Is it time consumers get tough on software warranties?

A recent Australian Federal Court ruling has imposed a $200k penalty on a hardware and software vendor for false and misleading warranty claims made to its customers.

Most software vendors have limited understanding of their obligations under the Trade Practices Act 1974 (section 52 and 53g). Section 53g states: "[A corporation shall not...] make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy."

Indeed, there are many clauses under the Trade Practices Act that software vendors should be aware of in relation to software quality, such as:

• Section 68 - Application of provisions not to be excluded or modified
  "... purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying: ... (c) any liability of the corporation for breach of a condition or warranty implied by such a provision; or ... is void."
  
  
• Section 70 - Supply by description
  "... there is an implied condition that the goods will correspond with the description..."
  
  
• Section 72 - Implied undertakings as to quality or fitness
  "... there is an implied condition that the goods supplied under the contract for the supply of the goods are of merchantable quality..."
  
  
• Section 74D - Actions in respect of goods of unmerchantable quality
  "... the consumer suffers loss or damage by reason that the goods are not of merchantable quality; the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction."
  
  "Goods of any kind are of merchantable quality within the meaning of this section if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to:
  (a) any description applied to the goods by the corporation;
  (b) the price received by the corporation for the goods (if relevant); and
  (c) all the other relevant circumstances."

So what constitutes "merchantable quality" and "reasonable to expect" in the software industry? What testing prior to deployment is reasonable to expect? How do we ensure that the "goods will correspond with the description"? What will be the outcome when some of these clauses are tested in court?

I am not a laywer, but I believe that many vendors are likely short of their responsibilities in these areas. However, for many consumers and acquirers, they are not prepared to legally challenge for their entitlement to quality.

Related articles:

• ACCC slams MSY Technology over consumer warranty rights, Current.com.au
• ACCC fines MSY Technology $200k, Computerworld
  
• Updated: MSY fined $203,500 by Federal Court, ARN

Bridging the Software Testing Skills Gap

As the Australian economy improves, and pressure to obtain skilled resources grows, the pressure to find skilled software testing resources will be even greater. This is the most critical challenge currently facing Test Managers in large organisations throughout Australia. Ultimately the ripple effects will be felt by IT and Project Managers, and up to the CIO’s software delivery pipelines, as inadequate access to testing resources will place successful releases at risk (see Testing is IT's Elephant in the Room).

In the Ross Report the evidence collected led me to conclude that Australia will need to find 1500 – 2000 new testers to fill the gap. The reasoning for this is that not only will IT projects continue to ramp up, but the IT project budget apportioned to testing is continuing to grow, and this translates into a significant increase in testing expenditure by 2012. Evidence for this can also be seen in the ramp up in job vacancies, as shown in our Software Testing and QA Job Index.

Sourcing of testing resources is changing, with a shift towards increased outsourcing. Furthermore, testing is becoming increasingly analytical, where testers are now expected to provide technology advice at a similar skill level to that of others in the development team, such as programmers, business analysts and solution architects.

The implications of the Skills Gap are two fold:

1. Testing resources will become a suppliers market. Salaries will increase, there will be greater competition for available good resources, bidding wars will take place on experienced resources, and organisations will face greater churn as resources leave when tempted by other opportunities.

2. Shortage of resources will limit what project demands can be met. Projects may be delayed, or released with less than desired governance and quality control. Organisations will face greater risk.

On April 14^th and 15^th, Australia’s leading Test Managers will meet for the 9^th Australian Test Managers Forum on the Gold Coast. At last year’s Forum, attendee feedback confirmed resourcing as their most critical challenge, further reinforcing the evidence above. Hence the key focus for this year’s forum on the Skills Gap, and what organisations are doing to address the challenge.

This article explores the considerations, and seeks feedback as to what organisations are doing to bridge the Skills Gap. A number of strategy questions that organisations may be considering are:

• Sourcing Strategy
• Where will your resources come from?
• Whether to use permanent, contract or outsourced resources?
• Whether to undertake testing onshore, offshore or a blend of both?
• Will you rely on a constant permanent team, or do you need to be flexible with your resource demands?
• Are resources full-time or part-time?
• What supplier relationships need to be established to secure access to resources when needed?
• Attracting Resources
• Where can we find new testing resources?
• Do we look at immigration to access a greater resource pool?
• Is testing seen as an attractive career path to potential recruits?
• Are Australian universities producing graduates to address the testing skills gap?
• Are resources from other parts of the business being reskilled successfully to address the skills gap?
• Are resources from other parts of development being reskilled successfully to address the skills gap?
• Are graduate, intern or traineeship programmes being used as a mechanism to develop new testers?
• Retaining Resources
• Are organisations able to offer the right environment to retain testers?
• Are salaries competitive?
• Are career paths in place, and do testers see advancement and personal development opportunities?
• Do testers have opportunities for promotion without having to leave the discipline?
• Is testing a good pathway for developing leadership in other areas of the business?
• Are appropriate skills development programmes in place to continue to advance skills and provide greater value?
• What is the best way to develop skills: classroom or online training, mentoring, project placement, etc.?
• Are organisations providing a pleasant workplace environment?
• Are testers recognised and respected by their peers?
• Are team structures supportive of the testing role?
• Reducing the Workload Demand
• What efficiency improvement can be undertaken to reduce the requirement for skilled testing resources, yet still produce a quality outcome?
• Are team structures well balanced?
• What level of testing needs to be undertaken by independent testing?
• Are processes efficient, in terms of most cost-effectively finding and fixing defects, using the right skills and resources, at the right time?
• Can less testing be done and still achieve the successful outcome, e.g. through prioritisation and risk-based testing?
• Can Test Tools be better utilised to reduce the workload?
• Can scheduling the development lifecycle manage the workload, in terms of spreading testing more evenly?
• Can we achieve sufficient reuse of test assets to improve efficiency?

A lot of tough questions here! Please post comments regarding your thoughts on what organisations are currently or are planning to do to address the skills gap. I will take your comments to the Forum for discussion, and also post a follow up article here after the Forum on what alternatives were suggested.