INSIDE: IS HWL EBSWORTH THE NEW FACE OF THE AUSTRALIAN PROFESSION? AUSTRALASIAN LEGAL BUSINESS
AUSTRALASIAN
LEGAL BUSINESS
www.legalbusinessonline.com
ISSUE 11.07 AUGUST 2013
AUGUST 2013 INSIDE: ASHURST’S MERGER DILEMMA
EMPLOYER OF CHOICE 2013: Winners revealed
+ SPECIAL REPORTS: ISSUE 11.07
- Workplace relations - Infrastructure
SPECIAL PROFILE:
AMPING IT UP In-house at AMP
No more career experiments. At Burgess Paluch we give strategic advice on
making the right career moves, and we take pride in getting it right. Speak to one of our senior
consultants about your career or call to discuss one of the roles selected below.
Hong Kong Construction Litigator 4+ PAE
Global firm with offices in HK & Australia seeking a disputes lawyer at or near Senior Associate level to undertake Asia-Pacific region construction disputes and arbitration. Be groomed for partnership & work closely with a highly respected partner. Good salary + relocation assistance.
Melbourne IT & Telco 4-7 PAE
From major global corporations to savvy tech start-ups, this role has it all. The Melbourne CBD offices of this mid tier firm are bright and bustling. The IT&T team have a great buzz about them and this role sits as a key position within the team. There’s some fantastic work going on here.
Brisbane
BPL2778
Commercial Property 6+ PAE
A market leading property team is seeking a Senior Associate level lawyer for broad commercial property work. You can gain terrific exposure to large scale, mixed use developments and along the way work with a great team of leading lawyers. Great pay and benefits.
Sydney Corporate 4+ PAE
Rare opportunity to join highly respected and established partners in this top quality boutique law firm. Operating abroad based corporate practice, their professional and commercially astute approach sees them as a firm of choice for mergers and acquisitions, private equity and other transactional matters.
Family Partner or Aspiring Partner
National mid-tier commercial firm seeks to build its growing private client team with a partner of quality. Work within a multidisciplinary team and advise on both litigation and pre-litigation structures for ultra high net-worth clients. Real leads, sensible budgets, quality commercial firm.
Estate Planning SA
A very rare offering for an aspiring future partner to join a large commercial firm as part of its switched on commercial team. Working closely with lead tax and commercial partners, and underpinned by strong referral networks, this is a role with immediate scope and room to grow.
Perth Banking/Finance 4+ PAE
One of the leading law firms in the region is experiencing substantial growth, which is in itself rare in this market. Thrive in a busy and energetic team environ1ment renowned for its cutting edge solutions. Prestigious client base of financial institutions and blue-chip corporations advising on a range of transactional matters - including interesting corporate, project and structured finance.
Commercial Litigation 4+ PAE
Join this premier firm offering quality work for blue chip clients, in a relaxed atmosphere. Advising on general high level commercial litigation you will gain broad experience and enjoy plenty of client contact. You will act for premier local and national corporates, financial institutions, and also government departments. With a focus on quality and not billable hours, this role is likely to appeal.
BD & Marketing A number of our national clients are seeking quality BD and marketing specialists with specific experience in client relationship management, tenders and marketing communications. If you are looking for a challenging role in a well regarded law firm, contact Erin.
www.bplr.com.au Paul Burgess 0414 687 629 Doron Paluch 0438 004 445 Paul Garth 0434 113 355 Erin Kefalas 0413 581 739 paul@bplr.com.au
CONTENTS
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
32
1
“PRETTY MUCH SINCE FEBRUARY OF 2013, THE MARKET HAS BEEN MOVING INTO MUCH MORE POSITIVE TERRITORY AND THAT TREND IS CONTINUING. A NUMBER OF INFRASTRUCTURE PROJECTS ARE GAINING TRACTION.” David Fabian, Lander & Rogers
EMPLOYER OF CHOICE Our expert judges have delivered their verdict: now it’s time to reveal the winners of the 2013 Employer of Choice awards.
32
COVER STORY
06
SPONSORED UPDATE
09
22
Meet the 2013 ALB Australian In-House Team of the Year – the AMP Legal & Governance team. They explain what’s keeping them busy as we cross the halfway mark of 2013.
FEATURES HWL EBSWORTH
18
WORKPLACE RELATIONS
38
BIRD & BIRD
20
INFRASTRUCTURE
48
Bird & Bird is preparing to formalise its Australian presence – and the firm has got more than TMT on its mind.
DEALS
Buddle Findlay
IN-HOUSE AT AMP
HWL Ebsworth is one of the fastest growing firms in the market – but is the growth sustainable?
REGULARS
Analysis of the latest trends and industry reaction to Australia’s newest workplace relations firm. Why super funds hold the key to Australia’s notorious infrastructure deficit.
LEAGUE TABLES
16
NEWS
11
APPOINTMENTS
14
ACLA PERSPECTIVE
55
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
2
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Another Gold. ALB GOLD EMPLOYER OF CHOICE 2013 FOR NEW ZEALAND Russell McVeagh has been awarded “ALB Gold Employer of Choice 2013” for New Zealand. This is the fifth year in succession that we have received this award. Thank you to our wonderful team.
www.russellmcveagh.com AU C K L A N D V E RO C E N T R E 4 8 S H O R T L A N D S T R E E T P O B OX 8 AU C K L A N D N E W Z E A L A N D DX C X 1 0 0 8 5 T E L E P H O N E 6 4 9 3 67 8 0 0 0 FA X 6 4 9 3 67 8 1 63
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4
EDITORIAL
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.7 INSIDE: IS HWL EBSWORTH THE NEW FACE OF THE AUSTRALIAN PROFESSION? AUSTrAlASIAn lEGAl bUSInESS
AUSTRALASIAN
LEGAL BUSINESS
www.legalbusinessonline.com
ISSUE 11.07 AUGUST 2013
AUGUST 2013 INSIDE: ASHURST’S MERGER DILEMMA
A
s this edition goes to print, the Commonwealth government has announced a significant new policy on asylum seekers. Under the plan, new boat arrivals seeking asylum will be diverted to Papua New Guinea. Those who successfully establish a claim to refugee status will be resettled there. The announcement has drawn a mixed reaction. Humanitarian groups such as Amnesty International have argued that the policy amounts to a “shirking” of Australia’s moral obligations in relation to refugees. The counter argument is that the policy may act as a deterrent for people contemplating the hazardous sea voyage from Indonesia to Australia. The details are sketchy at present, but they raise an interesting hypothetical scenario for law firms. If the government proceeds with the PNG solution, extensive investment in infrastructure will be necessary. This is likely to include not only infrastructure for immediate use such as detention centres, but also longer term and more extensive infrastructure such as roads and hospitals. At least some of the work is likely to be conducted by Australian companies. Those companies will require legal advice on these projects. The billion dollar question: will Australian law firms, many of whom have a long track record in assisting refugee claims pro bono, put their hands up for this work? Can the infrastructure aspect of the policy be conscionably separated from the deterrence aspects? This is the real frontier of corporate social responsibility: choosing the kind of work in which a firm is prepared to participate. It’s not a new question and we are already familiar with the types of clients – big tobacco, for example – on which firms have already made a stand. The ethical considerations there are relatively simple when compared to the miasma surrounding the PNG solution. It’s a worthwhile question to consider, because ultimately every project carries some kind of moral element. Every project has some kind of environmental footprint; some kind of human cost or dividend. That moral aspect may be trivial, or it may amount to a matter of life or death. Individuals will make their own assessments. Most of the time you wouldn’t blame them for making the right decisions for themselves and their business. That is not, however, a reason to abrogate the duty to understand and take responsibility for those decisions in their full context. The ethical element is always present.
RENU PRASAD Australasia Editor, Australasian Legal Business, Thomson Reuters
AUSTRALASIAN
LEGAL BUSINESS
+ SPEcIAl rEPorTS: ISSUE 11.07
NO REFUGE FROM REASON
EMPloyEr of choIcE 2013: Winners revealed - Workplace relations - infrastructure
Special profile:
AMPInG IT UP in-house at aMp
6
DEALS
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
YOUR MONTH AT A GLANCE DEALS REPORTED TO ALB, JULY 2013.
Is your firm missing from this table? Please help us keep this table current by emailing deals information to renu.prasad@thomsonreuters.com. You can also view weekly updates to this table on the ALB website at www.legalbusinessonline.com.
A$1.5 billion M&A I TOCHU/ MITSUI & CO ACQUISITION OF INTERESTS IN BHP IRON ORE JIMBLEBAR
• Squire Sanders has previously advised ITOCHU Corporation and Mitsui & Co on a long term relationship with BHP Billiton in connection with three iron ore joint ventures, Mt. Newman, Yandi, and Mt. Goldsworthy in Western Australia.
A$750 million DEBT NZ CAPITAL NOTES A OFFER
• The joint lead managers on this transaction were ANZ Securities, Citi, Commonwealth Bank of Australia, J.P. Morgan, National Australia Bank and RBS Morgans.
Philippa Stone, Herbert Smith Freehills
YOUR MONTH AT A GLANCE Deal
Value
Advisor
Client
Lead Lawyer
ITOCHU/ Mitsui & Co acquisition of interests in BHP Iron Ore Jimblebar ITOCHU/ Mitsui & Co acquisition of interests in BHP Iron Ore Jimblebar Symbion / EBOS Group merger
A$1.5bn
Squire Sanders
ITOCHU/ Mitsui & Co
Duncan Maclean
A$1.5bn
Ashurst
Lorenzo Pacitti
NZ$1.5bn
Corrs Chambers Westgarth Herbert Smith Freehills
BHP Billiton Minerals; BHP Iron Ore Jimblebar; BHP Billiton Iron Ore Zuellig
Justin Fox
Bank syndicate
Melita Cottrell
Leighton Finance syndicated facility
A$1bn
Leighton Finance syndicated facility Dugald River project financing
A$1bn
Clayton Utz
Leighton
A$1bn
King & Wood Mallesons
China Development Bank Martin James, Corporation; Bank of China Nicholas Creed
Dugald River project financing
A$1bn
Herbert Smith Freehills
MMG Dugald River
Dugald River project financing
A$1bn
Clifford Chance
China Development Bank Corporation
Z Energy IPO
NZ$900m
Baker & McKenzie Z Energy
Z Energy IPO
NZ$900m
Chapman Tripp
Z Energy
Z Energy IPO
NZ$900m
Minter Ellison
Z Energy
Michael Barr-David
Z Energy IPO
NZ$900m
Minter Ellison Rudd Watts
Z Energy
ANZ capital notes offer
A$750m
Herbert Smith Freehills
Joint lead managers
Patricia Green, Rachel Devine, Paul Foley Philippa Stone
ANZ capital notes offer
A$750m
ANZ
Westpac subordinated notes II offer
A$750m
King & Wood Mallesons Herbert Smith Freehills
Joint lead managers
Philippa Stone
Tianqi Lithium acquisition of 65% interest in Talison Lithium
A$646m
Ashurst
Tianqi Lithium
Murray Wheater
NewSat satellite financing
A$611m
Norton Rose Fulbright
Deutsche Bank Trust Company Americas, Citicorp International
Tessa Hoser
Malakoff Corporation Berhad purchase of 50% stake in Macarthur wind farm
A$600m
Baker & McKenzie
Malakoff
Paul Curnow
Malakoff Corporation Berhad purchase of 50% stake in Macarthur wind farm
A$600m
Allens
Meridian Energy
Anna Collyer
Summerset Group ASX listing
A$565m
Allens
Summerset
Julian Donnan
Summerset Group ASX listing
A$565m
Chapman Tripp
Summerset
Maggie Lo Ben McLaughlin
8
DEALS
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
YOUR MONTH AT A GLANCE €500 million DEBT SP AUSNET BOND ISSUE
• Minter Ellison have previously advised SP AusNet on a range of corporate transactions, including bond issues, asset acquisitions and regulatory matters.
Chris Saxon, Baker & McKenzie
A$160 million M&A ENERGYAUSTRALIA ACQUISITION OF DELTA ELECTRICITY’S MT PIPER AND WALLERAWANG POWER STATIONS
• Baker & McKenzie also advised Malaysia’s Malakoff Corporation Berhad on its purchase of a 50% equity interest in the $1.2billion Macarthur wind farm from Meridian Energy and Thailand’s Electricity Generating Public Company on its acquisition of the $350million Boco Rock wind farm from Continental Wind Partners and GE Energy Financial Services.
YOUR MONTH AT A GLANCE Deal
Value
Advisor
Client
Lead Lawyer
Ramsay Health Care Limited/ Sime Darby Berhad JV
A$500m
Baker & McKenzie
Ramsay Health Care
Ben McLaughlin
SP AusNet bond issue
€500m
Minter Ellison
SP AusNet
Theo Kindynis, James Hutton
Billabong debt refinancing
A$325m
Baker & McKenzie
Altamont-led consortium
Steven Glanz
Boco Rock wind farm project finance
A$265m
King & Wood Mallesons
Bank syndicate
Claire Rogers
Boco Rock wind farm project finance
A$265m
Baker & McKenzie
Electricity Generating Public Company (Thailand)
Paul Curnow
Boco Rock wind farm project finance
A$265m
Herbert Smith Freehills
GE Energy Financial Services/Continental Wind Partners
Gerard Pike
Gullen Range Wind Farm financing
A$247m
Herbert Smith Freehills
Lead arranger/ bookrunners
Gerard Pike
ALS capital raising
A$246m
Minter Ellison
ALS
Gary Goldman
ALS capital raising
A$246m
Herbert Smith Freehills
JP Morgan
Lauren Magraith
Penske Automotive Group acquisition of Commercial Vehicles Group
A$220m
DLA Piper
Penske Automotive Group
Jim Holding
Elemental Minerals takeover offer by Dingyi Investment
A$190m
Corrs Chambers Westgarth
Elemental Minerals
Christian Owen and Russell Philip
RetailMeNot.com IPO
A$190m
M+K Lawyers
RetailMeNot.com
Craig Finlayson
Investa Nominees purchase of 259 Queen Street Brisbane
A$173m
Allens
Grosvenor Fund Management
Victoria Holthouse
EnergyAustralia acquisition of Delta Electricity’s Mt Piper and Wallerawang power stations
A$160m
Baker & McKenzie
NSW Government
Chris Saxon
AGL bid for Australian Power and Gas
A$158m
Corrs Chambers Westgarth
Australian Power and Gas
Andrew Lumsden
AGL bid for Australian Power and Gas
A$158m
Ashurst
AGL
Phil Breden
Atlas/ Altura Mining JV
A$146m
Ashurst
Atlas Iron Limited
Lorenzo Pacitti
Atlas/ Altura Mining JV
A$146m
Allion Legal
Altura
SCA Property Group placement/ acquisition of shopping centre assets
A$136m
Corrs Chambers Westgarth
SCA Property Group
Andrew Lumsden
Sale of former Amcor Paper mill to consortium
A$120m
Corrs Chambers Westgarth
Amcor
Nathaniel Popelianski
Next Capital and Industry Funds Management (IFM) acquisition of Scottish Pacific
A$100m
Baker & McKenzie
Next Capital and Industry Funds Management
Ashley Poke
Next Capital and Industry Funds Management (IFM) acquisition of Scottish Pacific
A$100m
Herbert Smith Freehills
Lazard
Australian Food & Fibre bid for PrimeAg Australia
A$76m
Allens
Australian Food & Fibre
Julian Donnan
Firm Profile
NZ Commentary
PLANNING FOR GROWTH: AUCKLAND’S UNITARY PLAN In March 2013 Auckland Council released its Draft Unitary Plan for informal public feedback. Almost 23,000 pieces of feedback were received by 31 May, a clear indication that the largest town planning exercise ever undertaken in New Zealand is being closely watched by all sectors of the community. While the Council considers that feedback and makes final changes to the Unitary Plan before public notification later this year, central Government has released several reform proposals in an effort to accelerate provision for growth in New Zealand’s largest city. Auckland is home to one-third of New Zealand’s population and is growing fast, with another million people expected to live in the city by 2043. Housing is already in short supply, exacerbated by a lack of development during the difficult economic climate of the past five years, and the residential property market has reacted accordingly, with housing affordability in Auckland now a principal focus of both local and central Government. Before amalgamation in 2010, Auckland was governed by seven district authorities and one regional authority. The Royal Commission on Auckland Governance criticised these governance arrangements as fragmented and lacking a strong regional focus. Amalgamation of these authorities into a “super city” was accomplished formally in November 2010 by a range of local government legislation reforms, and one of Auckland Council’s principal tasks during its first year was to develop a spatial plan to guide the city’s growth. The Auckland Spatial Plan, released in 2011 and formally adopted by the Council in March 2012, sets out a high level strategic direction for the city over the next 30 years, particularly in relation to transport, land use, housing and economic development, and contemplates how growth will be accommodated while having regard to the need to protect the natural environment and urban amenity that are highly valued by the community. Whether by accident or design, however, the Auckland Spatial Plan sits outside the framework of the Resource Management Act 1991 (RMA), New Zealand’s principal land and resource use legislation, which places primary responsibility for planning on regional and district councils. Plans prepared under the RMA must identify local resource management issues, and develop objectives, policies and methods (including rules) to address those
issues within the context of the overall purpose of the Act (the sustainable management of natural and physical resources.) Not surprisingly, work began on integrating the twelve Auckland legacy RMA plans soon after amalgamation, in parallel with preparation of the Auckland Spatial Plan, and the resulting Draft Unitary Plan is regarded by Auckland Council as the key tool to implement the strategic direction of the Spatial Plan. In substantive terms the Unitary Plan will replace 99 different residential zones with five, and for the first time encourages growth in Auckland to go up in urban centres, rather than out into the rural hinterland, subject to the fine tuning of a rural-urban boundary to accommodate new urban development in suitable areas that are served by infrastructure networks and do not compromise rural production capacity. Policies and rules to encourage intensification of the existing urban environment are proving controversial, with widespread community concern expressed through the feedback process about the height and design of new housing development and the vulnerability of Auckland’s historic character suburbs to more intense patterns of development. Given its concerns about housing affordability in Auckland, central Government has acceded to Auckland Council’s request to develop a one-off, fast-tracked process to assist the Unitary Plan through the complex statutory requirements of the RMA in a shorter timeframe than might otherwise occur. A bill to amend the RMA has emerged from Select Committee and is expected to be passed this month. The standard RMA process for developing a plan of this nature is highly participatory, with extensive rights of submission and appeal, so the Bill’s proposed removal of appeal rights to the Environment Court has been controversial. A specialist Hearings Panel will be appointed by the Government to hear and consider submissions on the Unitary Plan and to make recommendations to Auckland Council. Full rights of appeal will only arise in the event that the Council rejects a Hearings Panel recommendation; where the Council accepts the Panel’s recommendations, the Unitary Plan provisions will take immediate effect. The Amendment Bill requires the Council to make those decisions within three years of formally notifying the Unitary Plan, which it aims to do in late September 2013.
