Describe about the Management Law for Anglo-Australian Transnational Resources.
BHP Billiton is an Anglo-Australian transnational resources firm that has its headquarters in Melbourne, Australia. The company is the world’s biggest mining multinational as ranked in 2015 by marketplace values, as well as Australia’s fourth principal firm by returns. This company was established in 2001 via the amalgamation between the Australian Broken Hill Proprietary (BHP) and Billiton. BHP Billiton has effective compliance policies towards competition that has enabled the company to thrive in the industry. The company is committed to full compliance with competition laws, which are in line with the provisions of the Competition and Consumer Act 2010 (Cth) (CCA) (Paterson, 2011).
In Australia, all business, as well as marketing are needed to carry out cyclic law risk assessments in consultation with the Compliance and Legal Functions. BHP Billiton has developed effective competition law risk assessment strategy that ensures that the company adopts effective strategies towards competition compliance outlined in CCA. The assessment as a strategy is designed to make sure that the company adopts effective competitive strategies that will not harm it while executing them. The assessments undertaken by BHP Billiton follow the company’s standard risk assessment procedure, which comprise as a process for identifying and constantly evaluating the effectiveness of the controls that are regarded as vital to manager competition law risk (Paterson, 2011).
Competition law training and awareness
BHP Billiton ensures that employees that deal with competition laws and those who have constant interaction with competitors are given adequate training and awareness. They are also trained in the ways of complying with competition laws through the Compliance Function. Steps are undertaken across the company to regularly raise awareness of competition law matters to boost the compliance of the company towards competitive laws (Beaton-Wells, 2016).
Confidential reporting and investigations
BHP Billiton has developed a confidential reporting and investigation strategies that are geared towards promoting compliance towards competition. The company supports and motivates employees to report suspected competition matters through the manager, the Legal, and Compliance Functions, or through EthicsPoint as provided in the CCA (Hazel, 2015).
Competition law risk assessment strategy used by BHP Billiton is vital because it ensures that the competition laws are evaluated to ensure that compliance with these laws are not violated in any way. The assessment process includes constant assessment through the identification and testing the efficiency of the controls that are important in managing competition law risk. This strategy will eliminate anti-competitive behavior of the company that could attract legal actions against the company and ensures that its competition is in line with the law, thus promoting healthy competition in Australia (Paterson, 2011).
Training and awareness on methods of confidential reporting and investigation are important in ensuring that the employees of the company understand the need to understand the ways of reporting compliance and investigation to promote competition in Australia. For example, the employees at BHP Billiton are trained on ways of approaching reporting non-compliance on competition laws by the competitors and ways of investigating the violation of those laws. Also, the training and awareness, emphasize the need for competition law compliance, as well as the significance of working with integrity when handling third parties, comprising rivals (Beaton-Wells, 2016).
Effective reporting and investigating practices are important towards compliance with competition laws for the company. The reporting and investigation strategies will allow the company to develop ways of investigating and reporting issues of compliance or non-compliance of competition laws, which will promote competition in the industry. For example, the company has promoted competition by encouraging employees and other stakeholders to report anti-competitive behaviors of competitors, clients, or suppliers (Beaton-Wells & Tomasic, 2012).
There are several recommendations that BHP Billiton to promote compliance with competition laws in the industry. The company should adopt these recommendations to become successful in its efforts to succeed in ensuring that laws in compliance regarding competition in Australia have been complied with. The recommendations are based on the book by Tony Ciro Chapter 16 of the b book “Vivien Goldwasser and ReetaVerma, Law and Business, 4th ed”. The following are the recommendations:
BHP Billiton should ensure that standard forms of contracts do not have unfair terms, which will ensure that it is in compliance with the existing laws on competition and promote customer satisfaction. The company’s consumers have legislative protection from unfair terms when it comes to consumer contracts and other contracts touching suppliers (Paterson, 2011). Unfair terms will hurt the consumer because customers and other stakeholders enter into diverse contracts every day. Thus, standard contracts with fair term will offer the company increased protection against any form of competition and promote fairness with the business.
