Australian Government Care + Support Sector Code of Conduct Consultation

The Australian Government is consulting on a proposed a single Code of Conduct to cover providers, workers and other participants in the Aged Care, NDIS and Veterans’ Support sectors.

Drawing on what we have been learning about codes of conduct for recruitment and staffing professionals, I prepared a submisson. Here’s some of what I was thinking.

I’d love to get your feedback.

6 …what language is preferred and why?

“Code-covered person” may be ambiguous with respect to the participation of recruitment & staffing agencies and procurement personnel, whose functions facilitate the provision of care and support.

The language of Recommendation 14 of the Aged Care Royal Commission Report (Duty of Care for “Providers and Facilitators”) appears to go a considerable way toward clarifying coverage issues.

7 At a high level, what should be covered in the detailed guidance to support providers and workers to adhere to the Code in the aged care and/or veterans’ care context?

Additional reference might be made to providing services consistent with “applicable standards and public health directives”.

8 What considerations are relevant to enforcing the Code in the aged care context?

The impact upon participants of the way in which compliance and enforcement proceedings are conducted is the subject of increasing study in the field of therapeutic jurisprudence. Whilst the field is gaining recognition in the criminal justice system, it also has applications in administrative and professional disciplinary proceedings.

So far as possible, regard should be had to considerations of therapeutic jurisprudence and emotional due process as being consistent with respect for persons and an ethic of care.

9 What considerations are relevant to enforcing the Code in the veterans’ care context?

In response to Q8, we made reference to principles of therapeutic jurisprudence and requirements for emotional due process. Those considerations apply with equal force in relation to the enforcement of the Code in the veterans’ care context.

We would also encourage the giving of consideration to the question of how principles of trauma-informed practice might be deployed to improve processes and outcomes of compliance and enforcement interventions.

10 What other intersections need to be considered as part of the implementation of the Code?

At a high level, consideration should be given to interactions with codes that govern procurement, recruitment & staffing and HR functions. Practitioners in these fields play an important role assembling, deploying and maintaining effective governance of care & support sector workforces. They frequently operate under their own professional codes. There may thus be a need to achieve alignment between the content and culture of such codes and the goals and objectives of the draft Code.

Guidance on the draft Code may therefore need to address not only WHAT the Code is about, but WHY it is about those things; WHO affects the outcomes; and HOW what providers and facilitators do can impact positively or negatively on outcomes.

Next Steps

Next week, we prepare and make our submisison on the related consultation, Aligning regulation across aged care, disability support and veterans care.

Andrew C. Wood

Why a “moral” payment obligation might indicate the need for a labour hire licence

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As you know, a payment obligation has to be part of the arrangement between the provider and the individual who performs the work if the individual is to be regarded as the provider’s worker (as that term is defined).

Throughout the “Lachie & Martin” series of videos , I’ve been suggesting that, even where a temping agency arranges for a payroll company to go “on record” as the employer of its temps, the agency can be left with a residual payment obligation sufficient to constitute the temps as its “workers” for the purposes of the labour hire licensing Acts. Why is that?

It’s because that Acts are clear that the arrangement between a labour hire provider and the individual who performs the work needn’t be contractual.

Now, if the arrangement needn’t be contractual, it follows that the payment obligation needn’t be contractual either. So what sort of obligations could those be? I can think of several different sources for such an obligation. Perhaps you can too.

Keep in mind that an arrangement, as distinct from a contract, is essentially a plan of action that the parties intend to put into effect with a sense of (moral) committment to it even though it may not be legally enforceable.

What temping agency, when it is setting its temps up to be employed by a payroll company, doesn’t enter into such an arrangement? It’s the arrangement, rather than the employment contract, that can leave the temp agency with the residual obligation… and, hence, the need to obtain a licence.

We’ll take a closer look at some typical arrangements next month, when we examine the “employer-of-record” phenomenon as well as some of the myths surrounding it.

