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BULAW5911 Managing the Legal Environment - Federation University
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Case Study 1
1. Why was there pressure exerted on the Federal Government to have a Royal Commission?
2. What arguments did the Government and Financial Services Sector use to reject the call for a Royal Commission?
3. Using one bank or other provider as an example (so you can use either IOOF, NAB or any other provider testifying before the Commission), what governance issues did the commission investigations and hearings identify for that provider?
4. From a governance perspective, how has that provider responded to the Commission findings?
5. What (if any) implications do those specific findings have for corporate governance in Australia?
Issue
The different issues that are identified are ASIC (Australian Securities and Investments Commission) and APRA (Australian Prudential Regulation Authority) consider organizations as criminals that indulged in charging fees for providing no service practice. Another issue that is identified is ASIC overlooks sector related to superannuation. The different issues that were identified in this report are that many financial institutions and organizations were indulged in money laundering, the impropriety of foreign exchange trading and ignoring of statutory responsibilities of reporting. In addition to these, the other issues identified in this report are auto lending issues, corporate governance issues and improper abiding of the laws. The risks related to non-compliance of statutory obligations are fines can be charged by the court, removing from the listing of Australian Securities Exchange Limited. In addition, the other issues that are faced are not reporting of the insurable event which can lead to the organization being uninsured and need to pay heavy tax liability for non-compliance of tax regulations and laws.
Rules
The objective of the Anti-money laundering and counter-terrorism financing Act, 2006 is to combat terrorism financing and money laundering (Legislation.gov.au,2019). As per the Anti-money laundering and counter-terrorism Financing Act, 2006 the financial institutions and organizations need to come up with a special anti-money laundering program in order to combat the laundering of money. As per Privacy act, 1988, the employees of any organization do not have any kind of right to share confidential information such as proprietary positions, orders that are pending of clients with other individuals (Oaic.gov.au, 2019). As per the Australian Securities and Investments Commission, the company is not allowed to indulge in any kind of illegal activity such as foreign exchange trading and not complying with statutory laws. As per the Governance of Australian Government Superannuation Schemes Act 2011, it is mandatory for employers to contribution related to superannuation for the employees (Legislation.gov.au, 2019). The rate of superannuation is nearly 9.5%. As per
Application
Commonwealth bank indulged is financial planning scandal that is financial advisors of banks misled and gave false information to its customers and made speculative and false recommendations related to investments resulting in its customers losing millions of dollars thereby resulting in Common Wealth bank paying nearly $ 1 trillion fines (abc.net.au,2018). As per the court, CBA indulged in breaching of Anti-money laundering and terrorism financing legislation. The Common Wealth Bank and National Australian Bank have been held guilty by the court for inappropriate trading of foreign exchange. The financial organizations were involved in exchanging of two different currencies at a certain price on the date that is agreed between them. The Australian Securities Commission found out that an employee of the National Australian Bank shared confidential information such as pending orders of clients, participants that have participated in the external market, proprietary potions and identifying clients using various code names and entered the intro trading platform with different offers without any legitimate reasons.
Conclusion
It can be concluded that the different issues that led to the occurrence of the Royal Commission of India are money laundering, financing of terrorism, foreign trade exchange, and non-compliance of statutory regulations. It can also be said that the different banks such as Commonwealth Bank and National Australian Bank are found to indulge in the anti-money laundering act and exchange of foreign trades. It can also be said the different laws that help in protecting organizations from indulging in illegal activity are Anti-money laundering and counter-terrorism financing Act, 2006 and Privacy Act, 1988. It can be also said the different risks involved are paying of heavy fines, removal from a listing of Australian Securities Exchange Limited.
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Case Study 2: Contract
• What, if anything, is different in an employment contract as compared to other types of contract such that they tend to attract higher levels of regulation and enforcement?
• What common factors can you identify in the exploitation cases that have been reported/investigated?
• Should there be freedom of contract in relation to employment contracts? Why or why not?
• What risk management issues should an employer or potential employer consider when deciding on terms and conditions of employment?
• Referring to one example of where employee exploitation has been identified, what steps should the employer have taken to address the legal risks of the situation?
Issue
Fairfax Media found and published the different factors related to exploitation cases such as visa holders and workers are being paid low wages. The other issue is that employees are working long hours and doing over time but are not being paid for the overtime work done and performed. In addition, the other issue found is that employees are being paid as per their work performed, however, they are required to pay a portion to their employers thereby resulting in being underpaid in other terms cash back. Moreover, another issue being faced is the non-compliance of laws and exploitation of workers by different organizations.
