C H A P T E R O B J E C T I V E SHuman Computer Interaction
In this chapter we aim to:
› provide an overview of the regulation of professional titles,
practices, and aff liation issues
› address legal factors that impinge on human service jobs
and titles, employment rights and obligations, and on worker
management responsibilities
› outline the broad shape of legal rights and responsibilities
thrown up by a changing employment context
› introduce the legal framework for creating corporate entities and
business structures
› explore the ‘business’ world of contracts, management functions,
and meetings
› briefl y consider employment law.
This chapter does not discuss the duties of directors, fundraising,
taxation, and f nancial management, although a few of these areas
are touched on briefl y in other chapters.
Professional,
Business, and
Employment Matters 4
67
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
Behind the scenes of service delivery
Consider the following situations:
• A human service employee is dismissed from employment and then offered
contract work by the same agency.
• A refugee support agency appoints a social worker without a degree.
• A mental health worker worries about her personal safety.
• A youth shelter subcontracts its passive duty roster to a stafng agency.
• A case manager chairs case conferences in which many other service providers
are represented.
• The treasurer of a disability self-help association frets about its fnances.
What are the unifying elements in these situations and why are they important in
human service work? The situations ft within a loose conglomeration of professional,
industrial, and ‘business’ matters. They are the machinery behind service delivery to
clients. They concern professional identity, employment rights and obligations, and
responsibilities that flow from the increasingly common management functions of
human service workers in the contemporary human service world—where traditional
organisational, professional and service delivery structures and arrangements are
changing. No longer can workers expect to be employees with one-dimensional
professional trajectories concerned only with direct service to clients. They may be
contractors rather than employees, service coordinators and case managers rather
than service providers, the providers of both direct and indirect services, and perform
both inter-agency and intra-agency functions. To survive in this contemporary human
service world and be effective, both organisations and workers must be conversant
with and make more use of entrepreneurial attitudes and the prevailing language of
business and management.
Professional profle
Human service workers licensed to practice?
The state does not license or protect the titles or intervention methods of
human service workers in general, or social workers or counsellors in particular.
Social workers, counsellors, and other human service occupational groups are
not registered by the state. In contrast, the state does register psychologists,
Aboriginal Health Workers and a range of other health professionals, as outlined
below. The Northern Territory has been the only jurisdiction so far to attempt
state registration of social workers: under the Health Practitioners and Allied
Professionals Registration Act 1985, people claiming the social work title were
required to have qualifcations and experience acceptable to the Australian
Association of Social Workers (AASW). However, the sections of that legislation
relevant to social work were repealed in 1993, and the whole Act was repealed
by the Health Practitioners Act 2004 (NT).
68 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
MYTHS AND REALITIES
Myth: To be a social worker you must be licensed.
Reality: Social workers do not have to be licensed to practise in Australia. Any person
can call themselves a social worker and the state will not take action unless fraudulent or
criminal activity is involved. This does not mean that social workers are any less obliged
to operate ethically and competently. The AASW Code of Ethics has many clauses relevant to safe, sensitive and competent practice (for example, clauses 3.3 and 5.1.5)
Human service activity is regulated and constrained in very many ways, legal
and otherwise, but not through worker titles (except for some health professions),
or by particular methods or functions being legislated as exclusive to them. Anyone,
regardless of qualifcations, can with impunity call themselves a social worker or
engage in what might be thought of as social work or human service activity—for
example, counselling or case work or case management. The state will take no action
about their claim to the title or their engagement in these practices. So because
legislation does not protect use of the ‘social worker’ title by particularly qualifed
groups of human service workers, all must therefore compete in a relatively open
market for jobs. Many people with social work qualifcations take a dim view of this
lack of regulation, as do some professional associations such as the AASW (2004,
2011, 2015a & 2015b) and some commentators (for example, Freckelton 2009;
Macleod and McSherry 2007). Yet others view diversity of practice opportunities
as liberating for employers, workers, and consumers. Some professional associations
advocate self-regulation as opposed to state licensing as an effective or alternative way
of ensuring quality practice (for example, Psychotherapy and Counselling Federation
of Australia (PACFA) n.d.; also see Cordingley 2015 regarding the Australian
Community Workers Association (ACWA)). Clients are generally ignorant of the
qualifcations and licence status of their workers and have other, more immediate
preoccupations. Employers in the human services have tended to follow their own
rules about titles and expertise, as is shown below.
In contrast, in the USA, England, Canada and a number of other countries, social
workers are subject to some form of state licensing regime. Many other professional
groups in Australia, such as psychologists and lawyers, have had their titles and
sometimes practices (for example, the administration of psychological tests in SA
prior to 2010) regulated in states and territories for some time.
In July 2010 a national scheme for uniform registration of 10 previously state
and territory registered health professions (chiropractors, dentists, medical doctors,
nurses and midwives, optometrists, osteopaths, pharmacists, physiotherapists,
podiatrists, psychologists) came into effect. This co-regulatory national scheme is
based on the Health Practitioner Regulation National Law Act 2009 (Qld) replicated
with some variations in each of the other states and territories. In 2012, four more
groups were included in the scheme (Aboriginal and Torres Strait Islander health
practitioners, Chinese medicine practitioners, occupational therapists, medical
radiation practitioners). Social work is not included in this scheme although AASW
continues to lobby for the inclusion of social workers (2014, 2015a).
Chapter 4: Professional, Business, and Employment Matters 69
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
Intending members of professional groups included in the scheme cannot use
the relevant professional title unless they are registered—title protection is at the
core of the national scheme (Freckelton 2010). Registration generally requires the
person to satisfy a range of criteria concerning qualif cations, absence of impairment,
continuing professional development, good character, and professional indemnity
insurance and to pay annual registration fees. Various obligations are imposed on
those registered under these Acts including mandatory reporting by them, their
employers or their education providers, of the notif able conduct of other registered
health practitioners, and impairment in students that may place the public at risk.
Complaints about the conduct, performance, health and or f tness to practice of
registered practitioners can be investigated by the Australian Health Practitioners
Regulation Agency in most jurisdictions, the Health Care Complaints Commission
in NSW and the Health Ombudsman in Queensland (see Satchell et al. 2015).
Findings of unprofessional conduct, professional misconduct or unsatisfactory
professional performance may result in sanctions and ultimately, in some cases,
removal from the register. This very powerful sanction prevents continued practice
as a psychologist, nurse, or whatever. In this way, the force of the state is brought
to bear on individuals who wrongly make claim to professional titles or who breach
professional conduct and performance standards under this scheme.
Refl ect
Should human service workers have to report the misconduct or impairment of their peers? If so,
when and how? If not, why not? Review the following clauses from relevant codes of ethics: ACWA
clause 4.4; AASW 5.1.5 (e) and 5.3 (j); Australian Psychological Society (APS) C.7.2-3; Australian
Society of Rehabilitation Counsellors (ASORCA) Appendix A 2. Do these clauses help you answer
this question?
The reasons why most human service groups have been excluded from the
professional regulatory regimes in Australia, whether or not such regimes achieve
their purposes, and which, if any regulatory model is preferable are contentious topics
explored elsewhere (for example, see Allsop and Saks 2002; McDonald 2006; Carlton
2008; Freckelton 2010; Kennedy 2009; Lonne and Duke 2009; Macleod and McSherry
2007; McLaughlin 2010a and 2010b). Some reasons for exclusion are inherent in
the pluralism of human service qualif cations, af liations, methods of intervention
and the resulting def nitional dif culties; some have to do with broader issues of social
legitimacy, status, gender, employment fl exibility and perceived risk to the public.
Unregulated groups (such as social workers, youth workers and so on) however
are not immune from community concern about unsatisfactory conduct. A parallel
scheme relevant to them is developing alongside the national scheme described
above. Australian Health Ministers have been investigating a consistent national
approach to standards of conduct for unregistered health practitioners based on the
70 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
existing New South Wales, South Australian and Queensland schemes (Australian
Health Ministers’ Advisory Council 2011).
