Describe about the Business Manahement Law for Australian Consumers.
(i) Strategies used by BHP Billiton Limited towards regulatory compliance and how strategy is documented in the policies of the company and/or through its website.
The BHP Billiton Limited is committed to full compliance with the competition laws together with the enforcement of the competition laws against any third party acting in an anti-competitive manner towards the Corporation. In this regard, the company prohibits all forms of anti-competitive behavior with its competitors.
The areas where such behavior are restricted include price fixing as well as bid-rigging, boycotting any customer or supplier, and limiting production or agree to lower or restrict production capacity. It also prohibits the anti-competitive conduct when allocating markets, customers, suppliers as well as territories (Whish and Bailey 2015).
Billiton Limited has also created the standards as well as procedures to make sure that the Compliance together with Legal Functions undertake a preceding legal review of the competition law-sensitive activities. For instance, BHP Billiton Limited requires prior review prior to taking part into various kinds of agreements with the competitors. BHP Billiton Limited also undertake prior review prior to joining a given association of trade and industry agency bringing together competitors. BHP Billiton Limited has also complied with the requirement to when renewing existing agreements and membership.
These strategies are well documented in the BHP Billiton Limited’s website and policies. For example, the firm meets the competition law risk assessments that require that all business and marketing to undertake episodic competition law risk assessment while consulting with the Compliance and Legal Functions.
All of the above practices are in compliance with the Company’s standard risk assessment process alongside the process for identifying as well as regularly testing the efficiency and effectiveness of the controls that are regarded as critical to manage competition law risk. The firm has also integrated its policies into the competition law training and awareness and confidential reporting and investigation.
(ii). Degree to which the competition law compliance strategy echoes and encourages legal literacy and awareness all through BHP Billiton Limited
The Competition law compliance strategy greatly mirrors and stimulates legal literacy and awareness through the BHP Billiton Limited. The firm has adhered to the competition law training and awareness. The firm understands that need for respective business together with function recognizes workers whose roles encompass potential completion law risks especially workers with frequent and regular contacts with the rivals. This is reflected in the Company where workers obtain consistent training, developed as well as largely delivered by the Compliance Function (Ciro and Goldwasser 2003).
The firm also complies with the delivery of competition law training through in-person and online focusing on the requirements of the function and the business. BHP Billiton has taken steps to recurrently advance consciousness of competition law matters. The firms engages in episodic messages from the senior management stressing the need to comply with competition law (Viner 2014). They messages also emphasize the importance of working with integrity in every dealing of the BHP Billiton Limited with third parties including their competitors.
The legal literacy and awareness is also manifested in the firm by complying with the confidential reporting and investigation as required by the Competition law Compliance. For example, it is clear that at BHP Billiton Limited, the workers are reinforced and fortified to report supposed competition concerns through respective managers via the Legal and Compliance Functions or via EthicsPoint.
BHP Billiton Limited further inspire individuals to report ant-competitive conduct of competitors, customers and suppliers. These practices are in compliance with the Competition Law Compliance and hence are testimonials of the fact that BHP Billiton Limited compliance strategies highly reflects and promotes legal literacy and awareness throughout it the Company.
At BHP Billiton Limited, it is also clear that the Compliance legal team controls probes into every probable competition law matters be it that they are reported via EthicsPoint or by other channels. In this regard, one can argue that the strategy is a clear manifestation of the knowledge and awareness of legal requirements of the Competition law Compliance. The BHP Billiton Limited works with integrity and have an effective Code of Business Conduct that prohibits any engagement in unethical conduct. BHP Billiton Limited has the desire to always learn and develop in total compliance with the law facilitated by the efficient ethical conduct and regulatory compliance.
Based on the readings from the concepts and legal principles in Chapter sixteen of Tony Ciro, some of the recommendations to improve BHP Billiton Limited’s management activity in competition law compliance are listed below.
The Company needs to engage technical lawyers with vast experience to advise clients on the intersection of business necessities against legal together with regulatory requirements based on the leading as well as the most complex transactions
BHP Billiton Limited need to make sure that their lawyers have real world commercial acumen obtained via senior industry in-house exposure allowing them to grasp business strategy and market dynamics for efficient and effective communication together interaction with regulators, clients and government stakeholders
BHP Billiton Limited needs to offer a multi-disciplinary approach to problem solving that incorporates other service offering including modeling and strategy.
2: Rights and Remedies Available For Tina
Due to misleading behavior of Aspiring Minds Pty Ltd and Luke, Tina has some rights and remedies under consumer protection provisions of the Competition and Consumer Act 2010 (Cth) (CCA) as outlined in the Australian Consumer Law (ACL) in Schedule 2 of the CCA. This section seeks out to uncover these rights and remedies and give a comment on the ACCC’s role in regards to the remedies claimable by Tina.
