Our clients care deeply about innovation and technology. We know this from our engagement with clients including discussions triggered by reflecting on the findings of the CSIRO’s Workplace Safety Futures report.

Our clients care about “machines” (including “robots”, artificial intelligence, biometrics and the harnessing of big data) being developed as a result of innovation and technology because of the unprecedented efficiencies and improvements in safety they unlock.

These benefits come with a potentially profound human cost. Depending on which research you turn to, the predictions are that between 9 and 50 per cent of jobs will be replaced by machines in the next decade.

This rapid pace of change has caused leading scholars to argue that some, if not a large majority of humans face a fate worse than redundancy: complete irrelevance.

The jobs of the future will involve “caring” and other “soft” skills machines can’t replicate  

This sobering thought caused us to reflect on what the skills of the future should be to counter this impending irrelevance. The current thinking from some quarters (including most Governments in the Western world) is that science, technology, engineering and mathematics are the subjects of the “future” and that we should be teaching more students these subjects in our schools, technical colleges and universities.

Cybersecurity and understanding the potential vulnerabilities of machines and how to fix them is one growth area. Estimates are a near 40 per cent uplift in the number of people needed with these skills in the next decade.

At the same time, leaders of businesses are arguing that one of the hardest skills to recruit for is the ability of candidates to write and speak publicly to communicate ideas clearly. Chairman and CEO of Goldman Sachs, David Solomon, has said that “[h]ow you communicate with other people, how you interact with other people, how you express yourself will have a huge impact on your success”.

The bigger question though is how we, as a society, prepare for the future?

Embedded in this question are further intrinsic questions around what it is that machines cannot do, or what it is that machines cannot do better than humans? An understanding of the answers to these questions is necessary if we attempt to protect ourselves from redundancy and, worse still, irrelevance.

It’s heartening to hear that across all reports that communication skills remain valuable in the “new world” of work.  This is good news for lawyers and many professions.

Knowledge of machines + deep understanding of people = recipe to thrive

Perhaps the focus here should be on the things that, for now at least, machines can’t replace. In the main these are the very things that make us human and make us feel. This includes the joy we experience through art, literature, movies, theatre, dance or music. It also includes the empathy we feel that comes from human care and kindness.

Leading organisation are already harnessing “blended” skill sets

Leading organisations with which we work have already recognised the need to combine a knowledge of machines with the “caring” and “feeling” skills, so called “softer” skills, that machines can’t replicate. These organisations seek out and promote, through lifelong learning, essential skills in communication, creativity, innovation and intercultural competency.

The future is impossible to predict with accuracy. One thing though is clear –  the impact of machines on the jobs we have today is inevitable. If we set ourselves on a path to learn only the skills which machines can potentially replace, we set ourselves on a dangerous path.

Based on the inevitability of the machines replacing humans, combined with the focus on the “softer” skills associated with creativity, we are working with our clients to do just that get more creative.

Creativity is not only one of the key skills that will relate to employability in ever increasing ways but we are seeing employees seek out organisations that hold creativity as a core value. Why? They will be sustainable long term. We might care about machines, but as yet they don’t care about us.


Subscribe to receive the next Workplace Law & Strategy blog direct to your inbox.

It is widely proclaimed that we are in the midst of the “Fourth Industrial Revolution” (4IR). The leaps and bounds that are being made daily in information technology and biotechnology signal the end of homo sapiens or provide liberating freedom for the working masses, depending on which commentator’s view you believe.

For us, the daily lived experience of the 4IR in working and home life is not yet as cataclysmic nor as emancipating as the commentators proclaim. However, the ever growing use of technological, timesaving solutions, the ‘gigification’ of the workforce, the blurring of the lines between work and home and the rising issue of workplace psychological health all signal shifting global trends.

Regional trends that are responding to the 4IR

The 4IR is shaping workplace laws. Working across regions we see examples that point to trends in laws responding to the new world of work arrangements such as non-traditional labour models. As an example, recent amendments to the Occupational Safety and Health Act in Korea have expanded the scope of statutory protections to “persons providing labour” (as opposed to “employees”) and introduce an obligation on franchisors to take preventive measures for workplace accidents suffered by franchisees and their workers.

