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

 

New Date For Vic. Labour Hire Licensing: “Up-Close & Personal” Workshop – Prepare Your Application

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By request, we’ve shifted the date for the third advanced workshop in WorkAccord’s Vic. Labour Hire Licensing; “Up-Close & Personal” series. The “Prepare your Application” workshop has been moved to 3 May 2019 to allow an opportunity to review and digest the Authority’s guidance material, due to be released by 29 April, when the scheme commences.

We’ve designed this series especially for participants who already have some knowledge of the scheme but need to go deeper to explore its implications for their business or advisory services.

You’ll get to examine:

  • eligibility criteria – who is prevented from applying?
  • information that you need to support your application
  • the “accommodation trap”
  • the “visa trap”
  • the “worker classification trap” – how to identify the different categories of workers you need to report on (employees v independent contractors v hybrid workers)
  • data matching traps
  • the fit-and-proper-person requirement
  • “skeletons-in-the cupboard” and what to do about them
  • removing the “dead wood” and some hard conversations you may need to have
  • mutual recognition, interstate licences and “approved schemes”
  • the Authority’s discretion to grant a licence even if the application does not satisfy all requirements
  • licence fees and how they are calculated
  • the question of timing
  • tactical withdrawal

Learning objectives

  • Gain confidence in managing the application process
  • Identify the information you will need and prepare an information capture plan
  • Evaluate your compliance history
  • Avoid leaving yourself open to refusals and objections
  • Develop an application preparedness strategy you can take back to the office

THIS IS A FANTASTIC OPPORTUNITY TO REVIEW AND DRAW ON THE GUIDELINES WHICH THE VICTORIAN LABOUR HIRE AUTHORITY SAYS IT WILL HAVE IN PLACE BY THE SCHEME COMMENCEMENT ON 29/4/19.

Come along as we will answer some of the hard questions that may have been causing some concern.

Class sizes will be strictly limited to ensure a high level of interaction and quality learning.

To find out more or to reserve your place check out the Eventbrite registration page here.  Or copy this link into your browser https://www.eventbrite.com.au/e/vic-labour-hire-licensing-up-close-personal-prepare-your-application-tickets-59754284674

Looking forward to seeing you there.

Andrew C Wood.

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Contractor Management Companies under Victoria’s Labour Hire Licensing Scheme.

Victoria’s Labour Hire Licensing scheme may cause some headaches as it tries to extend its coverage to contractor management service providers. That’s because there’s likely to be uncertainty about what a contractor management service provider actually does.

Section 8(2) of the Act provides:

 (2)     A person (a provider provides labour hire services if—

(a)     in the course of conducting a business of providing contractor management services, the provider recruits one or more individuals for, or places one or more individuals with another person (a host ) to perform work in and as part of a business or undertaking of the host; and

(b)     the individuals are workers for the provider, within the meaning of section 9(2)(b).

The explanatory memorandum, which accompanied the legislation in its passage through Victorian Parliament somewhat unhelpfully explained:

Contractor management services” is not defined in the Act, but has its ordinary meaning, which covers services whereby a business recruits independent contractors on behalf of a third party (host) and, following engagement of the independent contractors by the host, continues to manage the performance of the contract between the independent contractors and the host. This might include, for example, providing administration and payroll functions, supervision functions or performance management functions in relation to the independent contractor.

But what if the contractor appoints the business to manage the performance of the contract (or parts of it) – i.e. the business is a contractor appointed CMC (it happens)?  Does it make a difference?

And what if the contractor is not an individual (as required by s. 8(2)(a) and 9(2)(b)), but is an incorporated worker instead?

What if the provider recruits the incorporated entity and leaves it to the incorporated entity to recruit or provide the individual – perhaps under the reg.4(1)(c) exception?

Does the incorporated worker exception still apply if the contractor is supplied as a cleaner in a commercial premises? (see reg. 5(a)).

What other outsourced functions, apart from administration and payroll functions, supervision functions and performance management functions, amount to contractor management services according to the “ordinary meaning” – whatever that is? Would the provision of safety inductions be enough? Would onboarding assistance, or “performance monitoring” for the purpose of managing a candidate replacement guarantee be enough?

