Workplace Law & Strategy

A word of advice, on advice

Posted in Health & Safety, Workplace policy and process

Phone

Are you getting the best advice when it comes to health and safety compliance?

When we deliver legal briefings, both in Australia and internationally, top-of-mind for Boards and Senior Executives is the health, safety and welfare of people affected by their operations. This is how it should be – so everyone breathe a collective sigh of relief (insert sigh).
When it comes to seeking commercially sound legal advice on these issues – whose advice should you be seeking?

Under the model work health and safety laws in Australia, officers have a positive duty to exercise due diligence. This includes taking reasonable steps to ensure they have the relevant knowledge and understanding, or take the relevant decision or action[1]. SafeWork Australia’s Interpretative Guideline[2] provides further guidance to officers on what is meant by taking “reasonable steps” in this context:

‘Officers may meet the due diligence requirements in some respects by proper reliance on information from and the activities of others, while having more direct involvement in the health safety management and governance in other aspects. To the extent to which an officer will seek to rely on others, the officer must be able to demonstrate the reasonableness of that reliance, which may be demonstrated through credible information and advice from appropriate people’….

Let’s consider a request for advice by Board members who want to know whether or not they are complying with their legal obligation to exercise due diligence. This question is a legal question that should be answered by a legal practitioner. Having this question answered by a legal practitioner also paves the way for them to be able to call upon the appropriate services from internal and/or external subject matter experts pertinent to a particular issue.

Another key issue facing Boards and Senior Executives, is whether the person they are relying on to provide adequate advice, is actually capable of providing it. For example, can a health and safety professional provide legal advice? The general position would be no – not unless the health and safety professional is also a legal practitioner (although there may be circumstances where a person who is not a legal practitioner can provide this type of legal compliance).

That doesn’t mean Boards and Senior Executives shouldn’t be receiving advice from health and safety professionals and other consultants/experts when it comes to advising on performance, strategy, risks, culture, climate and other non-legal aspects of due diligence. However, Boards should be thinking twice when seeking assurance on the question of legal compliance from anyone other than a legal practitioner.

The sceptics among readers may see this as a way of legal practitioners justifying their existence. And, well, they are certainly entitled to their views. If those same sceptics are going to help their Board and Senior Executives demonstrate the reasonableness of their Boards reliance on credible information from an appropriate person, they will need to be open to a different point-of-view.

Another tip – once you have decided to seek advice from a legal practitioner, ensure that the legal practitioner has the requisite experience and expertise in the field. If the sceptical readers are still reading, no doubt they might be up-in-arms about this additional suggestion. But let’s explore the issue further in the interests of getting the best advice available.

In the book Outliers, author Malcolm Gladwell states it takes roughly ten thousand hours of practice to achieve mastery in a field. So, in general terms, the greater the experience and expertise of a legal practitioner, the stronger the basis for the reliance on the legal advice.

A legal practitioner with experience includes a person who has:

knowledge or practical wisdom gained from what one has observed, encountered or undergone’ and an expert is defined to include a person ‘who has special skill or knowledge in a particular field[3].

So when you combine experience and expertise, consider asking the following questions before seeking, receiving or accepting, health and safety legal advice:

  1. Is the person providing the advice a legal practitioner?
  2. What position does the legal practitioner hold?
  3. How many years has the legal practitioner held that position?
  4. What is the legal practitioner’s field of expertise?
  5. What is the extent of that legal practitioner’s expertise?
  6. What level of practical experience does the legal practitioner have in this particular field? (This does not include how many articles, blogs, webinars, but actual practical experience).
  7. What level of experience does this person have in providing this type of legal advice? (For example, has it ever been tested by a Regulator and/or in a Court? And if so, what was the outcome?).
  8. Is there anything else I should know about the person providing the legal advice?

