Describe about the Management Law for Engineering Firms in Australia.
1. For the given question, AECOM Australia Pty Ltd, otherwise known as AECOM, has been selected.
(a)
AECOM has been included in the top 100 Engineering Firms in Australia (Casey, 2012). AECOM has formulated three major strategies which are focused towards the regulatory compliance. AECOM strategies include leveraging on the competitive strengths of the company; leveraging on the leadership position which the company has in its core markets; and leveraging on the relationships with the clients across its major geographies. AECOM has created an integrated delivery system which has better capabilities to build, operate, design and finance the infrastructure assets across the globe. By such integration, as well as providing a broader range of services, the company delivers maximum value to its customers, at competitive costs (AECOM, 2016).
These strategies of the company have been stated clearly in the Annual Report of the company for the year 2015 (AECOM, 2016). Further, the homepage of the website of AECOM clearly states that the company works towards building and delivering a better world (AECOM, 2016). The words stated on the homepage cover that the company plans to transform the community by improving lives and powering growth through building, operating, designing and financing infrastructure assets across the globe. So, the strategies of the company have been thoroughly advertised for the world to see. Even the investor page of the company mentions the same strategies, so that the potential investors can clearly understand the importance of such strategies for the company (AECOM, 2016).
These strategies of AECOM majorly contribute to the compliance of regulations as specified with respect to the competition provisions stated in the Competition and Consumer Act, 2010 (Cth). The first strategy of the company is to leverage on the competitive strength of the company. The main objective of the Act includes the promotion of competition, free trading, as well as, protection of the consumers, and this has to be done so as to enhance the wellbeing of the Australians. The first strategy of AECOM clearly lines up with the objectives of this Act.
The second strategy of the company is to leverage on the leadership position which the company has in its core markets. Being in a leadership position, AECOM has the capability to influence as well as motivate its competitors to follow the objectives of the Act, as is done by the company. In order to compete with the leader of this segment, the other companies are bound to follow the strategies of the leader, which is AECOM in this case. This helps in attainment of the objectives of this Act. The last strategy of the company is to leverage on the relationships with the clients across its major geographies. By establishing better relationships, the consumers are protected. And again, the objectives of the act are fulfilled.
The Competition and Consumer Act, 2010, before January 1, 2011, was known as the Trade Practices Act, 1974 (TPA). The company had its share of the contravention of the Trade Practices Act, in the case of Rivercity Motorway Finance Pty Lt (Administrators Appointed) (Receivers and Managers Appointed) v AECOM Australia Pty Ltd (No 2) [2014] FCA 713 (Jade, 2016). In this case, proceedings were brought against AECOM for contravention of the TPA section 52. This Section of the TPA dealt with the misleading and deceptive conduct of a corporation and prohibited a corporation from indulging in such conduct, during the course of trade and commerce (Australasian Legal Information Institute, 2016). This section is now covered in the Section 18 of the Australian Consumer Law, which is contained in the Schedule 2 of the Competition and Consumer Act, 2010 (Australasian Legal Information Institute, 2016).
This case establishes that AECOM has had a history of contravening the Competition and Consumer Act. So, certain recommendations are stated here which could improve the AECOM’s management activity in competition law compliance. Firstly, the company should strictly adhere to its strategies as they promote the compliance of the objectives of the Act. Secondly, the company should ensure that there are no incidences of contravention of this Act. Further, the management of the company should ensure that such cases are not repeated in future, where AECOM is held liable for any kind of misleading or deceptive conduct. Misleading and deceptive conduct is specifically prohibited in the Competition and Consumer Act and such violations could hamper the strategies of the company. A violating company would not be able to sustain its leadership position in the market and this would mean financial loss for the company. This would also reduce the competitive strength of the company, as a contravening company has a bad public image, which results in a loss of clients. Also, such incidents would hamper any relationship with the client.
So, it is recommended to AECOM to ensure that it follows the provisions of the Competition and Consumer Act, both in letter and in spirit. Further, it should ensure that the incidents of contravention of the Act are not repeated. Lastly, the company should keep on working on the strategies it has made, as they ensure a proper compliance of the regulatory legislation.
