Post-Law, Code 5 and Change

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

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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