Not content to wait that long for the more enabling development rules of the Unitary Plan to take effect, central Government has also introduced the Housing Accords and Special Housing Areas Bill. If passed, the Act would apply for three years and allow the Minister of Housing to declare special housing areas, within which a more permissive and streamlined planning regime would apply. Where the Government and councils enter into housing accords to address housing supply and affordability, with targets for residential development, councils will exercise the new regulatory powers. If an accord cannot be agreed, the Government will exercise those powers. These planning processes offer an interesting parallel with those being undertaken across the Tasman. In March 2013, the New South Wales Government released a draft Metropolitan Strategy for Sydney, identifying many of the same growth issues facing Auckland. With an expected 1.3 million additional residents in Sydney by 2031, the Strategy proposes to revitalise existing neighbourhoods and develop new housing in greenfield areas while simultaneously planning for long term transport and infrastructure. With a more “top down” approach to land use planning under the NSW Environmental Planning and Assessment Act 1979, and a process that permits public submissions and hearings but no rights of appeal against final ministerial decisions, it will be interesting to observe the speed with which each city rises to the growth challenge. This article was written by Jennifer Caldwell, a partner in Buddle Findlay’s environment and resource management practice. Jennifer can be contacted on +64 9 358 7034 or jennifer.caldwell@buddlefindlay.com.
JENNIFER CALDWELL
Buddle Findlay
10
DEALS
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
YOUR MONTH AT A GLANCE YOUR MONTH AT A GLANCE
Jon Cane, Allion Legal
Deal
Value
Advisor
Client
Australian Food & Fibre bid for PrimeAg Australia
A$76m
Kemp Strang
PrimeAg
Australian Food & Fibre bid for PrimeAg Australia
A$76m
Ashurst
PrimeAg
Bill Koeck
Broadsword Marine Contractors acquisition Skilled Group
A$75.5m
K&L Gates
Broadsword Marine
Simon Salter
Synlait Milk IPO
A$75m
Simpson Grierson
Bright Dairy & Food Company
Michael Pollard
Synlait Milk IPO
A$75m
Minter Ellison Rudd Watts
Synlait Milk , Synlait Ltd
Cathy Quinn, Mark Stuart, Silvana Schenone (Synlait Ltd)
Anacacia Capital sale of Rafferty's A$70m Garden to PZ Cussons
Thomsons Lawyers
Anacacia Capital
Sundance Energy Australia share purchase/ placement
A$63m
Ashurst
Euroz Securities
Sundance Energy Australia share purchase/ placement
A$63m
Baker & McKenzie
Sundance
White Cloud Capital Advisers acquisition of Careers Australia Group
A$61m
Minter Ellison
White Cloud Capital
Jeremy Blackshaw
White Cloud Capital Advisers acquisition of Careers Australia Group
A$61m
Herbert Smith Freehills
Careers Australia Group
Philippa Stone
Origin Energy acquisition of Eraring Energy
A$50m
Clayton Utz
Origin Energy
Graham Taylor
Origin Energy acquisition of Eraring Energy
A$50m
Baker & McKenzie
NSW Government
Chris Saxon
Australian Capital Enterprise capital raising
A$50m
Allion Legal
Firstfolio Limited
Jon Cane, David Walker
Australian Capital Enterprise capital raising
A$50m
DLA Piper
Australian Capital Enterprise
Rialto Energy share placement
A$19m
Ashurst
Euroz Securities
Roger Davies
Lend Lease JEM Partners Fund
Herbert Smith Freehills
Lend Lease Singapore
Justin O’Farrell
Ironbridge Capital bid for Bravura Solutions
Clayton Utz
Bravura Solutions
David Stammers and Jonathan Algar
NAB procurement of office at 700 Bourke Street Docklands
Corrs Chambers Westgarth
NAB
Nathaniel Popelianski
MRG Metals acquisition of Sasak Resources
K&L Gates
MRG
Jol Rogers
Genesis IPO
Chapman Tripp
NZ Treasury
John Strowger and Stephen Lowe
Yanzhou Coal Mining Company buyout of Yancoal Australia
Minter Ellison
Yancoal
John Steven, Bart Oude-Vrielink
Yanzhou Coal Mining Company buyout of Yancoal Australia
Herbert Smith Freehills
Yanzhou
Social Ventures Australia social benefit bond
Allen & Overy
Social Ventures Australia
Adam Stapledon
Resimac bid for RHG
Herbert Smith Freehills
Resimac
Philippa Stone and Mark Crean
Moelis Australia Asset Management acquisition of Healesville Walk Shopping Centre
Hall & Wilcox
Moelis Australia
Natalie Bannister
A$61 million M&A
WHITE CLOUD
CAPITAL ADVISERS ACQUISITION OF CAREERS AUSTRALIA GROUP
• Minter Ellison has advised White Cloud since its initial investment in CAG in 2011.
A$50 million M&A
ORIGIN ENERGY
ACQUISITION OF ERARING ENERGY
• NSW’s remaining assets for sale include the state’s largest electricity asset, Macquarie Generation, as well as the Delta Coastal and the Delta West portfolios and a portfolio of renewable assets to be known as Green State Power, currently operated by Eraring Energy.
Lead Lawyer
Roger Davies
NEWS
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
11
In case you missed it….. THE MONTH’S TOP HEADLINES FROM WWW.LEGALBUSINESSONLINE.COM
GLOBAL
Ashurst unveils global governance structure UK-based Ashurst LLP will have a slightly more dominant board representation than legacy Blake Dawson, according to plans for a new global governance structure released by both firms. The plans were released in anticipation of a full partner vote on a financially integrated merger between Ashurst LLP and Ashurst Australia (previously Blake Dawson) later this year. Ashurst LLP will have four elected partners on the 14 member board, legacy Blake Dawson will have three elected partners and the combined Asia operation will have one elected partner. Two independent members and a non-voting CFO will also take their seats at the table. The elected chairman and vice chairman, who must come from alternate sides of the merger, and the global managing partner round out the board. The global managing partner will be current LLP managing partner James Collis, while John Carrington will remain as Australian managing partner. The firm is also introducing a new global divisional structure along four business lines, each co-led by Ashurst Australia and Ashurst LLP partners. The Australian heads will be Phil Breden (corporate, commercial, competition); Lisa Ritson (disputes,
IP, employment); Geoff Gishubl (resources, real estate and infrastructure) and Paul Jenkins (finance). LLP managing partner James Collis said that the firms were anxious to conduct the merger vote by the end of the year. Please refer to the ALB website for an in-depth interview with James Collis and John Carrington
EQUITY
Firm appoints non-lawyer as partner Family law firm Watts McCray Lawyers has announced the appointment of its first non-lawyer equity partner, Anthony Hercok. Hercok is also the firm’s Chief Operating Officer and the move reflects the firm’s move to become a Multi-Disciplinary Practice (MDP). Hercok provides management consultancy services to private clients and SMEs and the firm is hoping to develop a synergy between this workflow and the firm’s existing commercial and family law base. Watts McCray managing partner Greg McCray said the appointment recognises the need for firms to continually improve and innovate in the client services sphere. “Mr Hercok’s appointment and the decision to become an MDP will help Watts McCray to remain a market leader,”McCray said.
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Oceania PO Box 1244 | Blackwood SA 5051 | Australia | +61 88374 2453 Offices Australia | Luxembourg | Switzerland www.avantiq.com
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NEWS
TECHNOLOGY IN PRACTICE
Q&A with
Damian Huon Damian Huon is a Legal Technology Strategist and CEO of Huon IT. With over 24 years supporting Australian law firms, Huon IT deliver business-wide outcomes with ‘everything technology’.
STAYING ON TOP OF YOUR INBOX INFLUX.
If you have ever missed an important email, you know this is a serious problem. What is meant to be a tool to help can quickly resemble more of a dump box. Seasoned IT advisor, Damian Huon, shares his tips on working smarter, not harder. inbox is flooded and I’m drowning in emails. Q1 My Help!
We have all been there. But you actually already have all the tools you need to stay on top of your emails. Depending on the Outlook version you are using, there are many rules you can enable to effectively manage your inbox and filter the got-to-do’s from the nice-to-do’s: • Priority inbox – Set up a special inbox to receive custom alerts for emails from your boss or VIP clients, separating critical correspondence from clutter. • Colour coding – You can colour code certain types of emails – such as when you’ve been CC’d vs. direct recipient – to help you prioritise what you should action now or simply read later. • Auto-filing – If you are on the receiving end of regular emails you never actually read, you can have them automatically filtered into a separate folder. That way they are there to reference but don’t crowd your inbox. • Scheduling your inbox – You can flag an email for future follow-up which will appear in your task list or, using the drag-and-drop method, you can turn an email or a task request into an event on your calendar, invite attendees and use the email or task content as the meeting agenda.
there tools I can use on my mobile while in Q2 Are meetings or travelling?
If you only use your smart phone for calls, SMS, and checking email, you are not maximising its potential. Consider these few tricks to get more from your mobile device: • Message-to-phone alerts – If you’re awaiting an important email, you can set your phone to receive an SMS when certain individuals email you rather than checking your inbox every two minutes. • Enterprise Mobility Management (EMM) – You can access and file your documents directly to your company server from your mobile device. • Voice-to-text dictation – Avoid temptation to send an SMS or respond to an email whilst on the go by using smart voice-to-text dictation applications. They are surprisingly accurate!
tools help me manage my own workload, but Q3 These can I use Outlook to better manage my team? Definitely. Outlook is much more than an email application; it has an array of time management and even project management tools. Let’s look at a few of its robust features: • Assign tasks (with a deadline!) – You can assign responsibilities to yourself and others using Outlooks Tasks, which appear as events in your to-do list. The task’s status, priority and its percent- completion rating can be updated. • Meeting Workspace – When creating a new meeting event in Outlook calendar, you can link the meeting request to a Meeting Workspace website, where you can share agendas, share pertinent documents and track meeting results. • Delegating and flagging – If you delegate an email, simply assign a flag for yourself and the recipient. This means you will receive a notification to follow-up its progress, and the recipient will receive a reminder when it is due. Email your questions to alb@huonit.com.au
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
THE MONTH’S TOP HEADLINES FROM WWW.LEGALBUSINESSONLINE.COM
REVENUES
Allen & Overy, Herbert Smith Freehills announce revenue results Allen & Overy and Herbert Smith Freehills have reported £1.19 billion and £471.2 million in revenues respectively. However, the figure for HSF represents seven months of operation only, reflecting a transition to an April financial year. The full results are as follows: ALLEN & OVERY Revenue – £1.19 billion (up 0.6% on FY2012) Net income – £497 million (up 2.2%) Total number of partners – 525 Offices: 42 HERBERT SMITH FREEHILLS Note: Results cover period October 1 2012 to 30 April 2013 Revenue – £471.2 million Net income – £137.2 million Total number of partners – 450 Total number of full equity partners – 316 Total number of fee earners – 2,323 (excludes paralegals) New offices in last 12 months: New York, Frankfurt, Berlin and Seoul.
PROFESSION
Fewer lawyers leaving profession, finds study The rate at which female lawyers are leaving the profession has dropped to an all time low, according to a new report from the Law Society of NSW. The study Advancement of Women in the Legal Profession determined attrition rates by assessing how many lawyers in the 1-5 year bracket were still in the profession when they reached the 6-10 year bracket. The 2013 data was therefore compiled by determining what percentage of the 1-5 year lawyers practising in 2008 were still in the profession five years later, with the attrition rate calculated by corollary. Attrition rates for both men and women were at ten year lows, while the attrition rate for women was at an all time low of 29.6%. The corresponding figure for men was 26.1%. These figures are notably lower than those recorded ten years ago, where the female attrition rate came close to 40%. The attrition rate for private practice was higher than the profession average, reaching 43.9% for women and 34.8% for men. In-house corporate practice was a very different picture, with the number of women actually increasing by 7.4% and the number of men increasing by 6.6%. However, attrition was in evidence for government lawyers: 6.6% for women and 24.2% for men. The study noted that it was difficult to draw reliable conclusions from this data because numbers of practitioners were much smaller than those for private practice.
MELBOURNE
Rockwell Olivier pursues private client market Rockwell Olivier has unveiled a new Melbourne private client offering, to be known as “Argyle Private by Rockwell Olivier”. This will be a specialised service providing advice to individuals and families on all aspects of their personal and business affairs. The practice will be staffed by three new recruits from the legal arm of estate planning/administration and trustee services business, Flinders Trustees Limited: Michael Whittington, Carole Ainio and
NEWS
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
Ro Krivanek. These three professionals will join Rockwell Olivier’s Melbourne team from mid July, bringing with them a new private client offering in wills and powers of attorney, estate planning, executor assist services and trust and agency services. These new services will be offered in addition to Rockwell Olivier’s traditional corporate and transactional services, which will continue to operate. Rockwell Olivier is the new brand recently adopted by three firms owned by listed entity Integrated Legal Holdings. The three firms were Argyle Lawyers (Sydney), Talbot Olivier (Perth), and Rockwell Bates (Melbourne). The firm has 24 principals and 50 other fee earners.
BRISBANE
Brisbane firm notches up 50 years
Barry.Nilsson. Lawyers is celebrating its 50th anniversary this year. The 13 partner firm, which employs over 140 staff, was started as a sole practitioner firm by John Barry in December of 1963. While the official anniversary date is on 9 December, the firm’s celebrations will start this month. There will be a gala event at the newly refurbished Brisbane City Hall in October. Managing partner Don Leembruggen said that he was looking forward to celebrating this milestone with the team. “I’m really excited about what we’ve got planned for the year,” he said. “Everyone important to the past, present and future of the firm will be involved in some way.”
TAX
Minter Ellison launches HK; regional tax practice
Minter Ellison has made two lateral hires in Hong Kong to spearhead the development of the firm’s tax capability in the region. The two hires are Christian Pellone, a former senior international tax partner in Ernst & Young’s Greater China tax practice and Edward Lean, also previously with EY Hong Kong. Pellone joins as a partner while Lean has joined as a senior tax manager. Rhys Guild, head of Minter Ellison’s tax division, said the market for tax advice was growing in Hong Kong, mainland China and Asia generally. “What we’re seeing is the growth of the financial services market in Asia Pacific, the movement of North American, European and Australian banks into the region, increasingly complex crossborder transactions and increasingly aggressive behaviour of tax authorities to counter tax avoidance,” he said. “The time is ripe for to have senior tax professionals on the ground in Hong Kong to work with regional clients and with our tax team here in Australia.”
COMMUNITY
Curwoods launches 2013 Artist in Residence exhibition
Curwoods will display the works of Sydney artist Phoebe Boyle in its Australia Square offices between 30 July and 09 August 2013. The display represents the fifth iteration of the Curwoods Artist in Residence exhibition, which provides an emerging young artist the opportunity to take up a residency at the firm’s Sydney CBD office. The program allows the artist to use a purpose built and fitted-out studio, working alongside the firm’s lawyers. The program also runs in tandem with the firm’s charitable and pro bono activities. In particular, the program supports Sydney Rotary and the activities of its New Generations Committee, aimed at providing assistance and developmental opportunities to young people in the community.
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13
IN-HOUSE Q&A GREG GETTINGBY General Counsel & Company Secretary
Presented by
Macmahon Holdings Ltd, Perth
your opinion, why have in-house lawyers become an 1 Inincreasingly indispensable part of an organisation? Macmahon derives the bulk of its revenue from mining contracting. At the current point in the business cycle I’m not sure that in-house lawyers, or many other internal support functions for that matter, are actually indispensable. Contracting businesses like Macmahon need to be very flexible, with the ability to rapidly scale-up, or scale-down their overhead structures. However, with the greater legal complexity of many business activities, and increasing litigiousness in Australia generally, in-house lawyers who can strike the right balance between technical accuracy, accessibility and other commercial drivers can certainly make a valuable contribution in many situations where it is not practical to use only external lawyers. recent times, the role of the General Counsel has 2 Indiversified into a multi-faceted role, (where the General
Counsel can wear the ‘hat’ of Lawyer, Legal Manager, Compliance Manager, and Company Secretary). In your opinion, do you believe this has increased your risk profile?
