Managing global mobility – legal issues for work safety and security Australasian University Safety Association 2016

Fiona Austin

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Global jurisdictions

Flexible work

Safety and health risk

New work models

Privacy and cyber risk

Security

Top legal issues for organisations in mobility transition

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• Exponential growth in computing power, device connectivity, data volumes, artificial intelligence

• 44% of jobs in Australia are at high risk of computerisation and automation

• Changed skill set required for work and raises the bar for entry

• Transition to a knowledge economy

Why? Technological development

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• Global internet enabled workforce has no geographical barriers

• Increased global competition

• China and India lead in STEM education numbers

Why? Increasing globalisation

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• Ageing population

• Cultural diversification

• Health and wellbeing drivers

• Post mining boom

Why? Social change

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• P2P marketplace + platform economics + digital natives emerging

• Transforming employment markets and organisational structures

• Flat organisational structures more desirable

• Jobs of the future will be more flexible, agile, networked and connected

• Anyone can participate but skills thresholds are high

• Industry boundaries may be crossed

• Office spaces will transform

• A market for co-working spaces is emerging

• Focus is on value of experience

Why? Developing business models

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• Australian laws apply: • Australian employment laws (Fair Work Act) applies to international work

where the work is performed by an employee of an ‘Australian Employer’, unless that employee is engaged outside of Australia and the external territories to perform duties outside of Australia and the external Territories.

• Australian WHS laws will apply to international work where there is a relevant connection with the relevant Australian jurisdiction eg. so that an element of the offence is committed here (eg. work is under the direction or control of supervisors in the Australian jurisdiction or the employee often works in that jurisdiction).

Offshore local laws apply: • Local WHS employment laws where the work is done are very likely to

apply. • Local WHS laws where the work is done are very likely to have

application.

Legal challenge: Global compliance

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The Occupational Safety and Health Ordinance (Chapter 509) (1997) (Ordinance) imposes a duty on employers to ensure, so far as reasonably practicable the safety and health at work of all the employer's employees. This includes, providing and maintaining safe systems of work, handling storage or transport of plant or substances, information, instruction and training, safe access and egress to a workplace within the employers control and provide and maintain a safe working environment .

Officer Liability Provision

Section 33(1) of the Ordinance provides that in circumstances where the company is convicted of an offence against the Ordinance and it is proved that the offence was committed with the consent or connivance of or was attributable to any neglect on the part of any officer, the officer will also be guilty of the same offence. Officers are therefore individually liability for the same penalties as the company.

Penalties include fines or up to 6 months imprisonment.

Example: Hong Kong

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Universities should:

• Develop global due diligence and compliance programs for all jurisdictions – this is important not just from the corporate perspective but because personal obligations also apply and the civil risks are real!

• Consider strategies for limiting double dipping or establishing in appropriate jurisdiction

• Develop individual mobility agreements for each case

Legal challenge: Global compliance

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• Mobility increases risk: – information theft & fraud – breach of privacy obligations (eg. information security and cross border

obligations) – Significant reputational damage

• The Office of the Privacy Commissioner can seek civil penalties of up to (or apply for civil penalty orders of up to) $340,000 for individuals and $1.7m for companies

• Recent decision in HW and Freelancer International Pty Limited [2015] AICmr 86 (18 December 2015) included aggravated damages

Legal challenge: Privacy and cyber risk

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Universities should:

• Plan for all related events and have clear rules and a planned response eg. hacking (consider University of Calgary ransomware), virus, cyber extortion, identity theft, unauthorised access, system error, theft of information, defamation, privacy breach, theft of IP

• Plan for notifications of breach

• Review cyber risk insurances now available

Legal challenge: Privacy and cyber risk

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• Safety - Mobility increases risk: workplaces are any places persons are likely to go while at work. This includes work at home and other mobile work environments including accommodation.

• Case example - consider De Silva v Secretary, Department of Finance, Services and Innovation [2015] NSWWCC 279 (7 October 2015)

Legal challenge: Safety and security risk

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• Security - Emerging challenges: • Working alone, travel and remote work • Threats and violence • Terrorism

• Emerging regulation: • Criminal Code Act 1995 (Cth) under which a ‘terrorist act’ is an act or

threat intended to advance a political, ideological or religious cause by coercing or intimidating an Australian or foreign government or the public, by causing serious harm to people or property, endangering life, creating a serious risk to the health and safety of the public, or seriously disrupting certain types of critical infrastructure, electronic systems or trade

• State criminal laws eg. explosives or crimes • WHS Regulation and civil litigation eg. Wright by his tutor Wright v

Optus Administration Pty Limited [2015] NSWSC 160

Legal challenge: Safety and security risk

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Universities should:

• Focus on critical and catastrophic risks

• Integrate security planning with their WHS systems

• Prepare individual plans for remote, travel and mobile work scenarios but consider the placement of the notification functions

• Consider security in design

• Engagement and education is critical including systems for detection and prevention

• Testing and ability to adapt is vital for worst case scenarios

Legal challenge: Safety and security risk

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• Flexible work must be considered: • Flexible workspaces, co-working, hot-desking, non-traditional hours,

part time and casual, compressed hours, working from home, alternative workplaces, flexi time, tailored leave, phasing a return from leave, employment mobility, travel, secondments, staging retirement...and more…?

Fair Work Act (s.65) right to request is open to employees who: – are the parent, or have responsibility for the care, of a child who is of

school age or younger – are a carer (as defined in the Carer Recognition Act 2010) – employees with a disability – mature age employees (>55 years) – workers experiencing family violence or supporting an immediate family

member / household member who is experiencing family violence Subject to reasonable business grounds

Legal challenge: Flexible work

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• Emerging entrepreneurial models in the new knowledge economy: eg. contractors, freelancers and share platforms

• Contractual relationships differ from employment relationships in the sense of content, rights and responsibilties

Legal challenge: New work models

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• Universities should focus on:

• Project management

• Relationship definition and governance

• Interface planning

• Oversight delivery

Legal challenge: new work models

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Global jurisdictions

Flexible work

Safety and health risk

New work models

Privacy and cyber risk

Security risk

Are you prepared?

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Further information

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