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Groundbreaking whistleblower research project extended

THE second stage of the ground breaking research project Whistle While They Work, which is developing a strong information base on whistleblowing practices to inform protection law, has been strongly endorsed by the Australian Securities and Investments Commission (ASIC) which created the initial report..

The Strength of Whistleblowing Processes report, undertaken by a multi-university team led by Griffith University professor AJ Brown, and funded by the Australian Research Council (ARC), follows on from the ASIC-sponsored Whistling While They Work report. 

The Strength of Whistleblowing Processes report identifies the factors that influence good and bad responses to whistleblowing across a wide range of institutions.

This unique research project is the first to systematically compare the levels, responses and outcomes of whistleblowing in multiple organisations – across the public, private and not-for-profit sectors – and across international boundaries

ASIC Commissioner John Price said the project would provide a clearer basis for evaluation and improvement in organisational procedures, better public policy, and more informed approaches to the reform or introduction of whistleblower protection laws.

“The release of the new results provides an important new picture of where the strengths and weaknesses lie in current whistleblowing processes,” Mr Price said.

'This demonstrates firstly, the value of the project and of participating in it, but also why it's important that industry take a proactive approach to helping identify and adopt best practice, so that improvements in this area are well-informed and well-targeted on what's needed.”

This research project comes at a very important time and will provide a strong rationale for both industry and regulators to understand the importance of effective whistleblower programs within their workplaces.

“It will also progress our understanding of how these programs should be effectively embedded in large organisations,” Mr Price said.

“The ability for staff to speak up to its leaders and identify wrongdoing is a feature a strong organisational culture, including whistleblowers being heard, considered and appropriately dealt with.”

ASIC is officially encouraging Australian company officers and directors “to support this groundbreaking research”.

www.asic.gov.au

 

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Banks held to account on SME contract terms by ASIC and ASBFEO

SMALL and medium business leaders around Australia will be heaving a sigh of relief that the spectre of major banks enacting alleged predatory clauses in their loan contracts – which have seen many businesses scrambling to meet unexpected demands including cash payments to reduce loan levels even when there have been no payment defaults – are now officially on notice.

It was only after a sustained intervention by the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) and the Australian Securities and Investments Commission (ASIC) that the big four banks finally took action to protect small businesses from unfair terms in loan contracts.

The complaints Business Acumen has logged include a successful Gold Coast business forced to sell a second industrial property – even though it had no payments in default at the time and was subject to a sudden and apparently arbitrary change in its loan-valuation ratio. Other cases have seen businesses forced to sell plant and equipment to meet bank demands for loan principle reductions, often resulting in unnecessary losses.

Following a round table hosted by ASBFEO and ASIC in April, the big four banks committed to a series of comprehensive changes to ensure all small business loans entered into or renewed from November 12, 2016 will be protected from unfair contract terms. 

ASBFEO and ASIC have publicly raised concerns that lenders, including the big four banks, needed to lift their game in meeting the unfair contract terms legislation.

Commonwealth, ANZ, NAB and Westpac banks have committed to:

Remove ‘entire agreement clauses’ from small business contracts. These are concerning terms that absolve the lender from responsibility for conduct, statements or representations they make to borrowers outside of the contract. 

Remove financial indicator covenants from many applicable small business contracts. For example, loan-to-valuation ratio covenants that give lenders the power to call a default when the value of secured property falls, even where a small business customer has met financial repayments, will be removed. 

Remove material adverse event clauses from all small business contracts. These are concerning terms that give lenders the power to call a default for an unspecified negative change in the circumstances of the small business customer. 

Significantly limit the operation of indemnification clauses. These are concerning terms that aim to broadly protect the lender against losses, costs, liabilities and expenses that arise even outside the control of the small business borrower. 

Significantly limit the operation of unilateral variation clauses. In addition to providing applicable small business customers with a minimum of 30 days notice for any contract changes, banks will clearly limit the circumstances in which unilateral variations can be made.

The banks have agreed to contact all small business customers who entered into or renewed a loan from November 12, 2016, about the changes to their loans. In many cases, banks have agreed to implement the changes so that they apply to all existing applicable small business customers.

