A Casual Look at Casual Employment

Did you know that there are over 30 subtly different definitions of “casual” employment in Australia’s modern awards; and that casual employment is either not recognised as an employment type, or not permitted, in eight awards?

The traditional “engagement by the hour” remains a requirement in order to satisfy the definition in ten of them.

No wonder we are often left scratching our heads!
Teacher 3

Andrew C. Wood

15 Camels + A Little Kindness

This is a story from my mediation training – more years ago than I care to remember! It is retold here for children …or perhaps for grown ups who have retained a sense of kindness and surprise…


Camel 2

There once was a wealthy camel herder, who had three children. He wanted to give them a gift that would make them wealthy too. So, he went to a lawyer and had all the papers drawn up to give the children a herd of camels.

To the first child, he gave one half of the herd of camels;

To the second – one quarter of the herd; and

To the third child – one eighth of the herd.

The children were very excited and immediately went and rounded up the herd. They were thrilled, when they found that there were 15 fine camels.

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Your terms of business are not necessarily your contract.

Would you really sign thatSpeaking with ANRA members in Sydney recently about client agreements, it was good to have a chance to clarify what we mean when we say, “We have a contract”. We’re not always talking about written terms of business; what we’re mostly talking about is a special type of legal relationship. So, here’s the working definition we’ve been using:

“A contract is a legal relationship that arises from some actual agreement between parties, which creates legal rights that a court will protect and obligations that it will enforce.”

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7 Market-Driven Features of the Fels Wage Fairness Panel Inquiry into the 7-Eleven Franchise

For anyone who might be looking for evidence of the effectiveness of market-driven initiatives in tackling labour exploitation, seven features of the Fels’ Panel inquiry into wage fairness within the Australian 7-Eleven franchise are worth noting. Continue reading

“We, You, Us, Our, Your”. Who, or is it whom?

I hope it’s been a long time since anyone used the old fashioned, “party-of-the-first-part; party-of-the-second-part” drafting style. That was a product of the days when lawyers were paid, not by the hour (or even six minute increments); but by the word – and the more words, the better!

A move towards using plain English in the 1970s began to change all that. A fashion for using conversational terms like, “we”, “you”, “us”, “our” and “your” seemed to develop at about the same time as disco music, flares, and cork soled shoes. But unlike clothing fashions of the 1970s, it has not left us.

I don’t want to be a grammar snob; but what I am wondering is whether this conversational approach to drafting agreements is always helpful and whether it reflects what we really want from the agreements that we make.

At a technical level it is sometimes difficult to know who is talking and who is involved. Take the following example from a contract between two parties for the supply of commercial services:

We will deal fairly and act with integrity.

To whom does the “we” refer? Is it both parties or just the supplier, or whoever is speaking in the first person?  Perhaps, “the parties” really would be better here, if the obligation is intended to be reciprocal.

You will probably be able to find lots of examples like that – probably harmless enough for the most part; though quite capable of supporting Supreme Court proceedings for interpretation of the document.

But it is a philosophical aspect of the conversational drafting style that is really prompting me to write this note and I want to state it in the form of a question:

What does the first/second person (we/you) style imply about where power resides in the relationship; and is it important?

I think it might be, and probably a neuro-linguist would be in a better position to comment on this, but it seems to me that the we/you drafting style betrays a sort of egoism that is not always conducive to the recording of co-operative or collaborative relationships. It may tend to dehumanise or objectify the parties, suppress empathy and subordinate or dis-empower one party into a position of passivity that is unhealthy and unproductive.

In a we/you document, someone is always talking; and someone is always listening, passively. Someone is acting and someone is acted upon. One person is boss and the other person is … well you’d hope the other person is not you!

As I see it, this is going to become important as we try to charter the new types of work and commercial arrangements that are strongly focussed on constructing productive and co-operative relationships.

So I want to come out in support of using empowering language and giving the parties a name. After all, it is an important part of who the parties are and how they perceive themselves.