For those of you who provide advice and support to Boards and Senior Executives, it is important to demonstrate insight into whether or not you are best placed to provide that advice. If not, are you sourcing the right person for that particular piece of legal advice? Sometimes pressure on resourcing and/or restructuring can be reasons why we are reluctant to defer to experience and expertise, but this is one critical area where we should resist. Certainly, we are not proposing peddling  the legal risks of getting this wrong, but we’re confident that without too much effort, you can work out the personal and legal consequences that may arise.

Whilst constant vigilance and a healthy level of caution are valuable, accessing the right legal expertise might also have broader implications when you are seeking compliance advice generally.

With the right advice (both legal and non-legal) Boards and Senior Executives can have a positive impact on the health and safety of their people and those affected by their actions.

References:
[1] Interpretive Guidelines – Model Work Health and Safety Act – The Health and Safety Duty of An Officer under Section 27 – Safe Work Australia

[2] Interpretive Guidelines – Model Work Health and Safety Act – The Health and Safety Duty of An Officer under Section 27 – Safe Work Australia

[3] Macquarie Concise Dictionary, Sixth Edition

Seyfarth Shaw moves to new location in Sydney

Posted in Uncategorized

Seyfarth Shaw’s Sydney office is now located at:

Level 40,
Governor Phillip Tower
1 Farrer Place, Sydney NSW 2000.

Due to Seyfarth Shaw’s rapid growth in Australia, we needed to find a new and larger space for our growing team. As part of our search, many buildings were considered but the option of a long-term lease, excellent connectivity and a flexible floor plate were behind the move to Governor Phillip Tower.

Seyfarth Shaw's Sydney reception.

Seyfarth Shaw’s Sydney office.

Seyfarth collaborated with Outkast on the design and fitout to create an environment that has been specifically designed to foster collaboration, integration and creativity.

Australian managing partner, Darren Perry said that the need to move came about as a result of the very positive response of clients to our offering to Australian and international corporations, which is focussed on employment, industrial relations and workplace safety law.

“Our continued growth, including the recent addition of our workplace safety team, has made it necessary for us to say goodbye to our first home in Chifley Tower and take a long term lease in a location with more space. We are excited about continuing to work with our clients in the new environment we have created at Governor Phillip Tower.”

All other contact details remain unchanged.

We look forward to seeing you at our new location.

Pokémon NO: New app creates risks for employers

Posted in Health & Safety, Workplace policy and process

PokemonOur colleagues in the US recently published an article on Pokémon GO, Nintendo’s augmented reality game involving scrambling around real-world locations to ‘catch’ virtual beasts with your smart phone. (There’s a sentence I’ll never write again!).

The article explains that, despite the game’s popularity, employers have cause for concern in relation to data and security and workplace safety.

Pokémon GO is similarly taking our fair shores by storm. It seems all too easy to poke fun at this new gaming mobile app. However, as the article highlights, if employees are out to ‘catch ‘em all’, employers could very well find themselves caught in a nasty game of software security, privacy and workplace safety issues.

Anime (see what I did there?), that’s enough from me.

I hope you enjoy the read – Pokémon NO: New app creates risks for employers

Back to the future: The digital disruption debate

Posted in Employment & Holidays, HR/IR Strategy

Video killed the radio star…or did it?Radio star

In its most recent research paper analysing the effects and possible responses to digital disruption, the Productivity Commission observes that with each wave of change “speculation about the effects of technologies often suffers from extreme optimism or pessimism”.

While perhaps raising more questions than it answers, the Productivity Commission focuses on the potential of digital technologies to deliver economic benefits if regulated appropriately.

Automation

It has been predicted that over the next 10 to 15 years, up to 40% of jobs in Australia will be put at risk because of automation. However, the outlook probably isn’t so grim, when you consider that:

  1. automation of tasks has been occurring for centuries, sometimes with surprising effects. The automation of bottle making in the early 1900’s for example not only jolted productivity but also eliminated child labour from that industry.
  2. automation does not necessarily equate with an increase in unemployment because new jobs are often created. For example, higher skilled jobs may be created to complement new technology.
  3. certain jobs are not susceptible to automation – for example, managerial, creative and caregiving roles.
  4. just because a job can be automated, doesn’t mean it will be. As anyone who has attempted to drop off their baggage at an airport knows (or maybe it is just us!) there are times when a machine or computer is no substitute for a human being.