Yes. In light of recent decisions about legal professional privilege and the situations in which lawyers may have liability as officers of their employer, there is no doubt in-house lawyers need to be very conscious of the function they are performing at any particular time. In listed entities, General Counsels may also need to be attuned to external market information about the company, and the internal factors that can influence share price performance, so they can assist the company to meet continuous disclosure obligations - sometimes at very short notice. However, I think a multifaceted role is also one of the key attractions of an in-house career. It exercises a broader skillset and creates opportunities to be involved at multiple points across the business, not just when a strictly legal issue has arisen. your opinion, what do you consider to be the main 3 Inchallenges you will face in the new financial year? Given that margins for many businesses are under pressure I expect disputes could increase, and that these disputes may be harder to resolve without litigation. It is also more likely we will encounter solvency issues with some of our business counterparties. Contractual terms with clients may also harden as the competition for available work increases. However, the flip side of this is that the availability of the external resources we draw upon is improving, and terms from our suppliers are becoming more competitive. In the year ahead it is also likely that more of Macmahon’s new work opportunities will come from Africa and Asia - potentially from countries without a well-developed legal system or where generally accepted business practices are significantly different from those in Australia. Establishing operations in these jurisdictions can be challenging, as can negotiating contracts with parties who may not attach as much significance to the written agreement as we do. This will require us to apply more innovative methods to manage risk. JLegal is a global specialist legal recruitment consultancy focused solely on providing recruitment solutions to the legal profession. For a confidential discussion about your career, contact one of our senior consultants today.
www.jlegal.com Melbourne t | +61 3 8102 1900 Sydney t | +61 2 8228 7680
APPOINTMENTS LATERAL PARTNER APPOINTMENTS Name
Practice area
Coming from
Going to
Bronwyn Davies
Corporate
Jackson McDonald
Laval Legal
David Nolan
Corporate
Mills Oakley
Kemp Strang
Ellen Thomas
Workplace relations
King & Wood Mallesons
Baker & McKenzie
Heather Gray
Superannuation
DLA Piper
Hall & Wilcox
Mark Morgan
Property
Morgan Lewis
Colin Biggers & Paisley
Rebecca Breen
Property
Morgan Lewis
Colin Biggers & Paisley
Roger Sands
Insurance
Rockwell Olivier
Sparke Helmore
Sean Selleck
Corporate
King & Wood Mallesons
Baker & McKenzie
INTERNAL PARTNER PROMOTIONS
See also issue 11.6 for earlier partner promotion announcements. Promotions marked with (*) indicate the firm uses principal title as partner equivalent.
ALLION LEGAL Craig Boyle*
HALL & WILCOX Workplace relations
Perth
Adrian Verdnik
Financial services
Melbourne
IT/IP
Brisbane
HOPGOOD GANIM
ASHURST James Hall
Workplace relations
Brisbane
Hayden Delaney
Tim Klineberg
Insolvency
Sydney
HWL EBSWORTH
Kylie Lane
Corporate
Melbourne
David Jury
Building & Construction
Sydney
Emanuel Poulos
Insolvency
Sydney
Julie Talakovski
Litigation
Sydney
Kellech Smith
IP
Melbourne
Sam Dwyer
Commercial
Melbourne
Stuart Walton
Banking & Financial
Sydney
Fletch Heinemann
Tax
Brisbane
Thomas Sterling
Real Estate & Projects
Sydney
Linda Tapiolas
Tax
Brisbane
MADDOCKS
COOPER GRACE WARD
CORRS CHAMBERS WESTGARTH
Catherine Debreceny
Corporate & Commercial
Melbourne
Lizzie Knight
Corporate (China focus)
Sydney
Mimi Marcus
Planning & Environment
Melbourne
Jaclyn Riley-Smith
Corporate
Sydney
Gina Wilson
Commercial Disputes
Melbourne
Matthew Muir
Construction
Brisbane
MARKS & CLERK
Andrew McCormack
Construction
Brisbane
Virginia Beniac-Brooks Patents
David Yates
Dispute resolution
Perth
Mark Lindfield
Insurance
Sydney
Maree Skinner
Employee & Industrial Relations
Sydney
Chris Fabiansson
Property
Sydney
Christina Renner
Planning, Environment
Sydney
Anita Caruso
Property
Adelaide
Karen Guazzelli
Litigation
Adelaide
Andrew Frieberg
Employment & Safety
Brisbane
DIBBS BARKER
GADENS
Melbourne
MINTER ELLISON Greg Carfoot
Dispute resolution
Melbourne
Cameron Ross
Construction/ infrastructure
Melbourne
Shelley Werner
Dispute resolution
Melbourne
Anthony Massaro*
Workplace Relations
Melbourne
Stefan Fiedler*
Planning & Environment
Melbourne
Sarah Manly*
Public Law, Litigation & Aged Care
Melbourne
RUSSELL KENNEDY
TINDALL GASK BENTLEY Mal Byrne
Personal injury
Adelaide
APPOINTMENTS COWLEY APPOINTED CHAIRMAN AT MINTERS Bruce Cowley has taken on the chairman’s role at Minter Ellison. Cowley has been with Minter Ellison for 32 years, having joined as an articled clerk and was appointed a partner in 1987. He is a senior corporate lawyer and widely recognised for his contribution to corporate law and regulatory reform in Australia. NEW CEO FOR JACKSON MCDONALD Jackson McDonald has announced the appointment of Malcolm Shelton-Agar as its new CEO. SheltonAgar was previously COO of Singapore law firm Allen & Gledhill and prior to this spent over a decade as managing partner and then managing director of DLA Phillips Fox. Shelton-Agar said he was particularly attracted by the firm’s decision to remain independent which he said would allow the firm to “act rapidly and sensitively to changes in the WA economy and legal services market.” “The firm is highly regarded in Australia; I am excited about where Jackson McDonald is positioned,” he said. “I feel my experience in independent and global firms and expertise gained in a variety of senior management roles will enable me to make a significant contribution to the firm.” ADVENTBALANCE ANNOUNCES NEW MANAGING DIRECTOR AdventBalance has announced the appointment of Sandra Gibson as managing director. Since joining AdventBalance in 2010, Gibson has played a key role in expanding the law firm’s presence across Australia. With over 20 years of experience in management roles at leading law firms and corporate organisations such as Freehills and Great Southern Limited, Gibson has significant expertise in mergers and divestments, change management and remuneration strategy. Gibson’s appointment means that 50 per cent of the firm’s management is now female. Women now account for 70 per cent of the firm’s workforce. PROPERTY: CBP ACQUIRES TEAM; AIMS FOR 50% REVENUE BOOST The Sydney office of Colin Biggers & Paisley has acquired 12 new staff members, with the former property team from Morgan Lewis having joined the firm. The group comprises four support staff and eight fee earners, including partners Rebecca Breen and Mark Morgan and senior associates Susan Bellamy and Bob Miljevic. Managing partner Dunstan de Souza said that the addition of this new team would translate into a 50% revenue growth for the firm’s property practice group nationally. “One of the principles of our longterm strategy is to be a national leader in the field of property law and this expansion of our firm is helping us to achieve that goal,” he said. PERTH: HOMECOMING FOR NEW LAVAN LEGAL PARTNER Lavan Legal has announced the appointment of Bronwyn Davies as a corporate partner specialising in mining and resources. Davies, who makes the move from Jackson McDonald, was previously a senior associate at Lavan Legal and therefore completes the circle with her latest promotion. Davies has extensive experience in the negotiation and drafting of commercial agreements including joint ventures, farm-ins and farm-outs, native title, mining
services contracts, tenement sales, royalty agreements and ore off-take agreements. She acts for Australian listed entities on exploration and mining projects in West Africa, Namibia, South America and Canada. KEMP STRANG MAKES TWO CORPORATE/ COMMERCIAL HIRES Sydney based Kemp Strang has announced two more lateral hires – David Nolan (partner) and Holly Taylor (senior associate). Both were previously with Mills Oakley Lawyers. “We are delighted to have a tried and tested corporate and commercial team of the calibre of David and Holly join the firm,” said Kemp Strang managing partner Michael Joseph. Nolan’s expertise includes IPOs, capital raisings and venture capital while Taylor advises public, private and government clients across a broad range of industries on corporate and commercial matters. K&L GATES BOOSTS WORKPLACE RELATIONS IN PERTH K&L Gates has added Lucy Cordone as a special counsel in the labour, employment and workplace safety practice group. Most recently in the role of Area Director Corporate Services in the Department of Health Perth, Cordone has had significant experience over 10 years in senior legal and executive leadership positions as general counsel, company secretary and chief risk officer for large complex public/not for profit and private health organisations. Cordone is an experienced legal adviser at both an operational and strategic level. HALL & WILCOX BOOSTS SUPERANNUATION PRACTICE WITH DLA HIRE Hall & Wilcox has welcomed superannuation specialist Heather Gray and her team to the fold from DLA Piper. This hire will see the firm add Gray as a partner, while her colleagues Andrew Fairley, Jodi Preston and Lalitha Visuasam will also make the switch. Fairley has been appointed as a consultant, Preston has been appointed special counsel and Visuasam has been appointed senior associate. Gray said that she had decided to join Hall & Wilcox because of the firm’s strategic focus on the funds and financial services sector. “Hall & Wilcox has a reputation as one of Australia’s leading firms in the financial services sector,” she said. “The firm has a strong focus on superannuation; I believe our collective experience will really add value for our mutual clients.” GILCHRIST CONNELL CELEBRATES FIFTH ANNIVERSARY WITH TWO PROMOTIONS Gilchrist Connell has announced the promotion of Steve Vrtkovski to special counsel in Sydney, becoming the second special counsel in the firm’s Sydney office. He was formerly a senior associate and has worked in the insurance and corporate risk groups of large international and boutique insurance law firms. The firm also announced that Adelaide-based Anita Biswas would be promoted to senior associate. “Steve and Anita’s new appointments are a great way to celebrate the five years since Gilchrist Connell’s opening. It’s also an opportunity to reflect on the firm’s expansion in that time from 4 to 10 partners, our third office opening in Perth and the continued growth of our client base to include most Australian general insurers and a number of large corporates,” said Sydney principal Alex Haslam.
NEW PARTNER FOR MARKS & CLERK Marks & Clerk Australia has appointed Virginia Beniac-Brooks as a new partner. She becomes the fourth partner in the firm’s Melbourne office, following the appointment of Matt Pini earlier this year. She specialises in biochemistry and both prosecution and litigation of patents and trade marks. Marks & Clerk Australia is part of the global firm of patent and trade mark attorneys, Marks & Clerk. The firm opened in Melbourne in 2011. “We are delighted that Virginia has joined our growing, high quality Australian team,” said Keith Hodkinson, chairman of Marks & Clerk International. “Her appointment, together with Matt Pini’s earlier this year, will provide us with critical mass for the future development of our Australian and New Zealand based business.” BAKER & MCKENZIE RECRUITS TWO NEW PARTNERS FROM MALLESONS Baker & McKenzie has appointed of Ellen Thomas and Sean Selleck from King & Wood Mallesons. Sydney-based Thomas specialises in general corporate, property and banking tax advice across a range of sectors including mining and financial services. She joins a tax team of more than 800 lawyers globally. Melbourne-based Selleck advises on employment issues and disputes and industrial strategies and disputes. He has a special interest in non-standard labour practices such as labour hire, outsourcing, casual employment and independent contractors. SPARKE HELMORE BOOSTS PERTH INSURANCE PRACTICE Sparke Helmore has welcomed Roger Sands as a partner in the Perth office. Sands was previously the insurance principal of Rockwell Olivier (formerly Talbot Olivier Lawyers). He has represented insurers and employers in the areas of statutory classes of insurance and liability for more than 25 years. “Roger is a very senior and highly respected insurance practitioner in the Western Australian market and we are thrilled that he has now decided to join Sparke Helmore,” said Jesse Webb, Sparke Helmore’s national managing partner. SQUIRE SANDERS MAKES ANOTHER SENIOR MINTERS HIRE Squire Sanders has announced the appointment of senior construction and projects lawyer Fabio Fior, who joins the firm’s project office in Darwin as Of Counsel. He was previously partner and head of the infrastructure group at the Canberra office of Minter Ellison. Fior has over 11 years of experience in construction, property and major projects matters on behalf of government and corporate clients. Squire Sanders launched in Australia in 2011, recruiting a swathe of partners from Minter Ellison in Perth. SPARKE HELMORE RECRUITS CONSULTANT FROM ASIC Sparke Helmore Lawyers has announced the appointment of Hillary Ray to the role of consultant in the banking & finance team in Sydney. Ray has more than 14 years’ experience in financial services regulation. At ASIC, she worked with the policy, compliance, deposit-takers, credit and insurers directorates.
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LEAGUE TABLES
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07 TOP M&A FIRMS - COMPLETED DEALS, YEAR TO DATE 2013
TOP M&A FIRMS - ANNOUNCED DEALS, YEAR TO DATE 2013
1
NO.
1
HERBERT SMITH FREEHILLS
14,329.87
DEALS: 39
NO.
VALUE ($MIL)
MARKET SHARE: 34.2
RANK LEGAL ADVISOR
VALUE ($MIL)
MKT. DEALS SHARE
HERBERT SMITH FREEHILLS
10,240.17
VALUE ($MIL)
DEALS: 30
MARKET SHARE: 32.0
RANK LEGAL ADVISOR
VALUE ($MIL)
MKT. SHARE
DEALS
2
Minter Ellison
10,877.36
26.0
28
2
Corrs Chambers Westgarth
9,495.66
29.6
17
3
Corrs Chambers Westgarth
7,578.84
18.1
15
3
Gilbert + Tobin
9,226.55
28.8
15
4
King & Wood Mallesons
7,153.59
17.1
35
4
King & Wood Mallesons
7,683.67
24.0
30
5
Allens
6,749.38
16.1
24
5
Minter Ellison
6,820.88
21.3
28
6
Gilbert + Tobin
6,294.80
15.0
14
6
Allens
4,318.32
13.5
25
7
Allen & Gledhill
4,035.86
9.6
4
7
Ashurst
2,698.12
8.4
15
8
Johnson Winter & Slattery
3,672.27
8.8
7
8
Paul, Weiss
2,280.19
7.1
1
9
Baker & McKenzie
3,615.03
8.6
21
9
Clayton Utz
2,037.98
6.4
20
10
Clayton Utz
2,555.66
6.1
23
10
Blake Cassels & Graydon
1,959.10
6.1
4
11
Ashurst
2,285.49
5.5
19
11
Skadden
1,831.47
5.7
4
12
Simpson Grierson
1,454.90
3.5
2
12
Linklaters
1,519.63
4.7
8
13
Skadden
1,057.35
2.5
2
13
Simpson Grierson
1,454.90
4.5
3
14
Thomsons Lawyers
907.17
2.2
2
14
Baker & McKenzie
1,384.65
4.3
15
15
Chapman Tripp
906.62
2.2
2
15
K&L Gates
1,167.38
3.6
6
16
Allen & Overy
819.57
2.0
8
16
Stikeman Elliott
1,099.80
3.4
5
17
Torys
644.90
1.5
1
17
Dorsey & Whitney LLP
1,078.75
3.4
1
18
Linklaters
564.28
1.3
6
17*
Gowling Lafleur Henderson LLP
1,078.75
3.4
1
19
Stikeman Elliott
350.74
0.8
2
17*
1,078.75
3.4
1
20
Clifford Chance
342.35
0.8
3
Lawson Lundell Lawson & McIntosh
21
Steinepreis Paganin
318.86
0.8
5
17*
Squire Sanders LLP
1,078.75
3.4
1
22
DLA Piper LLP
238.73
0.6
9
21
Thomsons Lawyers
907.17
2.8
2
23
Creel, Garcia-Cuellar y Muggenburg
228.64
0.5
1
22
Chapman Tripp
906.62
2.8
2
23
Allen & Overy
865.14
2.7
9
24
Goodwin Procter LLP
222.00
0.5
1
24
Torys
644.90
2.0
1
25
Mayer Brown LLP
215.00
0.5
1
25
Johnson Winter & Slattery
578.72
1.8
8
Subtotal with Legal Advisor
32,434.11
77.4
226
Subtotal with Legal Advisor
27,589.57
86.1
201
Subtotal without Legal Advisor
9,454.82
22.6
629
Subtotal without Legal Advisor
4,447.15
13.9
422
Industry Total
41,888.93
100.0
855
Industry Total
32,036.72
100.0
623
Based on Ranking Value inc. Net Debt of Target Source: Thomson Financial Date: 2013-07-30 08:27:59 EDT
Based on Ranking Value inc. Net Debt of Target Source: Thomson Financial Date: 2013-07-30 08:16:03 EDT
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18
ANALYSIS
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
STILL THE JUAN DOES HWL EBSWORTH REPRESENT THE NEW FACE OF THE AUSTRALIAN LEGAL SERVICES MARKET? ALB SPEAKS WITH LONG SERVING MANAGING PARTNER JUAN MARTINEZ ABOUT HWL’S AGGRESSIVE GROWTH STRATEGY AND HOW THE FIRM COULD BE SET TO PLAY A MORE DOMINANT ROLE IN THE LANDSCAPE. REPORT: RENU PRASAD.
ALB: Juan, it’s good to be speaking with you again. Can you tell us your plans for your new Perth office? JM: We’ll be going in fairly aggressively to build up the Perth office. There’s [currently] six partners. It wouldn’t surprise me if we doubled in size in 12 months. ALB: So it sounds like the hard work to build the firm will continue? JM: Yes, it’s a bit hard wired with me - I haven’t got an off button. ALB: How did the firm perform in FY2013? JM: We added A$11 million in revenue; in a tough market that’s pretty good. And that was off a base of A$140 million. I suspect that we’re one of the few firms that are showing sustained material growth. ALB: Is that organic growth or acquisition growth? JM: It’s a mixture; we’ve got multi-layer organic, lateral and [merger] growth. And we’ve exercised all three of them successfully over 15 years. ALB: Will the firm continue to acquire new practices? JM: We’re continually looking at underpinning quality with further and better quality all the time; that job is never really done. There are plenty of opportunities in the grand scheme of things. If you’ve got a good business model and you’re profitable and actually growing, you’re in a good position to be able to take advantage of those opportunities.
