Still no closer to a concept of “joint employment” in Australia

Two Fair Work Commission decisions handed down in January 2021 confrm that we are still no closer to recognising a concept of “joint employment” in Australian employment law.

Both decisions involved challenges to the Commission’s unfair dismissal jurisdiction.

In Don Allan v Cleanaway Waste Management Company T/A Cleanaway Port Adelaide Solid Waste Services [2021] FWC 20 (5 January 2021), the challenge came about because the applicant for reinstatement, who had previously worked with the respondent employer through a labour-hire firm, was unable to satisfy the minimum employment period necessary to entitle him to seek reinstatement. He argued that time spoent in service of the labour-hire firm should be aggregated with time spent in direct employment of the respondent. To support his contention, he argued that the labour-hire firm and its client had been his joint employers.

In Toni Bou Lattouf v Bechtel Australia Pty Limited [2021] FWC 142 (25 January 2021), the challenge came about because the applicant, an Australian citizen who had been working overseas for a foreign entity within the Bechtel Group at the time of his dismissal, could not establish that it was the Australian entity named as respondent, rather than the foreign entity, that was his employer. To get around the difficulty, he argued that the Australian entity was jointly his employer with the foreign entity.

In both cases, which were heard by Deputy President Anderson in Adelaide, the applicants were unsuccessful. The reasons were similar. It comes down to this (as held in the Cleanaway decision):

Joint Employment

[78] Nor do I accept the proposition that Mr Allan was jointly employed by both Tecside and Cleanaway. There is no legal foundation on which a claim of joint employment in respect of the same work can be made or sustained under Australian law. I adopt the observations of Hampton DP in Costello v Allstaff Industrial Personnel (SA) Pty Ltd [33] and the later observations of a full bench of this Commission in FP Group v Tooheys on this point where it was said:[34]

“the application of a concept of joint employment to labour hire arrangements would involve a very considerable development of the common law…we do not consider that the Commission’s role as a statutory tribunal extends to engagement in the development of the common law. That is a matter for the courts.”

[79] Such an approach is consistent with observations made by a separate full bench in French Accent:

“[26] Moreover, the nature of the ultimate question is such that in any given case that is not clear cut, reasonable judicial minds may differ as to the correct answer in any given case. This was explicitly recognised in Roy Morgan. This necessarily means that there is an area of uncertainty for businesses that wish to engage only on the basis of independent contract and not on the basis of employment. Any change to the present approach is a matter for the legislature. Our duty is to continue to apply the established general law approach until legislation or the High Court requires otherwise.” (emphasis added)

Neither the legislature nor the High Court has shown much sign of requiring otherwise to date.

Andrew C. Wood

Modern Slavery Reporting for Labour Hire and Workforce Services Providers: The Basics

If you’re a labour hire or workforce services provider, you’ll likely be receiving requests for information about what steps you’ve taken to combat risks of modern slavery in your supply chains or operations.

You might even be large enough to have to prepare your own modern slavery statements, and you could be requesting similar information from your suppliers. 

That’s because Australian entities that have a consolidated revenue of $100 million or more must lodge statements under the Modern Slavery Act 2018 (Cth),

For most of them, the extended lodgment date is 31 March 2021. But a few entities will have different reporting dates – some as soon as 31 December 2020. You can check it out here.

So, over the coming weeks, we’ll be posting some short updates and commentary in the RCSA-hosted Labour Hire Licensing & Regulation LinkedIn Group. Be sure to look in on us regularly. And if you have questions, don’t hesitate to ask.

Andrew C. Wood

Modern Slavery Reporting about How Labour Hire Workers Are Used

Lately, I’ve been developing a range of modern slavery reporting resources for Australian labour hire and workforce services providers. Amongst the materials provided by the Commonwealth government, I came across this piece of guidance, which had me scratching my head:

Under the Act reporting entities are not required to report on modern slavery risks associated with how their customers use the products or services they purchase. For example, a mining company is not required to report on whether the overseas smelter that purchases its ore uses forced labour. Similarly, landlords and lessors are not required to report on modern slavery risks associated with the operations and supply chains of lessees.

Commonwealth Modern Slavery Act 2018: Guidance for Reporting Entities, p.34

So, I asked the Border Force Modern Slavery Business Engagement Unit if it had a view on how that piece of guidance might be applied to labour hire and workforce services providers.

You will see the issue, immediately. Labour hire providers supply workers. So, the use to which customers put those workers may have a direct impact on risks of exposure to modern slavery practices.