The banks have agreed to significantly limit the operation of potentially concerning contract clauses (such as financial indicator covenants) to loan products where such clauses are essential to the operation of the product (such as margin lending contracts). Where such clauses continue to exist, banks will re-draft them to ensure that they are clear, transparent and limited to the appropriate circumstances.

Some early bank moves have been to simply modify some of the wording in contracts – but  ASBFEO and ASIC have made it clear to the big banks that simply including the word ‘reasonable’ in contracts does not go far enough.

The ASBFEO, Kate Carnell, said her role was to consider the interests of small business and to ensure that the unfair contract term legislation was working across all industries. She said it was clear what ‘unfair’ means – to protect the interests of the advantaged party, in this case it is the banks, against the interests of small business.

“The banks have been given every opportunity, including a one-year transition period from November 2015, to eliminate unfair contract terms from their loan agreements and their response has been unsatisfactory,” Ms Carnell said.

ASIC deputy chairman Peter Kell said: "We made it clear that lenders had to significantly improve their lending agreements to small business to ensure they meet the new rules.

“It is important that the banks have committed to improving their small business loan contracts. ASIC will be following up with the big four banks – and other lenders – to ensure that small business contracts do not contain unfair terms.”

From November 12, 2016, the unfair contract terms legislation was extended to cover standard form small business contracts with the same protections consumers are afforded. In the context of small business loans, this means that loans of up to $1 million that are provided in standard form contracts to small businesses employing fewer than 20 staff are covered by the legal protections.

In March 2017, ASBFEO and ASIC completed a review of small business standard form contracts and called on lenders across Australia to take immediate steps to ensure their standard form loan agreements comply with the law.

ASIC has released Information Sheet 211 Unfair contract term protections for small businesses (INFO 211) which gives guidance to assist small businesses understand how the law deals with unfair terms in small business contracts for financial products and services, and the protections that are available for small businesses.

www.asic.gov.au

www.asbfeo.gov.au

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Deal with letters of demand in four steps – Whitbread

NEVER ignore a letter of demand (LOD) – no matter whether it has a basis in fact or not. That is sage advice from Whitbread Insurance Brokers to business leaders who, otherwise, may find themselves embroiled in a costly and protracted legal defence.

Whitbread claims teams have seen unfortunate repercussions from many businesses reacting to LODs – also known as a solicitor’s letter – either too late or in poorly informed ways.

That’s why Whitbread has developed a four-step strategy that it advises business leaders to take when they receive a letter of demand: don’t ignore a letter of demand; notify appropriate parties immediately; do not respond to the letter personally and do not admit liability; and finally, do not pay the demand. 

Whitbread Insurance claims team manager Renee Cassidy said a decisive approach to letters of demand is vital.

“If a third party believes you or your business is responsible for personal injury or damage, and they decide to seek compensation, your company will likely receive a letter of demand,” Ms Cassidy said.

“No matter how far-fetched a claim may appear, whether you believe it happened or not, an LOD is never something to ignore.

“Also known as a solicitor letter, a letter of demand is a formal notice demanding that the person to whom the letter is addressed perform an alleged legal obligation, such as rectifying some identified problem, paying a sum of money, or acting on a contractual commitment,” Ms Cassidy said.

“Most demand letters will include a deadline for action, and are often used to prompt payment, avoiding expensive litigation.”

Ms Cassidy said the legal definition of a demand letter, according to the Duhaime.org  Legal Dictionary, stated it often “contains a ‘threat’ that if not adhered to, the next communication between the parties will be through a court of law in the form of formal legal action”.

“Essentially an LOD is a demand of payment for damages or injury arising from an event involving the person or entity to whom the letter is addressed,” she said. These days, the demand can come in many forms including e-mail, a phone call or even a conversation in person.

“Your business may receive an LOD if another party alleges your business is legally responsible for third party injury or property damage; or compensation is sought.

“In today’s litigious society, the number of claims for property damage and personal injury have grown significantly. It’s important to note that even if an alleged claim appears ridiculous or unfounded at first glance, an LOD is something you must take seriously.

“If your company fails to address the issue early, the case could end up in court, where legal expenses can quickly escalate into tens of thousands of dollars – even if you’re not at fault.”