In NSW since 2008 Schedule 3 of the Public Health (General) Regulation
2002 applies a code of conduct to anyone who provides a public or private health
service. The latter includes community health services, health-related welfare
services, alternative care health services and mental health services and others. The
code of conduct specifes minimum ethical and practice standards (for example not
practising while under the influence of drugs or alcohol, not misinforming clients,
keeping appropriate records). Complaints about unregistered practitioners can be
investigated by the Health Care Complaints Commission under s 41A of the Health
Care Complaints Act 1993 (NSW) and the Commission can place a prohibition
order on a practitioner, put conditions on their provision of a health service, or make
a public statement about them and their practice. Health Ministers at the Council of
Australian Governments (COAG) in 2015 agreed to pursue a national co-regulatory
scheme for unregistered health professionals and agreed to the terms of the frst
National Code of Conduct for health care workers (COAG 2015a and 2015b). This
Code covers questions of competence, scope of practice, safe and ethical practice,
consent, reporting concerns about other workers and so on. This Code is likely to
have relevance in legal cases considering standards of practice, even for those human
service workers outside of health who are not directly covered by the code.
TWO APPROACHES TO REGULATION OF CONDUCT
A psychologist in private practice formed a casual personal relationship with a vulnerable
male client. She then referred the client to another psychologist but did not reveal
to him her personal connection with the client. Soon after the referral to the second
psychologist, the first psychologist and the client commenced a romantic relationship
and later moved in to live together. The second psychologist became aware of the
relationship between the first psychologist and the client and made a notification to
the Board. The Tribunal found that the first psychologist had engaged in professional
misconduct and unprofessional conduct. The Tribunal reprimanded the psychologist,
suspended her registration for six months, and placed mentoring, further education and
further supervision requirements on her during and after her suspension.
Psychology Board of Australia v Garcia (Review and Regulation) [2015]
VCAT 128 (10 February)
A complaint was made against a social worker alleging that he had failed to maintain
a professional relationship with a client. On investigation, the Health Care Complaints
Commission (HCCC) was satisfied that the worker ‘had breached the Code of Conduct for
Unregistered Health Practitioners in that he failed to provide health services in a safe and
ethical manner’ and that he ‘posed a risk to the health or safety of members of the public’.
The HCCC published a statement on its website, including details of the relationship
between the worker and his client, the worker’s subsequent criminal conviction, ‘the
breaches of the Code of Conduct … and that the Commission had made an order prohibiting
LAW IN
PRACTICE
Chapter 4: Professional, Business, and Employment Matters 71
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
him from providing any health service in either a team or voluntary capacity for five years.’
The statement did not include details of the final sentence imposed by the District Court
following the worker’s appeal against severity of sentence. The worker applied to the NSW
Civil and Administrative Tribunal (Administrative and Equal Opportunity Division) seeking
an order either that the public statement be removed from the website or that a much
shorter, less detailed, version be published pending the Tribunal’s decision. After weighing
up the impact on the worker and his family of making such detailed information available,
and the public interest in alerting the public to the worker’s conduct, the NSWCAT ordered
that the statement be removed from the HCCC’s website pending further order of the
Tribunal. . The stay order was later revoked. The statement was amended by the Tribunal
but the prohibition order was otherwise permitted to remain on the HCCC website.
Kirbach v Health Care Complaints Commission (No. 2) [2015] NSWCATAD 234 (13 November 2015)
Increasingly, human service workers are also regulated in other ways beyond
use of title and current conduct. They have to satisfy criminal records checks—for
example, under the Working with Children Act 2005 (Vic), Working with Vulnerable
People (Background Checking) Act 2011(ACT), and Working with Children (Criminal
Record Checking) Act 2004 (WA).
Human service workers in some felds also need to be specifcally accredited,
as distinct from being registered, to practise in that area. Family dispute resolution
practitioners under the Family Law Act 1975 (Cth) must be accredited through
completion of specifc vocational qualifcations. Migration agents must be registered
and can be deregistered under the Migration Act 1958 (Cth). More commonly,
employer agencies are the ones that need to be accredited to provide services. For
instance, Australian aged residential and child-care facilities must be accredited
under various federal or state and territory Acts.
Employment in the human services
The absence of title licensing in the human services is both a cause and result of the
deregulated employment market, where employer preferences as to background and
qualifcations have prevailed. Apart from compliance with the health practitioner
regulation legislation outlined above or agency funding or accreditation necessities,
no specifc legislative requirements either impede or guide employer decision making
about which kinds of experience and qualifcations are necessary for the work
advertised. The human service workforce is diversely prepared and qualifed with a
signifcant and growing proportion of workers without post-schooling qualifcations
(for example, see Meagher 2007; Community Services and Health Industry Skills
Council 2008; Karmel and Blomberg 2009; Department of Education Employment
and Workplace Relations 2010; Healy and Lonne 2010).
Job titles in the human services are many and varied. New approaches to service
delivery, for example case management, ‘mean that professional and occupational
72 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
identities and job functions are in fl ux’ (Kennedy 2009, p. 24). Some employers
employ social workers and some but not all of them seek candidates who have a social
work degree and are eligible for membership of the AASW (Kennedy and Harvey
2001; Healy 2004). This is professional self-regulation albeit less formal than state
regulation through title legislation. Where employers seek psychologists, successful
candidates must be registered and possess accredited psychology qualif cations.
More commonly, human service employers accept a broad range of qualif cations
and professional identities. They may title a job by function, for example counsellor,
case worker, case manager, project worker or policy worker. They may title a job by
reference to the target group, for example refugee-support worker, youth worker, agedcare worker, family-violence worker, child-protection worker. Jobs with very diff erent
titles, eligibility criteria and professional designations may have similar if not identical
functions and responsibilities. A designated social work position in a government
department may have similar responsibilities and duties to that of a youth worker
position in an NGO. Very diff erently prepared candidates may be eligible for the same
jobs. A six-year university qualif ed and registered psychologist, a four-year university
qualif ed social worker, a three-year university qualif ed human service worker and
a one-year TAFE qualif ed community service worker may all be contenders for the
same counselling job—provided that the job title is not that of psychologist, the
employer is largely free to select its preferred candidate from this range of applicants.
Refl ect
What professional title can/will you use? In what areas and for which employers are/will you
be qualif ed to work? Of which professional associations are you eligible/ineligible to become a
member?
Codes of ethics commonly maintain that you should not work outside of your areas of skill and
competence (for example, AASW 5.1.5; ACWA). What are your areas of skill and competence
and against what standards do you assert your competence?
Professional and industrial aff liations
Human service workers, like others, engage in mutual support and collective action
through membership of professional and industrial bodies. Two signif cant generic
professional bodies are the AASW and the ACWA, both previously mentioned.
Other bodies concerned more with areas of practice and service delivery models
than professional designation include the Case Management Society of Australia,
the Australian Counselling Association and the Australasian Professional Society on
Alcohol and Other Drugs and ASORCA. Membership of these and similar bodies
confers rights such as access to professional development activities, professional
literature, and professional indemnity insurance. It also brings legal obligations in
matters such as payment of fees, and compliance with the associations’ codes of ethics
and standards of practice. Non-compliance with the codes of ethics of professional
Chapter 4: Professional, Business, and Employment Matters 73
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
associations may result in the exclusion from membership of those associations: a
form of professional self–regulation. The Australian Association of Social Workers
publishes a list of people currently ineligible for membership (AASW 2015b). Many
more human service workers are members of trade unions than are members of
professional associations. Their diversity of employment is reflected in the range of
trade unions relevant to human services work, with the Australian Services Union
and public service unions only some examples. Through union membership, workers
seek support in their disputes with employers and in their work conditions. Again,
membership brings with it legal rights and obligations.
Workers need to be attuned to the legal nature of membership rights and
obligations for all of these bodies and to understand their basis. This means being
conversant with the constitution, articles of association or whatever legal document
founds the body, and its rules. Workers should do this not only in pursuit of their
own interests and questions, but also so that they can alert their clients and other
work contacts to the existence of such documents and their power. Legally literate
and confdent workers know how to fnd and read fundamental documents when
they consider that their own or others’ rights have been compromised or need to be
protected—a point that reappears throughout this chapter and book.
Taking care of business
Management responsibilities
For human service workers who take on management functions and for human
services agencies, the governance of bodies and meeting procedure are recurring
topics, both underpinned by law.
