Modern Slavery Reporting for Labour Hire and Workforce Services Providers: The Basics

If you’re a labour hire or workforce services provider, you’ll likely be receiving requests for information about what steps you’ve taken to combat risks of modern slavery in your supply chains or operations.

You might even be large enough to have to prepare your own modern slavery statements, and you could be requesting similar information from your suppliers. 

That’s because Australian entities that have a consolidated revenue of $100 million or more must lodge statements under the Modern Slavery Act 2018 (Cth),

For most of them, the extended lodgment date is 31 March 2021. But a few entities will have different reporting dates – some as soon as 31 December 2020. You can check it out here.

So, over the coming weeks, we’ll be posting some short updates and commentary in the RCSA-hosted Labour Hire Licensing & Regulation LinkedIn Group. Be sure to look in on us regularly. And if you have questions, don’t hesitate to ask.

Andrew C. Wood

Modern Slavery Reporting about How Labour Hire Workers Are Used

Lately, I’ve been developing a range of modern slavery reporting resources for Australian labour hire and workforce services providers. Amongst the materials provided by the Commonwealth government, I came across this piece of guidance, which had me scratching my head:

Under the Act reporting entities are not required to report on modern slavery risks associated with how their customers use the products or services they purchase. For example, a mining company is not required to report on whether the overseas smelter that purchases its ore uses forced labour. Similarly, landlords and lessors are not required to report on modern slavery risks associated with the operations and supply chains of lessees.

Commonwealth Modern Slavery Act 2018: Guidance for Reporting Entities, p.34

So, I asked the Border Force Modern Slavery Business Engagement Unit if it had a view on how that piece of guidance might be applied to labour hire and workforce services providers.

You will see the issue, immediately. Labour hire providers supply workers. So, the use to which customers put those workers may have a direct impact on risks of exposure to modern slavery practices.

The Modern Slavery Business Engagement Unit was great. They got back to me straight away. Here is their reply:

We would expect that labour hire agencies required to report under the Modern Slavery Act address possible modern slavery risks associated with the use of workers they provide to other businesses in their modern slavery statements. These workers are usually employees of the labour hire agency and their provision to other businesses forms part of the labour hire agency’s operations.

Reply 2 November 2020

So, if you are a labour hire or workforce services provider, it seems that will need to give some thought to whether your customers’ use of your workers might expose them to the risk of modern slavery practices, and you’ll need to report about that.

Andrew C. Wood

Victoria’s Public Health and Wellbeing Act Amendment – Are we asking the right questions?

A lot of attention has been given recently to claims that the Victorian Government is attempting to extend the current state of emergency for another twelve months. But to my mind, it’s the amendments to the threshold sections that warrant the greater parliamentary and public scrutiny.

To be fair, the amendment to section 198 – the duration section – only provides that the total aggregate length of a state of emergency can be extended to 12 months. If you’re dealing with an event that will last longer than the current six-month limit, there would seem to be some sense in that.

However, the amendment to section 199 is more troubling. It proposes to reduce the threshold required for the Chief Health Officer to authorise emergency powers from a belief that it is “necessary” to a belief that it is merely”reasonably necessary” to do so.

Further amendents would allow a state of emergency to be declared even where the rate of community transmission of COVID-19 in Victoria is low, or there are no new cases of COVID-19 for a period of time. 

We’ll have to see what happens. In the meantime, you can read the explanatory memorandum here:

https://www.legislation.vic.gov.au/bills/public-health-and-wellbeing-amendment-state-emergency-extension-and-other-matters-bill-2020

WorkAccord’s “Tuesday TalkAbout” to Return in July

Slide17WorkAccord’s “Tuesday TalkAbout” series of free, short webinars is set to return for a fourth season at 8:30 am AEST on July 21st 2020.

With The Recruitment, Consulting & Staffing Association’s new Code for Professional Conduct, authorised by the ACCC last year, commencing on August 8, the focus of the series will be on the Code’s principles of operational integrity.

