Labour Hire Licensing Bill Casts a Very Wide Net

Queensland’s new Labour Hire Licensing Bill casts a very wide net.

Given the broad definitions of provider and labour hire services set out in Queensland’s Labour Hire Licensing Bill 2017, introduced into Parliament on 25 May 2017, it will be interesting to see the extent to which common service entity arrangements for professional firms and corporate groups will be affected.  The definition runs:

A person (a provider) provides labour hire services if, in the course of carrying on a business, the person supplies, to another person, a worker to do work.

The definition does not require that the business that is being carried on actually be a labour hire business in a sense that one might immediately recognise – merely that a worker is supplied by the putative labour hire provider in the course of whatever business it does conduct.

Many service entity arrangements are therefore likely to come under that umbrella; and they may be far removed from anything do with the labour hire industry as it is commonly understood. The service entities of medical, legal, and accounting practices may be just a few examples.

However, the Bill at sub-clause 7(3), does provide for the making of exceptions by regulations.

Get ready for a long list of regulations!

FISHERMAN & NET 5

 

Andrew C. Wood

Mind Your Language!

What a pity that the Labour Hire Licensing Bill 2017, which was introduced to Queensland Parliament today, advances core definitions that seem to be inconsistent with the ILO’s foundational principle that “labour is not a commodity”*.

The definitions of provider and labour hire services, which are set out in clause 7 of the Bill, run:

A person (a provider) provides labour hire services if, in the course of carrying on a business, the person supplies, to another person, a worker to do work.

Language matters. We reflect and construct meaning from the words we use.

It is disappointing, therefore, to see the extent to which proprietary language seems to have carried over as a legacy into a contemporary field of recruitment.

Language such as “candidate ownership”, “assignment”, “labour supply chains”, and “delivering or supplying workers” – even where used by enlightened human resources and procurement practitioners – hark back to a darker past and a flawed appreciation of the ILO’s foundational principle that “labour is not a commodity”.

It is more disappointing still to see such language promoted in this Bill.

The Bill provides an opportunity to set a new course in the way in which we describe important work relationships. However, it is early days and perhaps it is still not too late for the Queensland Parliament to seize it.

I’m hoping that it does!

gavel

 

Andrew C. Wood

 

*  The Declaration of Philadelphia (1944) 

Defining the Undefinable. Pursuing the illusive definitions of “independent contracting” and “employment”.

In the lead up to the 2016 federal election, the ALP committed “to work with workplace relations experts and practitioners, employers and unions to develop a definition of independent contracting that will provide certainty to workers and employers”[1]. Despite losing the election, there are still plenty of people involved in state and industry politics, who would like to do much the same thing.

So, let me explain why I think that heroic attempts to define independent contracting and employment are futile; and quite possibly counter productive, other than to reveal what the workplace relations experts already know – namely that the terms are neither defined nor definable.

Continue reading

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.

Once we grasp that truth, we might start to ask whether there is a need in some sectors – especially those involving the supply of employment services, human resources and human services – to re-appraise the type of legal relationships that we create and the way we create them; because what we put into our contracts says a lot about the relationship that we will get out of them.

Continue reading

Reclaiming the Power of Self-Regulation in the Employment Services Industry.

Recreation  069

In the Future of Work, the employment services industry must reclaim its power of self-regulation.

It’s not about setting up sympathetic hierarchies to make soft-edged rules for the commercial comfort of “the Regulated” – as some industry detractors want us to believe.

It’s about using relational resources that can be discovered at the positive core of the industry to nurture response-ability[1]the ability to choose and to act as effective and ethical agents in multi-actor employment services transactions.

And it might require us to take a new look at what we think we know about the compliance education and compliance activity upon which we’ve been dependent to date.

How might we begin that process? 

I’ve been having an engaging conversation with Lisa O’Hara of Exclusive Migration about non-compliance, compliance education, and self-regulation. It was triggered by a provocative comment from work futurist, Jeremy Scrivens, who has been tweeting:

“The opposite of non-compliance in the future of work is not compliance; but self-regulation.”

