Post-Law Day #80: Mediation Reflections

Day #80 spent successfully completing a Resolution Institute mediator refresher course.

Wonderful to have an opportunity to attend and refresh skills – enjoyed testing the shift to a “post-law” point of view in practice mediations and found it easier for me, now, to “shelve” legal analysis of “the problem” so as to facilitate parties’ exploration of the issues and attempts to generate options.

In reflection, I also identified that I was less affected by the adversarial stance of the parties. In my pre-Post Law phase, I’d often be drawn to the side of the legal argument that I thought was more convincing. Not so much now. Interesting. Looking forward to seeing how this develops.

Andrew

Post-Law Day #31: Saying, “N..n..nn…no.”

A whole month has gone by since I started to make my post-law transition and I’m finding that one of the hardest parts of the transition is saying, “No” when people ask me for legal advice.

That’s because, for nearly 40 years, I’ve been saying, “Yes”, and my instinct is still to go immediately to the “legal answer” to their questions.

And it’s not that I’ve forgotten all my law over the past month. In fact, my reading and writing have probably taken me deeper into some aspects of it.

I think it’s really about being intentional and being committed to working in a different paradigm and modality – a different way of relating to legal knowledge and the constraints law places on people…

…And it’s also about tuning into new voices, new influences, new and different ways of experiencing the old, familiar knowledge. That’s maybe the most exciting part. It’s also the scariest.

I can see it will take me a while.

So, if you ask me and I say, “No”, maybe we should still talk. Maybe there’s a different question – perhaps a better question. One that can lead to a better answer.

Staying resolute

Businessman & Newspaper

 

 

Secondment exceptions in the Australian Labour Hire Licensing Schemes: Do sporting clubs need licences for their loan players?

Throughout this week, I’ll be publishing some commentaries on the exceptions to the labour-hire licensing schemes currently operating in Queensland, Victoria and South Australia. The commentaries are not legal advice and shouldn’t be relied on as though they were. I hope, rather, that they’ll promote some necessary discussion and further questions.

I’ve already looked at the incorporated worker exception. Today, I’ll be discussing the  “secondment” exception. I’ll be doing it by posing the question: “When Melbourne Storm sends a player to “lace up” for Sunshine Coast Falcons, will it need to produce its Victorian and Queensland labour-hire licences?”Rugby 03 

Background

Storm and Falcons are two Rugby League clubs. Storm is based in Victoria, Falcons in Queensland. Storm is an NRL club with professional players, Falcons plays in the Queensland Cup competition with mostly semi-professional players. From time to time players contracted to play with Storm are sent north, by arrangement between the two clubs, to play for Falcons – e.g. when they’re returning to NRL competition after a lay off for injury and the like.

Labour-hire?

At this point, it’s starting to look a lot like a familiar triangular labour-hire arrangement. A worker (Storm player) is supplied to another person (Falcons) to perform work (play footy) in and as part of the business or undertaking of the other person (Falcons).

It doesn’t matter that the clubs are in two different states – both states have labour-hire licensing schemes that operate beyond state boundaries.

It doesn’t matter whether the player is an employee or independent contractor according to the strict legal distinction. It doesn’t matter if there is no contract between the Storm player and Falcons. It doesn’t matter whether the work is performed under the control of Storm or Falcons. And it doesn’t matter whether Storm places the player directly with Falcons or does so indirectly through one or more intermediaries. (Just wait until we get on to the AFL draft scheme!).

It does matter, however, that the player is a “worker” for Storm – i.e. the player is an individual and Storm is obliged to pay the player in whole or in part for the work, either directly or indirectly through one or more intermediaries.

So, let’s say, on the face of it, that we’re talking about a labour-hire arrangement. If that’s right, Storm might need a Victorian licence as well as a Queensland licence. Falcons would be prohibited from acquiring “labour-hire services” from an unlicensed provider.

Now, this is all hypothetical of course! I’m not suggesting for one moment that either club is operating in contravention of prohibitions contained in either the Victorian or Queensland Labour Hire Licensing Acts.

