A NSW Ambulance paramedic has written a book related to health care. They have been told that:
… if I want to use the term Paramedic I have to put in an application for secondary employment. I can’t see how this applies and if I put it in and they say no I am screwed. They could not tell me the legal footing; any advice would be greatly appreciated.
Other employment
The requirement to obtain approval for secondary employment is set out in the Health Services Regulation 2013 (NSW). Regulation 21(1) says:
A member of staff must not, except with the written permission of the chief executive, engage in any employment (whether or not for remuneration) otherwise than in connection with his or her employment as a member of staff of the Ambulance Service.
What is meant by ‘employment’ is not defined, but assistance can be found elsewhere. Fair Work Australia give guidance on what it is to be an employee, different types of employment and minimum employment standards. They say (at https://www.fairwork.gov.au/employee-entitlements):
There are rules about what employees get at work, such as what hours they work and how often they have to have a break. These rules can be set out in different places such as an award, registered agreement or an employment contract.
An employee’s minimum entitlements are set out in the National Employment Standards (NES) and awards. A registered agreement or employment contract can provide for other entitlements but they can’t be less than what’s in the NES or the award that applies.it is defined elsewhere.
The classic tests to determine whether someone is an employee were identified by McHugh J in Hollis v Vabu (2001) 207 CLR 21, [68] as:
(1) the employer’s power of selection of his or her worker, (2) the payment of wages or other remuneration, (3) the employer’s right to control the method of doing the work, and (4) the employer’s right of suspension or dismissal
(See also Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161, [64]-[69] (Kirby J)).
It’s hard to see, therefore, how a person could ‘engage in any employment’ that is ‘not for remuneration’ ie getting paid is a critical indication that a person is engaged in ‘employment’. If a person is not getting paid they may be a volunteer, or engaged in a hobby, but they are not ‘employed’ and therefore not engaged ‘in any employment’. It can’t be assumed that a paramedic needs approval if they want to volunteer at the school canteen or at their child’s soccer club during their days off, or if they themselves want to play sport or volunteer for a community organisation or even work around the house.
One can imagine that having a contract with a publisher could be an employment contract if the author was being paid to write (not just on completion of the manuscript) and the employer was determining the hours of work, the place of work etc. Simply writing a book and then looking for a publisher or acting as a self-publisher is not, however, the same as being an employee or ‘engaged in employment’. Even having a contract to write a book is not the same as being engaged in employment. If I agree to provide a manuscript by a particular date and in return the publisher agrees to pay a fixed fee that would not make me an employee. To be paid for writing a book is also not the same as being employed. One might ‘sell’ the rights to the book, but selling what you own is not the same as being employed. And one might receive ongoing royalties but again that is not employment, the payment is not the form of a salary or wage and the other indicia of employment discussed above and in the cases, are not met.
Even self-employment is a problem in this context. A paramedic may also be a licensed plumber. If he or she is helping a friend fix a tap, or even fixing a tap at home, they are not engaged in ‘employment’. One might describe them as acting as a ‘self-employee’ if they are advertising their services and providing plumbing services for a fee but again a crucial issue is that they are getting ‘remuneration’. Further the point of finding out whether a person is an employee, or a self-employed independent contractor, is because a person has a different relationship between an employee and an independent contractor (see again Hollis v Vabu (2001) 207 CLR 21; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 and also Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16). The very point is that a person working for themselves is not engaged in ‘employment’. If I was drafting the regulation, and wanted to cover ‘self-employment’ I would have said something like
A member of staff must not, except with the written permission of the chief executive, engage in any employment or practice any trade or profession for fee or reward …
But that’s not what it says.
It follows that exactly what r 21(1) is meant to apply to is unclear given that it is a legal rule, using a legal concept (‘employment’) but excludes one of the essential features of employment, ie remuneration.