Governance of bodies
Many human service workers sit on or chair management committees or boards
of community groups, create or advise such bodies, contract with such bodies
to do work, are employees of such bodies, or set up their own consultancy or
subcontracting businesses. For these workers, it is important to be familiar with the
forms of these bodies and their own legal responsibilities in relation to them. Such
bodies may have independent legal status separate from their individual members,
achieved through a process of incorporation. If a body is not incorporated in some
way, individual members can be sued and held liable for its debts and activities. An
incorporated body can sue or be sued, own assets, enter into contracts in its own
right, protect its members from some liabilities (Ciro, Goldwasser & Verma 2014;
Miles and Dowler 2011), and be eligible for some grants. Legal bodies can be
created in a number of ways, some under specifc state and territory Acts covering
particular areas of human service activity—for example, health and children’s
services. There are also other general forms of creation and structure relevant to the
human services, as outlined below.
74 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
Incorporated associations
Many not-for-proft community organisations incorporate under the relevant state or
territory Association Incorporation Acts (Miles and Dowler 2011). Associations must
have aims consistent with the legislation, a set of rules that detail administration and
management mechanisms, and must apply and be registered in the jurisdiction. The
association rather than the membership owns any property and carries any rights
and liabilities. Members cannot take profts. Annual general meetings must generally
be held, and there are legislated duties of ofcers and committee members, such as
disclosure of interests, proper use of information, keeping accounting records, and
so on.
Co-operatives
Entities engaged in co-operative activity may be formed as co-operatives under
relevant state and territory legislation, for instance the Co-operatives National Law
(South Australia) Act 2013 (SA). A uniform set of national laws for co-operatives
is being progressively introduced by the states and territories (NSW Government
2015). Housing co-operatives commonly take this legal form. They must be
registered, have boards of directors and ofcers, with specifed duties, and they may
allow proft-sharing among members.
Sole traders
Individuals can conduct a business on their own as a sole trader—for example, a
human service worker may operate as a training consultant. This requires little more
than registration of a business name, registration with the Australian Taxation Ofce
for an Australian Business Number and GST, and attention to relevant state or local
government licences or approvals. For sole traders, the individual and the business
are indivisible as are the debts, liabilities, and assets of each (Miles and Dowler
2011, Ciro, Goldwasser & Verma 2014).
Partnerships
In most partnerships, twenty individuals or fewer (limited by the Corporations
Act 2001 (Cth) (Miles and Dowler 2011) work together with a view to sharing
proft. For instance, a group of human service workers may set up a counselling and
psychotherapy centre. Partnerships are not separate legal entities, but they have legal
form and obligations, largely covered by the Partnership Acts of each state or territory
and few formalities are required for their creation. Generally partners share losses
and liabilities for partnership debts and actions. All partners, unless it is otherwise
agreed, have control and management of the partnership.
Companies
Registered companies formed for the purpose of making profts are variously
classifed, and covered in each jurisdiction by the complex Corporations Act
2001 (Cth). These bodies are created (incorporated) upon registration with
the Australian Securities and Investments Commission (ASIC)—and must keep
specifc and extensive fnancial records, make disclosures and hold meetings as
required, and fle annual returns with ASIC. They are generally controlled by a
Chapter 4: Professional, Business, and Employment Matters 75
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
board of directors (Austin and Ramsay 2015), whose duties are highly regulated,
and breaches of the Act can result in civil as well as criminal penalties. Companies
have not been a prominent feature of the human service landscape but they are
likely to become more common business structures for employers and independent
consultants in the feld. Incorporation under the Corporations Act 2001 (Cth)
allows the organisation to operate across Australia and internationally. One
structure increasingly used by non-proft organisations including community
service organisations and religious institutions (Lipton, Herzberg & Welsh 2014,
p. 82) is that of a company limited by guarantee, where ‘the liability of its members
[is] limited to the respective amounts that the members undertake to contribute to
the property of the company if it is wound up’ (Corporations Act 2001 (Cth) s 9).
Shares in the company are not issued. There are now about 11,000 of companies
limited by guarantee in Australia (Lipton, Herzberg & Welsh 2014, p. 81), with
different reporting requirements imposed by the Corporations Act 2001 (Cth)
depending on the size of the company.
Details of all these entities and the practical responsibilities of members, ofcer
holders, and committee members are outlined more comprehensively elsewhere
(see, for example, Renton 2005a; Magner 2012; Fishel 2014, Lipton, Herzberg &
Welsh 2014). Information is also available from the Councils of Social Service,
law handbooks, Legal Aid Commissions, Community Legal Centres, the corporate
affairs departments of the states and territories, ASIC and the Australian Charities
and Not-for-profts Commission (ACNC). A number of general points are useful
to highlight here. Many people, including human service workers involved
with for-proft and not-for-proft bodies, experience difculties in areas where
collective activity intensifes problems—for example, conflicts about processes and
procedures, resources, power, and control. The interpersonal and group skills focus
in much human service training provides a sound basis for action, but it needs to
be supplemented by a sense of legal confdence. That necessitates some idea about
the following things:
• the structure of the body
• the law that governs it
• its establishment formalities
• its legal lifespan
• the extent of liability for those involved
• how it is meant to be controlled
• the formalities for its operation
• how new parties can be involved or old ones excluded
• how it may be disposed of
• how it can be wound up.
Familiarity with these points and confdence in seeking out relevant information
is essential for workers who want to understand the parameters of their own
responsibilities and protect their own and others’ interests. Too seldom do human
service workers show acumen in their knowledge of formal rules and governing law
when facing conflict in these bodies, despite the fact that to be able to do so is
extraordinarily empowering.
76 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
A foundation provided independent living training for people with an intellectual
disability. Originally funded by the Commonwealth government, the foundation was
transferred to NSW government funding in 1993. Following the transfer, the foundation
was advised by the Department of Community Services that it could choose to selfassess its conformity to the legislative requirements imposed by the NSW Disability
Services Act 1993. Despite the fact that it was not under any obligation from the
Minister to do so, the foundation undertook this process on advice from the Ageing
and Disability Department and developed a transition plan having identified areas for
improvement through the self-assessment process. This was independently assessed
as conforming with the requirements of the Act and adopted by the Minister. People
with Disabilities (NSW) Inc (PWD) and the NSW Council on Intellectual Disability (CID)
both sought to appeal the Minister’s decision in the Community Services Appeals
Tribunal of NSW. In determining that both organisations had legal standing to lodge
appeals, the Tribunal took into account a number of matters in relation to PWD and
CID including their Constitution and Memorandum and Articles of Association, and
in particular their aims and objectives and who could be members of these bodies.
People with Disabilities (NSW) Inc v Minister for Disability Services Matter Nos 061 & 195 of 1998 (12
February 1998) Community Services Appeal Tribunal of NSW
A worker made an application to the Fair Work Commission for an order to stop bullying
conduct in her workplace, a community services organisation that provided a range of
services to offenders and former prisoners and their families. The Fair Work Act 2009
(Cth) would only apply to her application if her workplace were a ‘trading corporation’ and
therefore a ‘constitutionally covered business’ as defined in the Act. The worker argued
that because her employer’s activities included ‘significant government funded programs’,
these were ‘trading in nature’ and so ‘it should be considered to be a trading corporation’.
The organisation argued that they did not engage in trading, their services were often
provided gratuitously, their purpose was not to generate income but to provide the
services and their greatest source of revenue was via government grants. The Commission
found that the employer was funded primarily by state and federal governments; was a
not-for-profit organisation; was an incorporated association with an Australian Business
Number (ABN); ‘classed as a public benevolent institution’ and ‘eligible to accept tax
deductible gifts’; and was governed by a board. After considering the activities, services
and funding of the organisation in detail, the Commission concluded that it was a ‘trading
corporation’ and listed the matter for hearing as to the bullying allegations.
Pasalskyj [2015] FWC 7309
Refl ect
How would you respond if someone in your community group made purchases on the group’s
behalf but did not pay, or objected to decisions made about future direction?
LAW IN
PRACTICE
Chapter 4: Professional, Business, and Employment Matters 77
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
Do you know whether your group has formal status as an independent legal entity? Do you know
what rules apply to making group decisions? What would happen to property owned by your
group if it shut down? How would you f nd out this information?
If you and your group work perfectly, these questions may seem unimportant. But groups are
seldom perfect. A little early planning about formal group structure and conduct will minimise the
negative impact of such events on the group.
