Allens

Industrials

Our experienced Industrials legal team regularly publishes articles and updates – the full list of publications appears below. These publications provide a snapshot of the latest legislation, court cases, policy changes and contentious issues. If you'd like to be notified when we add new publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

For publications in other legal areas see our recent publications page.

Industrials Publications

  • Food Law Bulletin

    21 December 2016

    In this edition we look at the ACCC's case against Heinz's Shredz product and what it means for advertising of high-sugar foods; litigation relating to the health claims of a2 milk; and the new safe harbour provisions for country of origin labelling.

    Read More
  • Focus: Disclosing privileged documents to regulators

    16 December 2016

    In Cantor v Audi, the Federal Court denied Australian class action plaintiffs access to documents exchanged between Volkswagen AG and a foreign regulator. The case provides insights into what you should consider before providing privileged documents to a regulator. This is critical in an era of increasing regulatory action and class actions in which plaintiffs seek to piggy back off global regulatory investigations and proceedings. Partner Alex Cuthbertson, Senior Associate Monisha Sequeira and Lawyer Alex Lee report on the decision.

    Read More
  • Focus: Take care with agency arrangements - Flight Centre decision

    14 December 2016

    The High Court today handed down its decision in the high-profile ACCC proceedings against Flight Centre. The High Court allowed the ACCC's appeal from the Full Federal Court, finding that Flight Centre competed with airlines in the sale of international airline tickets and attempted to induce three major airlines to enter price-fixing arrangements. Partner Carolyn Oddie, Managing Associate Robert Walker and Lawyer Darcy McLennan consider the implications.

    Read More
  • Focus: A blow to class action judgments achieving finality

    12 December 2016

    Ordinarily, a party cannot raise in later proceedings issues which it could and should have raised in earlier proceedings. This principle recognises the public interest in resolving disputes with finality. In a recent decision, the High Court considered how that principle applies in the context of group proceedings. The judgment sounds a cautionary note that a successful class action defendant cannot rely on mere failure by members of a class action to opt out of group proceedings to establish that these members are subsequently prevented from raising other claims in relation to the same factual circumstances in new proceedings. Partner Belinda Thompson and Lawyer Alex Lee examine the decision and its implications.

    Read More
  • Focus: Employment Law

    6 December 2016

    In this issue we look at the Fair Work Ombudsman's decision to prosecute a sham contracting offence even after the employer had rectified the underpayments; the enforceability of post-employment restraint of trade clauses; how a new ABCC will look like after its journey through the Senate; and the importance of negotiating an enterprise agreement only with employees who have commenced work.

    Read More
  • Client Update: Amending the misuse of market power prohibition

    1 December 2016

    On 1 December 2016 the Federal Government introduced a Bill to Parliament to amend section 46 of the Competition and Consumer Act 2010 (Cth), which prohibits the misuse of market power. The Bill adopts the recommendations of the Harper Review.

    Read More
  • Focus: Increased whistleblower protections, and more to come...

    24 November 2016

    The Federal Parliament has passed an industrial relations bill that includes significant increases to the whistleblower protections applicable to unions and employer organisations. In what would be a comprehensive overhaul of Australia's whistleblower laws, the Federal Government has separately agreed to support the introduction of equivalent (or better) whistleblower protections in the public and private sectors. Partner Rachel Nicolson, Senior Associate Chris Holland and Lawyer Karina Plain report.

    Read More
  • Focus: Employment Law

    10 October 2016

    In this issue: we look at whether employers have a right to direct employees to perform higher duties; an employer's consultation obligations during a redundancy process; how an employer's failure to give a balanced view to employees resulted in it being forced to the bargaining table; and a decision that casts doubt on the effectiveness of set-off clauses in contracts for employees who are covered by a modern award.

    Read More
  • Client Update: An opportunity for greater certainty for class action defendants

    5 October 2016

    Class action settlement negotiations are often hindered by uncertainty about the number and identity of potential claimants. A recent decision of the Supreme Court of NSW has paved the way for defendants to achieve greater certainty in respect of unregistered class members at an earlier stage than had previously been the case. Partner Jenny Campbell, Associate Daniel MacPherson and Lawyer Hugo Dupree report. 

    Read More
  • Focus: Employment Law

    19 September 2016

    In this issue: we look at how redundancies can breach enterprise agreement provisions; whether union officials can exercise their right of entry entitlements before or after work; reasonable notice terms in employment contracts; and the processes a labour hire company should follow before dismissing an employee.