The company should be in the forefront in honoring the customer’s needs because the laws on competition demand that companies should honor the customers’ guarantees. BHP Billiton should provide the clients with a fundamental set of consumer guarantees when they buy the products. This would make sure that the clients have the rights if they purchased a product, which breaks easily, does not function or does not perform as anticipated. The consumer guarantees cannot be changed, excluded, or limited by a contract. The guarantees will give the customers the option to approach the company to get a solution regarding the product they purchased from them, which will portray the company as being compliant with laws governing competition (Hazel, 2015).
BHP Billiton should guarantee the safety of products and services to sell, which is one of compliance requirements in Australian towards promoting competition. The company should ensure that the products and services meet the safety standards as stipulated in the industry and that it complies with the existing CCA laws. It should provide safety warnings on the products and impose mandatory safety standards of its products and services, which will ensure that the company is compliant with competition laws as provided in CCA. This will ensure that the company does not fall into the same trap that Wal-Mart faced regarding non-compliance of safety products (Beaton-Wells, 2016).
The company should comply with rules on sales practices, like information sharing and prices, in which the company should share vital information regarding the price of its products and services and promotions with customers. Information on prices will ensure that the company gives the right price information regarding the product and services, allowing the customer to make informed decisions. Companies, like Asda, have been found in the past to have misled its customers on the prices of Robinsons Orange Fruit Squash.
Negligence in its legal sense implies a failure in the law to do a what a reasonable individual could have done in the situations. For one to establish liability, a claimant should originally proof that the defendant owed a duty of care towards the claimant. In some years, the law has established the need that individuals, companies, and governments must carry out their affairs to the standard needed for the reasonable person. Usually, liability comes in where there is a duty of care and in which a violation of that duty leads to damage or harm to an individual. In the duty of care, a duty to undertake reasonable care owed at the time of the action of negligence by the defendant to the claimant (Fletcher, 2016). Under negligence, a violation of the duty of care by the defendant entails a situation in which the defendant failed to confirm the needed standard of care. Therefore, failure to establish the standard of care will result in breach of the law, and one is liable to charges. During the 18th and 19th century, the common law acknowledged the duty of care in diverse limited relationships, like a guest and the innkeeper, passenger and carrier, and occupier of the land and visitor among others. In this case, there must be the relationship between the claimant and the defendant (Zipursky, 2015).
In the case of Loki and Bungee World Ltd (“BW”) was practically a case of negligence on the part of the company. Our company failed in their part because they never inspected the steel structure clearly understanding that the steel usually undergoes corrosion and it was our duty to replace the worn out parts to avoid causing accidents, like the one that happened. Our company through the maintenance department could have acted on their part and inspect the steel structure to make sure that there is no corrosion. I believe that we had a duty to make sure that our operational activities are intact and that the steel structures are inspected on every occasion to find out if there is any corrosion (Gans, 2012). It is a fact that the steel structures are susceptible to corrosion because of the environment where our facility is situated and the nature of the material. The steel structures are vulnerable to corrosion because of the moisture that comes from the water, and we should have considered this aspect. The operator the Seamonster during the time assured Loki that everything was safe and there was unlikely of harm being experienced while in the facility. Under negligence, a reasonable company could have foreseen the incident by ensuring that the steel structures are in good condition and could cause any possible harm to the customer (Trindade et al, 2007).
In the scenario, Loki was the first-time customer in our facility, which implies that this provides the relationship between the Loki and the company and that it makes us liable. We also assured Loki that everything was safe only to find out that he suffered a nervous shock because of the broken steel structure. It was clear that our company could have taken the precaution of ensuring that the steel structures in the facility was functional and could not break while the clients are using it. This implies in the court the company will be held accountable for the negligence because if there were sufficient precaution, the client could not have suffered the nervous shock and that there was a probability that the harm could have occurred if adequate care was taken as provided in the Civil Liability Act 2002 (NSW). Therefore, the company breached the duty of care because it failed to take the precaution of inspecting and repairing the steel structure because the company ought to understand that the environment that it operates in has sea moisture and the steel structures are prone to corrosion (Latimer & CCH Australia Limited, 2011). This case can fall under what happened in Wyong Shire Council v Shirt (1980) 146 CLR 40 where the council was held liable for the injury because of the negligence issues.
