In May 2018 Aurecon, a global engineering and infrastructure advisory company, launched ‘visual employment agreements’ across its entire workforce of more than 1200 employees worldwide. We fully support anything which may make contracts easier to understand and use, particularly in the community sector where the contracting parties may not be sophisticated users of contracts and where trust and relationship are as important as legal rights and enforcement. But are visual contracts the answer?

What are visual contracts?

‘Visual contracts’ is a broad term that covers the use of images within a binding agreement for the purpose of simplification and engagement. The practice can also be used for other documents such as policies or rules. 

Aurecon is not the first to utilise images in contracts. Visual contracts have been used in a range of instances, including:

• University of Western Australia – in 2016, two professors at UWA used comic-strip like contracts to help engineering students understand their obligations while undertaking internships or work experience. This was well received by both students and employees and has continued to be used by UWA.
• The National Disability Insurance Scheme (NDIS) – when the NDIS launched in 2013, it rolled out ‘simple English’ contracts with pictures, which it encourages service providers to use.  This aims to allow individuals with a disability to better understand the concepts in the contracts they are signing.
• International Association of Contract and Commercial Management – the IACCM is supportive of visual contracts. For example, a South African lawyer was awarded an innovation award for using contracts which were almost entirely image based for farm workers with low rates of literacy.
• Apple’s Terms and Conditions – in 2017, a graphic artist turned iTunes’ 20,669 word Terms and Conditions into a graphic novel. The novel went viral and not long after its release, Apple amended its service agreement down to 7,000 words.

Benefits of visual contracts

There are many potential benefits of visual contracts. Contracts are rightly criticised for often being unnecessarily complex and lengthy, with individuals struggling to understand the legal obligations which bind them. Visual contracts can help address these problems. Alongside simplified language, images can help guide understanding.

Relatedly, the complexity and length of contract also leads to high rates of non-compliance. For example, a study earlier this year by the Consumer Policy Research Centre found that 94% of Australians do not read the privacy policies that apply to them. If the parties to visual contracts better understand them, there is a better chance that they will comply rather than just signing and ignoring their written contracts.

Potential complications

The most common question regarding visual contracts is whether they are as enforceable as written contracts. The reality is that we will not know for certain until a case on visual contracts is heard and decided. However, last year, former High Court chief justice Robert French spoke at a conference on visual contracts and stated that: "There is no reason in principle why pictorial contracts explained orally or supplemented textually or contextually could not be enforceable in the same way as any other contract.”

On the other hand, other stakeholders such as the AI Group and the Australian Council of Trade Unions (ACTU) have expressed concerns about visual contracts, including:

• The ACTU has stated that “it would be risky for an employer to rely on a visual employment contract. A better approach would be to use a written contract that is drafted in plain language". Pictures have been said to be more ambiguous than words and can mean different things to people from different cultures and backgrounds. This may be why most examples of visual contracts are accompanied by written language to aid understanding.
• Despite his comments above, former High Court chief justice Robert French also cautioned that visual contracts would be difficult to negotiate and could raise problems of fairness. For example, it would be difficult during a contract negotiation to be drawing counter images. This supports only using visual contracts for fairly straightforward matters that will not be subject to negotiation.
• Commentators have also raised concern about the way visual contracts represent people. Language can be more neutral such as by using gender neutral terms. However, utilising pictorial depictions of individuals could lead to issues of representation and discrimination.  To counter this some visual contracts, such as the Aurecon employment contract, use generic symbols such as light bulbs or shapes instead of drawings of people.

Application to the community sector

There is scope for visual contracts to play a significant role in the community sector. This is because:

• Contracts in the community sector are often based on trust as opposed to strict enforcement. Therefore, it is in the interest of both parties if individuals can understand the contracts they are signing to encourage compliance.
• Organisations in the community sector may be working with individuals who are not regular users of formal written contracts, have low literacy rates or disabilities, speak English as a second language or are time poor. These individuals are less likely to read a complex contract, and if they do, may struggle to understand it.
• Organisations who work with children may find the use of visual contracts more aligned with common communication methods between the younger generation. For example, young people often communicate with emojis, gifs and pictures and may find a visual contract easier to understand.

Next steps

We encourage the community sector to explore the use of visual contracts, but not to the exclusion of all written text. We consider that it would be difficult to have a purely image based contract. Instead, we would recommend a mix of images and simplified language as the NDIS has done with its ‘simple English’ contract with pictures.

If you want to go down this path, other issues to consider include:  

• The purpose of using visual contracts is to better engage the signer(s) and help them understand the document they are signing. This requires considering the way images could further this goal in relation to the specific audience.  
• It may be worth trialling visual representation on quasi-legal documents first such as house rules in community housing, or policies and procedures. Feedback on the reception of these documents could then be used to determine implementation of visual contracts.
• Given the untested environment of visual contracts, we recommend working with legal advisers to help prepare the visual contract. A visual contract remains a contract, so you need to make sure it meets your requirements and objectives and does not expose you to any unnecessary risk.

Moores works with community organisations to ensure their contracts and documents are simple and accessible. For more information on how we can help, please contact Hugh Watson or Tony Rutherford on (03) 9843 2100 or alternatively you can fill out the enquiry form below.