Ms Cassidy said Whitbread had developed four key steps business leaders should take when confronted by LODs:

1. Don’t ignore a Letter of Demand

“Under no circumstances should you ignore an LOD. Ignoring even the most preposterous LOD could see your legal situation escalate. We have seen even the most outrageous claims awarded with damages. For example: Damages sought for a torn jacket. An individual walked past an insured’s fence, and tore his jacket on a raised nail. This person then proceeded to send a LOD to our client claiming $80 to replace the jacket. Our client didn’t believe they were responsible for the costs and ignored the LOD.

“Unfortunately as the LOD was not addressed or reported in the first instance, the case went to court. The claimant was subsequently awarded with $1,200 in damages which our client was required to pay, along with the associated legal expenses incurred by both parties.

“Often we find that those who receive a LOD sit tight hoping it will disappear, but generally ignoring a LOD only acts to intensify the problem. If the issue is not dealt with, your business will likely be issued with formal legal action where the case may end up in court. As demonstrated above, this can make the initial issue a substantially bigger than it ever needed to be.”

If a case does go to court, a number of preventable consequences may arise such as:

Legal costs – a court case will inevitably incur legal expenses and should the judge rule against your business’s case, you may also be required to pay the legal expenses of the third party.

Excessive damages awarded – damages awarded against your business in court could be far greater than if the case was settled out of court (eg. the torn jacket case).

Mental angst – involvement in a court case could cause anxiety for business owner(s).

Reputational damage – court cases can sometimes result in unwanted publicity, leading to reputational damage to your brand.

Limited insurance coverage – your public liability insurer may not cover the damages and legal expenses in full, particularly if there is a delay in notifying the matter to the insurer. In the insurer’s eyes, the huge costs associated with a case being heard in court could have been avoided, or significantly lessened if an LOD was dealt with when initially received. A suitable settlement for the demand could have been negotiated, circumventing the need to go to court. Based on a scenario like this, many insurers would not pay a business’s liability claim in full, because legal expenses could have been avoided. Insurers in general are unlikely to accept any avoidable legal costs.

2. Notify appropriate parties immediately.

Whitbread Insurance brokers always recommend businesses inform their insurance broker, and public liability insurer, as soon as a LOD is received. Benefits of early notification are:

(a) The insurer will take the situation off your hands. Once your business notifies your Public Liability insurer or insurance broker, the insurer will generally take care of the whole issue from the start on your behalf. This removes the need for your direct involvement in the dispute. The insurer will: Review the LOD and advise on next steps to take; and, if required, engage legal representation to protect your interests, and liaise with the other party and their legal team who are seeking damages.

(b) Expert advice from the start. Your insurer will know the best way to settle the claim, that is, whether it will be more beneficial to settle a claim out of court or not. They will be aware of win/loss trends in court for similar cases, and are in a position to make an informed decision on how to achieve the best and least costly outcome for the claim.

(c) Settlement out of court. The insurer will likely seek to settle the claim as soon as possible to avoid formal court proceedings. Early LOD notification to your public liability insurer can also give the insurer the opportunity to look at alternative ways to resolve the LOD, or share the cost of the damages with another party. In the torn jacket case for example, the home and contents insurer of the person seeking damages could have paid the claim.

(d) Legal expenses covered by insurance. Public liability insurance can cover your legal expenses associated with the claim for damages, up to the limit defined in the policy.

“Don’t be discouraged from reporting a potential claim to your insurance broker or public liability insurer,” Ms Cassidy said. “It is to your benefit to report early, even if the claim doesn’t progress.”

3. Do not respond to the letter personally and do not admit liability.

Instead of responding to the LOD, you need to inform your public liability insurer or insurance broker. The insurer will determine whether there is any negligence attached to the claim on your behalf. There in fact may be no legitimate claim, in which case they will work to have the matter dismissed. The insurer will then respond to the letter appropriately on your behalf.

You should never admit liability (fault) for the incident associated with the LOD. This could leave you open to legal action for damages, and prejudice the insurer’s position. It could be almost impossible to argue your case if guilt has already been admitted.

