Summary of VIC ACC In-House Counsel Day 2021

The Dovetail team: Andrew Murdoch, Charlie Smirl, Sonia Cason and Charlotte McGrath were pleased to attend the VIC ACC In-House Counsel Day on Wednesday 28^th July 2021. Here is a summary of some key messages from the day.

Ethics and Trust

Karl O’Callaghan, former WA Police Commissioner, provided an insightful and personal view on ethics and trust from his experiences within the police force, as a parent and as a foster father.

Karl encouraged the audience to look at ethics and trust through a simpler and more practical lens. Empower the people in your organisation to choose to do the right thing, because it is the right thing to do rather than attempting to direct everything by complex policy or procedure. Don’t let personal interest get in the way of doing the right thing by your community.

“Trust is what happens in an organisation when values, ethics and behaviour match up”

Display your ethics:

• Candour
• Ordinariness – people can identify. There’s a Japanese strategy whereby the people at the top need to be accessible to those doing the everyday job. For example, as the police commissioner, walking the beat to not only understand what’s involved in the day to day but receive honest feedback of what those people need to succeed.
• Openness and honesty – this is especially important when dealing with bad news – don’t shy away from it or try to hide it, instead see it as a good opportunity to reinforce your ethics and live your values by responding with the right behaviour.
• Traction – Deliver on your promises
• Visibility – Make what you stand for visible within your business

Karl shared numerous personal experiences with great candour and openness that even drew on Lord of the Rings as a meaningful example of ethics on display – the Hobbits were not qualified to deliver the ring to Mount Doom, but they knew it was the right thing to do. Whether you want to paraphrase it as – “the pub test”, “front page of the newspaper test”, “would I tell my mum test” – it’s essentially – do the right thing, because it is the right thing to do.

People tend to say, I have this problem, I have to fix it. Quite often, it’s not your burden to carry and so there’s stress management and self-awareness to understand, it’s not always your problem to fix, and to not take on problems that are not yours.

Employer Responsibilities or Industrial Manslaughter? Ethical Considerations as COVID Vaccines Roll out

Charles Power, Partner at Holding Redlich, provided a thorough walk-through of employer responsibilities and considerations in relation to COVID vaccines and the workplace.

For an employer to require its staff to be vaccinated, there needs to be a requisite nexus between being vaccinated and the employee’s employment.

Importantly, an employer’s direction must be lawful and reasonable with a sufficient connection to the employment, the requirements of the role and the work performed. Businesses can’t simply make a direction that staff be vaccinated because the employer believes it’s a good thing for broader society.

There is no legislation currently imposing a general requirement to get vaccinated. However, WH&S laws may provide a nexus for an employer if it is determined that the risk of COVID within the workplace is sufficient to trigger a statutory obligation on the employer to implement reasonably practicable measures to minimise that risk.

Finally, even if the nexus is established, the employer needs to ensure that the direction is not unlawful, for example, the direction and process will also need to be compliant with applicable anti-discrimination laws, fair work requirements and privacy laws.

So, if your business is considering mandatory vaccination directions, it needs to be done carefully and thoughtfully to ensure its lawful and reasonable in the circumstances for your employees and your business.

More than Hot Air – Key Climate Issues for In-house Counsel

Sarah Barker and Mike Hales, of Minter Ellison provided an update on legal issues relating to climate change. Climate change is not just an environmental issue it is also economic, five out of ten top commercial risks identified in a Global Economic Forum Report relate to climate change.

The three categories of financial risk associated with climate change are:

• Physical
• Economic transition, exposures under corporate and securities laws have highlighted this notion in the following areas:
  • International regulatory environments are shifting faster than Australia’s
  • The Australian Regulatory Environment
  • Technology
  • Investor Expectations
• Liability, there are a vast array of themes regarding climate change litigation, including:
  • Human Rights
  • Planning Law
  • Class Actions
  • Private Law
  • Company Law & Risk

Key takeaways: What should in-house legal be thinking about?

1. This is a material financial risk (and opportunity).
2. Past experience is not representative of future risk.
3. Ensure a legal lens is being applied to strategy, disclosure, and execution (duties, reporting season, procurement, and projects)

Execution for in-house lawyers:

1. Duties – Directors and Officers – What is their understanding? Have they considered net zero?
2. Reporting season – Financial reports – what additional information will need to be provided?
3. M&A – major projects, procurement, and contracts – Query whether climate change has been considered and factored into the lifecycle of the contract and project.

Managing your Data Risk in the Post-COVID World

Tim de Sousa and Christopher Hatfield of FTI Consulting provided their insights into how companies can improve the way they manage the risk of data in their business.

Unsurprisingly, everyone is creating more data and most companies are simply increasing the volume of data they store. While costs associated with storing data may be decreasing, the risk of retention grows over time. So even though the value of the data to your business may decrease over time, the risk in relation to such data goes up. The more you retain, the greater the risk.

The disruption to workplaces due to COVID has increased the shift in data from enterprise systems out to cloud services and personal devices – a shift that Tim and Chris liken to the potential exposure of moving from the relative confinement of a corporate rockpool out into the riskier open waters of the sea.

On how to manage data, a key recommendation is not to just jump straight into the remediation of your data. It’s better to:

1. Get a clear view of the data landscape for your business
2. Classify different types of data within your business
3. Set about remediating the data as appropriate for each type
4. Uplift the awareness and practice of data management within your organisation.

In essence, we’re all going to have to get better at deleting…

Creating Cultures of Trust and Accountability

Former Executive Director and CTO at Lonely Planet, Gus Balbontin, delivered his understandings of facilitating cultures of trust, psychological safety, autonomy, and action to ensure you form and maintain a high performing team. In his engaging session Gus emphasised the difference between resources and resourcefulness. Often, we are too fixated on the resources that we forget that resourcefulness is just as, if not more important to the success of the team.

The idea of building too much momentum as individuals, teams or companies is risky as it doesn’t allow you to adapt and change. Issues arise when we focus on the business problem, instead of aiming to fix the customer problem. We need to ensure we are concentrating on the customer problem as “customers choose the path of least resistance”.

Building high performing teams is on a continuum. Teams need to ensure they are focusing on the following factors to succeed:

• Care – Without care you cannot form a high performing team. If you stop caring, then find tasks to complete which you do care about. Random acts of spontaneous care are fantastic to garner a positive response from others.
• Trust – We offer someone the job because we trust them, and then when they begin working, we make them earn your trust. “Don’t trust that your employees won’t fail. Trust that they will, and that they will recover”.
• Respect – Admire and respect people, find genuine admiration for others.
• Goal – Without goals there is no team. A common goal makes you belong.
• Innovation – Solving problems both simple and hard.

Make things:

• Simple
• Small
• Now

As opposed to:

• Complex
• Big
• Later

Thank you VIC In-House Counsel Day 2021!

Thanks to the ACC Team and committee for putting on such an informative and well organised virtual event.