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BULAW5911 - Managing the Legal Environment Assignment - Federation University, Australia

Learning Outcomes -

  • Identify and interpret legal principles of relevance to the relationship between business, competitors and stakeholders in the social and political environment in which that business operates.
  • Evaluate the impact of law on the business and management context.
  • Identify, describe and analyse legal risk faced by business in relevant contexts and in times of change.
  • Identify and critique strategies that can assist businesses to manage legal risk.
  • Evaluate the role of law in shaping business strategy and management decisions.

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Within a framework of case studies addressing aspects of legal risk management, the course explores a range of issues faced by managers.

Answer -

Introduction

The laws passed by the government with respect to business operation are considered to be legal environment. The government regulates the business in order to maintain fairness while trading along with protecting consumers from with consumer protection law. This study analyses the cases provided in this assignment in order to understand the legal environment along with implementing IRAC format while assessing the case study.

Case study 1

This case study deals with the misconduct within the financial services, superannuation and banking industry. The Royal Commission was appointed under Commissioner Kenneth Hayes in order to analyse the situation within these sectors.

Q1. Why was there pressure exerted on the Federal Government to have a Royal Commission?

Question 1 - Issue

The misconduct founded on the financial services, superannuation and banking industry led to the development of suggestions and arguments of appointing Royal commission to conduct this case. The federal government was pressured to appoint a Royal commission on this case was due to the multiple misconduct done by these industries. The misconduct was found to be on the provisions of loan regarding home, car and education along with credit cards and other insurance related products. These misconducts affected the generally citizens of the country which put pressure on the federal government in appointing Royal commission as in charge of appointing this case. There were also several issues related to financial advice industry such as charging fees for financial advice which were not provided to the client along with inappropriate conduct by the advisers.

Q2. What arguments did the Government and Financial Services Sector use to reject the call for a Royal Commission?

Question 2 - The government as well as financial service sector opposed the call for a Royal Commission in order to hide the misconducts conducted within their sector. Some of the people who opposed Royal Commission were Malcolm Turnbull, Barnaby Joyce, Kelly O'Dwyer, Scott Morrison and other people related to government and financial sector. The people related to government sector defended themselves by saying that the main reason of opposing Royal commission was to help the customers rather than making their life more hectic. The main reason for opposing the royal commission was to hide the misdeeds committed by the financial and banking sectors. The final reports from Royal commission affected a large majority of population. The Royal commission sheds light on the dodgy schemes laid out by these industries in order to charge extra sum of money from their clients.

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Q3. Using one bank or other provider as an example, what governance issues did the commission investigations and hearings identify for that provider?

Question 3 - Rule

The Royal Commission reports suggested that the financial giants such as AMP, Allainz and Commonwealth Bank have committed a criminal offence related to the insurance of their customers. The CommInsure duped its client with dubious advertisement by claiming that the life insurance covers heart attacks whereas it did only in limited scenarios (smh.com.au, 2018). The report suggests that the CommInsure breached the section 12(d) of the ASIC act. It was also reported that it had also breached the Corporation act along with ASIC Act by misleading their customers such as withholding their medical report so as to prevent them from claiming the insurance. The committee also reported that these kinds of establishment's main motive are to increase their profit regardless of ethical factors within their organisation.

Q4. From a governance perspective, how has that provider responded to the Commission findings?

Question 4 - Application

The provider after backed into a corner due to the findings of the reports generated by Royal Commission acknowledged their misdeeds about various wrong doings conducted by them. The head of the Commonwealth Bank of Australia admitted that they wrongly sold around 60,000 insurances of unemployed customers along with coercing brokers into selling large loans for better perks and incentives (theguardian.com, 2018). As per the perspective of the government, the organisation acknowledged their wrong doings along with accepting the fact that they provided loans to unemployed people in order to gain incentives. The CEO of Commonwealth bank, Matt Comyn, acknowledges the fact that they have been providing larger volume of loans to their customers which increases their risk.

Q5. What (if any) implications do those specific findings have for corporate governance in Australia?

Question 5 - Conclusion

The implications of these findings will help the corporate governance framework reconsider their approach in recommending guidelines to the organisation. The findings in these sections were the misconducts of various banking, finances and superannuation industry. The misconducts range from misleading advertisements for insurance to selling insurance to unemployed customers. The banks also coerced brokers into selling large volume of loans for better incentives. All these findings would help in providing better structures and practices for corporate governance which would help them in providing better recommendations to the company.