    Read More
  • Unravelled: Financial Services Class Actions

    6 September 2016

    Our class actions team recently published our Class Action Risk 2016 report. The objective of the report is to look behind the headlines and hype that often surrounds class actions to provide a more holistic and objective assessment of class action risk for our clients. This is particularly important in an environment in which the press surrounding class actions has often heralded a developing crisis for Australian business.

    Read More
  • Client Update: Beware the risks of converting casuals to permanent employees

    16 August 2016

    A Full Bench of the Fair Work Commission has ruled that prior service as a casual counts as service when calculating redundancy pay. The decision is completely at odds with what employers would expect. Partner Simon Dewberry, Managing Associate Andrew Stirling and Senior Associate Tristan Garcia report.

    Read More
  • Focus: Extending the reach of Australia's cartel laws and the first criminal prosecution

    28 July 2016

    Recent decisions handed down in separate cartel proceedings confirm that Australian courts will take a broad approach to the extraterritorial ambit of Australia's competition laws. This means that more foreign businesses could be caught by Australia's criminal and civil cartel laws. These decisions coincide with the commencement of the first criminal cartel case in Australia. Partner Kon Stellios and Senior Associate Amanda Richman report on these developments and their implications.

    Read More
  • Client Update: Protecting innovation without patents - data exclusivity and market exclusivity

    19 July 2016

    Developments in patent law and the consequential limitations on patentability for biologic medicines mean that data exclusivity and market exclusivity can be the primary protection afforded to originator biologic medicines. This is most stark in the US where patent protection for biologic medicines can be very limited. This seems to be the reason that the US has twelve years of exclusivity, and is pressing for other nations to have similar protection. In the TPP agreement, Australia has committed to providing a comparable outcome in the market to eight years of exclusivity but is robustly resisting extending its current five years of statutory protection. Partner Sarah Matheson and Special Counsel Ric Morgan report.

    Read More
  • Focus: Shareholder activism: Full Court says no to revolution by resolution

    18 July 2016

    At a time of increasing shareholder activism, a recent decision of the Full Court of the Federal Court has confirmed that activist shareholders have a very limited part to play in the exercise of a board's power in the management of a company. Partners Kim Reid and Julian Donnan and Associate Manu Jaireth report on the decision and what it means for boards of listed companies dealing with activist shareholders.

    Read More
  • Focus: Supreme Court of WA sends EPC contractor back to arbitration

    13 July 2016

    In Samsung C&T Corporation v Duro Felbuera Australia Pty Ltd [2016] WASC 193, the Supreme Court of Western Australia had to carefully consider the role that Australian courts play when there is a dispute over the existence and scope of an arbitration agreement. The key issue was whether a jurisdiction clause in a term sheet was inconsistent with there being an agreement to arbitrate disputes arising under the term sheet. However, the court was also required to consider the extent to which it should determine whether an arbitration agreement existed, and whether a dispute fell within its scope, in circumstances where an arbitral tribunal had already been asked to rule on its own jurisdiction to hear the same dispute. Partner Jeremy Quan-Sing and Law Graduate Lily Hands report.

    Read More
  • Focus: Workplace Relations

    11 July 2016

    In this issue we look at a Fair Work Commission decision that highlights the issue of costs in relation to a vexatious claim; the consequences for employment law in the wake of the Coalition's return to power; and an enforceable undertaking to reimburse a large number of underpaid employees.

    Read More
  • Food Law Bulletin

    7 July 2016

    In this edition we look at a New Zealand Court of Appeal case that helps to clarify the meaning of 'health claim' under the Food Standards Code; an update on the Country of Origin Labelling regime; changes to the laws relating to the importation of food into Australia introduced by new Biosecurity legislation; and new Food & Drug Administration guidelines for nutrition information labelling for food sold in the US.

    Read More
  • Focus: Predictive coding endorsed again by English High Court

    29 June 2016

    In its second decision on predictive coding this year, the English High Court has again accepted the use of this innovative technology in discovery, this time in a contested application. Partner Duncan Travis, Managing Associate Kate Austin and Law Graduate Yi-Ling Ng examine the case and its implications.

