“Tuesday TalkAbout” Summer 2020 Program to Address Recruitment & Staffing Sector “Waypoints”

Tuesday TalkAbout takes a new direction for its Summer 2020 Program of free, short webinars, as we discuss some larger themes at work in the recruitment and staffing sector.

Now, I certainly don’t claim to be a seer or a futurist. I observe and interpret. So, I’m not going to attempt to predict the course of the decade or anything like that.

Instead, I’ll describe the “waypoints”, which I think the recruitment & staffing sector in Australia and New Zealand has reached in eight key areas. ‘

A “waypoint” can be understood as a place on a route or pathway, a stopping point, or a point at which one’s course can be changed.

What the future holds from that point forward largely flows from the decisions and commitments which recruitment & staffing professionals make for their own organisations and professional lives – either intentionally or by default.

The observations and insights that I hope to share reflect experience gained over four decades in legal and workforce consulting practice and in recent work done with RCSA, designing its new Code for Professional Conduct, its grievance intervention guidelines & protocols, its StaffSure certification program, and many of its key resources and templates.

The eight key areas we’ll be discussing are:

1. Professional Conduct (21st January)

RCSA’s new Code for Professional Conduct has been authorised by the ACCC to commence on 8 August 2020. How is it different from previous codes or other industry codes? Why is it different? What statement does it make about emerging professionalism? How might recruitment & staffing professionals respond to it? How is it enforced and administered?

Register for the Professional Conduct “Waypoint” webinar here

2. Quality Management (28th January)

What does “quality” mean in the context of the work undertaken by recruitment & staffing professionals as labour market enablers and intermediaries. Does the ISO 9001 definition of “quality” say it all? How well does the “customer focus” requirement stand up to the professional conduct responsibilities of recruitment & staffing professionals? Is quality perceived as outcome or experience? Is it even an either/or question?

Register for the Quality Management “Waypoint” webinar here

3. Risk Management (4th February)

We know (at least I hope we do) that risk is defined for the purposes of risk management and quality management standards as the “effect of uncertainty on objectives”. But how might risk be categorised to be more manageable for recruitment & staffing professionals? What sorts of risk do recruitment & staffing professionals face in 2020? At what points does risk intersect with professionalism and quality? How can risk be managed to minimise its effects on professional and quality objectives?

Register for the Risk Management “Waypoint” webinar here

4. Collaboration (11th February)

What is “collaboration”, really? Why is it important for recruitment & staffing professionals in 2020? Is collaboration possible with customers and clients? Candidates? Competitors? Consultants? If so, how is achieved? How is it managed and maintained?

Register for the Collaboration “Waypoint” webinar here

5. Doing Business (18th February)

Something is wrong if you’re not upgrading your terms of business at least as frequently as your mobile phone! Wonder why you’re getting pushback from clients who won’t pay you that “introduction fee”, or who won’t sign up to your “all-care-no-responsibility” conditions? Terms of business modelled on 1980s recruitment & staffing practices and 1980s legal culture are no longer viable. In this session, we explain why and talk about what you can do about that.

Register for the Doing Business (Terms of Business) “Waypoint” webinar here

6. Conflict & Dispute Resolution (25th February)

Even for those who might be energised by conflict, there comes a point when stocks of energy and finances to meet the crushing cost of feeding conflict, run low. What is your conflict/ dispute profile? Do you still handle business disputes like it’s the 1980s and you’re a bank? Or have you found a better way? What are your options in 2020? What distinguishes the way you handle conflict and disputes as “professional”?

Register for the Conflict & Dispute Resolution “Waypoint” webinar here

7. Employment Shaping (3rd March)

What is the difference between legitimate employment shaping and sham contracting or avoidance? How much flexibility is there to shape an employment relationship to suit labour market conditions in 2020? What are the limits? How do you know if you are approaching or transgressing them? Are there any “golden rules”. If so, what are they and how do you apply them?

Register for the Employment Shaping “Waypoint” webinar here

8. Independent contractor on-hire (10th March)

What are the main challenges to independent contractor on-hire in 2020? Is the business integration test still reliable? What investigations should a recruitment & staffing professional undertake to ensure that independent contractor engagement and on-hire models are compliant with a wide range of regulatory requirements and are not exploitative?

Register for the Independent Contractor On-Hire “Waypoint” webinar here

I do hope you’ll join me when WorkAccord’s Tuesday TalkAbout Summer Program returns at 8:30 am AEDT on Tuesday 21 January 2020 and I’d love to learn of any questions you might have in advance.