On the other hand, the Productivity Commission acknowledges that automation will replace some jobs. Young people with little experience and low skills and older people in industries subject to major structural change are especially vulnerable to unemployment or underemployment.

The sharing economy

Online sharing platforms like Uber and Airbnb and the spread of mobile technology gives rise to the potential for businesses to buy services on an “as needs” basis. This may also create opportunities for people to work flexibly, control their working hours and supplement their income.

However, the sharing economy remains small and its growth is uncertain. While some commentators have predicted that secure employment will soon give way to an endless series of “gigs” (see our previous blog The sharing Economy – what’s the potential?), the Productivity Commission says that employers will be less likely to hire labour in a range of circumstances including where there is:

  • high interdependence between workers;
  • concern about the expropriation of intellectual property;
  • difficulty controlling the quality of work provided by contractors; and
  • the need for loyalty and/or in-depth knowledge of the business.

The report notes that if the sharing economy does take off, there will be risks to be managed by government – but simply blocking these technologies is not the answer (pardon the pun, but it really is a case of we can’t rewind, we’ve gone too far). Rather, systemic changes to the workplace relations and income support systems may be required to support individuals who engage in the workforce in this way.

Further insights and recommendations can be found in the Productivity Commission’s research paper – Digital Disruption: What do governments need to do?”.

Bargaining with the devil: in whose interest?

Posted in HR/IR Strategy

In his book Bargaining with the Devil, Harvard Professor Richard Mnookin probes the challenges and options available when negotiating with “a devil” – anyone you perceive as a harmful adversary. The Devil Brad

“The devil” is usually a traditional “power-based” negotiator who is win/lose orientated, adopts extreme positions, makes small concessions, and uses threats as a key tactic to enhance negotiating leverage. Sound familiar?

Power or “positional-based” negotiations have dominated Australian workplace relations and remain a feature of enterprise bargaining – in a system which, to be fair, legitimises the threat and reality of industrial action.

By contrast “interest-based” negotiations, whilst not new, are rarely seen in pure form in the Australian IR landscape. Interest-based negotiations see the parties identify underlying interests and work collaboratively to formulate solutions. To its credit, the Fair Work Commission is adopting interest-based dispute resolution techniques and is inviting employers and unions to give it a try.

But assuming you are bargaining with “the devil”, what can an employer do to enhance its control over the negotiation? How does it improve its capacity to walk away from the negotiation? How do you deal with the typical power-based tactics?

Look out for more blogs from The Bargaining Coach on this.

Learn more at our Bargaining for Gain workshop Tuesday, 19 October 2016.

The future of work – what are the lessons for employers?

Posted in Diversity & equal rights, HR/IR Strategy

Work imageWhat will work look like in the future and what lessons can employers take from that? Two recent reports have identified the trends in the way in which we will work in Australia over the next 20 to 40 years.

In the first, Tomorrow’s Digitally Enabled Workforce, the CSIRO looks at what they describe as six ‘megatrends’ for jobs and employment markets over the coming twenty years:

  1. The use of robotics to perform tasks more quickly, safely and efficiently than humans;
  2. The rise of digital technology and the new world of ‘platform economics’, which mean that jobs of the future are likely to be more flexible, agile, networked and connected;
  3. The need for many individuals to use entrepreneurial skills to create their own job;
  4. An ageing population, more diverse workforces and more diverse cultural backgrounds;
  5. A higher bar for skills required for entry-level positions; and
  6. Continued growth in the service industries, in particular education and healthcare – requiring social interaction skills and emotional intelligence.