As the author of the Code, I’m looking forward to  discussing topics such as Confidentiality, Care, Complaints Handling, Certainty of Engagement, Social Sustainability, Assurance, and Disclosure.

Here’s the Winter programme:

1.   RCSA Code: What’s New? (21/07/20)

Our first Tuesday TalkAbout for the Winter 2020 season presents an overview of the RCSA Code for Professional Conduct and asks, “What’s new?”

We’ll explain why this Code is different from what has gone before. We’ll explore the ethical principles that underpin the Code; and look at its statement of principles for personal professionalism and operational integrity. Finally, we’ll discover what the Code requires of RCSA Members and how RCSA supports its Members’ journey along the “Pathway to Professionalism”.

2.   Social Sustainability (28/07/20)

The new RCSA Code requires Members to

  • conduct business in a way that avoids causing or contributing to exploitation through their activities; and
  • seek to prevent or mitigate risks of exploitation that are linked to their operations or services by their business relationships, even if they have not contributed to those risks.

In this session, we’ll discover what the Code means when it talks about “exploitation” and we’ll learn about steps that you can take along your pathway to professionalism to reduce the risk of exploitation in your service networks.

You can register for this webinar here.

3.   Ascertain & Assure (4/08/20)

RCSA Members will be required to:

  • apply resources; and
  • establish and maintain controls

to ascertain and assure themselves, to a reasonable standard of confidence, that they meet the requirements of the regulatory environment in which they operate.

This session focuses on how to identify regulatory requirements and what types of controls you can implement in a recruitment and staffing environment to be confident that you are meeting them.

You can register for this webinar here.

4.   Certainty of Engagement (11/08/20)

Under RCSA’s new Code, Members will need to take reasonable steps:

  • to ensure the certainty, transparency, and scope of their agreements; and
  • to obtain adequately informed consent

for the provision of a workforce service, or for the performance of a service network role.

In this session, we’ll talk about provisions that present regular challenges and discuss what you can do to make their operation more certain. We’ll look at scoping provisions, screening responsibilities, fees & charges, restraints of trade, candidate replacement and other guarantees.

You can register for this webinar here.

5.   Confidentiality & Privacy (18/08/20)

Recruitment & staffing professionals handle vast quantities of confidential and personal information. Much of it is highly sensitive.

In this session, we’ll talk about some of the challenges that you will face and how you can deal with them. You’ll learn to identify when information is confidential and how to handle exceptions. You’ll learn about the different privacy regimes that you might operate within and why it is important to have a good understanding of your privacy obligations when you are obtaining consent to collect, use and disclose personal information. We’ll also look briefly at some of the additional issues that arise when you are operating in an on-line environment.

You can register for this webinar here.

6.   Complaints Handling (25/08/20)

RCSA Members will be required to establish and maintain credible grievance handling mechanisms and corrective action procedures, appropriate to their size and circumstances, to address any failure to meet the standard of professional conduct required by the RCSA Code.

In this session we will talk about how you can do that, using some of the principles in AS/NZS 10002:2014 Guidelines for complaint management in organizations.

You can register for this webinar here.

7.   Care (1/09/20)

A concept of care, requiring attentiveness, responsibility, competence, and responsiveness underpins the new RCSA Code for Professional Conduct.

In this session, we’ll explore the concept of care and talk about its specific application to Members’ responsibility to meet the value promises they make about the quality of their services. Is there room, in a professional conduct framework, for an “all-care-no-responsibility” approach anymore? Let’s find out!

You can register for this webinar here.

Let’s talk again soon!

Andrew C. Wood Hon, FRCSA (Life)

 

 

 

 

The Labour Hire Licensing Act 2020 (ACT) – More variations on a theme

The Australian Capital Territory has made good its intention to enact labour hire licensing legislation. This is the fourth Australian jurisdiction to enact a licensing scheme – if you count South Australia, which has just started to wind the coverage of its scheme back to imit its application tohigh-risk sectors.

So, what’s the deal in the ACT? You can spend hours on this stuff and still not know what it all means until the courts start to interpret it. But here are a few features you might want to note that give the ACT scheme its own unique character.