 

Andrew C. Wood

Post-Law Day #153: Designing governance integrations

Businessman & NewspaperStocking up on coffee and snacks, and fine-tuning my playlists…

A big weekend coming up – designing the integration of professional conduct grievance intervention, control assurance certification, and whistleblower frameworks.

Also preparing a Tuesday TalkAbout on the topic: “Certification Schemes as Regulatory Alternatives: Pros & Cons” and a webinar Bootcamp for next Friday on the topic: “Whistleblower Policies (Strengthen Your Knowledge)”.

Enjoying the shift in focus as governance advocacy takes shape…

Andrew

Here’s What I’m Thinking About: “Labour Supply Chains”

This is my first attempt at video. Please treat it kindly. I clearly need a director, hair and make-up!

Nevertheless, I do hope you’ll join me for our next Tuesday TalkAbout on 19th November at 8:30 am AEDT, when we’ll discuss LAbour Supply Chains.

Here’s a link to register for the webinar. it’s free and it’s live.

https://zoom.us/webinar/register/WN_wttK2Q2gS_eo1UfY2dIiOw

Andrew C. Wood

Let’s Shed Light on Recruitment Fees!

 

Slide1Temp-to-Perm Fees, Agency-Switching Fees, Introduction Fees and Release Fees.

I hope you’ll join me when we shed light on the topic of Recruitment Fees in two separate webinars planned for Thursday 22nd November and Thursday 29th November at 10:30 am AEDT.

In our first webinar, you’ll learn how to make binding and enforceable recruitment fee agreements.

In our second webinar, you’ll learn how to manage fee recruitment disputes ethically and professionally.

You can find out more about the webinars in my Recruiters’ Casebook blog here.

 

Andrew C. Wood, Hon FRCSA (Life)

Two Webinars about Recruitment Fees

I’m looking forward to presenting two webinars on recruitment fee topics later this month. I’m looking forward to it because it’s a topic that I’m constantly asked about and one that needs to be mastered in the interests of promoting and maintaining professional standards in the recruitment and staffing industry.

Slide1Webinar #1: Make Binding & Effective Agreements (22nd Nov. 2019 )

In the first session, we will discuss how to make binding and effective recruitment fee agreements that will reduce the cost of disputes and help get your fees paid.

You’ll learn about:

  • basics of contract
  • the battle of forms – Does the client’s purchase order trump your standard terms?
  • traps when using standard form terms of business
  • State and Territory employment agent regulation
  • what happens if your terms of business are not signed?
  • terms of business that need special treatment.

 

RF2Webinar #2: Handle Disputes Ethically & Professionally (29th Nov. 2019)

In the second session, you will learn how to handle recruitment fee disputes professionally and ethically to preserve goodwill, reputation, and to improve payment outcomes.

You’ll learn about:

  • common causes of recruitment fee disputes
  • common defences to recruitment fee claims
  • traps to avoid when involved in disputes
  • RCSA Code of Conduct and Grievance Intervention Guidelines
  • pathways to resolution
  • the benefit of early intervention.

 

I hope you’ll join me. And if you have questions about the topic, please feel free to send them to me ahead of the event.

 

Andrew C. Wood, Hon FRCSA (Life)

 

 

 

Victorian Labour Hire Scheme: Mopping Up

Close up 0370Victoria’s labour hire licensing scheme is fully up and running – though perhaps stumbling forwards might be a better description.

After 6 months only about 380 licences have been granted, with another 50 or so granted subject to payment of fees.

There are more than 3,700 unprocessed applications. They are still coming in despite missing the cut-off date. If you’re in that long queue – or having to join it because you’ve decided you’d like to extend your labour hire business to Victoria – it could be as much as 12 months before you hear the outcome of your application.

Near-Misses

One of the things that did surprise me was the fact that 200 or so applicants missed the cut-off last week by only a matter of days – even hours in some cases.

Cleaning firms seemed to be strongly represented amongst the near-misses, perhaps because of uncertainty about how the complex integration test and deemed worker provisions applied. Though there were others as well, including general labour hire providers, interstate providers, and at least one legal recruiter.

Misses will hurt

Those near-misses are going to hurt because, unless the applicants can fix something up quickly with the Authority, a miss is as good as a mile.

It’s now an offence under Victorian labour hire licensing laws:

  • to provide labour hire services without a licence
  • to advertise willingness to provide labour hire services if you don’t hold a licence
  • to acquire labour hire services from an unlicensed provider
  • to be involved in avoidance arrangements.

Reaction

So, what’s likely to be happening now?

I suspect that there may be more than a few who have obtained their licences, or got their applications in ahead of the cut-off, who’ll be looking closely at the near-misses and perhaps giving their competitors, or their clients, a cordial “heads up”.

