For anyone who might be looking for evidence of the effectiveness of market-driven initiatives in tackling labour exploitation, seven features of the Fels’ Panel inquiry into wage fairness within the Australian 7-Eleven franchise are worth noting. Continue reading
Month: March 2016
Tackling Labour Market Exploitation: Are industry and regulatory codes of conduct sufficient?
Of course not! It would be naive as to suggest that they are. Nevertheless, they are vital to the success of a comprehensive strategy in tackling labour market exploitation. Three characteristics of labour market exploitation suggest reasons why that is so. Continue reading
“What lessons can QLD take from how labour hire companies are regulated elsewhere?”
One really has to question the comparative methodology of yet another a publicly funded “labour hire inquiry”, which seems impliedly to justify a pro-licence position before anyone has given too much consideration to the history of regulation that has led to licence schemes in Australia and New Zealand being abandoned as anti-competitive arrangements that serve little useful purpose.
If important lessons are to be learned, they will need be taken from comparative jurisdictions – i.e. jurisdictions, that like Australia, have lightly regulated labour markets and liberal markets for goods and services. So it might be a good idea to take lessons from jurisdictions closer to home.
Well, here are a few lessons: Continue reading
Standing Offer or Overarching Agreement? Is it time to review your terms of business?
How long has it been since you last had your terms of business reviewed? If it’s been a while, it might be worth taking note of some recent developments in the Australian Consumer Law and having them looked again. That’s because they might be structured in a way that is more likely to attract existing statutory guarantees under the ACL and the unfair terms in small business standard form contracts provisions that come into effect on 12 November 2016).
Waddles like a duck, quacks like a duck; but occasionally honks!
Not everything that goes under the label, “labour hire” these days is labour hire. And that can be a problem – especially when an inability to nuance between different categories of employment services results in all being tarred with the same brush, or when terms of business misalign with the agreements for the supply of employment services that the parties have actually made.
“We, You, Us, Our, Your”. Who, or is it whom?
I hope it’s been a long time since anyone used the old fashioned, “party-of-the-first-part; party-of-the-second-part” drafting style. That was a product of the days when lawyers were paid, not by the hour (or even six minute increments); but by the word – and the more words, the better!
A move towards using plain English in the 1970s began to change all that. A fashion for using conversational terms like, “we”, “you”, “us”, “our” and “your” seemed to develop at about the same time as disco music, flares, and cork soled shoes. But unlike clothing fashions of the 1970s, it has not left us.
I don’t want to be a grammar snob; but what I am wondering is whether this conversational approach to drafting agreements is always helpful and whether it reflects what we really want from the agreements that we make.
At a technical level it is sometimes difficult to know who is talking and who is involved. Take the following example from a contract between two parties for the supply of commercial services:
We will deal fairly and act with integrity.
To whom does the “we” refer? Is it both parties or just the supplier, or whoever is speaking in the first person? Perhaps, “the parties” really would be better here, if the obligation is intended to be reciprocal.
You will probably be able to find lots of examples like that – probably harmless enough for the most part; though quite capable of supporting Supreme Court proceedings for interpretation of the document.
But it is a philosophical aspect of the conversational drafting style that is really prompting me to write this note and I want to state it in the form of a question:
What does the first/second person (we/you) style imply about where power resides in the relationship; and is it important?
I think it might be, and probably a neuro-linguist would be in a better position to comment on this, but it seems to me that the we/you drafting style betrays a sort of egoism that is not always conducive to the recording of co-operative or collaborative relationships. It may tend to dehumanise or objectify the parties, suppress empathy and subordinate or dis-empower one party into a position of passivity that is unhealthy and unproductive.
In a we/you document, someone is always talking; and someone is always listening, passively. Someone is acting and someone is acted upon. One person is boss and the other person is … well you’d hope the other person is not you!
As I see it, this is going to become important as we try to charter the new types of work and commercial arrangements that are strongly focussed on constructing productive and co-operative relationships.