The second, the NSW Government’s ‘Future State NSW 2056’ report, examines trends in workforce participation, living arrangements and productivity and projects them over the next 40 years. The report foreshadows a number of key developments in relation to the jobs of the future. These are remarkably similar to those identified in the CSIRO report:

  1. The decline in the ‘producer industries’ (manufacturing, construction and agriculture) in Australia and the continued rise of the services sector (health and professional services, such as engineers, computer designers, accountants, lawyers and scientists);
  2. Future sources of employment being in arts, engineering, AI, robotics, nanotechnology, 3D printing, genetics and biotechnology;
  3. The rapid growth of the peer-to-peer and freelance employment markets – which often means the outsourcing of work to specialist contractors and consultants, who are likely to work from home or use shared facilities;
  4. Workers having ‘portfolio careers’ (multiple jobs with multiple employers on a part-time basis); and
  5. Telecommuting and remote working becoming the norm (rather than the exception) in some industries.

While many of these trends are well known, they are potentially still very confronting for many workers – and businesses too. But what lessons can employers take from these trends? I think there are three:

  • Work will not involve, and workers will expect their jobs will not involve, just ‘doing’. The focus for the design of the jobs of the future will be around how workers can have creative input – in other words, workers will expect to use their abilities to ‘think’. Organisations will need to ensure that jobs create intellectual stimulation and challenge. Any process work will be done (if it is not now) autonomously by technology.
  • Workers will not have an expectation of a lengthy period of employment or engagement with one particular organisation, but they will have high expectations of the learning and development that they can obtain from that organisation. This will be a critical area of focus for organisations wanting to be leaders in their field – because it will be about finding the best talent, rather than the best talent finding you.
  • Organisations will have to develop ways of working with their workforce that take into account the diversity of the workforce and the diversity in the ways in which people will perform work – including by operating their own businesses. Your engagement with those who provide ‘labour’ to the organisation will need to be continuously innovative so that you can build resilience to ongoing rapid change.

Love me tender – how IR is a key point of difference

Posted in HR/IR Strategy

Are we in the beginnings of a cyclical upswing in industrial action in Love me tender - option 3Australia? And if so, what does it mean for those involved in competitive tender processes?

Data from the ABS indicates that the last spike in industrial disputes occurred in September 2012, with around 110,000 working days lost. The sense that there may be another spike coming correlates with the enterprise agreement life cycle, as enterprise agreements typically expire after 3 or 4 years. Many businesses are currently engaged in, or planning for, negotiations for the next round of agreements.

In this climate, the potential impact of industrial action is particularly troubling for those employers who engage in competitive tender processes in order to win work. Organisations who put work out to tender are increasingly adopting sophisticated assessment criteria, which include many aspects of the tenderer’s business strategy – rather than just looking at price. One of the criteria that often has a high priority is how industrial relations risk (especially the risk of industrial action) will be managed and reduced. There is an expectation, if not a requirement, that tenderers will have a comprehensive plan to minimise the impacts of industrial action, and that innovative solutions will be designed by tenderers for that purpose.

Principals often award tenders for many years which means that the management of industrial relations risk requires tenderers to ‘play the long game’ in managing and pre-empting industrial action risks that might arise during the course of the contract.

In this context, tenderers need to think deeply about how they best position themselves in a competitive tender process. This requires careful consideration of the options that are available to get the work done. Traditional models of engaging employees might no longer be enough to convince the principal that the tenderer is trying to minimise employment risk. Demonstrating capability and innovation in managing industrial relations risk means looking afresh at workforce models, including:

  • creating solutions to the problem of enterprise agreements expiring during the course of a project;
  • rethinking reliance on one ‘supplier’ of labour and considering how multiple sources of supply might be engaged – to help minimise disruption to, or delay in, labour supply that might arise from industrial action; and
  • outsourcing some of the IR risk to other entities or stepping outside the traditional workforce engagement models.

While you might wonder if the current industrial landscape is really that tumultuous, or you may feel a touch of schadenfreude at the industrial action going on elsewhere (confident that your ship is secure), now is the time to think proactively about your system for managing industrial relations risk to differentiate your offer from competitors.

