Working with Australia’s leading organisations means we are supporting them on a range of strategic business initiatives, to drive safety outcomes in the workplace of the future. These organisations are extending themselves beyond the regulatory assessment of ‘reasonable practicability’ and embracing innovation. Here is a snapshot of some of the pioneering work.

Collaboration is creating relevance

Addressing issues including mental wellbeing and workplace responses to domestic violence and sexual misconduct require multidisciplinary approaches. The risk management skill set which health and safety professionals possess has an important part to play in a holistic approach that should be used in collaboration with human and resource management professionals. The most creative organisations understand that cross-disciplinary teams are best placed to respond to new workplace challenges and facilitate pooling of ideas from safety, human resources, industrial, wellbeing and other professionals – working in true collaboration.

The recent discussion paper on Mentally Healthy Workplaces in New South Wales recognised the importance of identifying organisational psychosocial risks together with individual psychosocial risks such as bereavement, or new parent fatigue which may render workers more vulnerable to psychosocial risks at work. A traditional risk management approach does not provide a complete answer and organisations are responding by allowing safety professionals to upskill to identify  meaningful strategies that will improve health and wellbeing.

Networks and contacts

Safety professionals cannot possibly hope to be subject matter experts on every topic as their work, and the tools available to them, expand. Take for example, big data. We all know that if we can harness and mine the wealth of data we capture, we are more likely to be pro-active and could, for example, better predict issues like plant break down or fatigue onset. This opportunity sees safety professionals reaching for their metaphorical rolodex to build an understanding of, or the ability to source, specialist skills in data analytics and coding.

Pioneering safety professions are building and maintaining wide networks of specialists from a variety of fields and encouraging their teams to do the same. Being less insular makes the profession more relevant and responsive.

Some of the most pioneering safety initiatives we have seen in recent times draw on the skills of illustrators, computer animators, actors and advertising creatives (to name a few). As our appetite for digesting written information decreases, the most innovative organisations will foster collaboration between safety professionals and others to ‘keep it real’.

Viva la refinement

Avoiding the temptation to ‘throw the baby out with the bathwater’ when responding to challenges. Asking if existing frameworks, with refinement, will address new challenges. The supply chain risk of modern day slavery is a good example. Where the pre-qualification processes, system of inspections, audits and verification that are familiar tools to the safety professional are ones which, with refinement, can be deployed to address aspects of working conditions at the ends of supply chains so they are not exploitative.

Nimbleness and harnessing technological platforms

We have previously written on the employment law challenges which arise from highly flexible workforces. For safety professionals a similar set of challenges arise because there are likely fewer traditional ‘touch points’ with workers and less ‘face time’ when compared to more traditional models of work.

Increasingly, flexible approaches are being used to induct workers, maintain training, provide an appropriate level of supervision and create and maintain the safety culture businesses desire in highly flexible workforces. Nimble organisations are supporting safety professionals to build multi-disciplinary teams to change their modes of delivery and to embrace the same technological platforms which allow for the flexibility in employment to communicate safety messages.


Our ‘future of work’ series has been considering how businesses will need to grow and adapt to changes to the way in which work will be performed in the future. Many of these developments flow from significant advances in technology that we have seen over the last 20 years – for example, increased automation, increased use of robotics and increased computing power have made many traditional roles redundant, while increased communications potential has meant that many workers can perform their roles flexibly. We understand these developments as the law firm known for our role in transformational legal industry and labour and employment issues, we believe it is our responsibility to harness our knowledge, experience and relationships to forge a path for the Future Employer.

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The gig economy is only one of the reasons that workers of the future will not have close connections with one employer or business – another is the movement towards arranging their life so that they spend substantial periods of time not working at all.

The trend towards regularly spending long periods of time away from the workforce is highlighted in an article by Christine Long in the Sydney Morning Herald considering people who only work a few months of the year, and the renowned demographer Bernard Salt’s column in The Australian that looks at changes that millennials will bring to the workforce. Continue Reading The future of work: managing a workforce that is away half the year

We have been watching with close interest the exponential expansion of crypto-currencies. These instruments, such as Bitcoin, Ethereum and Litecoin, are methods of secure, electronic transfer of value between individuals using advanced digital encryption techniques – without any central regulation by government.