So I want to come out in support of using empowering language and giving the parties a name. After all, it is an important part of who the parties are and how they perceive themselves.
Acknowledging your customer’s or work seeker’s name and using it might just be a step towards building more empathetic and constructive business and work relationships.
Andrew C. Woood
5 Reasons why an Employment Services Industry Code is important right now
With all the talk about labour hire licensing, registration schemes and restrictive regulation of the employment services industry, it was gratifying to hear that the Employment Services Industry Code (“#ESICode“) has come a long way from the document that was first prepared in January 2015 – so much so that some commentators are now saying that the ESI Code is the most mature and coherent element of a national approach to tackling exploitation that has yet been offered anywhere.
Unlike the licensing restrictions and tougher penalties that are being proposed, the ESI Code fills in gaps in the level of professional and consumer knowledge about acceptable standards of service and conduct in the employment services market by establishing principles and stating positive outcomes that should be achieved if the principles are being observed by users and suppliers of employment services.
In doing so, the ESI Code helps to ensure that the employment services market is –
- more engaged in social dialogue about the risks and harm of exploitation and the promotion of acceptable business and social standards;
- more alert and better able to identify signs of exploitation and risks of potential exploitation;
- better able to educate and protect customers and work seekers against the risk of exploitation;
- more confident to resist and report conduct that may result in labour market distortion and exploitation; and
- more able to make a valuable contribution to the proper functioning of the labour market with which it interacts.
That is not the domain of restrictive licensing schemes or professional education programs that rarely reach much past their already compliant participants. What is needed is something that is more connected to the market and its participants; and at the moment, it would be hard to remain unconvinced that the ESI Code does not provide a more reliable and sustainable basis for industry improvement and protection against exploitation than the alternatives on offer.
Andrew C. Wood
Work Contracts, Four Walls and Robert Frost; or how law is being disrupted by the #FutureofWork
Something there is that doesn’t love a wall,
That wants it down…
(“Mending Wall” by Robert Frost, 1914)
[Reproduced from an article I published in The RCSA Journal, December 2015]
I’ve been intrigued by the conversation about the future of work and the way in which #Digital; #Mobile; #Social and #Just_About_Anything_Else_With_A_# have been #Disrupting the workplace. It’s been a hashtag fest. And that’s been a good thing.
Although RCSA conferences over the past few years have been laying the groundwork, I was provoked most recently to think about this again after reading a couple of blog articles by Jeremy Scrivens[1].
The first one that caught my attention was titled, Future of Work is The Restoration of Authentic Community at Scale[2]; the second was The Future of Work is Business as a Community of Purpose and Belonging[3]. These articles seemed to be making some important points about the How, the What, the Why and the Who of the future of work[4]. Well, I retweeted them both, of course! And then I asked myself, why are we talking about this as though it’s always coming; but never quite here?
Surely, if these disruptive influences can already be identified in some work settings, this Future of Work, this re-scripting of the fundamental narrative about Work and the Firm is already happening. So, what are we going to do about it? Because at some point we have to do something – beyond preparing (or borrowing from) another prophetic keynote speech! At some point, we need to assess what is happening – not just to the workplace; but to the foundations of what believe, or think we believe, about Work and the Firm. And then we need to adjust for it in ways that help to realize and release this positive and productive force that is the #FutureofWork.
Now, as a lawyer, it’s the adjusting that I find to be the most fascinating and challenging aspect in all this, because it makes us first take stock of what we’ve already got – a legacy of three centuries of enclosure that have shaped our thinking about what is normal for work relationships. Think about it. When we are setting up work agreements, we are often thinking in terms of locking in, tying up, tying down, and making water-tight a set of rights and obligations that are capable of judicial enforcement. Nowhere is this more apparent than in the so-called Four Walls provisions that appear in many of the contracts that we use on a daily basis. You know them as the provisions that say something like:
This agreement contains everything that we have agreed; and we have not agreed anything that is not in this agreement; and we will not agree anything that is not in this agreement unless we agree it in writing and put it in this agreement.