(i) Rights and Remedies
Section 18 of the ACL provided for in Schedule 2 of the CCA bars the behavior by corporations in trade and commerce that is deceptive, misleading or is probably to deceive or mislead. In this case, the conduct of the CEO was misleading and deceptive and hence a “strict liability” crime. It is not a matter of concern whether the behavior is envisioned to deceive or mislead. It does not also matter whether the claimant can reasonably have protected its interest (Viner 2014).
Provided there is an aspect of reliable on the claimant’s part, a defendant might be discovered as having involved in misleading or deceptive behavior even if she had all reason to trust that her representations remained factual. The law is always conducted to swing the burden of making sure that the representations is factual onto the individual creating it. This is because of the reason for “strict liability” in this example that an individual making a representation usually stands better positioned to know about whether it is true compared to the individual relying on the representation.
Tina, therefore, has a right to claim for remedies under CCA and ACL. The section gives remedies in terms of fines and damages. Despite the lack of pecuniary penalties for a breach of section eighteen, Tina, has a reprieve under ACL, and ACCC. She can seek out pecuniary penalties not exceeding 1.1 million dollars from corporation (Aspiring Minds Pty Ltd) and 220,000 dollars from individual (Luke-CEO).
Because Tina is a casualty of misleading or deceptive behavior, she is merely eligible for damages (financial recompense) since she has suffered damage or loss due to the misleading or deceptive representation by Luke (CEO). This is because despite having operated the business for six months and cannot get the projections since they were unrealistic fanciful numbers made up by the CEO to induce her to purchase the café. The figures were overstated and hence she has suffered the damage of not receiving what she was expecting.
Tina is excluded from the provision of section 82 (1B) of the CCA ushered in 2004. This is because she did not contribute to the damage or loss she suffered. Therefore, the Court cannot decrease the quantity of damages that she is awarded. Moreover, Luke engaged in this conduct with a sole intention to mislead and deceive Tina fraudulently and hence the Court cannot lower the damages.
Tina should, therefore, exercise her right and sue Luke and Aspiring Minds Pty Ltd to claim for the loss or damages she suffered. She needs to take note of the limitation of six years on actions for damages as provided for in section 236(2). She needs to claim for the compensation under section 18 of the ACL.
(ii) Role of ACCC in relation to these Remedies
The ACCC is essential in relation to the remedies highlighted above. It is clear that there is no pecuniary penalties for a break of s.18, however, ACCC ensures that for many breach of the associated provisions in the ACL, ACCC seeks pecuniary penalties amounting not exceeding 1.1 million dollars from the company and 220,000 dollars from Luke (CEO). In this regard, ACCC is helpful to give compensation for Tina for the loss or damages she suffered due to the misleading or deceiving representation by Luke intended to induce her to purchase the corporation.
ACCC is, therefore, significant in ensuring that fines and penalties are availed to the Tina due to the breaches of the Competition and Consumer ACT 2010 (CCA) and the Australia Consumer Law (ACL) that attracts pecuniary penalties and fines. In this case, it is clear that ACL has been contravened by the conduct of Luke in respect of false or misleading conduct and hence ACCC ensures that it attracts pecuniary penalty.
The ACCC is also essential in this case because in case ACCC discovers reasonable grounds to have faith that Luke has breached the provision of ACL (s.18 in this case), it will issue an Infringement Notice in regards to false or misleading conduct by Luke and Aspiring Minds Pty Ltd.
In this case, the amount of penalty per infringement notice ranges, on the basis of the alleged contravention. Nevertheless, in most cases, the amount is static at 10,800 dollars for a corporation and 108,000 for a listed corporation and 2160 dollars for an individual per alleged contravention.
The ACCC will also give an amount of 9,000 dollars for a corporation and 1800 for an individual as an infringement notice penalty for providing false or misleading information under substantiation.
3: Australian Fair Work Commission
(i) Functions and purpose of the Australian Fair Work Commission in relation to bullying at work
The Australian Fair Wok Commission (AFWC) is the sovereign nationwide workplace relations tribunal. The commission is accountable for the maintenance of safety net of minimum wages as well as employment alongside a variety of other workplace functions as well as regulation (Paterson 2009). The Commission can hear bullying and harassment applications and accept and investigate bullying complaints. According the AFWC, a worker in a constitutionally protected business that reasonably trusts that she has been bullied at work enjoys the right to apply to the Commission for an order to halt the bullying (Competition and Consumer Act 2010 Schedule 2,).