4. Do not pay the demand.

If your business receives an LOD, refer it to the insurer who will take control on your behalf. Paying the demand could be interpreted as an admission of guilt, leaving you vulnerable to further legal action. There are other things to consider:

Employees: If an employee suffers an injury on your premises you would typically refer the case to the relevant Work Cover authority. The structure around Work Cover differs between the various Australian states and territories – for advice on this, ask your insurance broker.

Products liability: A public liability policy does not cover claims relating to a specific product you may have sold or manufactured, which could result in a liability claim if third party damage or injury is caused by its use or consumption. To protect against events of this nature, a products liability insurance policy is necessary. This coverage differs from a public liability policy.

Public and products liability insurance is designed to protect you and your business from significant costs associated with legal action as a result of your actual or alleged negligence that has caused third party property damage or personal injury, whilst acting in the course of your business,” Whitbread’s Victorian Leaders facilitator, Holger Schnabel said.

“To help ensure your public liability insurance policy responds effectively, if you receive an LOD, we recommend following the four key steps.”

Whitbread Insurance Brokers is an Industry Expert with Victorian Leaders, the organisation helping to develop the next generation of leading businesses in Victoria.

www.vicleaders.com.au

www.whitbread.com.au

 

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  • This Whitbread insight article is not intended to be advice and you should not rely on it as a substitute for any form of advice. Contact Whitbread Associates Pty Ltd ABN 69 005 490 228 Licence Number: 229092 trading as Whitbread Insurance Brokers for further information or refer to the website.
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‘Four pillars of trust’ support business tax transparency with ATO

RESEARCH by Thomson Reuters into Australian authorities’ new focus on transfer pricing and profit shifting has identified four key areas of focus for organisations in meeting the new requirements of the Australian Taxation Office (ATO).

Thomson Reuters managing director for tax and accounting, Ben Scull, said organisations must focus on four key pillars of trust to achieve “justified trust status as per the ATO’s new regulations. 

Mr Scull said in its bid to make Australian corporations comply with the international Base Erosion and Profit Shifting (BEPS) regulations, the ATO is working towards a ‘justified trust’ position, in which the community can be satisfied that large organisations are paying their fair share of tax.

“To achieve the required level of tax transparency, businesses must be able to provide fact-based evidence to support their tax position,” Mr Scull said.

“In an environment in which the ATO is pursuing a much more active compliance program, every business to which the justified trust program applies must be able to demonstrate it has a robust control framework in place to prove the assertions it makes about its revenue and expenses.

“While this sounds simple, the reality is much more complex. Businesses must focus on this consistently or risk heavy fines and penalties.

“Tax transparency and compliance is complex and, in a landscape of evolving regulations, becoming even more difficult to navigate,” Mr Scull said.

“Most organisations are unlikely to have the deep skill levels and expert knowledge on staff, making it crucial for affected businesses to partner with expert advisers. This will give them the best chance of compliance, helping them avoid heavy penalties.”

Mr Scull said Thomson Reuters had identified four key pillars to achieve justified trust: process, people, technology and data.

www.thomsonreuters.com.au

 

Panel:

FOUR PILLARS

Process

By implementing repeatable processes, businesses will be able to demonstrate consistency, one of the key elements of trust. To develop effective processes, businesses must first review the existing process steps, and identify and address gaps. They must be able to apply the same process across the organisation’s various locations and demonstrate a consistent output. There must be strong controls in place to ensure the process is reliably repeatable. Businesses should test the processes by doing practice runs before each process goes live.

People

People fulfil another key element of trust; congruity. This means ensuring the people responsible for tax compliance have the required skill sets in place, are involved in reviewing processes and technologies, and are suitably motivated.

Technology

Manual processes are inherently error-prone, so putting technology in place to automate aspects of the process can help deliver reliability, another key element of trust. Technology should enable process and controls, and include comprehensive tools for oversight and tracking.

Data

Using the wrong or outdated data can severely curtail an organisation’s ability to comply with tax regulations effectively. Being able to guarantee data integrity is another crucial element of trust. Doing so requires consistency of inputs. This extends beyond financial data to include all the information a business uses to make decisions or conduct operations.


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