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LAWS20061 Management Law Assignment Help
A. The company so chosen for the study is the Bendigo and Adelaide Bank. The strategies so adopted by the company for regulatory compliance for the Board responsibilities, the board oversees the establishment, implementation, review and monitoring of risk management systems whereby they take into account the Group Risk Appetite, the business strategy and the external environment. The regulation involves the getting of approval of risk limits and the risk policies. In accordance to the policies the group has made several committees to provide focused support for the regulation and manage the risk. (Carter, 2006)
The Company in order to comply by the statutory reporting leads to the maintenance of the company’s and groups financial statements according to the Corporations Regulations 2001, financial records according to the Section 286 of the Corporations Act, 2001. A formal due diligence process is undertaken by the company in order to comply with the verification of the process. Furthermore, the company is focused on applying the reporting and control mechanisms to the business of the company. The internal frameworks have been designed in order to comply with the legal, regulatory, governance, finance, information technology and such other aspects of the functioning of the company. The operations risk management is based on the documented policies that are measured against the parameters so laid down by the group.
B. The Board is generally responsible for the risk management and group activities in order to integrate governance and accountability. The risk management strategies based on the risk principles are required to be approved by the Board. Are to be delegated and passed through the Boards. It helps in inculcate the values of the doing the right thing and take responsibility for the management of risks in order to deliver the sustainable business. The Board regulatory practices help in developing the company structure and operations in order to support the country’s economy, market development that may in turn affect the company. The financial statements so made by the MD and CFO in accordance with the regulations and the framework as prescribed addresses the key risk areas. The APRA regulations are checked on by the company Board in order to ensure that the competition in the market is maintained by adopting standardise policies applicable to all competent. (Griggs et. Al., 2012)
The risk management systems ensure that the support decisions are maintained in regards with the functionality of the market in order to strategically plan, budgeting and regulatory reporting. The back-up approach is adopted to stay in sync with the developments under the market.
C. The bank should ensure that e company operations are such that the same must not be related to be engaging in the misleading or deceptive practices that mislead or deceive the consumers. Section 52 ensures that the corporations conduct themselves in such a manner that the same may be regarded as being of trading or commercial character. It should be ensured that everything should be clearly expressed as the silence may sometimes be constituted as a misleading conduct. While entering into the contracts with the consumers it should be ensured that the same shall not be derived from the misrepresentations be it before or after the contract has been formed between the parties. Exemption clauses are not completely dependent on the parties and may not be a certain defence as provided under the case of the Clark Equipment Australia Ltd v Covcat Pty Ltd. (Miller, 2008)
The Act specifically prohibits any unconscionable conduct. The same may be under the unwritten law, supply of goods and service or business transactions. Such unfair contract terms are to be avoided and eliminated from the contract. This is because such terms will be void and inapplicable under the law. The Act is aimed at protecting the consumers from the misrepresentations and the illegal uncompetitive activities under the contract. If the provisions are not followed then the civil remedies may be followed in order to recover the damages for the loss so suffered respectively. The company should ensure that as provided under Section 37(1), it is not involved under the false or misleading practices related to profitability for the business activities so practiced by the company. If the company is involved under practice of any such activities then the criminal penalties may be imposed on the company. The penalty so may be imposed may stretch till $1.1M for the corporation. Criminal proceedings may also be brought forward by the affected party. Such criminal actions may be avoided only if the contravention from the reasonable reliance on a mistake or default of a person and not the entire company after undertaking the reasonable precautions by the damaging party. The affected party may be able to claim damages, injunction or pecuniary penalties. Other such remedies may be claimed such as the undertakings, public warning notice, adverse publicity order or non-punitive orders. (Radan and Gooley, 2009)
In the provided case study it is required to analyse two types of laws such as the contract and tort. As determined Loki had entered into a contract for the purpose of the bungee jumping with the organisers named BW. He was charged a certain sum for the use of the experience and the made to sign a contract stating the terms of service. It included a term specifically excluding the damages for the case of any death or injury so caused from the use of service. It may be determined that the parties to the contract should be aware of the purpose of the contract and shall share the intent in order to perform the contract as discussed. The terms of the contract including conditions and warranties shall be so that there is no confusion as to the performance of the same. According to the contract the bungee jumping was an experience provided by the company named BW and the same shall be provided while incurring the risks and responsibilities so attached to the contract. The exclusion clauses so included under the contract is regarded as an invalid term. This is because an exclusion clause is required to be included in the contract only if the same is directly related to the purpose of the contract and concerns the non-performance primarily. The same may not be in regards with the cause of death or any injury from the performance of the contract. Such terms are considered to be invalid and unfair.
As the term included in the contract so signed by Loki includes that BW would not be liable for any death or injury suffered from bungee jumping the same may be invalid and inapplicable under the laws of contract. It may further be determined that Kate had been inquired regarding the safety of the process of bungee jumping and the possible harms that a person may suffer from the experience. Kate had then replied stating that in her experience as a facilitator for the past 10 years she had not seen a single accident or experience occurring in front of her. The statement so made by her was in the regular course of employment and a representation made by her as the same was made after the contract had already been signed. The statement so made would have no effect on the contract. (Stewart, and Stuhmcke, 2012)
Furthermore, it may be determined that Kate was an employee of the organisation named BW and not the owner with whom Loki had entered into for the contract. Thereby, the fault in the bungee jumping from the detached steel platform wouldn’t be Kate’s responsibility. As an employer BW would be responsible for the actions of Kate while performing her professional duties. As an employer it is the duty of the occupier to ensure that the premises are safe for the use of visitors both temporary and permanent. It is essential that the premises are maintained in accordance with the health and safety standards. The employer is expected to follow the duty of care towards performance of the business. The duty of care is to be performed by the employer and simultaneously by the employees being part of the business. However, the liability of the duty of care for the employee lies on the employer. The duty of care when breached should be directly related to the damage so caused. The same should be in terms of physical damage, psychological damage or monetary loss.