Meetings, meetings, meetings
Meetings are an all-pervasive fact of human service work life. Staff meetings,
interagency meetings, team meetings, community meetings, union meetings, board
meetings, annual general meetings, and increasingly, case conferences—the list is
endless. Workers act as members, chairs, secretaries, executive of cers, and so on.
Human service workers generally have a solid grounding in group work theory and
practice. They often know more than they realise about group development, dynamics,
and productivity, and perhaps do not make the link between this knowledge and the
procedural dimension of meetings. This group work knowledge and skill foundation,
if overlaid with conf dent use of meeting rules and procedures, can make human
service workers formidable meeting managers.
What are these meeting rules and procedures? They are based in history and
common law and they cover notif cations of meetings, content and structures of
agendas, quorums, debate, motion, voting and adjournment conduct, minute taking,
and the management of correspondence. Formal procedures may not always be
applied, but they can be useful aids to help structure and focus thinking in even
informal meetings. Essential in an arsenal of meeting management techniques,
familiarity with these procedures has the potential to considerably empower human
service workers. Workers familiar with these rules are less easily intimidated by others
who employ them, and can themselves use them to help control and direct meeting
behaviour. This may require an attitudinal shift on the part of many human service
workers who intuitively resist formal prescription in their interpersonal relationships.
Meeting rules do not need to be memorised; instead it is important to recognise
their potential and to ensure their easy accessibility. Many straightforward ‘how
to’ resources on meeting procedure are available online. There are also various
texts (Magner 2012) and accessible works such as the Guide for Meetings and
Organisations (Renton 2005b).
Refl ect
How does this help me cope with the dominant people on my board of management who don’t
listen to us human service workers, or understand about our work and our clients’ needs?
A little legal thinking may help you develop a response strategy to what are inevitably
perceived and described as complex interpersonal and power relationship diff culties. However,
try reframing this issue as partly a problem of law, where members have or have not complied
with applicable governance processes. Then consider what formal procedures you might then
adopt or use more tactically to contain, uphold, or sanction individual member behaviour and
expression.
78 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
Contract law
‘Contract’ is a familiar and increasingly important term in the human services.
Contracts are largely a matter of common law and private or civil law, overlaid by
legislation at state and federal level—for example, the Competition and Consumer
Act 2010 (Cth) and the Sale of Goods Acts in each state and territory. These Acts
reappear in Chapter 10. Contract law has a long history, frmly establishing the rights
of parties to make their own legal bargains, with their own idiosyncratic rights and
obligations. There are several essential components of a contract, regardless of its
subject matter.
Intention to create legal relations
There is no valid contract without an intention by the parties involved to create
legally binding arrangements (Paterson, Robertson & Duke 2012, p. 115; Willmott
et al. 2013, p. 120). Often this intention will be expressly written but sometimes the
intention is not declared. If a contractual dispute then occurs, the courts may have
to construe intention. They start from a presumption that business and commercial
dealings are intended to be legally binding and that family and social ones are not, but
these presumptions can be rebutted by the particular facts of a case, and the person
who asserts the contract exists must prove the parties intended to enter a legally
binding contract (Willmott et al. 2013, p. 123). It is more likely that legal intention
will be implied where one or both parties have signifcantly exposed or committed
themselves—for example, fnancially or through foregoing an opportunity.
Agreement
To create a valid contract, one party makes an offer that includes terms, and indicates
they are willing to be bound by them. Offers can be withdrawn at any time before
acceptance. Acceptance occurs when another party does or says something that
indicates they accept the terms offered and are also willing to be bound by them.
A legally binding contract is created at this point and both parties must fulfl their
obligations under it (Paterson, Robertson & Duke 2012, p. 51). Terms of a contract
can be explicit or implied. In many commercial contracts, some terms may be explicit
and also implied by legislation—for example, the Australian Consumer Law and the
Competition and Consumer Act 2010 (Cth). Other terms may have to be interpreted
by courts as implied, if a dispute arises. Courts will look at what the parties said and
did, in an effort to determine what they really intended.
Consideration
In general, each party to a contract must provide what is known as ‘consideration’,
and a familiar example is when one party provides a service and the other pays for
it. But money is not always involved and if it is, the amount paid does not have to
Chapter 4: Professional, Business, and Employment Matters 79
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
represent full value but rather be seen by the law as sufcient (in a special legal sense)
(Paterson, Robertson & Duke 2012, 98). People are allowed to make what others
might see as bad bargains. Consideration can be:
• ‘a promise to do something;
• a promise not to do something;
• an act or performance of some obligation.’ (Ciro, Goldwasser & Verma 2014,
p. 155).
The performance of a pre-existing duty, or of a duty imposed by law, is not
sufcient consideration.
Once parties to a contract fulfl their contractual obligations, then the contract
will be discharged. However, if any of the parties allege breach—that is, failure
to perform duties under the contract—the dispute may be taken to court by one
or other of them in a civil action. The court may require parties to perform their
contractual obligations specifcally, it may impose an injunction that requires parties
to stop doing something, and it may award damages, often fnancial.
Contracts, with very few exceptions, do not have to be written and if they are,
they do not have to be presented in any particular form. Exceptions include contracts
for the sale of land; unsolicited consumer agreements, for example, door-to-door and
telephone sales (Australian Consumer Law ss 78, 79); layby agreements (Australian
Consumer Law ss 96); contracts for the sale of second hand motor vehicles by
dealers (Second-hand Vehicle Dealers Act 1995 (SA) s 17). Written contracts may
be easier to enforce or prove, but oral ones are no less legally valid. In addition,
the existence or otherwise of a valid contract is something that only a court can
conclusively determine. Most contracts, of course, never go to court, because they
are performed, or in cases of disputes, the parties may give up on them and their legal
validity is never tested.
MYTHS AND REALITIES
Myth: Contract law has nothing to do with human service work.
Reality: Contract law is increasingly relevant in the human services, particularly as it
regulates relationships between workers and agencies, agencies and funding bodies,
and agencies or workers and clients. Professional codes of ethics are premised on many
of the same principles that underpin contract law, that is, equality, fairness and individual choice, bringing both rights and obligations to the professional association and those
workers who choose to become its members.
Contracts and the human services
The law of contract is extensive and technical. Human service workers are not
expected to have a detailed knowledge of it despite the specialist skills developed
by some of them—for example, in consumer protection or consumer credit work.
However, it is useful to be aware of the following general points.
80 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
Outsourcing and fnancing of services
The human service policy context is changing quickly and dramatically. Public services
are shrinking (for example, see Bach 2012) while the profles of proft, not for proft
and volunteer services are increasingly prominent. A market philosophy prevails
and the human service sector is becoming increasingly businesslike (Fitzgerald et al.
2014 p. 513). These developments have and continue to cause profound changes
in human services culture, and challenge the traditional missions of agencies and
workers. People who chose or choose to work in the human services through a
desire to help others must now attend equally closely to the business dimensions of
their roles.
Increasingly, human services are being delivered through what can often be a
complex array of contractual and investment models. Much funding comes from
the public sector, delivered via contracts such as the Victorian Common Funding
Agreement (State Government of Victoria, undated). Some government contracts
include terms which require contractors who wish to undertake work with that
government department to employ particularly vulnerable government clients. One
example is the Public Tenant Employment Program clause included in contracts
with the Ofce of Housing in Victoria, which requires contractors ‘to employ public
housing tenants when opportunities arise’ (Victoria State Government 2014). Private
investment is also entering the human services and Social Investment Bonds are
likely to be a feature of the future (for example, see Bolton and Savell 2010; Sinclair
et al. 2014). Newpin Social Beneft Bond in NSW claims to be the frst in Australia
(Social Venture Australia 2015) involving UnitingCare Burnside; a consortium of
the Benevolent Society, Westpac and the Commonwealth Bank (out-of-home care);
and Mission Australia and Social Ventures Australia (NSW Government, Premier &
Cabinet 2015). Contract drafting and contract management are growth areas in the
human services, and skill and experience in these areas lag. For service purchasers
and providers alike, traditional human service thinking must be supplemented by an
awareness of the legal requirements for, and implications of, contractual discharge
and non-performance. Purchasers may not be sufciently alert to the power potential
that flows from well-drafted and monitored contractual rights. They are increasingly
in a position to demand better service delivery through the exercise of these rights.
