Even It Up!

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Posts Tagged ‘Contracting

Open letter to Minister Emerson from ICT Contractor

with 2 comments

Minister Emerson,

As you are aware your government has implemented measures to acknowledge, strengthen and protect the rights of independent contractors in this country.  This has obviously been prompted by the changing nature of the workplace environment with 20% of that being comprised of independent contractors.  This is a large section of the voting public.  The reality is that the government’s measures have largely been superficial and in the governments interests rather than to the benefit of contractors.  I wish to detail an account which describes how organisations are able to subvert the legislation which strikes at the heart of the problem.

The one organisation in this country that you would expect might honour the legislation of the Fair Work Act and the intent underpinning fairness in the workplace is the Department of Employment and Workplace Relations.  If no other organisation in the country was to accede to the current legislation out of compliance or decency this organisation should be seen as the touch-stone.  However, this is not the case.  I am currently engaged as an independent contractor with the Department.  I am working in the Contracts and Procurement area.  My contract is for a three month term with a three month extension.  This week, on Tuesday, after performing six weeks of the contract I was advised that the Department no longer requires my services and that my final day would be Friday of this week.  The grounds for the termination have oscillated between the branch being under budgetary pressures to a change in direction or a revised need for the work being performed.  When the issue of honouring the contract was discussed I was simply advised that the Department has a contract with a recruitment agency and because there is no notice in that contract then notice would be provided.  It was a simple take it or leave it approach.  The perfect example of the abuse of asymmetric power.

This situation highlights the dire position that many independent contractors are in.  We operate in a “rights free zone”.  Organisations, like the Department of Employment and Workplace Relations, are able to abrogate their responsibilities to people because of the deceptive practice of using a third party to hide behind.  If you are not aware of how this artificial subterfuge works then let me elucidate.  An organisation, like the Department of Employment and Workplace Relations, wants to engage independent contractors.  It wants to do so on terms that suit it and has no intention of honouring any agreement that it enters into, so it goes out to the market and engages with a “panel” of recruitment firms.  The recruitment firms, eager for easy money, sign whatever they need to sign to join the gravy train.  When the Department  requires contractors it goes out to market.  It makes the contractors jump through as many hoops as possible and then engages them to work on site just like employees.  It makes representations to the contractor about the term and nature of the engagement and acts for all intents and purposes as if it is an employer.  When the Department decides that it no longer requires the contractor it simply pulls the rug out from under them.  The contractor has no right to redress the termination of the contract or the conduct of the Department because they don’t have a contract with that organisation.  The Department then steps back and completely abrogates any responsibility for their conduct, pointing at the recruitment firm.  The recruitment firm, who has drafted their contract so that the contractor has no recourse against them simply washes their hands and moves on.  Is this the type of situation that your legislation was supposed to address?  If you think that it has then I am afraid to tell you that you are sorely mistaken.

I have contacted the Fair Work Ombudsman about the matter.  They advise that their jurisdiction does not extend to independent contractors working under an ABN (which is most of them).  They referred me to the Independent contractors hotline. When I contacted them they advised that the Fair Work Act only covers a “narrow” range of “adverse actions” by an employer such as discrimination.  They suggested that as I do not have a contract with the Department then I would need to pursue independent legal action.  So there you have it – the extent of this government’s legislation on the fair work place for independent contractors.

Of course there is the Independent Contractors Act.  Who does the contractor take action against under this legislation?  The Department or the recruitment firm?  Obviously the latter, but what did they do?  They didn’t breach the contract they simply did what they were directed to do by the Department.  And so the subterfuge is perfected.  No one is responsible for their actions and, better still no one is accountable.  Isn’t this the intent of Government?

If you are the Minister for Independent Contractors then I would expect that you would find this situation outrageous.  You might be outraged because of the manifest lack of equity in the situation.  Or you might be outraged because if this is the way that the business environment operates then how can independent contractors rely upon organisations to provide their services?  If we have a business environment that lacks trust then we simply degenerate into an environment where people do what they need to do to protect their interests rather than doing what is right, decent and fair.  The impetus is always for business to make money and paying people is in opposition to that.  It is therefore quite likely that a business (or government) will do whatever they can to not honour agreements.  Hence the government, your government, MUST intervene and have legislation that is effective, because at the moment it is NOT.

I would therefore entreat you to do something to change this situation and stop window dressing with legislation that is ineffective.

Written by evenitup

September 15, 2009 at 10:39 am