Month: February 2023

Time to Wake Up to the Risks of Unfair Terms in Professional On-Hire Contracts!

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For years, we thought that we were “astute”, using one-sided professional on-hire contracts that were stacked in the agencies’ favour.  Clients wanted compliant professional labour without the costs of employment; and on-hire agencies developed business models that met, and continue to meet, that demand  – despite the inherent risks.

It should have changed as the professional contracting sector came under increasing competition from contracting platforms such as UpWork and Fiverr. It should have changed; but it didn’t.

It should have changed in 2016, when the Australian Consumer Law was amended to prohibit the use of unfair terms in standard form, small business contracts, because the independent contractors were supposedly in business on their own account. It should have changed; but it didn’t.

It should have changed in June 2021, when the ACCC granted a class exemption to allow small businesses, including professional contractors, to bargain collectively on price, terms and conditions without breaching competition law. It should have changed; but it didn’t. Though there are some encouraging signs that the bargaining exemption is being adopted by health and medical professionals and by IT  professionals.

It should have changed in February 2022, when the High Court said that if you’ve set yourself up as a mere purveyor of subservient, dependent, and compliant labour, and your contractor’s promise to perform work is a “core asset” of your business, then you’re looking a lot like an employer.[i] It should have changed; but it didn’t.

In New Zealand, it should have changed in August 2022, when amendments to the Fair Trading Act, which prohibited the use of unfair terms in standard form, small business contracts, commenced. It should have changed; but it didn’t.

It should be changing as the professional contracting sector is increasingly impacted by AI-driven technologies. Ask any recruiter about the ace-up-their-sleeve against being superseded by AI-driven technology, and they’ll tell you that it has something to do with their human touch and their contractor care programs. Well, if that’s right, it should be reflected in their contracts. It should be changing; but it isn’t.

Perhaps it will change in November this year, when the Australian Consumer Law will once again be amended to increase penalties for having unfair terms in standard form, small business contracts to $50 million.

Perhaps it will change; but my guess is that, unless the professional contracting on-hire agencies wake up to the changes that have taken place in their sector over the past decade, and stop using engagement and supply models developed in the 1980s, it probably won’t … at least not until their clients and contractors also wake up to the political, economic, social, and technological environment in which they’re now operating.

 

Post Script: Throughout February 2023, I was privileged to conduct a sustained Tuesday TalkAbout Live! masterclass exploration of issues facing professional contracting on-hire agencies. In March, I will be extending that exploration by taking a deeper dive into the Consumer Protection & Fair Trading regulation of the sector in Australia & New Zealand.  One of the outcomes of our March masterclasses will be the development of a methodology for conducting a Consumer Protection & Fair Trading self-assessment. In April, we will shift the focus of our exploration into the field of competition regulation and explore ways to take advantage of exemptions and authorisations that facilitate the development of innovative supply models.

I hope you’ll take time to follow our exploration and participate in one of the sessions.   

Let’s talk again, soon!

Andrew C. Wood

[i] CFMMEU v Personnel Contracting (2022) HCA 1.

So, I asked ChatGPT about “The Voice”…

Andrew C Wood Bigger Pictures Tags: , , 3 Comments

I’ve been dismayed by the vitriolic exchanges across social media platforms on the issue of “The Voice Referendum”. So, I turned to ChatGPT to see if the artificial intelligence response was any more edifying.

Now let me say, in the absence of having much detail about how it would work, that my understanding of the proposal is that Australians will be asked to vote on whether they approve changes to the Constitution that would allow the federal government to make laws for how an elected body (“The Voice”) should be established to make representations and recommendations to government on matters affecting Indigenous Australians and Torres Strait Islanders; and authorising government to take those representations and recommendations into account when setting policy or making laws.

Rather than asking ChatGPT directly about The Voice – particularly as its information source cuts off at September 2021 – I thought it better to ask it about the pros and cons of authorised lobby groups. The question I therefore formulated was:

Should governments give approved lobbyist status to selected groups?

27/2/2023

I’d be interested to hear how you might have framed the question differently. But here’s the unabridged response I got:

As an AI language model, I do not have personal opinions or beliefs. However, I can provide some information and perspectives on the topic of approved lobbyist status for selected groups.

Lobbying is a legitimate activity that allows individuals and organizations to communicate with government officials to express their views and influence public policy. However, lobbying can also be a controversial and divisive issue, particularly when it involves the influence of special interests on government decision-making.

Some argue that giving approved lobbyist status to selected groups can help level the playing field and ensure that a wide range of voices are heard in the policymaking process. By officially recognizing certain organizations as legitimate representatives of specific interests, governments can provide these groups with greater access to decision-makers and resources to help them advocate for their causes.

On the other hand, critics argue that giving approved lobbyist status to selected groups can create an uneven playing field and give undue influence to powerful interests. By officially recognizing certain organizations as legitimate representatives, governments may be seen as endorsing their positions and granting them a privileged status that is not available to other groups. This can lead to perceptions of unfairness and undermine the legitimacy of the policymaking process.

Ultimately, the decision of whether to give approved lobbyist status to selected groups is a complex and nuanced one that will depend on a variety of factors, including the specific context and goals of the policymaking process. Governments should carefully consider the potential benefits and risks of such a policy before making a decision.

ChatGPT. “Should governments give approved lobbyist status to selected groups.” Response posted on GitHub, 27 February 2023. Accessed 27 February 2023.

That seems to be not such a bad framing of the issues, and it allows me to look at the debate from two perspectives. What I’ll be thinking about in the run up to the referendum is whether it is helpful and just to “level the playing field” by allowing The Voice to be raised in this way.

OK, so the response might be “artificial”. But it seems to restore an element of humanity, and now I’m wondering if ChatGPT can be used as a tool for gaining intelligence from public discussion, whilst eliminating a lot of the diatribe. I’d love to know what you think about that.