Status

Early days. We still need to see the regulations and application forms, which will add layers of detail.

Commencement

Probably 1 January 2021, with a 6-month transition period.

Objects

  • Protect workers from exploitation by providers of labour hire services; and
  • Ensure labour hire service providers meet their workplace obligations and responsibilities to the workers they supply; and
  • Promote the integrity of the labour hire services industry; and
  • Promote responsible practices in the labour hire services industry.

Coverage

You’re a labour hire provider if, in the course of carrying on a business, you supply to another person (the hirer) a worker to do work.

The definition is closer to the very wide Queensland model. There’s no attempt to give meaning to what “supply” means and no use of the complex integration test (to perform work in and as part of the hirer’s business or undertaking) adopted in South Australia and Victoria.

Neither is there any attempt to exclude licensed private employment (placement) agencies (PEAs) as there is in Queensland and South Australia, even though the ACT has a separate PEA licensing scheme.

This will mean that the requirement to hold a licence will often come down to whether the person supplied to do the work is a worker within the meaning of the Act. We’ll look at that in a moment.

Unlike Victoria, there’s no explicit extension of the scheme to PEAs who provide accommodation, or to Contractor Management Services providers. Although, that might be unnecessary in view of the width of the coverage.

The “Regardlesses”

Not an Indie band – but a set of provisions that say you’re a labour hire provider no matter what (regardless).  So, you would need a licence regardless of whether:

  • the worker is employed by you; or
  • there is a contract for the worker to do the work; or
  • the worker is supplied by you directly or indirectly; or
  • the work completed by the worker is under the control of you or the hirer.

All four State and Territory licensing schemes use some version of the regardlesses. They’re designed to extend coverage to tiered supply and contracting chains. They are capable of producing a lot of unintended consequences. You need to do a few worked examples to see what they lead to. But, basically, you can be a labour hire provider even though you’re not engaging the worker. That might cause a few headaches for payroll companies.

Regulations can exempt a stated person from coverage meaning that they would not have to have a licence. That’s not as good as it looks. It relates to “stated persons” rather than to classes of persons and it falls well short of anything you might have heard to the contrary about the Minister or the Commissioner having a power to declare exemptions.

Who is a “worker”?

Only an individual can be a worker. An individual is a worker for a provider if the individual enters into an arrangement with the provider under which—

  • the provider may supply, to another person, the individual to do work; and
  • the provider is obliged to pay the worker for the work—
    • in whole or part; or
    • directly or indirectly.

This definition is also pretty standard across the four licensing schemes. But it’s riddled with problems because there’s no clarity about the nature of the “obligation”. It’s easy enough if the obligation arises directly from a work/wages bargain.

But things get complicated if the obligation arises from an escrow obligation such as you might see with some of the freelancing platforms, or if the worker is not paid for the work but receives distributions from a trust or is remunerated in some other manner.

Also, keep in mind that a person can be your worker, even though you’ve not engaged them. Again, this could cause some headaches for payroll companies and contractor management services providers.

The Minister can declare that a person is or is not a worker. This is a bit easier than the power to exempt a provider by regulation. Still, it’s not an easy path and I doubt that we’ll see anything like the liberal application of the similar power to exempt by gazettal, which we saw in South Australia before the Act there was changed.

The Offences

  • Supplying a worker without having a labour hire licence – huge fine 3,000 penalty units for a corporation; 800 penalty units for an individual
  • False representation that a licence is held – 200 penalty units
  • Breach of licence condition – 300 penalty units
  • Entering into an arrangement to acquire services from an unlicensed provider – huge fine 3,000 penalty units for a corporation; 800 for an individual

Ignorance might actually be an excuse in the ACT – Consider “Kevin”.

If you’re a hirer (host) you won’t commit the offence of entering into an arrangement with an unlicensed provider if you had a reasonable excuse. Consider this example of a reasonable excuse included in the Act:

Kevin decides that he needs a cleaner for his house. He sees an advertisement on a social media site by a company offering domestic cleaning services. Kevin did not know that the company was an unlicensed labour hire services provider nor was there anything in the advertisement or otherwise to make him aware that he should check that the company was licensed.