Acknowledging your customer’s or work seeker’s name  and using it might just be a step towards building more empathetic and constructive  business and work relationships.

Handshake 09 (2)

 

Andrew C. Woood

5 Reasons why an Employment Services Industry Code is important right now

With all the talk about labour hire licensing, registration schemes and restrictive regulation of the employment services industry, it was gratifying to hear that the Employment Services Industry Code (“#ESICode“) has come a long way from the document that was first prepared in January 2015 – so much so that some commentators are now saying that the ESI Code is the most mature and coherent element of a national approach to tackling exploitation that has yet been offered anywhere.

Unlike the licensing restrictions and tougher penalties that are being proposed, the ESI Code fills in gaps in the level of professional and consumer knowledge about acceptable standards of service and conduct in the employment services market by establishing principles and stating positive outcomes that should be achieved if the principles are being observed by users and suppliers of employment services.

In doing so, the ESI Code helps to ensure that the employment services market is –

  • more engaged in social dialogue about the risks and harm of exploitation and the promotion of acceptable business and social standards;
  • more alert and better able to identify signs of exploitation and risks of potential exploitation;
  • better able to educate and protect customers and work seekers against the risk of exploitation;
  • more confident to resist and report conduct that may result in labour market distortion and exploitation; and
  • more able to make a valuable contribution to the proper functioning of the labour market with which it interacts.

That is not the domain of restrictive licensing schemes or professional education programs that rarely reach much past their already compliant participants.  What is needed is something that is more connected to the market and its participants; and at the moment, it would be hard to remain unconvinced that the ESI Code does not provide a more reliable and sustainable basis for industry improvement and protection against exploitation than the alternatives on offer.

 

Scales

Andrew C. Wood

ESI Code

A re-working of the Employment Services Industry Code, following extensive consultation,  that adopts a Principles and Outcomes based approach.

What are the Principles?

  • Equal Opportunity & Diversity;
  • Service;
  • Integrity & Fair Dealing;
  • Co-operation; and
  • Assurance.

“I’m a PAYG Contractor” (Australia) – You’re a what?

A lot of questions start, “So, if a PAYG Contractor…” and then run on as though everybody was quite certain of what that was.

Contractor is a generic term, the boundaries of which are imprecise. It frequently refers to a person who performs work on contract, rather than in ongoing service or by ongoing office. In the case of a contractor, the contract and the work are largely coterminous  – i.e. their boundaries are closely aligned.

Contractors may be dependent (a colourful description) or independent (a legal term of art). They may also be employees. Not every contractor is an independent contractor.

Independent describes the status or autonomy of the contractor.

PAYG describes only the Australian tax system that is applied to the contractor.

PAYG Contractor is therefore not a precisely defined or distinct species of worker, though employment services industry participants often use the expression as though it were – and build business models around that misconception.

If you have a question that starts off, “So, if a PAYG Contractor…” try to work out what the work relationship really is. In most cases once you have done that, the answer will come to you pretty quickly – though you might not always like it!

Andrew  C Wood

10 September 2015

PESIC or [P]ESIC

PESIC (n.)

Recruiter acronym for Prescribed Employment Services Industry Code.

Alternatively, [Private] Employment Services Industry Code.

Currently being designed as a regulatory framework for the recruitment, on-hire and workforce consulting services industry in Australia. A potentially disruptive development that is definitely worth knowing about!

Other related “P” words at the moment could be:

  • Provisional
  • Professional

A Licence Will Fix It! Really?

It’s extraordinary that, after 120 years of unsuccessful employment agency licensing in Australia, anyone could still think that compulsory licensing will provide any sort of solution for the various forms of labour market exploitation with which the supply of employment services (but apparently not use of those same services) is being increasingly associated in the populist mind.

There are three types of licencing that anyone who wants to improve employment services industry regulation should be thinking about right now. And the type that the loudest and most extreme voices are touting is definitely not up to the mark Continue reading