Positive regional trends can be seen in how workers are protected by existing laws. The latest amendment to the Law of the People’s Republic of China on the Prevention and Control of Occupational Diseases on 4 November 2017 and recent cases indicate a trend in Beijing and Shanghai that the enforcement of health and safety at work is in focus, more comprehensive and increasingly strict.

Debates on how we face the future

Australian Governments are grappling with the challenge of laws that are responsive to the 4IR. A key recommendation from the 2018 review of the model Work Health and Safety Laws is that Safe Work Australia develop criteria to continuously assess new and emerging business models, industries and hazards to identify if there is a need for legislative change, new model WHS Regulations or model Codes.

Laws continue to be tested against the explosion in reporting of workplace sexual harassment. A number of unions are calling for WHS laws to specifically include sexual harassment as a risk that must be eliminated or minimised by duty holders. Regulators are encouraging anonymous whistleblowing to facilitate investigation.

The battle lines have also been drawn for the Federal election later in the year, with the Australian Labor Party committing to a wide suite of industrial and safety changes including a commitment to support national industrial manslaughter laws – a position supported by the 2018 review of the model laws.

Rising issue of workplace psychological health – a focus for regulators

In Victoria, recent presentations from WorkSafe have detailed plans for its inspectors to be trained to assess workplace psychological health. We can expect more enforcement action in this space.

Exploring ‘megatrends’ for the future will help us prepare for change

It is more important than ever to understand the risks associated with the constant change in workplaces. The Workplace Safety Futures report commissioned by Safe Work Australia explores the six megatrends predicted to re-shape workplace health and safety – including the gig economy, the blurred lines of work and home life and workplace psychological health. It’s a highly recommended read.


Subscribe to receive the next Workplace Law & Strategy blog direct to your inbox.

We are excited to announce that Erin Hawthorne has been promoted to partner. Although we have grown through lateral partner appointments over the past few years, Erin is the first promotion to partner from within the team since the Australian offices of Seyfarth Shaw opened in Australia.

“Erin has been a leader in our team since Seyfarth opened doors in Australia, and her promotion to partner recognises this”, said Australia Managing Partner, Darren Perry. “An experienced employment and industrial relations lawyer with in-house experience, Erin is known for her ability to provide clients with advice through a lens of practicality”.

As an experienced litigator, Erin is adept at using the opportunities presented by difficult employment and industrial relations issues to deliver commercial outcomes when representing employers. Erin has the game plan needed to protect or attack when litigation is unavoidable or advantageous.

As the first promotion from within the team at Seyfarth Shaw in Australia, Darren explained that “the team sees this as a milestone moment in the growth and development of our firm” marking the moment when “one of our talented lawyers has been promoted into Seyfarth’s partnership”.

“We recently celebrated our fifth anniversary in Australia. Since opening, our team has established itself as a market leading labour and employment and workplace health and safety practice. The promotion of Erin is part of our strategy to continue the growth of the practice and take it to the next level.”


Subscribe to receive the next Workplace Law & Strategy blog direct to your inbox.

On 12 December 2013 Seyfarth Shaw announced our Australian offices were officially open for business. Today marks five years since those doors opened.

What better way to reflect than to ask ourselves, what have been the biggest changes in our specialist areas of law over those five years?

“It has become increasingly difficult to make enterprise agreements that are compliant, genuinely enterprise-focused and fit for purpose due to increasing modern award complexity combined with the unworkable approach adopted in decisions of the Fair Work Commission and Federal Court to the BOOT and other procedural aspects of agreement making.”
– Rachel Bernasconi

“Over the past five years, I have observed the tension between sharing improved safety lessons and legal risk. I am concerned about compounding this potential unintended consequence with the rise of the industrial manslaughter offence.”
– Paul Cutrone