But you can perhaps see the problem that arises when labour-hire licensing is introduced on a universal coverage basis without being targeted to the sectors where it’s really needed. Did anyone think this would be an outcome when the schemes were proposed? Of course, they didn’t. The States were urged to adopt targeted schemes. The Victorian Forsyth Inquiry even recommended it.  But those urgings and recommendations were ignored.

So, what we’re left with is the possibility that the schemes in both States (and in South Australia) cover this type of arrangement. And that is why the exceptions are extremely important.

The Secondment Exception

Queensland, Victoria and South Australia each have a version of a “secondment” exception. The exceptions are not identical. If we consider them against the background of our hypothetical football club scenario, we can begin to see how they differ and what some of their limitations might be.

Queensland.

Queensland created its exemption under reg 4(1)(c) of its Regulations as an exception to the definition of a “worker”. If an individual is not a “worker” for a provider, it follows that it would not be an offence for an unlicensed person to supply that individual. It’s a bit indirect, but it works – that is if you don’t look too closely at the definition of provider!

In Queensland,  an individual is not a “worker” for a provider if he or she is an in-house employee whom the provider supplies to another person to do work on a temporary basis on one or more occasions. Queensland doesn’t use the expression “secondee” or “secondment”,  but you can see how the supply of an in-house employee might equate to a secondment in these circumstances.

The Queensland regulations give examples of a lawyer who is “seconded” to work for a client for a period of time and a consultant who is supplied to another business to conduct a review for the other business.

So that could fit our hypothetical Storm player. However, there are some limitations that arise from the way in which an in-house employee is defined in reg. 4(2).

Firstly, the worker needs to be engaged as an employee by the provider on a regular and systematic basis. The legal distinction between employment and independent contracting does seem to matter here. So, it will be important to be able to categorise the player’s engagement by Storm correctly.

Secondly, the worker needs to have a reasonable expectation that his or her employment with the provider will continue. That could get tricky if the player is out of contract or is already lined up to go to another club next season!

Finally, the worker must primarily perform work other than as a worker supplied to another person to do work for the other person.  That could get tricky if the player is a fringe player, who primarily plays on loan for an affiliated club.

Now, you should be able to see how the example that we’ve chosen to look at highlights the limitations of the exception. The exception sort of works, but it will not work in all cases and needs to be handled carefully and with some sophistication.

Victoria

Victoria similarly created its exception under reg 4(1)(a) of its Regulations as an exception to the definition of a “worker”. Again, if an individual is not a “worker” for a person, it follows that it would not be an offence for an unlicensed provider to supply that individual. Neither would it be an offence to host that individual from an unlicensed provider.

In Victoria, an individual is not a “worker” for a provider if he or she is a secondee, other than where the provider is predominantly in the business of providing the services of workers to other persons.

This is a little easier to apply and doesn’t seem to have as many hazards as the Queensland exception. We can safely assume (I hope because I follow them) that Storm is not predominantly in the business of sending its players to play for other clubs. That being the case, it could rely on the reg. 4(1)(a) exception in claiming that it is not a Victorian labour-hire provider in this situation and would not seem to require a Victorian licence.

However, that might not get it over the difficulty of being regarded in Queensland as an interstate labour-hire provider that requires a Queensland licence to supply a player to Falcons.

Now, if you step away from our hypothetical football scenario for a moment, you can probably think of situations in which supplying the services of workers to other persons is the predominant business of the provider. An events medical management firm that predominantly supplies doctors, physios, nurses, and pill testing staff to sporting and entertainment events might fit the bill in this instance and therefore require a licence.

Chicken sexers!

Chicken sexers – the people who go to chicken hatcheries to count the wing feathers or squeeze feces out of newly-hatched chicks to determine their sex – had to be specifically exempted under the GLAA regulations in the UK. It’s a highly specialised task – apparently. And probably something you don’t want to do at home or back at the office.

So, yep! Without an exemption chicken sexers probably fall within the class of workers who are supplied to do work in and as part of the business or undertaking of another person and would be “workers” for the purpose of labour-hire licensing legislation.

Who would have thought it? Certainly not the people who legislated the universal licensing schemes we now have in Australia!

South Australia

South Australia created its exception by an administrative decree published in the Government Gazette on 6 June 2019. You do have to browse through the Government Gazette in SA to find the exemptions because the ALP government, when it left office did not set up any regulatory exemptions.