The company should take the precaution by ensuring that it approaches the claimant (Loki) and determine the nature of the nervous shock, he sustained in the company’s facilities because of the broken steel. This will ensure that the company is prepared to understand the complaints of the claimant and find out if the shock had serious implications for his health. This will ensure that the company understands the dynamics of the claims and they can “prepare” accordingly in the case. The company could claim that the claimant (Loki) suffered no major injuries as it only nervous shock because of the incident, which means that there was no “actual” injury on the side of the client (Van Dongen & Verdam, 2016).
Because the company understands clearly that they breached the duty of care by not adequately taking the needed precaution, they should approach Loki and persuade him that they will take care of his medical bills and possibly compensate him. This will avoid negative effects on its image and will allow the company to continue its operations. The court case will likely to taint the reputation of the company because it will appear in the eye of the public that the company has not put adequate measures to avoid failures of its structures (Nolan, 2013).
References
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Beaton-Wells, C. (2016). Private Enforcement Of Competition Law In Australia — Inching Forwards?. Melbourne University Law Review, 39(3), 681-737.
Beaton-Wells, C., & Tomasic, K. (2012). Private Enforcement Of Competition Law: Time For An Australian Debate. University Of New South Wales Law Journal, 35(3), 648-682.
Cameron, G. D. (2015). International business law: Cases and materials. SAGE Publications.
Cejnar, L. (2011). After the global financial crisis: key competition law developments in Australia, the United States, the EU and the UK. Law & Financial Markets Review, 5(3), 201-212.
Danov, M. (2016). Global competition law framework: A private international law solution needed. Journal Of Private International Law, 12(1), 77-105.
Fletcher, S. H. (2016). Who Are We Trying To Protect? The Role Of Vulnerability Analysis In New Zealand’s Law Of Negligence. Victoria University Of Wellington Law Review, 47(1), 19-39.
Gans, J. (2012). Modern criminal law of Australia. Cambridge: Cambridge University Press.
Hazel, D. R. (2015). Competition In Context: The Limitations Of Using Competition Law As A Vehicle For Social Policy In The Developing World. Houston Journal Of International Law, 37(2), 275-351.
Kaal, W. A., & Painter, R. W. (2012). Forum Competition and Choice of Law Competition in Securities Law After Morrison v. National Australia Bank. Minnesota Law Review, 97(1), 132-205.
Lanham, D., Bartal, B. F., Evans, R. C., & Wood, D. (2006). Criminal laws in Australia. Annandale, N.S.W: The Federation Press.
Latimer, P. S., & CCH Australia Limited. (2011). Australian business law 2012. North Ryde, N.S.W: CCH Australia.
Nolan, D. (2013). Damage in the English Law of Negligence. Journal Of European Tort Law, 4(3), 259-281.
Nolan, D. (2013). Negligence and Human Rights Law: The Case for Separate Development. Modern Law Review, 76(2), 286-318.
Padovan, A. V. (2016). The Professional Salvor’s Liability In The Law Of Negligence And The Doctrine Of Affirmative Damages. Comparative Maritime Law / Poredbeno Pomorsko Pravo, 55(170), 133-139.
Paterson, J. M. (2011). The New Consumer Guarantee Law And The Reasons For Replacing The Regime Of Statutory Implied Terms In Consumer Transactions. Melbourne University Law Review, 35(1), 252-279.
Trindade, F. A., Cane, P., & Lunney, M. (2007). The law of torts in Australia. South Melbourne: Oxford University Press.
Van Dongen, E. D., & Verdam, H. P. (2016). The Development of the Concept of Contributory Negligence in English Common Law. Utrecht Law Review, 12(1), 61-74.
Witt, A. C. (2012). Public Policy Goals Under Eu Competition Law–Now Is The Time To Set The House In Order. European Competition Journal, 8(3), 443-471.
Zipursky, B. C. (2015). Reasonableness In And Out Of Negligence Law. University Of Pennsylvania Law Review, 163(7), 2131-2170.
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