Recent research published by The Conversation suggests that crypto-currencies are showing no signs of being merely a speculative bubble. With their recent translation from purely online origins into tangible interfaces, for example, the establishment of Bitcoin ATMs in Australia, employers need to consider not only the future of work, but the future of the ways in which businesses will be able to, or might want to, reward contribution. Continue Reading The future of work: when will I be able to pay employees in Bitcoin?

One of the more interesting recent developments in relation to work has been the continual rise and development of the gig economy – that is, workers developing niche areas of specialist expertise, but having careers characterised by a series of interactions with various organisations, rather than being employed by one company for many years. This doesn’t just mean a person working in multiple jobs over the course of their life, but that they are much more likely to be running their own independent business providing services to customers.

Over the last 15 – 20 years, many businesses have made the distinction between core and non-core functions, using that distinction to drive and make judgment calls about the nature and form of their relationships with those contributing to their business (including employees, contractors, suppliers or others). With the development of the gig economy, businesses will need to be more sophisticated in their analysis, taking a much more fundamental and holistic view of how they want the business actually to operate – entrepreneurs, leaders and managers need to consider how the emerging gig economy will impact on the structure of the business’s relationships with its contributors.

So, how can your business make the most of the opportunities that a gig economy offers, while also managing the legal, reputational and business risks of dealing with multiple independent contractors? Continue Reading The future of work: using the gig economy to your advantage

Working from homeThere are lessons to be learnt about the future of work in one of my favourite episodes of The Simpsons titled ‘King-size Homer’, from the seventh season which aired over 20 years ago.

As you may recall, Mr Burns tries to get employees at the nuclear power plant ‘in shape’ by leading a workplace exercise program. As expected, however, Homer avoids this by taking advantage of the rule that someone who weighs more than 300 pounds will be classified as disabled and can then work from home. Unsurprisingly, he manages to gain the necessary weight and a computer terminal is installed in the Simpson house to allow him to do his very safety-critical work (monitoring a nuclear reactor!) remotely. Continue Reading The future of work: avoiding the nuclear reactor bird

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

Most recent commentary on the recent High Court decisions in Jamsek and Personnel Contracting suggests that the Court has confirmed the primacy to be given to the terms of the written contract when determining the nature of the relationship between the parties. Whilst that is a fair observation, there is much more to the story. Key to understanding the real commercial impact of the two High Court cases for business is an appreciation of two matters.

First, neither of the losing parties – the two truck drivers held to be contractors in Jamsek; and the labour hire company held to be an employer in Personnel Contracting – argued at any stage of the proceedings that the contracts in place:

  • were not genuine or were somehow a “sham”; or
  • should be set aside or held invalid for any one of the many reasons the law recognises that can occur such as unconscionable conduct, undue influence or misleading conduct of the other party.

Second, in both cases, everyone involved (the litigants themselves and their very capable legal teams) agreed that the contracts in evidence recorded the full and complete terms of the contracts and therefore contained all of the relevant terms and conditions between them. No party argued, for example, that the contracts had been superseded by fresh unwritten contracts or that they had been varied in some way, whether in writing or, as can happen, orally or by conduct.

Let us explain why these two points matter so much.

Much of the media, academic and legal coverage of what happened in these cases, and the result, positions the outcomes as extreme or somehow, not what should be the expected result. Critics of the outcome in Jamsek, for example, put forward the view that two hard working truck drivers working for the benefit of the same company for decades, in a way that looks like employment should be recognised as employees and receive all of the benefits – annual leave, long service leave, minimum hourly rates, etc., that truck driving employees are entitled to. So, the argument goes, a conservative and “black-letter” High Court has given the contract terms primacy over the “reality” of how things actually operated, to the detriment of real working people who, so the thinly veiled criticism goes, have little bargaining power when they enter into contracts and have been outsmarted by companies and clever lawyers.