Andrew C. Wood

Consumers don’t only buy fridges!

Andrew C Wood Consumer Protection, Employment Services, Recruitment Tags: , , Leave a comment

Few expressions do greater disservice to fair trading in business than the term, “consumer protection”. That’s because consumer protection laws were first framed to protect purchasers of goods and services for personal, domestic or household use. That use qualification still holds good in many jurisdictions; but over time, the protections have been extended to encompass a wide range of business-to-business transactions … some of which may suprise you!

So, throughout March, I’ll be conducting a series of Tuesday TalkAbout Live! masterclasses on the topic of Consumer Protection and Fair Trading for Australian and New Zealand Recruiters.

Topics that we’ll cover include:

  • Job ads
  • Job offers
  • Agency promotion & service claims
  • Services guarantees
  • Refunds
  • Price gouging
  • Sharp practice & unconscionable conduct
  • Unfair terms
  • Indemnities & exclusions
  • The role of codes of professional conduct & ethics.

And to prime your knowledge of the topic, I’ll be sharing and discussing key features of the protections in this forum and through my social media channels.

I do hope you’ll join us.

Let’s talk again soon!

Andrew C. Wood

VCAT dismisses misleading & deceptive conduct claim against recruitment agency

Andrew C Wood Consumer Protection, Contract, Employment Agents, Employment Services Tags: , Leave a comment
Photo by Sora Shimazaki on Pexels.com. Woman advocate carrying brief, leaving court.

Notre Vie Enterprises Pty Ltd V Saturnian Pty Ltd[i] is a recent VCAT matter that involved a public relations business, which engaged an employment agency to find a personal assistant for it.

The client claimed that the agency recommended an unsuitable candidate, who resigned after two weeks. It also claimed that the agency’s shortlisting decision was biased in favour of the successful candidate because of a prior work relationship between the agency’s consultant and the candidate, which was not disclosed until after the first round of interviews. The client sought a refund of $3,960 based on the misleading and deceptive conduct provisions of the Australian Consumer Law (ACL). It did not contend, and the Tribunal did not find, that the agency breached any of the statutory guarantees in the ACL.

The agency denied the allegations and argued that its shortlisting decision was based on objective evidence.

The Tribunal found that the successful candidate was given preferential treatment due to the former work relationship with the agency’s consultant. It also found that the agency failed to re-advertise the position as it was required to do under the contract.

However, the agency argued that, although the applicant had the benefit of a 100% satisfaction guarantee in the contract, the client chose not to use it and managed to a replacement by itself within 48 hours.

In the circumstances, the Tribunal found that the client did not prove that the agency engaged in misleading or deceptive conduct, and therefore was not entitled to a refund.

The application was dismissed.

The decision serves as a useful reminder that good arguments and correct statements of legal principle do not win cases if they are not supported by the facts.

Andrew C. Wood

[i] Notre Vie Enterprises Pty Ltd v Saturnian Pty Ltd (Civil Claims) [2023] VCAT 95 (31 January 2023)

Tuesday TalkAbout Live! What’s New?

Andrew C Wood Contracting, On-Hire Tags: 1 Comment

In this short video, I introduce some changes to the Tuesday TalkAbout Live! format which have been designed to enhance professional learning & development outcomes for staffing & recruitment professionals. I’m currently using the new format with our February topic, Professional Contracting … One Year On (from the HCA decision in CFMMEU v Personnel Contracting).

Andrew C. Wood

ChatGPT: “Getting to know you”

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Seeing that ChatGPT and I have been meeting regularly in “the Playground” lately, I thought that I should ask a few questions to put our conversations on a proper footing. I was a bit direct, but here’s what I learned.

[ME]: What do I call you? A chatbot? A Virtual Learning Agent?

[ChatGPT]: You can call me a Virtual Learning Agent.

[ME]: Can I use “VLA” as an abbreviation of Virtual Learning Agent to refer to you?

[ChatGPT]: Yes, you can use VLA as an abbreviation of Virtual Learning Agent to refer to me.

[ME]: What are your personal pronouns?

[ChatGPT]: My personal pronouns are they/them.

Not a lot, perhaps. But it’s nice to get those things sorted early on. And I’ll now feel a bit more comfortable referring to them, when I’m discussing our Playground conversations about recruitment and professional ethics. Can’t wait to tell you about that!

Andrew C. Wood

So, I just asked ChatGPT …

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Photo by Canva. Businessman consulting crystal ball.

“What questions should Australian recruitment & staffing agencies be asking (and answering) in the professional contracting space right now?”

And here’s what I got:

  1. What are the current trends in the professional contracting space and what strategies should be adopted to take advantage of them?
  2. How can recruitment and staffing agencies ensure they are compliant with current legislation and regulations?
  3. What are the best practices in terms of contract negotiation and management?
  4. How can agencies ensure that they are providing a competitive rate for contracted staff and what can they do to stay competitive?
  5. How can agencies best support their contracted staff in terms of onboarding, training, and ongoing support?
  6. What strategies can agencies use to ensure that their contracted staff are retained and remain engaged?
  7. What processes should be in place to ensure that contracts are managed efficiently and effectively?
  8. How can agencies ensure that their contractors are meeting the expectations of the clients and the agreed-upon terms of the contract?

What do you think? What would you add, or take out?

You’re invited to join the discussion by securing your spot in one of WorkAccord’s Tuesday TalkAbout Live! online masterclasses commencing 7th February and repeated on 14th and 21st February. Or simply head across to the RCSA-hosted Labour Hire Licensing & Regulation (Aust & NZ) LinkedIn Group and join the conversation there.

Let’s talk again soon!

Andrew C. Wood