That’s going to raise a lot of questions about what you should and shouldn’t know about the scheme. You might get away with it if you’re a householder, like “Kevin”; but my guess is that you wouldn’t want to be putting your eggs in that particular basket if you’re a business acquirer of labour hire services.

Where is the anti-avoidance measure?

It seems like a curious omission, but I can’t I can’t find an express anti-avoidance measure. I’d be interested to learn why, if anyone knows the reason. The last thing you’d want is a scheme that is tolerant of a certain degree of contrived ignorance! Maybe there’ll be some attempt to fix it in the regulations.

Fit and proper person test

A version of the now familiar fit and proper person test applies to all “influential” people for a provider. Influential people for a corporation include a person who can exercise a power to:

  • take part in a directorial, managerial or executive decision for the corporation; or
  • elect or appoint a person as an executive officer in the corporation; or
  • significantly influence the conduct of the corporation.

Think about that last point for a moment. Who could that include? Your significant shareholders? Your financiers? Your industry association? Your suppliers? Your clients? Your spiritual advisors?

It’s a pretty wide category and it’s going to take a fair bit of common sense to know where to draw the boundaries. And, of course, there’ll be outliers.

The rest of it

As to the rest of it, there’s a lot of administrative provisions about applications, licence onditions, enforcement, inspectors, appeals, the establishment of a Commission and an Advisory Committee.

You can read a copy of the Act for yourself here.

Treat it as a broad framework and expect more detail  – including information about fees – in the regulations when they become available. There’s still a bit of work to be done before we know how this scheme will actually work.

Andrew C. Wood

 

 

 

 

 

 

Post-Law Day #330 (or thereabouts)

I didn’t forsee, when I left legal practice for a post-law career, that I’d be going back to school. But here I am, enrolled in a post graduate certificate course at QUT in Education (Innovative Learning Design) and loving it!

Just taking small steps – one unit at a time. So, in this learning period I’m enrolled in a unit with the intriguing title, “Authentic Learning and Assessment“.

What have I learned so far?

I need to apologise for all those 7,000 – 8,000 word research essay assignments I set!

First summative assessment due next Monday. Goes around… comes around!

At least it’s not a research essay!!

Teacher 3

 

 

 

WorkAccord’s Autumn “Tuesday TalkAbout” Programme: Healthcare Workforce Recruitment & Staffing Focus

Autumn TT promoIn WorkAccord’s Summer series of Tuesday TalkAbouts, we introduced the concept of “waypoints” as those points on a journey where we can pause, take stock, and choose the direction we will follow for the next stage. As the COVID-19 pandemic response has rapidly escalated, it seems that we might have rushed through several of those waypoints and might now be asking, “What comes next?”

Many within the healthcare recruitment and staffing sector are experiencing a sense of considerable uncertainty, which may become costly. For some, it has been a case of having been so busy that there has not been time to reflect on what has happened. For others, things have gone unnervingly quiet.

In our Autumn series of Tuesday TalkAbouts, we will be looking at points of continuity and change for healthcare recruitment & staffing professionals and asking, “What does it now take to be Leaders in the World of Work?”

We will also be working throughout this series to develop the Tuesday TalkAbout format to provide participants with an enhanced range of on-line/off-line and synchronous/asynchronous learning opportunities and resources. We’ll be keeping the free on-demand webinars while developing the live sessions to provide more interaction and opportunity for discussion.

I’m delighted, therefore, to extend to all a warm invitation to participate in this exciting collaborative project.

Our Autumn programme of seven free webinars is outlined below.

1. Platforms (21/04/2020)

Our first Tuesday TalkAbout presents an “under the hood” look at Recruitment Platforms for Recruitment & Staffing Professionals.

What are they? Where do they fit in the classification of recruitment & staffing services? How do we “read” them? What are some of the opportunities and risks associated with their use?