Managing absenteeism: a collaborative approach

Posted in Employment & Holidays, HR/IR Strategy, Workplace policy and process

Doctor

Employers who proactively deal with employee absenteeism, and focus on assisting employees to return to work, can reduce the impact of employee downtime and disruption to working arrangements.

We’ve previously discussed some key tips about handling non-work-related illness and injury.  This post focuses on the importance of taking a collaborative approach when managing frequent or prolonged absences.

Frequent or prolonged absences due to stress, illness, injury or other personal reasons can be a major cause of frustration for employers. However, there are significant risks associated with taking punitive measures against employees who may be genuinely unwell, illustrated in several recent decisions.

In our experience, approaching the issue from the perspective of understanding the employee’s condition, and assisting them to return to normal duties, can help the employer drive a long-term resolution of the issue, rather than approaching absenteeism as a disciplinary matter. This applies even when the employer suspects that an employee is “gaming the system”, and their stated reasons for absence are not genuine.

Employees are far more likely to co-operate and share information about their condition if they feel they are being supported. This information can be vital to help managers make decisions about workforce planning, and for discussions with the employee about any reasonable adjustments that could be made to their role. The primary driver when seeking to address absenteeism issues should be finding out the reason for the absence, and finding a way to get the employee back to work if at all possible.

This collaborative approach could alleviate some of the difficulties seen in a recent case in the Federal Circuit Court of Australia where a manager directed an absent employee to allow him to speak with her treating doctor. The manager sent an email to the employee, implying that a failure to agree could result in termination of employment. The Court was critical of the manager’s approach, found the direction unreasonable in the circumstances and found that the employer’s reason for asking to speak with the doctor was for the purposes of disciplinary action, rather than assisting the employee to return to work.

But this doesn’t mean that talking to an employee’s treating doctor is completely off limits. It can still be a helpful measure in understanding the reasons for absenteeism and the employee’s condition, and managing a return to work – the key is having a discussion with the employee first, and getting their permission. If the employee understands why the employer wants to speak with their doctor, and the types of questions the employer wants to ask the treating doctor, they may be more likely to agree.

Of course, not every case of absenteeism will be for genuine reasons and, if this can be established, then a disciplinary approach may be appropriate. The approach outlined above should help to establish whether or not the employee is absent for genuine reasons and, if the absenteeism is not genuine, support the taking of disciplinary action if it becomes necessary.

For HR practitioners and managers, this may involve a change of mindset in approaching issues of absenteeism but one that we think has the potential to produce positive benefits.

Mum’s the word on safety during takeovers

Posted in Health & Safety, Workplace policy and process

LuggageA takeover of one business by another can be a lot like a visit from your mother-in-law.

On Mother’s Day, we enjoy a cup of tea or a glass of bubbles with our mums in recognition of all their hard work and sacrifice. We give thanks for the tips, advice, guidance and life-long lessons only they can proffer. I recall with great fondness my Mum’s unwavering enthusiasm during the tears, tantrums and pre-stage jitters of my jazz-ballet/hip/funk/tap performances. For Mum, an exhaustive commitment of pick-ups and drop-offs, elaborate hair do’s, dress rehearsals and toe-tapping her way through yet another Robert Palmer tribute. Every time, through the haze of Cedel Hairspray Extra Firm, there was my Mum.

But what about when your mother-in-law comes to stay? When all your hard work is questioned. When your housekeeping standards are judged by her white-gloved finger across furniture and subsequent pursed lips. When those menial tasks you have performed over and over, and without incident, are scrutinized. When you (and the state of your linen cupboard) are the unwilling recipient of unrequired and unhelpful advice.

Or perhaps it’s the other way, and you find yourself having to articulate the importance of housekeeping, of putting things away, washing the dishes and keeping your new duck-egg-blue Mud platter out of the dishwasher. In either case we are all familiar with that feeling of tension and unease that visits of this kind bring with them.