ALB: Can you tell us how the mergers work – when a new practice joins the firm, do you pay an acquisition price? JM: We don’t pay for people to come in. We pay for people to participate in the business by virtue of the benefits they get from the business. We don’t go out and buy businesses. ALB: So the newcomers get equity when they join? JM: They become profit sharers, yes. It’s a true partnership model in that sense. People come in and they participate and they get the benefits of a successful partnership. ALB: There are a lot of stories in the market about firms opening new offices which subsequently become a “drag” on profitability. Is it fair to say that every new office carries that kind of risk? JM: When you open an office from scratch, you’re carrying work in progress and there’s a lag between when you open a new office to when you actually start realising money, so clearly what you need are really good operators who will manage the business well and do the right things but also you need a strong balance sheet that can sustain that sort of investment. We don’t have any core debt so we can go into situations like that and invest in the long term future of this place without taking those short term positions. ALB: What about offices that don’t turn a profit, even when the WIP issue is taken into account? JM: If that were the case, I wouldn’t do it. You’ve got to pick people and business cases that actually work. Even though I look to be quite anxious about growth, I’m more anxious to get to the right strategic result. We haven’t got this anxiety about rushing in and doing something. Take Canberra for example - I’m on record as saying that we waited three years from the planning stage to implementing the Canberra office; the negotiations took a year to link up with the right people in Perth. I’m very patient. ALB: And how has the Canberra office been progressing? JM: That office has been going gangbusters. We’re anticipating now we’ve done all the groundwork and established ourselves in all the categories in the multi-use list and we’ve been very
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successful in gaining work, we expect that office to go through a secondary growth spurt. So you’ll probably hear a fair a bit coming out of there in the next 12 to 24 months too. ALB: You’ve taken an interest in the debate on innovative pricing models. What are your views? JM: Everyone has had a bit to say about this topic, and I’ve got to say pretty inconclusively. The more you read, the more ambiguous the subject is. We just take a very flexible approach. Again it’s common sense; we don’t have a cookie cutter. We look at what the client is trying to achieve and at what we are trying to achieve and we apply the flexibility and commerciality the situation demands and if it works, we do it and if it doesn’t, we don’t do it. It’s a very common sense approach. People seem to get bogged down in jargon and concepts instead of getting on with the job. It’s as though it’s mutually exclusive, as though if you talk about hourly rates you can’t talk about anything else. And if you talk about being innovative, it’s as though you’re either innovative or a troglodyte! That’s the sort of nature of the debate that goes on;
HWL EBSWORTH: HISTORY & BACKGROUND QUICK FACTS
Offices: Brisbane, Canberra, Melbourne, North West Sydney, Perth and Sydney Managing partner: Juan Martinez Staff: 770 Partners: 158 Other legal staff: 357 HWL stands for: Home Wilkinson Lowry, the firm’s original trading name in Melbourne before embarking on its merger programme.
MERGER HISTORY
July 2003: merges with Heaney Richardson & Nemes (Sydney) July 2005: merges with Michel Sillar (Sydney) April 2007: merges with Abbott Tout (Sydney, Brisbane, Canberra) February 2008: merges with Ebsworth & Ebsworth (Sydney) May 2011: opens Canberra office after recruiting six DLA Piper partners July 2013: merges with Downings Legal (Perth). Juan Martinez
HWL EBSWORTH AND 50 SHADES OF GREY ANALYSIS: RENU PRASAD HWL Ebsworth is one of those firms that seems to attract strong opinions. The firm’s rapid trajectory from a relatively low profile Melbourne partnership to a top 10 national firm in the space of a few years has left it open to the “growth at all costs” criticism. For rival firms which have prided themselves on cautious, incremental growth, HWL is seen as the anathema. But behind the ambitious headlines, there has always been another side to HWL Ebsworth. There are recurrent themes you’ll hear about if you speak with managing partner Juan Martinez for any length of time. Fiscal restraint. Maintaining a strong balance sheet.
Minimal or zero debt. Responsible management. All of which must paint a somewhat puzzling picture for rivals trying to reconcile the firm’s allegedly profligate growth with such qualities of restraint. It suggests that the firm’s reputation for rapacious and indiscriminate expansion loses in accuracy what it gains in simplicity. This is a similar point to that made by Martinez when he comments on the alternative fee structure debate. This is a narrative that has been painted in a strikingly simplistic manner, as though alternative arrangements and traditional billing methods are mutually exclusive.
As Martinez points out, a sensible outcome would incorporate elements of both. The narrative of polar opposites; of “old” versus “new” may be convenient for commentators, but it is not necessary. Which brings us back to HWL Ebsworth and another pair of alleged polar opposites: “rapid growth” and “discerning growth”. Does one implicitly exclude the other? Clearly the case argued by HWL Ebsworth is that they do not. Only time will tell if they are correct. Still, this is a firm that has been pursuing its strategy for nearly 10 years – considerably longer than some of the more celebrated mergers in the market. That’s not a bad sign at all.
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“THE FURPHY THAT YOU HAVE TO PAY THROUGH THE NOSE TO GET QUALITY….THAT FURPHY WILL DISSIPATE IN THE NEXT FEW YEARS.”
- Juan Martinez
a very narrow focus debate around very narrow concepts. The reality of life is that you’ve got to be sensible, commercial and flexible to the extent that your business model allows it to be. Some [firms] don’t have any choice either. If you don’t have a strong balance sheet, your options around flexibility will be limited. Your imperative is around trying to make some money. ALB: How do you see the current market for legal services? JM: I think a lot of our competitors hope this is just a nasty cycle we’re going through but I can tell you it’s not. This is not a cycle, this is a structural change. Everything we’re going through now, this is a change forever. People can sit in oversized offices and pretend it’s a cycle and we’ll be back to the good old days in a few months but that isn’t going to happen. I really think the market place, in the next one to two years will see an absolute crystallisation of the dynamics at play now. The typical big firms will become much smaller, firms like ours will become much bigger; they’ll be whole different offerings; it will become very clear for clients what the offerings are and how people sit in the market. And that’s a good thing. ALB: And what will be HWL’s position in all this? JM: We’ll be one of the biggest independent law firms in Australia. We’ll have a compelling value proposition with a compelling footprint. There’s this line that’s pushed out that the only way to get quality [advice] is by paying a lot of money for it. That’s not true. The furphy that you have to pay through the nose to get quality….that furphy will dissipate in the next few years. Ten years ago we started to expand out of Melbourne and some people may have been sceptical about what we were doing and how long we’d last. I think frankly people in the market place are astounded as to the position we’re in and how we’ve done it.
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TMT? CLOSE, BUT NOT QUITE BIRD & BIRD HAS ITS SIGHTS SET ON A FULL MERGER WITH LOCAL FIRM TRUMAN HOYLE….BUT THE FIRMS ARE NOT SO KEEN ON THE TMT LABEL. CHINA CHAIRMAN JUSTIN WALKEY AND TRUMAN HOYLE MANAGING PARTNER SHANE BARBER EXPLAIN WHY. REPORT: RENU PRASAD. ALB: So Bird & Bird has entered an alliance with Truman Hoyle with the intention of pursuing a full merger at a later point. What’s the latest news on the full merger – will it be proceeding? JW: That’s certainly our ambition and our intention. We’re working through this phase at the moment. [The association agreement] is a very good way to understand the market properly, really getting to know our partners and not making any mistakes. We’ve done that in a couple of other jurisdictions recently. ALB: How will you structure the merger? Will there be a single profit pool? JW: Yes. We are one single firm. We do not have a Swiss Verein structure or a franchise type structure with separate profit pools or first class partners and second class partners. We are all doing business together. SB: There’s a real sense of “one firm” in the business and people do go out of their way even where there may not be anything directly [beneficial to them]….I’ve been in a number of international firms and that’s the healthiest [way to structure] relationships. ALB: What is the firm’s policy on salaried partners? JW: We have them as an exception in a limited number of countries. This is really a bit of a dilemma in applying a strict rule of equity partnership – we would like to see our lawyers progress through to being full partners and not something else. But in some jurisdictions where you’re trying to build or grow we have particular reasons for needing to [have salaried partners] for recruitment; it’s an opportunity to give someone a chance to prove themselves. But the objective is they progress through to full equity. ALB: What about Australia – will you have salaried partners here? JW: I don’t know but I would think if we have any salaried partners it would be exceptional. Our systems are pretty neatly aligned, as is our practice focus. There’s not a huge amount of change envisioned upon merger.
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ALB: And how about remuneration structure – do you use a lockstep? JW: It’s partly that and partly merit based. You could call it modified lockstep, but that’s people being a bit cynical. Every single partner takes an equal share at a base level and then there’s a merit allocation. ALB: The phrase “new economy” has been used to describe your practice focus. Can you tell us a bit about what this means? SB: We use the phrase quite broadly. It’s not just technology; it expands into all those things that are shaping the way we live tomorrow: leisure, luxury goods, advertising, converging industries. We serve clients’ transactional needs, plus trading and commerce needs plus regulatory needs. So we’re not susceptible to the big upswings and downswings you see in other firms. ALB: And what is the relevance of being a global firm in that context? JW: Being a global firm we have an international reach; we service our clients on a multi-jurisdictional basis. So if I take this Australian piece of work we see that very much as part of our Asia-Pacific service offering. A lot of the work we do is multijurisdictional, it’s not purely national. And even in rarefied areas like patent litigation you are looking at international strategies over patent litigation. It’s only an international firm that is able to do this. SB: We’re looking at clients participating in markets which are highly regulated not just nationally but are regulated and coordinated on an international basis. One of the things we are excited about is being able to access the deep knowledge resources inside a firm like Bird & Bird; to get a sense of regulatory change; what’s happening next. It really assists our clients in not only future work at a global level but also when it comes to developing Australian policy we’re able to access all the thinking that happens in other jurisdictions. For example, a focus of the current government is how you regulate converging industries – having access to a number of jurisdictions who are focussed on the same problem or have dealt with the problem is a fantastic thing for us in serving our clients. ALB: Judging by the use of the phrase “new economy”, it seems the firm does
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“IT’S NOT JUST TECHNOLOGY; IT EXPANDS INTO ALL THOSE THINGS THAT ARE SHAPING THE WAY WE LIVE TOMORROW: LEISURE, LUXURY GOODS, ADVERTISING, CONVERGING INDUSTRIES. WE SERVE CLIENTS’ TRANSACTIONAL NEEDS, PLUS TRADING AND COMMERCE NEEDS PLUS REGULATORY NEEDS. SO WE’RE NOT SUSCEPTIBLE TO THE BIG UPSWINGS AND DOWNSWINGS YOU SEE IN OTHER FIRMS.” - Shane Barber
not wish to be known solely as a TMT practice – is that correct? JW: We are not a TMT firm. We don’t describe it as TMT in Europe anymore. It’s TMT in Asia and it’s TMT here still but it’s not TMT in Europe, it’s more finely sliced. So I’d say we’re an industry focussed international law firm. ALB: But there’s still a technology focus to the firm? JW: If you look at the heart of the practice and the common things, we have an excellent IP practice and everything that has [evolved] has a technical connection. So IP and technology would be the absolute engine drivers. But to put a label on it as being an IP or a technology…I’d prefer [to be known as] an industry focussed international law firm and that’s our main diffentiator, with deep knowledge in these industry sectors. We’ve been doing it for a long time. I suppose you might think we’re full service like everyone else. We’re not – we’re very, very focussed on making sure we stay true to our roots. We’re not going to suddenly decide we’re going to give the Magic Circle a run, for example. ALB: I must admit I’m finding it a little tricky to grasp - so for example, you wouldn’t do a capital raising for a client? JW: We do some of that stuff, as appropriate, for our clients at the right level. Our corporate department is nearly as big as our commercial department and doing a lot of work in our selected sectors. But we’re not going to be doing tier one capital markets work. ALB: What about a complicated employment dispute, would you advise on that? JW: We’d do that. We’ve got a very well developed employment group. It’s really the high end corporate finance work that we would not do. The absolute heart of the firm is the IP/TMT focus; there’s a whole bunch of other things we do. ALB: How do you expect to approach the matter of pricing? JW: We haven’t gone into that yet – we genuinely haven’t had the conversation. We don’t apply a universal rate. Our model is to try and manage offices on a profitable basis but we have some flexibility [in how that is achieved].
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AMPING IT UP THE AMP LEGAL & GOVERNANCE TEAM DISCUSS THE CHALLENGES OF THE FAST-PACED LIFE IN-HOUSE AT AMP WITH ALB’S GINA DOMBOSCH.
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Left to right – Marilena Cozzolino, David Cullen, Michelle Smyth, Brian Salter and Prue Milne
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M
eet the 2013 ALB Australian In-House Team of the Year – the AMP Legal & Governance team. The members of this team are Executive Counsel Marilena Cozzolino, David Cullen, Prue Milne and Michelle Smyth led by General Counsel Brian Salter. The Executive Counsel team have a combined 53 years’ experience working with AMP; each have held multiple roles within the organisation and have overseen a myriad of changes within their business. In this in-depth interview, they talk about life at AMP and the issues inherent in working for Australian’s biggest financial services provider.
MARILENA COZZOLINO
Marilena Cozzolino joined AMP Financial Services in 1996 as a law graduate in the Retail Financial Services team. In her 17 years with AMP, she has held various legal counsel roles across the organisation. In June 2011, she was appointed Executive Legal Counsel of AMP Financial Services, heading up a team of 25 lawyers across the newly merged AMP and AXA Companies and providing legal support to all AFS business lines. ALB: Marilena, you have been with AMP for over 17 years – you must have seen some enormous changes in the business? MC: While it sounds like a long time, I have seen AMP undergo enormous periods of change from de-mutualisation to a publicly listed company, demerger from its UK businesses and merger with AXA APH. During my time at AMP, I have had about eight different roles and like Michelle Smyth have spent some of that time – approximately four years – working part time while in a leadership/ management role. ALB: What does your current Executive Counsel role involve? MC: My Financial Services legal team look after the Financial Services Business Unit which is the largest unit within AMP. There’s approximately 25 lawyers and approximately 15 operations and administration staff. We also have dispute
“YOU CAN DEAL WITH REGULATORY CHANGE IN A NUMBER OF WAYS BUT WHAT WE HAVE TRIED TO DO IS BE QUITE STRATEGIC AND INNOVATIVE. YOU CAN SIT BACK AND COMPLY OR YOU CAN BE STRATEGIC ABOUT THE WAY YOU APPROACH THINGS AND THE SOLUTIONS THAT YOU FIND. WE HAVE VERY MUCH DRIVEN THE STRATEGY ABOUT HOW WE ARE GOING TO APPROACH THE REPORTS.” Marilena Cozzolino, Executive Legal Counsel
resolution lawyers that support our business and other lawyers as well. In the financial services space of superannuation, life and banking, this team is much larger than any of the other private law firms – we have a lot of expertise in-house. The Financial Services Business Unit looks after two main streams of work: one is around all of our financial retail products spanning wealth protection, wealth management, superannuation, retirement and the other is our financial advice. We have a number of advice licensees in the business with different business models and our team advises and supports those businesses which provide financial advice to our customers in the market. ALB: What type of legal matters are keeping you busy? MC: On the product side, the issues are always about the product offers. Designing and implementing the communications and disclosures and coming up with innovative ways to get that best product out to market and make it easy
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for us to do business. But as we are a very heavily regulated industry, a lot of our time is [spent on] the regulatory compliance side of the business. ALB: The FOFA implementation on July 1 must be a major part of that? MC: Yes, especially with that. We have to ensure all the licensees in our group comply with their regulations as well as ensuring our two superannuation trustees in the group discharge their obligations properly. As we have the largest distribution footprint in the market, we are always onboarding new planners and new practices which involve a lot of agreements. We also have significant interaction with regulators and are always trying to find innovative ways to navigate through the regulations. The new FOFA regulations have pretty much dominated our workload for the last 18 months as well as the capital regulatory requirements on our life companies. All these hitting at once! ALB: Would you say this is the biggest challenge you’ve faced? MC: Definitely. What has been fascinating and what has set us apart is we have been thought leaders and innovators pushing and lobbying for changes which are going to be better for the end customer. Politicians are very short sighted. We know our industry very well including how it is going to be implemented and the long term effects. The passion in the legal and business team working together have really driven positive change but the magnitude of what we have had to deal with has been unprecedented. ALB: I understand you have principally consulted with KWM and Minters regarding the FOFA matters and onslaught of regulatory change you have faced this year? MC: You can deal with regulatory change in a number of ways but what we have tried to do is be quite strategic and innovative. You can sit back and comply or you can be strategic about the way you approach things and the solutions that you find. We have very much driven the strategy about how we are going to approach the reports. The law firms are really there to be another resource
“AMP IS SO LARGE IN THE DOMESTIC MARKET AND AMP CAPITAL IS NOW FORAYING OFF INTO OTHER PENSION MARKETS ESPECIALLY JAPAN, CHINA AND INDIA WHERE THERE ARE LARGE UNSOPHISTICATED PENSION MARKETS. ” Prue Milne, Executive Counsel, AMP Capital Investors
and play a support role but we have taken the lead as we have built and grown that expertise in-house. But we also have a magnitude of agreements to review so we have gone externally for that as well. ALB: What types of work or issues do you see affecting each of your teams in the next 12 months? MC: I think there will still be a large focus on the implementation of regulatory change and importantly the impacts of the regulatory change on the structure of our industry and our business. AMP will also be focused on ensuring we stay ahead of the regulatory curve in the changing landscape.
