When we started our clinic, we set up systems that we hoped would grow with the business – even if they seemed ridiculously over-engineered for the client flow at first. I even signed my own Code of Conduct.

Why we had an organisation chart for two people

Even when we were (literally) a Mum-and-Dad business, we wrote down all the roles in our practice (e.g. clinical, operations, marketing, Human Resources, accounting, finance, etc.), and then assigned them – initially all to ourselves, but, as the business grew, to our staff and partners. This helped us stay clear on who was accountable for what and when, even (especially) when we were doing everything.

Human Resources: hire people who are smarter than you

When we hire someone to help us, as an employee, contractor or service provider, we test candidates against the standards we’ve set for ourselves in the position. We look to hire people who are at least as good (preferably better) than us at doing the job. We also try to make sure staff and partners understand the meaning of the work they’re doing and how it fits into our purpose and plan.

Marketing: it’s all about the clients

Our marketing plan is simple: doing our job as well as we can. We don’t rely on advertising. We focus all our efforts on solving real-life problems for people who need speech pathology. That’s why we publish free blogs, books and resources, and address frequently asked questions. That’s why we do community and school talks. We try, consistently, to help people who need speech pathology services find the answers they need.

Don’t lose sight of why your business exists

The business development process – the design of business models and systems – never ends, especially in a time of great change for speech pathologists. When we look at our medium-to-long term business goals, we see a complex, but easy-to-run, set of systems and processes that all work together to support our primary aim: helping adults and children to speak for themselves.

Principal source: Michael E. Gerber, The E-Myth Revisited: Why most small businesses don’t work and what to to about it. Kindle edition via here.

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