Articles

Interpreting legislation for Engineers

Engineering provides an excellent foundation from which to understand the interpretation of legislation and challenging of government decisions. With legislation invading nearly every aspect of a project, misunderstanding it has become a risk in itself – and you can’t manage what you don’t understand.

As most engineers will have learned some form of programming language at university, this provides a good framework for understanding the process.

A basic outline of creating legislation:

(1) The Parliament produces the legislation.

(2) The Executive (government departments) executes the legislation. Evidence and submissions are the inputs, and decisions are the outputs.

(3) Lawyers review the decisions for errors and unintended results.

(4) Courts correct the decisions and provide patches (in the form of precedents).

(5) The Parliament reviews the performance of the legislation from time to time and produces updates (in the form of amending legislation and regulations).

Legislation, like software, uses definitions and an ‘if this, then do this’ approach. Where legislation neglects to provide for a particular situation, or fails to define key terms, lawyers must draw on their knowledge of past cases and other legislation (such as the Interpretation Act 1987 (NSW)) to read between the lines.

When reviewing the decisions of government departments, lawyers are checking to see whether the decision-maker properly interpreted the legislation, relied on the correct inputs, and took a rational path to the decision. This is an area of law (Administrative Law) that can get particularly technical.

It is not uncommon for decision-makers to misinterpret legislation, or neglect to take important evidence into account. AustraLaw are experienced in keeping government decision-makers accountable, and advising on legislative requirements.

See our services page, or contact us to find out what Australaw can do for you.

5 Keys for a Productive Mediation

Mediations are in vogue for dispute resolution in Australia. However, without a disciplined approach their effectiveness in settling disputes can be quite inconsistent. From experience, common problems involve:

  • Failure to engage a lawyer who has a thorough understanding of the law and the technical issues involved. Without a lawyer who has a good understanding of the technical aspects of your case, the negotiations risk devolving into frustration and leaving money on the table.
  • Legal representatives that just ‘go through the motions’. Almost as bad as a lawyer who attempts to get by on bluff and bluster, is one that can’t adapt to the circumstances and propose creative solutions to get the negotiations past the sticking points.
  • Legal representatives who don’t know how to make full use of the mediator. If you don’t engage a lawyer who understands how to use a mediator, you’ll be paying thousands of dollars just for someone to run the offers back and forth, and the negotiations will likely run at snail pace.

How to make the most out of a mediation

(1) Preparation allows the parties to focus on what is most important

A thorough position paper should be prepared by your lawyer for any mediation, and served on the other party in the weeks leading up to the mediation date. A good position paper, served early, will assist the parties to narrow the issues in dispute as far as possible. This will allow the mediation day to be focused on resolving the most contentious issues which most require the intensity, flow and nuance of face-to-face discussions.

(2) Be proactive – chart the course and set the tone

Mediations, as a rule, require a proactive approach. Your lawyer should grab the mediator as soon as possible for a private chat. Your lawyer should explain your expectations to the mediator, emphasise initiative in assisting the parties through the sticking points, flag any concerns, and iron out any procedural issues. If your lawyer doesn’t drive the mediation it may take its own bumbling course.

(3) Relational not adversarial

If the parties unthinkingly take an adversarial approach it will become very difficult to have a productive discussion of the real issues and a genuine attempt to solve them. Unfortunately, this being in the context of a dispute, it is very easy for people to fall into old habits (i.e. lawyers at twelve paces and deny everything). It is good practice for your lawyer to talk with the other side’s lawyer early, before things get started. This is an opportunity to set the tone for a mutually respectful day, and handle any assumptions they may have that could otherwise put them in a less receptive frame of mind.

(4) Mutual problem-solving

Despite all the theatrics that can occur in mediations, the money on the table ultimately reflects each party’s perception of the respective BATNAs (Best Alternative To Negotiated Agreement). At this stage of the dispute resolution process each party is effectively a judge in their own case. So the most effective course is to focus on shifting their perception of what might happen it this matter goes to arbitration or court. This is also a good time to consider non-monetary items of value that might assist in resolving the dispute. In any case, it is important to remember that their client needs to be able to justify their decision to settle to their shareholders, partners, or superiors. All this requires a lawyer who can roll up their sleeves and communicate productively with the other side.