To: The Board of Directors of Bungee World Ltd
From: Manager- Safety Operations at Bungee World Ltd
Date: September 26, 2016
Subject: Negligence action against Bungee World Ltd
Through this memorandum, the grounds for a successful negligence case against Bungee World Ltd (BW) as well as the resulting consequences have been analyzed. In order to resolve the damage caused by the potential public relations problem, certain recommendations are also provided.
To understand this case, the basic concept of negligence has to be clarified. When a person owes a duty of care to another person but fails to fulfill such duty, and as a result of such failure, the other person incurs a loss or injury, it is the case of negligence. Negligence is covered under the Law of Tort in Australia and is considered as a civil wrong. To establish a case of negligence, the presence of duty of care is essential. Further, there should be a breach of this duty of care and most importantly, the breach must result in an injury which cannot be considered as insignificant.
A breaching party is considered as negligent only when the foreseeability of the risk can be established. Further, such risk has to be relevant and not insignificant. If a risk is considered as remote, the damages are not provided under the Civil Liability Act, 2002 (NSW). The concept of duty of care was established in the case of Donoghue v Stevenson [1932] AC 562, where the lady was successfully able to establish, that the manufacturer of the ginger beer owed a duty of care towards the lady, and had failed to fulfill such duty (LawGovPol, 2014). In the case of Djemal v Bexley Health Authority 1995 QBD, the judges held that a standard of skill and care is expected in the A&E departments and hence, a breach of such duty was established in this case (Sixth Form Law, 2008).
The Section 5R of the Civil Liability Act, 2002, acts as a defense to the breaching party, as this section contains the provisions regarding the standard of contributory negligence (Australasian Legal Information Institute, 2016). As per this section, to determine the negligence of the breaching party, it has to be determined whether the person, who was injured or suffered a loss, has contributed towards such negligence, by failing to take the necessary precautions to ensure that no harm was caused. So, a person owes a duty to himself, and this duty is in the nature of care. When the aggrieved party fails to ensure this duty of care, the party is held in contributory negligence and is denied any relief in form of remedies.
As per the sections contained in the Division 5 of the Civil Liability Act, 2002, no liability occurs when harm is suffered as a result of an obvious risk relating to a dangerous recreational activity. And so, a breaching party cannot be held liable in negligence, for such harm caused to the aggrieved party (Section 5 L) (Australasian Legal Information Institute, 2016). Further, section 5M of this act, states that the breaching party is not liable for a breach of duty of care, when there was adequate risk warning given to the aggrieved party who was engaged in such a recreational activity (Australasian Legal Information Institute, 2016). This section also provides that the breaching party does not have to establish that the aggrieved party understood or received such a warning.
The voluntary assumption of a risk includes the knowledge and the consent (Hobart Community Legal Services, 2013). People who are engaged in recreational or dangerous activities are assumed to have the knowledge about the risk related to such activity and hence, they cannot hold the provider of such activities liable in negligence.
In the given case, BW was the provider of the recreational activity of Bungee jumping for a fee of $50. The undertakers of this activity are required to sign the form which clearly states the warning, and that BW could not be held liable for the resulting death or injury, as a result of indulging in the activity of bungee jumping. So, in this case, Loki would not be successful in bringing claims against BW, as the sections of the Civil Liability Act, 2002, clearly prohibit Loki from holding BW liable for the injury caused, as a result of undertaking the activity. Also, Loki did not receive any physical injury and claims to have suffered a nervous shock. So, the injury here is too remote. And this the reason Loki would fail in his claims.
Even though Loki would fail in his claims, but this incident would cause potentially damaging public relations problem. So, it is recommended to the Board to formulate a crisis management team which could deal with the damages caused by such incidents. Also, such team should ensure that no incidents of this nature occur in the future. Further, BW should change the steel structure that broke down due to corrosion caused by the sea moisture. Also, BW should properly advertise the changed structure, so that the future clients can be ensured about the safety and integrity of the structure.
