Thought Leaders
Thought Leader
WWL says
Phillip Greenham is distinguished by clients for his “in-depth and vast knowledge” of procurement law and contracts as well as his “timely advice”. Questions & Answers
Phillip has been advising the construction industry for over 35 years. He practised at MinterEllison for 33 years and was a partner for 27 years. He has been associated with the University of Melbourne for over 10 years and was recently appointed an enterprise fellow at the university. He was a founding director and chair of the Society of Construction Law Australia. He has been a member of Arbitration Chambers in Hong Kong and London for two years.
What has been your most interesting case to date and why?
The most interesting and exciting case was an arbitration that I was involved in a few years ago – the largest construction arbitration in Australia at the time. Not only did it raise interesting and complex legal issues, but it was also a significant project management exercise in its own right. The case often demanded extended hours by many people. The collegiality that thrived among those involved in the case was motivation in itself. The case was also a terrific example of the efficient management of the arbitration process and the cooperation between opposing lawyers in navigating a hotly contested dispute.
How is the boom in government infrastructure projects in Victoria affecting the market?
Industry often calls for government investment in infrastructure. However, the current boom may be a case of “be careful what you wish for”. It is placing enormous stress on the industry. A serious shortage of experienced personnel is emerging. This is associated with shortages of raw materials and manufactured items for these significant projects. Contrary to what might be expected, the boom is not guaranteeing financial success for the participants. There are many who believe that project pricing is unrealistic and that we will see many organisations suffering financial stress with possible failures. All of these challenges must be managed by government and industry if the benefits of the boom are to be realised without leaving a damaged industry in its wake.
What impact have current procurement methodologies had on public infrastructure projects?
Procurement methodology is always evolving. Old techniques are modified and recycled. Alliance contracting lost some support in Australia some few years ago. However, it and other forms of collaborative contracting are beginning to flourish again, sometimes a little under the radar. While there are some participants in the industry who support collaborative contracting, the industry is still dominated by an adversarial demeanour. I think governments still struggle to engage with the industry in a way that maximises value for money and minimises tensions and disputes. Of course there are pockets of industry players who still pursue a contractually aggressive model. While progress can be slow, the trend is unquestionably towards more collaborative models.
Australia has had problems with flammable cladding on residential towers. What has been the government’s response? What role does the legal market have to play?
In Australia, considering the government’s response means considering the response of nine governments. The federal government does not have constitutional power in this area and therefore can only be a “convenor of discussions”. The responses of the various governments with responsibility have been varied, and many would say too slow. Industry is calling for a uniform national response but this has not yet come to fruition. Responses have included the banning of certain cladding materials and the introduction of government-funded or supported cladding replacement schemes. These circumstances are a real challenge for the legal system. It is unclear as to whether the current laws will provide a timely, efficient and accessible solution for the individual owners and occupiers of these premises. The capacity for the existing legal rules to create obstacles, confusion and delay are real concerns. Then of course there is the traditional time limit on bringing relevant claims. I think there is a significant role for lawyers to design adjustments to the system to better address these concerns.
How does JBM Advisory distinguish itself from the competition?
I can provide the benefit of my many years of experience at a top-tier law firm, in a manner that provides clients with easy accessibility to that experience. The focus is to quickly find convenient, commercially palatable solutions, and to unravel the complexity of the legal landscape which is often challenging. Finally, it is my objective that the assistance I provide to clients is of a capital nature – an investment in their knowledge base. Not only do I help solve today’s problem, but I seek to provide the client with the tools and insight to solve similar problems tomorrow.
What is the greatest challenge currently facing construction specialists in Australia?
The drafting of long, convoluted and complex project contracts has become the norm. These contracts are often not administered as they are drafted – they are not accessible to those responsible for administration. A challenge for construction lawyers is to redefine what a contract for a complex project looks like: to produce a document that is clear and simple, and can be readily administered. Adding to the quality of contract administration is the most significant contribution a construction specialist can make. Breaking out of the habits of the past, which are an impediment to this, is the greatest challenge.
What advice would you give to younger practitioners hoping to one day be in your position?
Become deeply involved in the industry’s dynamics. Step outside the narrow role of a lawyer. Understand the challenges of, and be enthralled by, the industry – use your passion to drive and sustain you. If this is your focus you will win a loyal client base, gain a reputation and have a long and rewarding career.
You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?
I think the construction industry is a great untapped well of philanthropic energy – its resources and know-how are so important in improving the quality of life for so many in society. That energy is very often dissipated and diluted across individual organisations. I have been exploring ways for this energy to be harnessed and magnified. Success in achieving this would be of great benefit to society and would allow the industry to stand tall and proud. These efforts build on the terrific work already undertaken by various organisations such as the Lighthouse Foundation, Architects Without Frontiers, Engineers Without Borders and the Property Industry Foundation.