Enticing – but not much to work with until you go deeper. So, I followed up on Jeremy Scrivens’ writings and discovered what I think is gold in his article, We Can’t Get On Together with Suspicious Minds (Love that title!). Here’s an extract…

 

We are living at a time when there has never been more compliance and regulation in organisational life and it is killing the joy, adventure, wonder and passion in our work. Everywhere I go, I hear from people that they want to spend more time on the bigger, life issue for working, which is to contribute something meaningful and less time on the ‘paperwork’ and compliance aspects of work. People are crying out to be engaged in more meaning, more contribution and less compliance.

Please don’t get me wrong; I am not saying that we don’t need checks and balances in our organisations to ensure that we are ‘safe’ and secure across the board; what I am saying is that we need to restore the balance and change the order of the questions. Rather than safety first, let’s put adventure first. Rather than compliance first, let’s look at how we can experience more contribution and meaning.

Jeremy went on to quote Dov Seidman in Forbes Magazine:

‘Most companies today are committing a fundamental mistake: they are “doing” compliance –the U.S. spent $29.8 billion on compliance activities in 2010 according to a study from AMR Research – but they are not “getting” more compliance. The frequency of compliance violations is increasing rather than diminishing and the impacts of non-compliance in a more interconnected and interdependent world are much more dramatic.

According to Jeremy, Seidman says that:

“…we need to experience a shift in organisations from one of compliance and risk to a new focus on fostering a positive culture which emphasis ethical behaviours and innovation, not compliance.”

Having spent the last 18 months or more designing a code for assisted self-regulation of the employment services industry, comments like these were always going to capture my attention.

What had also captured my attention was a submission to the Queensland Labour Hire Inquiry along lines which suggested that, in order to achieve compliance with already existing statutory regulation, perhaps all that is needed is more education about compliance.

There are several reasons why I think we’re going to need more than that.

The first is that education is not always a good predictor of compliance; and in my experience, it’s the already-mostly-compliant, who turn out for the education!

Moreover, compliance education is often too narrowly targeted at a single point of agency in the interplay of multiple actors, who are in a position to affect real outcomes – it is directed to employers, or to employment services providers, or to consumers; rather than being designed to build understanding and promote collaborative action simultaneously from multiple parties’ perspectives, stories and experience. There are, of course, exceptions … but, in the manner of exceptions, they are exceptional!

Additionally, much of the compliance education currently on offer is problem-centered. It’s scary stuff! And I’d be the first to admit that I’ve been responsible for some of it in the past. But there is a lot that we can learn from the field of appreciative inquiry, and at last I am beginning to get that:

If you focus on a problem and you design around a problem and you build actions around a problem, what you’re more likely going to get… is more of the problem.[2]

So, what do we do if we choose not to focus on the problem – bearing in mind that making  that choice might be our first step towards effective self-regulation?

I like what Peter Pula of Axiom News says about redirecting our problem-focused energy:

You feed that energy when you’re focusing on the problem. Whereas you could say, ‘What would I rather was happening?’ Paint a picture of that. ‘These are the things we would like to be experiencing. If you’d like to be experiencing these similar things, come into conversation with us and we’ll see what happens’[3].

Several things immediately fell into place.

Firstly: Industry or professional self-regulation isn’t about making do with sympathetic hierarchies & soft-edged rules; it’s about using relational resources to inform choice and to act as effective and ethical agents in multi-actor employment services transactions.

Secondly: When a profession or industry declares its commitment to high-core principles such as:

We provide an appropriate standard of service to your work seekers and customers.

We act with integrity and deal fairly.

and to outcomes such as:

We provide services that meet our customers’ proper and agreed requirements…

…it is really making statements about what it would “rather was happening”. It is redirecting what has previously been problem-focused energy towards describing and achieving positive outcomes that are consistent with values of service and fair dealing that can be discovered at its positive core.

Thirdly: When an industry or profession commits itself to collaboration with its interest-holders, it positions itself to co-produce an architecture that can supports constructive dialogue about acceptable outcomes, which make valuable contributions to the proper functioning of the labour market with which it interacts. Everyone benefits.

It is important, in seeking this new approach, that we do not reject the notion of regulatory compliance, so much as highlight the type of self-regulation that is essential to achieve the “opposite of non-compliance” – once the necessary foundational knowledge has been attained.

