Laying Down The Law for The Tech Industry

TIM THWAITES

Editor, Science Victoria

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Many of us travel through road or rail tunnels every day. And with the opening of Melbourne’s West Gate Tunnel and the Metro Rail Tunnel, many more will be doing so in coming months.

So what happens if a car or carriage bursts into flames while you are underground? Fire safety and emergency services swing into action, of course. Your life and future health depend on them. But who designs and instals such services to function reliably and get you to safety? Typically, it’s a specialised engineering company, whose existence most people never think of.

These companies cannot do their job without help. Yes, they have the knowledge and expertise to deploy the latest and most appropriate technology, but how they do so in significant infrastructure, and at what price, is governed by complicated legal contracts. And those contracts have to be structured and written with an understanding of the technology and the risks. That takes lawyers who specialise in technology and engineering.

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Technology, Engineering and the Law

“We set the practice up about 13 years ago. Somebody had to do it,” says Sharpe & Abel founder and managing director, Melissa Kirby, “because as a legal profession, we haven’t served industrial, engineering and technology companies very well.”

Sharpe & Abel is a small practice of just six people based in Melbourne. But it seeks to understand and deal with high technology industrial companies in their own space, Melissa says. “Most people have no idea of what these companies do. But what they provide for us is pretty incredible. Without them we wouldn’t have clean air or roads to drive on or comfortable offices with heating or cooling. As lawyers, we are the ones who have their back.”

While handling risk and safety is a major concern, Sharpe & Abel also deal with structuring contracts and ensuring fair payment for services rendered. With an emphasis on preventing expensive and time-consuming litigation, the practice advises clients on how to get it right first time and how to deal with disputes when they happen.

High tech industrial companies have employees upon whose expertise they depend. “Often the employees of these highly technical companies are doing specialist things, which means they may or may not be covered by a standard award or enterprise bargaining agreement. It can get quite tricky. As an example, typically people would think that receptionists are covered by the Clerks – Private Sector Award of 2020. But if they’re working for a laboratory that does testing of explosives, that’s not necessarily the case. So you have to know not just what an employee does, but also what the company does."

“And how do you manage a technical specialist in a key role whose behaviour is unacceptable? Such a person may not be easily interchangeable, so you can’t just move them on. That’s where we have to work closely with our clients.”

Similarly, because Australia as a trading nation is at the end of most supply chains, Sharpe & Abel advises clients on how best to conduct relations with suppliers and customers, many of whom are based overseas

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Legal advice for small engineering and technology companies

The firm typically is hired by medium-sized companies, Melissa says, not so much by entrepreneurs or start-up companies. “My advice to start-ups, when every dollar counts, is to use lawyers as little as possible. Lawyers are not cheap. If you’re someone with new technology, the most important thing you can do to protect yourself against risk is to make sure your technology works.”

There are two areas for small companies, however, where lawyers may be needed – agreements with investors and protection of intellectual property. “We would initially ask, ‘Is registering a patent or trade mark the best thing for this technology?’ Registration of itself does not necessarily protect you. You can spend a lot of money on a patent, but if you find someone infringing it, then you need to pay people to enforce it. It’s often much better just to get your product out on the market and work to stay ahead of the competition.”

But the bigger a company becomes and the more product or services it sells, Melissa says, then the greater the chance that something can go wrong, just from the sheer weight of numbers. And that’s where Sharpe & Abel comes in.

“Often, our work involves staying out of court. Legal tools are generally quite blunt. It you argue with your neighbour about a fence, and you take them to court and lose, that’s it. There’s no recourse. So how do you craft more creative solutions for critical and important companies?"

“For instance, if you put into a contract something like, ‘If you don’t deliver what we need, then we won’t pay you,’ that doesn’t actually solve the problem of late or non-supply. Perhaps we can work with the supplier’s finance people to ensure there are good economic incentives for them to comply.”

In the risk and safety area, Sharpe & Abel often collaborate with regulators to find solutions. And it works. In a business where word-of-mouth is probably the prime means of attracting clients, one of their greatest promoters has been a regulator with whom Melissa worked to turn a breach of licensing into a best-in-industry example of compliance.

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References
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[1] Banner image by Shutterstock

The Royal Society of Victoria thanks Sharpe and Abel for its ongoing support.