In South Australia, the exemption is expressed rather differently. It operates as a direct exemption from the requirement to hold a licence in cases where the provision of labour-hire services is not a “core function” of the provider.

It is a much wider exemption that its Queensland and Victorian counterparts. But there is no definition or guidance material to inform a decision about whether the supply of an individual to do work in and as part of the business or commercial undertaking of another person is a “core function” of the provider or not.

A core function need not necessarily be the or even a predominant function. Keep in mind the context in which we are discussing this. It may very well be a “core function” of a provider to develop and retain talent. Certainly, I think that could be argued in the case of a professional sporting franchise or club. And if lending players out to other clubs is the means by which that is done, then player loans are a core function and fall outside the South Australian exception.

Managing the exemption

If you are a provider who seconds workers to clients or places them out “on loan” there are several things that you will probably need to think about:

  1. You will certainly need to know whether you fall within the coverage provisions of the Acts that apply to you. Remember, there may be more than one Act if you are involved in interstate operations.
  2. Once you know if you come within the coverage provisions, you will need to go deeper and work out if the exceptions or exemptions apply to you. Remember, you probably only need one non-exempt transaction to be caught by the licence requirement. I say “probably” because the situation is now very unclear in South Australia because of its “not core business” exception, which seems to be applied impressionistically, as more of a vibe than as something that can be quantified with any certainty.
  3. In Queensland, you will need to look very closely at the limitations of the in-house employee exemption. While, in Victoria, you need to evaluate the “predominant business” of the provider to see if it includes worker secondments.
  4. You might be wondering if you could structure your operation to supply only workers who are exempt through the secondment/ in-house employee exceptions. I think that would almost certainly fail because if that’s what you’re doing it becomes your core business (SA), predominant business (Vic) or the primary work of your workers (Qld) and, on each count, fails an important criterion for exemption.

As with most of the exceptions, it should be apparent that this one comes with plenty of traps and pitfalls. Those will eventually be sorted out when courts have to interpret the legislation.

In the meantime, I hope this commentary will have helped to spark some discussion and draw some attention to the type of issues that seem likely to arise. If you’re interested, I’ll also be covering this topic and others in a series of workshops planned for August through to October 2019, when the Victorian scheme comes into full operation.

 

30 July 2019

Andrew C. Wood

 

When Melbourne Storm sends a player to “lace up” for Sunshine Coast Falcons, will it need to produce its Victorian and Queensland labour hire licences? Just Askin’!

Rugby 03Find out when I explore the limits of the “secondment” and “not-core-function” exemptions under the state licensing schemes later today in the RCSA hosted Labour Hire Licensing & Regulation (Aust. & NZ) LinkedIn Group.

If you’re not a member of the LinkedIn Group,  why not join? You don’t even have to be a member of RCSA.

Andrew C Wood

Incorporated Worker Exceptions under Australia’s Labour Hire Licensing Schemes

All this week, I’ll be publishing some commentaries on the exceptions to the labour-hire licensing schemes currently operating in Queensland, Victoria and South Australia. The commentaries are not legal advice and shouldn’t be relied on as though they were. I hope, rather, that they’ll promote some necessary discussion and further questions.

The first exception I’ll look at is the “incorporated worker exception”.

Legislative Background

All three jurisdictions eventually got around to realising that incorporated workers – the on-hired workers, who contract through their own small companies (incorporated worker entities or “IWEs”) – would have had needed licences themselves if an exception had not been created for the worker entities. That’s because IWEs supply their individual workers to perform the contracted work for another person (the Host); and in most cases, they perform that work in and as part of the host’s business or undertaking, bringing their IWEs within the standard labour-hire provider definition – and, in Victoria, within the contractor manager extension as well.

That meant that the IWEs needed a licence and that labour-hire agencies, who engaged and on-hired them, would have been dealing with unlicensed providers as acquirers of the IWEs’ labour-hire services; or would have been acting as supply intermediaries in a chain of supply involving unlicensed IWE suppliers.

Either way, the fines and penalties would have been severe, and the administrative and cost burden placed on the labour hire licensing schemes would have been massive.