PRUE MILNE
Prue Milne joined AMP in 1998 and previously served as board executive and company Executive Legal Counsel, Group Offices providing advice to senior executives in AMP’s corporate offices in Sydney. In July, 2005 Prue became Executive Counsel at AMP
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“WHAT THE EXTERNAL FIRMS HAVE THAT WE DON’T IS WE ONLY SEE AMP’S TRANSACTIONS AND THEY SEE TRANSACTIONS FROM A WHOLE RANGE OF CLIENTS ACROSS VARIOUS INDUSTRIES SO THEY BRING A LOT OF VALUE THERE.”
ALB: Could you describe the type of legal work your team is engaged in on behalf of AMP Capital Investors? PM: The legal work is incredibly diverse and I think most people enjoy our team because of the diversity of geography [and] work type. The bread and butter work is split between transactional work (M&A, divestments, joint venture investments) mixed with product disclosure for retail statements, marketing materials and presentations. Also, because we are a very big investor in the Australian stock market, we participate in pretty much every class action. In addition, you can also handle everything from a slip and fall or crashed car in a shopping center to building disputes so the work type is very diverse.
David Cullen
Capital Investors which is her current role within the business. ALB: Tells us about what your Executive Counsel role entails. PM: I am Executive Legal Counsel of AMP Capital Investors which is the investment management business within the AMP group. It invests about $121 billion at the moment and a lot of that money comes from Marilena’s business so there is a natural synergy between our two teams. The assets that we invest the money across are: equities (both Australian and global) fixed interest (both Australian and global), property (mainly Australia and New Zealand) and infrastructure (which is really a global asset class) and we have a small private equity business as well. ALB: Where is your team located and how large is it? PM: AMP Capital is the only business (other than NZ) that operates across the globe so we have offices in London, Bejing, NY, Chicago, Hong Kong, Dehli, Luxembourg, Wellington – all are small offices in most places other than NZ. Our team of 10 lawyers is responsible for legal risk management across the globe. The offshore lawyers report to the various COOs of the various businesses. We have great secondment arrangements with our external lawyers – I am almost in the secondment business at the moment! Many lawyers within my team are covering business roles or on parental leave so we get secondees from our panel firms or from ASIC to fill those roles.
ALB: Can you tell us about AMP’s foray into the international market with respect to AMP Capital Investors and the new international panel which handles the offshore work? PM: We are the only business that has put operations offshore. But we are a small player in these very large markets and in a sense AMP Capital’s strategy is hedging its strategy. AMP is so large in the domestic market and AMP Capital is now foraying off into other pension markets especially Japan, China and India where there are large unsophisticated pension markets. Given we are the leader in the pension area and we have the sophisticated superannuation business, we can teach these countries how to do that while strategically exploring those jurisdictions. ALB: What has been keeping you busy so far this year? PM: Some team members have spent a lot of their time working on matters associated with our new joint venture partner, distributor and shareholder, MUTB in Japan. From a legal perspective, we have been learning how MUTB likes its legal documents to be negotiated and also getting used to translation of emails and comments. One AMP Capital lawyer spent some time in Tokyo earlier this year meeting the MUTB legal and commercial team to ensure a smooth service model and strong two way communication. We do not have a lawyer on the ground in Tokyo or Hong Kong. ALB: I understand your team has a very substantial legal spend and works with a number of panel law firms. What would be some of the things your panel could do to improve their legal services? PM: The difficulty for internal lawyers is you get a lot of information from law firms. Something comes out and I might receive 20 emails from 20 law firms [summarising] the case. What I prefer is that they draw something out that is relevant to my business and how it applies to us – not a case summary. So more personalisation of knowledge management as there is always a lot of data. Fee arrangements are always an issue. We’ve done a lot of work dividing the commercial and general. The commercial panel is made up of first tier firms working on our larger transactions and on the general panel, we use smaller specialist low cost firms who can compete better for the low value work. We are still experimenting with this as it’s in its first year but all of the firms are on a two year cycle.
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DAVID CULLEN
David Cullen joined AMP in 2004 as Senior Legal Counsel in AMP Capital. For the past three years, he has led the Group Legal & Governance team and recently he began his new role as Head of Secretariat and Executive Counsel M&A which includes acting as Company Secretary for AMP Limited. ALB: What does your new Executive Counsel role entail? DC: My role is Head of Secretariat and Executive Legal Counsel M&A, leading two different teams based in Sydney. The Secretariat team of 14 manages the secretariat and corporate governance needs of all parts of our group. Because we operate within a non-operating holding company structure, we have a number of key operating subsidiaries, each with a majority of non-executives on their board. We strive to ensure that the corporate governance needs of these boards are met to the highest possible standard. ALB: What other work has kept you busy this year? DC: The AXA APH merger completed in March 2011, and was very demanding on all parts of the Legal & Governance teams, particularly M&A Legal, for the 18 months prior to that. The most recent major transaction we have completed was the alliance with MUTB (Mitsubishi UFJ Trust Bank) of Japan, which entered into a strategic capital and business alliance with AMP Capital. This completed in early 2012 and was a great example of the team working on a crossborder transaction. The intensity of the regulatory change has been much greater and one of the challenges going forward is… a balance where we can get our functions and business to move beyond this regulatory change phase and to business as usual – a different type of business in a different regulatory climate. I think the governance needs of the board are continuous – large transactions, when they are on, are quite all consuming [but] this current year has not been particularly fruitful for M&A. There’s always constant change in the areas of disclosure, dividend rules and employee share plan rules.
“THE INTENSITY OF THE REGULATORY CHANGE HAS BEEN MUCH GREATER AND ONE OF THE CHALLENGES GOING FORWARD IS….A BALANCE WHERE WE CAN GET OUR FUNCTIONS AND BUSINESS TO MOVE BEYOND THIS REGULATORY CHANGE PHASE AND TO BUSINESS AS USUAL – A DIFFERENT TYPE OF BUSINESS IN A DIFFERENT REGULATORY CLIMATE.” David Cullen, Head of Secretariat and Executive Counsel M&A
ALB: What impact, if any, have the global and now Australian domestic economy concerns had on your legal work? DC: From a transactional legal point-of-view, there are probably two main impacts. The first is that deal certainty is of greater importance than ever before. This means achieving shorter transaction times - ie finding ways to get deals done quicker and greater certainty over commitments and terms –effectively, reducing “deal risk”. Secondly, it is, not surprisingly, about greater value for money – finding more efficient ways to execute on transactions – whether by lower (or more certain) external costs or better management of the mix between internal and external legal. ALB: What types of work are you anticipating for the next 12 months? DC: In my new role in Secretariat and corporate governance, I think regulatory change will definitely throw up many issues to be dealt with, particularly for our APRA-regulated entities.
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ALB: How much work do you do with the panel law firms - for instance, on the M&A side? DC: We wouldn’t do a large M&A transaction without an external law firm but we work in partnership with them as the model has evolved over the last 10 years [to the point] where the internal lawyers lead. It would be very rare, for example, for an external firm on our panel to speak directly to the board. It is more likely they will speak with me or one of my colleagues as we know what the board is looking for. What the external firms have that we don’t is we only see AMP’s transactions and they see transactions from a whole range of clients across various industries so they bring a lot of value there. But they do not have the deep knowledge of our risk tolerances, how we like things to be done and what our board expects. As for our panel, we have quite a bit of stability. Firms such as King & Wood Mallesons which have done our legal work for over 160 years represent our longstanding relationships. Other firms such as Minter Ellison, Baker & McKenzie, Clayton Utz, Norton Rose, and Gadens have been also been on our panel for a long period. Over time, the relationships with our panel firms have strengthened and we provide continuous feedback quarterly to ensure their standards meet ours.
MICHELLE SMYTH
Michelle Smyth has been with AMP since 2001 and has worked with the AMP Financial Services legal team. Michelle is a specialist in commercial contracts, information technology, outsourcing, intellectual property law and brand protection. Recently, she began her new role within AMP as Executive Legal Counsel, Group Legal and Governance. ALB: What does your new Executive Counsel role involve and what areas does your legal team look after within the business? MS: The Group Legal & Governance team is a mixed team of lawyers and non lawyers which is part of the appeal to me. The team is 24 in total. The lawyers support group
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“WE HAVE A HIGH PERFORMING TEAM WITH A HIGH LEVEL OF SKILL NOW, SO WE ARE ABLE TO OFFER OUR CLIENTS GREATER VALUE: BOTH IN THE FACT THAT WE DON’T HAVE TO RELY ON THE EXTERNAL LAWYERS TO DO SO MUCH OF THE WORK, THEREBY SAVING COSTS, BUT ALSO ARE ABLE TO WORK MUCH MORE CLOSELY WITH OUR BUSINESS CLIENTS TO DELIVER RELEVANT, COMMERCIAL ADVICE.” Michelle Smyth, Executive Legal Counsel, Group Legal and Governance
functions; our treasury lawyer looks after the treasury team in AMP; our employee relations lawyer manages all aspects of employee relations across the whole enterprise; our commercial contracts and intellectual property team support our procurement team across the business as well as look after our brand protection both IT and IP; and then our non legal insurance team of 3 manage all of our insurances for the whole enterprise. We also have a trustee services team which supports the superannuation boards and manages the internal stakeholders. The trustee outsources all its function to the life company which manages their business for them. ALB: Your team seems to be the most diverse across the business – you must handle a wide range of legal matters within the team? MS: In Group Legal and Governance, we deal with issues across a number of group functions. We also have teams
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of lawyers and non-lawyers. In employee relations, we deal with a range of matters relating to AMP employees: this includes things such as discrimination and adverse action claims, investigations, employee transfers following M&A activity, as well as advising on policy and processes. Our Treasury lawyer works on matters such as securitisation for the AMP Bank and debt facilities for the group, working closely with our treasury team. Our team is also responsible for the management of intellectual property at AMP, including trademarks, and we act for AMP in all its procurement activity on everything from the stationery contract to the legal panel to our technology outsourcing. The Group Insurance team is responsible for the management of the AMP group’s insurance policies and claims, both on the professional risk side as well as the property side. Finally, the Trustee Services team manage escalated claims, provide governance support to AMP’s superannuation trustee board as well as manage the business functions which provide services to those trustees. ALB: What have been some of the major challenges and opportunities for 2013 or the last year? MS: On the IT side of things, AMP is undertaking some very major outsourcing initiatives and those things have taken up a lot of our time. Picking up on what David discussed regarding external law firms, we have managed those projects internally but we’ve used the external law firms to review our contract and create a template for us. What we get from them is they bring all the expertise from all the other deals they have done which enables AMP to be on the cutting edge of an IT outsourcing arrangement. We mostly use KWM for IT work as we find they get the best work and can bring that expertise. There’s also been a lot of change recently to the privacy laws, so we need to be mindful that our contracts protect us as we access offshore data or send our own data offshore. In the treasury space, there have been significant changes in the capital
SPECIAL PROFILE
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requirements. We are constantly assessing the optimum mix of funding for the business, whether that be bank debt, debt securities or securitization. On our insurance side, the big issue has been ensuring proper insurance is maintained on appropriate terms for the large portfolio of commercial and retail shopping centre assets that we manage. Natural disasters over the last few years have made this more challenging and caused us to think more innovatively about sourcing cover, and how we achieve the best cover for the best price. For our Trustee Services team, we have been dealing with stronger Super changes so that has been a key focus for us this year. Also, when David’s team has an M&A transaction, we will often work on the transitional arrangements. Our team was heavily involved in the AXA integration program. We work a lot with the other Executive Counsel and their teams so we are a Center of Excellence supporting the business across the board. ALB: What impact, if any, has the global and now Australian domestic economy concerns had on your legal work? MS: I agree with David’s comment regarding the shorter transaction times and getting deals done quicker, as this is also relevant for the commercial contract lawyers in Group Legal and Governance. Also, we have a high performing team with a high level of skill now, so we are able to offer our clients greater value: both in the fact that we don’t have to rely on the external lawyers to do so much of the work, thereby saving costs, but also are able to work much more closely with our business clients to deliver relevant, commercial advice. In Legal and Governance, we are all encouraged to prioritise matters and focus on key strategic initiatives. ALB: What types of work or issues do you see affecting your team in the next 12 months? MS: We will be busy on a number of projects including the Trustee Services team implementing the operational processes arising from the Stronger Super changes. We also have quite a few projects in our Treasury team. Employee relations will be working closely with the business on a number of initiatives, in relation to AMP’s current Workplace Health and Safety systems and processes. ALB: You have been with AMP a very long time as well – what has kept you at the organization? MS: I have been with AMP since 2001 when my now 14 year old son was about to turn 2! AMP has a wonderful culture of diversity and I think is really supportive in the effort to achieve the balance of work and family. I was very fortunate to be able to work part time up until my appointment as Executive Legal Counsel, including when I was given a leadership role within Group Legal and Governance about 4 years ago. I am proud of what I have achieved at AMP as a part-time working mother, and I am grateful for the support I have been shown by the organisation, my leaders and my clients during the past 12 years.
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UNIVERSITY OF QUEENSLAND
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
FINDING COMMON GROUND
IN PRIVATE LAW ADVISING CLIENTS ABOUT THEIR RIGHTS AND OBLIGATIONS IN RELATION TO THEIR EVERYDAY LIVES IS THE BUSINESS OF EVERY LAWYER. FOR THOSE WORKING IN THE AREA OF PRIVATE LAW, THE AMBIGUITY, COMPLEXITY AND THE SHEER VOLUME OF LAW POSES CONSIDERABLE CHALLENGES IN GIVING THE RIGHT ADVICE. A NEW RESEARCH CENTRE AT THE UNIVERSITY OF QUEENSLAND LAW SCHOOL AIMS TO IMPROVE THE INTELLIGIBILITY AND COHERENCE OF THE PRIVATE LAW.
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Professor Ross Grantham
Dr Paul O’Shea, UQ (Law)
Karen Fairweather, UQ (Law)
eing the product of almost 800 years of development by courts, legislators and jurists, the law of contract, tort, equity and property has evolved in a rather haphazard fashion with numerous wrong turns and dead ends along the way. Director of the new Australian Centre for Private Law (ACPL), Professor Ross Grantham, says the upshot is a body of law so complex that it’s daunting even to the experts, and that the resulting uncertainty in the law could be costing Australian consumers millions of dollars a year. “Where there is complexity there is also greater uncertainty. When you are unable to know with certainty what the law is or when you are unable to reliably predict what a court might say the law is in a particular dispute, then it becomes difficult to plan or allocate resources. Take for example, the law of negligence. The notoriously uncertain scope of liability for negligence makes it almost impossible for a lawyer to advise clients of their potential liabilities. Often the only practical solution, as demonstrated by the insurance industry, is to tell the client to charge customers higher fees to cover the event of a worst case scenario.” One of the major issues in private law is a struggle to apply laws made hundreds of years ago to the very different situations thrown up by modern society. Professor Grantham says the treatment of intangible property is a particularly thorny topic
which creates numerous grey areas for lawyers advising knowledge industry clients. “Our concepts of property and ownership were developed at a time when most valuable types of property were physical things – land, gold, cattle, etc. Understanding what ‘ownership’ means in an age where our most valuable assets are knowledge and knowhow is a major issue for the law of the 21st century and it is one of the key areas the Centre will seek to address. Likewise, society has become more connected through the internet but the law still isn’t clear on things like the protection of consumers buying goods and services direct from overseas suppliers, or on the extent of an individual’s right to privacy.” “Our fundamental mission is to promote a systematic exploration, redevelopment and restatement of the private law in Australia with the ultimate aim of better adapting it to the social and economic needs of Australia in the 21st century. If Australia is to prosper in the coming decades it is essential to have an effective and efficient framework that supports the most basic aspects of our lives, and addresses the issues of today and the future.” The Centre’s aim is unashamedly ambitious and will take many years to complete, if indeed it can ever be regarded as complete. However, Professor Grantham is confident that the UQ Law School is well positioned to undertake the task. “UQ is already a leader in private law research in the Asia-Pacific region and is unique in Australia in having the depth and breadth of staff expertise across a wide range of private law fields. The establishment of the Centre will enable UQ to capitalise on these strengths to take this research to the next level.” UQ Law’s academic line-up covers the entire private law spectrum. Professor Grantham says this combined expertise will enable the ACPL to adopt a ‘big picture’ approach to private law issues. “In the past we’ve all tended to look at the parts of private law in isolation, and traditionally law schools have taught the law of contract, tort, property and trusts as separate courses with little or no attempt to explore the interactions, inconsistencies and gaps,” he says.
UNIVERSITY OF QUEENSLAND
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
Links with private law academics from the universities of Melbourne, Cambridge, Oxford and Toronto, among others, will enable the Centre to extend its global reach and provide research input and ideas to support reforms within the common law world. The Centre will also work with academics from other fields, such as economics, to provide the tools to measure the efficiency and effects of the potential improvement options identified by ACPL research. In an era when universities are competing for industry funding and research output is under ever-increasing public scrutiny, Professor Grantham hopes that the ACPL’s successes will dispel the notion of disconnect between academia and the profession. “The only way to effectively address complexity and uncertainty is by taking a step back from the day-to-day business to look at the big picture and that’s what academic researchers are best placed to do. And it is for this reason that over the last 20 years there has been a much greater recognition by the judiciary and senior practitioners of the importance of academics in addressing issues and reformulating the law as a whole.” Professor Grantham says the Centre will be the bridge between theory and practice so that each will continue to inform the other through reports, publications and symposia to encourage debate on a range of issues. The first of these – the Consumer Credit and the Law Symposium - took place in July. Using insight from the UK and Australia the event included debate on the creation of an efficient framework for consumer regulation, and the alignment of legislation to cover international transactions beyond national jurisdiction. Centre fellow, Dr Paul O’Shea’s study on consumer credit was a principal basis for the Commonwealth Treasury’s proposed amendments to pre-contractual disclosure requirements under the National Consumer Protection Act 2009, released in a
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UQ Consumer Credit and the Law Conference: Left to right – Professor Mel Kenny (Leicester De Montfort Law School, UK); Professor Nick Gaskell (UQ Law), Professor Gail Pearson (University of Sydney Law School), Professor James Devenney (University of Exeter, UK)
discussion paper in April. It was also used to support new consumer credit protection legislation passed by the Senate in the National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011. The UQ Law School will hold an official launch event to raise awareness of the Centre among legal practitioners and nonlaw academics in September. A global colloquium will follow in mid-2014 when it is hoped that leaders in private law theory and practice from Australia and overseas can contribute to identifying the key issues for private law over the next five years to enable the Centre to set a clear and globally informed national agenda. With private law specialists from all over the world still scratching their heads, Professor Grantham is confident that Australia can reap real economic benefits if it can set the standard for the common law world. “There is no reason why Australia cannot lead the common law world in these areas. However, in the Asian Century if Australia is to prosper in its relationship with Asia then it needs to put its own house in order first. A coherent body of private law will position Australia as the place to transact legal business bringing new opportunities for the legal profession and for international trade.”