2. A Healthcare Workforce that Nobody “Owns” (28/04/2020)

A healthcare workforce is a complex, multi-actor (multi-nodal) system that possibly nobody “owns”.

What are its governance challenges? What do these challenges mean for stakeholders, including Recruitment & Staffing Professionals aspiring to be Leaders in the World of Work? How can they engage more effectively with the workforce to enhance the value of the contribution they make?

3. Healthcare Worker Engagement Models (5/05/2020)

Healthcare worker engagement models come in many different forms.

What models of healthcare worker engagement are most relevant for Recruitment & Staffing Professionals? How can they distinguish between different models to choose the ones that are the most suitable? What challenges do procurement approaches pose to the successful engagement of health workers with their workforce? How can Recruitment & Staffing Professionals meet those challenges?

4. Aged Care Workforce Update (12/05/2020)

The Royal Commission Into Aged Care Quality & Safety has been running since October 2018.

What progress has been made so far? Who making submissions? What themes are emerging that will be significant for Recruitment & Staffing Professionals working in the Aged Care sector? What will happen next? And how can we make a submission?

5. Telemedicine & Recruitment (19/05/2020)

Social distancing measures under the conditions of the COVID-19 pandemic presented many challenges to the way we have traditionally thought healthcare and health workforce recruitment should be practised.

What are the consequences for healthcare workforce recruitment and for Recruitment & Staffing Professionals working in the healthcare sector? In this Tuesday TalkAbout we will review some of the current literature and take a look at some recent practice developments in the field of Telemedicine.

6. Collaborative Supply Models: Concept (26/05/2020)

Collaborative Supply Models or “Networks” may provide useful answers to many of the challenges presently facing healthcare workforce structure and governance.

What form could they take? What role might Recruitment & Staffing Professionals working in the healthcare sector play in their development? In this Tuesday TalkAbout, we’ll look at some of the collaborative supply or network models that have been developed and deployed in Australia and overseas. We will begin to explore how they might evolve to create new opportunities for Recruitment & Staffing Professionals responding to a disrupted workforce environment.

7. Collaborative Supply Models: Topical Challenges (2/06/2020)

In this Tuesday TalkAbout, we’ll build on the concept of a Collaborative Supply Model which we developed In the previous session for Recruitment & Staffing Professionals working in the healthcare sector. We’ll focus on four topical challenges:

  • Candidate connection & protection
  • Competition
  • Risk & liability
  • Governance

You can register for this webinar here.

Let’s talk again soon!

Andrew C. Wood

 

 

 

 

Tuesday TalkAbout Returns with a Health Workforce Staffing & Recruitment Focus

Slide1

Over the past couple of months we’ve all been affected by social isolation and lockdown. We’ve been learning new ways of working and new methods of getting things done. There have been signs that it’s been coming for a while, with recent Health Service tenders calling for submisisons on platforms, networks, and technologies to facilitate the process of assembling and managing a Health Workforce.

So, our first Tuesday TalkAbout in WorkAccord;s Autumn  2020 series will kick off with an “under the hood” look at Recruitment Platforms for Health WorkForce Staffing Professionals. What are they? Where do they fit in the classification of recruitment & staffing services? What are some of the opportunities and risks associated with their use?

I hope you’ll join us for our free ZOOM webinar at 8:30 am AEST on Tuesday 21 April 2020 when we’ll commence our 7 week discussion of Health Workforce topics.

And for those who are unable to make it, don’t worry. The webinar will be recorded and made available free and on demand for up to two weeks following the presentation.

You can register here or copy thand paste the link below in your browser https://us02web.zoom.us/webinar/register/WN_IaYSqLjeR1C9Zm6a_iuOpQ

Let’s talk again soon.

 

Andrew C. Wood

Wanted to say how proud I am of our #3121 Richmond community. Out in the Gleadell St markets & Bridge Rd shops this morning and sensed the mood  of the past couple of weeks might be lifting. People making eye contact, acknowledging each other. Just as tough and yet a little kinder. Reckon we’ll make it through this. Stay well everyone.