“I think the biggest development in employment and industrial law is how courts and tribunals are grappling with modern expectations of what ‘working’ looks like. This means they are looking at how to deal with the gig economy, flexible working arrangements (including working from home and telecommuting), employees wanting lengthy periods away from work and ‘portfolio’ careers. There is a real tension as employers seek flexibility to ensure customer demands are met while balancing the costs of labour vs employee representative groups seeking to pull the other way, seeking automatic casual conversion rights and laws that treat gig workers as employees. The next five years will see this tension play out in the policy debate.”
– Ben Dudley

“The most significant change I have seen is increasing employee mobility. Employees of large international organisations are spending more time on assignment in locations throughout the Asia Pacific, on both a short-term and long-term basis. We see this occurring as a result of organisations expanding their operations throughout the region. Employers are increasingly seeking specialist employment advice on both a single jurisdiction and multi-jurisdiction basis, including to confirm compliance with new frameworks and to ensure the appropriate arrangements are in place.”
– Luke Edwards

“The last five years has cemented a realisation that has been brewing for the last ten years. Enterprise bargaining amidst the current regulatory environment has reached its use-by date for many employers. Enterprise bargaining is no longer an opportunity to secure win-win outcomes but rather a process aimed at reducing the risk to on-going operations.”
– Chris Gardner

“There has been a shift away from spending money on large, wordy paper systems written by lawyers. I question whether anyone is any safer once they are developed. Smart organisations are investing heavily in understanding their key risks, controls and testing the effectiveness of those controls. This is where their efforts need to be.”
– Jane Hall

“One of the most significant developments I have seen in the last five years is the rise in the influence of workplace regulators. Consistent with the overall dynamic facing corporate Australia, we are seeing far more active, better resourced and assertive regulators across various workplace issues. The environment is one of heightened focus on compliance with workplace and safety laws; the financial and reputational stakes are higher than ever for employers who fall short.”
– Darren Perry

“Over the past 5 years, we have seen a number of areas where our Fair Work Commission cannot speak with one voice. While many parts of its jurisdiction have been affected, it is most noticeable in individual claims. How the Fair Work Commission balances even very serious conduct against mitigating factors remains unpredictable and has resulted in flip-flopping which creates ongoing uncertainty. This is costly and time consuming. Faced with cost and uncertainty we are seeing our clients feel pressure to settle rather than defend a sound and rational decision to uphold reasonable standards of conduct. The absence of clear statements of principle from the Fair Work Commission (such as we had in the past) and its increasingly subjective approach creates uncertainty, inefficiency and unfairness of a different kind.”
– Henry Skene

“The changes have been many and varied. What I am seeing is increased competition across a number of industry sectors, which means there is a war to retain and protect the most talented staff, who are the engine of the business. This has led to a big uptick in restraint of trade work – a highly specialised area which can be compared to a game of chess. We are passionate about this area of law and have built a specialist service model that in our opinion is market leading – whether it be getting into court within a matter of days when necessary, to defending applications for injunctions or damages. Our clients recognise that a good restraint is a business asset, and invest accordingly.”
– Michael Tamvakologos

On behalf of the team, we would like to thank the truly valued supporters of Seyfarth Shaw in Australia. We are excited to continue to work with you into 2019, and beyond.


Subscribe to receive the next Workplace Law & Strategy blog direct to your inbox.

After several years of reports and recommendations, the Australian Parliament has passed the Modern Slavery Act 2018—carrying an imperative for businesses in Australia to take action on their modern slavery risks and responsibilities.

Updates to the legislation

The Modern Slavery Bill generated impassioned debate in both the House and Senate, passing with bipartisan support and several amendments to the legislation:

  • Explanations for failure to comply: If the Minister is reasonably satisfied that an entity has failed to comply with the reporting requirements, the Minister can request that the entity provide an explanation and/or undertake remedial action. The Minister can publish information about entities that have failed to comply with a request.
  • Minister’s Annual Report: The Minister must prepare an Annual Report assessing implementation of the Act, including an overview of compliance by entities and the identification of best practice modern slavery reporting under the Act during the year.
  • Three-year review: The Government agreed to a review of the legislation in three years’ time, which will include whether additional compliance measures are needed.