Providers may not be sufciently attentive to the legal obligations that underpin
their performance and to the desirability of becoming frmer and clearer in their
contextual negotiations.
Client circumstances
Many human service clients face life problems as well as service problems with
contractual implications. Provision of poor or inadequate human services to
clients may potentially be a breach of contract, and so liable to legal challenge—a
bargaining point to be kept in mind by their worker advocates. Wise workers are
alert to these possibilities and refer clients appropriately for legal advice. Contracts
Chapter 4: Professional, Business, and Employment Matters 81
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
made by clients under duress of, say, violence or economic threat may be voidable,
as may contracts formed through undue influence and where the terms have been
forced and are very unfair to one side. This is particularly pertinent in the aged-care
arena, where family members may pressure aged relatives into actions concerning
money or assets (Adams et al. 2014). Culturally and linguistically diverse elders may
be at even greater risk (Zannetino et al. 2015). Contracts made by individuals whose
mental capacity was in doubt at the time through illness or intoxication may also be
voidable. This is particularly relevant in areas of disability, substance abuse, mental
health, and aged care.
Contracts made by minors may not be enforceable, although there are a number
of qualifcations, and state and territory legislation are not uniform across Australia.
For instance, under the New South Wales Minors (Property and Contracts) Act 1970
in general a contract is binding if it benefts the minor and they understood that they
were making a legal arrangement. In South Australia, under the Minors Contracts
(Miscellaneous Provisions) Act 1979, contracts may be unenforceable unless ratifed
in writing by the minor after they reach 18 years.
A contract may be illegal at law, which means that a client may either be
released from it or lose rights they would have had under it (Khoury and Yamouni
2010). For example, illegal migrants and sex industry workers are often employed
in circumstances that breach immigration and criminal laws, and their dismissal
and injury compensation rights have traditionally been compromised accordingly
(Guthrie 2002). This may also remove access to any rights of protection under
discrimination legislation (Monaghan 2012). The Crimes Legislation Amendment
(Servitude, Slavery-like Conditions and People Trafcking) Act 2013 (Cth) ‘has
introduced a new range of “slavery-like offences” … [including] various crimes
relating to “forced labour” … the condition of a person who, because of the use of
coercion, threat or deception, does not reasonably feel free to stop working or leave
their workplace.’ (Stewart 2015, p. 83)
LAW IN
PRACTICE
A Chinese citizen entered Australia on a temporary six-month student visa allowing him
to work 20 hours per week. A month before his visa was due to expire, he commenced
working 40 hours a week, continuing to work and remain in Australia after his visa
expired. Almost two years later, he was severely injured when he severed the fingers of
his right hand while at work. The Full Court of the SA Supreme Court held that because
he was ‘an illegal migrant who was not working under a valid contract of service’, he was
not entitled to workers compensation payments.
The Workcover Corporation (San Remo Macaroni Co Pty Ltd) v Liang Da Ping [1994] SASC 4466
A woman was employed as a receptionist in a brothel carrying out routine office duties.
One morning as she was arriving for work, to open the premises for business, she
slipped on a concrete path at the rear of the building in which the brothel operated,
and broke her arm. The brothel owners argued that because their brothel business was
illegal, they should not be liable to the worker for workers compensation payments.
82 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
The Federal Court allowed her claim for compensation, despite the fact that brothel’s
operation was illegal.
Barac v Farnell [1994] FCA 1389
The owner of a licensed brothel was indicted on ten counts including two charges
(possessing and using) in relation to each of five women, Thai nationals, who had all
come to Australia to work as prostitutes. They had all previously worked in what was
described as the sex industry. Although there was no written contract, they became
‘contract workers’, with agreed conditions. Each woman came to Australia voluntarily, on
the understanding that, once they had paid off their ‘debt’, they could earn their own
money as prostitutes. The High Court upheld the conviction of the brothel owner for
slavery offences under the Commonwealth Criminal Code.
R v Tang [2008] HCA 39; (2008) 237 CLR 1. Another similar case is R v Kovacs [2008] QCA 417
(23 December 2008)
Relationships between workers or
agencies and clients
The word ‘contract’ is often used colloquially in the human services to signify an
agreement between workers or agencies and clients, even though legal intention may
not apply. Cordon and Preston-Shoot (1987) argue persuasively that legal thinking
can improve these agreements, whether or not a legally binding contract is intended.
They explain how legal processes of offer and acceptance can be used to promote full
discussion and exploration of issues between workers or agencies and clients about
intention and consideration before agreement is reached and recorded. In other
words, a ‘contractual attitude’ prompts comprehensive and mutual assessment before
a service plan is written, and when it is drafted, it should include all of the elements
of a good legal contract. That is, the terms and mutual responsibilities are expressly
detailed, along with time and review lines, and penalties for non-performance.
Cordon and Preston-Shoot (1987) claim that many service agreements do not
satisfy legal consideration requirements in that the worker offers nothing, or that the
client promises to do only what they are already obliged by law to do (for example,
comply with bond conditions). In addition, they stress the need to safeguard clients’
interests in the context of power differences between staff and clients in service
planning, and concerns about duress, undue influence, and mental capacity. In
relation to service planning with clients, they suggest (Cordon and Preston-Shoot
1987, pp. 37–8): a cooling-off period; involvement of an independent friend or
advocate; and inclusion of escape clauses.
It is likely that relationships between clients and agencies or workers will become
more formally legally based in future. For instance, the Children and Young Persons
(Care and Protection) Act 1998 (NSW) (ss 38A–38E) provides a legislative base
Chapter 4: Professional, Business, and Employment Matters 83
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
for a contract between parents and the Department of Community Services in cases
where there is concern about parenting and risk to children in a household.
LAW IN
PRACTICE
A psychologist treated a client from October 2004 until June 2006. In May/June 2006,
the client told the psychologist that she wanted to establish a healing centre, and
weeks later, the psychologist established a joint business with the client, including
incorporating a company, entering into lease contracts and entering into contracts with
other psychologists. By April 2007, the business relationship had become strained, the
client resigned from the company in June and ‘a legal and financial dispute then ensued’.
The client complained to the Psychology Board of Australian in November 2007. The
matter was referred to the Victorian Civil and Administrative Tribunal, who considered
that ‘by entering a dual relationship with [the client], [the psychologist’s] objectivity as a
psychologist was significantly compromised’ as it should have been obvious that the client
remained vulnerable, ‘and that the pending business relationship was not one of equals’.
The psychologist was reprimanded and her registration was suspended for three months.
Psychology Board of Australia v Love (Occupational and Business Regulation) [2010] VCAT 2040
(21 December 2010)
Relationships between employers and employees
Perhaps the most important contracts in the lives of human service workers are those
they have with their employers. These too are changing, and not necessarily for the
better, in the evolving policy environment (For example, see Bach 2012). These
employment contracts are now considered.
Fair Work Act 2009 (Cth)
Employment law governs employer and employee relations and entitlements. It is
a complex area in which state and federal legislative regimes are superimposed on
common law principles—for example, contract law. The Fair Work Act 2009 (Cth)
is the principal Act in Australia and applies to the vast majority of Commonwealth
public service and private sector employees across Australia. It does not apply to
workers employed by sole traders, partnerships, and other unincorporated entities
in Western Australia; state public sector or local government workers in NSW, Qld
or SA; or state public sector workers in Tasmania (Fair Work Commission 2014).
State industrial relations legislation still applies in those work areas not
overridden by the Commonwealth legislation, and to some work conditions and
matters (for example, long service leave and workers compensation). The Fair Work
Ombudsman has been established to provide information about the Fair Work
system to both employers and employees, investigate complaints, and enforce the
provisions of the Fair Work Act 2009 (Cth) (Fair Work Ombudsman, undated).
84 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
The Fair Work Commission is the national workplace relations tribunal. It is not
possible or necessary to canvass fully here this specialised area of law, and only a
few key features are highlighted. These concern basic duties, employee status, and
occupational health and safety.
Duties of employers and employees
The National Employment Standards (NES) included in Part 2–2 of the Fair Work
Act set out minimum conditions for all employees covered by the Fair Work Act
2009 (Cth). The NES include provisions about: maximum hours of work; the
right to request flexible working arrangements; various types of leave (including
parental (unpaid leave only), annual, personal carer’s, compassionate, community
service); work on public holidays; notice required for termination and redundancy
entitlements; and access to the Fair Work Information Statement. The NES do not
refer to paid parenting leave entitlements so parents wishing to access leave for this
reason must either bargain for this or rely on an applicable enterprise agreement.