So, Queensland and Victoria both created regulatory exceptions.

South Australia failed to make any regulations other than to set fees before the ALP government left office. So, in South Australia, the exception had to be created by administrative decree under section 46 of the Labour Hire Licensing Act 2017 (SA). The decree was published in the South Australian Government Gazette on 18 July 2019.

The exceptions are not identical.

Queensland

Queensland created its exemption under reg 4(1)(b) of its Regulations as an exception to the definition of a “worker”. If an individual is not a “worker” for a provider, it follows that it would not be an offence for an unlicensed person to supply that individual. It’s a bit indirect, but it works – that is if you don’t look too closely at the definition of provider!

In Queensland,  an individual is not a “worker” for a provider if the provider is a  corporation and the individual is an executive officer of the corporation and is the only individual the provider supplies, in the course of carrying on a business, to another person to do work.

Executive Officer is defined in the Act to mean “any person, by whatever name called and whether or not the person is a director of the corporation, who is concerned, or takes part, in the management of the corporation”.

The formulation of this exception appears to confine its operation to workers of IWEs that only ever supply the one worker and the worker is an executive officer. This seems to make its application to genuine independent contracting arrangements problematic to the extent that it curtails the ability of the IWE or the worker to delegate the performance of the work. If delegation is involved, it might be necessary for the IWE to hold a licence.

Victoria

Victoria similarly created its exception under reg 4(1)(c) of its Regulations as an exception to the definition of a “worker”. Again, if an individual is not a “worker” for a person, it follows that it would not be an offence for an unlicensed provider to supply that individual. That would be so regardless of whether the supplier were the IWE or a labour-hire provider acting as an intermediary.

In Victoria, an individual is not a “worker” for a provider if the provider is a corporation with no more than two directors and the individual whom the provider provides to another person to do work is a director who participates in the management of the corporation or shares in its profits.

Ambiguity

The provision is ambiguous. On one reading, the individual must be a director, who either participates in management or shares in profits.

On an alternative reading, the individual must be either:

  • a director who participates in management, or
  • any other person who shares in profits.

A few well-placed commas and some distributive drafting might have added clarity! You can probably see how the alternative reading could support creative avoidance arrangements – possibly using employee share schemes or something similar.

Avoidance is a serious offence. I’d, therefore, be inclined to play safe and adopt the former, more conservative reading.

To be exempt under this provision, the individual should be a director. It should not be enough merely to be a shareholder or other person who shares in profits.

South Australia

South Australia created its exception by an administrative decree published in its Government Gazette.

Unlike Queensland and Victoria, South Australia created a direct exemption in favour of the IWE from the need to be licensed under section 11 of the SA Act.

The exemption applies if the IWE is a body corporate with no more than two directors and the person provided by the body corporate to do the work is a director of the body corporate who participates in the management of the body corporate or shares in its profits.

Apart from the fact that the exemption is directly in favour of the IWE, the provision is similar to the one in Victoria and is affected by the same ambiguity.  Prudence again suggests that the exemption should only be relied on if the individual who performs the work is a director who is either active in management or shares in the profits.

As a double assurance, the SA Commissioner also granted an exemption from the operation of section 12 of the Act (no acquisition from an unlicensed provider) to any person (i.e. a host or intermediary) who enters into an arrangement for the provision of labour-hire services with an exempted provider.

Managing the exemption

If you are a provider who on-hires IWEs (or are caught by the extended operation of s. 8 of the Victorian scheme), there are several things that you will probably need to think carefully about.

  1. You probably need to know and monitor the structure, management, and profit-sharing arrangements of your IWEs.
  2. You might want to contract with IWEs on terms that require disclosure of any changes in their structure, management, or profit-sharing arrangements.
  3. You might want advance notice of any intended change because it may be too late and the damage may already have been done if a change results in loss of exempt status.
  4. Finally, you might be wondering if you can structure your operation to supply only individual workers who are exempt through the IWE exceptions. Personally, I’d steer clear of such an arrangement; and, if a provider told me that they didn’t need a licence because they only ever supply exempt workers, I’d be asking lots of questions! I’d encourage you to do the same.