    Read More
  • Special Report: Understanding the opportunities and navigating the legal frameworks of distributed ledger technology and blockchain

    17 June 2016

    Authored by a multidisciplinary team from Allens, Blockchain Reaction is designed to assist business stakeholders, decision makers and in-house counsel across a variety of sectors to understand the technology and how it is being used, as well as navigate the regulatory and legal opportunities and challenges.

    Read More
  • Allens Accelerate: Preparing for investment

    8 June 2016

    As a startup looking to raise capital, you'll most likely spend a fair bit of time thinking about your pitch to potential investors and, if you're lucky, the terms of any investment.

    Read More
  • Focus: Workplace Relations

    1 June 2016

    In this issue we look at the problems of overselling a company's performance to attract new staff; new Federal Government policy that will make franchisors and parent companies responsible for their franchisees' and subsidiaries' breaches of the Fair Work Act; and the importance of following procedural fairness when dismissing an employee.

    Read More
  • Client Update: Defending unfair preference claims: set-off and security revisited

    26 May 2016

    A recent Federal Court decision has highlighted two grounds on which creditors should consider defending unfair preference claims which are brought by liquidators. Partner Chris Prestwich and Lawyer Tim Chiang look at a case that deals with what constitutes an unsecured debt and the extent to which creditors are able to set off unfair preference claims.

    Read More
  • Client Update: Revisions to FIRB Guidance Note 23: clarity for foreign government investors

    26 May 2016

    Recent reforms to the Foreign Acquisitions and Takeovers Act 1975 (Cth) introduced new provisions that deem foreign government investors of the same country to be 'associates' of each other. These provisions have created practical difficulties for foreign government investors who risk unintentionally breaching the Act because they are unaware of the existence and extent of holdings of other foreign government investors from the same country. Revisions to Guidance Note 23 released by the Foreign Investment Review Board have sought to address these practical issues. Partner Wendy Rae and Associate Nicholas Kefalianos review the key changes to the Guidance Note.

    Read More
  • Focus: Australia and Singapore enter into Comprehensive Strategic Partnership

    17 May 2016

    The Australian and Singaporean governments have recently concluded discussions on a landmark agreement that will see the two countries cooperating across a range of strategic initiatives, including in the areas of trade and economics, innovation, education, people and defence. The Comprehensive Strategic Partnership builds on the already strong relations between Australia and Singapore and is expected to provide new cross-border investment opportunities through enhanced bilateral relations. Singapore-based Managing Associate, Jessica Choong, reports.

    Read More
  • Focus: Workplace Relations

    5 May 2016

    In this issue we look at an adverse action case; why a redundancy does not necessarily constitute a termination; the importance of a consistent process to deal with bullying in the workplace; the fairness of a dismissal for failing workplace drug tests; and when a company can prevent an employee from going to work for a competitor.

    Read More
  • Focus: Car rental agreement crashes out under the unfair contract terms regime

    27 April 2016

    In proceedings brought by the ACCC, the Federal Court declared a number of terms in Europcar Australia’s 2013 standard rental agreement to be unfair, and therefore void. Partner John Hedge and Lawyer Jessica Rusten review the unfair contracts terms regime, and consider the implications of this latest decision for business contracts to which the regime will extend later this year.

    Read More
  • Focus: Full Federal Court blocks US depositions for Australian class action

    18 April 2016

    The Full Federal Court has ordered an anti-suit injunction against the applicant and a group member in the Treasury Wine Estates shareholder class action, preventing the taking of oral depositions from US-based employees under US court procedures. Partner Duncan Travis and Associate Michela Agnoletti report on a decision that emphasises the importance of the Federal Court's case management of class action litigation.

    Read More
  • Client Update: ACCC successfully appeals air cargo cartel - the widening of 'market in Australia'

    23 March 2016

    The ACCC has won an appeal in the Full Federal Court in the air cargo cartel case against Air New Zealand and Garuda. Those airlines were found to have engaged in price fixing conduct within a 'market in Australia' even though the point of competition was outside the country. The case clarifies and potentially expands the circumstances in which conduct engaged in overseas may be caught by Australia's competition laws. Partner John Hedge and Lawyer Jessica Rusten report.

    Read More
  • Client Update: Productivity Commission kicks off inquiry into superannuation

    17 March 2016

    The Productivity Commission has released an issues paper inviting submissions on the criteria that should be used to assess the efficiency and competitiveness of Australia's superannuation system. This will be of interest not only to superannuation trustees but also to service providers, including fund managers, who may be put under greater scrutiny. Submissions are due by 20 April 2016. Partner Michelle Levy and Senior Associate Simun Soljo look at the issues paper.

