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

“Over-promising” often occurs as a result of 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 is 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 is 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.

The danger in over-promising on confidentiality and privacy is that the person you’re dealing with might be misled into divulging information. Had your statement been properly qualified, they might not have willingly disclosed it to you. Consent may have been improperly obtained – not being sufficiently informed. And the information may have been obtained 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 carefully.

 

Andrew C. Wood

 

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

Post-Law Day #4: Learning Resources

My post-law transition seems to be evolving into something that is more about leading discovery and encouraging learning than about giving advice.

Spent yesterday usefully working on the commercial collective bargaining project. Really enjoyed being able to present WorkAccord’s discovery level webinar on the ACCC’s proposed class exemption for CollectiveBargaining and what it might mean for the recruitment & staffing industry in Australia. Don’t worry if you missed it! Tickets for the recorded presentation will remain on sale to 31 July 2019.

Today I’ll be working on more learning resources. I’m aiming to cover labour hire licensing applications and whistleblowing changes.

I’d love to hear about your preferred learning engagement formats: Webinar? Workshop? YouTube? Video Meeting? Old-School Lecture? Something else? Nothing…?

Actually, no… Nothing would be a problem!

Staying Resolute

Businessman & Newspaper

 

 

Post-Law Day #3: Collective Bargaining, Synchronicity & #equityatwork

After an early start this morning to watch the first half of the FIFA Women’s World Cup semi-final match between England and USA – no spoilers please, watching the second half via replay – later I’ll be presenting WorkAccord’s discovery level webinar on the ACCC’s proposal for a Collective Bargaining Class Exemption.

The class exemption will create a safe harbour from competition (anti-trust) laws and will allow small businesses to collectively bargain with their clients and suppliers.

It will also allow contractors and freelancers to collectively bargain with their agencies, clients and gig platforms in pursuit of an agenda similar to the one that seems to be taking shape in NYC according to evidence taken in the course of new initiatives building on the success of New York City’s Freelance Isn’t Free Act.

Now, maybe things do happen for a reason and at their right time. Yesterday, I was invited by Jeremy Scrivens, whose work I’ve observed for some time, to join the  #equityatwork Social Room.

It seemed to be one of those synchronous moments that you hear about occasionally – moments when several things you’re thinking about all align. You’ve got to grab those moments. I’ve said, yes.

So, this afternoon is given over to finding out as much about this fascinating “people first” movement as I can and doing some deep reflection on how it fits with my transition to “post-law”.

Staying resolute

Businessman & Newspaper

 

Day #2 Post-Law Transition Focus: Collective Bargaining & Conflict Resolution

This morning, I’ll be putting the finishing touches to WorkAccord’s submission in response to the ACCC’s request for feedback on its proposed Class Exemption for Collective Bargaining. Submissions are due by 3 July 2019.

Staffing agencies would do well to have a close look at what the ACCC is proposing. I’m not sure that the $10 million turnover definition of”small business” works for high turn-over, low margin businesses that have significant labour and regulatory costs. There’s a risk of being caught out as the “weak link” in triangular and tiered arrangements – as the target of bargaining groups, but with no protection when dealing with host clients. That’s something I’m hoping to address.

Looking forward to a great webinar with Nina Harding and Peter Adler, put on by Resolution Institute at midday today. The topic:

Working with organisations, building alignments and making plans: A model for mediators to decode, strategise, develop plans and resolve conflict in organisations.

Then, this afternoon – back to collective bargaining, as I prepare my materials for WorkAccord’s webinar tomorrow (July 3) at 11.00am: Commercial Collective Bargaining: Opportunities & Threats.

 

Staying resolute

Businessman & Newspaper

Post Law Day #1

Day #1 of my transition from life as a legal practitioner. So far not vastly different. Two things are a bit different though:

  • Building a new reading list – focusing on informal justice (Jerold Auerbach, 1981), value network analysis (Verna Allee, 2008), conscious contracting (Linda Alvarez, 2013 ),  nonviolent communication (Marshall Rosenberg, 2015),  structured negotiation (Lainey Feingold, 2016), and plenty more in the J. Kim Wright global integrative law movement (J Kim Wright, Lawyers as Changemakers, 2016).
  • Writing a submission to the ACCC on collective bargaining for small business and independent contractors under the Competition & Consumer Act.

Those two items are related, by the way. Spending time to discover precisely how!

Businessman & Newspaper

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

 

Gigging with Andy: It goes like this…

Day #1 Sunday, April 7 2019 (evening)

I’ve signed up as a seller on Fiverr and set up my profile.

Here’s my A$7.38 pitch:

I will write two slogans or taglines for you.

Actually, it gets better. For a little bit more, I’ll include short jingles in standard midi file format to go with them…

And for a little bit more, I’ll write three of them…

And for a bit more again, I’ll write five. You don’t want to be spoiled for choice.

Bet you didn’t know I could do that!

Now I’ve just got to get it all set up on the platform … and have an up-close look at the terms of services and IP provisions to get a handle on copyright protection. Maybe there’s money to be made in the licensing.

I’m on my way!

Andy