Employment Law Symposium
Explore the most significant issues, reforms and legislative developments in employment law. Hear from the Deputy President of the Fair Work Commission. Scrutinise the key outcomes from the jobs and skills summit, legal risks in workplace change, and gain clarity around the reforms associated with sexual harassment. Refresh your knowledge of contractor vs employee, underpayments, whistleblowing and restraints of trade. The practical implications are laid out for you in these key areas. 233N21
Description
Attend and earn 7 CPD units in Substantive Law
This program is applicable to practitioners from all States & Territories
Session 1
Emerging Changes and Legislative Reforms in Workplace Law
Chair: Alex Grayson, Principal Lawyer, Maurice Blackburn
9.00am to 9.05am Opening Comments from the Chair
9.05am to 9.20am Keynote Address: Insights from the Fair Work Commission
Presented by Deputy President Bryce Cross, Fair Work Commission
9.20am to 10.00am The Key Outcomes from the Jobs and Skills Summit
The Jobs and Skills Summit brought Australians together to work constructively on the challenges and opportunities facing the Australian labour market. Keep abreast of the outcomes by analysing:
- The Government's economic agenda and priorities for future action
- The areas of reform that were discussed and debated, including multi-employer/industry bargaining
- The existing and forthcoming legislative and policy agenda
- The Employment White Paper: what to expect over the next 12 months
Presented by Ben Dudley, Partner and Philippa Noakes, Senior Associate, Seyfarth Shaw Australia
10.00am to 10.40am Managing Workplace Change: Legal Risk and Best Practice for Employers
- Types of workplace change: proposed redundancies, redesigning jobs/structure, roster changes
- Planning: the importance of clear comms, key issues risk review, strategic planning
- Implementation, consultation, redeployment, notification, recent case law
- Reforming: post-change integration
- Practical take-aways: communication and training
Presented by Alina Kaye, Partner, The Workplace
10.40am to 10.55am Morning Tea
EXPLORATION OF EXPLICIT DUTIES IN THE WORKING ENVIRONMENT
10.55am to 11.45am Effecting Change to Respond to Respect@Work and Psychosocial Risks in the Workplace
- Key themes arising from recent reports and how these impact in different working environments
- What changes may be required to take a more trauma informed approach, and how this intersects with confidentiality/NDAs and transparency
- Ways in which safety regulators are entering this space, and expectations of proactive risk assessments
- Investigating historically unreported sexual assault allegations, and reviewing historical investigations of allegations
Presented by Julie Mills, Counsel, Ashurst
11.45am to 12.30pm Sexual Harassment from a Safety Perspective
- Examine the duty for employers and officers to minimise the risk of sexual harassment in the workplace
- Consider the implementation of a positive duty to prevent sexual harassment in NSW
- Examine the NSW regulation detailing employer duties and control measures that will now need to be in place
Presented by Stephen Hardy, Partner, K & L Gates
A DISCUSSION OF RECENT GENERAL PROTECTION CASES
12.30pm to 1.15pm Protection or no Protection? Recent General Protection Cases Unwrapped
The effect of recent general protections cases on construction of section 341 of the Fair Work Act, including:
- PIA Mortgage v King
- Cigarette & Gift Warehouse Pty Ltd v Whelan
- Cummins South Pacific v Keenan
Presented by Tim Donaghey, Barrister, Latham Chambers
Session 2
Navigating Potential Predicaments in Employment Law
Chair: Paul Lorraine, Executive Counsel and Team Leader, Harmers Workplace Lawyers
2.00pm to 2.45pm Employee Underpayments: Wage Theft or Payroll Mistake?
Following high profile and big bucks underpayment scandals, criminalizing underpayments has gathered momentum. But is that really the solution?
- Review the current state of the law
- Explore the reasons for underpayments
- Consider alternative approaches to addressing what appears to be a widespread problem
Presented by Amber Sharp, Partner, McCullough Robertson
2.45pm to 3.30pm Contractor vs Employee
- What is the test for employment?
