Vic Labour Hire Authority’s Guide to Engaging Workers as Independent Contractors: Wise men and women following a wandering star?

December 22, 2021December 22, 2021Andrew C Wood Contracting, Independent Contracting, On-Hire 2 Comments

I was disappointed to read the Victorian Labour Hire Authority’s newly published Guide to Engaging Workers as Independent Contractors.

You can read a copy of the Guide here. But I’m not sure I’d bother.

_{Remote road with sign post directing traveller into a clump of cactus.}

The Guide, though referencing the FWO’s and ATO’s more extensive material, selectively lists only six of the ten key characterisation factors identified by the FWO as necessary to distinguish employment from independent contracting. Significantly, the Guide makes no mention whatsoever of the importance of the intention of the parties.

It fails to mention the fact that the very tests that it does indicate, together with the multi-factorial approach, are presently the subject of two appeals which have been heard by the High Court and are awaiting judgment.

It fails to mention that the Full Bench of the FWC, cognisant of those two appeals and of the approach adopted by the High Court in Rossato, considered that the traditional approach to characterising independent contracting relationships is now clouded by such uncertainty that it put the important case of Deliveroo Australia Pty Ltd v Diego Franco on hold until the High Court decisions are handed down.

It’s worth noting what the Full Bench had to say about that:

[5] We have decided that the appropriate course is to defer the determination of this appeal until the High Court has heard and determined the appeals in Jamsek and Personnel Contracting. This appeal is a matter of some importance, given that it is likely to have significance for the whole of Deliveroo’s workforce and perhaps also for the “gig” sector of the economy more broadly. We agree with Deliveroo that the decision in Rossato (particularly at [101]) has, intentionally or otherwise, called into question what principles are to be applied in determining whether a relationship is one of employment or independent contracting and the status of Hollis v Vabu in that respect. In all likelihood, the High Court’s decisions in Jamsek and Personnel Contracting will provide authoritative guidance as to these issues.

Nevertheless, the Victorian Labour Hire Authority, confident of the authority of its own view, presses ahead with what it claims is a guide to ensure that, when engaging workers as independent contractors, you:

comply with your legal obligations
do not engage in sham contracting
keep your labour hire licence.

You can make your own mind up about how much guidance it provides… and in what direction it is steering you.

The best that can be said about it is that it errs on the side of caution.

But it errs, nonetheless.

Andrew C. Wood

Australian Government Care + Support Sector Code of Conduct Consultation

December 10, 2021Andrew C Wood Uncategorized Tags: Aged Care, Care + Support Leave a comment

The Australian Government is consulting on a proposed a single Code of Conduct to cover providers, workers and other participants in the Aged Care, NDIS and Veterans’ Support sectors.

Drawing on what we have been learning about codes of conduct for recruitment and staffing professionals, I prepared a submisson. Here’s some of what I was thinking.

I’d love to get your feedback.

6 …what language is preferred and why?

“Code-covered person” may be ambiguous with respect to the participation of recruitment & staffing agencies and procurement personnel, whose functions facilitate the provision of care and support.

The language of Recommendation 14 of the Aged Care Royal Commission Report (Duty of Care for “Providers and Facilitators”) appears to go a considerable way toward clarifying coverage issues.

7 At a high level, what should be covered in the detailed guidance to support providers and workers to adhere to the Code in the aged care and/or veterans’ care context?

Additional reference might be made to providing services consistent with “applicable standards and public health directives”.

8 What considerations are relevant to enforcing the Code in the aged care context?

The impact upon participants of the way in which compliance and enforcement proceedings are conducted is the subject of increasing study in the field of therapeutic jurisprudence. Whilst the field is gaining recognition in the criminal justice system, it also has applications in administrative and professional disciplinary proceedings.

So far as possible, regard should be had to considerations of therapeutic jurisprudence and emotional due process as being consistent with respect for persons and an ethic of care.

9 What considerations are relevant to enforcing the Code in the veterans’ care context?

In response to Q8, we made reference to principles of therapeutic jurisprudence and requirements for emotional due process. Those considerations apply with equal force in relation to the enforcement of the Code in the veterans’ care context.

We would also encourage the giving of consideration to the question of how principles of trauma-informed practice might be deployed to improve processes and outcomes of compliance and enforcement interventions.

10 What other intersections need to be considered as part of the implementation of the Code?

At a high level, consideration should be given to interactions with codes that govern procurement, recruitment & staffing and HR functions. Practitioners in these fields play an important role assembling, deploying and maintaining effective governance of care & support sector workforces. They frequently operate under their own professional codes. There may thus be a need to achieve alignment between the content and culture of such codes and the goals and objectives of the draft Code.

Guidance on the draft Code may therefore need to address not only WHAT the Code is about, but WHY it is about those things; WHO affects the outcomes; and HOW what providers and facilitators do can impact positively or negatively on outcomes.

Next Steps

Next week, we prepare and make our submisison on the related consultation, Aligning regulation across aged care, disability support and veterans care.

Andrew C. Wood

ACCC’s Collective Bargaining Small Business Class Exemption Procedure Finding Favour amongst Health Practitioners.

December 2, 2021Andrew C Wood Collaborative Practice, Health Workforce Tags: Competition Law, Health Workforce, Workforce Bargaining Leave a comment

It’s been interesting to track the uptake of the ACCC’s streamlined procedure for granting exemption to small businesses wanting to engage in collective bargaining with customers and suppliers. As was expected, there was early uptake by newsagents and car dealership franchisees when the exemption procedures commenced on June 3, 2021. Somewhat surprising (or not, depending on your perspective and experience), has been the uptake by healthcare professionals.

Anaesthetists

In one application, the Australian Society of Anaesthetists accessed the exemption procedure on behalf of anaesthetists treating public health system patients in private hospitals in Victoria.

The Society indicated that is wished to negotiate about “processes to ensure the safety of public health system patients treated in private hospitals, industrial conditions and remuneration of anaesthetists participating in such treatment.”

Dentists

In another application, a bargaining group of dentists and dental practices significantly owned by members of the Australian Dental Association accessed the exemption procedure to collectively negotiate with private health insurance companies, their intermediaries, and payment gateway providers about the terms and conditions of provider contracts and policies and “all matters related to the conduct of the target businesses … including rights to contract”.

Observations

The subject matter of the exempted negotiations remains strongly “industrial”, at present. That might not be surprising.

However, locum agencies who have significant numbers of independent contractor locums on their books might start to anticipate that, before too long, independent professional health practitioners, who up until now have not had much access to collective bargaining, may shortly wake up to the fact that the ACCC’s streamlined process now gives them that access if they can organise themselves into bargaining groups.

At some point, recruitment and staffing agencies may also begin to recognise the potential to collectively negotiate on tenders – especially if their bargaining groups are able to harness competitive cost and supply efficiencies that can be available through networked arrangements.

It’s a fascinating development to watch unfold. And, whilst the streamlined class exemption procedure doesn’t compel the target to negotiate with the group, it might often be wiser to find ways of using the procedure constructively than to resist it. Recruitment and staffing firms and procurers of their services should take note.