It therefore remains necessary to educate and equip businesses with the tools and knowledge about what the rules are and how to avoid breaking them. Beyond that, we must have the imagination to go further; because education, in the absence of an effective capacity for self-regulation, can only ever create the awareness of non-compliance. For it is the ability to self-regulate – to make the right choices – that will advance the industry beyond the state of non-compliance, which many presently assert characterizes it.

As each new story about labour market exploitation and non-compliance appears on a current affairs program (or in a public inquiry)  doing damage to the employment services industry’s social licence, the awareness of non-compliance increases and we are reminded of the need for the industry to reclaim its power of self-regulation.

Many firms already exercise that ability on a daily basis. They lead by example. They are to be commended for it. What is necessary to take the next step in reclaiming the power of self-regulation is for the industry to engage its interest holders in the co-production of statements of acceptable business outcomes that make valuable contributions to the proper functioning of the labour market.

There is now an important conversation to be had; and I hope you might join it.

 

Andrew C. Wood

 

[1] Stephen Covey’s expression describing the ability to choose our response to any situation.

[2] Co Creating Generative Conversations in Community, Axiom News (2016) http://axiomnews.com/co-creating-generative-space-community  

[3] Co Creating Generative Conversations in Community, Axiom News (2016) http://axiomnews.com/co-creating-generative-space-community   

7 Market-Driven Features of the Fels Wage Fairness Panel Inquiry into the 7-Eleven Franchise

For anyone who might be looking for evidence of the effectiveness of market-driven initiatives in tackling labour exploitation, seven features of the Fels’ Panel inquiry into wage fairness within the Australian 7-Eleven franchise are worth noting. Continue reading

Work Contracts, Four Walls and Robert Frost; or how law is being disrupted by the #FutureofWork

Something there is that doesn’t love a wall,

That wants it down…

(“Mending Wall” by Robert Frost, 1914)

 

[Reproduced from an article I published in The RCSA Journal, December 2015]

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I’ve been intrigued by the conversation about the future of work and the way in which #Digital; #Mobile; #Social and #Just_About_Anything_Else_With_A_# have been #Disrupting the workplace.  It’s been a hashtag fest. And that’s been a good thing.

Although RCSA conferences over the past few years have been laying the groundwork, I was provoked most recently to think about this again after reading a couple of blog articles by Jeremy Scrivens[1].

The first one that caught my attention was titled, Future of Work is The Restoration of Authentic Community at Scale[2]; the second was The Future of Work is Business as a Community of Purpose and Belonging[3]. These articles seemed to be making some important points about the How, the What, the Why and the Who of the future of work[4].  Well, I retweeted them both, of course!  And then I asked myself, why are we talking about this as though it’s always coming; but never quite here?

Surely, if these disruptive influences can already be identified in some work settings, this Future of Work, this re-scripting of the fundamental narrative about Work and the Firm is already happening. So, what are we going to do about it? Because at some point we have to do something – beyond preparing (or borrowing from) another prophetic keynote speech! At some point, we need to assess what is happening – not just to the workplace; but to the foundations of what believe, or think we believe, about Work and the Firm. And then we need to adjust for it in ways that help to realize and release this positive and productive force that is the #FutureofWork.

Now, as a lawyer, it’s the adjusting that I find to be the most fascinating and challenging aspect in all this, because it makes us first take stock of what we’ve already got – a legacy of three centuries of enclosure that have shaped our thinking about what is normal for work relationships. Think about it. When we are setting up work agreements, we are often thinking in terms of locking in, tying up, tying down, and making water-tight a set of rights and obligations that are capable of judicial enforcement. Nowhere is this more apparent than in the so-called Four Walls provisions that appear in many of the contracts that we use on a daily basis. You know them as the provisions that say something like:

This agreement contains everything that we have agreed; and we have not agreed anything that is not in this agreement; and we will not agree anything that is not in this agreement unless we agree it in writing and put it in this agreement.

Everything that we have said in the past is of no account; and anything that we may say in the future is of no account…

Authentic community? Community of purpose and belonging? It seems that we have accepted the proprietorization (Spellcheck tells me that is not a word, so I had better make it #Proprietorization) of work relationships; and, in the process, we have lost sight of the connection of work to community – at least to the extent that the authenticity of our work relationships is now strained and overdue for re-evaluation.