(5) Issue-focused bargaining

Negotiations can sometimes fall into a laborious rally of offers and counter-offers, that don’t appear to bear much reference to the merits of the respective cases. One alternative is to accompany a number of your offers with a breakdown of how it was calculated and some explanatory dot-points. The other side will often reciprocate (eventually) and you’ll often find that you’re only apart on a couple of points. This can be a good way to start bridging the gap if both sides are far apart and neither is addressing why that is. Because of the maths involved, it helps to have a lawyer who can program an Excel sheet to do these calculations quickly.

While there are times when the gloves have to come off, this should be seen as the nuclear option in a mediation. As far as the circumstances permit, it is best to approach the day with a collaborative attitude and see if a win-win solution can still be achieved. All this is helped a great deal by engaging a lawyer who can grasp the technical issues and use creativity to navigate you to a favourable outcome.

Contact AustraLaw today to discuss how we can help get you a better deal. Our Services Page outlines our key areas of expertise.

How lawyers can serve engineers better

It was a very enjoyable and refreshing experience to attend the Australian Engineering Conference in November last year (2016). Despite having switched professions from engineering to law I’ve found that the engineering problem-solving mindset has remained thoroughly ingrained in me. As one delegate at the conference said to me ‘once an engineer, always an engineer’.

One of the great benefits of the Conference was to hear engineers speak frankly about their experiences with lawyers, and how we could serve them and their projects better.

How lawyers can be useful to engineers

(1) Technical literacy

A common concern amongst the engineers I spoke to was that their lawyers struggled to grasp the technical aspects of a dispute. This undermined the ability to focus negotiations directly on the root causes of the issues, as lawyers would often retreat via legalese back into their professional comfort zones.

Engineers were also concerned that litigation too often resulted in financially disappointing outcomes as important arguments, that would have been discovered by delving into the technical elements of the project, were not made.

An obvious advantage in having a technically trained lawyer is the greater role they can play in weeding ambiguity or unintended rigidity out of the description of the scope of work. As any project manager will agree, the scope of work is the root of much of the trouble on a project.

(2) Allocating risk to serve the project schedule

A major theme amongst engineers was the desire for risks, and disputes, to be handled in a manner that served the project schedule. It was remarked by one major construction firm during a presentation that despite instructing their lawyers to allocate the risks in the contract to the party best able to control or absorb them, the lawyers simply allocated the bulk of the risks to the other party (i.e. allocation according to least bargaining power). This meant having to send the contracts back for redrafting.

(3) Risk aversion

During one of the first presentations of the Conference the comment was made that lawyers are too risk adverse. Engineers do not want to be told not to do something because it is too risky. Instead, they see it as the lawyers’ role to advise them of the risks, and it is the engineers’ role to decide whether the risks can be managed.

(4) Public relations

There was an excellent presentation at the Conference by Andrew McNaughton on the High Speed Two (HS2) rail project in the UK. The talk focused on the public relations challenges involved in making major infrastructure project happen. Throughout the HS2 project, significant resources had to be dedicated to public engagement. A major part of this was the development of systematic methods for addressing challenges and proposals from the public and the media. It was noted that a project in Norway had neglected to apply the proper rigour and suffered a 2 year set back after losing a court challenge as a result. Lawyers have a clear role to play in assisting engineers to implement the systems required to manage the risks to their social licence to operate, and be prepared for potential legal challenges.

It is important to remember that engineers are professional problem-solvers. Risks are just problems to be solved or managed on the path to completing new and interesting projects. The satisfaction in engineering comes from solving the hard problems, experimenting with new methods, and the pride (or relief) in seeing a project completed.

Ashley Kelso MIEAust

See our engineering and construction page, or contact us to find out what Australaw can do for you.

Employee or Contractor – What’s in a Name?

construction-worker

The signed contract clearly states that the person you hired is an independent contractor, so that makes them an independent contractor…right? Ahh…if only it were that simple.

Establishing whether the legal relationship created under contract is that of employer/employee or principal/contractor isn’t always straightforward, and if you get it wrong it could end up costing you a lot of money.

Simply including a clause in the contract labelling a person as a contractor will not be sufficient to create that type of arrangement. If a dispute arises, a court will look beyond this label and examine the terms of the contract and the relationship as a whole.

An employer who deliberately or recklessly misrepresents an employee as an independent contractor will find themselves in hot water with the Fair Work Commission.

Additionally, a contract of employment can entitle an employee to numerous rights including:

  • Minimum wage and modern awards
  • Working conditions
  • Leave entitlements
  • Occupational health and safety protections
  • Workers Compensation
  • Superannuation contributions
  • Withholding of income tax
  • Protections against unfair dismissal
  • Reimbursement for work-related expenses; and
  • Union membership and industrial action

Failing to meet employer obligations exposes individuals and companies to a wide range of liabilities under civil and criminal law. This can all be avoided by getting the right legal advice before hiring.