Q&A
WWL says
Phillip Greenham comes highly recommended for his sweeping knowledge of construction and government contracts law.Questions & Answers
How has your advisory practice provided you with insights into the evolution of the construction industry?
Since leaving MinterEllison three years ago my practice has evolved into an advisory practice. I undertake a lot of training, particularly in relation to contract administration. I will do strategic ‘order of magnitude’ reviews of disputes. I undertake industry research through the Melbourne Law School at the University of Melbourne. I also sit as an arbitrator in relation to construction disputes. This breadth of activities provides me with a broad overview of the ebb and flow of issues impacting the construction and infrastructure industries. I can say it is as energetic and interesting as ever.
What are the key influences and pressures impacting the construction industry currently?
Prior to the impact of covid-19 the construction industry in Australia was in a state of energetic turmoil. There had been a significant boom in city apartment towers for a number of years. This boom was now subsiding. Infrastructure spending by government was going through a once in a generation acceleration. This was long overdue as Australia had been falling behind in maintaining its infrastructure and building new infrastructure to keep up with population growth and technological change. However this significant activity, whilst keeping much of the industry very busy, was described by many as the profitless boom. There were real questions about the risks industry was accepting and the pricing of those risks. These pressures had resulted in industry and industry observers again looking at the issues of procurement methodology and risk allocation. One can only hope that on this occasion the reflection on these issues results in some positive behavioural changes – this had not been the case in the past.
How has covid-19 impacted the construction industry?
The construction industry has been exempt from many of the restrictions which government has imposed as a response to covid-19. The construction industry has been permitted to operate – albeit with social distancing restrictions operating. This is not surprising given that the industry employs approximately 1 million people and represents over 10 per cent of the economy. There have been some reports of projects progressing more quickly than would otherwise have been the case as a result of an extension to the hours within which work can be undertaken and there being less congestion in the vicinity of some developments. Other projects have been the subject of considerable delays. This has resulted in many contractors closely examining their contracts to seek out clauses which would give relief from delays and protection from liquidated damages. Most contractors have found that there is no such relief. The doctrine of force majeure does not exist as part of the general legal backdrop in Australia. The doctrine, and any other relief, is only available if the contract provides for it. It is now apparent that most relief clauses in contracts do not provide relief for an event such as covid-19. Some governments have extended extra contractual relief. There have been calls for the introduction of statutory intervention similar to the approach taken by Singapore. However, these calls have been muted and there is no real momentum behind this approach.
How successful do you think the government’s increase in spending on infrastructure will enable Australia to catch up on the lack of investment in the past?
The infrastructure catch up which I have already mentioned is placing many pressures on the industry. There has been consolidation amongst the first tier contractors over recent years and some observers fear that there is now not enough competition in the industry. However, this apparent lack of competition does not seem to be providing any strength to pricing and there are reported losses on a number of these projects – losses that could put balance sheets in jeopardy. There is also the question of a shortage of skills. The economy is generally short of STEM graduates and this is no less so than in relation to engineers and others servicing these large infrastructure projects. Recent research suggests that the time to move through the approvals process for large infrastructure projects in Australia is considerably longer than in many other similar countries. This length of time, coupled with a short political cycle and overlapping State Government and Federal Government interests can result in important projects being significantly delayed or put on hold indefinitely. With much of this infrastructure being critical to growing the economic capacity of Australia, these issues present a real challenge for the country.
How do risk allocation and profit margins continue to concern the industry?
The question of risk allocation and discussion on this issue is not new. There have been many academic and industry papers and much research and commentary. However, there has not, to my eye, been any real change in attitude. Governments and other organisations often say that they are only interested in allocating risks in a fair and balanced way. However, an examination of the relevant contracts is at odds with this expressed attitude. The noise from contractors would also suggest that risk is still being allocated in a way which contractors find irrational and balance sheet challenging. There was a flirtation with alliance contracting and other forms of collaborative for a few years but there is now diminished interest by many principals in these approaches. It is peculiar then that, in the continuing environment of tough allocation of risk and in an environment of a shortage of contractors for large projects, that profit margins are at low single digit levels. Indeed they are, often enough, negative. This strange combination of circumstances seems to be more prevalent at the large end of the market – amongst first tier contractors. At the next tier down there seems to be a more cautious approach to preserving capital. This combination of influences could well see a significant reorganisation of the contractor market place.
How does the quality of products continue to remain a key concern for parties in the construction industry?