Rules
Fair Work Amendment (Corrupting Benefits) Act, 2017, Section 2, subsection 536F, prohibits employees or employees to provide cash or any kind (legislation.gov.au, 2019). As per this Act, the employee or employer or any corporation that pays cash is charged with a penalty of 2500 units. The individual is found to pay cash then penalty as per this Act is imprisonment for 2 years or 500 unit's penalty. As per the Fair Work Act, 2009, section 4, subsection 20, the number of ordinary hours to be worked for employees is the agreement made between employees and employers (legislation.gov.au, 2019). As per Fair Work Act, Division 4, section 20, subsection 2, if a number of hours to be worked by employees are not stated then the hours that employees are entitled to work for is 38 hours a week. As per Work Fair Act,2009, Divison2, section 134, subsection 1, the employees that are working overtime need to given additional remuneration. As per Fair Work Amendment (Protecting Vulnerable Workers ) Act,2017,Divison 4, subsection 712AA, states that an employee or an individual can apply for a notice in Fair Work Ombudsman, provided they are being underpaid or being forced to make payments to employers that are being paid to them or unreasonable deduction is made from their wages (legislation.gov.au,2019). As per Fair Work Ombudsman, overseas workers are entitled to the same pay and benefits as regular's employees provided they are 482 or 457 visa holders (fairwork.gov.au, 2019).
Application
In the case of 7-Eleven Operators, the court charged a penalty of nearly $1 million for the exploitation of its workers. The organization indulged in falsifying of records and concealing of underpayments. The reason for a court order to paying a penalty of $1 million is the organization was found to be making underpayments to its workers (abc.net.au, 2017). As per Fair Work Ombudsman, the minimum wage is nearly $18.93 per hour or $ 17.90 per hour (fairwork.gov.au, 2019). The court declared that 7 -Eleven operators are indulging in breaching of legislation because they have to pay their workers $13 per hour whereas employees to be paid $18 or $17 per hour. Similarly, Siner Enterprises Pvt, Ltd has been asked to be pay penalty of $ 2, 00,000 because of exploitation of sea worker and later sacking the worker by sending a text message (fairwork.gov.au, 2018). In an employment contract, the rules and regulations are related only to workers rights whereas other laws and legislation are related to hours worked, underpayment, minimum wage.
Conclusion
It can be concluded that the limitation of freedom of contract in relation to an employment contract is fear of commodification of products, presence, and effect of a third party and imperfect information on account of both the parties. The risk management issues that the employer needs to consider while preparing employment contracts are remuneration is being paid to employees for overtime, training is provided to them and most important workplace safety is to be maintained.
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Case Study 3 : VW Emissions Scandal
1. What likely motivations drove VW to cheat on the tests over an extended period?
2. What were the likely results of this cheating on the social and market perceptions of VW and its products?
3. What are the long and short term implications for VW as a result of the publicity around the manipulations?
4. What impact do you think these implications have on their strategy and governance?
5. What does the VW story suggest in terms of risk management?
Issue
Volkswagen is accused of cheating on emission tests for diesel cars. The issue is Volkswagen avoided emission tests that is a test in which certification is provided to companies that particulates emitted by engines from cars do not exceed the maximum levels. Moreover, Volkswagen was accused of installing defeat engines which helped the company in meeting standards of exhaustion in tests however emissions exceeded limits stated. Moreover, the nitrogen oxide emitted by the cars led to people suffering from cardiovascular and respiratory diseases.
Rules
The objective of Fuel Quality Standards Act, 2000 is to reduce pollutant levels and emission that arises using fuel thereby causing health problems (Legislation.gov.au, 2019). This act also facilitates the adoption of efficient and better emission technology. As per the Australian National Registry of Emission Units Act, 2011 states that the organizations need to obtain long-term certification of emission as per Kyoto rules (Legislation.gov.au, 2019). As per the Product Emission Standard Act, 2017 the person that commits offense related to emission needs to pay a penalty of 60 units and the civil penalty charged is nearly 120 units (Legislation.gov.au, 2019). As per the Environmental Protection Air Quality Policy Act,2016, states that for minimizing risks related to air emission can be done through obtaining a license (epa.sa.gov.au,2019). As per Motor Vehicles Standard Act, 1989, section 5, subsection 5.6, states that the maximum content of phosphorus to be present is 0.6 and the maximum amount of methanol is 0.5. As per this Act, Volkswagen cars are entitled to contain nearly 0.6 phosphorus in their cars.