These might be the sorts of questions that the Authority would be keen to dismiss as questions “asked by clever lawyers” – as though that were a bad thing. But thank goodness there are some who are asking them and attempting to answer them… because, at some point, they’re going to be contested as matters of black letter law and not merely as a “vibe” picked up from a current affairs programme, a campaign manifesto, or a regulator’s website.

And before we ever get to that point, there’ll be plenty of providers, hosts, and contractors wanting to know where they stand.

If you want to participate in this discussion or learn from it, why not register for WorkAccord’s Intermediate/Advanced Level Webinar on 29 May 2019.

The link below will take you to the Eventbrite registration page, where you can find out more details about the webinar.

https://www.eventbrite.com.au/e/labour-hire-licensing-contractor-management-payroll-outsourcing-tickets-60801308350

The webinar will be recorded and can be accessed on demand following the live presentation.

The cost is $145 for live participation (including access to the recording) and $95 for the recorded version only.

As always, there’s a limited number of complimentary free tickets available, which people registering for the webinar might like to offer to their clients or staff. Please contact me if you’d like to take up one of the complimentary tickets.

I hope you can join me.

Andrew C. Wood

 

It Was All Smooth Sailing Until that Bl@@dy Independent Contractor Problem Raised Its Head…Again!

iStock-536170913.jpgOne of the challenges that will confront Victorian labour hire providers is that of providing the Authority with accurate data about:

  • the total number of employees;
  • the total number of independent contractors; and
  • the total number of workers who have been employed or engaged as both an employee and an independent contractor. 

It shouldn’t be a problem, but it’s clear from the wording of the regulations* that the Authority will be expecting applicants to get the classifications right. And that’s never easy.

Bromberg J, in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366, summed it up pretty well at para [206].

…the absence of a simple and clear definition which explains the distinction between an employee and an independent contractor is problematic. It is troubling that in the circumstances of the bicycle couriers dealt with in Hollis, the parties involved needed to travel to the High Court to obtain a clear exposition of the legal status of the couriers.  Workers and those who employ or engage them require more clarity from the law. That is particularly so when important legislation such as the Fair Work Act (and its predecessors dating back to 1904) have steadfastly avoided defining what is an employee, yet demand (on pain of civil penalty) that there be no misrepresentation as to the nature of the work relationship. (citations omitted)

This time the penalties are likely to include refusal, loss or suspension of a licence and/or penalties for making a false declaration if the information is required to be supported by a declaration under the Oaths and Affirmations Act 2018 (Vic). And that carries penalties of up to about $97,000 or imprisonment for 5 years or both.

And then, there’s the little issue about what the Authority is going to do with the information. Remember, you also have to provide information about the industries into which you supply services and the Awards under which you operate. That information is likely to be matched up.

What do you think is going to happen if an applicant declares that it supplies an uncharacteristically high number of independent contractors to an industry in which independent contracting is not the typical or dominant form of engagement – say nursing or horticulture?

You’re going to want to get this right!

So, to plan your application and give it the best chance to avoid getting tangled up, come along to one of WorkAccord’s Vic Labour Hire Licensing: “Up-Close & Personal” masterclasses or advanced workshops as we work through these issues.

Better still, come along to them all!

You can find out more about the series on our Eventbrite registration pages:

  • Masterclass #1 Reach and Limitations (23/04/19 from 9.00 am to 12:00 pm)
  • Masterclass #2 Managing Adverse Outcomes (23/04/19 from 1.00 pm to 4:00 pm)
  • Workshop #3 Prepare Your Application (3/05/19 – morning and afternoon sessions)

I hope to see you there.

Andrew C. Wood

* Labour Hire Licensing Regulations 2018 (Vic), regs 11 and 12.

Don’t Let Your Victorian Labour Hire Licence Application End Up Like This…

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Even High Flyers Get Tangled Up!

Nearly 12 months after the commencement of Queensland’s labour hire licensing scheme, there are more than 70 applications, lodged within the two-month transition window, which have still not been finalised. It’s clearly not been smooth sailing for everyone.