As with other countries around the world, Australia has had some challenges with building quality. This has been most apparent in the case of the high rise city apartment buildings, but it is not confined to this area of the market. The difficulties have included flammable cladding, asbestos-containing building materials and general poor workmanship – sometimes with significant structural implications. With nine State and Federal Governments having an interest in this issue, it has been difficult to secure a uniform response. Whilst all governments are taking steps to respond to this issue there are still many different approaches being taken. This can create a challenge for those organisations which operate in a national market. No government has yet implemented a fulsome strategy to deal with the legacy non-compliant buildings. Unless such a strategy is introduced the burden of dealing with legacy buildings will generally fall on the current occupier. Often the cost of dealing with the non-compliance will be beyond the capacity of the current occupier. The legal system does not provide a convenient, cost-effective or readily accessible process to assist the current owners from holding the relevant participants accountable. Too much time may have passed resulting in the time barring of claims. The current owner is often not the contracting party and this creates its own legal challenges. The original contractor or advisor may no longer be in business. This is raising a real challenge for the community in terms of balancing the cost of quality with the availability of affordable buildings. This particular discussion is hidden deep in the background and is not being confronted by many of the industry commentators or those designing the solutions.
Global Leader
Professional Biography
WWL says
Phillip Greenham comes highly recommended for his sweeping knowledge of construction and government contracts law.
Biography
Phillip Greenham has practised construction law for over 35 years. He was a partner at MinterEllison for more than 25 years. He headed the construction, engineering and infrastructure group in the Melbourne office for 13 years. He is a founding director and a past chair of the Society of Construction Law Australia.
Phillip’s practice encompassed commercial drafting work, contract administration and dispute work in relation to a wide variety of construction engineering and procurement projects. Phillip now practises through JBM Advisory Pty Ltd and focuses on providing advisory and training services to the construction industry and other industries involved in complex procurement. Phillip also practises as an independent arbitrator and is a member of Arbitration Chambers in Hong Kong and London.
Phillip has specialised in the area of public sector procurement and assisting international construction and engineering companies navigate the Australian commercial and legal landscape.
The analysis of risk, whether through contractual documentation or business processes and behaviour, and the development of strategies to mitigate that risk is one of Phillip’s particular interests.
Training of personnel and the provision of tools to assist in the administration and management of projects in an efficient way, consistent with the assumed obligations, responsibilities and powers is important and is one of Phillip’s key strengths.
Phillip has a BSc. He brings techniques from this discipline to his practice of the law. These include Monte Carlo-style risk assessment tools and a focus on a return-on-investment analysis of disputes.
Phillip is an Enterprise fellow in the Melbourne Law School (University of Melbourne) and presents regularly on procurement methodology, contract administration and government contracting.
Professional Biography
WWL says
Phillip Greenham is lauded for his top-tier practice spanning complex procurement matters across the construction and infrastructure sectors.Biography
Phillip Greenham has practised construction law for over 35 years. He was a partner at MinterEllison for more than 25 years. He headed the construction, engineering and infrastructure group in the Melbourne office for 13 years. He is a founding director and a past chair of the Society of Construction Law Australia.
Phillip’s practice encompassed commercial drafting work, contract administration and dispute work in relation to a wide variety of construction engineering and procurement projects. Phillip now practises through JBM Advisory and focuses on providing advisory and training services to the construction industry and other industries involved in complex procurement. Phillip also practises as an independent arbitrator, and is a fellow of the Chartered Institute of Arbitrators and a former member of Arbitration Chambers in Hong Kong and London.
Phillip has specialised in the area of public sector procurement, and assisting international construction and engineering companies navigate the Australian commercial and legal landscape.
The analysis of risk, whether through contractual documentation or business processes and behaviour, and the development of strategies to mitigate that risk are among Phillip’s particular interests.
Training of personnel and the provision of tools to assist in the administration and management of projects in an efficient way, consistent with the assumed obligations, responsibilities and powers is important and is one of Phillip’s key strengths.
Phillip also has a BSc and brings techniques from this discipline to his practice of the law, including Monte Carlo-style risk assessment tools and a focus on a return-on-investment analysis of disputes.
Phillip is a senior fellow in the University of Melbourne (Melbourne law master’s programme) and presents regularly on procurement methodology, contract administration and government contracting.National Leader
Professional Biography
WWL says
Phillip Greenham ranks highly among peers for his excellence in construction projects, procurement processes and infrastructure matters.
Biography
Phillip Greenham has practised construction law for over 35 years. He was a partner at MinterEllison for more than 25 years. He headed the construction, engineering and infrastructure group in the Melbourne office for 13 years. He is a founding director and a past chair of the Society of Construction Law Australia. Phillip’s practice encompassed commercial drafting work, contract administration and dispute work.
Phillip now practises through JBM Advisory Pty Ltd and provides advisory and training services to the construction industry and other industries involved in complex procurement.