The Commission describes bullying at work whereby an individual or a cohort of individuals recurrently behave unreasonably to an employee or a collection of labors at the workplace and that such behavior has the potential to create a risk to health and safety (Koffman and Macdonald 2010). The Commission has the mandate to determine what constitute bullying and differentiate it from a reasonable management action. The Commission holds that reasonable management action undertaken in a reasonable manner cannot constitute bullying. For example, a reasonable management action can encompass;
- Performance management processes
- Informing an employee regarding substandard work performance and unsuitable work behavior
- Corrective action for misbehavior
- Upholding reasonable workplace standards and goals
- Asking an employee to undertake reasonable duties in line with their respective jobs
It should, however, be noted that the Commission has the function to warn employers that the above reasonable management actions undertaken in a reasonable manner otherwise they can constitute bullying. In this sense, the Commission has the purpose to ensure that everybody enjoys a right to protect them from bullying at workplace (Competition and Consumer Act 2010 Schedule 2,). The Commission undertakes this mandate by implementing the national anti-bullying laws and state or territory health as well as safety bodies which help people with bullying in the workplace.
The Commission uses the nationwide anti-bullying laws that covers national system employees and protects outworkers, student attaining experience of work, contractors and subcontractors as well as volunteers from bullying. The Commission protects workers from bullying at workplace by performing a range of functions listed below.
Regulating how industrial action is undertaken
Dealing with the applications linked unfair dismissal
Facilitating good faith bargaining as well as making enterprise agreements
Providing a safety net of minimum environments including minimum wages in awards
Works in association with workplace determinations, equal remuneration, general workplace protection, transfer of business, and right of entry together with stand down
Resolution of an array of shared and individual workplace clashes via conciliation, mediation as well as public tribunal hearing
The Commission makes decision and orders and publish a decision at the end of hearing. The orders are also made by the commission for certain application types. The Commission also make interim decisions and direction during the proceedings is some matters. The Commission provide information regarding different issues of bullying (Ciro and Goldwasser 2003).
Example of a ruling Case to show the functions of AFWC on Bullying
In March 2016, the Commission handed down the first formal bullying ruling. These decisions have provided a guidance on the anti-bullying jurisdiction’s operation together with the types of behaviors to be considered as bullying by the Commission. One of these cases involved C.F.  FWC 5272.
This decision was the first formal finding of a bullying by the Commission on an application for an order to stop bullying under section 789FC of the AFWC. Commissioner Hampton was convinced by that there was adequate evidence to support the finding that bullying behavior had occurred against the applicants and that such a behavior could create a risk to the health and safety of applicants ("Competition and Consumer Act 2010 Schedule 2,).
(ii) What I would do to ensure the company adequately addresses bullying problem
To ensure that my engineering company sufficiently address the bullying problem, I will ensure that I review the types of behavior that the commission treat as bullying. By understanding these types of unreasonable behaviors, I will be able to advice the company to ensure that workers are not bullied (Ciro and Goldwasser 2004). Moreover, I will also review the anti-bullying laws to ensure that I have a comprehensive understanding of what these laws provided. I will also seek out to understand the purpose and functions of the Commission. This will be beneficial to me to help the company protect its workers at all levels at the workplace (Competition and Consumer Act 2010 Schedule 2).
I will also make sure that I review and update myself with the formal bullying rulings already handed down by the Fair Work Commission. I will also review the operationalization of the Commission so as to understand what the Commission can or cannot do. By reviewing and discussing a number of these latest cases, it will help me gather the relevant information needed to help my employer, the human resource managers and employees alike to understand better exactly what constitutes “bullying” in the eyes of the Commission that could hence result in an order to stop bullying. This review of cases will, therefore, make help the Company in determining behaviors that can create health and safety risk to the workers and hence avoid them (Ciro and Goldwasser 2003).
"Competition and Consumer Act 2010 Schedule 2, The Australian Consumer Law". Commonwealth Consolidated Acts. Australasian Legal Information Institute. Retrieved 4 December 2011.
Ciro, T. and Goldwasser, V., 2003. From Private Law to Public Regulation: A New Role for Courts. Bond L. Rev., 15, p.i.
Ciro, T. and Goldwasser, V., 2004. Law and Business text and Tutorials.
Koffman, L. and Macdonald, E., 2010. The law of contract. Oxford University Press.
Paterson, J.M., 2009. The Australian Unfair Contract Terms Law: The Rise of Substantive Unfairness as a Ground for Review of Standard Form Consumer Contracts. Melbourne University Law Review, 33(3).
Viner, J., 2014. The customs union issue. Oxford University Press.
Whish, R. and Bailey, D., 2015. Competition law. Oxford University Press, USA.