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.
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,  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, - (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.
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’.