WorkAccord’s Wednesday Webinars are kicking off in May with two great free events for recruiters to celebrate Privacy Awareness Week (12 to 18 May) and National Volunteer Week (20 to 26 May).
I hope to see you there.
Andrew C. Wood
Privacy Awareness Week is just around the corner and, to kick off its Wednesday Webinar series, WorkAccord is joining in on Wednesday, 15 May with a free webinar: Privacy Refresher & Update for Recruiters.
I hope you can join me as we refresh our privacy knowledge and update with a look at:
There’ll be time for questions… and hopefully some answers!
You can register for this free webinar via our Livestorm registration page.
Andrew C. Wood
By request, we’ve shifted the date for the third advanced workshop in WorkAccord’s Vic. Labour Hire Licensing; “Up-Close & Personal” series. The “Prepare your Application” workshop has been moved to 3 May 2019 to allow an opportunity to review and digest the Authority’s guidance material, due to be released by 29 April, when the scheme commences.
We’ve designed this series especially for participants who already have some knowledge of the scheme but need to go deeper to explore its implications for their business or advisory services.
You’ll get to examine:
Learning objectives
THIS IS A FANTASTIC OPPORTUNITY TO REVIEW AND DRAW ON THE GUIDELINES WHICH THE VICTORIAN LABOUR HIRE AUTHORITY SAYS IT WILL HAVE IN PLACE BY THE SCHEME COMMENCEMENT ON 29/4/19.
Come along as we will answer some of the hard questions that may have been causing some concern.
Class sizes will be strictly limited to ensure a high level of interaction and quality learning.
To find out more or to reserve your place check out the Eventbrite registration page here. Or copy this link into your browser https://www.eventbrite.com.au/e/vic-labour-hire-licensing-up-close-personal-prepare-your-application-tickets-59754284674
Looking forward to seeing you there.
Andrew C Wood.
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Victoria’s Labour Hire Licensing scheme may cause some headaches as it tries to extend its coverage to contractor management service providers. That’s because there’s likely to be uncertainty about what a contractor management service provider actually does.
Section 8(2) of the Act provides:
(2) A person (a provider ) provides labour hire services if—
(a) in the course of conducting a business of providing contractor management services, the provider recruits one or more individuals for, or places one or more individuals with another person (a host ) to perform work in and as part of a business or undertaking of the host; and
(b) the individuals are workers for the provider, within the meaning of section 9(2)(b).
The explanatory memorandum, which accompanied the legislation in its passage through Victorian Parliament somewhat unhelpfully explained:
“Contractor management services” is not defined in the Act, but has its ordinary meaning, which covers services whereby a business recruits independent contractors on behalf of a third party (host) and, following engagement of the independent contractors by the host, continues to manage the performance of the contract between the independent contractors and the host. This might include, for example, providing administration and payroll functions, supervision functions or performance management functions in relation to the independent contractor.
Section 9(2)(b) attempts to define who is a worker for a contractor management services provider. It says:
An individual is a worker, for a provider, if an arrangement is in force between the individual and the provider under which the provider—
(a) … or
(b) recruits the individual as an independent contractor for one or more other persons to perform work, and manages the contract performance by the independent contractor.
But what if the contractor appoints the business to manage the performance of the contract (or parts of it) – i.e. the business is a contractor appointed CMC (it happens)? Does it make a difference?
And what if the contractor is not an individual (as required by s. 8(2)(a) and 9(2)(b)), but is an incorporated worker instead?
What if the provider recruits the incorporated entity and leaves it to the incorporated entity to recruit or provide the individual – perhaps under the reg.4(1)(c) exception?
Does the incorporated worker exception still apply if the contractor is supplied as a cleaner in a commercial premises? (see reg. 5(a)).
What other outsourced functions, apart from administration and payroll functions, supervision functions and performance management functions, amount to contractor management services according to the “ordinary meaning” – whatever that is? Would the provision of safety inductions be enough? Would onboarding assistance, or “performance monitoring” for the purpose of managing a candidate replacement guarantee be enough?
And does managing, say, payroll really amount to managing the contract performance by the independent contractor? Isn’t payment an obligation that falls on the “host”? Although the explanatory memorandum spoke about managing both contractor and host performance, the Act doesn’t. It speaks only of managing contractor performance.
These might be the sorts of questions that the Authority would be keen to dismiss as questions “asked by clever lawyers” – as though that were a bad thing. But thank goodness there are some who are asking them and attempting to answer them… because, at some point, they’re going to be contested as matters of black letter law and not merely as a “vibe” picked up from a current affairs programme, a campaign manifesto, or a regulator’s website.
And before we ever get to that point, there’ll be plenty of providers, hosts, and contractors wanting to know where they stand.
Andrew C. Wood
One of the challenges that will confront Victorian labour hire providers is that of providing the Authority with accurate data about:
It shouldn’t be a problem, but it’s clear from the wording of the regulations* that the Authority will be expecting applicants to get the classifications right. And that’s never easy.
Bromberg J, in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366, summed it up pretty well at para [206].
