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.

On Wednesday 18 October, the Shadow Minister for Industrial Relations Brendan O’Connor foreshadowed amending the bargaining regime in the Fair Work Act to outlaw so-called “sham agreements”.

The target of the changes seems to be enterprise agreements that are voted on by one group of employees, but have the potential also to cover a much broader group, or to cover a similar group who will be employed in a different geographic location. The Shadow Minister referred to these situations as employers “gaming the system”. 

However,  we note that the Fair Work Act already contains a number of safeguards to prevent “gaming the system”, including that agreements are genuinely made, that employees who vote to make the agreement are “fairly chosen”, and employees are not coerced to vote or not vote for an agreement.

While we do not have the benefit of any detail (such as a draft Bill) – there are some things to be said about the potential effects of the foreshadowed changes.

The concept put forward by Shadow Minister O’Connor in his speech would allow an agreement that has been made, to be challenged and potentially reversed on the basis that the employees who made the agreement are not “representative” of those who will be covered by it.

This raises a number of important questions including:

  • What factors are to be taken into account in determining representativeness?
  • Which characteristics of the employment will be given priority over others in determining representativeness?
  • Who could challenge an agreement that has been made? For example:
    • Could a competitor union to that which represents the employees use the provisions to unwind an agreement that has been made?
    • Could another company challenge the approval, with the goal of ensuring the employer is hindered in achieving competitive terms and conditions for its business?

These questions may not be answered unless and until the provisions are enacted and tested by the many varied situations real life throws up.

Our initial impression is that any amendments that allow agreements that have been made to be effectively “undone” could cause enormous problems that go well beyond the immediate issue being addressed. This exemplifies the danger of focussing on first order consequences, at the expense of equally (sometimes more) important second and third order consequences.  By trying to plug a perceived gap in the legislation, these amendments have the potential to open up a new form of “litigation sport” – where agreements that have been made are subject to lengthy legal challenges and then undone much later down the track. There are many industrial reasons – which have nothing to do with the supposed problem being addressed – which might provide motivation for such challenges. Continue Reading Proposal to outlaw “unrepresentative” enterprise agreements – when will an enterprise agreement be undone?

Trade union conduct is constantly changing, and our team have observed trends that are reshaping the boundaries, and that have already begun to impact our clients.

Policy Measures: increased scrutiny on trade union conduct

On the policy front, the conservative government has implemented three measures addressing unlawful behaviour by unions and their members based on the findings of former High Court Justice John Dyson Heydon AC QC in the Royal Commission into Trade Union Governance and Corruption in 2015.

Two key measures passed in late 2016.

Continue Reading United we stand. But lawfully.

A photo by Thomas Kelley. unsplash.com/photos/hHL08lF7IkcThe Aurizon decision handed down on 22 April 2015 and endorsed by a Full Federal Court on 3 September 2015 has created a viable option for employers needing to move away from legacy industrial arrangements that are bad for business.

The Aurizon decision was a watershed ruling because it swept away a longstanding presumption that agreements should not be terminated whilst bargaining negotiations for a new agreement are occurring (see our earlier blogs about this decision here). The mere fact the option exists has given employers more leverage in bargaining, as well as providing an opportunity to change arrangements other than through a union-resisted employee ballot for a new agreement. Continue Reading Agreement terminations on the up – 5 union response strategies

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. Continue Reading Bargaining with the devil: in whose interest?

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.  Continue Reading Are you on the right path with interns?

The Bargaining Coach rarely comments on decisions of courts or tribunals. Plenty of others do that. This is a rare exception.

Many of you will by now be aware of the Aurizon decision where a Full Bench of the Fair Work Commission constituted by Vice President Watson, Deputy President Gostencnik and Commission Spencer terminated 12 enterprise agreements. Fundamentally, this decision recalibrates the approach taken to the termination of expired enterprise agreements. Continue Reading The Bargaining Coach: FWC provides bargaining reality-check

Aurizon, previously a government owned entity, operates in the rail industry. The company had been bargaining in relation to numerous enterprise agreements. Part of the company’s bargaining platform was to be relieved of onerous restrictions on management, many of which were legacies of its public sector origins. The changes were resisted and the bargaining became intractable.

In an effort to overcome the legacy arrangements, Aurizon applied to the Fair Work Commission to terminate the agreements. Continue Reading Aurizon: Operating in perpetuity not in the public interest

  • An all too common feature of individual employee claims is to include salacious allegations designed to shame or embarrass management representatives.
  • In many cases, such allegations are unrelated to the issues to be determined in the case and are made without proper foundation.  Rather, their purpose is to extract a “shame or silence” premium in settlement negotiations.
  • Recent cases debunk popular “cost-free” perceptions about the Fair Work jurisdiction and reinforce that smear campaigns expose employees and their representatives to liability for legal costs of those required to defend them.
  • Careful positioning by employers can turn the tables on such campaigns by exposing baseless or irrelevant allegations for what they are – an attempt at leverage –  with costly consequences for those responsible.

If you would like more information, read on… Continue Reading Recovering wasted costs and combatting the “trial by media” litigation strategy