Labor has signalled that it will push for further amendments if elected into Government next year, including civil penalties for non-compliance, an Independent Anti-Slavery Commissioner, and a public list of entities required to report.

Clarity on reporting requirements

Businesses now have clarity on their modern slavery reporting requirements: All entities operating in Australia, with an annual consolidated revenue of over AUD $100 million, will need to publish a Board-approved modern slavery statement under the federal legislation within six months of the end of their financial year.

Organisations with employees in NSW and a turnover of over AUD $50 million will need to publish modern slavery statements under the NSW law. The Government has stated that businesses reporting under the federal legislation will not need to do so under the NSW law.

If not now, when?

The UN Working Group on Business and Human Rights recently released a report on corporate human rights due diligence with a key takeaway for businesses: just get started. Human rights due diligence and risk management has become an expected norm around the world—requiring proactive, ongoing investment from businesses to know and show that they are meeting their responsibilities to respect human rights. With the passage of the Modern Slavery Act, this should now be at the forefront of the corporate agenda here in Australia.

A proactive and strategic approach

Here are our next steps for Australian businesses.


We are already working with our clients to ensure they comply with their modern slavery reporting obligations – contact us if you would like to know more.

Subscribe to receive the next Workplace Law & Strategy blog direct to your inbox.

This week’s data released by the Workplace Gender Equality Agency (WGEA) shows some modest improvements in workplace gender equality in the entities required to report to WGEA (those with 100 or more employees).

There was an ever so slight increase in the proportion of women in senior management roles. And I guess the “biggest single-year drop” of 1% in the gender pay gap is something to celebrate (at least it didn’t go up!) notwithstanding that men still earn 21.3% more than women on average and pay gaps persist in every occupation and industry – even those which are heavily dominated by female workers, such as health & social assistance and education & training.

The stats also disclose that:
  • access to employer-funded paid primary carer’s leave has gone backwards. This disproportionally impacts women who still account for 94.9% of all primary carer’s leave utilised, with men accounting for only 5.1%
  • more than 35% of boards and governing bodies in the data set have no female members
  • although there was a 4% increase in organisations analysing pay data, 40% of those employers took no action to close the gap
  • although almost 75% of employers have a gender equality strategy or policy, only 31.4% have implemented KPIs for managers relating to gender equality outcomes.
Narrowing the “action gap”

The “action gap” – having policies and strategies in place but not making managers accountable for embedding them in their workplaces – has not narrowed. It has been 18 months since I published this blog on diversity and inclusion noting that:

It is trite and well-trodden ground that without buy-in from the top, progress towards true diversity and inclusion will not be made. However, general statements of commitment at the Board or corporate policy level will also never lead to change without integration and implementation at each business function and unit level.

Sadly, although obvious, it is still true. Whilst these policies and initiatives remain stuck within departments for example, seeing them as an HR responsibility not a broader management responsibility, and aren’t part of a broader organisational change conversation, things will never change.

With such little progress being made on gender equality, I’m disillusioned about the prospect of achieving meaningful diversity beyond gender in our workplaces (ethnicity, age, national origin, disability, sexual orientation, educational background, religion, parental status and socio-economic status) anytime soon, until we begin to close the gap between corporate rhetoric and reality.


Subscribe to receive the next Workplace Law & Strategy blog direct to your inbox.

It’s no secret that Australians love their annual leave.

In recent years, many companies have chosen to go above and beyond minimum standards by offering extra leave – reflecting the view that rested employees are generally happier and more productive at work.

Some companies even let employees decide how much leave to take. For example in 2014, Virgin Group unveiled an ‘unlimited’ annual leave policy. Our 2014 blog observed that “time would tell” if the unlimited annual leave policy was an enlightened approach to workplace flexibility, or a step too far.

Four years on, we are seeing reports that unlimited leave is working so well that some companies are offering such leave fully paid. Companies with unlimited leave policies have reported an increase in trust and engagement levels, higher rates of productivity and less burnout.

The available data indicates that employees who have access to unlimited leave policies are not abusing the system by going on obnoxiously long holidays – far from it. Rather, employees tend to take up to five weeks leave a year, little more than the statutory minimum for most.