The Modern Slavery Business Engagement Unit was great. They got back to me straight away. Here is their reply:

We would expect that labour hire agencies required to report under the Modern Slavery Act address possible modern slavery risks associated with the use of workers they provide to other businesses in their modern slavery statements. These workers are usually employees of the labour hire agency and their provision to other businesses forms part of the labour hire agency’s operations.

Reply 2 November 2020

So, if you are a labour hire or workforce services provider, it seems that will need to give some thought to whether your customers’ use of your workers might expose them to the risk of modern slavery practices, and you’ll need to report about that.

Andrew C. Wood

Victoria’s Public Health and Wellbeing Act Amendment – Are we asking the right questions?

A lot of attention has been given recently to claims that the Victorian Government is attempting to extend the current state of emergency for another twelve months. But to my mind, it’s the amendments to the threshold sections that warrant the greater parliamentary and public scrutiny.

To be fair, the amendment to section 198 – the duration section – only provides that the total aggregate length of a state of emergency can be extended to 12 months. If you’re dealing with an event that will last longer than the current six-month limit, there would seem to be some sense in that.

However, the amendment to section 199 is more troubling. It proposes to reduce the threshold required for the Chief Health Officer to authorise emergency powers from a belief that it is “necessary” to a belief that it is merely”reasonably necessary” to do so.

Further amendents would allow a state of emergency to be declared even where the rate of community transmission of COVID-19 in Victoria is low, or there are no new cases of COVID-19 for a period of time. 

We’ll have to see what happens. In the meantime, you can read the explanatory memorandum here:

https://www.legislation.vic.gov.au/bills/public-health-and-wellbeing-amendment-state-emergency-extension-and-other-matters-bill-2020

Post-Law Day #330 (or thereabouts)

I didn’t forsee, when I left legal practice for a post-law career, that I’d be going back to school. But here I am, enrolled in a post graduate certificate course at QUT in Education (Innovative Learning Design) and loving it!

Just taking small steps – one unit at a time. So, in this learning period I’m enrolled in a unit with the intriguing title, “Authentic Learning and Assessment“.

What have I learned so far?

I need to apologise for all those 7,000 – 8,000 word research essay assignments I set!

First summative assessment due next Monday. Goes around… comes around!

At least it’s not a research essay!!

Teacher 3

 

 

 

Wanted to say how proud I am of our #3121 Richmond community. Out in the Gleadell St markets & Bridge Rd shops this morning and sensed the mood  of the past couple of weeks might be lifting. People making eye contact, acknowledging each other. Just as tough and yet a little kinder. Reckon we’ll make it through this. Stay well everyone.

Return of “Recruitment Fee” Webinar Series

I’m looking forward to presenting two webinars on recruitment fee topics again in February 2020. 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.

This time I’ll be presenting the webinars on successive days.

Recruitment Fees 1Webinar #1: Make Binding & Effective Agreements (27th Feb. 2020 )

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.

Webinar #2: Handle Disputes Ethically & Professionally (28th Feb. 2020)Recruitment Fees 2

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)

Recruitment & Staffing Professional Waypoints

“Tuesday TalkAbout” returns in January 2020 with a Summer Program of eight free, short webinars, in which we’ll discuss some waypoints which the recruitment & staffing sector in Australia and New Zealand has reached in key areas of operation and professional conduct.

What is a “waypoint?” .  Think of it 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 decisions and commitments which recruitment & staffing professionals make for their own organisations and professional lives – either intentionally or by default.

I hope you’ll join the discussion.

Businessman & Newspaper

 

 

Andrew C. Wood

Seven Great Learning Opportunities with WorkAccord in December

Christmas learningHere’ are seven professional learning opportunities with WorkAccord through December – some free, some paid.

1. Tuesday TalkAbout #8 (Free webinar) (Completed)

Tue 03 Dec 8:30 am AEDT (30 minutes)

Industry Certification Schemes as Regulatory Licensing Alternatives

Can industry certification schemes be viable alternatives to statutory licensing schemes? We discuss different types of certification schemes and consider their pros and cons as regulatory alternatives. In doing so, we’ll also look at Regulatory Impact Statement that supported the Victorian licensing scheme to see how it worked. What assumptions were made? Were they correct? How might a federal RIS and outcome differ?

This will be a valuable session for anyone who is engaged or interested in labour-hire industry policymaking.