Andrew C. Wood

Lachie & Martin examine their consultancy project team for labour hire licensing supply arrangements: Part 3 – Temp Agencies & Payroll Providers

In thisa third and final part of the series, Fictional characters, Lachie & Martin are back to examine the staffing arrangements for their consulting project team. This time, they’re focusing on the Interstate Temp Agency and Payroll (Employer of Record) Providers. Does anyone need a licence? Let’s find out.

A case for disclosing “RoT” in recruitment?

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Last week, I had the wonderful opportunity to contribute on a discussion panel with recruitment luminaries, Ross Clennett and Fiona Harland. We were discussing Restraints of Trade (RoT) in recruitment, and recognised that a RoT could be regarded as any impediment to a person’s freedom to carry on a trade or profession, to find or obtain work, or to arrange their workforce as they wish.

In that context, we began to examine the common practices of charging temp-to-perm (T2P) fees and of imposing restraints on clients and work seekers restricting direct engagement.

The RoT potential of T2P fees has long been recognised by the courts.[i]  Likewise, the courts have recognised the direct and indirect RoT effects of no-direct-engagement provisions.[ii]

In our discussion, we started to examine the transparency of these provisions in some of the cases we were considering.

Could the worker in Earth Force Personnel, for example, have known that his labour hire agency was going to charge the host/hirer $7,500 if he obtained a job directly with the host/hirer … in any capacity… of any duration … ever? Could he have been aware of the impact which that provision would have on his future employability?

Could Woolworths, in Informax International v Clarius, have known that the 12-month no-direct-engagement provision in its contract for the acquisition of labour hire services was protecting the providers’ interest in a 6-month restraint imposed on the contractor?   

Could the contractor, who was bound directly by an express  6-month restraint in her contract, have been aware of the indirect effect that the corresponding 12-month restraint imposed on Woolworths would have on her future employability? Or that the misaligned restraints had different start points?

All of this starts to raise issues of recruitment ethics and professional conduct. How are you dealing with these questions?  Is there a case for greater transparency on the part of recruiters?

Should recruiters be required to disclose to clients the nature of the restraints imposed on work seekers; and to work seekers, the nature and effect upon employability of the restraints imposed on clients?

What do you think?

Andrew C. Wood

[i] Earth Force Personnel Pty Ltd v EA Negri Pty Ltd [2010] VSC 426

[ii] Informax International Pty Ltd v Clarius Group Limited [2011] FCA 183

Keep Checking Your “ACN Contractors”

I wonder if the message is getting through to labour hire providers, yet, that the reason why all four Australian labour hire licensing schemes need an “incorporated worker exemption” is that all those companies that their “ACN contractors” are working through are supplying their people to other people to perform work.

In short, they’re micro labour hire firms.

There are probably thousands of them – maybe tens of thousands.

So, the regulations and exempt worker declarations exclude some individuals who are supplied to perform work through their own companies from the definition of “worker“.

And because you can only be a labour hire provider under a supply arrangement if you suppply a “worker” as defined, excluding them from the definition means that the individuals are not “workers” for their own companies, which therefore don’t need licences.

Pretty cool work-around when you think about it. But there’s a hitch.

The exemptions are very technical and they differ from jurisdiction to jurisdiction. Basically, that can mean that your ACN Contractor mightn’t need a licence in, say, Victoria; but could need one in the A.C.T.

The sort of factors you need to consider include:

  • how many directors the company has;
  • how many individuals it supplies to perform work for other people;
  • whether the individuals have a management role or share in profits.

You also need to check how the individuals actually get paid by their ACN entities, because not all payments are payment for the work performed. Some are share dividends; others are trust distributions; some payments might be by way of directors fees – all of which might not be able to be characterized as payments for the work performed.

So, keep checking the arrangements that your ACN contractors have with the individuals who perform the work.

And keep in mind that circumstances can change. Someone’s mother is appointed as a director and suddenly the maximum number of directors required for the exemption to operate is exceeded; or someone’s little brother starts freelancing through the Contractor’s entity, and the maximum number of workers required for the exemption to operate is exceeded.