Alternatively, primary or secondary carers may apply for ‘what is in effect a social
security payment, known as parental leave pay’ (Stewart 2015, p. 249) under the
Paid Parental Leave Act 2010 (Cth).
The Fair Work Act 2009 (Cth) also provides in Part 2–3 for Modern Awards
that replace previously existing state industrial awards. The Modern Awards may add
to the conditions required under the NES, including minimum wage rates (Stewart
2015, p. 117). Workers should ensure that they are aware of their rights under
the NES and any Modern Award that applies to their employment. If an employer
fails to comply with the NES or with a Modern Award, then complaints can be
made to and investigations carried out by the Fair Work Ombudsman, and if these
cannot be resolved, then the Fair Work Ombudsman can commence civil action,
with potential for employers to face civil penalties. The Fair Work Act 2009 (Cth)
also prohibits unfair dismissal from employment. Employees who qualify under the
Act may bring a claim against their employer for reinstatement or compensation for
unfair dismissal. Legal advice should be sought by workers promptly if they have
been dismissed as failure to act within the 21 day limitation period specifed in the
Act can be fatal to such a claim. The Act sets out a number of general protections (ss
334–78), including protection against discrimination (s 351) or sham contracting
arrangements (ss 357–9). Workers who have been bullied at work can apply to the
Fair Work Commission for an order to stop the bullying (ss 789FA–789FL). Again,
workers who are concerned that employee rights may have been infringed should
contact the Fair Work Ombudsman or seek specifc legal advice.
Employers as well as employees have also traditionally had fundamental rights
and duties underpinned by contract law. Terms set out in contracts of employment
are fundamental in validating or proscribing work practices, and as is evident in later
chapters, they are vital in questions of misconduct and liability. Employment contracts
may also incorporate reference to employer policies and procedures, codes of conduct,
operating manuals and in some cases, codes of ethics of professional bodies.
Chapter 4: Professional, Business, and Employment Matters 85
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
General duties of employers and employees have been established over time
under common law with an overlay of legislative requirements—for example, in
relation to occupational health and safety. Traditionally the employee is obliged to:
• comply and cooperate with lawful, safe, and reasonable commands
• exercise care and competence in carrying out duties
• provide trustworthy service and ‘to serve their employer ‘faithfully’ (Stewart
2015, p. 271)
• maintain employer confdentiality
• disclose information relevant to the employer’s interests
• account for money and property received through work (Stewart 2011).
The employer is obliged to:
• offer at least minimum conditions (now specifed in the Fair Work Act 2009
(Cth) and Modern Awards)
• take reasonable care to ensure worker safety (now covered by legislation—see
below) (Stewart 2015, pp. 329–31).
If a worker breaches employment obligations or agreements, possible employer
disciplinary responses range from reprimand through to dismissal, depending on
the nature and severity of the breach. Where lack of compliance impacts adversely
on the ability to meet contractual obligations with funding providers, employers
are likely to regard this very seriously indeed (see for example Samaras v Boystown
[2015] FWC 1762, where the employee was nevertheless successful in a claim for
unfair dismissal). If an employer breaches employment obligations, workers can
take a variety of actions, including the Fair Work Act processes set out above, or
complaints under discrimination legislation or, if they can fund them, breach of
contract lawsuits.
LAW IN
PRACTICE
In October 2005, a school psychologist pleaded guilty to fraud which occurred outside
the workplace, and was sentenced to a two-year supervision order. He notified his
employer, who commenced a review and in December 2005 he provided them with
written submissions as to why he should not dismissed. He returned to work and in
January 2006 he was appointed to a further 12-month contract. In March 2006, his
employment was terminated. ‘Whilst there was no evidence challenging the professional
competence’ of the worker, in light of his conviction, his employer could ‘legitimately
call into question the essential trust relationship between it’ and the worker, and was
justified in dismissing him.
Bowen Sebastian Davi Summerton v Department of Education and Training WA [2006]
WAIRComm 5268 (11 August 2006)
A probation and parole officer alleged that Corrective Services NSW [CSNSW] had
discriminated against her on the ground of disability because it failed to make reasonable
adjustments to her employment and workplace in breach of the Disability Discrimination
Act 1992 (Cth) (DDA). The worker argued that implicit in her contract of employment ‘was
a term that CSNSW act in good faith, reasonably, with proper regard to her interests, in a
86 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
manner which was not capricious, arbitrary or unreasonable; and that CSNSW breached
this term by failing to perform its obligations, under the DDA and its own polices’. In
upholding her claim, the Federal Circuit Court agreed that the following terms were
implicit in the contract of employment: ‘trust and confidence as between the parties,
safe work, good faith, the obligation to make reasonable adjustments and that CSNSW
did not act inconsistently with its own policies’.
Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827
(3 July 2015)
Employee or contractor status?
In a human service world increasingly characterised by privatisation and outsourcing,
the distinction between employee and contractor status sometimes blurs. But it is
a critical distinction relevant to matters such as whether the Fair Work Act 2009
(Cth) applies, tax, superannuation, attribution of liability (for example, when wrongs
have been committed), and attribution of responsibility (for example, in workers
compensation). Contractors generally carry their own insurance responsibilities and
liabilities, and these can be very heavy. Courts spend a great deal of time determining
disputes about employee or contractor status.
Whether or not someone is an employee or contractor is not dependent on what
they are called or how parties consider their status, but on how courts construe
the whole relationship between them and the putative employer. In deciding this
question, courts consider things such as ‘the degree and nature of control of control
exercised over the worker (or more especially the right to exercise such control); the
mode of remuneration; responsibility for the provision and maintenance of tools
or equipment; :the extent of the obligation to work for the organisation; and any
capacity for the worker to delegate work to others’ (Stewart 2015, p. 53) Other
indicia include whether or not wearing a uniform is required, whether taxation
is deducted, whether the worker is entitled to paid holidays or sick leave (Stewart
2015, p. 54).
The main message for workers and employers is the need for clarity about which
legislative regime applies to them, what is intended, and what protections, rights, and
obligations they each plan to and do bear.
Volunteers
Volunteers do not have employment contracts and have thus traditionally lacked
legal protective rights under workers compensation schemes or the vicarious liability
of the employer. Each of the Australian jurisdictions has made a number of quite
different legislative provisions for protecting volunteers, sometimes in relation to
civil liability and sometimes for workers compensation purposes (see for example
Commonwealth Volunteers Protection Act 2003 (Cth)). The defnition of ‘worker’
Chapter 4: Professional, Business, and Employment Matters 87
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
in the model Work Health and Safety Act 2011 (Cth) (s 7) includes volunteers.
It is important that agencies using volunteers have public liability insurance that
covers them for claims made by volunteers, despite or in the absence of the legislated
protections afforded the volunteers.
Safe work?
Safety law is particularly relevant in human service work where stressful, if not
dangerous activity is common. The model Work Health and Safety Act 2011 (Cth)
and Work Health and Safety Regulations 2011 (Cth) was adopted with ‘local
variations’ (Stewart 2015, p. 315) by the ACT, NSW, the NT and Queensland on
1 January 2012, and in South Australia and Tasmania a year later, but not by Victoria
(SafeWork Australia undated). Public consultation on the Work Health and Safety
Bill 2014 in Western Australia closed in January 2015 (Government of Western
Australia 2015). The model legislation imposes obligations not only on employers
(see ss 19–27, 29), but also on workers (s 28), who must take ‘reasonable care
for their own safety’, take care that they do not ‘adversely affect the health and
safety’ of others, comply with instructions, and cooperate with safety policies and
procedures. Similar duties are also imposed on other persons at the workplace
(s 29), which may include clients. This in turn is fleshed out by agencies’ rules,
policies, and procedures covering their own special circumstances. For instance,
these might cover the minimum number of staff specifed for a shift team in a
correctional facility; the lifting procedures to be used in an aged-care facility; the
personal safety mechanisms that apply to staff making home visits in a domestic
violence program; procedures for dealing with workplace stress; and the way to
manage verbal abuse at the front desk. It is unlikely that most workers will know
the details of this legislation, unless they sit on employee representative health
and safety committees, or union committees, or work with injured employees. But
all workers have a general legal duty to comply with safety instructions, and their
employers have a general duty to support and instruct them in safe work practices.
