Unfair Terms

locked-into-contractOn 12 November 2016, the Australian Consumer Law will extend existing consumer protections to allow courts to declare void (of no effect) unfair terms in standard form small business contracts. The changes will affect terms frequently found in standard form recruitment, on-hire and contracting agency contracts that you might regularly use.

The Recruiters Casebook has been exploring the new laws over the last several weeks. This page gathers links to articles and resources that might help you to understand the effect of the changes and encourage you to seek professional help in adjusting your contracting practices to meet them.

Before you start, you might like to have a look at the Australian Competition & Consumer Commission’s great short video about the changes.

The resources presented here are not legal advice. Legal advice should always be sought from qualified practitioners who are familiar with industry and jurisdiction in which you carry on business.

The most recent posts are listed first. The list of resources will be updated as new resources are added to cover specific contracts, contestable clauses, and to provide checklists.

The Unfair Contracts Legislation: Threat, Challenge or Opportunity?

ScalesRecruitment, on-hire and contracting agencies might be considering  how they can adjust to the changes; and might ask themselves whether the changes present a threat, a challenge, or an opportunity. They might be all those things. And, for a few, they might also be an invitation to do something amazing. How are you viewing the changes and how will you respond?

Checking for Unfair Terms in Standard Form Small Business Contracts

new-piktochart_557_5a6272aa92fd97d2f30686ff01ad176983fd4a8eThe Recruiters Casebook outlines steps that recruitment, contracting and on-hire agencies might take to avoid being caught out after the commencement date on 12 November 2016. We provide tips, notes and industry relevant examples that might help you to prepare for the changes an make sure that your small business contracts don’t fall foul of the unfair terms provisions.

Unfair terms in standard form small business contracts in the independent contracting sector – First questions.

computer-studentWith only eight weeks to go until the unfair terms in standard form small business contracts reforms take effect on 12 November 2016, and with the ACCC having indicated that the independent contracting sector is clearly in its sights[1], The Recruiters Casebook begins to examine the application of the new laws to independent contracting in the  recruitment contracting and on-hire industry. Learn about what issues sophisticated supply structures characteristic of the industry are likely to raise, with particular emphasis on a focused analysis of the difference between contracting and on-hire.

Towards Collaborative Contracting.

Tiger Smelling FlowerA contract is not a document; it is a particular type of legal relationship that we have power to create and to shape to meet our needs and objectives. The Recruiters Casebook deepens its exploration of alternative collaborative approaches to contracting because what we put into our contracts says a lot about the relationship that we will get out of them.

10 things you should probably know about the interaction between candidate replacement guarantees and Australian statutory consumer guarantees.

guaranteed-434x640There is a high risk view about that a candidate replacement guarantee represents the limit of an agency’s responsibilities to its client; that it stands in place of any legal requirement to make a refund; and that it is mostly defensive or protective of the agency. The Recruiters Casebook takes a closer look at these clauses and reveals 10 important features that are now highlighted by the Australian Consumer Law.

Recruitment, Contracting and On-Hire Agencies: Still time to weed out suspect unfair terms!

justiceAustralian courts are unlikely to treat the question of unfairness as a matter of idiosyncratic justice, adopting a sort of “gut feel” or “fair go all round” approach. The approach will be more technical and involve the application of sophisticated legal tests.The third of three close ups of the new unfair terms in standard form small business contracts provisions of the Australian Consumer Law helps you to learn how to recognise terms that might be unfair and how a court would decide if they actually were unfair. The Recruiters Casebook spotlights the three essential characteristics of unfair terms and directs attention to the examples provided in the Act, suggesting that it will be the mere presence of suspect terms in standard form contracts (terms of business), rather than any actual unfairness, that will attract claims.

Recruitment, Contracting & On-Hire Agencies: Get ready. Your “standard form contracts” are whatever another person says they are!

DATE STAMPThe second of three close ups of the new unfair terms in standard form small business contracts provisions of the Australian Consumer Law. The Recruiters Casebook examines the provisions that are relevant to determining whether any particular contract is a standard form contract, emphasizing  the importance placed on the negotiability of terms and the distribution of bargaining power. We also identify the reverse onus of proof that applies. Given the manner in which registration agreements, contractor agreements and many agencies’ client terms of business are presented, it may be fairly difficult for some agencies to prove that their terms of business do not amount to standard form contracts.

Recruitment, On-Hire & Contracting Agencies: A closer look at the upfront price provisions of the unfair terms in standard form small business contracts reforms.

Teacher 3The first of three close ups of the new unfair terms in standard form small business contracts provisions of the Australian Consumer Law. The Recruiters Casebook examines the upfront price provisions that determine whether a contract is caught by the new laws and highlights areas where more work needs to be done to determine how the provisions apply to different types of fees and charges in recruitment, on-hire and contracting standard form contracts.

After your scale of fees and expenses and a fair description of your services, your dispute resolution clause might just be the most important thing in your terms of business.

FighterSophisticated and robust contractual provisions that cover many different eventualities can lead to complexity; and complex documents can be difficult to use. The Recruiters Casebook begins to explore more collaborative approaches and highlights the value of including well designed dispute resolution clauses that can help to resolve a wide variety of differences and disputes that might arise in the course of commercial dealings – even where the client relationship is strong.

Standing Offer or Overarching Agreement? Is it time to review your terms of business?

umbrella-6-2Learn how the structure of the supply arrangements you enter into is likely to affect the application of statutory guarantees and the unfair terms provisions as The Recruiters Casebook focuses on an important difference between Standing Offer Agreements (SOA) and Master Contract Agreements (MCA). We consider two cases, where different outcomes were reached due to the way the agreements were structured. What type of supply arrangements do you use? And why would it matter?

Andrew C. Wood