Critics of the outcome in Personnel Contracting argue that the tri-partite Odco style arrangements that took off particularly in the early 1990’s are now dead. They say that this is because the finding that the individual concerned was an employee of the labour hire company (rather than an independent contractor as labelled in the contracts), means that settled industrial arrangements that have been in place for 30 years have now been undermined, probably fatally. In fact, the one Judge who dissented in the outcome of the case, formerly an elite tax specialist barrister no doubt experienced in seeing tax rulings chopped and changed after clients had made business decisions relying on them – described the damage that the decision of the majority Judges would do, not only to Personnel’s business but to the businesses of many others, as “undesirable”. There is more than a little bit of wisdom in these observations. The CFMMEU has, if recent newspaper reports are accurate, launched a $60m backpay case as a result of the Personnel Contracting decision.

In our view, these decisions have been subjected to more than their fair share of misguided criticism and the commercial implications are both modest and manageable. Here’s why:

The Court in both cases re-iterated a number of principles that are not new – that Judges should not go on wide-ranging inquiries after a contract is made to help interpret the contract (but making these inquiries for other reasons – such as deciding on an argument about whether the contract has been varied – is perfectly permissible); and that amorphous arguments about concepts like “unequal bargaining power” shouldn’t be countenanced unless the argument is that an established legal remedy is being sought. On the latter point, it did not go without comment in Jamsek that by entering into independent contracting relationships, the two truck drivers were able, through partnership agreements, to split 50% of their income with their wives, who played no active role in the business, and on top of that, paid tax on income at much lower rates (the corporate rate rather than employee marginal rates). The decision does not indicate the tax savings over the decades and whether they were more or less than the employment benefits (leave, etc.) that the truck drivers would have been awarded had they won the case. But one can see how the argument that the drivers were exploited or treated unfairly can wear thin when the full circumstances are considered – they enjoyed material financial advantage by virtue of these arrangements which they presumably did not intend to pay back if they won their claim for employment benefits foregone.

The idea that Courts must strictly apply contracts ignorant of the way things work in practice doesn’t square with either decision or the way the parties litigated their cases. There are a myriad of reasons a Court can look beyond the written contracts which have been signed – for example, on the basis that the contracts have been superseded, varied or terminated, or should not be enforced because of the way they were negotiated or made. In other cases, the terms of the contracts are so ambiguous or amorphous that it is necessary to look at how the contracts were performed to try to understand what the contracts’ terms meant in the first place. All parties in these cases were represented by experienced legal teams who did not go near any of those arguments – we assume for good reason. To take this point a step further, the criticism of Jamsek to the effect that the Court is too “black-letter” in its interpretation overlooks the decision in Personnel Contracting, where the Court held that the individual concerned was an employee of a labour hire agency rather than, as described in the contract, an independent contractor. The Court said, essentially, that the contract terms will be rigorously scrutinised, but the parties characterisation of or label given to the legal relationship – employee or independent contractor – is not determinative and is something for the Court to ultimately decide. A true and strict “black-letter” approach would have honoured the contract as drafted and held that the individual was a contractor because that was the way the parties had described the relationship.

With all that said, what are the commercial implications?

  1. Right it is, that robust, well-written contracts which accurately capture the arrangements between the parties are more likely to be upheld and will be the focal point of the analysis – the idea that a Court could apply a “multi-factor” test to assess whether a contractor was really an employee, with the contract playing a relatively minor role in the analysis, is out of favour. But the central question – who controls the work and how it is performed, and is the individual running a business on their own account, remain central. It will be critical to ensure that the terms of the contract reflect the parties’ intentions about those matters.
  2. For organisations engaging people to provide services or perform work, there is great value in taking steps to ensure that the contracts in place do reflect the totality of the arrangements, and say so. There are different drafting techniques that can be utilised to achieve that objective. Great care will be needed because the terms may be subject to significant scrutiny – as was the situation in Personnel Contracting, the contract terms themselves may show that one party has such a high degree of control over the individual on the other side of the contract, and that the individual could not be said to be running their own business, such that the individual is an employee not a contractor.
  3. With the above in mind, at a practical level, when entering into agreements for individuals to perform work or supply services, organisations will need to think carefully about the degree to which they actually want or need to control the manner in which the relevant work is performed – and the consequences of that decision for the nature of the relationship between the parties. Contracts which give the “principal” a high degree of control over the manner in which work is performed by the individual are likely to carry a higher risk that the individual is doing such work as an employee, and that employment obligations are owed to them.
  4. The part of the labour market most sharply and negatively affected by these cases is likely to be labour hire companies engaging individuals as contractors, and then on-hiring them to other organisations. We don’t think it’s right to say that Odco style arrangements are dead, but they are certainly more vulnerable to legal attack. One issue that the Court did not consider was whether the outcome in Personnel Contracting would have been different if the individual didn’t contract directly with the labour hire agency, but did so through a company – a very common arrangement in our experience. Following the logic set out, the labour hire agency could not control the individual’s work – it would engage a company that would in turn do so. Absent an argument that the intermediary company involved a “sham” or some other invalidating aspect, such an arrangement may have made a difference to the outcome.
  5. Having said all of this, the terms of the contract will not (despite what some commentators have suggested) be the start and end of the analysis. These cases say nothing about the situation where the arrangements in place are not fully captured by the written contracts in evidence or there is an effort to invalidate or set aside the contracts. What has occurred during contract negotiations or after the contracts were signed can become highly relevant to the litigation outcome for many reasons, as described above. We think future litigation in this area will focus on these aspects.