Application
The factors that motivated Volkswagen to cheat is the profit and savings of costs. The Emission scandal of Volkswagen harmed the image of automakers due to which the sales of the organization decline by nearly 2%. Volkswagen comparatively emitted nearly 50% of more nitrogen dioxide as compared to other vehicles and it led to nearly 38000 premature deaths. Another implication of this scandal is that Volkswagen has to pay nearly $22 billion in fines for a legal settlement. The implication of Volkswagen emission scandal is that it announced a plan to refit nearly 11 million vehicles. As discussed by MacLennan (2019), the negative implication of this on Volkswagen is that the company lost 3.5% of its market capitalization.The implication of this scandal on the automobile industry is led to a decline in sales of the company by 1%. The consequence of the decline in market capitalization is it led to a decline in sales and revenue turnover of the organization. The risks that are involved in related to this scandal are health issues such as breathing and cardiovascular diseases. In addition to this other risks involved is a decline in sales and revenue turnover of the organization. As per WHO guidelines, 25% of emission is permitted above maximum levels. The scandal led to an increase of 8 billion dollars for legal risks and increased liabilities by $ 1.2 billion.
Conclusion
It can be concluded that the different issues that exist are excessive emission of nitrogen dioxide thereby impacting the health of the people. It can also be said that the implication of this scandal is that it led to a decline in market capitalization and had to pay a huge amount of fines. It can be said that the different strategies to manage this risk is installing software's that helps in reducing emission.Moreover, it causes implication related to health issues such as causing premature deaths and rise of breathing problems among people. It can be said this scandal leads to people suffering from various health issues.
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Case Study 4: Australian Wheat Board
1. Why do you think AWB was able to pursue the behaviour that led to the scandal?
2. Why did the AWB scandal attract so much attention both nationally and internationally?
3. Who was affected by the scandal and the final outcome?
4. Why are the answers to 1 and 2 important in terms of legal risk management? Why and how?
5. How important is organisational reputation to sustainability of the organisation? Why?
6. Do you think the AWB should have admitted wrongdoing early or was it better to deny? Why? What else should it have done?
7. Who lost the most? Do you think that reasonable as a reflection of culpability? What does that suggest in terms of the focus of legal risk management?
Issue
Australian Wheat Board became embroiled in a wheat scandal with the Government of Iraq. The Australian Wheat Board was accused of controlling more than 80% wheat market of Iraq. In 2005, the US called on inquiry in the Oil-for-Food Program in which the Australian Wheat Board was found to be paying 300 million dollars as kickbacks to the regime of Iraq. It is found by the US that nearly 2200 companies were involved in paying bribes to the Government of Iraq.
Rules
As per the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act, 2000, section 141. Subsection 1, the person can be held guilty if he indulges in any kind of bribery or provides any kind of benefit to another person (Legislation.gov.au, 2019). As per the Criminal Code Amendment Act, section 141. Subsection 141 (2), the individual who provides bribery is entitled to the imprisonment of 10 years. As per the Criminal Code Amendment Act, 2000, section 141. Subsection 141(3), the person who receives bribe can be held guilty provided that they receive any kind of bribe or benefit for themselves then the individual is entitled to the imprisonment of 10 years as a penalty. As per the Criminal Code Amendment Act, section 142, subsection 142(1), the person or organization that indulges in giving corrupting benefits is liable for imprisonment for 5 years (Legislation.gov.au, 2019). As per the Criminal Code Amendment Act, section 142, subsection the person who receives any kind of bribery is entitled to the imprisonment of nearly 5 years. As per the Criminal Code Act, 1995, foreign bribery is providing benefits to foreign public official's.The bribery can be in the form of payment of cash, holidays and gifts. As per this Act, the penalty for foreign bribery for both individual and corporate organizations.The individual is entitled to imprisonment for 10 years whereas the corporate organizations are entitled to pay a fine of nearly 1.7 million Australian Dollars or three times of bribe value whichever is greater or 10% of their annual turnover (Afp.gov.au, 2019).
Application
The Australian Wheat Board Scandal resulted in condemnation and litigation internationally. The worst affected by this scandal that is farmers claimed nearly $ 1 billion stating that Australia made use of bribe and corrupt activities for cornering grain market of Iraq. The other implication of this scandal is that the Australian Government distanced it's from the Australian Wheat Board and later AWB was converted into a private company. The impact of this scandal on the Australian Wheat Board is that it led to a decline in sales and revenue due to the brand image being affected and they were converted as a private company. As discussed by Davis (2018), it is found that the nearly $ 1.8 billion was paid as bribes to the Iraqi Government our which the largest contributor was Australian Wheat Board that contributed paid nearly 14% of its bribes. As per the Criminal Code Act, 1985, the AWB is entitled to pay bribery of nearly 1.7 million dollars or 10% of their annual turnover. The scandal also led to the questioning of the sustainable practices adopted by Volkswagen.
Conclusion
It can be concluded that the different issues that arise from this case are bribery and corruption issues. Moreover, the Australian Government tried to corner and capture the wheat market of Iraq by providing them kickbacks and bribes. The stakeholders affected by this scandal are farmers, the Government of Iraq and Australia. The implication of this is that the Australian Government distanced itself from ASB and it was converted into a private company.
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