Amy Scott

The use of Artificial Intelligence (“AI”) in the workplace is likely to become increasingly common as technologies advance and benefits become proven and trusted. One AI development that looks set to be eagerly embraced by business is the generative pre-trained transformer model designed by developer OpenAI and used in its Chat GPT product (as well as in competing products, such as Google’s Bard and Microsoft’s Bing Chat). In a nutshell, Chat GPT is a large language model chatbot that is able to generate content based on requirements set by the user.  It essentially searches the internet to find information that matches your query and can then produce written content including articles, emails and even social media posts, as well as images and graphics. While the use of this technology may create huge benefits for your workplace, there are a few key points that you should be aware of before you start: If you plan to use Chat GPT in the workplace, you should open a Chat GPT Enterprise account (or its equivalent). The Enterprise account will provide greater speed, data security and privacy than a standard individual account.  Yes, it will cost more, but if your employees use Chat GPT from their own account there is a risk that sensitive/confidential information may be leaked and could become available to anyone.  If you use the Enterprise level service, any information you input or work product received will remain private to you and will not be used by the model to provide work output for third parties. Furthermore, if an employee uses their own Chat GPT account to generate work product, it is the employee who will be the copyright owner of the work product – not the employer. This may create the issue of having to assign or license the right to use the content, or the employee having the ability to share the work product with third parties without requiring your consent to do so.  It may be simpler to have copyright clearly belonging to you from the start. Another important point is that the content that you receive may not always be correct or suitable! Chat GPT looks for any available information to help it formulate its work product.  That means it will not always retrieve accurate information, and in some cases could be basing its work product on false information.  Furthermore, the style of the response may not be suited to you or your customers.  Chat GPT is not yet able to distinguish between what might be a great communication to an American consumer from one that would work better in a New Zealand context. If you are thinking about using AI in the workplace, it really is a good idea to put policies in place so that you and your employees understand the parameters and effects.  It is an ever-evolving world of technology so you will need to ensure that policies (and employment agreements) are regularly reviewed and updated to meet your needs. If you require any assistance with your policy drafting and implementation, our employment law team is here to help (and will provide you with a much better-tailored service than Chat GPT!)

Given the current economic conditions facing employers in New Zealand, it is predicted that pay rises for employees will be at far lower levels than those seen during the past two years. However, employees are also aware of the relatively tight labour market and are themselves facing increased living costs, which may mean they are willing to look for other employment opportunities if their expectations are not met. This can provide a difficult situation for an employer. The need to keep pay increases to a minimum will need to be balanced against the need to retain valued employees and limit the costs of recruitment and training for new employees. So, is there anything an employer can offer that won’t negatively impact the bottom line but might keep employees motivated and committed? Well, one possible solution could be the introduction of “Summertime Hours”. Put simply, Summertime Hours represent a set period of time during those (hopefully) warm, sunny months when employees are able to end their working day a few hours earlier to make the most of the (fingers crossed) great weather. For example, Summertime Hours could be specified as being a 3.00pm finishing time on Friday afternoons during the months of January and February. The upside to Summertime Hours? Firstly, your employees will be even further convinced that they are working for the right employer, meaning that more employees will choose to stay in your employment and will not be tempted to look elsewhere for alternative roles. Secondly, it will boost staff morale on the whole, and a happy workplace leads to better results all round. Furthermore, this initiative is unlikely to cost you anything. It is very possible there will be little impact on productivity levels because employees will show their gratitude by ensuring they put in extra effort throughout the rest of their week as a show of appreciation (and to ensure the Summertime Hours happen again next year). As was seen with the introduction by some employers of four day weeks, employees continued to have the same level of output even when working within the condensed time frame. Finally, it is a great way to boost your public reputation as a good employer, meaning you may be first choice for potential employees looking to be hired. There may of course be reasons Summertime Hours would not work. For example, it may be difficult for some businesses to implement Summertime Hours if there are certain employees whose roles necessitate them remaining in the workplace until the usual close of business time (while everyone else is flying out the door with their beach towel slung over one shoulder). You don’t want to create division as this may lead to frustration and feelings of unfairness, but workarounds might be found (ie. those particular employees take the time off at a different time or day of the week). Another reason Summertime Hours may not work is if they become an administrative hassle to organise (ie. if employees want to take advantage of the early finish, but request for it to occur on a different day to the one you were willing to offer). This may mean that more time and effort goes into the implementation of the policy than was initially expected. Overall, Summertime Hours do seem able to provide a real benefit to employees that will boost the morale of the whole workplace, while not adding to wage and salary costs and having no detrimental impact on productivity. As such, it may be an idea worth serious consideration. The key to successful implementation of a Summertime Hours Policy is to ensure that the terms of the policy are clear and workable. The first step might be to raise the idea with your managers and/or employees and get feedback as to whether it would be something they think is a good idea (note: we predict they will say “yes”), how they see it working in your workplace (ie. the most appropriate day, how they will plan their time to ensure all required work is completed as usual), and to get ideas about what the parameters should be (for example, it will only happen on a Friday afternoon, and only until the end of February). If you want to discuss a possible policy for your employees, or any other employment related policy ideas that you might have, we are happy to help and will ensure you have a clear and well-drafted document for everyone in your workplace to follow. If you have any general employment related queries or topics of interest that you would like us to cover in our upcoming articles, please let us know!