    Read More
  • Focus: Anti-bribery and corruption regulation developments in 2016

    16 March 2016

    2016 looks to be a busy year for directors, executives and legal and compliance teams who need to be aware of developments in Australian anti-bribery law and compliance practice. Partner Rachel Nicolson, Senior Associate Dora Banyasz and Lawyer Tom Bland report.

    Read More
  • Focus: Being 'professional' under D&O insurance policies

    8 March 2016

    In a recent decision, the Full Federal Court has clarified the scope of a ‘professional services’ exclusion in a Directors & Officers insurance policy. Partner Andrew Maher and Senior Associate Andrew Lazzaro report on a case that gives some guidance on the relationship between professional indemnity and D&O insurances.

    Read More
  • Focus: Contractors face uphill battle restraining security calls

    7 March 2016

    The Supreme Court of Western Australia has dismissed a subcontractor's application for an interlocutory injunction restraining a call on a bank guarantee. Partners Nick Rudge and Jeremy Quan-Sing and Lawyer Evan Lacey discuss the decision and its implications.

    Read More
  • Focus: Double recovery as a challenge to the enforcement of an arbitral award

    1 March 2016

    The Victorian Court of Appeal has refused an application for leave to appeal against the enforcement of an arbitral award. The applicants applied for leave to appeal on the basis that enforcement of the award would be contrary to public policy as it would give effect to 'double recovery' by the respondents. Partner Peter O'Donahoo, Managing Associate Hilary Birks and Lawyer Luke Callaghan report.

    Read More
  • Focus: Workplace Relations

    29 February 2016

    In this issue: we look at a dismissal case emanating from poor behaviour at a company Christmas party; the importance of the employment contract in determining whether a reduction in an employee's pay and duties results in dismissal; an employer's difficulty in justifiying a summary dismissal; and the implications of a company's redeployment policy.

    Read More
  • Focus: Predictive coding: the future of electronic document production?

    25 February 2016

    A recent decision of the English High Court may pave the way for the use of 'predictive coding' in large scale discovery and regulatory investigations in Australia. Partners Nick Rudge and Duncan Travis, Managing Associate Kate Austin and Associate Emily Giblin look at the benefits and risks of the new software.

    Read More
  • Client Update: Polluter pays principle in action

    23 February 2016

    In a recent decision of the Victorian Supreme Court, a Melbourne municipal council was held liable to compensate a landowner for the costs that were incurred by the landowner in the course of complying with a clean-up notice issued under the Environment Protection Act 1970 (Vic), despite the pollution having occurred prior to the commencement of that Act. Partner Chris Schulz and Associate Kate Kirby discuss the key issues raised in the case.

    Read More
  • Focus: Australia has lifted certain sanctions on Iran

    18 February 2016

    In response to recent confirmation that Iran has met its international nuclear commitments, the Australian Government has lifted all nuclear-related economic and financial sanctions against that country. Partner Rachel Nicolson, Managing Associate Hilary Birks and Associate Sarah Jenkins report on what has changed and the potential opportunities for Australian businesses.

    Read More
  • Focus: High Court decision on retention obligations provides some clarity to liquidators

    14 December 2015

    The High Court has ruled that a liquidator has no obligation to retain monies on account of tax until a notice of assessment has been issued. The decision will provide much needed clarity for liquidators and other statutorily deemed trustees, and agents. Partners Charles Armitage and Christopher Prestwich, Senior Tax Counsel Marc Johnston and Associate Jay Prasad report on the decision.

    Read More
  • Focus: COP21 and the Paris Agreement

    14 December 2015

    Over the weekend in Paris, two weeks of negotiations culminated in the adoption by all parties to the United Nations Framework Convention on Climate Change of a conference decision and Paris Agreement to address climate change. The combined Paris Outcome commits parties to limit global temperature rise to 'well below 2°C' with an aspirational target of a 1.5°C limit. Co-Heads of the Allens Climate Change Group, Andrew Mansour and Emily Gerrard (who attended COP21) provide initial comments on the Paris Outcome below.

    Read More
  • Focus: Plugging the price drip

    30 November 2015

    The Federal Court has found that Jetstar Airways Pty Ltd and Virgin Australia Airlines Pty Ltd contravened the Australian Consumer Law by engaging in 'drip pricing'. In doing so, the Federal Court differentiated between the types of conduct that will be considered misleading or deceptive under the ACL. Partner Jacqueline Downes, Associate Lisa Lucak and Lawyer Jessica Rusten look at the implications for business.

