Tuesday TalkAbout Live! 2023

Person talking with online meeting participants via mobile device. Photo by Canva.

It’s been almost 12 months since the High Court delivered its decision in the landmark case, CFMMEU v Personnel Contracting and that’s the perfect opportuinity for Tuesday Talkabout Live! to kick off its 2023 program with an exploration of the topic, Professional Contracting …One Year On. You can check out what we’ll be convering via the Eventbrite registration page here.

Throughout 2023, WorkAccord will be presenting monthly masterclasses for recruitment, staffing and HR professionals on the following topics:

February:       Professional Contracting.

March:            Fair Trading

April:              Fair Competition

May:               Privacy

June:              Human Rights

July:               Reference Checking

August:          Licensing & Regulation

September:   Ethics & Professional Conduct     

October:        Care & Support Sector       

November:    Sustainable Employability.

Tuesday TalkAbout Live!

Tuesday TalkAbout Live! masterclasses are small group, interactive livestream discussions. We’ve strictly limited registrations to 15 for each session to give all participants an opportunity to join in, ask questions and have their say. However, to make sure nobody misses out, you have a choice of multiple sessions that you can register for. *

So that discussion can occur freely, we don’t record the live sessions. If, for some reason, you can’t attend the live session you’ve registered for, you’ll be able to access a pre-recorded session and have an opportunity to raise your questions with our presenter by email, or else book a short (10 minute) private call to raise your question by phone or video conference.

Continue the Conversation

Tuesday TalkAbouts Live! are carefully designed to create significant learning experiences and provide a grounding that allows you to carry on the conversation confidently in other forums, where you can learn with and from your peers. That’s where the action really happens! So, after you’ve completed your live masterclass, you can head across to the RCSA-hosted Labour Hire Licensing & Regulation (Aust. & N.Z.) LinkedIn Group, where you’ll be able to continue your exploration and deepen your understanding of our topic.

You don’t need to be an RCSA member to join the LinkedIn Group.

NEW for 2023 … Mobile Microlearning!

And for the first time in 2023, we’ll be supporting your learning with short, accompanying mobile microlearning courses that you can access on your mobile device! There will be a modest charge for these courses, but masterclass registrants will be able to take advantage of atrtractive concessional pricing.

So, make sure you register for one of the sessions, head across to our LinkedIn discussion area and…

…LET’S TALK AGAIN SOON!

Andrew C. Wood

* Subject to availability

If words create worlds …

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What would be one piece of jargon that you’d like to strike from the language of recruitment? For me, it would have to be CANDIDATE OWNERSHIP.

It’s hard to find an expression that does greater damage to the reputation of recruitment as an emerging profession.

Of course, you all know that you can’t OWN a candidate. That sort of thing was abolished with slavery. So, at best, it’s a lazy expression that must clearly mean something else.

What you can OWN is the relational asset that consists of the goodwill connection that you enjoy with your candidates and clients.

You can also own the related intellectual property, contractual and legal rights that protect that goodwill.

But let me be clear. You cannot own a candidate. For as the courts have said, “No candidate is an asset on your balance sheet to be bought and sold”.

So, if it’s true that “words make worlds”, let’s make a world that is better because it uses language that reinforces and respects candidates’ value as people rather than as commodities.

Andrew C. Wood

Do we still need this?

The Optus case for retaining customer personal information, including government identifiers (e.g., passport, drivers’ licence, and Medicare numbers), may well be different from the retention case that recruitment & staffing agencies could mount.

But if you’re a recruiter, and you’re are retaining that sort of information, it might be wise to ask yourself why you need to retain it.

Sure, you might have needed it to verify the identity or work rights of your candidates; but if you can’t make a convincing argument for retaining it – and inconvenience is not a convincing argument – then shouldn’t you be destroying or de-identifying it in accordance with APP.11 and NZ IPP.9?

It’s worth asking the question, and it might keep you and your candidates safe.

Andrew C. Wood

Professional Applicant Screening: Always Check for Conditions

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A recent NCAT decision in the Health Care Complaints Commission’s proceedings against an Enrolled Nurse (2021/00171685) should serve as a reminder to staffing and recruitment professionals of the importance of conducting thorough inquiries into nurse registration conditions when screening job applicants.

Background

A candidate, who completed a qualification as an Enrolled Nurse in South Africa in 2004, was first registered in South Australia as an Enrolled Nurse in 2009. In 2016, she moved from South Australia to New South Wales, where her registration under the National Law was subjected to conditions imposed by the Nursing and Midwifery Council of NSW (“the NSW Council”).

The Conditions

In summary, the relevant conditions were:

  1. Administer medications only under direct supervision.
  2. Must be supervised by a Nurse Manager who has been informed of conditions.
  3. Must inform all current and future employers of conditions.
  4. Must only be employed in circumstances where the employer has agreed to notify the Council of any breach of conditions.

The Private Hospital Placements

The candidate obtained a position as an Enrolled Nurse at a private hospital, which provided sub-acute healthcare services, having previously worked there as a temp agency nurse. The evidence suggested that the private hospital was not aware of the conditions when it employed her; or, if it was aware, did not follow through.

The candidate gave evidence that she was approached by the private hospital manager to join the hospital because the manager saw her performance at work while she was working as an agency nurse. She never went through any interview, except to be asked to bring relevant documents which she did. She said that she never said anything about her registration because she was aware that companies were not employing nurses whose registration was subject to conditions.

Her employment was subsequently terminated after the hospital became aware of the conditions.

The Respite Facility Placement

The candidate thereafter applied, through a different recruitment agency, for a position as a Medically Enrolled Nurse with a facility, which offered short term accommodation and respite for people with an intellectual disability, high physical support and/or complex health needs.

The evidence indicated that she did not disclose the registration conditions to either the new recruitment agency or to the respite facility, neither of whom seem to have been aware of them.  

Having successfully obtained the position, she undertook various duties unsupervised, including performance of tracheostomy management.

The Tribunal Proceedings

In proceedings against her by the NSW Council for unsatisfactory professional conduct and professional misconduct arising from breach of conditions, the Tribunal held that her conduct constituted “a flagrant disregard for [her] obligations … and a serious risk to the public”.

The Tribunal ordered that the EN’s registration be cancelled, and that she not be permitted to apply for review of the cancellation for a period of two years.

Observations

The outcome, of course, was a very unhappy outcome for the EN.  

However, what is of equal concern is that the staffing and recruitment agencies, the private hospital, and the respite facility all seem to have been unaware of the conditions that attached to the EN’s registration. It would surely have been easy enough to have checked. They were fortunate, perhaps, to have escaped adverse comment.

The case highlights the importance of developing and monitoring rigorous and reliable controls to ensure that applicants and candidates are thoroughly screened – not only in terms of their having current vaccinations and work entitlements; but also in terms of ascertaining any limiting or disqualifying aspects that could adversely impact the candidate’s suitability. It also higlights the need to follow through if your inquiries do reveal the presence of conditions.

It is no longer satisfactory (if it ever was), in this writer’s opinion, for staffing and recruitment professionals to occupy an all-care-no-responsibility stance, when the care fails to identify what may prove to be “a flagrant disregard for [the candidate’s] obligations … and a serious risk to the public”.

But you can make your own mind up about that.

Andrew C. Wood

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