The regulator may be looking as well. If you’ve provided details of your clients and their workplaces, the regulator will know where to find them and might consider giving your clients a cordial reminder that the prohibitions are now in effect.

I suspect that there’ll be a few in the near-miss category, who’ll need to look at their supply arrangements to decide how quickly they can get out of them and if they can get out of them now without penalty.

Clients are likely to be looking at the registers to see which side of the cut-off their suppliers fall on. You might find that they are terminating contracts with unlicensed providers and thinking about what action they can take to recover the cost of entering into new or alternative supply arrangements.

There’ll be workers (and their unions) who’ll be wondering whether they still have jobs, and more than a few clients might be wondering how they can transition supplier arrangements.

There’ll also be more than a few who’ll have to fix up their websites and marketing so that they’re no longer advertising a willingness to provide labour hire services.

Maybe it will settle down eventually, but until then it’s a bit of a mess.  Who knows, perhaps a federal scheme that prevails over state laws with a concerted move to dismantle the systems in the three states that now have labour hire licensing will be all that can clean it up.

 

Andrew C. Wood

Are You “Over-Promising” on Confidentiality & Privacy?

“Over-promising” often occurs as a result of making unqualified statements. Sometimes, those statements are made inadvertently; other times, they may be made recklessly or through ignorance.  Sometimes they are harmless; other times, they can mislead and create false expectations that cannot be met.

One area in which it’s always good to be wary of unqualified statements is the area of confidentiality and privacy.

For example, if as a mediator, I were to say to the parties something like:

Information you give me is confidential. I will never, in any circumstances, disclose it

I would be “over-promising”. That’s because there may be circumstances where disclosure could be required or permitted by law.

Similarly, if a recruiter were to say to a candidate something like:

Information about our candidates can never, in any circumstances, be disclosed for a purpose other than finding them employment

that recruiter might be “over-promising”. Again, that is because there may be circumstances where disclosure could be required or permitted by law. You can probably think of a few of them. Some of them appear as exceptions to privacy principles. There may be other exceptions that apply at common law. In fact, your recruitment software (including integrated, third-party software ) probably captures and discloses information that you might not even have thought about!

By over-promising, you can end up misleading people into divulging information, which they might not have willingly disclosed if you had qualified your promise properly. Consent may have been improperly obtained – not being sufficiently informed. And the information may have been collected and disclosed unfairly.

In short, “over-promising” on confidentiality and privacy crosses the boundaries of professionalism. So, it’s essential to know where the limits of confidentiality and privacy lie and to mark them out with carefully considered and qualified statements.

 

Andrew C. Wood

 

Post-Law, Code 5 and Change

Change yourself concept background

I’m looking forward to leaving the Law.

Yes, after more than 40 years as a student and practitioner, I’ll be retiring from legal practice at the end of this month. Some people have asked me, kindly, if I’ll be doing any “non-legal work” in my “retirement”. That sounds a bit doddery and even vaguely unlawful!  I prefer to think of what I’ll be doing as “post-law”.

Post-law aims to resolve conflict and build accord without recourse to law, legal rules, or legal processes. It links more to the pull of community and relationship than to the push of State and power. It finds affinity with social norms and professional standards rather than with tribunal processes and regulations.

In my case, a transition to post-law is prompted by critical attitudes developed in the informal justice movement over the years and draws together learnings from mediation, conflict resolution, and integrative practice.

My friends in the workforce enablement, recruitment, and staffing industries may be aware of recent work I’ve been doing to design industry codes, standards, and conflict resolution models that are kinder, more human-centred, and more values-informed in their pursuit of professional excellence than the legalistic, anti-competitive, and self-interested models that are often promoted as codes of “association ethics”.

The RCSA Code for Professional Conduct (“Code 5”), recently the subject of a favourable ACCC draft authorisation, is a project that is informed in many ways by post-law thinking.

It replaces a professional conduct regime that has been based on rules and punishments with one that is based on professional values and guidance. It is not written as an abridgment of selected laws (such as workplace laws, discrimination laws, consumer protection laws, or privacy laws) but as an articulation of professional values drawn from the principle of Respect for Persons and from Ethics of Care normative theory. It requires Members to adopt professional values personally and to embed them operationally in their organisations.

You might have seen the Current Affair item, aired on 27 May 2019, which reported on a Western Australian “recruiter”, who was caught on the telephone speaking in a derogatory manner about a candidate, after having “stalked” the candidate via her social media account. The recruiter declined to proceed with the candidate because of what she found in her Facebook profile…or so the story goes.

