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Visual contracts – opportunity or risk?

May 11, 2018

By Alex Millman and Lindsay Carroll, NRA Legal

Written contracts are a staple of legal relationships, including the employment relationship. They are not without their problems – long, complicated, wordy, incomprehensible, full of legalese … as lawyers, we have heard all of these complaints.

To combat this, engineering and infrastructure consultancy Aurecon have introduced the first ‘visual’ employment contracts in Australia – documents which use comic strips to illustrate the provisions of the contract.

The idea of visual contracts was given a boost when former Chief Justice of the High Court, Robert French, remarked late last year that so long as the meaning of a visual contract can be discerned, it should hold up to legal scrutiny.

However, both unions and industry groups have reservations about the idea.

“The key issue is the caveat included by the former Chief Justice – so long the contract is capable of being given meaning,” says Lindsay Carroll, Director of NRA Legal.

“We know that written contracts can be disastrous if not carefully constructed and underlying it all is this idea of the ‘ordinary, natural meaning’ of the word; that is, what is its dictionary definition.”

“There is no dictionary which gives the meaning of a picture.”

The courts have, over centuries, developed rules for how written contracts are to be interpreted. Many of these may seem strange, but they are bread and butter to legal professionals. Conversely, there are no rules for the interpretation of visual contracts, so these existing rules will need to be adapted to fit this new circumstance. Whether they can be adapted – and how well they adapt – is entirely unknown.

In the employment law area, we at NRA Legal are not too sure that art is the best method of communicating contractual terms like confidentiality, intellectual property and restraint of trade. Similarly, there are certain terms which must be agreed to in writing – such as the hours of part-time employees under a modern award – and we are reasonably confident that Parliament did not intend for such a term to be in comic-strip form.

At the end of the day, whilst visual contracts may be an innovation and appear less confronting to employees, NRA Legal is of the view that the written word will remain the dominate force in the legal area for quite some time yet.

As Ms Carroll says, “We’re dealing with an innovation in the documentation of legal obligations; let someone else be the first to argue it in court.”

In the meantime, enjoy the new meaning given to the expression “draw up a contract”.

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