3. A set of 10 minimum employment entitlements have been provided to the employees working in Australia and are as known as the National Employment Standards or NES (Fair Work Ombudsman, 2016). The NES along with the national minimum wages form these minimum entitlements for the people working in the country. Any enterprise agreement, award, registered agreement, or employment contract, cannot present such conditions which are less than the NES or the national minimum wage. The NES cannot be excluded in any circumstances.
The 10 minimum entitlements as stated by the NES include the rights of every new employee to receive the Fair Work Information Statement; the notice for redundancy pay as well as notice of termination; a right to be able to request for flexible working arrangements; the maximum standard of a working week should have 38 hours, for the full time employees, along with the necessary additional hours; long service leave; the parental as well as adoption leave of 12 months, which would be unpaid and an availability of the right to request for an additional 12 months for this leave; a total of four week paid leave on annualized pro rata basis; an entitlement to public holidays and such entitlement has to be paid as per the ordinary hours of these days; the entitlement to attain community service leave for the jury services or such activities which deal with the situations of natural disasters or emergency and only the jury leave is paid under this entitlement; the entitlement to attain ten days personal/carer’s leave for each year on pro rata basis which is paid leave, as well as, two days compassionate leave for every permissible occasion which is also paid, and lastly the two days carer’s leave for every permissible occasion which would be unpaid (The Australian Workers’ Union, 2016).
All such employees who are covered in the national workplace relations system are also covered by the NES, irrespective of any enterprise agreement, award, registered agreement or employment contract. Casual employees are also eligible to the NES entitlements, but only when they relate to the community service leave, the unpaid carer’s leave, the Fair Work Information Statement or the unpaid compassionate leave (Fair Work Ombudsman, 2016).
As a head of the human resources at an Australian engineering company, I would have to ensure that the company does not contravene with these standards. In order to do so, the human resource policy of the company would have to be drafted in such a way that the 10 minimum entitlements, as stated in the NES are not contravened. Also, the policy would have to follow the criteria mentioned in these standards.
4. The unconscionable conduct is covered under three sections of the Australian Consumer Law (ACL). Section 20 of the ACL contains the provisions regarding the unconscionable conduct, as per the unwritten law; Section 21 deals with the unconscionable conduct which affects the consumers; and Section 22 deals with the unconscionable conduct which affects the small business (Hobart Community Legal Services, 2013).
Section 21 prohibits a person from engaging in unconscionable conduct during the supply of goods or services, in the course of trade or commerce. This section acts as a protection to the consumers (Australian Competition Law, 2014). Section 3 of ACL defines a consumer as a person who acquires particular goods or services where the amount paid or payable for such goods or series does not exceed $40,000. A person is not considered as a consumer, if such goods or services are re-supplied, or used in the course of trade or commerce (Australian Government, 2012). The protection under Section 21 is provided for such goods or services which have been ordinarily acquired for household use, consumption, domestic or personal use.
Section 21(2) mentions the considerations which the court may regard for deciding the conduct as unconscionable. These include the bargaining strength of the parties; the compliance of conditions by the consumer; whether or not the consumer understood the documents drawn during the transaction; the presence of unfair tactics or undue influence against the consumer; and the circumstances and the price at which such consumer could have attained the services or goods from a third party (Hobart Community Legal Services, 2013).
As per Chapter 4 of the ACL, in case a contravention of the sections occurs, the liability for a corporation is having a criminal conviction recorded, as well as, a fine of $1.1 million. For an individual, the liability is same for recording the criminal conviction, but the amount of fine is stated as $220,000. The Chapter 5 of the ACL, contains the enforcement, remedies, and penalties for breach of the sections of ACL (Australian Consumer Law, 2013).
In the present case, Rebecca was a customer of Dave as she purchased the filter which amounted to $2000, as per the limits stated in Section 3 of ACL. Dave used his bargaining strength and induced Rebecca to make the purchase. Hence, he was in contravention of Section 21 of the ACL. So, it is advisable to Rebecca to take legal action against Dave and attain relief in form of remedy as stated under the Chapter 5 of the ACL. Here, Dave would also have a criminal conviction recorded against him, as well as, would be liable to a fine of $220,000, as per Chapter 4 of the ACL.