The Court of Appeal recently released a judgment concerning the scope of a restraint of trade clause, following the sale of a business. The business bought by the purchaser involved the manufacture, distribution and installation of partitioning systems and door systems, commonly used in office fit-outs. Shortly after the sale, the vendors bought another business that was a supplier of components of partitioning and door systems. The sale and purchase agreement signed by the parties included a restraint clause that sought to prevent the vendors from engaging in any business that was “the same or substantially similar to” the business being sold to the purchasers. Importantly, the restraint specified the business activities it sought to protect: “namely the manufacture, importation distribution or installation of … partitioning systems or door systems”. The purchaser believed that the vendor was in breach of the restraint of trade clause given the relatedness of the products being sold, and the High Court agreed. However, the Court of Appeal thought differently. Overturning the decision of the High Court, the three judges held that the business activity of each business was not the same or substantially similar on account of the fact that the business that was sold by the vendor dealt with complete systems, while the business that was bought dealt only with components of such systems. In reaching its conclusion, the Court relied on the specific wording in the restraint clause. Because the clause named complete systems only, and because componentry could not be regarded as a complete system and only a small part thereof, there was no substantial similarity. The decision has highlighted the importance of using wording in a restraint that will provide the parties with the certainty required for them to understand the parameters of what is being agreed. Had the clause used in this situation included the further wording: “namely the manufacture, importation distribution or installation of … partitioning systems or door systems, and including componentry of such systems”, there is a possibility this matter would have been decided differently or may never have made it before the Courts in the first place. Of course, expanding the scope of a restraint of trade clause too widely may result in it being deemed invalid. So, the specific wording used should be carefully considered and seek only to extend the scope of protection to a reasonable level. If you need any advice or assistance in determining the reasonableness or validity of a restraint of trade clause, please remember that it is better to seek help prior to making any big decisions. You may save yourself the headache of being embroiled in legal action and be in a position to move forward with confidence.

Firstly, do you have a trade mark registration? If so, and if the other trader is using the same or a confusingly similar brand name in relation to the same or similar goods or services then it is likely you have the right to prevent the use and could make a request that the other trader immediately stop using your intellectual property. However, if the other trader was already using the brand name before you filed your application, there is a chance that you will have to either accept that another trader using a similar brand name in the market place, or you could potentially negotiate with the other trader to see if you can come to some sort of pragmatic solution. If you do not have a trade mark, the issue becomes a bit more uncertain. We have had situations where clients have been happily using brand names on their products, only to then receive a polite but firm “cease and desist” letter directing them to stop using the name because it infringes a trade mark registration they own that predates the first use by our client. In one particular instance, our client was using what appeared to be a really novel and unique name on a food product, only to be told they were infringing a trade mark owned by a major American company (a.k.a. a trade mark owner with big pockets for paying legal expenses and little interest in negotiating with a small New Zealand company). The main problem for our client was that they had spent a fairly hefty amount on graphic design and marketing for their product and had six months’ worth of packaging already bought and paid for. The task of having to delete every photograph or reference to the trade mark on their social media pages was tiresome, but re-educating their customers about the name change also proved to be a headache (same great product, just with a way better name …). That is why we would always recommend carrying out thorough clearance searches before you set your heart on a particular brand name, and why it is preferable to obtain a trade mark registration for your cracking great brand names. It can save time, money and hassle down the track and give you peace of mind right from the start. We can help you conduct thorough research and investigate your ideas before your products or services are put to market and, once you have confirmed your brilliant brand name is available, we can help you with any trade mark applications you may wish to file.