You can view the Current Affair item here:

https://www.9news.com.au/national/a-current-affair-facebook-photos-cost-job-opportunity-claim-young-woman-voicemail-latest-news-australia/c673d680-cfd0-4f67-b12a-116f913f5e96

For her part, the recruiter attempted to deal with the media confrontation with as much grace as she could muster, given the embarrassing circumstances in which she found herself.

Industry stalwart, Ross Clennett was asked to comment as an expert recruiter (impressively as always) and several lay people offered their views – mostly amounting to “it’s unfair” or “it’s discrimination”.

What intrigued me – and I think it’s worthy of comment in this context – was that “unfairness” and “discrimination” are both claims-based concepts, which rely heavily on legal rules and procedures. And as far as the legal rules go, a claim of unfairness or discrimination might not be compelling in these circumstances.

There would be some evidence of indirect discrimination on the grounds of gender if the recruiter’s stalking of social media accounts were limited to the accounts of women candidates. But that seems to lead to a bit of a dead end in this case.

There might also be some issue about privacy. But the gravamen of the complaint is not so much that the information was collected, as the way in which it was used – or more specifically the adverse judgments that the recruiter made based on the information collected and the hurtful discussion that was overheard to take place between the recruiter and her colleagues.

Law states a rule, proves a breach and then looks for a remedy.

A post-law approach might ask a question – “What is the right (or professional) thing to do here?” And then looks for a pathway to the “right” or “professional” outcome.

There is a place for both, of course. And although post-law seeks outcomes that are within law  (i.e. they are lawful), its outcomes are not achieved by law.

That is why I think that a code, which can frame conduct – not as unfair, discriminatory, or a breach of privacy; but more accurately as “unprofessional” – provides a superior framework, in many circumstances. The conduct which was portrayed in the Current Affair programme is unprofessional precisely because it fails to demonstrate the respect and care due to candidates – respect and care, in the case of RCSA’s new code, providing the two broad ethical systems that inform Code 5 and its statement of professional values.

Strip away legal arguments about whether there has been unlawful discrimination, actionable unconscionability, or breach of privacy (with all its uncertainties about where the boundaries lie), and you’ve got a simple issue – Did the recruiter act professionally? That question is not so hard to answer.

And once it has been answered, the remedial and corrective pathways – freed of technical defences – provide, in my opinion, vastly superior means of achieving satisfactory outcomes that seek, not punishment and compensation, but improvement of professional standards and remedial conduct according to a standard of restorative justice that is “becoming of a professional member” of an industry association.

In many ways, that is quite close to what I mean when I say I’m retiring from legal practice to take up “post-law” practice.

But it doesn’t mean I get to go fishing… just yet.

For me, it means moving away from a model of legal practice that I’ve become familiar with over four decades to embrace a different model with new challenges.

I’ve said to a few people that I’ll be spending my time resolving disputes rather than agitating them. But, perhaps more accurately, I’ll be working with people to help them to find ways of solving their own differences.

I’ll be developing and encouraging the potential for professional self-regulation within the workforce enablement industry – meaning behavioural self-regulation in accordance with professional values, rather than the “closed shop”, anti-competitive type of industry self (interested) regulation that is often passed off as a code of ethics.

And, through learning design work with WorkAccord and through private research, I’ll continue to explore the field of knowledge that must still be mastered if there’s to be hope for emerging professionalism within a post-law environment.

So, I’m not actually “leaving the building”, as they say. I’m just moving to a different floor. Maybe one that’s a bit closer to the ground.

 

Andrew C. Wood

 

Privacy Awareness Week May 2019: Privacy Refresher & Update for Recruiters

Privacy Awareness Week is just around the corner and, to kick off its Wednesday Webinar series, WorkAccord is joining in on  Wednesday, 15 May with a free webinar: Privacy Refresher & Update for Recruiters.

I hope you can join me as we refresh our privacy knowledge and update with a look at:

  • the impact of the GDPR on Australian recruiters
  • data breach scenarios for Australian Recruiters
  • social media – what are the recruitment and workplace boundaries?

There’ll be time for questions… and hopefully some answers!

You can register for this free webinar via our Livestorm registration page.

 

Andrew C. Wood

 

12 month non-solicitation clause held enforceable against ICT on-hire employee: First lessons.

silhouette-of-scaleThe decision of the NSW Supreme Court in Thinkstorm Pty Ltd v Farah [2017] NSWSC 11 (per Lindsay, J) which was handed down on 30th January 2017, is instructive for what it tells us about the enforceability of non-solicitation clauses in professional on-hire employee contracts.

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