Award Winning

by Rebecca Barnett

When I was a kid, I was the involuntary secretary of a tiny union representing some of the most poorly paid workers in Australia. My mum was the voluntary secretary and our family home was the official registered office because it was too small and too poor to afford an actual office.

I say involuntary secretary because the home phone number – in those days just a single landline – was also the “official” phone number for the union, so I answered phone calls whether I wanted to or not, at all times of the day and night. Lots of phone calls. A plethora even.  Our family home was the union equivalent of a 7-Eleven before they even became a thing in Australia.

When Mum wasn’t around, I took messages from the army of distressed, underpaid and exploited female dental assistants who needed help (yes, the occupation of dental assisting was 100% female in that era), and Mum would call them back. Over time, it became more efficient just to deal with the calls when Mum wasn’t there – after all, there was a copy of the relevant Award strategically placed on the phone table for ready reference and I had absorbed the knowledge and advice that I witnessed Mum providing.

The Dental Assistants and Secretaries (State) Award was 5 pages long. Even a 14-year-old kid could navigate it and arm/calm a distressed dental assistant with the knowledge they needed, since there was no handy internet to find out stuff.

Today, Dental Assistants are covered under the Health Professionals and Support Award 2010 (the Award), the very same award that covers massage therapists. Turns out, my fate has been chasing me down across multiple decades and a new millennium.

The pay tables alone from the Health Professionals and Support Award run for 28 pages nowadays. I am not even sure how long the whole Award is but, suffice to say, it’s friggin’ enormous. (If it’s any consolation the Fair Work Act is waaaaay longer.)

However, at its core, the Award is not that much more complicated than the 5-page award I referred to a bazillion times back in the day: there are minimum hourly rates of pay at various grades, loadings for out-of-hours work (Saturday and Sunday, and public holidays), requirements around break times, allowances, uniforms etc, and pay grades that reflect your level of qualification and experience.

But, I hear you say, you told us a few weeks ago in this very blog that only 8.5% of massage therapists are employed under the Award . (Actually, in our more recent workforce survey conducted in July 2019, the percentage of massage therapists employed under the Award was only 6%!)

I’m a Contractor. Why Should I Care About the Award?

The Fair Work Ombudsman (FWO) website contains some tips for businesses on how to manage contracted labour:

When you are looking to contract out labour, it’s a good idea to make sure you understand the cost of employment. Your contractor/subcontractor will need to pay their employees correctly as well as cover employment costs (like superannuation, workers’ compensation, payroll tax, insurance and licenses). If you understand these costs, it’ll help you make sure the contracted price isn’t too low.

FWO

The FWO recommends that businesses follow 5 steps to ensure that contractors are operating lawfully:

  1. Know the pay and conditions that apply.
  2. Ask potential contractors about their workplace practices.
  3. Check the contract price to make sure it’s enough to cover wages.
  4. Set clear expectations.
  5. Make sure you know of subcontracting arrangements.

In other words, contractors are still meant to meet minimum award wage requirements in their rate of pay.

Hands up if you’re a contractor and you’re aware of the pay and conditions that apply to massage therapists under the Award?

Hands up if you’ve ever looked at the Health Professionals and Support Services Award?

Hands up if you know whether you are being paid more or less than the Award during a given shift as a contractor?

Key Features of the Award

The Health Professionals and Support Services Award sets out in detail award wages and associated entitlements for Remedial Massage Therapists. Along with the National Employment Standards (NES), it provides a safety net of minimum terms and conditions that cannot be altered to the disadvantage of the employee/therapist.

  • Remedial massage therapists are classified as Health Professionals under the Award. Refer to Schedule C – List of Common Health Professionals (Well, we’re actually referred to as “masseurs, remedial” but don’t hold that against anyone)
  • A new graduate with a Diploma of Remedial Massage would be classified as a Health Professional Employee Level 1, pay point 1. Minimum award wage per week is currently $904.80 for a full time employee or $23.81 per hour.
  • Progression through pay points is based on hours of experience (1824 hours per pay point which is equivalent to one year full time). So if you have 10,000 hours of experience, your pay point would progress to pay point 6.
  • Work performed on Saturday and Sunday attracts a 50% loading (time and a half) for full and part time employees and 75% for casual employees.
  • The Award literally sets out minimum wages and entitlements. There is nothing to prevent an employer from paying above Award wages to attract and retain valued staff.

Compare the Pair

Let’s do some maths …

The contractor

You have 6 years experience as a massage therapist and you turn up to a “shift” at the clinic you are supplying labour to from 8am – 2pm on a Saturday. You complete 4 massages during your shift and invoice the business for $200 or $50 per massage, as per your contract. Your contract says that you are not entitled to superannuation, annual leave or personal leave.

The employee

You’re a casual employee with 6 years’ experience as a massage therapist and you turn up for a shift from 8am – 2pm on Saturday. You are being paid as a Health Professional Employee Level 1, pay point 3 based on your qualification and years of experience. As a casual employee, your hourly rate of pay is $45.19 on a Saturday. That’s because casual employees under the Award earn a 75% loading for worked performed between midnight on Friday and midnight on Sunday.  You earn $271.14 plus superannuation ($25.75). Your employer is also responsible for workers’ compensation and PL/PI insurance. As a casual employee, you are also still entitled to some personal leave.

