NSW ACC In-House Counsel Day – Summary 2023
A compilation of the key messages we heard from some of the sessions at the NSW ACC In-House Counsel Day in Sydney.
25th May 2023
The team at Dovetail: Andrew Murdoch, Charlie Smirl, Imogen Spouse and Maurizio Marmotta had the pleasure of sponsoring, attending and exhibiting at the NSW ACC In-House Counsel Day in Sydney on the 18th of May.
Below is a compilation of the key messages we heard from some of the sessions at the event.
Table of Contents
Beyond the Complaint: Sexual Harassment after Respect@Work
- Jodie Fox – Director at Worklogic, took us on a journey of the changes to the Sexual Harassment Laws and our decision-making process. From Toothless Tiger Laws to Now Laws with Teeth!
- A move away from a position where only the aggrieved person could make a complaint and toothless laws that offered protection only if there were a risk of it continuing in the workplace (problem gone if people no longer in the workplace) to one now where complaints can also come from bodies connected to the workplace and not just the aggrieved person and can be made about conduct from before 24 months.
- The most significant change was amendments to the Sex Discrimination Act, including Positive Duty on employers to prevent Sexual Harassment. Organisations should ask What we can do to eliminate sexual harassment, not just how to react to complaints.
- Positive Duty also offers a People-Centred approach to investigation and places people’s safety and well-being at the core of the process and decision-making.
- Compliance Powers on Employers for Positive Duty to Prevent Sexual Harassment commences December 2023, so it’s time to get your house in order!
Navigating an uncertain economy: sailing the seas of insolvency
Nick Dale – Swaab
Karen Petch – New Chambers
Pressure points on business
- Banks
o Cash rate /Access to finance - ATO/State Revenue Office
- Landlords
- Insurers
Industries that pose a particular insolvency risk
- Building
- Aged Care
- Small retail and hospitality
- Transport
Ways to mitigate risk
- Review trading terms, cash flow
- Intel on counterparty/industry
- Contractual right to review counterparty.
Some new insolvency provisions for directors
- Safe Harbour
o Defence for a potential insolvent trading claim for directors but only available if all tax lodgements and employee payments are up to date - Small Business Restructure
o Available for companies with less than $1m of creditors
o No creditors meeting.
o Provides a moratorium
Cross-Border Insolvency Provisions
- The Common Law
- Section 581 of the Corps Ac
- UNCITRAL Model on Cross-Border Insolvency
New to In-House Roundtable: In-House Career Paths
Howard Edelman – A2B
Melissa Le Clerc – Diageo
George Papanikitas – Kimberly-Clark
Why did they move in-house?
- Each had different pathways, but a common theme was to have greater control over their life.
How to get buy-in?
- Learn the nuts and bolts of the business.
- Show you care about their role and the business.
- Become a subject matter expert.
- Get to know the people in the business.
- Adapt your style depending on the organisation.
Mindset shift from Private Practice to In-House
- Offer advice with limited qualifications on the advice.
- Make decisions.
- Be creative.
How to get a seat at the table?
- Do you want a seat at the table? Perhaps ask and find out what that looks like before seeking it.
- Sometimes you have to ask for it – don’t be shy
- Lawyers can bring a unique mindset to issues across the organisation.
- It Can be beneficial to have a seat at the Executive level – see what’s going on at the strategic level.
- There doesn’t necessarily need to be a seat at the executive level – other “seats” may be available, and you can even create your own “seat”.
- Try to manage upwards as well as down.
Harnessing Lesson Learnt from the World’s Most Hostile Environment
James Castrission – Best Known as one of Australia’s Top Conference Speakers, the Author of 2 Best Selling Books and a Passionate Explorer.
James ‘Cas’ Castrission provided a gripping presentation to take us all along on his two Guinness World Record adventures:
- kayaking from Australia to New Zealand in 2007; and
- the longest unsupported polar expedition of all time in 2011.
With video footage from his expeditions, Cas put us right there next to him amongst a seemingly endless list of challenges and setbacks including an 84 hour storm while locked inside a sealed kayak a little larger than a coffin, multiple shark encounters, getting stuck doing circles in ocean eddies for weeks, backtracking and retracing hard earned kilometres, crossing seemingly bottomless crevasses in the ice, whiteout, endless snow storms and trying to get more out your body while running on exhausted rations. Quite the adventure holiday!
Key themes we can apply from Cas’ amazing adventures were the importance of:
- being able to adapt, no matter the circumstances;
- celebrating little victories and progress along the way; and
- perseverance and grit to keep going.
Dealing with Greenwashing, Bluewashing and other emerging issues in the ESG space
Nick Willets – GC at IQRenew, Michael Guilday – GC at Sydney Fish Markets, and Ashleigh Burnham -Head of Sustainability Leadership & Transformation at EDGE Impact, delivered an interesting panel discussion covering a range of ESG issues, including:
– Greenwashing: false, misleading or unsupported statements concerning environmental credentials, often in marketing and promotional material.
– Bluewashing: asserting that a company adheres to global principles or standards, such as United Nations global compact, without actually doing anything to comply.
Ashleigh provided summary recommendations to help companies communicate their sustainability measures and credentials with confidence, including:
- Get clear on your intent
- Be able to back it up
- Stay grounded
- Avoid sustainability cliches
- Get real about your impact
- Take accountability
Michael brought in an example of the reusable crates deployed by the Sydney Fish Markets and Nick had samples from IQ Renew’s virtual quarry that produces recycled manufactured glass sand products made from recycled glass bottles: Coarse, Medium, Fine, Superfine and Moondust.
Ethical Conundrums: Ethics and Professional Duties for In-House Counsel
Justin Coss – GC at Noumi, Jon Downes – GC at Minter Ellison, and Linden Barnes – Senior Ethics Solicitor at Law Society of NSW, held a panel discussion that touched on:
- Ethical framework for lawyers and guidance from Uniform Civil Procedure Rules, Australian Solicitors’ Conduct Rules, Common Law and resources such as NSW Law Society’s Ethics Unit – Ethics assistance: 02 9926 0114 Email: ethics@lawsociety.com.au
- Ethical challenges that may arise in-house and highlighted focus areas such as:
o importance of independence when dealing with any conflicting duties, actual or perceived
o awareness and application of legal professional privilege
o clarity as to who is the client
o whether the in-house lawyer has the responsibility as an ‘ethical compass’ within an organisation - The overarching duty to uphold the efficient and proper administration of justice.