RECENT APPOINTMENTS AT THE UNIVERSITY OF QUEENSLAND Professor
Sarah Derrington – Head of School and Dean of Law: Professor Derrington is the University of Queensland’s Dean of Law and a practicing barrister specialising in maritime law.
Dr Justine Bell: Dr Bell is a solicitor of the Supreme Court of Queensland and a teacher and researcher in environmental, insurance and property law.
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2013 EMPLOYER OF CHOICE AWARDS
THE JUDGES' VERDICT IT’S A FRESH NEW FORMAT AND APPROACH FOR THE ALB EMPLOYER OF CHOICE AWARDS IN 2013. OUR EXPERT PANEL REVEALS WHICH FIRMS THEY BELIEVE ARE LEADING THE WAY IN EMPLOYEE ENGAGEMENT.
2013
EMPLOYER OF
CHOICE
RESULTS:
GOLD EMPLOYER BLUE EMPLOYER OF CHOICE OF CHOICE (judges’ pick)
(commended)
Australian firm – revenues $200 million and over
Herbert Smith Freehills
-
Australian firm – revenues $50 million to $200 million
Gilbert + Tobin
-
Australian firm – revenues below $50 million
HopgoodGanim
Curwoods
New Zealand firm
Russell McVeagh
-
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2013 EMPLOYER OF CHOICE AWARDS
INTRODUCTION Lawyers will be aware of the increasing interest in psychological health and employee engagement in the legal profession. It’s an issue that rings alarm bells on a number of fronts, not least because of an emerging view among experts that it is only a matter of time before the matter ends up before the courts in one form or another. Ultimately, however, this issue should not be driven solely by the risk managers. This issue is about people and it is about operating a business in an ethical manner. There is, we believe, a genuine interest in the legal community about the steps that should be taken to improve employee engagement. Up till now, however, those steps have not always been clear. It is for this reason that the Tristan Jepson Memorial Foundation has developed a set of criteria which will act as guidelines for firms looking to improve employee engagement. The criteria will evolve over time as our understanding of global “best practice” in this area matures and each year the Employer of Choice survey will recognize the firms who have pursued this matter in a particularly commendable way.
This feature therefore recognizes the firms who have impressed the judges in the 2013 Employer of Choice survey. Over the following pages, we set out the initiatives which the judges found particularly meritorious. A couple of additional points should be made. First, I would like to join the judges in expressing our gratitude to the many firms who have taken time to participate in the EOC survey. This was not an easy process by any means and we acknowledge the time and effort that has gone into preparing the submissions. We hope that the firms which did not receive an EOC citation this year will continue to engage with the process and a supplementary statement of reasons is being prepared to provide firms with feedback on their submissions. Secondly, regular readers will be aware that the usual format of results in the EOC survey is to accord EOC status at the “Gold” and “Blue” levels, the “Gold” level being the higher level of achievement. These designations have been retained this year, but we have left it to the discretion of the judges as to the manner in which they are used. For this reason, not all of the possible citations in each category have been used. Over to the judges now for their statement of reasons. Congratulations to the 2013 EOC firms and our thanks to the judging panel and all participating firms for your hard work. Renu Prasad Australasia Editor - ALB Thomson Reuters
2013
EMPLOYER OF
CHOICE
JUDGING CRITERIA CRITERION 1: Commitment to employee satisfaction, quality employee engagement in firm decision making and responsiveness to employee feedback. Do employees participate in your firm’s decision making? How? Do you have any examples of situations where your firm has implemented changes in response to employee feedback? CRITERION 2: Effective board and/or senior executive approved policies and procedures which support physical and psychological health and wellbeing in the workplace. Do you review the effectiveness of these policies? How? How often? CRITERION 3: Effective education relating to psychological health and safety issues in the workplace and provision of confidential and professional avenues of support for employees experiencing psychological stress or distress. Who provides the services? Are they widely known within the firm? Are managers trained to recognised signs of psychological distress? Are staff? CRITERION 4: Effective processes and/or policies established to provide reward and recognition to employees outside of annual performance reviews. Is
there a consistent, ongoing system of feedback? CRITERION 5: Commitment to pro bono and CSR activities with a high level of staff participation. CRITERION 6: Commitment to monitoring employee hours at work and taking steps to ensure these hours are consistent with a healthy work/life balance; ensuring flexible work arrangements are available to employees. Do you keep track of the amount of time employees are spending in the office or hours they are required to work overall? CRITERION 7: Commitment to supporting employees (including support staff) throughout all stages of their career – for example, post promotion and returning from parental leave. CRITERION 8: Commitment to facilitating ongoing professional, commercial and legal training and development with strong input from employees. What employee engagement processes exist to assist employees in shaping their careers? How is the success of this policy measured?
ABOUT THE JUDGING PANEL MARIE JEPSON is the cofounder and director of the Tristan Jepson Memorial Foundation established in 2008 to decrease disability and distress in the legal profession. The Foundation has focused on raising awareness, education and working to remove the stigma of mental illness amongst law students and within the legal profession. In 2009 the Foundation initiated the BMI research ‘Courting the Bluesattitudes towards depression in Australian law students and legal practitioners’ which has been the catalyst for Resilience@law and changes in law schools and College of Law curricula as well as increased HR focus on mental health within the profession. In 2012, in addition to its ongoing aims, the Foundation’s focus has turned to the promotion of cultural change within the profession by developing workplace psychological health and safety guidelines.
GREG JOHNSON is the President of NSW Young Lawyers. Greg had earlier been elected as a member of the Young Lawyers Council for 2011/12, and prior to that was the Chair of the Public Law & Government Committee from 2009 to 2011, of which he was a founding member. Greg first became involved in Young Lawyers in 2005 as a member of the Employment and Industrial Relations Law Committee. Greg is a director of the Tristan Jepson Memorial Foundation. In 2011, Greg was involved in the creation and development of the NSW Young Lawyers Mental Health and Wellbeing website, which was launched in November 2011, and provides valuable information and resources to solicitors, barristers and law students. Greg is a barrister at 11th floor St James Hall Chambers, practising in commercial, administrative and employment law.
CINDY PENROSE is a Lecturer in Criminal Law, Torts Law and Introduction to Law at the University of Western Sydney and a Consultant with the Law Society of NSW’s Professional Development Department. Cindy previously worked as a Criminal Solicitor at Legal Aid NSW and Armstrong Legal. Prior to practice in criminal defence, Cindy was a Senior Policy Lawyer with the NSW Bar Association and involved in the creation and development of the BarCare program and website, which provides valuable assistance and resources to barristers and their families. Cindy has been a member of the Tristan Jepson Memorial Foundation since 2006 and holds a Masters of Laws degree from the University of Sydney.
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2013 EMPLOYER OF CHOICE AWARDS
AUSTRALIAN FIRM – REVENUES $200 MILLION AND OVER JUDGES’ CHOICE: HERBERT SMITH FREEHILLS
The panel commends Herbert Smith Freehills (HSF) on its application for the EOC award. The firm addressed most of the eight criteria. Highlights of the firm’s achievements include: The Values project connected with the Hebert Smith/ Freehills merger and the accompanied online survey, which received 90% staff participation to determine the new firm’s values focus; two yearly survey to determine employee engagement and policies to support psychological and physical health and wellbeing recognition of fatigue concerns and implementation of fatigue guidelines appointment of a Workplace Health & Safety Manager to review guidelines and policies and report to the Board development of a Suicide Intervention Program and regular mental health workshops training of the Human Resources team in Mental Health First Aid effective reward and recognition policies and processes, particularly public acknowledgement of firm and staff successes strong commitment to CSR and Pro Bono community practice Corrs Chambers Westgarth was also commended on its application for the EOC award The below comments highlight some of Corrs Chambers Westgarth’s achievements including: 24hr/7days per week confidential Employee Assistance Program available signatory to pro bono target and including non-legal staff in probono work flexible work practices
AUSTRALIAN FIRM – REVENUES $50 MILLION TO $200 MILLION JUDGES’ CHOICE: GILBERT + TOBIN
Gilbert + Tobin was named the judges’ choice in this category. The below comments highlight some of Gilbert + Tobin’s achievements including: offering an Employee Assistance Program to all members of staff and their families educating clients in relation to the flexible work practices of their staff excellent return to work success rate and programs developed to assist staff returning to work effective training programs for all staff a well-developed mentoring program total firm recognition of employees and peer reward scheme
DOUBLE ACT FOR FREEHILLS
Gold Employer of Choice firm Herbert Smith Freehills was also the winner of the JLT Employee Health & Wellbeing Award at the 2013 ALB Australasian Law Awards. The methodology for the ALB Awards, judged by a large panel of lawyers, is very different from that used by the three-person EOC judging panel, but it’s good to see some consistency in the results. BELOW: HSF Sydney managing partner Juliana Warner accepts the ALB Award from JLT’s Nick Harris.
2013
EMPLOYER OF
CHOICE
AUSTRALIAN FIRM – REVENUES BELOW $50 MILLION
JUDGES’ CHOICE: HOPGOODGANIM (GOLD); CURWOODS (BLUE) HopgoodGanim (gold) and Curwoods (blue) were the official judges’ choices in this category. However, the judges also commended Curwoods, Plexus, HopgoodGanim, Jackson McDonald and Cooper Grace Ward on their applications and expressed the view that each firm satisfied most of the 8 criteria. The below comments highlight some of HopgoodGanim’s achievements including: high employee retention measuring employee engagement through yearly surveys lawyers meet with practice partners on daily basis to ensure involvement and remove isolation effective flexible work practice policy taken up by all levels of staff including partners feedback email inbox for staff to compliment peers on work successes celebrate staff successes with effective internal communication encourage volunteer and pro bono work set realistic billable hours to work (particularly with a 50% reduction in billable hours for first two months after returning to work) committed to in-house CLE training program and run a support staff development program The below comments highlight some of Curwoods' achievements including: seeking requests from staff regarding training needs allocating 35 hours/year for pro bono work to each staff member flexible work practices
NEW ZEALAND FIRM
JUDGES’ CHOICE: RUSSELL MCVEAGH The judging panel was impressed with the submission from Russell McVeagh, with this firm being awarded the gold citation for the NZ category. The judging panel noted that Russell McVeagh exhibited a particularly strong approach to psychological health and addressed the criteria in a particularly comprehensive manner. The panel was also of the view that Russell McVeagh satisfied the criteria well, particularly in relation to the following: two yearly employee satisfaction surveys to assess the level of employee engagement, the employment of an on-site nurse to assist with physical health issues, the employment of external assistance, being that of "mental blocks" in regards to psychological issues and comprehensive mentoring and support programs. Additionally, the firm adopts a holistic approach to training of all staff in a variety of areas, and significantly including topics such as physiology of stress, health risk management and other wellness programs.
OVERALL COMMENTS FROM THE JUDGES The Judges were particularly encouraged by the genuine employee engagement at firms along with the development of effective mentoring schemes. More specific information is desired regarding the policies that firms have in place, demonstrated management commitment to policies and how this is implemented, along with evidence of how effective these policies are and whether or not they meet current needs or concerns and if not, how the policies can be improved. It would also be valuable for firms to demonstrate outcomes of ongoing improvement processes based on employee feedback in relevant areas. Finally, overall, the Judges are of the view that further comprehensive opportunities for mental health training exists for management and staff.
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WORKPLACE RELATIONS
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
WORKPLACE RELATIONS
S ’ A I L A G R E N T I C S G A U L A HAN KP C OR W
E ON E ET O B TICE ARK T C N VE PRA CES M L OF TEND O I PR ED V IVA N AS ARG L SER ARR TO CO H NS LY CH EGA THE AW O I L H E L T LA ITICA LIAN HAV TH S ES. E E R L RA SO AR AT AC RE PO UST S AL SEYF STIG L P A RK E MO THE WYERAYER INVE O W TH OF LA PL CH OF EAS NOW NAL BOS AR ND ATIO DOM – A ERN INA INT TH. G WI
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WORKPLACE RELATIONS
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
B
Andrew Farr
Graeme Smith
Helen McKenzie
Joydeep Hor
Stephen Woodbury
y all accounts, employment law has continued its busy pace in 2013. There continues to be record numbers of adverse action claims, high profile harassment cases and ongoing industrial disputes. Major changes in the law have also fueled this sector with the new bullying provisions slated for 2014 and continuous changes to the 457 visa migration standards. Add to this mix the uncertainty of the upcoming election, the general dampening domestic economic climate and you get a diverse and demanding space for practitioners. The workflow has even attracted international attention, with U.S. firm Seyfarth Shaw recently announcing the opening of a boutique employment law practice in Sydney and Melbourne. STEADY AS SHE GOES Firms have recorded good growth in their workplace practices in recent years, although there are mixed views as to how 2013 is tracking. “The last three years have been quite good for us” says Herbert Smith Freehills partner Graeme Smith. “While our national revenues have grown over 30 percent since 2007, things have come off the boil a bit in 2013 which was to be expected as a reflection of the economic climate we are in.” By contrast, Ashurst has been pleasantly surprised that both revenues and workflow have remained at their high levels from 2012. “We had a very strong FY12 in terms of the volume of work and revenue and the real challenge was whether FY13 would match that as we were coming off the back of a real peak,” says Stephen Woodbury, Employment Group Business Leader. Likewise, Joydeep Hor’s firm, People & Culture Strategies, saw growth in their practice this year with revenues up 15-20 percent higher than FY12. The experience at Lander & Rogers has been more moderate, with partner Andrew Farr noting it has been a very ‘steady as she goes’ sort of year. “In terms of partner numbers, employee numbers, in terms of hitting our targets – we have achieved all of our objectives for 2012-2013. It’s been consistent and steady,” Farr says. Notably, each of these firms have not fluctuated in their workgroup numbers and have reported they have recently hired or are
LAWYER HEADCOUNT – WORKPLACE RELATIONS, SELECTED PRACTICES Herbert Smith Freehills
104
Ashurst
81
Lander & Rogers
29
People Culture & Strategies
13
“I THINK THAT LAWYERS ARE GENERALLY GETTING BETTER AT ESTIMATING FEES AS THEY BECOME MORE PRACTISED AT THIS,” FARR SAYS. “THE MAIN BENEFIT WE HAVE OBSERVED HAS BEEN AN ENHANCED RELATIONSHIP WITH OUR CLIENTS, AS THEY SEE THAT THEIR LEGAL COSTS CONSISTENTLY MEET THEIR EXPECTATIONS.” Andrew Farr, Lander & Rogers
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WORKPLACE RELATIONS
continuing to hire (see below). As for 2014, the firms are very hopeful their growth and success will continue in this workspace and things will be bigger and better than 2013. IT’S A SHAW THING U.S. firm Seyfarth Shaw is scheduled to make its entry into the Australian market soon, with eight partners slated to join their new offices in Sydney and Melbourne. This outpost will be in stark contrast to their 800 strong full service practice in the U.S. which acts for twothirds of the Fortune 500. The firm’s intention is to focus solely on workplace relations – but the market is yet to be convinced that the newcomer will make its mark. “I don’t think they are going to have a huge impact on top tier legal market,” says Smith. “It’s not an easy market to break into especially with eight partners and a high cost model in a competitive marketplace. It’s also an odd time to be coming into a market where projects are being postponed, there is corporate cost cutting and restructuring, and a reduction in M&A. Plus, there are established players in the top, second and third tier who have very long term client relationships.” Ashurst’s deputy managing partner Helen McKenzie agrees that Australia is a very mature and saturated market and that Seyfarth Shaw may need to diversify its value proposition. “In the last three to four years, we have experienced two important things happening in the legal market: the sophisticated top end clients want global reach and the capability to serve their needs and secondly, they want increasing certainty and the confidence of full service access to the expertise across all areas of large corporate needs,” she says. “At the moment, Seyfarth Shaw will be a boutique employment firm with a small number of partners in Sydney and Melbourne competing at one segment of the market. Maybe over time that might lead to a broadening out of their legal offering.” Hor also agrees that the biggest challenge Seyfarth Shaw will face is whether to stay specialised or become a multi-disciplinary practice, particularly as clients of those new partners are used to more immediate support in other areas. Employment partner Farr came from a boutique law firm prior to joining Lander & Rogers and believes the market has trended away from boutique law firms as a major player in workplace relations. “It will be interesting to see whether there will be a
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
“IT’S NOT AN EASY MARKET TO BREAK INTO ESPECIALLY WITH EIGHT PARTNERS AND A HIGH COST MODEL IN A COMPETITIVE MARKETPLACE. IT’S ALSO AN ODD TIME TO BE COMING INTO A MARKET WHERE PROJECTS ARE BEING POSTPONED, THERE IS CORPORATE COST CUTTING AND RESTRUCTURING, AND A REDUCTION IN M&A. PLUS, THERE ARE ESTABLISHED PLAYERS IN THE TOP, SECOND AND THIRD TIER WHO HAVE VERY LONG TERM CLIENT RELATIONSHIPS.” Graeme Smith, HSF
re-emergence of that trend with the introduction of Seyfarth Shaw. Their success will be driven largely by price because there are many competitors who offer the same quality of legal advice. If [they] compete at the top end of price, the jury is out as to whether clients of those partners who have joined their firm will be motivated to move their work but if they are offering a lower price point than the traditional top end rates, this would certainly encourage clients to follow,” Farr says. Notably, Farr also observed that the globalization of law firms in Australia has resulted in a significant increase in work for Lander & Rogers so perhaps this trend will continue with the introduction of yet another international player. Is an international footprint critical in the Australian workplace relations sector? Smith believes cross border capabilities are becoming more important as employers and their employees are moving into Asia and Europe. “There is an international element that cannot be overlooked. On the other hand, because Australia employment law is fairly unique, it is also very important to have local expertise” he says. McKenzie believes that the Australian workplace is more regulated with federal legislation than any other market so it’s quite complex and unique in comparison to other jurisdictions. Hor adds that some of the Australian cities are quite “clubby” in workplace relations so an international perspective doesn’t necessarily make you a good provider for the clients. “Seyfarth Shaw has an outstanding reputation in the U.S. and particularly in cross-border transactional work, however, this is not massively significant in the Australian workplace relations legal market as it represents less than five percent of the revenue. Our work is primarily dealing with the matters that arise between an employer and their employee,” he says.