Winner!

Let’s Do Some More Maths

The contractor

We know from AMT workforce data that only 27% of massage therapists are earning more than minimum wage from massage therapy but let’s assume you’re one of the more fortunate ones – a busy, successful contractor with 6 years experience.

You average 25 massages a week and get paid $50 per massage. You are required to be on deck Tuesday through Saturday from 10am – 5pm but have periods where there are no clients so you’re basically waiting for work on average 2 hours a day. You take 4 weeks unpaid holiday and earn $60,000 per annum over 48 weeks. However, this year you had the flu which left you bed ridden for a week. Your yearly earnings are down to $58,750. Things get a bit quiet for a few months over winter so you only average 15 massages a week during that period. You’re down another $2000. Your contract states that you do not get paid super so you make your own contributions at 9.5%, which costs you $5581. You’re down to $51,168.00 for the year. Your annual insurances cost around $800. You’re earnings are now around $50,368. (It’s worth noting that this contractor is likely to be an employee for superannuation purposes and could be lodging a claim with the ATO for unpaid super. We covered that in this blog.)

The employee

You are a massage therapist with 6 years experience and you’re employed at a clinic 35 hours a week Tuesday through Saturday from 9.30am to 5.00pm, with a half hour break for lunch. When you’re not treating clients, you’re doing reception relief, laundry and other clinic-related tasks in your job description. You’re paid at pay point 6 under the Award. On the weekday shift, that is $30.14 an hour and on Saturday it’s $45.21 so your weekly wage is $1160.39, which works out at $60,340 per annum. Including superannuation, your income and entitlements add up to $66,072 per annum. You took 4 weeks paid annual leave and needed to use 5 days sick leave due to a bad bout of the flu. You’re due to get a pay rise at the beginning of next year.

*****

Note that in the above scenario, both therapists work over roughly the same time period during the week. But the contractor has an average of 10 hours of unproductive time every week where they’re still required to be on deck. That amounts to a lot of unpaid work. At the contracting rates used above, it’s $500 a week of lost income. And the reality is often significantly more brutal than that scenario. I’ve heard more stories than I care to recall from therapists who are required to be on call at a practice for 5 hours “in case of drop ins” and then go home empty-handed because they haven’t performed a single treatment. That’s just total BS.

But if I had a massage for every time a distressed contractor told me “I can’t afford to earn the Award hourly rate. It’s too low”, I would be the most chilled, blissed out woman on the planet. Perhaps I would even stop swearing.* But it gives me the cracking shits that unproductive/unpaid time is not factored into the equation when contractors quote their high hourly earnings. And the freedom and flexibility claims are usually a similar crock: if you’re waiting around for a call to work, that’s not a whole heap of freedom. You’re essentially still waiting for work with no guarantee that it will come.

There is a reason why businesses engage people under sham contracts rather than under the Award. It’s cheaper than paying proper wages and covering all the associated entitlements. As the Fair Work Ombudsman frequently flags, it gives businesses an unfair competitive advantage over those who are paying real wages. This comes back to bite businesses hard if they find themselves in front of the tribunal facing hefty fines for non-compliance.

Please do the maths and have these conversations with prospective employers who want to engage you as a contractor for labour. The sooner we can get more massage therapists employed under the Award, the sooner we can start agitating for better pay!

Just don’t get me started on sports massage event work.

*This is unlikely.

About the Author

As CEO of AMT, Rebecca Barnett cannot deny that her union roots run deep. Though she be but little, she is fiercely dedicated to massage therapists’ workplace rights.

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Comments

  1. Hi Rebecca. Wow your blog makes great reading. Can’t wait to see the movie lol. Ok my situation is I worked as a massage therapist for four years (aromatherapy diploma) .I was paid a percentage of the massage fee. When I left them I contacted the ATO to find out if I should have got Super or not. They sent me 16 pages of questions and 7 months later I got the phone call to say yes it was in my favour and they owe me 9.5% super plus 10% interest. I have done the survey on the ATO site to work out if I was an employee or a contractor and i’m pretty sure that I was an employee. So after reading your blog about the cases between the FWO and a couple of massage businesses I am wondering how I get this ball rolling. I would appreciate your advice. Thank you

    • Sharon Livingstone
      13/08/2019 - 2:28 pm

      Thanks for reading Ali. In Rebecca’s article, “Our Super Future”, under the heading “And Another Thing”, there is a link to the ATO’s online lodgement tool so that you can claim unpaid super. This is something that you can do yourself without having to contact the business involved, and doesn’t require any involvement by the Fair Work Ombudsman.

    • Hi Ali,

      I would suggest that your first action is to get all your documentation and proof in order (anything written that would support the ATO decision tool ruling) and then ring the FWO to talk about lodging a complaint. At the moment, I know that the FWO is very focused on pursuing the hospitality industry but it might even be worth mentioning on the phone that you have read a couple of the enforceable undertakings on the FWO website and you think you have been subject to the same sort of underpayment/sham contracting.

      Am I right in understanding that the ATO is pursuing the unpaid super on your behalf? Well done on getting through the bureaucracy!

      Let us know how you go.

      Cheers,
      Rebecca

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