References
AECOM. (2016). 2015 Annual Report. Retrieved on 26/09/16 from: https://phx.corporate-ir.net/External.File?item=UGFyZW50SUQ9NjA3MzQ0fENoaWxkSUQ9MzIwMTg2fFR5cGU9MQ==&t=1
AECOM. (2016). AECOM. Retrieved on 26/09/16 from: https://www.aecom.com/
AECOM. (2016). Investors. Retrieved on 26/09/16 from: https://investors.aecom.com/phoenix.zhtml?c=131318&p=irol-irhome&_ga=1.152482617.1254965090.1474866736
Australasian Legal Information Institute. (2016). Civil Liability Act 2002 – Sect 5R. Retrieved on 26/09/16 from: https://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s5r.html
Australasian Legal Information Institute. (2016). Civil Liability Act 2002 – Sect 5M. Retrieved on 26/09/16 from: https://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s5m.html
Australasian Legal Information Institute. (2016). Civil Liability Act 2002 – Sect 5L. Retrieved on 26/09/16 from: https://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s5l.html
Australasian Legal Information Institute. (2016). Competition And Consumer Act 2010 – Schedule 2: The Australian Consumer Law. Retrieved on 26/09/16 from: https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html
Australasian Legal Information Institute. (2016). Trade Practices Act 1974 No. 51, 1974 – Sect 52. Retrieved on 26/09/16 from: https://www.austlii.edu.au/au/legis/cth/num_act/tpa1974149/s52.html
Australian Competition Law. (2014). Section 21: Unconscionable conduct in connection with goods or services. Retrieved on 26/09/16 from: https://www.australiancompetitionlaw.org/legislation/provisions/acl21.html
Australian Consumer Law. (2013). The Australian Consumer Law: A framework overview. Retrieved on 26/09/16 from: https://consumerlaw.gov.au/files/2015/06/ACL_framework_overview.pdf
Australian Government. (2012). Competition and Consumer Act 2010. Retrieved on 26/09/16 from: https://www.legislation.gov.au/Details/C2013C00004/Html/Volume_3#_Toc344911605
Casey, M. (2012). List of Top Engineering firms in Australia. Retrieved on 26/09/16 from: https://au.gradconnection.com/forums/thread/engineering-environment-mining-construction-geology/list-of-top-engineering-firms-in-australia/?page=last
Fair Work Ombudsman. (2016). Fair Work Information Statement. Retrieved on 26/09/16 from: https://www.fairwork.gov.au/ArticleDocuments/724/Fair-Work-Information-Statement.pdf.aspx
Fair Work Ombudsman. (2016). National Employment Standards. Retrieved on 26/09/16 from: https://www.fairwork.gov.au/employee-entitlements/national-employment-standards
Hobart Community Legal Services. (2013). Defences to the Tort of Negligence. Retrieved on 26/09/16 from: https://www.hobartlegal.org.au/tasmanian-law-handbook/accidents-and-insurance/negligence/defences-tort-negligence
Hobart Community Legal Services. (2013). Unconscionable Conduct under the ACL. Retrieved on 26/09/16 from: https://www.hobartlegal.org.au/tasmanian-law-handbook/consumers-money-and-debts/australian-consumer-law/unconscionable-conduct
Jade. (2016). Rivercity Motorway Finance Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) v AECOM Australia Pty Ltd (No 2)[2014] FCA 713. Retrieved on 26/09/16 from: https://jade.io/article/338864
LawGovPol. (2014). Case Study: Donoghue V. Stevenson (1932). Retrieved on 26/09/16 from: https://lawgovpol.com/case-study-donoghue-v-stevenson-1932/
Sixth Form Law. (2008). Cases – tort – negligence – breach of duty of care. Retrieved on 26/09/16 from: https://sixthformlaw.info/02_cases/mod3a/aqa/_cases_tort_2breach.htm
The Australian Workers’ Union. (2016). National Employment Standards. Retrieved on 26/09/16 from: https://www.awu.net.au/national-employment-standards
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