CHEQUE PLEASE! Client billing in the workplace relations sector continues to provide food for thought. No one likes the bill but there seems to be innovative ways to make the process more palatable. “While we all tend to be reliant on hourly rates, HSF recognize a shift away from that and want to stay ahead of the game,” says Smith. “In the end, the whole discussion is simply about the client’s desire
WORKPLACE RELATIONS
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
for certainty and we are making a big drive regarding cost consciousness including making lawyers aware that they are spending the client’s money and we should treat it as if it were our own money.” In recent years, both HR professionals and in-house counsel are requesting more fee estimates and quotations. “Over the last five years one of the big shifts across legal services in this area is clients asking for estimates and approving that before the work commences,” says Hor. “That reflects the commoditization of the legal services market as just another service and commodity.” Farr adds that clients are demanding quotes and estimates as a direct consequence of controlling their legal spend. “I think that lawyers are generally getting better at estimating fees as they become more practised at this,” Farr says. “The main benefit we have observed has been an enhanced relationship with our clients, as they see that their legal costs consistently meet their expectations.” Ashurst believes their clients are more focused on value for money rather than
necessarily the specific type of fee arrangement. “We generally find our clients take a much broader view as to what the value is they are looking for. There’s no doubt making sure you manage fees responsibly and appropriately in consultation with the client has always been important and continues to be important but increasingly we find that clients are as much focused on service delivery as ensuring matters managed within a fee estimate,” says Woodbury. What about fixed fees? The subject always seems to bring out disparate views. “There is no doubt that more clients are seeking fixed fee arrangements” says Farr. Hor, by contrast, has traditionally used fixed fees as the preferred billing model and says his firm is quite open in its terms and communications with clients. However, Woodbury believes [fixing fees] can be hard within this area of law particularly when you get into large scale litigation and industrial disputation. “Other types of work which might be more discrete include contractual drafting and policies lend themselves very much to fixed fee work” he says. Other trends emerging in workplace relations billing include retainer arrangements, greater spend on front end legal work such as compliance training and clients engaging HR professionals with legal expertise. KEY LEGAL TRENDS Ashurst’s Stephen Woodbury indicates that changes to the 457 migration visa have been a big concern, particularly for international clients. “The recent changes to 457 visa laws might have an impact
Expert legal advice for your workplace matters You can rely on Cooper Grace Ward’s specialist workplace relations team to provide strategic advice and representation on the full spectrum of employment, industrial relations and safety matters, including:
Belinda Winter Partner T 61 7 3231 2498 E belinda.winter@cgw.com.au
• enterprise agreements, employment contracts and policies • business restructuring, outsourcing and contractor engagement • safety incident response, investigation and defence
Annie Smeaton Special Counsel T 61 7 3231 2946 E annie.smeaton@cgw.com.au
• employee discipline, dismissal and redundancy • industrial disputes such as industrial action and right of entry • management of ill and injured employees • anti-discrimination, bullying and harassment
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Tobey Knight Associate T 61 7 3231 2933 E tobey.knight@cgw.com.au
www.cgw.com.au
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WORKPLACE RELATIONS
“ADVERSE ACTION DECISIONS ARE GOING BOTH WAYS WHICH IS NO SURPRISE GIVEN HOW NEW [THE LEGISLATION] IS. [THESE ACTIONS] ARE BEING USED TO VENTILATE UNHAPPINESS GENERALLY AND BRING DE FACTO UNFAIR DISMISSAL CLAIMS.” Joydeep Hor, People & Culture Strategies
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on a number of our clients who rely heavily on migration. We are one of the few [top tier] firms [in this space] - we have two migration agents who work within our team within the firm so we do quite a lot of that work for our international clients looking to bring people in. We recently hosted a Webinair and presentation to clients about these recent developments which had over 160 attendees. Obviously it’s a big issue for the clients,” he says. Ashurst also sees trends toward general restructuring as a result of the changing economic dynamics. “Unfortunately, restructuring, redeployment and redundancy programs are something that many employers are going to have to manage over the next 6-12 months,” says Woodbury. “ It will be cyclical but it’s part of the current cycle and we are already seeing it in the resources sector. When an economy starts to contract, it affects the amount of legal work that goes out and there is often a greater reliance on employment law and us assisting companies going through those processes.” Both Ashurst and Lander & Rogers have also seen a strong
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WORKPLACE RELATIONS
amount of work in workplace health and safety, particularly in the area of compliance training. This segment follows the introduction of the harmonised workplace safety laws and seems to be totally unaffected by economic drivers. Farr says there has been a significant increase in compliance work. “This was a determining factor in our decision to partner with online training provider, Learning Seat, to develop a range of innovative online compliance training modules called the S.A.F.E. Files for employers looking to deliver high quality and consistent training for employees. The modules cover a number of relevant workplace issues, such as bullying, use of social media, sexual harassment, discrimination and privacy, among others,” he says. Woodbury agrees that there continues to be a heavy emphasis on the part of major employers to ensure their safety policies are right and they deal proactively with incidents that arise. Lander & Rogers also sees an increase in their statutory defence practice in relation to environmental law, transport compliance, white collar crime and director/officer liability. INDUSTRIAL DISPUTES Large industrial disputes have played out in the media in the last few years. HSF advised on many of these and its clients include Qantas Grocon and BHP. However, Smith believes this trend has quieted down this year, although he says post-election the trend will return. “We are seeing a reduction in the big industrial disputes due to the economy, corporate restructuring and the federal election” he says. Woodbury says the firm has seen their industrial disputes increase exponentially over the last two years and anticipates that this will continue under the current regime. “For our clients there might not be the very high profile type of disputation featured in the papers in the last two to three years, but underneath that you have a myriad of different bargaining disputes going on every day.....and that will continue” he says. McKenzie agrees that this remains a significant issue, with high labour costs in a challenging economic climate. “Quite often labour costs are the biggest chunk of discretionary costs and employers are working hard to manage their costs. This
“QUITE OFTEN LABOUR COSTS ARE THE BIGGEST CHUNK OF DISCRETIONARY COSTS AND EMPLOYERS ARE WORKING HARD TO MANAGE THEIR COSTS. THIS IMMEDIATELY CREATES INDUSTRIAL ISSUES OR CHALLENGES IN TERMS OF FOLLOWING LEGAL PROCESSES. THIS HAS GENERATED A LOT OF WORK FOR US GIVEN THE COMPLEXITY OF THE REGIME AND FRAMEWORK THAT EMPLOYERS HAVE TO OPERATE IN.” Helen McKenzie, Ashurst
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WORKPLACE RELATIONS
immediately creates industrial issues or challenges in terms of following legal processes. This has generated a lot of work for us given the complexity of the regime and framework that employers have to operate in,” she says. In addition to uncertain economic times, Farr believes the industrial disputes will continue where employers continue to face increased regulation and employees are increasingly prepared to enforce their legal rights. ADVERSE ACTION CLAIMS All of our experts agree that adverse action claims continue to be a hot topic since the legislation was introduced in 2009. “The number of adverse action claims for this financial year is likely to top over 1000 for the first time which is a 25 percent increase on year before,” says Woodbury. Andrew Farr advised that there has been a reduction in the use of federal and state anti-discrimination laws with employees instead choosing to use the adverse action provisions in the Fair Work Act. This is primarily due to the unique aspects of the legislation including the speed of jurisdiction, a reverse onus, awarding of civil penalties and a presumption against awarding costs. Joydeep Horr explained there is a lot more scope in the adverse action jurisdiction to fit a set of circumstances than was otherwise the case previously. “There is a bit more push to address performance and under performance in workplaces as well as employees being better informed about their rights. All of this leads to a lot more discourse around alleged improprieties in dealings between an employer and their employees,” he says. Most of our experts cite this area of the law in particular as a basis for an even busier 2014. “Adverse action decisions are going both ways which is no surprise given how new [the legislation] is. [These actions] are being used to ventilate unhappiness generally and bring de facto unfair dismissal claims,” says Hor. THE NEW BULLYING JURISDICTION As of January 1 2014 the new bullying laws will be in effect across Australia. All of our experts cite this as a notable area for increased workflow in 2014. Farr explained that WorkSafe in Victoria presently
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“[THE NEW BULLYING JURISDICTION] CREATES MORE CHALLENGES FOR OUR CLIENTS AND WE HOPE TO MANAGE THEM THROUGH THE MAZE OF REGULATION WHICH IS NOW INCREASING. HUMAN INTERACTION WILL CONTINUE BUT THE REMEDIES HAVE JUST BEEN EXPANDED.” Stephen Woodbury, Ashurst
investigates only five percent of the 6,000 alleged cases of bullying each year. “This new jurisdiction will drive two areas: a stronger focus on compliance training for employees and their managers, and an increase in the number of complaints of bullying which will now be made to the Fair Work Commission, rather than to WorkSafe” he says. Woodbury expects this area will burgeon, similar to adverse action claims, so the focus will be to ensure the clients are aware of their obligations and that appropriate workplace learning and training is in place. But often as with harassment and discrimination cases, there are many shades of grey rather than an abundance of black and white factual circumstances. “While many of our clients have very sophisticated policies in place to manage these situations very well, sometimes they are not necessarily able to deal with all the different dynamics,” he says. “This creates more challenges for our clients and we hope to manage them through the maze of regulation which is now increasing. Human interaction will continue but the remedies have just been expanded.” HARASSMENT & DISCRIMINATION ACTIONS Hor describes harassment as a “straight escalating line growth area” when seen in the context of the new bullying laws. It was predicted that the high profile David Jones sexual harassment case would be a watershed moment for these types of claims. It appears that prediction has rung true. This year, cases such as those involving Oracle, Rivers Australia and the Australian Defence Force have punctuated the news. Smith believes that many of these large claims are designed to bring reputational damage in the media and pressure large corporations into settlements at a higher level beyond the sustainability of the claims. McKenzie believes we will continue to see these types of cases. “We only have to look at the incidents with the ADF, the debate around the sexes, what the [former] Prime Minister faced, what the Sex Discrimination Commissioner has said about the statistics and surveys showing there is still an alarmingly high percentage of women in workplaces reporting they have been on the receiving end of harassment. With the new bullying and adverse action options, the most effective way to pursue your grievance has been broadened and I think the subject matter will give rise to continuous flow of work over the next few of years,” says McKenzie.
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EMPLOYMENT LAW
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MAJOR CHANGE TO THE DEFINITION OF A WORKER IN THE WORKERS’ COMPENSATION AND REHABILITATION ACT 2003 (QLD)
by Annie Smeaton, Special Counsel, Cooper Grace Ward.
Annie Smeaton, Special Counsel, Cooper Grace Ward
From 1 July 2013, the definition of a ‘worker’ under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) narrowed. The new definition means that fewer independent contractors will be required to be covered under a principal’s workers’ compensation policy. The changes will particularly affect contractors in the construction and transport industries who are currently required to be covered under the principal’s policy. In-house counsel and other business advisers involved in engaging independent contractors should ensure that they understand the new definition of a ‘worker’ under the WCR Act and that they review their contractor arrangements to: • assess whether the contractors they currently engage are required to be covered by the company’s workers’ compensation policy; and • assess whether they can better structure contracting arrangements to take advantage of the new laws. BROAD SCOPE OF PREVIOUS DEFINITION Prior to the 1 July changes, section 11, in conjunction with Schedule 2 of the WCR Act, defined a ‘worker’ to include an individual who: • is paid for labour only, or substantially labour only; or • does not meet all of the following criteria: • is paid for a specific result; • has to supply all of the plant, equipment or tools of trade to do the work; and • is liable for rectifying defects in the work. Under this definition, many contractors, including owner drivers and tradespeople running their own business, were considered to be a ‘worker’ for the purposes of the WCR Act, yet were often not considered employees for any other purpose (such as superannuation and leave entitlements). This created uncertainty
for businesses engaging independent contractors and resulted in duplication and overlap in insurance coverage, with both parties often maintaining insurance for contractor personal injury. NEW DEFINITION The new definition of a ‘worker’ under section 11 is: • a person who works under a contract; and • in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth) (TA Act). This means that a business is only required to include an independent contractor under their workers’ compensation policy if the contractor works under a contract and is an employee for PAYG taxation purposes. An ‘employee’ for PAYG taxation purposes is not defined under the TA Act and takes the common law meaning. This is positive news for businesses in Queensland because the new definition of a ‘worker’ is easier to understand and apply. No longer will there be a requirement to undertake a complex analysis of the remuneration structure and method of work between the parties to determine whether the contractor falls within the ambit of the WCR Act. EXAMPLES OF INDIVIDUAL CONTRACTORS WHO MAY NO LONGER BE COVERED UNDER THE PRINCIPAL’S WORKERS’ COMPENSATION POLICY WorkCover Queensland has issued a statement stating that examples of independent contractors who may no longer be covered under a principal’s workers’ compensation policy are those who: • supply and operate their own plant, such as earthmoving equipment or trucks, as part of their contract; • work mainly or substantially for labour only, quote for the job, provide their tools of trade or rectify defects at their own expense; or • have a personal services business determination from the Australian Taxation Office. WHAT BUSINESSES SHOULD DO IN RESPONSE TO THE NEW LEGISLATION A review of the arrangements with each current independent contractor should be undertaken to determine whether they will continue to be required to be covered by the company’s workers’ compensation policy. This will involve: • analysing whether the contractor meets the new definition of a ‘worker’ under the new section 11 of the WCR Act; and • reviewing the contractual arrangements between the parties. In addition, a review of the independent contractor arrangements should be undertaken to assess whether they can better structured to take advantage of the new laws.
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INFRASTRUCTURE
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
AN INFRASTRUCTURE
REVIVAL?
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INFRASTRUCTURE
THE DAYS OF AUSTRALIA’S TRANSFORMATIVE MINING INFRASTRUCTURE INVESTMENTS MIGHT BE OVER BUT IN ITS PLACE ARE MORE FINE-TUNED BILLION DOLLAR SOCIAL INFRASTRUCTURE PROJECTS AND A TRILLION DOLLAR SUPERANNUATION POOL, REPORTS GINA DOMBOSCH.