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Case study 2

This case study deals with the lower wages paid to the employees of the 7-eleven along with making the work for longer hours. The company hired Allan Fels in order to implement a compensation scheme; however, they assumed control of the scheme.

Q1. 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?

Question 1 - Issue

A contract can be referred to as an agreement between the two parties, which can be expressed verbally or in written. The most common form of contract is a written contract which is signed by two parties. The contract formed between an employee and an employer is called an employment contract. The contract is deemed valid if it is offered by the employer and if the offer is accepted by the employee. The employment contract expresses several factors of employment such as wages, work hours; overtime pay along with paid holidays and warning notice. This type of contract tends to attract higher levels of enforcements and regulations due to the discrimination and misconduct shown towards the employees.

Q2. What common factors can you identify in the exploitation cases that have been reported/investigated?

Question 2 - The common factors that have been reported in the 7-eleven case is that the workers are getting paid less than the intended amount. However, if they complain about this matter they are threatened with deportation (smh.com.au, 2019). The main workers of 7-eleven constitutes of international students who are exploited in working longer hours with a meagre wage. These employees are threatened on a regular basis which prevents them from raising their voice or complaining it to higher authority. These factors have been identified in the exploitation case of the employees working in 7-eleven. To sum it up, the workers are paid less as compared to general wage structure; they are coerced into doing extra hours of work without any pay along with being threatened of deportation.

Q3. Should there be freedom of contract in relation to employment contracts? Why or why not?

Question 3 - Rule

The freedom of contracts refers to the rights of a person while getting into a legal binding. The freedom of contract needs to be the result of one's own free will without any influence from external sources. The employment contract is the contract that is formed between an employee and an employer. The employment contract just like any other contract needs to be formed of one's free will. There should be freedom of right with respect to the employment contract in order to provide employees with a free choice of getting binded into a legal contract. This will help the employee of abiding by the law along with working diligently of the company rather than being forced into one. In the case of exploitation of workers of 7-eleven, the employees were not given a freedom of contract. This provided beneficial of the company by making the employees work for a longer amount of time and with lower amount of pay. However, the condition of the employees is not optimum as their wages are not up to the industry standards.

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Q4. What risk management issues should an employer or potential employer consider when deciding on terms and conditions of employment?

Question 4 - Application

The risk management issues that an employer or a potential employer must consider while making terms and conditions are the type of employment, hours of work along with salary of the employees. The terms and conditions must include indiscrimination factors regarding awards and incentives. It must also include the type of training that need to be provided to the employee without discriminating the employees based on any factors. The terms and conditions must also include the ethical issue of the company along with the dress standards. The terms and conditions of employment are necessary in order to protect the organisation from biased complaints and charges.

Q5. 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?

Question 5 - Conclusion

There have been many reports related to exploitation of the employees in Australia. For instance, Tokyo Sushi bars at Gosford and Newcastle were targeted by the Fair Work ombudsman in order to identify the issues related to lower wages. It has been reported that around 31 employees were underpaid in 2016 (abc.net.au, 2019). The owner of the outlet was fined around 69, 936 dollars for underpaying their employees. In order to address the legal risk, the owners and managers need to assess the risks along with deciding the impact of risk on the business. After assessing the legal risks proper action needs to be taken by the owner of Tokyo Sushi bar such as consulting with a lawyer on the related matters in order to avoid these circumstances. In order to address the legal risks efficiently one must consult with a lawyer to effectively control the situation in hand.

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Case study 3

Q1. What likely motivations drove VW (and others) to cheat on the tests over an extended period?

Question 1 - Issue

The company, Volkswagen, cheated on emissions testing for diesel car over an extended period of time so as to capture the emerging market of diesel car in a short span of time. The emission test would help in establishing a positive image amongst the younger generations of enthusiast. This would increase the sales of Volkswagen along with discouraging their competitors from entering their marketing area. The main motive that drove Volkswagen into committing this crime is the tightening of emissions standards by the US EPA (theguardian.com, 2017). The company even won the Green car of the year award for diesel vehicles. The company implemented the use of defeat engine in order to fool the emission test by reducing the amount of nitrogen oxide emitted from the car.

Q2. What were the likely results of this cheating on the social and market perceptions of VW and its products?

Question 2 - The emission scandal of Volkswagen affected the company's social and market perception. The public perception of the Volkswagen saw a decline in the brand image along with a reduction in their sales proceeds. The emission scandal affected the company market share along with their sales of their products due to the implementation of defeat engine. The defeat engine duped customers into believing that the car is efficient and environment friendly. However, the scandal was exposed and the company's share was severely affected by it.