You can find yourself defending your safety management system and/or trying to explain the importance of it. Playing nice and toeing the line can be stressful and challenging. Not unlike being visited by your mother-in-law, being prepared and planning ahead is critical.

Here’s our ‘to-do list’ for such visits:

  • Get your house in order; prepare for the meeting or the site visit by making sure that your housekeeping is up to date and personal protective equipment is being used;
  • Be proud of what you have, be ready to talk about the positives and to share your knowledge of the role of safety in the business and how your safety framework hangs together;
  • Be prepared to respond to any knowledge shortfalls about the business, the risks in the business, your safety record, areas of improvement and challenges;
  • Prepare your workforce and keep them informed – the more they are the more likely they will be to keep their mind on their job and not of their job security;

Be sure you stay open to new ideas and differing perspectives, After all, sometimes mother does know best. Recognise that the change brings an opportunity to learn something new that improves the way you are managing your health and safety practices.

Are you on the right path with interns?

Posted in Diversity & equal rights, Workplace policy and process

FinanceScott Morrison’s first Federal Budget announced the creation of the ‘Youth Jobs PaTH’ (Prepare-Trial-Hire) program – a program designed to encourage up to 120,000 unemployed youth into the workforce through skills training programs, paid internships and incentive payments for prospective employers. While further details will come to light over the course of the Federal Election campaign, employers who want to participate will need to look before they leap, to make sure their participation in the program doesn’t lead them, later on, to fall foul of the minimum wage provisions in awards and legislation.

The Budget papers suggest that the Youth Jobs PaTH will involve three-stages:

  1. six weeks of skills and job hunting training;
  2. internship placements of between 4 to 12 weeks duration, in which interns will work between 15 to 25 hours per week. During these placements, jobseekers will receive $200 per fortnight (on top of their income support) from the Federal Government, while businesses who take on interns will receive an upfront payment of $1,000; and
  3. larger subsidies paid to businesses who take on Youth Job PaTH jobseekers on an ongoing basis, with accelerated wage payments to prospective employers forecasted to be between $6,500 and $10,000.

We’re yet to see how the program will interact with the minimum wage provisions in awards, but social media has lit up at the suggestion that jobseekers under this scheme will be paid as little as $4 per hour (excluding the unemployment benefits these jobseekers will retain during this time) during stage 2. The ACTU has even described the scheme as ‘ripe for abuse’.

It seems unlikely to us that the Youth Jobs PaTH will give employers carte blanche to escape from all obligations relating to interns.

However, what will be important for businesses wanting to minimise the risk of claims is how they engage with jobseekers both during the internship program and (more importantly) after it is completed – and that there is a clear line between those involved in the internship program and those who have moved into an employment relationship.

This is particularly so where the vulnerability of young workers to ‘intern’ arrangements has been a key concern for the Fair Work Ombudsman (FWO). This was highlighted in the recent decision in CrocMedia, where the Court looked at minimum wage obligations for relationships that were described as ‘internships’ or ‘vocational placements’. The Court decided that two radio producer ‘interns’ had actually been engaged as employees, rather than unpaid volunteers. The Court placed emphasis on the fact that the company had derived a profit or productive work from the contribution of the interns and the length of their engagement.

What does this mean for businesses participating in the Youth Jobs PaTH program and for using internship arrangements more generally?

A few things:

  • comply with the program requirements while the internship placements are under way, and ensure the jobseekers understand that they are being engaged as part of the internship program;
  • make sure it is clear when the internship placement ends;
  • make sure that, if a jobseeker transitions to an ongoing basis or out of an internship arrangement, their terms and conditions of employment meet the minimum employment standards under any applicable awards or legislation; and
  • make sure that, at all times, you comply with workplace health and safety obligations regarding all workers in your business (including interns and unpaid volunteers).

The Youth Jobs PaTH programme raises some interesting questions about the dynamic between employers, employees and interns. These are arrangements that need to be tightly managed to minimise exposure to underpayment claims and FWO prosecution.