It is easy to remain sceptical of ‘unlimited leave’ policies. For one thing, placing the onus on individual employees to decide how much leave they take each year may create stress of another kind: Will my employer think I am lazy / taking advantage / not a team player? It also requires a high degree of trust between management and employees.

It is apparent that simply providing employees with more annual leave is not a panacea, particularly if employees see work as something to be avoided. The goal of enlightened companies should be to make employees feel as good about work as their holidays.

A generous annual leave policy is one way for companies to demonstrate that they trust and value employees. Of course, flexibility works both ways. But, where it works, it appears companies can be rewarded with higher productivity, boosts to morale and motivation, employer-of-choice status, and reduced ‘flexibility stigma’ in their workplaces.


Subscribe to receive the next Workplace Law & Strategy blog direct to your inbox.

An enforceable restraint of trade can be a key business asset. Some might think about it as an insurance policy. The capacity to preserve customer connections, protect confidential information and discourage key executives from setting up their own business or moving to a competitor can be critical to information rich businesses operating in a competitive market.

This is the case now more than ever given that the Supreme Court of Victoria’s decision in Just Group Limited v Peck [2016] VSC 614 (later affirmed on appeal) has arguably raised the bar for correctly drafting an effective restraint.

As we pointed out in our second blog piece on post-employment protections, ensuring the currency of your restraint provisions is an important exercise in risk management.

This success can be attributed to the practice of regularly revisiting the questions of which key executives or employees should be subject to restraints, and how those restraints should operate. The yearly promotion, pay rise or management re-shuffle cycles are perfect opportunities to update restraint provisions. Often, this is when operational changes (such as the make-up of roles) become effective, so restraints can be tweaked to align with these changes. A promotion or pay rise can be tied to a new contract or restraint provision. Instead of adopting a one-size-fits-all approach when an employee first joins the business, employers can increase the likelihood that a restraint will be enforceable by showing it was the subject of specific negotiation during the employment.

Experience in this area reveals one key distinction which separates cases where restraints are successfully upheld and those where compromise outcomes are achieved. In successful cases, typically, the restraint provision has been drafted neatly around the key protectable interests. When seeking to enforce a restraint, an employer will be required to show there is a protectable interest capable of supporting the restraint. This is the first limb of the test for enforceability. The scope, duration and geographical operation of the restraint are logically tied to the protectable interest (see our map below). An employer will need to make out each of these elements to meet the second limb of the test.

Post-Employment Protections Legal Dimension – Map

If the restraint then needs to later be relied upon down the track, the employer has the benefit of a provision which protects a current business asset (e.g. key connections with important customers or suppliers who the employee is in contact with) this is likely to be enforceable in court. If the opportunity to update a restraint has been missed, it may be necessary to try to force fit the facts into a restraint that might have been drafted years earlier in a very different business context – for example, when the employee was performing a different role. This can increase the degree of difficulty when enforcing a restraint.

Although courts will give employers some latitude – because the reasonableness of a restraint is judged at the time it was entered into – that latitude is limited. Regular housekeeping means that it won’t be necessary to call on this latitude because the restraint is fit for its purpose, and enforcement proceedings can be approached with confidence.

Doing this work inevitably pays dividends over the long term. Preparing an effective restraint is similar in concept to buying an insurance policy. You hope you won’t have to call it in. But if you do need to call on it, you are very glad you have it. The past decision to do the work inevitably looks very wise.


Subscribe to receive the next Workplace Law & Strategy blog direct to your inbox.

Modern slavery legislation at the Commonwealth level in Australia is getting closer.

The Modern Slavery Bill 2018 (Cth) passed the Lower House last week. The Opposition pushed for several amendments to the legislative framework including establishing an Independent Anti-Slavery Commissioner to oversee implementation and enforcement of the legislation, the introduction of penalties on companies for non-compliance with their reporting obligations, and an obligation on the Minister to report annually on compliance by reporting entities. While none of these passed, the Opposition nevertheless supported the passage of the legislation as it currently stands.