Q3. What are the long and short term implications for VW (and others) as a result of the publicity around the manipulations?

Question 3 - Rule

The emission scandal of Volkswagen has its own long term and short term implication. The short term implications of Volkswagen consist of reduction in sales along with adverse effects on its brand image. The short term implications of the company also include loss of loyal customers. However, the long term implications are related with the monetary loss of the company. The company will remove the defeat engine from their devices in order to show the actual emission from the vehicles. This will cost them heavily along with loss in market share as well as a hefty fine imposed on the company.

Q4. What impact do you think these implications have on their strategy and governance?

Question 4 - Application

The emission scandal of Volkswagen will affect the business strategy along with the culture and organizational structure. In order to build the brand to its former glory the company will develop car and its related products that will be much more efficient in real time. The emission scandal will make the managers and development team more alert and efficient while developing products. The hierarchy of the organisation will be affected due to the impact of emission scandal. The company will be more alert and be more assertive while analysing the effectiveness of the vehicles and products associated with it.

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Q5. What does the VW story suggest in terms of risk management?

Question 5 - Conclusion

The emission scandal of Volkswagen suggests that a proper risk management plan is essential to handle these kinds of situations. Risk management would allow the company to assess and analyse risk or uncertain situations in advance. This in turn would help the company to develop contingency plan in response to the corresponding situations. The company, Volkswagen, lacks proper risk management plan which prevented them from avoiding the situation they were stuck. The implementation of defeat engine by the company in response to the tightening of emissions standards by the US EPA should be done after considering all the risks related to the business. After analysing the case study of Volkswagen emission scandal it can be clearly said that the company lacks proper risk management within its structure. This in turn landed the company, Volkswagen, in legal troubles which affected its brand image along with its sales. .

Case study 4

Q1. Why do you think AWB was able to pursue the behaviour that led to the scandal?

Question 1 - Issue

The reason that AWB was able to pursue the behaviour was due to the fact that the management of AWB was corrupt and immoral who thought about filling their own pockets rather than thinking about the wellbeing of the citizens.

Q2. Why did the AWB scandal attract so much attention both nationally and internationally?

Question 2 - The main reason that attracted so much attention was due to the fact that the company was dismembered along with the reputation of the company being tarnished due to the wheat scandal (smh.com.au, 2006). The wheat trade of Australia has also suffered drastically along with the loss of shareholder value of farmers.

Q3. Who was affected by the scandal and the final outcome?

Question 3 - The wheat scandal impacted the lives of farmers as they loss their shareholder value in the company along with the protection from the market (abc.net.au, 2009). The company was also dismembered along with being charged with bribery and corruption. The final outcome of the wheat scandal is the loss in the wheat trade in Australia.

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Q4. Why are the answers to 1 and 2 important in terms of legal risk management? Why and how?

Question 4 - Rule

The answers to question 1 and 2 are necessary to understand the legal risk management. The evaluation of regulatory and non regulatory response is necessary in order to understand the development of legal risk management. These questions help in understanding the corrupt nature of the company along with nature of scandal.

Q5. How important is organisational reputation to sustainability of the organisation? Why?

Question 5 - Application

The reputation of the organisation is considered as the foremost factor of any emerging organisation. The reputation of the company helps in gathering more customers/consumers in order for the organisation to grow. An organisation with a good reputation covers a larger market base which helps the company to expand their business.

Q6. Do you think the AWB should have admitted wrongdoing early or was it better to deny? Why? What else (or alternative thing) should it have done?

Question 6 - Conclusion

The AWB should have accepted their wrong doing from the beginning as it would have reduced the impact of the wheat scandal in Australia. The company could have accepted their wrong doings along with the developing contingency plan regarding the betterment of the society.

Q7. 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?

Question 7 - The farmers were the one who lost the most as they lost their shareholder value along with wheat trade in Australia. The legal risk management of AWB lacks the assessment of risk as well as evaluating the risks so as to create a contingency plan to minimise the effect of wheat scandal in Australia. The lack of legal risk management landed the company into legal trouble which reduced the company into nothingness.

Conclusion

These case study helps in analysing the legal environment in different scenarios along with understanding the nature of the company and the legislations and regulations it is breaching. This study analyse several cases studies ranging from emission scandal of Volkswagen to the wheat scandal of AWB.

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