We recently had the pleasure of hearing from Futurist Ross Dawson in an exclusive conversation about the powerful drivers that are reshaping work at a dramatic pace in the coming years.

Join us for the second of a two-part series on the future of the world of work. During this discussion-based session, our US and International Employment team will address the high-level legal issues and implications of the key themes that Ross discussed in Part 1, including technology, society, structure, work, location, performance, and leadership.

The discussion will address critical questions employers should consider when it comes to employment in the future, including:

• What does the move to distributed work models and the gig economy mean for employment protections and representation across the globe?
• How do talent acquisition and performance management models keep up with “any time, any place” working?
• Where the law does not reflect the new reality, how do employers balance compliance with keeping their competitive edge, and how do employers take advantage of the new possibilities that Ross outlined?

The speakers are:

Dave Baffa, Partner, Labor and Employment
Rachel Bernasconi, Partner, International Employment Law
Ana Cid, Partner, International Employment Law
Chelsea Mesa, Partner, Labor and Employment

If you missed out on Part 1 of this series, you can view the recording here or read our recap here.

Register here for the webinar.

The future of work is in the process of being created. The leaders who seize the immense opportunity to attract and leverage the best talent in a swiftly changing world will excel. Interestingly, our own data shows that more people are hopeful about the future of work than they were five years ago.

You are invited to join Seyfarth co-hosts, David Baffa and Jesse Pauker, for a conversation with Ross Dawson, futurist and one of the world’s leading thinkers on the future of work. This keynote will explore the powerful drivers reshaping work at a dramatic pace in coming years, including:

  • Technology such as pervasive data capture, AI, and 3D videoconferencing that will shift the role of humans in work
  • Rising expectations from employees, investors, and customers that will shape business practices
  • The shift to platform business models which is reshaping the nature of value creation

As a result of the pandemic, companies will have to make fundamental strategic decisions among a diverse array of location-focused or hybrid work configurations, and optimise work practices for the reality of distributed workforces.

As organisations redesign work to focus on the unique human capabilities that complement AI, the war for talent will intensify and job roles will become more fluid. These shifts will accentuate uncertainty and risk in workforce management, but also offer the potential to build exceptionally effective organisations.

If the timing doesn’t work for the first live webinar, you can get a recording to watch in your own time by registering.

Register Here for the webinar and to secure your recording.

Stay tuned for information for part two of the Future of the World of Work, for insights on the legal implications and issues that organisations should consider as workplaces evolve.

 

 


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SurveillanceTechnological advances in monitoring and surveillance call to mind the lyrics of The Police’s widely misinterpreted hit, Every Breath You Take. But how will this emerging new frontier play out in workplaces and work practices? As technology continues to accelerate, many employers are starting to think about how to harness these developments in order to achieve greater workplace productivity and consistent health and safety outcomes.

When we think of workplace surveillance, it’s easy to get stuck thinking about the traditional measures that have been widely used for the last 10 years or so – email monitoring, CCTV and the occasional dash-board camera. These methods have historically been used for safety, security and compliance. But as workplaces become more remote and isolated and there are lower numbers of employees on any one site, organisations are looking beyond traditional methods and embracing the latest monitoring technology – both to deal with safety and security, but also as a direct way of measuring employee productivity. Continue Reading Every breath you take, every move you make – the future of measuring workplace productivity