Hello and welcome back to the Pinsent Masons podcast with me, Matthew Magee. As we approach the two year anniversary of Russia’s invasion of Ukraine we look ahead to a long, difficult but vital rebuilding effort; and we hear about some of the challenges employers will face because of a new ‘right to disconnect’ from work in Australia.
But first, some business law news from our Out-Law reporting team.
AI use in Dubai court needs all parties’ permission,
New right to work check duties for UK employers, and
New guidance makes it easier to follow data protection laws in Oman.
Courts in the Dubai International Financial Centre have said that companies which want to use AI-generated content in litigation need the permission of the other parties to the litigation, or an order from the court itself.
The courts have published guidelines which Amelia Cave of Pinsent Masons said strike a balance between allowing parties to benefit from AI-generated content and safeguarding them from the technology’s risks.
Meanwhile, the European Union’s AI Act moved a step closer last week as it passed committee scrutiny at the European Parliament, the last of the three bodies whose approval is needed for something to become law in the EU.
UK employers should ensure that their right to work checking procedures are robust enough in light of new government guidance, an expert has said.
The maximum penalty for employing workers illegally will rise from £20,000 to £60,000 and additional steps are now needed to where employers engage sponsorgsded workers for so-called ‘supplementary work’.
Immigration law expert Shara Pledger said that the new rules mean that employers should take extra care when conducting right to work checks from 13 February. New guidance develops several of the steps needed when checking different worker categories, including scenarios involving supplementary employment, where workers are sponsored elsewhere.
A new regulation published in Oman will make it easier for businesses operating there to understand and comply with data protection laws there, an expert has said.
The guidance provides more detail on the permits needed to process sensitive personal data, such as information about people’s genetics, health, sexuality or ethnic origin.
Martin Hayward of Pinsent Masons said that international businesses in Oman will now find it easier to comply with Oman’s data protection regulatory framework, particularly, he said, due to its general compliance with international best practice.
Saturday is the two year anniversary of Russia’s invasion of Ukraine. It was a shocking event with profound human, political, economic and security consequences. And it has changed Ukraine completely: the war has inflicted a terrible toll on the infrastructure of daily life: roads, hospitals, schools, houses and all the other built elements that keep society going.
There is no end in sight to the conflict and the outcome of the US presidential election and elections in Europe will have a major effect on how much international support continues to flow to Ukraine.
So thoughts of reconstruction, especially in those areas not subject to live military action, cannot necessarily wait until the end of the war.
But how to go about rebuilding in a country at war? And how do you finance and manage complex construction when much of the labour force is fighting or has left the country seeking safety?
It’s an enormously complicated situation and there are no easy answers but Birmingham-based infrastructure expert Nigel Blundell has been thinking about how to begin to address some of these issues.
Nigel Blundell: There needs to be a significant amount of rebuilding of infrastructure in Ukraine. There have been various estimates by the World Bank of the cost of rebuilding, which conservatively are at US 411 billion, which is to put it in context 2.6 times the size of Ukraine's GDP. There'll need to be a significant amount of external investment, either through the World Bank, private investment is actually quite a large part of the Ukrainian economy and therefore it's not just purely a state built by the Ukrainian government, there's going to be a need to deal with this rapidly and efficiently, and to make sure that the money that is invested or is granted will be used in a particularly effective way.
The scale of the issue is enormous, it’s hard to comprehend.
Nigel: It's the sheer size of what they need to do. And the speed at which they need to do it that we are in the realms of the rebuilding of a country, something we've not seen since the Marshall planned after the Second World War, that there's going to need to be quite a lot of joined up thinking between. The Ukrainian Government as to what they want the funding as to how much there is and how to best allocate those funds. And there's really going to be the need to. Generate efficiencies and for everything to be coordinated in the way that we've perhaps never seen before.
Matthew: Nigel says that there is one approach that, though new and still emerging, could be part of the solution for Ukraine.
Nigel: The Ukrainian labour force has been dissipated either through people emigrating or being displaced, and there's therefore a skill shortage. And because of that, it's and and the need to keep construction or manufacture away from the conflict. We think that part of the solution is likely to be around what's known as industrialised construction, where there's a significant amount of offsite manufacture and that manufacture might not necessarily take place, what we could envisage is that you have pretty much standard building of components for some of the areas that have been most affected such as housing and transport systems. And those components are then can be manufactured outside of Ukraine and then brought to the areas that are being redeveloped and that has the advantage of using existing factory setups, it also has the effect of being a lot less labour intensive, that industrialised processes manufacturing off site use a great deal less labour than traditional building methods, and it also solves the problem of the skills shortage within Ukraine as it is at the moment.
Matthew: Industrialised construction involves using factories to make components of a piece of infrastructure that are then assembled on site. Making something in a factory is cheaper, faster, more efficient and more precise than doing it out in the muddy, weather-blown, inconvenient world. But this way of working does require a fundamental change in mindset in the construction industry.
Nigel: The the way that industrialised would work is that it would create products or houses or components for for transport systems which are standardised. That's clearly not going to be to everyone's taste. There needs to be a mix of perhaps traditional construction and industrialised construction because of the scale it should cut the embodied and life cycle carbon quite dramatically. And also what we're seeing at the moment is not just the need to cut carbon emissions, but also the circular building economy, which means that not only are we looking at how easy it is to build, but also how easily it can be taken down and reused. And therefore, if there's good design then that will enable a lot of recycling of materials. One of the key points here is perhaps moving away from traditional design, which is on a bespoke site by site basis to actually getting designers to actually understand how technology works and that they did design for manufacture. To configure design so that it can be used easily in the factories.