Everything that we have said in the past is of no account; and anything that we may say in the future is of no account…
Authentic community? Community of purpose and belonging? It seems that we have accepted the proprietorization (Spellcheck tells me that is not a word, so I had better make it #Proprietorization) of work relationships; and, in the process, we have lost sight of the connection of work to community – at least to the extent that the authenticity of our work relationships is now strained and overdue for re-evaluation.
And that re-evaluation is what I am having to do right now as I set to work on designing new ways to charter more open and permeable work relationships. It is a challenging and confronting exercise. I am having to find fresh language to script new narratives of work and of the firm. I am needing to think not so much in terms of ownership (possession, exclusion; fencing out) as in terms of stewardship (care, inclusion, fencing in). I am needing to think not so much in terms of obligation as in terms of co-operation. And I am having to find ways to charter co-operative relationships that are sufficiently elastic to accommodate disruption and change and yet firm enough to support productive engagements. Others of you, who work on contracts, are no doubt similarly engaged. It will take all our skill – and perhaps skills that we do not yet have – to get it right. And that is exciting.
OK, so perhaps, “Spring is the mischief in me” after all; and I could say, “Elves”. But it’s not elves exactly and I’d rather you said it for yourselves… with or without the #hashtag!
Andrew C. Wood
[1] Work Futurist & Social Business Culture Catalyst - Director The Emotional Economy At Work
[2] https://www.linkedin.com/pulse/future-work-restoration-authentic-community-scale-jeremy-scrivens
[3] http://www.kinshipenterprise.com/_blog/Blog/post/Business-Community-Purpose-Belonging/#.Vilx8PkrKUl
[4] https://www.linkedin.com/pulse/why-companies-struggling-engage-workforce-future-digital-scrivens
ESI Code
A re-working of the Employment Services Industry Code, following extensive consultation, that adopts a Principles and Outcomes based approach.
What are the Principles?
- Equal Opportunity & Diversity;
- Service;
- Integrity & Fair Dealing;
- Co-operation; and
- Assurance.
Tougher penalties and crackdowns – superficial, short term “solutions” to labour market exploitation.
When things go wrong within a high consequence[1] industry such as the employment services industry, a sort of “moral panic” can sometimes set in that sees interest groups demanding tougher penalties and crackdowns. Whilst penalty increases and crackdowns meet a political need to “get tough” on offenders, if one scratches beneath the surface, there is often little substance to them.
Penalties and sentencing measures serve several functions including:
- retribution – assuaging public outrage and demands for “justice”;
- general deterrence – deterring others from committing similar offences;
- rehabilitation – correcting and improving the offender’s conduct [2]
At best, tougher penalties and crackdowns merely serve a short term interest in retribution – and then only if they are sufficiently well-directed to catch the principal offenders and those who benefit from the offence.
It is widely accepted (and you can understand it from a risk management perspective) that the effectiveness of general deterrence depends upon the likelihood of being caught and the consequences of being caught. Tougher penalties only address the consequences of being caught. Unless there is a commensurate likelihood of being caught, brought about by focussed intent and increased resources in support of enforcement policy, sustained over time, the effectiveness of penalties and crackdowns is rarely as great as one might hope or predict.
Penalties and crackdowns also fail to address rehabilitation, which in the context of employment services industry regulation, can be understood in terms of improvement and correction of business practice concerning the supply and use of labour and employment services.
So whilst there may be many interests clamouring at the moment for tougher penalties and crackdowns, what is really needed is change and industry improvement at a more profound level – and to be effective, it will have to be industry led rather than imposed by courts and tribunals in the form of penalties and sentencing measures.
[1] “High consequence” in terms of the adverse human rights impacts that employment services agencies’ operations may have on work seekers – masking and sometimes legitimising exploitation.
[2] Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 (14 May 2007) at [93] cited in Fair Work Ombudsman v Quincolli Pty Ltd & Anor (No.2) [2013] FMCA 17 (18 February 2013) at [60].
Recruiters' Casebook 