Australian employers might need to rethink the use of their automated rostering systems following a decision of the Full Court of the Federal Court earlier this week, which declared that the NES entitlement to be absent from work on a public holiday could only be ignored if the worker responds positively to a genuine request (not a command or a contractual obligation) to attend work on the public holiday.
The worker can refuse the request if:
the request is not reasonable; or
the refusal is reasonable.
The key point to note is that there must be a request – not simply a direction or contractual obligation to work. The worker’s entitlement to refuse reasonably should be treated as a work right; and, therefore, the worker should not be coerced or subjected to any adverse treatment in consequence of a reasonable refusal.
The case is Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd(No 2)[2022] FCA 132 (28 March 2023). In that case, the employer was held to have breached the NES. The case has been referred back to the primary judge for determination of remedy and penalties.
No doubt you’ll hear more about it in the coming days. In the meantime, it might be prudent to review your rostering procedures and your employment contracts. Be sure to check with your lawyers!
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 Lawapplies 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.
In our TuesdayTalkAbout Live! masterclass this week, we looked at some experimental drafting of a clause, which might be adopted by recruitment & staffing agencies who were looking to stand out from the pack in terms of demonstrating that, for them at least, respect for Fair Trading & Consumer Protection matters.
Here’s the draft we discussed:
“The Agency warrants that its internal staff, whohandle recruitment briefs for the Client orrepresent Workseekers, have satisfactorily completed relevant Consumer Protection and Fair Trading compliance training in the last two years.”
Experimental drafting 20/03/2023. Not to be used without legal advice.
Would you be willing to have a clause like that in your terms of business? How would you respond to a client, who asked for its inclusion? What would a refusal convey to your client (or to your candidates or contractors)?
What challenges would compliance with such a clause present for recruitment & staffing agencies?
Let’s talk it through…
The draft clause assumes that agency staff, who carry out recruitment tasks, need to know something about fair trading & consumer protection. There’s nothing novel about that. So much is expressly stated in the Qld regulatory scheme for private employment agents, where it first appeared in 2003.[i]
It also assumes that workseekers, as well as clients, have the benefit of fair trading & consumer protections. Again, there’s nothing novel about that. Agencies claim to “represent” their workseekers. They supply their representation services. That can be a consumer supply, even though the workseekers don’t pay.
Consistently with most industry association codes for professional conduct, the clause recognizes that respect for fair trading begins with gaining some knowledge about it, and that it is an agency responsibility to do something about it.
In the experimental draft, I described the training as “compliance” training. I’m not sure that would be my preferred description. I think I’d prefer to use a term such as, “professional development” training. That would convey more to me about the significance of this training (and of its absence) in shaping professional identity and competence.
What do you think?
Let’s talk…
Andrew C. Wood
[i] See, currently, Private Employment Agents (Code of Conduct) Regulation, 2015 (Qld).
I can’t begin to recall the number of times I’ve heard contracting parties (or their advisors) discussing “problem” clauses and someone says, “Let’s just put it in anyway. It’ll give us something to argue!” By any measure, it’s a lazy approach to drafting. It’s all very well to have the argument, but if you lose, you’ll end up with egg on your face … as well as costs orders against you; and potentially negligence claims – to say nothing of the damage you might have done to your commercial relationships whilst you have that argument. And now it’s got a whole lot worse…
That’s because New Zealand (in August 2022) and Australia (from November 2023) have amended their Fair Trading and Consumer Protection laws to prohibit the inclusion of unfair terms in standard-form, small business (or small trade) contracts.
And the consequences for ignoring the prohibition? In New Zealand, $600,000 per contravention. In Australia, $50 million per contravention, or three times the value of the benefit derived from the unfair term, or 30% of adjusted turnover during the offence period. And there are fines for the individuals who were involved in their inclusion, as well.
Over the last few weeks, as we’ve been exploring the topic of Fair Trading & Consumer Protection for Australian & New Zealand Recruitrers, I’ve been posting some discussion primers on social media in preparation for our Tuesday TalkAbout Live! masterclasses.I’ve now gathered them here in one place so you can find them more easily.
Do any of them strike a chord with you; or ring alarm bells? If so, which ones stand out?
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.
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.
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!
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.
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)
Recruiters' Casebook 