Nigel says that an industrialised approach can offset some of the risks of building in Ukraine by taking activity to factories in other places, but that private investors need certainty and confidence before they will commit the funding to make it possible.
Nigel: One of the keys for industrialised construction and actually making it work from a profitability point of view is that you've got a pipeline of work and that you're therefore able to repay quite quickly what is quite a significant capital investment. If there's that commitment there, that will give funders of both the rebuilding of Ukraine and in turn, anyone who is funding investment into a factory to actually have the confidence that the work stream is there, that one of the keys is probably funding and understanding the programme and if there's commitment to that and the rebuild, then that gives the confidence to the factories to actually invest, knowing that the pipeline of work will be there.
Covid lockdowns changed many people’s working patterns forever, and in ways that organisations and workers are still getting to grips with. For many desk workers it profoundly eroded the distinction between home and workplace, between work time and leisure time. There was new flexibility, but also new worry: if you can work anywhere anytime, should you be working everywhere, all the time?
This concern led the Australian Green Party to propose a new law giving workers the right to disconnect – to not answer the phone, or emails, or be contacted outside normal working hours. That law has passed through both houses of parliament and will come into force in around six months. But there is much about it that is still uncertain, according to Aaron Goonrey, a Sydney-based employment law expert at Pinsent Masons.
Aaron Goonrey: It's a right for an employee to refuse to monitor, read or respond to contact or attempted contact from the employees employer outside of the employees, quotation marks ordinary hours of work. Unless of course, the request or the refusal is unreasonable.
Matthew: And what does unreasonable mean in that context?
Aaron: That's the million dollar question really because it hasn't been tested and as with all things, it will depend on a number of factors whether or not the contact or attempted contact is unreasonable, how the contact or attempted contact is made and the level of disruption, the contact or attempted contact causes the employe. The extent to which the employee is compensated, such as high income earners: does their compensation compensate them for out of hours contact? Is the wording present in the employee’s employment agreement such that it puts on notice that that employees will need to work outside of their ordinary hours or be contacted rather outside of their ordinary hours>? The employee’s personal circumstances, including family or carers responsibilities; the sector that they work in. So one could envisage that if you work in the emergency services you may or you ought to be aware that you will be required to be contacted outside of your ordinary hours work, because that is the nature of the sector or the role in which you work.
Matthew: This isn’t a blanket, automatic right – employees have to invoke it, which means that a workforce will be made up of people who have invoked this right and people who haven’t. That makes it quite complicated for organisations.
Aaron: Let's assume that the legislation was in effect today. Every single Australian employee has the right to disconnect, so they have the right to disconnect, but they need to exercise the right. If someone exercise the right. What would employers need to do? And in essence, they would need to. Keep a register. And they would need to keep the manager of the employee informed about it. They would need to contact other. Both internal and external stakeholders potentially about it. There may be privacy issues related to it. It does open up a raft of different challenges for an employer if an employee did exercise the right.
Matthew: So what should employers be doing to prepare? What do they need to change?
Aaron: I think the first thing that they need to do is look at their current policies and processes. Relating to flexible work working, from home managing employees who do work from home, managing how they record and track hours of work, consider conducting orders on the potential impact of a right to disconnect. Particularly for large employers, because they will have different departments and sections where their employees already work 9:00 to 5:00, then this will have little impact on those because there there is no operational need to contact someone who has an ordinary span of hours. So long as employers are having open and transparent conversations with their employees about work expectations and about that give and take in the employment relationship, that it's unlikely that those employers that that openly engage will have much to worry about in relation to employees exercising that right. You you don't often necessarily have to worry about the majority you have to worry about the minority in terms of those who may exercise the right in a way that is unintended or in a way that is frivolous or vexatious.
Matthew: A lot of the analysis of the impact of the new law has focused on employees and how companies will deal with them, but businesses should give serious thought to the impact on the basic day to day operations of their organisation, Aaron says.
Aaron: They'll also need to consider what will happen if if an employee decided not to respond to contact and what impact that would have on operations because it it will have both an employee impact and it will have an operational and business impact. And I think what a lot of employers are doing, and rightly so, is they're focusing on what this means for their employees. But I don't think a lot of businesses are necessarily thinking practically: what does this look like? If certain employees or all employees decided to exercise the right, what would happen if an employee finished work? If all employees finished work at six pm and no work was done? In response to contact from external or internal parties, what impact would that have practically on our operations? Reviewing and assessing current policies and processes, as well as doing an audit would would in part at least inform an employer as to what they need to do next. From a practical perspective, the one thing that I would other employers to do is just be prepared for it. I don't think necessarily the sky is going to fall down in relation to the right to disconnect. But I think complacency would be an employer’s worst enemy on something like this.
Matthew: Thanks for spending the time with us – we know you’re busy and there is a deluge of information out there, so we appreciate your time and attention. If you think this podcast would be useful to colleagues or contacts, please do share it. And remember you can get up to the minute business law news and analysis from our team of journalists at pinsentmasons.com and to make sure you get the news as it happens, sign up for updates at www.pinsentmasons.com/newsletter. Thanks for listening and see you next time.
The Pinsent Masons podcast was produced and presented by Matthew: Magee for international professional services firm, Pinsent Masons.
