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

Gigging with Andy …Starting at A$7.38

Day 1 Sunday, April 7 2019 (morning)

I’ve decided to undergo a Gig Economy Immersion.

Great! So now what do I do?

The ad says “Starting at 7.38”.

What? Is that the time? It’s past that already.

No. It’s the price of your first gig!

Better do some research!

Done that. Don’t want to kill the enthusiasm with over-analysis. So, I’ve checked that Mercury is not retrograde and that the Moon is not VoC.  Should be OK then.

I’ve also read an online review of the three top gigging platforms and decided to try two of them – for legitimate purposes of scientific comparison of course.

Fiverr and Upwork are getting a tryout – because I’m intrigued by all the sellers on Fiver offering legal documents starting at A$7.38 and I’m tempted by Upwork’s promise of greater rewards.

Just on the point of pricing, my head is hurting as I think about stepping away from 30 years of hourly billing for legal advice, charged in 6-minute units.

But here’s the thing…for my Gig Economy Immersion, I’m not going to be selling legal advice.

What am I going to sell? (Note my optimism, I actually think I am going to get to sell something and maybe get paid for it too!)

I’ve asked my sons, but so far the only responses I’ve got are:

“?” (Son X).

“Can you proofread my essay?” (Son Y).

[laughs] (Son Z).

Colleen is smiling (benignly I think).

So I need to think about what I’m going (to offer) to sell. I’m determined to come up with a product idea this evening.

A name for the journal

Oh! And I’ve thought of a name for my journal: “Gigging with Andy“.

Who’s Andy? It’s me. I’m sort of undercover.

That’s it for now.

Stay tuned!

Andy

 

 

If Preparing Your Victorian Labour Hire Licence Application Seems Like Wrestling an Octopus…

Detail of Poseidon Statue and fountain , Piazza Navona, Rome, It“Eight is a lot of legs, David!” (from “Love Actually” (2003)

…why not come along to WorkAccord’s advanced workshop Vic Labour Hire Licensing: Up-Close & Personal – Prepare Your Application on 3 May 2019?

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.

Looking forward to seeing you there!

Andrew C. Wood

Victorian Labour Hire Licensing: Managing Adverse Outcomes

Medieval Relief Of St George And The Dragon

“By George! I think he’s got it. Must have been to the Up-Close & Personal Masterclass!”

With Victoria’s labour hire licensing scheme starting on 29 April, some industry participants may be contemplating the possibility of adverse outcomes – either for themselves or even with the aim of creating them for someone else – Heaven forbid!

In this, the second masterclass in WorkAccord’s inaugural “Up-close & Personal” series, I’ll be discussing in detail the range of adverse outcomes, their likely causes, and how to manage them.

Learning objectives

  • Understand the scope and effect of “adverse outcomes”
  • Learn how to formulate an objection and how to respond to one
  • Identify where objections might come from – and develop a counter-strategy
  • Discover the alternatives to outright refusal of an application
  • Understand licence conditions and how they can be used to your advantage
  • Learn how to get information and challenge adverse decisions and conditions
  • Plan for a “worst case” scenario.

You can find out more about the masterclass at our Eventbrite registration page.

I hope to see you there!

Andrew C. Wood

What is the True Reach of Victoria’s Labour Hire Licensing Scheme?

I’ve said I’m excited at being invited to present WorkAccord’s Up-close & Personal masterclass and advanced workshop series on the Victorian labour hire licensing scheme. 

That’s because we’re finally going to get a chance to attack some of the harder questions, as we discover where cracks are likely to be found – and how to plan for them.

Here’s just a few:

  • What does it really mean to “supply a worker”?
  • When does a worker work “in and as part of the business or undertaking” of a host?
  • Is this a different test from the integration test formulated by the Federal Court in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366?
  • If not, will it ever be possible to “supply” an independent contractor within the meaning of s. 7 of the Labour Hire Licensing Act 2018 (Vic)?
  • Is the on-hire of independent contractors dealt with under some other provision of the Act?
  • What happens if the worker is incorporated?
  • What is the nature of the s.9 “obligation” to pay a worker for the performance of the work?
  • Does anyone have such an “obligation” if the individual receives payment on some other basis – e.g. a directors fees for working in their own company, or as the beneficiary of a discretionary trust with an incorporated trustee?
  • How does all this play out in labour contracting chains and service networks?

These aren’t the sort of questions that can be addressed in a brief overview. They’re questions that need to be asked, notwithstanding comments about “clever lawyers” (as though that’s a bad thing) that I heard made when I attended the public briefings.

So, that’s why we’re having a masterclass.

And that’s why I’m excited.

I hope to see you there!

Andrew C. Wood

Businessman & Newspaper