Whether or not these legal regimes are effective is a debate for other places, but it
is clear that much human service work involves demanding emotional labour and
stressors related to client behaviour (for example, see Dollard et al. 2003), and both
agencies and workers have a responsibility to ensure that workers and clients are
managed as safely and as supportively as possible.
In addition to work safety legislation, each Australian jurisdiction has legislation
governing workers compensation for work injury, as shown in Table 4.1 (Stewart
2015, pp. 325–6).
88 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
TABLE 4.1 WORKERS COMPENSATION LEGISLATION

Chapter 4: Professional, Business, and Employment Matters 89
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
Key points for practice
• Receptiveness to business, commercial, and management viewpoints is not
inconsistent with care for people; it is in fact intrinsic to effective practice in the
contemporary human services.
• Learning from business, commercial, and management perspectives can be
worthwhile. Receptive workers can develop more comprehensive strategies for use in
their own interests and those of their service delivery.
• In Australia, human service worker titles and practice modalities outside health
professions are not licensed by the state. Workers have considerable latitude in
how they describe and profle themselves. They cannot assume that the presence or
absence of a particular qualifcation will automatically exclude them from, or include
them in, consideration for employment.
• Workers join many types of professional and industrial bodies, and membership
confers both rights and obligations. Wise members are informed about these rules.
• Human service work activity is located in and conducted by bodies of various legal
forms. The legal shape of these bodies will have a major bearing on the liabilities
and responsibilities of those involved and workers are well advised to know what
these are.
• Meetings are both the mainstay and bane of much human service work. Meeting
conduct and procedure has a legal base, which can be very empowering if
understood better and used by human service workers.
• Contract law underpins a considerable amount of human service work activity and
all relationships between employers and employees. Wise workers are familiar with
the elements of a contract in law and the explicit and implied terms of their personal
employment contracts.
• It is important for workers and agencies to know whether they are covered by the
Fair Work Act 2009 (Cth) and a Modern Award, and to be aware of the NES, and
unfair dismissal provisions in the Fair Work Act 2009 (Cth).
• The status of a worker as an employee or a contractor is vital in the determination
of a range of liabilities and responsibilities. Prudent workers and service purchasers
seek clarity about their own status and cover risks accordingly.
• Workers should not assume that their safety is always the responsibility of someone
else, but should be aware of employee obligations under the model Work Health
and Safety law.
90 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
Some useful websites
Registration of practitioners
www.ahpra.gov.au
Health and human service workforce
www.comcare.gov.au
www.employment.gov.au
www.fairwork.gov.au
www.fwc.gov.au
www.safeworkaustralia.gov.au
States and territories
www.industrialrelations.nsw.gov.au
www.ir.qld.gov.au
www.rtwsa.com
www.safework.sa.gov.au
www.wairc.wa.gov.au/index.php/en
www.workcover.nsw.gov.au
www.worksafe.act.gov.au/health_safety
www.worksafe.nt.gov.au
www.worksafe.qld.gov.au
www.worksafe.tas.gov.au
Professional bodies
www.aasw.asn.au
www.acwa.org.au
www.ahpa.com.au
www.asorc.org.au
www.pacfa.org.au
www.psychology.org.au
Unions
www.actu.org.au www.asu.asn.au
www.ahmac.gov.au www.cshisc.com.au/index.php
Corporate issues
www.acoss.org.au
www.asic.gov.au/asic/asic.nsf
www.ato.gov.au
Employment and work safety
Commonwealth
Chapter 4: Professional, Business, and Employment Matters 91
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
References
Adams, V., Bagshaw, D., Wendt, S. &
Zannettino, L. (2014). ‘Financial
abuse of older people by a family
member: A difcult terrain for service
providers in Australia.’ Journal of Elder
Abuse & Neglect, 26(3): 270–90, doi:10.
1080/08946566.2013.824844
Allsop, J. and Saks, M. (2002). Regulating the
Health Professions. London, Sage.
Austin, R. and Ramsay, I. (2015). Ford’s
Principles of Company Law. 16th edn.
Australia, LexisNexis Butterworths.
Australian Association of Social Workers
(AASW) (2004). A Duty of Care: A Case
for Statutory Regulation of Social Work.
Canberra, author.
Australian Association of Social Workers
(AASW) (2010). ‘Code of Ethics.’
Retrieved 23 November 2014, from
www.aasw.asn.au/document/item/1201
Australian Association of Social Workers
(AASW) (2011). ‘Protecting the health
and wellbeing of Australians: A submission
to Health Ministers on the national
regulation of the social work profession.’
Retrieved 20 March 2012, from www.
aasw.asn.au/document/item/1817
Australian Association of Social Workers
(AASW) (2014). ‘AASW Submission to
the Review of the National Registration
and Accreditation Scheme for health
professions.’ Retrieved 11 July 2015, from
www.aasw.asn.au/document/item/6692
Australian Association of Social Workers
(AASW) (2015a). Registration
Campaign. Retrieved 15 July 2015, from
www.aasw.asn.au/social-policy-advocacy/
registration/national-registration-andaccreditation scheme
Australian Association of Social Workers
(AASW) (2015b). Ineligible for
membership. Retrieved 11 July 2015,
from www.aasw.asn.au/informationfor-the-community/ineligible-formembership-of-the-aasw
Australian Community Workers Association
(ACWA) (30 June 2013) ‘Code of
Ethics.’ Retrieved 23 November 2014,
from www.acwa.org.au/resources/codeof-ethics
Australian Health Ministers’ Advisory
Council. (2011). ‘Consultation
Paper: Options for regulation of
unregistered health practitioners.’
Retrieved 10 October 2011, from www.
ahmac.gov.au
Australian Psychological Society (APS)
(2007). ‘APS Code of Ethics.’ Retrieved
23 November 2014, from www.
psychology.org.au/Assets/Files/APS-Codeof-Ethics.pdf
Australian Society of Rehabilitation
Counsellors Inc (ASORC) (n.d.). ‘Code
of Ethics.’
Bach, S. (2012). ‘Shrinking the state
or the Big Society? Public service
employment relations in an age of
austerity.’ Industrial Relations Journal
43(5): 399–415.
Bolton E., and Savell, L. (2010). Towards
a new social economy: Blended value
creation through Social Impact Bonds.
London, UK: Social Finance UK.
Carlton, A.-L. (2008). ‘Occupational
regulation of health practitioners in
Australia.’ In R. Kennedy (ed.), Allied
Health Professionals and the Law. Sydney,
Federation, pp. 56–78.
Ciro, T., Goldwasser, V. & Verma, R. (2014).
Law and Business. 4th edn. Melbourne,
Oxford University Press.
Community Services and Health
Industry Skills Council (2008).
Identifying Pathways to Skill Growth
or Skill Recession. Sydney, Industry
Skills Council, Department of
Education, Employment and
Workplace Relations.
Cordingley, S. (2015). ‘Registering
community workers: A win for all.’
92 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
Community Care Review 29 July 2015.
Retrieved 23 October 2015, from
www.australianageingagenda.com.
au/2015/07/29/registering-communityworkers-a-win-for-all
Cordon, J. and Preston-Shoot, M. (1987).
Contracts in Social Work. Vermont, USA,
Gower Publishing Company.
Council of Australian Governments
(COAG) Health Council (2015a).
A National Code of Conduct for Health
Care Workers. Retrieved 11 July 2015,
from www.health.gov.au/internet/main/
publishing.nsf/Content/mr-yr15-deptdept005.htm
Council of Australian Governments
(COAG) Health Council (2015b). Final
Report—A National Code of Conduct
for Health Care Workers. Retrieved 11
July 2015, from www.coaghealthcouncil.
gov.au/Announcements/ArtMID/527/
ArticleID/54/Final-Report-A-NationalCode-of-Conduct-for-health-careworkers
Department of Education Employment and
Workplace Relations (2010). ‘Australian
jobs.’ Retrieved 24 January 2011,
from www.deewr.gov.au/Employment/
ResearchStatistics/ Pages/AustralianJobs.
aspx
Dollard, M., Dormann, C., Boyd, C.,
Winefeld, H. & Winefeld, A. (2003).
