atw: Re: AWA for IT contractors -- approved trapdoor
- From: Caz.H <cazhart@xxxxxxxxx>
- To: austechwriter@xxxxxxxxxxxxx
- Date: Tue, 6 Nov 2007 18:25:11 +1100
Peter
No offense, but you seem to have a misunderstanding of the "fairness" test,
which only applies to defined aspects of any AWA, and is most often used to
assess the conditions of an AWA being offered to people who were previously
covered by some other terms of employment, ipso facto, the former conditions
form a baseline for assisting to determine and apply "fairness" to the
proposed AWA, but even so, only against the conditions defined under the IR
laws.
"Fairness" in industrial law is not the "fairness" that you and I might use
in a conversation or a debate.
There's nothing remotely novel about the client having more generous
conditions of termination than the vendor, it's almost invariably the case
for the provision of any goods or services, and the client never requires a
reason to terminate. I've been writing tenders and contracts on and off for
15 years and the conditions of contract always favor the client, although
occasionally a vendor will try to negotiate those clauses, usually with no
success.
It's not surprising to hear that this is a term and condition that has found
its way into AWAs for contractors.
Quite some years ago - at least 8 years back - some very checky recruitment
agencies (which I refused to deal with) implemented new terms, which had an
instant termination clause for the employer, coupled with a clause that
prevented contractors from leaving a contract early - with a PENALTY, that
is, if the contractor left, no matter the reason, the contractor had to PAY
out the agency for the remainder of the contract. Actually it was more
outrageous rather than merely checky. I have no idea how long they stuck
with those clauses before being forced to go back to the more conventional
conditions.
Anyway, the conditions you're talking about have been well entrenched in
outsourcing contracts for at least 15 years, in addition, the AWA "fairness
test" does not apply to the terms that caused you concern, particularly as
you were not moving from some other terms of employment. It's also one of
the few terms that a savvy contractor, reading and understanding their
contract, would have some room for negotiation, if the prospective employer
is decent.
FYI
CH
On Nov 6, 2007 5:27 PM, <peterm_5@xxxxxxxxxxxxxx> wrote:
> Bruce:
>
> ---- Original Message ----
> From: moo-man@xxxxxxxxxxxxxxx
> To: austechwriter@xxxxxxxxxxxxx
> Subject: atw: Re: AWA for IT contractors -- approved trapdoor
> Date: Tue, 6 Nov 2007 16:07:14 +1100
>
> >Peter,
> >
> >You are really naïve if you think you have ever had equal security in
> >a
> >standard work contract.
> >
> >We have always had to give a fixed period (usually a month) to cancel
> >a
> >contract from our end, while the employer has typically enjoyed a
> >clause
> >that keeps you employed ONLY while there is work available. Look in
> >all your
> >old non-AWA contracts and you will see that all an employer had to do
> >to get
> >rid of you was to say that there was no more work available and
> >voila, your
> >contract could be terminated. That was/is a standard contract clause.
> >
> I thought the test was fairness, not "non-naivety". Or did I miss
> something there ? Are tests on AWAs supposed to be tests of the
> naivety of one or other of the parties ?
> And you're wrong. It isn't in all of the ones I've signed. I've
> actually
> dealt with some fair employers.
>
> But at least in the ones I've signed, after the silly one
> with DEC which gave them no joy in court, I've had an equal right
> to terminate with the same rights and notice as the employer.
>
> Contracts are supposed to have sensible terms and conditions.
> A contract that allows one party to terminate unconditionally
> without cause and doesn't provide it to the other is a nonsense.
> Or at least, under contract law as we used to know it, it used to be
> a nonsense. Is a contract between 2 parties for 6 months a contract
> for 6 months or isn't it?
>
> Instead of slinging off at me, why not try bouncing that one off your
> favourite contract lawyer ?
>
>
> >It has nothing to do with AWAs, nothing to do with Joe Hocking and
> >nothing
> >to do with November 24.
> >
>
> It now does have something to do with just that -- because AWAs are
> given all kinds of protection from reality, as well as legislative
> protection. And now we appear to have a case where an agreement
> draft has not been rigourously examined for fairness (or even basic
> compliance with the principles of contract law). Yet it has the
> "stamp" of authority ? And is mooted as having met the "fairness"
> test ?
> Give us a break!
>
> >You complained about a similar unfair condition put before you in the
> >form
> >of an AWA and then said the employer changed it to suit your needs
> >and that
> >was fine, but you then went on to make a party political broadcast -
> >pure
> >and simple.
>
> No. I pointed out that a government agency whose job it is to assess
> fairness in the workplace -- and which has been touted as the
> safeguard in protection of people from would-be predators had not
> caught one of the most basic and one-sided provisions tried on by
> employers of contractors for years : 6 months our way, 7 days yours.
> I made it plain that it is possible in some circumstances to avoid
> this
> stupidity -- but not all people will necessarily be aware of that, and
> they should look out for it.
>
> If you see that as party political who gives a damn -- that says more
> about you than about the principles involved. I don't pretend
> to know how your mind works. I can only make guesses there.
>
>
> >Geez Mr. Crusoe, I've been made redundant five times. Four times
> >along with
> >everyone else and once with at least half of the staff. In 2000 after
> >one of
> >these events, and with 5 mouths to feed, the same bills as everyone
> >else and
> >only a small redundancy to live on, I was out of work for seven
> >months on
> >principle because of rate and conditions and I have previously quit
> >two
> >other permanent roles, on principle, because of conditions, so please
> >don't
> >preach to me. I've been there and done that a damn sight more than
> >you, put
> >far more at risk, and weathered lots more storms than you ever have.
>
> And if I'nm to make one of those guesses I was talking about,
> apparently never once understood how lucky you were to survive
> such circumstances when thousands don't.
>
> >
>
> >But getting back to the point, contracts have ALWAYS favoured the
> >employer
> >and always will.
>
> That's an interesting view of inevitability of historical trends.
> Seems, extraordinarily to share a lot in common with the old Coms
> I've known.
> It could almost be out of the Manifesto !
>
> Something you should share more widely as a view. It explains a lot.
> Fortunately, at least until laws were changed, it was an assumption
> the
> courts have thrown out time and time again.
>
> >
> >The skill is in value adding after you start a
> >contract so
> >that your employer never wants to shorten it.
> >
>
> Except for all those redundancy situations you referred to above ?
>
> What do you reckon happened there ? (Or for that matter, happened
> to me and all my colleagues when a takeover let to mass dismissal
> in a form of asset stripping ?)
>
> No. The real skill ultimately is in finding an employer who's smart
> enough to make the discrimination, who has a few basic principles,
> is prepared to negotiate reasonably, and who won't act like an
> asshole. For many of course, it's just plain luck of the draw.
> .... when law doesn't properly protect fairness. But it helps
> if we don't have government bodies putting their stamp on agreement
> forms which (for whatever historical reasons) remain basically unfair
> and
> unjust.
>
> --Peter M
>
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--
Carolyn Hart
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