The Bill has been introduced into the Senate with debate adjourned until the next period of sittings in mid-October 2018.

Notwithstanding the recent change of Federal Minister responsible for the Australian Government’s strategy to combat modern slavery, there remains broad and bipartisan support for the Bill and the Federal Government remains committed to having the legislation passed this year.

If you’re not at the table, you’re on the menu

Modern slavery has become one of the highest-profile business and human rights issues in Australia, with significant engagement from investors, scrutiny from civil society, and interest from across the political spectrum. Meeting the legislative requirements – and satisfying the growing market standards – will require a proactive and strategic approach to modern slavery risk assessment, due diligence, and external reporting.

To get ready for the Commonwealth legislation, which is likely to take effect in January 2019, see our Modern Slavery Action Plan.

NSW legislation

Since our blog in June 2018, there have been no updates on the NSW Modern Slavery Act 2018 – which still has not commenced operation despite being passed by the NSW Parliament on 21 June. This is likely due to stakeholder lobbying for one nationally consistent modern slavery reporting regime across Australia. In our view, this would make sense for businesses so that they do not have to comply with competing obligations under State and Commonwealth regimes (subject to any Constitutional inconsistency arguments).

The reporting obligations under the NSW and Commonwealth legislation are largely, although not entirely, overlapping. The NSW legislation allows for the NSW government to prescribe, among other things, that the NSW reporting obligations do not apply if an organisation is subject to obligations under a corresponding law of the Commonwealth. However, the big sticking points for NSW in deciding whether to cede entirely to the Commonwealth in this space are likely to be:

  • there are substantial penalties under the NSW legislation, but none under the Commonwealth regime and
  • the NSW scheme applies to organisations with a total turnover in a financial year of at least $50 million whereas the Commonwealth Bill, when passed, will only impose mandatory reporting obligations on organisations with an annual revenue of over $100 million.

We are already working with our clients to ensure they comply with their modern slavery reporting obligations – contact us if you would like to know more.

Subscribe to receive the next Workplace Law & Strategy blog direct to your inbox.

A Senate Select Committee report on the Future of Work and Workers handed down this week after a year-long inquiry, gives some insight (which is likely to be startling to most employers) into the likely Labor legislative agenda in the workplace relations space if there is a change of government at the next election.

The employment and IR related recommendations from the Committee’s majority (dominated by Labor, Greens and Independents) include the following that have general application to employers, particularly those with unionised workforces:

  1. Stronger legislative requirements for employers to consult with workers and trade unions before and during the introduction of major technological and other change in the workplace.
  2. Workplace legislation be amended to strengthen the protections available to workers and their unions.
  3. Legislate to extend workers’ and trade unions’ rights to collectively negotiate terms and conditions of employment.

The following additional recommendations of the Committee’s majority are likely to be a cause for concern for employers who regularly engage casuals, labour hire workers, contractors or other gig workers – on top of the already problematic landscape given recent decisions relating to casuals (for example, the Full Federal Court’s decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131) and labour hire workers (for example, the Fair Work Commission’s decision in Kim Star v WorkPac [2018] FWC 5745):

  1. Review the definition of “casual” work.
  2. Legislative amendments to crack down on sham contracting and employment arrangements which classify workers who are in fact dependent as independent contractors, in order to avoid employment obligations.
  3. Improve superannuation rights for workers who are not classified as employees and/or who perform non-standard work.
  4. Legislative amendments that broaden the definition of employee to capture gig workers and ensure that they have full access to protection under Australia’s industrial relations system. The formulation proposed is: if a company makes money directly as a result of workers’ labour, and if workers are dependent on the company for work and income, then those workers are employees of that company.
  5. Introduction of a national labour hire licensing scheme and a requirement that labour hire workers have access to and be paid at least the same wages and conditions as the directly engaged employees working alongside them.
  6. Further consideration be given to implementing portable leave schemes.

If any of these recommendations come to pass, it will add to the existing challenges for businesses seeking to use alternative labour models. Watch this space…


Subscribe to receive the next Workplace Law & Strategy blog direct to your inbox.