…the absence of a simple and clear definition which explains the distinction between an employee and an independent contractor is problematic. It is troubling that in the circumstances of the bicycle couriers dealt with in Hollis, the parties involved needed to travel to the High Court to obtain a clear exposition of the legal status of the couriers. Workers and those who employ or engage them require more clarity from the law. That is particularly so when important legislation such as the Fair Work Act (and its predecessors dating back to 1904) have steadfastly avoided defining what is an employee, yet demand (on pain of civil penalty) that there be no misrepresentation as to the nature of the work relationship. (citations omitted)
This time the penalties are likely to include refusal, loss or suspension of a licence and/or penalties for making a false declaration if the information is required to be supported by a declaration under the Oaths and Affirmations Act 2018 (Vic). And that carries penalties of up to about $97,000 or imprisonment for 5 years or both.
And then, there’s the little issue about what the Authority is going to do with the information. Remember, you also have to provide information about the industries into which you supply services and the Awards under which you operate. That information is likely to be matched up.
What do you think is going to happen if an applicant declares that it supplies an uncharacteristically high number of independent contractors to an industry in which independent contracting is not the typical or dominant form of engagement – say nursing or horticulture?
You’re going to want to get this right!
So, to plan your application and give it the best chance to avoid getting tangled up, come along to one of WorkAccord’s Vic Labour Hire Licensing: “Up-Close & Personal” masterclasses or advanced workshops as we work through these issues.
Better still, come along to them all!
You can find out more about the series on our Eventbrite registration pages:
I hope to see you there.
Andrew C. Wood
* Labour Hire Licensing Regulations 2018 (Vic), regs 11 and 12.
Even High Flyers Get Tangled Up!
Nearly 12 months after the commencement of Queensland’s labour hire licensing scheme, there are more than 70 applications, lodged within the two-month transition window, which have still not been finalised. It’s clearly not been smooth sailing for everyone.
With a six month transition period in Victoria, we can be certain that the Labour Hire Licensing Authority will have time to subject applicants to close scrutiny.
So, to plan your application and give it the best chance to avoid getting tangled up, come along to one of WorkAccord’s Vic Labour Hire Licensing: “Up-Close & Personal” masterclasses or advanced workshops. Better still, come along to them all!
You can find out more about the series on our Eventbrite registration pages:
I hope to see you there.
Andrew C Wood
It’s time to be thinking about your application before the scheme starts on 29 April 2019.
Once the scheme starts, you’ve got 6 months to get your application in – i.e. by 29 October 2019. So, come along to one of WorkAccord’s masterclasses or advanced workshops
You can find out more about the series on our Eventbrite registration pages:
I hope to see you there.
Andrew C. Wood
Day #1 Sunday, April 7 2019 (evening)
I’ve signed up as a seller on Fiverr and set up my profile.
Here’s my A$7.38 pitch:
I will write two slogans or taglines for you.
Actually, it gets better. For a little bit more, I’ll include short jingles in standard midi file format to go with them…
And for a little bit more, I’ll write three of them…
And for a bit more again, I’ll write five. You don’t want to be spoiled for choice.
Bet you didn’t know I could do that!
Now I’ve just got to get it all set up on the platform … and have an up-close look at the terms of services and IP provisions to get a handle on copyright protection. Maybe there’s money to be made in the licensing.
I’m on my way!
Andy
Day 1 Sunday, April 7 2019 (morning)
I’ve decided to undergo a Gig Economy Immersion.
Great! So now what do I do?
The ad says “Starting at 7.38”.
What? Is that the time? It’s past that already.
No. It’s the price of your first gig!
Better do some research!
Done that. Don’t want to kill the enthusiasm with over-analysis. So, I’ve checked that Mercury is not retrograde and that the Moon is not VoC. Should be OK then.
I’ve also read an online review of the three top gigging platforms and decided to try two of them – for legitimate purposes of scientific comparison of course.
Fiverr and Upwork are getting a tryout – because I’m intrigued by all the sellers on Fiver offering legal documents starting at A$7.38 and I’m tempted by Upwork’s promise of greater rewards.
Just on the point of pricing, my head is hurting as I think about stepping away from 30 years of hourly billing for legal advice, charged in 6-minute units.
But here’s the thing…for my Gig Economy Immersion, I’m not going to be selling legal advice.
What am I going to sell? (Note my optimism, I actually think I am going to get to sell something and maybe get paid for it too!)
I’ve asked my sons, but so far the only responses I’ve got are:
“?” (Son X).
“Can you proofread my essay?” (Son Y).
[laughs] (Son Z).
Colleen is smiling (benignly I think).
So I need to think about what I’m going (to offer) to sell. I’m determined to come up with a product idea this evening.
A name for the journal
Oh! And I’ve thought of a name for my journal: “Gigging with Andy“.
Who’s Andy? It’s me. I’m sort of undercover.
That’s it for now.
Stay tuned!
Andy
To find out more about our Masterclass and Advanced Workshop series, visit our Eventbrite registration page by clicking here or use the link below.
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