With a six month transition period in Victoria, we can be certain that the Labour Hire Licensing Authority will have time to subject applicants to close scrutiny.

So, to plan your application and give it the best chance to avoid getting tangled up, come along to one of WorkAccord’s Vic Labour Hire Licensing: “Up-Close & Personal” masterclasses or advanced workshops. Better still, come along to them all!

You can find out more about the series on our Eventbrite registration pages:

  • Masterclass #1 Reach and Limitations (23/04/19 from 9.00 am to 12:00 pm)
  • Masterclass #2 Managing Adverse Outcomes (23/04/19 from 1.00 pm to 4:00 pm)
  • Workshop #3 Prepare Your Application (3/05/19 – morning and afternoon sessions)

I hope to see you there.

Andrew C Wood

 

 

 

Victoria’s Clocks Are Back to Normal and Time Is Ticking Down to Labour Hire Licensing

It’s time to be thinking about your application before the scheme starts on 29 April 2019.

Once the scheme starts, you’ve got 6 months to get your application in –  i.e. by 29 October 2019. So, come along to  one of WorkAccord’s masterclasses or advanced workshops

You can find out more about the series on our Eventbrite registration pages:

  • Masterclass #1 Reach and Limitations (23/04/19 from 9.00 am to 12:00 pm)
  • Masterclass #2 Managing Adverse Outcomes (23/04/19 from 1.00 pm to 4:00 pm)
  • Workshop #3 Prepare Your Application (3/05/19 – morning and afternoon sessions)

I hope to see you there.

Andrew C. Wood

Don’t forget to lodge your Qld labour hire licensing reports. Failure could result in suspension … or worse!

Young thoughtful businessman making a call and writing notesFive licences are presently noted on the Queensland labour hire licence register as having been suspended.  It is an offence to use a labour hire licence holder whose licence is suspended. The offence attracts penalties including fines up to approximately $400,000 for a corporation ($135,000 for an individual) and 3 years imprisonment. Similar penalties apply to a labour hire services provider who supplies labour hire services whilst suspended.

Suspensions can occur for a number of reasons, including failure to make periodic reports required under s. 31of the Act or providing incorrect or misleading information in a report.

A quick review of suspensions currently noted on the register indicates that all of the suspended licenses were issued before 15 June 2018. That means that they would all have reached and passed their first reporting period.

Under the scheme, licence holders’ first reporting period covers the six-month period starting on the date their licence was granted. For example, if a licence was issued on 15 June 2018, six months ticked over on 15 December.

Licensees have 28 days after the end of each reporting period to submit their report. So, if a licence holder’s first six-monthly reporting period came up on 15 December 2018, the report had to be lodged by 13 January 2019.

Although the regulator, Labour Hire Licensing Queensland (LHLQ) has not yet published any statement of reasons for the suspensions, a fair inference to draw might be that the suspensions currently noted on the register could be related to failure to meet the reporting requirements.

Some support for drawing that inference can be found in LHLQ’s Compliance and Enforcement Policy, which explains that key enforcement strategies include:

Inspector audits to check applicants or licensees are compliant with the Act in terms of being fit and proper persons, six monthly reporting requirements and any conditions imposed on their licence.

Whilst LHLQ does take into account the seriousness of any breach, its Compliance and Enforcement Policy makes clear that it:

…does not regard the following as trivial:

  • alleged offences regarding unlicensed providers
  • entering into arrangements with unlicensed providers
  • entering into avoidance arrangements
  • failure to report, particularly where there is evidence that the person knowingly contravened their obligations or did not properly discharge their duty to ascertain their obligations.

If my hunch that the current suspensions may be related to reporting contraventions is right, we can expect to see more suspensions over the coming weeks. So, don’t get caught. Check the issue date on your licence and make sure that you get your reports in on time. If you need help, ask for it.

In the meantime, here’s a useful link to the regulator’s guide to reporting.

Andrew C. Wood

The Recruiters’ Casebook and WorkAccord Get Together for a Free Short Webinar Series

The Recruiters’ Casebook and WorkAccord are getting together to present two free webinars as they test their new webinar platform.