The use of the term ‘paramedic’
Assuming that a person is a paramedic, and they have written a book, can they put ‘paramedic’ on the cover notes? In New South Wales it is now an offence for anyone other than a paramedic to use that title – Health Services Act 1997 (NSW) s 67ZDA(1). Relevantly, a paramedic is now (Health Services Act 1997 (NSW) s 67ZDA(2) and Health Services Regulation 2013 (NSW) r 19A):
(a) a person who holds the following qualifications
(a) a Bachelor of Paramedicine or a Graduate Diploma of Paramedicine conferred by a university,
(b) a nationally-recognised Diploma of Paramedicine issued by a registered training organisation.
(b) … or
(c) a member of staff of the Ambulance Service of NSW, or other person, who is authorised by the Health Secretary to hold himself or herself out to be a paramedic.
If my correspondent holds a relevant degree or diploma of course they can call themselves a paramedic, because they are, in fact and in law, a ‘paramedic’. If they don’t hold a relevant degree or diploma, so their only right to use the title ‘paramedic’ comes because they are a ‘member of staff of the Ambulance Service of NSW … authorised by the Health Secretary to hold himself or herself out to be a paramedic’ then the Health Secretary could put limits on that authority and could direct that they cannot use the title in the blurb on their book.
Conclusion
Whether my correspondent is a or is not a ‘paramedic’ depends entirely on whether or not they meet the criteria set out in the Health Services Act and its regulations. If they hold the prescribed qualifications, they are a paramedic and don’t need anyone’s permission to use that title on their book.
If their right to use the title ‘paramedic’ comes from their position as ‘member of staff of the Ambulance Service of NSW … authorised by the Health Secretary to hold himself or herself out to be a paramedic’ then the Health Secretary could impose some limits such as, they may only use their title in relation to their employment with the Ambulance Service of NSW. In the absence of such condition, they could use the title on their book but it may be problematic if, after the book is published, their authority is withdrawn or they leave the employment of the Ambulance Service.
I can’t see how the ‘secondary employment’ provisions are relevant. Without knowing the arrangements between my correspondent and any publisher, I can’t see how writing a book is, in the absence of a specific employment contract, to be engaged in ‘any employment’.
Australian Emergency Law 
Michael,
When writing a book and on the sleeve or back cover it is acceptable to state the author’s main occupation, Ie: My soon to be released and possibly best seller ” How to put a Band-Aid on a shar pei by Geoff Birkbeck” with a bio of – Geoff is a shar pei owner and a Community Safety Officer etc. [I did have to look up ‘shar pei’ – it’s a Chinese “breed of dog known for its distinctive features of deep wrinkles and a blue-black tongue” – Eburn].
However, if I state the council I work for I need permission under the Local Government Act as it is a disclosure. If I have a business in placing band aids on shar pei I am not permitted to conduct this service with in the Local Government Authority District where I am employed.
The writers argument of being paid a fixed fee instead of an hourly rate per say is a moot point. It is the same as a plumber repairing a leaking tap. You pay for the service or contracted agreement. If it too him 10 mins or 60 its still the same rate. Pay for service such as a contract is still income under the ATO, ergo writing a book or contributing to a magazine for payment is still secondary employment.
Many security guards are lowly paid and as its a casual staffing industry work for different employers at the same time. This by some companies is considered a commercial breach of confidentially. Serco who have the on shore contract for I migration detention do not allow secondary employment with any other security company.
Secondary employment still requires approval from many employers even if the secondary employment is of a “Foxtel nature – pay for view” or hourly, daily, weekly or any other form of taxable payment.
The limits on secondary employment can come from a number of sources. Employment involves a contract between an employer and an employee. That contract could include limitations on seeking secondary employment but there are limits, one can’t impose an unfair or unreasonable restraint of trade, that is you can stop people doing things to earn a living without it being related to the needs of the employer. The example of Serco may be a clause in the employment contract (or it may be part of the stringent Border Protection legislation) but wherever it is, one would have to see the terms to be able to understand the restrictions that are being imposed.
There is a general duty on all employees not to use their employer’s secrets, practices etc to benefit the competition so secondary employment that gives rise to a conflict of interests between the two employers is problematic and could be a breach of the employment contract. Paramedics have certainly come to grief for using training manuals and resources provided by their employer to set up their own private service – see Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548). But that was not the issue here.