‘Unique aspects of stress in human
service work.’ Australian Psychologist
38(2): 84–91.
Fair Work Commission (2014). Creating
Fair Workplaces: The National Workplace
Relations System: Coverage. Retrieved
15 October 2015, from www.fwc.gov.
au/creating-fair-workplaces/the-nationalworkplace-relations-system/coverage
Fair Work Ombudsman (n.d.). ‘Our role.’
Retrieved 15 October 2015, from www.
fairwork.gov.au/about-us/our-role
Fishel, D. (2014). The Book of the
Board: Effective Governance for NonProft Organisations. 3rd edn. Sydney,
Federation Press.
Fitzgerald, S., Rainnie, A., Goods, C. &
Morris, L. (2014). ‘The restructuring of
WA human services and its implications
for the not-for-proft sector.’ Australian
Journal of Social Issues 49(4):
509–28.
Freckelton, I. (2009). ‘Foreword.’ In
R. Kennedy, Duty of Care in the Human
Services: Mishaps, Misdeeds and the Law.
Melbourne, Oxford University Press, pp.
xiii–vii.
Freckelton, I. (2010). ‘Regulation of health
practitioners: National reform in
Australia.’ Journal of Law and Medicine
18: 207–20.
Government of Western Australia (2015).
Work Health and Safety Bill 2014.
Retrieved 18 October 2015, from www.
commerce.wa.gov.au/worksafe/workhealth-and-safety-bill-2014
Guthrie, R. (2002). ‘Illegal
contracts: Impropriety, immigrants
and impairment in employment law.’
Alternative Law Journal 27(3):
116–20, 132.
Healy, K. (2004). ‘Social workers in the new
human services marketplace: Trends,
challenges and responses.’ Australian
Social Work 57(2): 103–14.
Healy, K. and Lonne, B. (2010). The
Social Work and Human Service
Workforce: Report from a National Study
of Education, Training and Workforce
Needs. Sydney, Australian Learning and
Teaching Council.
Karmel, T. and Blomberg, D. (2009).
Workforce Planning for the Community
Services and Health Industry. Adelaide,
NCVER.
Kennedy, R. (2009). Duty of Care in the
Human Services: Mishaps, Misdeeds
and the Law. Melbourne, Cambridge
University Press.
Kennedy, R. and Harvey, J. (2001).
‘Advertised jobs in the human
services: Advice to prospective
employees.’ Australian Journal of Career
Development 10(2): 28–31.
Chapter 4: Professional, Business, and Employment Matters 93
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
Khoury, D. and Yamouni, Y. (2010).
Understanding Contract Law. 8th edn.
Australia, Lexis Nexis.
Lipton, P., Herzberg, A. & Welsh, M. (2014)
Understanding Company Law. 17th edn.
Sydney, Lawbook Co.
Lonne, B. and Duke, J. (2009). ‘The
registration of social workers.’ In
M. Connolly and L. Harms (eds), Social
Work: Contexts and Practice. 2nd edn.
Melbourne, Oxford University Press,
pp. 378–92.
Macleod, A. and McSherry, B. (2007).
‘Regulating mental healthcare
practitioners: Towards a standardised
and workable framework.’ Psychiatry,
Psychology and Law 14(1): 45–55.
Magner, E. (2012). Joske’s Law and
Procedure at Meetings in Australia.
11th edn. Sydney, Thomson Reuters.
McDonald, C. (2006). Challenging
Social Work: The Context of Practice.
Houndmills and New York, Palgrave
Macmillan.
McLaughlin, K. (2010a). ‘The social
worker versus the General Social
Care Council: An analysis of care
standards and tribunal hearings and
decisions.’ British Journal of Social Work
40(1): 311–27.
McLaughlin, H. (2010b). ‘You’ve got to be a
saint to be a social worker.’ Social Work
Education 29(1): 80–95.
Meagher, G. (2007). ‘The challenge of
the care workforce: Recent trends and
emerging problems.’ Australian Journal
of Social Issues 42(2): 151–67.
Miles, C. and Dowler, W. (2011). A Guide
to Business Law. 19th edn. Sydney, Law
Book Co.
Monaghan, C. (2012). ‘Illegal contracts
and discrimination: Why an illegal
immigrant cannot bring a claim for race
discrimination.’ International Journal of
Discrimination and the Law 12(2): 109–
16, doi:10.1177/1358229112459404
NSW Government (2015). ‘Co-operatives
National Law.’ Retrieved 18 October
2015, from www.fairtrading.nsw.gov.au/
sites/ftw/Cooperatives_and_associations/
About_cooperatives/Cooperatives_
national_law.page
NSW Government Premier & Cabinet
(2015). ‘Social Impact Investment
Knowledge Hub.’ Retrieved 15 October
2015, from www.dpc.nsw.gov.au/
programs_and_services/social_impact_
investment/social_beneft_bonds
Paterson, J., Robertson, A. & Duke, A. (2012)
Principles of Contract Law. 3th edn.
Sydney, LawBook Co.
Psychotherapy and Counselling Federation
of Australia (PACFA) (n.d.). Strategic
Plan /’ Retrieved 17 February 2016, from
http://www.pacfa.org.au/about/strategicplan/ www.pacfa.org.au/aboutus/cid/13/
parent/0/t/aboutus/l/layout
Renton, N. (2005a). Guide for Meetings
and Organisations. Vol 1: Guide for
Voluntary Associations. 8th edn. Sydney,
Thompson.
Renton, N. (2005b). Guide for Meetings and
Organisations. Vol 2: Guide for Meetings.
8th edn. Sydney, Thompson.
Safe Work Australia (Undated). ‘Jurisdictional
progress on the model work health and
safety laws.’ Retrieved 18 October 2015,
from www.safeworkaustralia.gov.au/sites/
swa/model-whs-laws/pages/jurisdictionalprogress-whs-laws
Satchell, C., Walton, M., Kelly, P., Chiarella,
E., Pierce, S., Nagy, M., Bennett,
B. & Carney, T. (2015). ‘Approaches
to management of complaints and
notifcations about health practitioners
in Australia.’ Australian Health Review
(23 Nov 23). doi:10.1071/AH15050
Sinclair, S., McHugh, N., Huckfeld, L., Roy,
M. & Donaldson, C. (2014). ‘Social
Impact Bonds: shifting the boundaries of
citizenship.’ In K. Farnsworth, Z. Irving.
& M. Fenger (eds), Social Policy Review
26: Analysis and Debate in Social Policy.
Bristol, Policy Press, 2014.
Social Ventures Australia (2015). ‘Newpin
Social Beneft Bond Annual Investor
94 PART 2 Legal Obligations, Rights, and Regulation of Human Service Workers
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.
Report 30 June 2015’. Retrieved 15
October 2015, from www.dpc.nsw.gov.
au/__data/assets/pdf_fle/0009/173547/
Newpin_Investor_Report_2015.pdf
State Government of Victoria (n.d.).
‘Victorian Common Funding Agreement’
Retrieved 16 February 2016, from
www.dhs.vic.gov.au/for-business-andcommunity/not-for-proft-organisations/
common-funding-agreement#contentheading-0
Stewart, A. (2011). Stewart’s Guide to
Employment Law. Revised edn. Sydney,
Federation Press.
Stewart, A. (2015). Stewart’s Guide to
Employment Law. 5th edn. Sydney,
Federation Press.
Victoria State Government (2014).
‘Public tenant employment service
for contractors.’ Retrieved 18
October 2015, from www.dhs.vic.
gov.au/for-business-and-community/
building-and-construction-industry/
contractors-and-consultants/publictenant-employment-service-forcontractors
Willmott, L., Christensen, S., Butler, D. &
Dixon, B. (2013). Contract Law. 4th edn.
Melbourne, Oxford University Press.
Zannettino, L., Bagshaw, D., Wendt,
S. & Adams, V. (2015). ‘The role
of emotional vulnerability and
abuse in the fnancial exploitation
of older people from culturally and
linguistically diverse communities
in Australia.’ Journal of Elder
Abuse & Neglect, 27(1): 74–89,
doi:10.1080/08946566.2014.976895.
Chapter 4: Professional, Business, and Employment Matters 95
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
Created from ackedu on 2020-06-05 19:43:47.
Copyright © 2012. Oxford University Press. All rights reserved.