We’d love you to join us and give us your feedback.

Webinar 1

Competition & Consumer Law Brief – The New Playing Field.

Friday, 21 September 2018, 10.00 am to 10.30 am AEST.

Modern Universal Business Concept Icon SetAs job-based employment seemingly evolves toward job-based entrepreneurship in the freelance, contracting and gig economies, it’s becoming increasingly important for recruitment, contracting and staffing businesses to keep up to date with competition & consumer law developments that impact their sector and their incorporated workers.

In this free session,  Andrew C. Wood will present a short briefing to business owners & managers, consultants and contractors about the role of the ACCC in creating and supporting a fair and level playing field.

Andrew will cover the following topics:

  • Authorisations and protective notifications
  • Banning orders, penalties & remedies
  • Cartel prohibitions
  • Collective bargaining and the proposed small business class exemption
  • Misleading job ads
  • Statutory guarantees and unlawful attempts at exclusion
  • Unconscionable conduct
  • Unfair standard form, small business contracts
  • Unsolicited services (and claims for payment).

Register Now

 

Webinar 2

Transaction to Transformation

Friday, 28 September 2018, 10.00 am to 10.30 am AEST.

Modern Universal Business Concept Icon SetThe “factory model” of services production and supply, based on efficiency in repeating similar transactions has been disrupted by Artificial Intelligence. Astute suppliers in the recruitment, contracting & staffing industry are already talking about a major shift from transaction to transformation.

But what does that look like? How is it managed? How is progress measured? How is it supported by business models and the terms and conditions that underpin them? And is the transaction still important?

In this free introductory level webinar that has been designed for recruitment, contracting & staffing agency business owners and managers, we will begin to explore some of these questions and set a pathway for future discussion.

Register Now

Please send a shout out to your friends and colleagues. We look forward to seeing you there!

MegaMan

 

Andrew C. Wood

Collective Bargaining in the Freelance, Contracting and Gig Economies

Young people work in modern office.As job-based employment seemingly evolves toward job-based entrepreneurship in the freelance, contracting and gig economies, we may soon witness the emergence of new models of workforce organisation and worker representation. That is, if the ACCC’s plan to grant a class exemption allowing small businesses to bargain collectively with their customers and suppliers goes ahead.

Collective bargaining, in this context, involves two or more competitors getting together to negotiate with a supplier or customer (the “target”) about terms, conditions and/or prices.

It is distinguished from bargaining under the Fair Work Act in that the parties who get together are not employees; they are actual business competitors.

They include many contractors and freelancers, working in the on-hire and gig environments.

They may be technology contractors, medical locums, project managers, professional science & engineering contractors, designers & creatives, book-keepers, contract cleaners, contract logistics operators, or translators.

Indeed, they may be any small business that undertakes professional, skilled, or trade work that is done by workers who perform their work in, and as part of, their own businesses.

Recruitment, contracting, and staffing agencies would therefore do well to follow this new development closely; and begin to think about the challenges and opportunities that the ACCC’s proposal presents.

For example, what might an on-hire or IT contracting agency expect from a scheme that allows a pool of  its IT contractors to bargain collectively with it on price, terms and conditions of engagement?

Who might represent them? Should the current restriction on trade union representation apply? If it did, might we witness the emergence of contractor “guilds” that would be able to operate outside the Fair Work bargaining framework?

How might the ACCC’s concept of joint procurement bargaining play out, if it allowed that same pool of IT contractors to bargain simultaneously with their IT contracting agency and its clients?

What might small recruitment agencies, working in the creative or medical locum industries, gain from being able to bargain collectively with clients on price, terms and conditions of supply – without the need for any notification or authorisation?

What might the competition impact be on medium and larger businesses, who fall outside the scope of the class exemption; or who may be the targets of collective bargaining?

How might the role of industry associations develop to support members looking for collective bargaining resources and solutions?

These are just a few questions that recruitment, contracting, and staffing agencies (and their industry associations) might now be asking. No doubt there are many others.

The ACCC would like to hear about them by 21 September 2018.

 

Andrew C. Wood