- Some further complications: labour hire; group employers
- Can you confidently predict the answer?
- What happens if you get it wrong?
- Is there a need for a statutory test?
Presented by Ian Latham, Barrister, Denman Chambers; Leading Workplace Health and Safety Law and Recommended Workplace Law Junior Counsel, Doyle’s Guide, 2021
3.30pm to 3.45pm Afternoon Tea
3.45pm to 4.30pm Restraints of Trade
- Drafting restraints of trade
- The background around the rationale for post-employment restraints and tips for drafting an enforceable restraint clause, including considerations of proportionality and reasonableness
- Enforcing and defending restraints of trade
- The enforcement of restraints generally, as well as jurisdictional considerations and the different approachesto gathering evidence
- Alternative approaches
- Alternatives to traditional restraints of trade provisions, including making claims under the Corporations Act and damages-type claims
Presented by Shivchand Jhinku, Partner, Herbert Smith Freehills
4.30pm to 5.15pm Whistleblowing Law: An Employment Law Perspective 3-year Update
- The current whistleblower protections in the Corporations Act, which came into force in 2019
- What developments have occurred since then: significant cases
- How are the laws being used in practice: an employment lawyers’ perspective
- Practical difficulties in navigating the current protections, for employers and whistleblowers
- Possible future directions: Is the current Government likely to make any changes?
Presented by Elizabeth Ticehurst, Principal, Activate Workplace Law
Presenters
Alex Grayson
Alexandra (Alex) Grayson is a Principal Lawyer who manages the Employment and Industrial Relations Practice of Maurice Blackburn's Sydney office. She has over 26 years' experience in industrial relations, including over 16 years as a labour lawyer. Doyles Guide lists Alex as a leading lawyer for employees and trade union representation in NSW and Australia and her team as one of the top law firms for employee & trade union representation in NSW. Alex is a passionate and committed lawyer with a keen interest in social justice and industrial relations. For the last 3 years Alex has been running the Aged Care work value case for some of the most underpaid, under recognised and underestimated workers in Australia. This resulted in the recent award of an interim increase of 15% for these workers with more to come after further hearings. A significant focus of her strategy in the Aged Care case has been to base the claim on the gendered undervaluation of these workers, many of whom are from a CALD background. Alex’s include senior public servants, finance, banking and legal executives. She is particularly skilled in litigation, strategic negotiations, interpreting industrial instruments and contracts, advocacy and providing legal advice to executives. Areas of her practice include advice and representation on workplace bullying, sexual harassment, discrimination, breach of contract, redundancy situations and restraint of trade issues. In addition to her extensive experience as a labour lawyer, Alex also sits on the board of the superannuation fund, HostPlus, as a Director.
Deputy President Bryce Cross
Deputy President Cross was a barrister at Frederick Jordan Chambers from his admission to the New South Wales Bar in 1997 until his appointment to the Fair Work Commission in February 2019. Between 1993 and 1997, he was an Industrial Advocate and Corporate Head Solicitor at the Chamber of Manufactures of New South Wales / Australian Business Limited (now the NSW Business Chamber Limited). He was admitted to the Supreme Court of NSW in 1991 as a solicitor. Deputy President Cross had also been an Industrial Officer at the NSW Nurses’ Association and the Commonwealth Steamship Owners’ Association.
Ben Dudley
Ben has been practicing employment law for more than 20 years, acting across almost all major industries in Australia, in all of the courts and tribunals, and in relation to the spectrum of employment and industrial disputes that might arise. He has experience working at the Australian Industrial Relations Commission, in the UK, and for many blue-chip employers in high-profile disputes. He has a broad experience in the types of challenges that arise in relation to complex employment and industrial matters.
Philippa Noakes
Philippa’s experience covers the spectrum of employee-employer relations and she provides timely, effective and strategic advice to solve workplace concerns as they arise. If a client has an issue that needs to be addressed, Philippa works to ensure that the concern is resolved in a way that meets the commercial and operational drivers for her clients. Philippa works with clients across a broad range of industries including retail, financial services, transport, logistics, and the legal industry (yes, lawyers need lawyers too).
