'Comic' employment contracts won't save the day...yet

So-called 'comic' employment contracts replacing dense legalese with images have been coolly received by both the peak employer and employee bodies, each expressing a preference for the power of words when it comes to interpretation and enforcement.

Visual or comic contracts recently made the news when engineering and infrastructure consultancy Aurecon – a merger of Australian company Connell Wagner with South African enterprises Africon and Ninham Shand – introduced the country's first such instruments following a joint initiative with University of Western Australia law school professor Camilla Andersen.

Emboldened by UWA chancellor and former High Court chief justice Robert French's comments before an international conference late last year that comic contracts should hold up to legal scrutiny, Aurecon hopes to have them signed by 1200 employees by the end of the year.

However, Aurecon's enthusiasm for what its global chief people officer Liam Hayes described as an initiative that would lead to "easier on-boarding and a more open and transparent employee relationship" – more than 70% of text was cut from previous contracts – is not mirrored by either the ACTU or the Australian Industry Group.

"While it is good to simplify employment arrangements where possible, lots of problems can arise if employment contracts are not carefully drafted," Ai Group's head of workplace relations Stephen Smith told Workplace Express.

"It would be risky for an employer to rely upon a visual employment contract.

"A better approach would be to use a written contract that is drafted in plain language."

Similarly, an ACTU spokesperson said it was "important to consider how challenges or alterations to such an agreement, or disputes that arise under it, would be dealt with by a tribunal or statutory body that usually deals with written industrial instruments".

"Regardless of the medium, workers deserve certainty about their rights and entitlements," the spokesperson told Workplace Express.

"This certainty should be the first test of the appropriateness of any information, be it in writing or any other form."

The spokesperson did allow that "if, and only if, it is the collective will of the group of working people negotiating the agreement", the ACTU would not have in-principle objections to it being in a visual or comic format.

"Rattle the cage"

Initial reactions aside, Australia has quietly become a focal point for an international movement to upend all conventional contracts, not just employment contracts, in favour of visual alternatives.

The primary reason for that is Andersen, a Danish lawyer who figures prominently in a global network that brings together Finnish academic-lawyer Helena Haapio, Swiss counterpart Collette Brunschwig (head of the University of Zurich's Legal Visualisation department), American professor Thomas Barton and South African lawyer Robert de Rooy.

Intertwined through the Nordic pro-active law movement and the International Association for Contract and Commercial Management (IACCM), the group has helped lead the push towards reduction and simplification of documents Andersen describes as being "written by lawyers, for lawyers".

Andersen says Australia has proved "fertile ground" for her work, partly because of what she calls a characteristic willingness to think outside the box, and partly because lawyers aren't as constrained as they are in America.

"My colleagues aren't getting the same traction," Andersen told Workplace Express, adding that she was in the enviable position of having two sponsors in Aurecon and disability advocates West Australian Individualised Services, for whom she is devising a contract by which people with disabilities can engage home-carers.

Recalling the process that led to the Aurecon contracts, Andersen said the legal teams brought into the project were initially "horrified" at the removal of some text.

"It was radically different to what they've done before," she explained, "but they ended up very supportive."

Styling herself as a disrupter, Andersen said it is "not the role of a researcher to take baby steps, it's to rattle the cage and see what happens".

Very laborious process

Before the Aurecon project, Andersen was given an unexpected opportunity to put theory into practice following a chance conversation with a colleague in UWA's engineering faculty who was looking for a way to manage the obligations and rights of students performing work for external clients.

The resulting UWA Makers contract was the subject of a co-authored 2016 paper called A graphic contract: Taking visualisation in contracting a step further and published in the Journal of Strategic Contracting and Negotiation.

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Asked whether enterprise agreements could ever be rendered in a visual form, Andersen hesitated.

The process of simplification was "very laborious", she noted.

The rewards of substituting complex contracts with readily-understood ones were great, though, she emphasised, citing the example of a comic contract for mandarin pickers drafted by South Africa's de Rooy.

At the time of its introduction, the chief executive of ANB Investments, owners of the fruit-growing company, said "we are really excited about the transparency this contract brings to our employee relations".

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Andersen explained that part of the process "involves talking to all the parties to establish which areas of friction are historical and which were real".

"In that case, the contract did not spell out workers' rights when it came to attending funerals.

"As a result, many workers believed that attending a funeral on a work day effectively terminated their employment, and they were never sighted again.

"The visual contract showcased that they had a right to a day off work, and to my knowledge there hasn't been a dispute in two years."

"It will happen without you"

Turning back to the Australian experience, Aurecon has indicated that together with Andersen it will complete a detailed assessment of the impact of its new contracts by the end of the year.

A confident Andersen said that law firms would be well advised to gear up for new approaches to contracts.

"Disruption is a reality for law just as it is for everyone," she said, "and if you don't go along with it, it will happen without you."

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