Phillip has specialised in the area of public sector procurement. His clients included a significant portfolio of government departments and agencies, and he also spent six months working inside the general counsel division of the Defence Materiel Organisation. He has advised on, drafted and negotiated contracts implementing a wide variety of procurement methodologies, including traditional construct-only and design and construct contracts; managing contractor contracts (both traditional and enhanced); alliancing contracts; early contractor involvement contracts; PPP contracts; and many others.
Phillip has a BSc and brings techniques from this discipline to his practice of the law. These include Monte Carlo-style risk assessment tools and a focus on a return-on-investment analysis of disputes.
Phillip is a board member of the Australian Construction Industry Forum, and a member of the International Academy of Construction Lawyers; the International Construction Lawyers Association; the Construction Lawyers Society of America; and the International Bar Association’s international construction projects committee.
Phillip is a senior fellow at Melbourne University and presents regularly on procurement methodology, contract administration and government contracting.
Phillip practises as an arbitrator, having been a member of Arbitration Chambers (with chambers in Hong Kong, New York and London) and now practising on his own account in Australia and the region. He is a fellow of the Chartered Institute of Arbitrators and a grade-two arbitrator.
Professional Biography
WWL says
Phillip Greenham is a top-tier procurement specialist, recognised for his leading work in the construction sector.
Biography
Phillip Greenham has practised construction law for over 35 years. He was a partner at MinterEllison for more than 25 years. He headed the construction, engineering and infrastructure group in the Melbourne office for 13 years. He is a founding director and a past chair of the Society of Construction Law Australia. Phillip’s practice encompassed commercial drafting work, contract administration and dispute work.
Phillip now practises through JBM Advisory Pty Ltd and provides advisory and training services to the construction industry and other industries involved in complex procurement.
Phillip has specialised in the area of public sector procurement. His clients included a significant portfolio of government departments and agencies, and he also spent six months working inside the general counsel division of the Defence Materiel Organisation. He has advised on, drafted and negotiated contracts implementing a wide variety of procurement methodologies, including traditional construct-only and design and construct contracts; managing contractor contracts (both traditional and enhanced); alliancing contracts; early contractor involvement contracts; PPP contracts; and many others.
Phillip has a BSc and brings techniques from this discipline to his practice of the law. These include Monte Carlo-style risk assessment tools and a focus on a return-on-investment analysis of disputes.
Phillip is a board member of the Australian Construction Industry Forum, and a member of the International Academy of Construction Lawyers; the International Construction Lawyers Association; the Construction Lawyers Society of America; and the International Bar Association’s international construction projects committee.
Phillip is a senior fellow at Melbourne University and presents regularly on procurement methodology, contract administration and government contracting.
Phillip practises as an arbitrator, having been a member of Arbitration Chambers (with chambers in Hong Kong, New York and London) and now practising on his own account in Australia and the region. He is a fellow of the Chartered Institute of Arbitrators and a grade-two arbitrator.
Professional Biography
WWL says
Phillip Greenham is a widely recognised name in the Australian market, thanks to his top-notch handling of complex construction disputes.
Biography
Phillip Greenham has practised construction law for over 35 years. He was a partner at MinterEllison for more than 25 years. He headed the construction, engineering and infrastructure group in the Melbourne office for 13 years. He is a founding director and a past chair of the Society of Construction Law Australia. Phillip’s practice encompassed commercial drafting work, contract administration and dispute work.
Phillip now practises through JBM Advisory Pty Ltd and provides advisory and training services to the construction industry and other industries involved in complex procurement.
Phillip has specialised in the area of public sector procurement. His clients included a significant portfolio of government departments and agencies, and he also spent six months working inside the general counsel division of the Defence Materiel Organisation. He has advised on, drafted and negotiated contracts implementing a wide variety of procurement methodologies, including traditional construct-only and design and construct contracts; managing contractor contracts (both traditional and enhanced); alliancing contracts; early contractor involvement contracts; PPP contracts; and many others.
Phillip has a BSc and brings techniques from this discipline to his practice of the law. These include Monte Carlo-style risk assessment tools and a focus on a return-on-investment analysis of disputes.
Phillip is a board member of the Australian Construction Industry Forum, and a member of the International Academy of Construction Lawyers; the International Construction Lawyers Association; the Construction Lawyers Society of America; and the International Bar Association’s international construction projects committee.
Phillip is a senior fellow at Melbourne University and presents regularly on procurement methodology, contract administration and government contracting.
Phillip practises as an arbitrator, having been a member of Arbitration Chambers (with chambers in Hong Kong, New York and London) and now practising on his own account in Australia and the region. He is a fellow of the Chartered Institute of Arbitrators and a grade-two arbitrator.
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