At heart, Philippa is a litigator and relishes the opportunity to represent her clients’ interests in tribunals and courts in all jurisdictions. In litigious matters, Philippa has carved out a niche expertise in contentious and often high profile restraint litigation, and pairs this with a love for complex industrial and employment disputes. Philippa is an exceptional project manager of large litigious disputes and works with clients to make sure such matters are managed in a way that limits the time-cost to employers who need to get on with business as usual.
Alina Kaye
Alina is an experienced employment and industrial law specialist, who has worked with clients across a range of industries including media, finance, education, telecommunications, retail and hospitality. Alina has previously worked in a boutique employment law practice and in the employment teams of large, national and international firms. Her clients praise her calm, considered and highly strategic approach to workplace issues. Alina is passionate about employment law and keeping on top of the constantly evolving legal and political space. She has also spent part of her career working as a Senior Writer for one of the world’s leading legal publishers Thomson Reuters. She prides herself on keeping up-to-date with the latest developments and assisting clients to proactively navigate these changes.
Julie Mills
Julie specialises in workplace investigations, discrimination law, executive employment and workplace training. Julie leads Ashurst’s Workplace Investigations and Workplace Learning practices. Julie has over 20 years’ experience in employment law, and investigating senior executive misconduct. More recently, Julie has been working closely with many clients to implement practices consistent with the recommendations of the Australian Human Rights Commission’s 2020 Respect@Work report. Julie advises public and private sector employers on a broad range of employment issues including contracts of employment, termination of employment and related claims, post-employment restraints of trade, performance management and disciplinary action (and related investigations), appropriate use of email and IT, and the interpretation of agreements and contracts.
Stephen Hardy
Stephen Hardy is a partner in the labour, employment and workplace safety practice. Stephen is an established practitioner who represents Australian and international clients on a variety of employment matters. These include human resources, industrial relations, executive, business protection and complex compliance related matters, the employment aspects of mergers and acquisitions, workplace restructuring and business transformation. This work is undertaken for clients across a wide range of industries including banking and financial services, insurance, retail, transport, waste management, maufacturing, information technology, leisure, media and entertainment, property, and professional services.
Stephen is well-known for his experience across the breadth of labour and employment related matters and also has a specialist workplace health and safety practice leading high profile and sensitive safety investigations, responding to workplace crises, establishing and auditing safety systems, defending prosecutions and appearing at coronial inquests.
Working with his clients to structure effective workforces, Stephen supports clients on their enterprise bargaining and industrial disputes. When organisations experience significant change, Stephen is experienced at achieving the due diligence required to support mergers and acquisitions activities.
An experienced litigator, Stephen works closely with clients on their industrial, employment and executive related disputes. He ensures clients are advocated for in state and federal courts and industrial tribunals, and supporting clients with their workplace health and safety liabilities.
Known by clients for his pragmatic approach to solutions-led legal advice, Stephen advises clients on understanding core legal elements of their business objectives, providing a clear path to a commercial solution and regularly conducts training sessions for management, executives and boards of directors.
Tim Donaghey
Tim is a leading industrial relations and employment law barrister with extensive experience advising on matters such as employment and contractor agreements, awards, general protections, industrial action, injunctive relief and commercial proceedings related to workplace law.
He has a national practice and is a member of both the Victorian and New South Wales Bars. Tim holds a Bachelor of Laws from the University of Melbourne. Before being called to the bar in 2002, Tim practised as a solicitor in employment law and industrial relations. He also provided legal counsel for the Australian Hotel Association in Canberra.
Tim authored ‘Termination of Employment’ published by LexisNexis in 2006. The second edition was published in 2013 and discusses the current Commonwealth industrial relations and employment regime and expands analysis to reflect the extent to which court litigation involving employers and employees has become more commonplace.
