Tuesday TalkAbout Live! Continuing to connect the dots on professional contracting…

I’m hoping that small group of staffing & recruitment professionals (and their advisors) who’ve been participating in our Tuesday TalkAbout Live! masterclasses and our Friday FollowUp sessions might be starting to see how we’ve been connecting some of the dots in relation to professional contracting.

In February, we examined the topic of professional contracting. We looked closely at the High Court’s decision in CFFMEU v Personnel Contracting, and we suggested some strategies for preserving the independence and autonomy of our on-hire professional contractors.

We also started to explore the protections available to our on-hire professional contractors under the Australian Consumer Law (Fair Trading law).

In March, we looked at the ACL’s protections against unfair terms in standard form contracts – especially as they applied to on-hire professional contractors, most of whom are “small businesses”. We discussed the changes taking place in November this year, including the effects of upgrading protection against unfair terms to outright prohibition, and we noted the increase in penalties to $50 mil. In our FollowUp Friday session, we outlined a methodology for addressing unfair terms in standard form recruitment contracts.

Now we’re going to consider how Competition Law applies to recruiters – especially, how it might apply to (commercial) collective bargaining and boycotts involving clients, suppliers and … you’ve guessed it … your on-hire professional contractors. You need to know that your contractors, as small businesses, currently have the benefit of an ACCC class exemption that allows them to engage in collective bargaining over pay rates, terms and conditions with you. That’s worth thinking about!

You might also be interested to know that some professional contractors – mostly in the medical and IT sectors – have already started to make use of the class exemption. It will only be a matter of time before your contractors realise that they can use it, too.

What would you do if you received a collective bargaining notice from your on-hire contractors? What would you do if they were seeking increased pay rates and a fairer set of terms and conditions, having identified what they might consider to be unfair terms in your existing contracts – that’s to say, if they joined the dots connecting what we’ve been discussing through February, March and now into April?

Maybe you’re waiting for industrial reforms, anticipated later this year, that might improve the lot of dependent contractors, gig and platform workers. Perhaps you’re relying on the hope of some sort of “carve out” of your professional contractors from whatever those reforms might be. But if so, you’re missing the point. You’re looking at the issue through an industrial relations lens when you also need to look at it through a trade and commerce lens. Your professional contractors already have protections and bargaining advantages under the Competition & Consumer Act. Pretty soon, they’re going to realise it. It’s really just a matter of joining the dots.

So, can I encourage you to join the conversation when we pick up the thread in April with Tuesday TalkAbout Live! masterclass sessions on Competition “Red Flags” for Recruiters and wind up the month with our Friday FollowUp discussion of how to use the ACCC’s authorization, notification and exemption procedures to stay safe and to bargain collectively for better business outcomes.

Let’s talk again soon!

Andrew C. Wood

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