2. Whistleblower Policy Bootcamp – ($88 Early Bird registration still available to 02/12/19; Regular registration $180) (Completed)

Fri 06 Dec at 10; 30 am AEDT (100 minutes) (Completed)

Whistleblower Policy Bootcamp – Strengthen your Knowledge

Public companies, Large private companies, and Trustees of superannuation entities must have whistleblower policies in place by 1 January 2020. Even though other companies don’t have to have a policy, the whistleblower protections apply to all companies regardless of size.

Our Bootcamp is designed for participants who need to have (or would benefit from) a whistleblower policy and want to know where to start.

You will learn about the whistleblower disclosure protections and the requirements for a policy that complies with the regulatory guidance provided by ASIC We’ll also cover some of trickier aspects – e.g. authorising your industry association to receive disclosures and integrating your whistleblower policies with codes of professional conduct and other responsibilities.

You might also be interested in our “Sandbox” and “Power-Up” sessions on Whistleblower Policies – all designed to put you in control to meet your 1 January 2020 compliance target.

3. Tuesday TalkAbout #9 (Free webinar) (Completed)

Tue 10 Dec 8:30 am AEDT (30 minutes)

Freelance Platforms New idea or New technology?

You might have a view about whether freelance platforms present a threat to the industry or whether they are part of the industry. But have you ever looked into their terms and conditions to see how they run and where they fit within the industry? We discuss actual examples of some freelance platform terms and conditions to see how they operate and why they are different from your usual terms and conditions.

4. Whistleblower Policy Sandbox- ($88 Early Bird registration to 09/12/19; Regular registration $180)

Fri 13 Dec at 10; 30 am AEDT (90 minutes)

Whistleblower Policy Sandbox- Test your Design

Our Sandbox session follows on from our earlier Bootcamp and is designed for participants who’ve been working on their whistleblower policy (or are about to) and want to test or get feedback on their design ahead of the commencement date on 1st Jan 2020. You don’t have to have completed the Sandbox session to register for this webinar, but we think it would help.

Register for the Sandbox here.

5. Tuesday TalkAbout #10 (Free webinar)

Tue 17 Dec 8:30 am AEDT (30 minutes)

Piece Rates: Explained

We discuss piece rates under some common awards and consider how to manage risk when applying them. What do courts look for? How can you get that sort of information from your clients? How can you protect yourself against underpayment claims? Some labour hire firms have recently received commendation from the FWO for the diligent work they have been doing to improve performance in this area. What could you do to get amongst them?

Register for Tuesday TalkAbout #10 here

6. Australian Labour Hire Licensing “Power-Up” – ($88 Early Bird registration by  13/12/19; Regular registration  $180)

Wed 18 Dec at 10:00 am AEDT (90 minutes)

Australian Labour Hire Licensing “Power-Up” – Ask-me-anything!

Ask me anything about the Australian labour hire licensing schemes before the Victorian Labour Hire Authority’s “Grace Period” ends on 31 December. That’s right! You might still be able to get your application lodged and continue to provide labour-hire services even though you missed the 29 October cutoff. But note! There are some conditions and mere freedom from prosecution might not solve all the difficulties you’ll face.

So, here’s a chance to “power-up” with information targetted to your specific questions. We’ve set up a landing page and are inviting questions in advance so that you can add your own, or vote up the questions that grab your interest.

Register for the Australian Labour Hire “Power-Up” here

7. Whistleblower Policy “Power-Up”- ($88 Early Bird registration by  13/12/19; Regular registration  $180)

Wed 18 Dec at 12:00 pm AEDT (90 minutes)

Whistleblower Policy “Power-Up”- Ask-me-anything!

Some of you might still be working (like Santa’s elves!) over the Christmas holiday break to get your whistleblower policies in place for 1 January 2020. WorkAccord is sticking around to lend a hand, having worked on the RCSA  Code Guidance Note and accompanying Whistleblower Policy Template.

This “Power-Up” webinar is an ask-me-anything style session designed to round out your knowledge from the earlier Bootcamp and help you put the finishing touches to the policy you might have developed in our Sandbox – all in time to knock off for a well-earned break!

We’re setting up a landing page and will be inviting questions in advance so that you can add your own, or vote up the questions that grab your interest. 

Register for the Whistleblower Policy “Power-Up” here

You can check out the status of WorkAccord’s Tuesday TalkAbout Spring 2019 program here. Most of the sessions have been completed and archived. But don’t worry. We’ve recorded on-demand versions that we can still make available at a very modest cost. And Tuesday TalkAbout will be returning with a new Summer 2020 program in January. So, stay tuned…

Andrew C. Wood