Tim has also co-authored a further legal text, ‘General Protections under the Fair Work Act’ published by LexisNexis in 2019. This is the first legal text dedicated to the General Protections regime in Part 3-1 of the Fair Work Act.
Paul Lorraine
As a senior lawyer with Harmers Workplace Lawyers, in addition to being an experienced legal practitioner, Paul Lorraine has a wealth of industrial relations and people management expertise from the public and private sectors. With over 30 years in employment law and workplace relations, Paul's diverse career includes significant experience in complex industries such as construction, rail, finance, airlines, and the public sector, in State and federal systems. As a consultant, Paul assisted organisations with their change management and employee relations strategies. As Executive Director of Industrial Relations Victoria, and previously as Assistant Director General of the NSW Department of Industrial Relations, Paul has developed and implemented industrial relations policy and legislation for the State Governments of Victoria and NSW. Previously, at the Cabinet Office Paul advised the NSW Government on industrial relations, and earlier in his career he was Industrial Relations Manager at Westpac. Paul holds a Bachelor of Laws (Honours) Degree (LLB), and a Master of Laws (LLM) majoring in Dispute Resolution. His special interest is in conflict resolution. As well as being an experienced negotiator, Paul's formal studies included extensive practical training in advanced negotiation, facilitation, and mediation techniques. Paul is also a member of the Harmers investigations team, which conducts specialist investigations for clients into matters such as workplace incidents, grievances, work health and safety issues, and allegations of bullying, discrimination, and harassment.
Amber Sharp
Amber Sharp has over 20 years’ experience as a workplace relations lawyer. She has particular expertise in discrimination, termination disputes, and bullying claims. Amber is praised by clients for her down to earth, straight talking and solutions-oriented approach. Amber is recognised in Doyles Guide and Best Lawyers as a leading employer representative employment and industrial relations practitioner.
Ian Latham
Ian Latham is a barrister at Denman Chambers specialising in employment and industrial law, particularly in the area of civil penalty. He has appeared in many civil penalty cases particularly ABCC v Parker (No 1) and (No 2), BKH Contractors Case (No 1) and (No 2) and FWO v ZNZ, FWO v A-Z and FWO v Robit Nominees. He writes for the Lexis Fair Work Act Service and the Lexis Industrial Relations Act (NSW) Service.
Shivchand Jhinku
Shivchand Jhinku is a partner at Herbert Smith Freehills based in Sydney, specialising in employment litigation. Shiv regularly advises clients in relation to the entirety of the employment life-cycle, from hiring, re-, negotiating contracts, performance management, termination and enforcement of post-employment obligations. Shiv has a broad range of expertise cross a number of sectors, including financial services, energy and resources, construction, transport and logistics and healthcare. Shiv also has significant experience in advising clients in relation to managing whistle blowing issues, from developing policies, providing training to investigators and advising and representing clients in responding to whistleblowing allegations.
Elizabeth Ticehurst
Elizabeth Ticehurst is an accredited specialist in Employment and Industrial Law and is an expert in the emerging area of whistleblowing. With two decades of experience working in the legal industry in the Asia Pacific Region, Elizabeth has first-hand knowledge of the complexities of managing a diverse workforce across several jurisdictions.
Elizabeth is a sought-after speaker and trainer, and regularly presents at external conferences and seminars. In 2019 she was a “Special Counsel of the Year” finalist in the Lawyers Weekly Women in Law Awards.
An expert in Whistleblowing Law, Elizabeth has a special interest in advising managers of in-house whistleblowing programs on both compliance and practical issues. She has conducted whistleblower response training for more than 50 groups, including Boards, executive teams and senior management in industries ranging from finance and banking to resources and retail.
Venue
Cliftons - Spring Street
Level 3, 10 Spring Street
Sydney 2000
NSW
Australia
Parking Information
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Secure Park 20 Bond Street - click here for rates
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Directions
Nearby Public Transport:
Train Stations - Wynyard 400m OR Martin Place 500m
Bus Interchange - Clarence Street 450m
Ferry - Circular Quay 1.2km