It should be apparent that the exception comes with a few traps and pitfalls. Those will eventually be sorted out when courts are called upon to interpret the legislation. But unless you want the glory of seeing your name in the law reports, this is one area where you should play safe and seek advice from a legal practitioner, who is familiar with this area of law.

In the meantime, I hope this commentary will have helped to spark some discussion and draw some attention to the type of issues that seem likely to arise. If you’re interested, I’ll also be covering this topic and others in a series of workshops planned for August through to October 2019, when the Victorian scheme comes into full operation.

29/07/19

Andrew C. Wood

 

Post-Law Day #25: Identity crisis?

One of the things I enjoy to do is to read aloud. At the moment, I’m reading Diana Wynne Jones’ “Year of the Griffin”. I had to chuckle when I came across this priceless passage, which spoke directly to my post-law transition.

“Are you a fighting griffin then?” Elda asked.

“Not really,” said Flury.

“A lawyer then?” said Elda.

“Not particularly,” said Flury.

After the chuckle, it came to me that DWJ is inviting us to appreciate that knowledge, skills, and experience developed in one field can, with a little imagination and magic, be applied in another… and with a fresh perspective.

What a wonderful thought! That we can be not particularly a lawyer. I think that’s what I am becoming. Would that there were more of us!

Staying resolute

Tiger Smelling Flower

Post-Law Day #24: Reflective Practice

Great news! Last week our Competition Regulator issued its final determination granting authorisation to a Code for Professional Conduct & Grievance Intervention Guidelines, which I was asked to design.

I’m especially pleased because the Code & Intervention Guidelines adopt a “Kindness by Design” approach that encourages professional conduct rather than an approach that merely detects and punishes professional breaches.  Looking forward to writing further about this…

Attended a Resolution Institute webinar on reflective practice & debriefing conducted by Mieke Brandon. Interesting discussion on how contemporary mediation might have shifted its focus from “doing” to “being”.

I’ll now follow up Lang, M. (2019) Guide to Reflective Practice in Conflict Resolution to investigate the discipline of reflective practice and how it might be applied to dispute resolution and professional conduct grievance work that I’m doing.

Still resolute

Businessman & Newspaper

 

 

Post-Law Day #6: Capability, Community & Emergence

…where community ended, law began.

At the end of my first post-law work week, my reading has brought me to Jerold S.  Auerbach’s 1983 summation of John Humphrey Noyes’ understanding of the difference in values and methods that marks a progression from Community to Law.*

To me, the Noyes progression seems a bit dark – i.e. one moves towards Law as Community breaks apart.

So, I’m wondering if it also works the other way – whether the recovery of Community requires, in some measure, a retreat from Law. And if so, what skill set is indicated for the encouragement and emergence of a professional community.

That’s something for me to think about because this weekend I’m needing to write my own post-law capability statement and design the governance & procedures framework for a professional conduct support programme.

Work didn’t end when I transitioned to post-law; it just brought fresh challenges!

  • Auerbach J. S. (1983) Justice Without Law? Oxford University Press, New York, p.53.

Staying Resolute

Businessman & Newspaper

 

Post-Law Day #5: Pulling together threads of positive change…

Looking forward to pulling together a few threads of my first Post-Law week, today and over the weekend.

Earlier this week, I had the opportunity to sit in on a webinar presented by Peter Adler and Nina Harding about the use of mediation in organisational planning. Peter spoke about mediating a “meta-negotiation between status quo and change” and “facilitating grown-up conversations”.

I also followed up an invitation to join the #equityatwork Social Room and checked out an interview between Jeremy Scrivens and Ultimate Software Intern, Maria Gabriela Corral, in which Jeremy posed the question:

“What is one thing you would love to change in a positive way in the work you see and the life you see around you?”

The subtle integration of life and work in that question is crucial.

I’m tempted to want to name the Big 3: World Peace, Eradication of Poverty… (add your own).

But I wonder if I’d be better off starting with something smaller. Something about listening and learning…

I’m carrying that thought forward over the next few days, as I put the finishing touches to some learning resources for the recruitment & staffing industry and ponder the opportunities for positive change within an emerging profession and, closer to home, in my own transition to Post-Law.

Staying Resolute

Businessman & Newspaper