Every case has its own peculiarities- see our engineering and construction page, or contact us to find out what Australaw can do for you.

YouTube Videos and Content ID – Fair Use or Copyright Abuse?

pexels-photo-youtube

YouTube provides a user-friendly platform for uploading and sharing content on the internet to millions of potential viewers.  Individuals and corporations can utilise this medium to advertise skills and services, share opinions and advice or promote their latest products. Videos can even be monetised to earn the user ad revenue from views.

So why would YouTube block that video of your cat modelling your company’s latest range of feline fashion apparel, set to LMFAO’s ‘I’m Sexy and I Know It’?’ …Well, that’s because YouTube doesn’t want to get sued for copyright violation by Redfoo (no matter how fierce Mr Whiskers looks in that onesie).

YouTube has obligations under copyright law to remove or block content uploaded by its users which violates copyright. If YouTube fails to do this, they can end up being held directly liable. In 2007, YouTube started using Content ID – a system created by Google to automatically locate and remove infringing material on its site. The system works by inviting rightsholders to upload their original content to a database controlled by YouTube. The content is scanned and given a unique fingerprint. When a user uploads a video to YouTube, Content ID will scan this video against the database of copyrighted content. If a match is found, the rightsholder is notified and they are given the power to block, mute, monetise or track the video.

Uploading your favourite Seinfeld episode or music video to YouTube without permission is a clear violation of copyright, but the law does offer some exceptions to certain uses of copyrighted material.

There are a number of ways in which copyrighted content can be used legitimately by others – this is known as ‘Fair Use’ (or ‘Fair Dealing’ under Australian legislation). If your video falls under an exception, then you can dispute a Content ID claim and, if successful, YouTube will reverse any changes that were made to your video.

Every case has its own peculiarities- see our media page for what Australaw can do for you. Australaw can help you with a range of legal issues- contact us for more information.

Fair Dealing – Getting Paid vs. Getting Played

man-coffee-cup-pen

The growing ease with which anything can copied, shared (cross-platform), and monetised (subscriptions, affiliate advertising etc etc) is providing ever increasing opportunity for conflict between content creators and content distributors. Particularly as the lines between those roles have been greatly blurred by this age of rapid publishing facilitated by the Internet.

With budgets under pressure, the temptation is now greater than ever for people to try and assert the fair dealing (sometimes called ‘fair use’) exemptions to copyright infringement in order to avoid paying content creators. Through ignorance of the law, imbalance in bargaining power, and the financial and reputational cost of legal action, smaller operators often feel forced to accept this practice as the cost of doing business.

In the news business a typical scenario will be:

  • Content creator shoots footage
  • News service purchases license to use that footage and publishes it in the form of a TV news segment, social media posts, and online articles
  • Competitor news service copies the published footage and uses it in it’s own publications
  • Content creator sends invoice to the competitor news service for the use of its footage
  • Competitor news service claims that it has no obligation to pay the invoice due to the ‘fair dealing’ or ‘fair use’ exemption (note ‘fair use’ is the American term)

The fair dealing exemptions are contained in sections 40 – 42 of the Copyright Act 1968, and as with most legislation they are likely to be misunderstood if read without the benefit of legal training (most legislation requires an ability to ‘read between the lines’). Adding to the interpretational issue, their application is not black & white but instead a question of ‘impression’ in the circumstances.

At the outset, a good rule of thumb is to consider whether the copying of some part of the content is a referencing or a repackaging of it. Has the copy been incorporated into the new publication as a communication short cut (i.e. a means to quickly identify the topic being discussed), or has it been incorporated because the presence of it adds value in itself to the new publication? The former is more likely to be fair dealing, and the latter more likely to be copyright infringement (particularly if there is money being made), but every case falls on its own facts.

Determining these issues is two-fold. First, for there to be an infringement of the copyright in some content there has to be a copying of a ‘substantial part’ of it. This is a question of quality rather than merely the quantity of the copying. Some people might try to tell you that copying a certain amount, say 20 seconds of your video, is ‘fair use’, but that is about as valid as the ‘5 second rule’. In short, if you have copied some of the most eye-catching parts of the content then there has probably been infringement of copyright (unless an exemption applies) – So a 20 second highlight reel cut together from a content provider’s footage of a 2 hour sporting event is unlikely not to be infringement, as that highlight reel appropriates a substantial portion of the benefit that footage.