Before you know it – and perhaps without knowing it – you’re involved in an unlicenced labour hire supply arrangement.

You wouldn’t want that, would you?

Andrew C. Wood

Cast the Spotlight on Your Labour Hire “Arrangements”

In discussions throughout October and November about labour hire licensing, I’ve observed that there seems to be a bit of a misconception about who’s a provider and who’s merely an intermediary. 

The misconception is fueled by the false notion that it comes down to who’s on record as the employer.

We know that notion doesn’t stack up, because the labour hire licensing Acts all state that a person can be a labour hire provider regardless of whether the provider enters into any contract with the worker for the performance of the work.

One view that I’m coming to is that the critical question is not, “Who’s the employer?”; but rather, “Who makes a labour hire arrangement with the individual who performs the work?”

And those arrangements can come in many different forms.

There can even be more than one labour hire arrangement with the same worker in respect of the same labour hire transaction.

So, when you’re examining your workforce supply or procurement models, ask yourself this question: “Who makes ‘arrangements’ with the individuals who are to perform the work?”

Try to keep in mind that an “arrangement” need be nothing more than a plan of action between two people that may not be enforceable at law but which they have every intention of following to the extent that they feel some moral commitment to it.

Some of the answers could be:

  • Recruiters
  • Temp agencies
  • Payroll providers
  • Accommodation providers
  • Contractor management services providers
  • The individuals’ own entities – if they are operating as “incorporated workers”.

Give it a try.

Make a list, and then check to see whether the arrangements that you’ve identified need to be supported by labour hire licences (Qld, SA, Vic, ACT) and/or private employment agency licences (SA, WA, ACT).

You might be surprised at what you discover.

Andrew C. Wood

Rethinking Independent Contractor Status

This might be unorthodox; but I’ll ask the question anyway. Can I choose not to be an employee?

Do the current common law tests, which are used to distinguish employment from independent contracting, override my decision to work for someone but not be their employee; to work for them, but not have them as my master?

Can the common law force upon me the status of employee against my will by virtue of a judicial consideration of all relevant factors?

If I do not consent, and never did consent, to be an employee, can I really have an enforceable contract of employment?

I’m not talking here about “sham contracting” or disguised employment. I’m talking about a genuine exercise of a volition not to enter into an employment relationship. And can “contracting out” really be a problem if I have never “contracted in”?

Looking forward to seeing what guidance the High Court will give when it hands down decisions in two cases that have recently been argued before it.

Andrew C. Wood

Lachie & Martin examine their consultancy workforce supply arrangements – Part 2: the external specialist contractors.

Fictional characters, Lachie and Martin, are back to use their 4-Step process once more, as they examine their consultancy workforce supply arrangements to check for A.C.T. labour hire licensing issues. In Part 1, they examined the in-house employee members of the workforce. Nowthey have to examine arrangements with the external specialist contractors they’re recruiting for a secret defence industry project – all hypothetical of course!

Spoilers: Lachie and Martin uncover a few new issues that might resonate with commercial litigators searching for “triable issues” in the labour hire licensing schemes of the four states and territories. Let’s hope they never have to argue them!

A big “Thank You” to Ian Lindgren of PayMe for contributing this scenario, which allowed me to test the principles and methodology I’ve been developing to identify labour hire licensing issues in supply arrangements.

Lachie and Martin examine their consultancy workforce supply arrangements: Part 1 in-house employees.

Fictional characters, Lachie & Martin, examine their consultancy workforce supply arrangements to check for A.C.T. labour hire licensing issues. In Part 1, they examine the in-house employee members of the workforce. In later eposodes, they will examine the external contracted specialists and the auxiliary staffing agency sourced members of a consultancy workforce they’ve assembled for a secret defence industry project – all hypothetical of course!

A big “Thank You” to Ian Lindgren of PayMe for contributing this scenario, which allowed me to test the principles and methodology I’ve been developing to identify labour hire licensing issues in supply arrangements.