Norton Rose special counsel Angus Macinnis warns that the rise in contingent workforces creates issues for employers, including an increased safety risk, particularly in blue collar and manufacturing jobs. There are also questions over confidentiality and intellectual property.
“The difficulty is if you have a workforce that’s fully attached to one employer and their safety system, you can make sure they know about that to the exclusion of other systems,” says Macinnis, who specialises in occupational health, safety and security.
“But when somebody is having to deal in their employment with an array of different systems because they provide services to a number of employers, that’s the source of problems. You want people to have one system and have that ingrained into the way they work.”
However, “labour-hire companies are getting pretty sophisticated about safety because there are a large number of cautionary tales of situations where there hasn’t been an adequate risk assessment done”, says Macinnis.
When it comes to smaller companies, or sole traders putting themselves out as contingent workers, there is a risk of non-compliance with safety requirements. “Obviously, those same sorts of lessons aren’t necessarily trickling down,” he says.
Another workplace injury that Macinnis highlights the psychological impact of bullying, however, he’s undecided as to whether contingent workers are more likely to be subjected to bullying. “Anecdotally, it makes sense that people would be less likely to complain if they did not have security of employment,” he says. “But certainly, I have been involved in investigating cases where people have brought complaints…. Despite the fact they’ve been casual. I don’t think there’s anything to suggest there is definitely a connection between secure or insecure work and bullying. People who have very secure work can also get treated appallingly and make complaints accordingly.”
CXC Global’s Oreb argues that there is an incentive for employers to treat contingent workers just as well as their permanent counterparts. “If they are treated poorly, they may adopt a no-care attitude as they know you can terminate their contract at any time without having to bother much about the consequences of the project.”
When employees are only there for the short-term, inspiring loyalty can also be a difficult task, argues Macinnis. “The challenge for smart employers at the moment is to demonstrate that they are still committed to people, notwithstanding the fact that those people are not going to be shown commitment in the form of a job for life,” he says.
With staff moving in and out of workplaces, keeping corporate information and systems confidential may also be challenging. For senior roles, it is usual for people to sign contracts that include a clause on confidentiality, says Michael Page’s MacLean, adding it is extremely rare for employers to be concerned about confidentiality.
An issue that doesn’t appear to be on many employers’ radars is who owns the intellectual property related to works created during the course of employment. “One of the key distinctions in relation to intellectual property between employees and contractors is the employee creates copyright work and it belongs to their employer and that happens through operation of law through the Copyright Act,” says Macinnis
“With a contractor, the work is owned by the contractor, unless it is assigned. There’s obviously a wide range of copyright works from letters or documents to which it is possible that copyright will attach as long as they have sufficient originality to be literary works.”
Macinnis was involved in a case where a contractor had prepared course materials for an organisation and then left under unhappy circumstances. “The organisation was using those course materials and they were making quite a lot of money out of it, and the person who had created them… said ‘well, hang on’. The organisation hadn’t though (about whether the) person was an employee or a contractor. And unless you think about issues like that, unless you know the problem is there, issues can arise. It is very easy to manage if you do it from the outset but it is very hard to rectify after the event.”
Source: HR Monthly