To borrow the wording of the Act, copying another party’s content is ‘dealing’ with it. So the question of whether the exemption applies will fall on whether you were dealing with it for one of the purposes stated in ss40-42:

  • Research or study
  • Criticism or review
  • Parody or satire
  • Reporting news

and whether that ‘dealing’ was ‘fair’ or ‘unfair’. Whether the dealing is unfair will depend on the particular facts of the case, but some important considerations will be:

  • Whether the use of the copy is one for which the rights holder would reasonably expect to be paid;
  • Whether a direct monetary benefit is being derived from the use of the copy (e.g. monetising the viewing of the new publication that contains the copy by use of advertising, subscription fees, or selling copies);
  • Whether allowing others in a similar position to the defendant to behave in this manner would significantly devalue the copyright in the work (considering the market that the rights holder had in mind when creating the content);
  • Whether the copy of the content, or part of it, included in the new publication is one of the key attractions bringing people to view the new publication.

Much of this revolves around the policy reason for creating ‘copyright’. That is, to encourage people to make their work available to the public. If allowing, as a general rule, the kind of copying that has occurred in the circumstances at hand would do significant damage to this aim then it is less likely the copying will fall within the ‘fair dealing’ exemption. The flip side is that Parliament seeks to avoid unduly impairing the ability of the public to communicate about events, issues and subjects that may necessitate reference to copyrights works, and this is where the fair dealing defence has a role to play.

Unfortunately, this article can only deal in general terms. Every case has its own peculiarities- see our media page for what Australaw can do for you. Australaw can help you with a range of legal issues- contact us for more information.

The Contract as a Project Planning Tool

contract-planning-toolAs a lawyer I’ve found that people tend to see contracts as a boring formality in the path of getting to the result (e.g. getting the settlement funds, starting the project, starting the case etc etc). The contract is often read with about the same enthusiasm and focus as a child reading a card at Christmas before pocketing the money.

In some situations such absence of alacrity for this stage of the transaction may be warranted, particularly in the case of a standard form contract for a small value transaction of a routine nature. However, in engineering work the contract is a core planning tool for the parties. As the saying goes, proper preparation prevents poor performance.

As observed in ‘Managing Risk in Construction Projects’ (Smith et al, 2nd ed, pp. 41-42, 142) The core functions of a construction contract are to:

  1. Identify and allocate responsibility for risks
  2. Identify and allocate responsibility for work
  3. Align motives of the contractor with the objectives of the client

In this way, the contract serves as a planning tool. Through drafting and negotiation the parties consciously identify the project outcomes (and corresponding risks). They can then assess what they involve, plan how to address them, and allocate responsibility.

Obviously then, time spent on this stage can make a strong contribution to project success.

  1. There will be fewer unknown unknowns. Meaning fewer claims for variations and time extensions, and therefore fewer disputes.
  2. The responsibility (and liability) for the known unknowns will be allocated to the parties best able to control impact or likelihood, or to absorb the impact of the risk materialising. Reduced cost of risk management (e.g. Contingencies and insurance policies) allows for leaner pricing of the work.
  3. Better selection of motive alignment mechanisms will incentivise the resolution of disputes through collaboration rather than litigation.

This coupled with some of the early engagement practices being experimented with in the area of collaborative contracting (e.g. The new suite of prototype Defence estate management contracts) goes along way to de-risking the project.

This corresponds with my experience on the other side of the fence as a project manager. My roles in the Department of Defence seemed to always morph in to that of ‘the fixer’. A project would have gone off track, progress had ground to a halt, motivation between the parties had gone stale, and then it would land on my desk.

Rarely was the heart of the problem a technical hurdle, almost always it was due to cutting corners at the planning phase or ineffective communication practices between the stakeholders. Of course, technical issues were often involved, but it was generally poor planning or ineffective communication between the parties that was preventing these issues being solved.

What was required was a process of revisiting and clarifying the project outcomes, and then addressing the tangible issues by establishing effective methods of collaboration between the parties. Typically this meant arranging a stakeholder meeting, identifying what each party needed and why they needed it, and work-shopping our way to a solution. Sometimes this could be resolved with minor concessions, other times entire elements of the agreement would have to be re-written (typically the scope, as this was often unhelpfully vague and yet at the same time unworkably inflexible).

Ultimately everyone really just wants to get the job done, get paid, and go home. However, foregoing the proper advice and time required to consider the contract could see you accepting more risk than you bargained for.

Contact AustraLaw today.

By Ashley Kelso