    Read More
  • Focus: Workplace Relations

    19 November 2015

    In this issue we look at the unusual role social media can play in bullying at work; valid dismissals that can be procedurally unfair; consultants' reports and unfair dismissal proceedings; requirements for notices of entry; obtaining permission to appeal in the Fair Work Commission; vague job security clauses being binding on an employer; and low threshold for admitted adverse action.

    Read More
  • Focus: Plan Melbourne: refresh of Victoria's metropolitan planning strategy

    16 November 2015

    Housing affordability, climate change and energy efficiency are key focuses of the discussion paper recently released by the Victorian Planning Minster, which aims to 'refresh' the current Melbourne Metropolitan Planning strategy, Plan Melbourne. The paper draws upon the detailed report prepared by the Ministerial Advisory Committee chaired by Professor Roz Hansen. Managing Associate Meg Lee and Associate Kate Kirby discuss the key points.

    Read More
  • Client Update: ASIC tweaks employee incentive scheme relief

    12 November 2015

    Various amendments to ASIC's employee incentive scheme class order relief have now come into effect. Described by ASIC as 'minor and machinery in nature', the clarifications and improvements were prompted in part by market feedback. Partner Greg Bosmans looks at the changes.

    Read More
  • Paper: Agricultural Competitiveness White Paper - key proposals for agribusiness investors

    14 July 2015

    The Federal Government's Agricultural Competitiveness White Paper is focused on increasing the attractiveness of Australia's agribusiness sector as an investment destination. The White Paper contains significant proposals of relevance to both domestic and international agribusiness investors. Of most interest are proposals relating to increasing farm gate returns, the building of key water infrastructure, research and development into agribusiness technology, and improving access to premium markets.

    Read More
  • Audio: Investment needed to fulfil Agriculture White Paper initiatives

    14 July 2015

    The Federal Government's Agricultural Competitiveness White Paper is focused on increasing the attractiveness of Australia's agribusiness sector as an investment destination. The White Paper contains significant proposals of relevance to both domestic and international agribusiness investors. Of most interest are proposals relating to increasing farm gate returns, the building of key water infrastructure, research and development into agribusiness technology, and improving access to premium markets. Senior Associate Amit Jois spoke to BRR Media about the major issues for investors in the White Paper.

    Listen
  • Focus: Cleaning company franchisor cleaned up by ACCC

    30 March 2015

    The Federal Court has awarded a substantial penalty of $500,000 against a franchisor that had contravened both the Australian Consumer Law and the Franchising Code of Conduct. Partner Andrew Wiseman and Law Graduate Catherine Francis report on the implications of the decision for franchisors.

    Read More
  • Focus: Changes to the rules governing foreign investment in Australian agriculture

    13 February 2015

    The Australian Government has announced that, from 1 March 2015, acquisitions of agricultural land worth more than A$15 million and any additional acquisitions over and above that amount will require government approval. It will also establish a foreign ownership register of agricultural land. Nevertheless, we expect that Australia will continue to welcome foreign investment in the agricultural sector. Partners Marcus Clark, Jeremy Low and Wendy Rae, and Managing Associate Andrew Wong report.

    Read More
  • Focus: Managing shareholder activism - who is in the driver's seat?

    3 February 2015

    The recent New South Wales Supreme Court decision of Molopo Energy Limited v Keybridge Capital Limited reflects the continuing growth of shareholder activism in the Australian corporate landscape. The case is a reminder that boards need to remain aware of developing activist strategies, particularly where attempts are made to usurp the powers vested in the directors. Litigation Partner Kim Reid, Corporate Partner Kate Towey and Senior Associate Jack Power report on this decision and the implications for directors of listed companies in responding to activist shareholders.

    Read More
  • Client Update: More limits on lawyer-driven litigation

    1 December 2014

    Following a decision earlier this year preventing a solicitor from acting in a class action in which the solicitor managed and controlled the representative plaintiff, the Victorian Supreme Court has held that a solicitor and senior counsel should be prevented from acting in a class action in which they had a substantial indirect interest in the litigation funder of the action. Partners Duncan Travis and Matthew McLennan and Associate James Campbell report.

    Read More