And that re-evaluation is what I am having to do right now as I set to work on designing new ways to charter more open and permeable work relationships. It is a challenging and confronting exercise. I am having to find fresh language to script new narratives of work and of the firm. I am needing to think not so much in terms of ownership (possession, exclusion; fencing out) as in terms of stewardship (care, inclusion, fencing in). I am needing to think not so much in terms of obligation as in terms of co-operation. And I am having to find ways to charter co-operative relationships that are sufficiently elastic to accommodate disruption and change and yet firm enough to support productive engagements. Others of you, who work on contracts, are no doubt similarly engaged. It will take all our skill – and perhaps skills that we do not yet have – to get it right. And that is exciting.

OK, so perhaps, “Spring is the mischief in me” after all; and I could say, “Elves”. But it’s not elves exactly and I’d rather you said it for yourselves… with or without the #hashtag!

Andrew C. Wood

[1]  Work Futurist & Social Business Culture Catalyst - Director The Emotional Economy At Work
[2] https://www.linkedin.com/pulse/future-work-restoration-authentic-community-scale-jeremy-scrivens
[3] http://www.kinshipenterprise.com/_blog/Blog/post/Business-Community-Purpose-Belonging/#.Vilx8PkrKUl
[4] https://www.linkedin.com/pulse/why-companies-struggling-engage-workforce-future-digital-scrivens

Tougher penalties and crackdowns – superficial, short term “solutions” to labour market exploitation.

When things go wrong within a high consequence[1] industry such as the employment services industry, a sort of “moral panic” can sometimes set in that sees interest groups demanding tougher penalties and crackdowns. Whilst penalty increases and crackdowns meet a political need to “get tough” on offenders, if one scratches beneath the surface, there is often little substance to them.

Penalties and sentencing measures serve several functions including:

  • retribution – assuaging public outrage and demands for “justice”;
  • general deterrence – deterring others from committing similar offences;
  • rehabilitation – correcting and improving the offender’s conduct [2]

At best, tougher penalties and crackdowns merely serve a short term interest in retribution – and then only if they are sufficiently well-directed to catch the principal offenders and those who benefit from the offence.

It is widely accepted (and you can understand it from a risk management perspective) that the effectiveness of general deterrence depends upon the likelihood of being caught and the consequences of being caught.  Tougher penalties only address the consequences of being caught. Unless there is a commensurate likelihood of being caught, brought about by focussed intent and increased resources in support of enforcement policy, sustained over time, the effectiveness of penalties and crackdowns is rarely as great as one might hope or predict.

Penalties and crackdowns also fail to address rehabilitation, which in the context of employment services industry regulation, can be understood in terms of improvement and correction of business practice concerning the supply and use of labour and employment services.

So whilst there may be many interests clamouring at the moment for tougher penalties and crackdowns, what is really needed is change and industry improvement at a more profound level – and to be effective, it will have to be industry led rather than imposed by courts and tribunals in the form of penalties and sentencing measures.

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[1] “High consequence” in terms of the adverse human rights impacts that employment services agencies’ operations may have on work seekers – masking and sometimes legitimising exploitation.
[2] Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 (14 May 2007) at [93] cited in Fair Work Ombudsman v Quincolli Pty Ltd & Anor (No.2) [2013] FMCA 17 (18 February 2013) at [60].

 

There is no such thing as employment law

What! But don’t you teach it?

Employment Law Mosaic

It is true that there are lots of laws that impact upon the employment relationship; but the relationship is dynamic and subject to a vast array of laws that are forever coming, going and changing. Indeed, it is difficult to conceive of any area of law that does not impact, in some way, upon the employment relationship.

Usually when we commence an employment law unit, we start by looking at the thing we call the “Employment Law Mosaic”. It is simply a list of different areas of law that we think  impact upon the employment relationship in some way and with which, as practitioners, we need (try) to be familiar.

How many areas of law listed on the blackboard do you think relate to the employment relationship? Are there any that don’t? Can you think of any others?

Andrew