Certainly an employer can object to an employing identifying themselves as an employee for private purposes. On your example you can say, on your book cover, you are a community safety officer but not identify the council for which you work. Paramedicine is largely unregulated, but in NSW who is a paramedic is defined and if my correspondent holds the prescribed qualifications then they are a paramedic and can list that on their book – they don’t need anyone’s permission any more than I need someone’s permission to say I’m a Legal Practitioner. If, however, they wanted to write ‘NSW Ambulance Paramedic’ that would be a different matter, as that is linking NSW Ambulance to the book. I’ve noted that the book was related to health care so the author and publisher may think that’s a commercial advantage, but NSW Ambulance may not want to be seen to be endorsing the book. The question was could they use the title paramedic and the answer is ‘yes’ but ‘paramedic’ and ‘NSW Ambulance Paramedic’ are not the same thing.
It is for that reason that I did say that if the only reason they could use the title ‘paramedic’ was because they are ‘member of staff of the Ambulance Service of NSW… authorised by the Health Secretary to hold himself or herself out to be a paramedic’ the NSW Ambulance could limit the use of the title and perhaps say ‘it can only be used in relation to employment with NSW Ambulance’ in which case the author couldn’t list their profession as ‘paramedic’.
I don’t agree that
If I engage a plumber I am not ‘employing’ them. Employment is a particular relationship distinguished from independent contractors. If they are my employee I pay them a wage, deduct tax and superannuation, determine when and where they work etc. If I pay an agreed rate and they provide the tools of trade, are responsible for their own tax, workers compensation, superannuation, determine when and where they work and determine how to do the work then they are an independent contractor. If the person is a sole trader, that is working for themselves, they have not set up a company or other legal entity to manage their work, then there is no ‘employment’ in a legal sense though I can imagine arguments to allow a court to extend ‘employment’ to ‘self-employment’ if a person is operating a business with advertising etc and certainly if they are operating business accounts to keep business money separate from personal money and paying themselves and /or an employee wages, even if there is no separate legal entity. I won’t however explore that further here.
There may be employment in a colloquial sense, for example the ‘Free Dictionary’ defines employment (http://www.thefreedictionary.com/employment) inter alia, as
In that sense you could ask someone ‘what did you do on the weekend?’ and they might say ‘I was fully employed around the house’. But if that was the use of ‘employment’ that was intended in the Health Services Regulation, you’d need permission to get out of bed and that can’t be correct.
So employment in the Health Services Regulation means something, but what is unclear. It must clearly apply to the traditional employment contract so if you are going to work for someone else, for wage or salary, and be subject to their direction and control and receive a wage or salary then that’s employment and a paramedic needs to get permission from NSW Ambulance to take on that ‘other employment’.
Volunteering for the RFS, or St John or the school canteen is not employment. If it was NSW Ambulance would be claiming control over their paramedics 24 hours a day. One can see why they may want to have some control over the RFS or St John volunteering because they want to ensure the paramedic is not using NSW Ambulance equipment or perhaps claiming to rely on their NSW Ambulance authority to carry and use drugs when that is inappropriate, but even if that is the case, the Health Services Regulations don’t extend that far.
I would read the Health Services Regulations to mean ‘employment’ as defined in law – you are not allowed to be an employee of both NSW Ambulance and someone else at the same time without telling NSW Ambulance – and writing a book or conducting your own plumbing business is not ‘employment’. The problem is the addition of the words “whether or not for remuneration” because you can’t have employment that is not for remuneration. If you’re not being paid, you’re not being employed.
A traditional employment relationship is caught, but if all the words of the regulation are to be given meaning there may be something more. It may be that if it was tested a court would say to ambulance ‘if you can show an employment relationship without remuneration that will be caught’ but there simply is no such thing; or the court may decide that ‘employment … without remuneration’ does mean something, but I can’t imagine what.
Compare the section to the Police Act 1990 (NSW) s 73 which says ‘A non-executive police officer must not engage in any paid employment outside the duties of his or her position without the approval of the Commissioner.’ That’s much clearer, you have to be paid and in ‘employment’ (and perhaps ‘self-employment’ on a commercial basis, see above).