Negotiating A Work Agreement

By Sharon Livingstone with Dan Ford

The massage industry is predominately based on insecure and unstable patterns of employment. Apart from massage therapists who are self-employed and working within their own practice, the most common way to be engaged in the workplace is as contractor.

Myths abound on what makes someone a contractor, such as:

  • they have an ABN
  • they submit an invoice
  • there is a “contract” or written agreement.

The ATO created this short, easy to understand video for employers, which exposes the main myths about contracting:

Many massage therapists are engaged on a piece rate basis, i.e. they are paid only for the time they are with their client. Yet the MT is expected to write clinical notes, clean and re-set the treatment room while they are not being paid. Some clinic owners also require the MT to answer phones, do diary management, take payments or simply be “around” in case there is a booking.

Where a worker is engaged as a contractor but is actually an employee by law, that worker is being denied entitlements such as superannuation, sick leave and paid holidays. The business owner engaging the worker is liable for significant penalties for failing to pay entitlements.

For the purposes of employment and salary, Massage Therapists are covered under the Health Professionals and Support Services Award 2010 (the Award, updated 29 July 2017).

“Please note that, under the Health Professionals and Support Services Award 2010 (the relevant award for massage therapists), there are no provisions for commission-only payments or piece rates per massage performed. However, an employee can be paid commission on top of their base hourly rate as an incentive at any time.”

From AMT Journal ‘In Good Hands’ June 2017

Anyone active within the AMT private Facebook group will have seen multiple discussions on employment status over the last four years.

In her Secretary’s Report for the March 2017 AMT Journal ‘In Good Hands’, Rebecca Barnett wrote about some of the member enquiries regarding their contracts and arrangements, including some horror stories. Rebecca additionally advised of AMT’s strong position on employers/clinic owners mis-classifying their workers, which has now come into force.

This table sets out the key characteristics of an employee versus a contractor:

The following case study demonstrates the impact of AMT’s efforts to address the epidemic of sham contracting that has robbed many MTs of stable employment and its associated entitlements.

Case Study

AMT member Dan Ford has been a massage therapist for 10 years.

When Dan relocated from the ACT to Queensland, he found a clinic to continue his massage career and started work as a “contractor”.

Because Dan read his AMT journals and attended the 2016 AMT Conference, he began to understand that his new work arrangement was unfair.

“The clinic sets my hours – I wear a clinic shirt, use clinic stationery and their computer (and phone). If my day is not full, I have to be nearby just in case of a client booking. I cannot provide another sub-contractor of my business to ‘fill in/locum’ for me if I get sick or am unavailable in the hours the clinic has set for me.”

The clinic diary showed Dan available for 40 hours per week with Dan to be paid 45% of the treatment fee.

Dan decided to speak with the practice managing partner about his employment and pay rate. To allow the practice managing partner to fully prepare, Dan sent an email to request a meeting.

Dan checked the “Independent contractors decision tool” to prepare himself for the meeting.

“It came to the conclusion that I was fulfilling the role of a full-time employee. My next aim was to negotiate a fairer employment arrangement in line with our industry (Health & Support Services) Award. I went there and read up on my (our) industry’s minimum requirements/obligations for employers and employees.

After reading the ‘Types of work’ and ‘Payment of wages’ sections, I understood that I was entitled to be offered a full-time or part-time employee position under the current conditions I was fulfilling at the clinic.”

Under the Award, Dan determined that he was classified as “Health Professional employee – Level 3 – Pay point 1” due to his 10 years of fulltime experience.

Armed with this information, Dan stepped into the meeting with the practice managing partner. During that meeting, the practice managing partner agreed that Dan should be an employee.

The practice managing partner had worked out that Dan was booking 65% of his available diary slots each week.

“He noted that my ‘fill’ rate is climbing each month though as I’m building my list and client base.”

Taking that into consideration, the practice managing partner offered Dan a new ‘Service Agreement/Contractor Agreement’ with a pay increase to 50% of the treatment fee.

“(He) gave me the option of adjusting my schedule to accommodate other work/interests etc. OR a part time position at 30 hours per week (in line with my current ‘with client’ rate). Both options are open to me until I reach a ‘with client’ rate of 80%, when it was agreed that a formal offer of full time employment will be made.”

Dan accepted the pay raise to 50% of treatment fees because it suits him at this point in time.

“I now have control over the hours I am available to work, having renegotiated the terms so I am genuinely operating as an independent contractor within the clinic. This leaves me free to pursue other work/opportunities.”

Dan still has the option of shifting over to an employee relationship with the clinic when his diary is 80% booked, and will likely take that up because “I might like some paid holidays soon”.

Of the experience, Dan said, “I really needed to use the relevant tools provided as I was unsure of my rights and obligations and that of my employer. My advice – use the tools and go into any negotiations with a goal in mind, being objective and with a positive attitude.”

While Dan’s workplace negotiation was a victory, it is important to note that neither the employer nor the employee can determine that a role is “contracting” by choice, negotiation or agreement. In other words, if the conditions of work are clearly one of employer/employee then engaging a worker as a contractor is unlawful and denies the worker entitlements under the Award.

The following additional resources may help in determining a Massage Therapist’s employment status and seeking advice on negotiating a better agreement, or claiming entitlements from a current/former employer:

ATO small business assist

ATO small business after hours call back service: 13 28 66

ATO Super guarantee eligibility tool

Fair Work info line: 13 13 94

FWO online inquiry

FWO small business help page

FWO Contractors and Employees – What’s the difference

Image: Pixabay

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