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F David Fabian
Brad Vann
Robert Neely
Ian Gordon
Basil Georgiou
or most of 2012, funding for infrastructure projects was uncertain, state and federal budgets were strained and prior failures diminished the private sector’s appetite for public infrastructure investment partnerships. But what about 2013? According to lawyers, it might be time for an infrastructure revival – one led by activity in the social infrastructure space with billion dollar hospital projects popping up across Australia. Transportation projects using the reconfigured PPP model might also lure private investors out of the woods. This upward cycle provides a good opportunity for continued foreign investment in Australian infrastructure plus increased investment from the $1 trillion pool of domestic superannuation funds. Lastly, the transition of the workforce from mining projects to East Coast urban infrastructure could lay the foundation for a stronger Australian economy. David Fabian, partner at Lander & Rogers says that while 2012 was very challenging, things have had a buoyant start for 2013. “If you look at the market broadly, most people would say that the last six months of 2012 were very tough across the market generally. During that time, in the construction and infrastructure space, if you weren’t building something for a mining company, it was a very tough six months,” he says. “Pretty much since February of 2013, the market has been moving into much more positive territory and that trend is continuing. A number of infrastructure projects are gaining traction and that is translating back into the marketplace.” KEY INFRASTRUCTURE PROJECTS Our experts agree that there have been significant investment in social infrastructure particularly with Australian hospital assets the last few years. Brad Vann, partner at Clayton Utz, cites the Royal Adelaide Project, Sunshine Coast Hospital and Victoria Comprehensive Cancer Center in Melbourne as the major projects in the $1 billion plus category. While most agree that economic infrastructure projects have been quite grim, there have been some key road projects to lift this sector. Fabian cites the successful M7 and Citylink road projects and in Western Australia, Jackson McDonald head of Projects Infrastructure & Construction Basil Georgiou cites several large projects such as Elizabeth Quay in Perth, the Perth-Bunbury Highway and the Gateway WA Perth Airport. CANCELLATIONS/DISAPPOINTMENTS Lander & Rogers partner Ian Gordon, says that they have seen many projects being shelved as they become uneconomic and the appetite for investment has evaporated. “If you look at some of the North West shelf gas projects, you see the actual forecasted cost being a massive multiple of the original forecasted cost. The junior miners are working on very small margins and highly susceptible to changes in the market,” he says. Georgiou cites the $ 6 billion Oakajee Project and Rail Network as a huge disappointment as the iron ore needs to be brought to export. “Another big disappointment has been the James Price Point in the Kimberlys. The state government is pushing heavily to attach conditions even if it’s an offshore project so WA does not lose the economic activity such a project generates,” he says. The Sydney Metro was a very big project cancelled by the government after spending a few hundred million dollars. “The project was cancelled after a change of heart but it probably didn’t
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have a proper business case at the start. All of these projects need a proper investment grade business case with the pros and cons of making the investment properly analysed,” says Vann. WHAT’S IN THE PIPELINE? There are numerous transportation and health projects planned across Australia evidencing that social infrastructure is clearly a more active space than the traditional economic infrastructure sector. “There are a couple of big projects in the pipeline showing significant investment in rail infrastructure: NW Rail which is a mixture of projects including a PPP for the operation and running of the carriages; Melbourne East-West Link; Sydney West Connex; Melbourne Metro, which, similar to NW rail wil be an underground system creating more connectivity in the rail system,” reports Vann. NSW has also received an unsolicited proposal from Transurban to build a road connecting Sydney’s M2 to the F3 freeway which has prompted pledges of $400 million from both the NSW and federal government to help fund the project. Lander & Rogers sees a steady stream of health and transport projects as well as schools and urban infrastructure. L&R Partner Robert Neely also cites the $40 billion National Broadband Network in which they represent one of the major contractors. From the West Coast, Georgiou reports that Perth Stadium is one of the largest projects in the pipeline as well as the Port Esperance Access Corridor. “There are also plans for a new water treatment plan in Rockingham; an Airport Rail Link upgrade (between the international and domestic airports) as well as Light Rail which is an on/off again major feature in the state election with both parties promising funding,” Georgiou says. PPPS – WHERE ARE THEY NOW? Lawyers agree that PPPs have not gained traction in recent years due to some high profile, high dollar transportation project failures. While there have been some successful PPPs in the past such as the Westlink M7 and Melbourne Citylink, there have also been some catastrophic failures. Projects such as Bris-Connect, Cross City Tunnel, and Lane Cove Tunnel failed to accurately predict traffic flows and toll revenue which resulted in substantial
INFRASTRUCTURE
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“THE FACTORS WHICH HAVE CONTRIBUTED TO A LACK OF ENTHUSIASM FOR PPPS RECENTLY ARE: A GENERAL RISK AVERSION IN THIS POST GFC ENVIRONMENT; A SPECIFIC AVERSION REGARDING PATRONAGE RISK DUE TO THE FAILURE OF PREVIOUS PROJECTS; ISSUES REGARDING THE AVAILABILITY OF FUNDS; AND FINALLY, THE COST OF FUNDS.” David Fabian
losses to the private sector. “This history has discouraged further investment in transport infrastructure projects, particularly in the post-GFC period, as funds are harder to come by and investors want to put their scarce funds somewhere safe and secure,” says Fabian. Both state and federal government budgets remain under stress, so how will the private sector be lured back into PPPs? The solution, say lawyers, is to provide attractive, secure investment options that are backed by solid business cases and a reconfiguration of risk allocation. Government is also experimenting with new delivery models. “West Connex is going to be delivered using a “new” public/ private partnership model with the State delivering the asset and then putting that asset to the market,” says Fabian. Fabian explains that while WestConnex is still technically a PPP, the State will build and establish the financial viability of the asset before taking it to market for sale. “WestConnex is the natural consequence of where our market is now, post GFC, which requires different risk allocation and asset realization models going forward” he says. The point of this model, explains Neely, is to get good quality information about patronage before asking the private investors to come in. Gordon believes that social infrastructure, in particular hospital or school assets, have been the great success of the PPP model. “In those projects, the State does not require the private sector to take patronage or utilization risk. In the case of the New Royal Adelaide Hospital project, the private sector will build and operate the hospital, while the State will provide the doctors, nurses, technicians and also the patients,” he says. Are the prior failures the only reason PPPs have slowed? Most of our experts cite the GFC generally, but there are more specific reasons. “The factors which have contributed to a lack of enthusiasm for PPPs recently are a general risk aversion in this post GFC environment; a specific aversion regarding patronage risk due to the failure of previous projects and issues regarding the availability of funds; and finally, the cost of funds,” says Fabian. However, Vann still thinks there is considerable potential for PPPs despite the criticism. “PPPs still account for 10-15 percent of capital spend by government which is still only a small part of total spend. There is institutional research by the University of Melbourne which has shown that they have had a better track record in terms of delivering things on time and within budget which can certainly lead to knock on effects with the rest of the budget,” he says. “Even a two to three
percent efficiency in your capital budget might be saving you a $1-2 billion a year which is another hospital or 10 schools.” Plus, Transburban’s unsolicited proposal to the NSW government should serve as a catalyst for additional innovative infrastructure proposals from the private sector. Transurban recently received funding from the U.S. Transportation Infrastructure Financing and Innovation Act (TIFIA) to pay for new express lanes on a US toll road near Washington D.C. Some have argued Australia could take a page from the U.S. playbook and consider a similar federal body which provides loans for infrastructure projects. Georgiou says that the Western Australian government is reasonably commercial when it comes to private funding of public infrastructure, citing both the Perth Stadium Project and the Port of Esperance as potential PPP models. However, he cites three things which are having an impact on projects in Western Australia: the reduction in royalties because of problems with mining and minerals and high AUD; the state government getting a lower proportion of GST revenue from federal government and finally, falling commodity prices which have led to projects being scaled back. “In the short term things will be difficult,” Georgiou concludes. IS SUPERANNUATION THE CURE FOR WHAT AILS INFRASTRUCTURE? Earlier this month, the Industry Super Network released a report on Australian infrastructure investment stating that up to $15 billion could be made available the next five years by the nation’s Industry Superannuation Funds. The Industry Super Network Chair Steve Bracks reported that given the infrastructure deficit of almost $770 billion, Industry SuperFunds stand ready to work with governments to help fill this chasm. Fabian believes that despite Australian’s very substantial superannuation funds, a relatively small proportion is actually invested in infrastructure. “Australia super funds have quite a high liquidity requirement, which makes them cautious about investment in infrastructure assets because those kinds of interests aren’t readily tradeable. Finding solutions or refinements within the super fund regulatory regime would allow greater flexibility in relation to liquidity and asset realization,” he says. Australia’s total superannuation
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pool stands at approximately $1.6 trillion and Industry Super Network’s Deputy Chair Peter Collins says that if other super funds followed their lead, there would be $100 billion available in the next five years for nation building infrastructure. Offshore pension funds have been far more active in Australian infrastructure in recent years than Australian super funds particularly due to lack of domestic in house expertise in this investment class. “The Canadian Pension Plan, for example, has been investing in Australian infrastructure for some time” says Neely. “One of the trends we are seeing is that super funds are partnering with other market participants with specialist expertise to jointly manage the risk of infrastructure investment. For example, REST Industry has recently entered into a joint venture with Cintra, a Spanish infrastructure development megalith, to hunt for infrastructure opportunities in the Australian market.” Gordon adds that super funds also find it very difficult to deal with the delivery risk associated with infrastructure projects. “It’s very hard to deal with delivery risk as a superannuation fund, when those funds also require a guaranteed return on investment. When we talk about the WestConnex project, the reconfigured model that the NSW government has adopted will open up the opportunity for superannuation funds - and other equity investors who don’t have an appetite for construction or delivery risk - to take the operational risk associated with the project,” Gordon says. However, certain asset classes with long term and certain income stream may be what super funds are looking for. Industry Funds Management reports a 12 percent return on infrastructure investments with a fraction of the volatility of equity investments. Robert Neely believes that telecommunications projects provide exactly the type of income stream super funds are looking for: “The National Broadband Network is an asset that should be of interest to super funds, as it will not be in the business of supplying services to retail consumers but services to the wholesale market,” he says. Lander & Rogers has a large number of super funds in their client portfolio and believe that it is possible to see a larger investment in Australian infrastructure through partnering, in house expertise and
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some favourable regulatory changes. “Assuming that there is a risk shift - which looks like it’s happening - assuming regulatory changes, and assuming infrastructure expertise can be acquired either through partnering or by a recruitment strategy, another strategic issue is that a number of the Australian super funds are not that large, relative to the investment levels required for very large PPPs,” says Fabian. “As a result, we think that we’ll see super fund partnering, but there will need to be appropriate legal and commercial arrangements to accommodate that partnering. It’s not easy for super funds to work collectively in infrastructure projects investment.” INFRASTRUCTURE TRANSITION The transformative effects of the mining projects illustrates that infrastructure investment can shape the economy and drive markets for decades. Many cite Australian mining infrastructure as some of the best in the world. But what happens when that powerful engine stops? Both governments and the private sector need to work collectively to find pragmatic solutions to fill the infrastructure gap.
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But are the days of mining infrastructure mega – projects truly over? Georgiou thinks it’s a “wait and see” situation. “The cooling off is motivated by two things: first, the price of commodities is low and the cost of setting up a mine in WA is very expensive. The markets are certainly there but they pay the going price for commodities. They are not going to pay for us to construct expensive mining processes because there have alternatives in Africa, South America and parts of Asia,” Georgiou says. Fabian believes that the days of these mega projects are not finished but they have dramatically slowed due to a variety of factors: “There are concerns about China’s economy slowing or being deliberately slowed, as there have been about China reducing their mineral stockpiles. All of those shifts in Chinese consumption of commodities impact on the prices paid to Australian miners. If the commodity price drops then the economics of mine development may drop below a sustainable level, or the level of investment a mining company is willing to commit to at that point” he says. “Another factor affecting current mine development is
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that over the last five years a lot of mining projects have been built and are now complete. For the last five years, at least, one of the reasons the Australian economy has been doing quite well is not only the fact that mineral exports have generated revenue for Australia, but also the economy has been stimulated by mine development, which has kept the rest of the economy humming along,” says Fabian. Vann says the mining infrastructure investment might have tailed off but not necessarily the mining boom itself. “There has been a huge investment in mining infrastructure which will create mines that will export. So while even though the investment construction cycle is coming to an end, there will be a lot of export continuing to come out of it,” he says. But where does the massive workforce go which supported years of mining infrastructure projects? Will we suddenly have Australia’s best engineers out of work? Both Vann and Fabian believe the key is a smooth transition to the East Coast and social and urban infrastructure projects. “All of those resources which have been committed to the construction of the mining infrastructure have now been freed up and if there is nothing else for it to go into, there will be a lot of people out of work. The future Australian prosperity is now dependent upon the East Coast because half of Australia’s population lives in Brisbane, Sydney and Melbourne,” Vann says. “We should be making those cities work as efficiently as possible as attractive places to live and the best way is to make public infrastructure work well. With the tail off of the mining investment boom, the availability of resources and removal of constraints to those resources we should begin a new investment cycle in public infrastructure so shift those resources across to new investment.” Fabian adds that the demand in the construction and infrastructure market related to mine development will slow correspondingly but that doesn’t mean the end of infrastructure. “The Australian economy will now need more investment in traditional public infrastructure to pick up the slack left now that mine development is slowing,” Fabian says. “We need to make sure that transition is a smooth one. In a climate of post-GFC austerity, that will be difficult for governments to achieve, unless they can attract investment into PPP projects.”
CONFERENCE
WORKFORCE AND BEYOND SYMPOSIUM Melbourne Marriott Hotel | 15-17 October 2013 Featuring experts from corporate, government, legal and academic sectors, the symposium will provide delegates with a state-of-the nation overview of challenges and issues faced by the Australian workforce in 2013. WHO WILL BE THERE? Directors/Managers/Advisors responsible for: • Industrial Relations • Human Resources • Policy • Workplace Relations • Legal
PROGRAM HIGHLIGHTS: • The Changing Composition of the Australian Workforce • Future of unions and other registered organizations • Australia’s productivity challenge • Developing an Asia Capable Workforce • Immigration & 457s: Separating fact and fiction (Panel Discussion) • What to expect from the Fair Work system • Understanding the Collective Bargaining Equation View the detailed agenda at www.thomsonreuters.com.au/events
Don’t miss this rare opportunity to learn from and network with the thought leaders of Australia’s IR landscape! For more information or to register please contact Savitha on 02 8587 7960 or email savitha.viswanathan@thomsonreuters.com
AUSTRALASIAN LEGAL BUSINESS ISSUE 11.07
ACLA
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AWARDS PRESENTATIONS – Are in-house lawyers adequately recognised? BY TONY DE GOVRIK, LEGAL AFFAIRS & COMMUNICATIONS DIRECTOR, AUSTRALIAN CORPORATE LAWYERS ASSOCIATION, THE PROFESSIONAL BODY FOR IN-HOUSE LAWYERS.
A
Tony de Govrik
ccording to author and former in-house lawyer, Paul Brennan, who has just published his latest comedic book, 101 Reasons to Kill All the Lawyers, lawyers are struggling to meet the public’s high expectations that they are “arrogant, pompous, aggressive, tactless, confrontational, pedantic, expensive, unscrupulous, ruthless, negative, devious and slow”. The title for his book is derived from the great Bard himself, William Shakespeare, when in Henry VI (Part 2) the mischievous Dick the Butcher infamously said: “The first thing we do, let’s kill all the lawyers” as this would lead to anarchy. The irony of modern day public perception and the Shakespearean view that lawyers prevent anarchy have given rise to more challenges for this profession. In-house counsel are not immune to the public perception. However, the best organisations take the Shakespearean approach – that counsel are integral to integrity and performance. So often the work of inhouse counsel is seen but not recognised. And avoiding anarchy is hard to measure. This is where the Australian Corporate Lawyers Association (ACLA) sees the value of peer recognition. For 17 years ACLA has recognised the peak of the in-house profession through our annual awards – the only awards that are entirely managed and judged by in-house peers. To reach the finals is a massive hurdle in itself with 3 finalists having to be selected from the multitude of nominations received for each category. To receive an ACLA Award is to be recognised by in-house peers as a leader in the profession. With ACLA having launched this year’s awards nomination, it is timely to reflect on 17 years of professional standing, dating back to a time when in-house counsel struggled for recognition by the mainstream profession. The inaugural ACLA Corporate Lawyer of the Year award was bestowed at a presentation held on 27 November 1996 at the Sydney Sheraton on the Park – the winner being David Krasnostein, the then General Counsel at National Australia Bank. While we can’t name all the past winners, here are some names (and their employer at the time) you may recognise: • Les Taylor (Commonwealth Bank) • Peter Horton (WMC Limited) • Peter Caillard (Tabcorp)
• Helen Conway (Caltex) • Will Irving (Telstra) • Brett Johnson (Qantas) Since those humble beginnings in 1996 when there was only the single award, the categories of awards, like the in-house profession itself, has gradually grown. Today ACLA recognises Corporate Lawyer of the Year, Government Lawyer of the Year, Large Legal Team of the Year, Small Legal Team of the Year, Young Lawyer Achiever of the Year, and importantly Excellence in Corporate Social Responsibility. Why are we passionate about ACLA’s awards? The ACLA Australian In-house Lawyer Awards recognise excellence in the provision of legal services and the contribution made by in-house lawyers whether in government or corporate legal departments. They reflect the wealth of talent and value that our in-house leaders bring to the profession. Moreover, they serve to showcase how these lawyers are shaping the profession with innovative change in the way they practise law and organise their legal departments. We take pride in ensuring that these are truly in-house awards and the only one of its kind in Australia. The credibility of the awards is further enhanced by being judged solely by in-house lawyers for in-house lawyers. Last year the ACLA awards were dominated by women with Maria Polczynski from Bendigo and Adelaide Bank taking out the coveted Corporate Lawyer of the Year award and Sandra Eckert from the Department of Regional Development and Lands receiving the award for Government Lawyer of the Year. The other individual award winner was Marisa Muchow from the Australian Building Codes Board who took out the gong for the ACLA Young Lawyer Achiever of the Year. With this year’s award nominations open, we expect to receive a record number of nominations and for the judges to again have a very difficult job in front of them. I wish everyone nominated the very best, because you are already recognised by peers as a champion. If you are fortunate enough to become a finalist, again I wish you luck, and the advice of the 18th century English poet, Alexander Pope, who at his satirical best said “Blessed is he who expects nothing, for he shall never be disappointed.” For more about the ACLA Australian In-house Lawyer Awards visit www.acla.com.au
CONFERENCE
www.thomsonreuters.com.au/events
COMMUNITY LAW AND REGULATION CONFERENCE Sydney Harbour Marriott | 27-30 August The National Community Law & Regulation conference will provide a comprehensive look at key areas of community law including Not-for-Profit Law, Indigenous Rights and Human Rights. Don’t miss your chance to hear from and meet industry experts including: • George Williams, Professor, UNSW School of Law, Anthony Mason Professor, Scientia Professor, Foundation Director – Gilbert + Tobin Centre of Public Law • Linda Lavarch, Chair, Australian Government’s Not-For-Profit Sector Reform Council • The Hon Kevin Andrews MP, Federal Member for Menzies – Shadow Minister for Families, Housing and Human Services • Raelene Webb QC, President, National Native Title Tribunal …and more An exclusive opportunity to hear from those in the know on: • The impact of the NFP Sector Reforms 12 months on • Empowering Civil Society: The Coalitions plan for the NFP sector • Human Rights in the Australian Parliament • Why race still matters: the evolution of racial discrimination in Australia – an Indigenous perspective
Visit www.thomsonreuters.com.au/events to view the full speaker line up and agenda. For more information or to register please contact Savitha on 02 8587 7960 or email savitha.viswanathan@thomsonreuters.com
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