The Unfair Contracts Legislation: Threat, Challenge, or Opportunity?

Now that we have passed 12 November 2016, when the unfair terms in standard form small business contracts reforms commenced, recruitment, on-hire and contracting agencies might consider 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.

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Checking for Unfair Terms in Standard Form Small Business Contracts.

With less than eight weeks to go before the unfair terms in standard form small business contracts changes to the Australian Consumer Law take effect, the 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.

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

With 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], I am hoping that someone is looking at how this is going to play out for independent contractors and their principals in the recruitment, on-hire, and contracting industries. 

I might be about to ask more questions than I can answer; but let me ask them anyway and see if they bring a few issues into sharper focus.

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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.

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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.

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

guaranteed-434x640Talking about Candidate Replacement Guarantees

In Brisbane recently, I had an opportunity to speak with recruiters about their terms of business. We got to talking about candidate replacement guarantees and some of the challenges that they present.

Often recruitment agencies put forward their candidate guarantees as a competitive point of difference; but after a while they begin to look pretty much the same.

One thing intrigued me. It was the idea that a competitive point of difference could be based upon what, from a client’s perspective at least, might be viewed as a service failure.

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

justiceTaking stock

From 12 November, 2016 the Australian Consumer Law will provide that a term of a small business contract is void if:

  • the term is unfair; and
  • the contract is a standard form contract.

The Recruiters Casebook has been exploring each of these key expressions as we prepare for the 12 November reform commencement date.

So far, we’ve looked at the definition of small business contract. A contract is a small business contract if it meets both a headcount requirement and an upfront price requirement.

We have already considered the headcount requirement (fewer than 20 employee) and the upfront price requirement (not more than $300,000 or $1 million if the duration of the contract is more than 12 months).

In our last article, we identified some recruitment, on-hire and contracting agency contracts that you might regularly use, which might be standard form contracts and took a closer look at how a court would decide if they actually are standard form contracts.

Standard form contracts that are often used by recruitment, on-hire and contacting agencies could be:

  • terms of business under which you supply services to clients;
  • terms of business under which you acquire goods, services or property interests (e.g. a commercial lease) from third parties;
  • terms of business with your independent contractors – because they’re contracts for services;
  • candidate or work seeker registration agreements – because you are supplying agency or representation services – even though the candidates or work seekers might not actually be engaged or might be between assignments.

In this article you will learn how to recognise terms of standard form contracts that might be unfair and how a court would decide if they actually were unfair. Continue reading

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

 

From 12 November, 2016 the Australian Consumer Law will provide that a term of a small business contract is void if:

  • the term is unfair; and
  • the contract is a standard form contract.

We are exploring each of these key expressions as we prepare for the 12 November reform commencement date. So far, we have looked at the definition of small business contract. A contract is a small business contract if it meets both a headcount requirement and an upfront price requirement. We have already considered the headcount requirement and the upfront price requirement.

Let’s see if we can identify some contracts that you might regularly use, which might be standard form contracts. Then we’ll take a closer look at how a court would decide if they actually are standard form contracts.

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Time for a healthy change in contingent workforce procurement and supply.

A healthy change seems to be taking place in the way contingent workforce procurement and supply is being imagined, designed and planned. Recruitment and procurement professionals are behind it; and it is possible to see signs of a strongly emerging view that the process will become more collaborative – one in which key stakeholders work together to co-produce more efficient, equitable, effective, economic, and elegant outcomes. Continue reading