The occupier has the responsibility to make sure that the facilities are proper to be used. It is furthermore, important to put up warning signs to let the visitors make an informed decision that the effect of the same would result in harms and damages. In the present situation the steel platform was observed to be weakened from corrosion due to the sea moisture present in the air. Thereby, it was required by the employer being the occupier that the same was checked on before using the platform for the purpose of the business. The liability for the non-performance of the health and safety checks would lie on the organisation and not Kate. (Carter, 2006)
In the present case it may be determined that Loki had experienced the nervous shock from the experience of the failed experience at bungee jumping while plunging into the sea instead of coming back to the station. The employer is liable for the neglect of the maintenance of the premises in order to ensure the safety of the customers. It is essential for the employers to follow the safety regulations in order to make sure that the visitors and the employees are safe on the premises. Since the safety of the steel structure was neglected and not notified at the premises the employer is now liable for the neglect of duty of care towards Loki. It would also be liable for the nervous shock so caused from the accident.
The National Employment Standards are applied to the standards of minimum working hours, flexible hours, arrangements for leave, redundancy notices, pay and provision of Fair Work Information Statement. It is applicable no matter which instrument regulates the performance of the employee. Such provisions are safety net that can’t be excluded through modern awards or enterprise agreements. The NES applies to the employees that are working under the national workplace relations system. However, casual employees are also entitled to NES regarding unpaid carer’s leave, unpaid compensate leave, community service leave and Fair Work Information System. If the casual employee has been regularly employed for more than 12 months then such employees are entitled to few more benefits such as the flexible working arrangements and parental leave. (Miller, 2008)
Being an HR in the company I would ensure that the employees have ordinary working hours to avoid overtime rates. The same should be according to the position of the employee held in the company such as the full-time, part-time or casual employees. It should be certain that employees only work 38 hours under a week. A certain day of working hours should lie between 7 am to 7 pm. It should be ensured that the annual leave is provided that may allow the employee to get paid when taking time off from work. All the employees should be paid for such leaves except for caual employees. It is to be noted that annual leave should be at least of four weeks according to the ordinary working hours. The employees of the company shall be entitled to public holidays depending upon the state or territory of work. The public holidays shall be listed at the beginning of the year in order to keep the employees informed of the holidays. At the time of leaving the employment the employee shall give notice to the employer in a written form concerning the last day of my employment. The same may be delivered personally, posted to employee’s address or the last known address. The employer may also pay out the notice period if the employee is to be immediately terminated. Every new employee should be given the Fair Work Information Statement copy at the start of their job. Such statement is a condition of employment. (Radan and Gooley, 2009)
According to Section 21, it may be stated that the unconscionable conduct is not defined but the section provides that the court may set out non-exhaustive factors if the person is observed to have engaged under such conduct. Accordingly, it also states that the person should never engage in supply of goods and services through a conduct that is unconscionable. Section 20 lays down that wherever the unconscionable dealings are undertaken because of exploitation of the special disadvantage of the party the same transaction would become unfair and invalid. Under the given scenario it may be derived that Rebecca was an elderly woman that had allowed Dave to come by and check the plumbing fixed at her house. Therefore, Dave had visited her and advice to buy a certain product. Rebecca did not want to buy the same by Dave pursued her for 2 hours and forced her to buy the same. She had been not so well versed in English and had no intent to buy the same yet forcefully signed the agreement. The cool off period was also waived off by her due to the long persuasion and make Dave go away. (Stewart, and Stuhmcke, 2012)
The conduct so practised by Dave would be said to be unconscionable because the goods so sold to Rebecca were forceful and not derived from a good intent. He also under took a client that was aged and unaware of the English language in order to make a sale in the regular course of profession. This would mean the Dave had an unconscionable conduct under the Section 20 and 21 of the Act. The remedies so available for the conduct is that of pecuniary liability for being a criminal offence. If the same is a criminal offence the civil remedies may prevail such as injunction, damages for the loss suffered or rescission of contract. Damages under tort may also be claimed under Section 236 for involving a deceptive or misleading conduct of making false statements. When the loss is determined from the unconscionable conduct the remedies may be claimed as a mix of tort, contract or equitable remedies. Furthermore, Rebecca may be able to bring forward public warning notices, substantiation notice, adverse publicity orders, non-punitive orders and undertakings on allowance of the court.
Carter, J. (2006). Carter's guide to Australian contract law. Chatswood, NSW: LexisNexis.
Griggs, L., Duke, A., Nielsen, J. and Cejnar, L. (2012). Competition law in Australia. Alphen aan den Rijn, The Netherlands: Wolters Kluwer Law & Business, Kluwer Law International.
Miller, R. (2008). Miller's Australian competition law and policy. Pyrmont, NSW: Thomson Lawbook Co.
Radan, P. and Gooley, J. (2009). Principles of Australian contract law. Chatswood, N.S.W.: LexisNexis Butterworths.
Stewart, P. and Stuhmcke, A. (2012). Australian principles of tort law. Annandale, NSW: The Federation Press.