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Business news, business advice and information for Australian SMEs | SmartCompany

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    A café manager at the Royal Brisbane and Women’s Hospital has been awarded $9000 in compensation after it was found she was sexually harassed when her manager asked if she would participate in a sexual act.

    Karen Bell, who was employed as the supervisor of food and retail services at a café at the Royal Brisbane and Women’s Hospital, alleged her immediate supervisor Lindy Ralph harassed her on a number of occasions, including at a work Christmas party in December 2011.

    At the party, Bell says Ralph asked if she would join in her and another colleague in a “threesome” as she wanted to “experiment with people she knew”.

    At the same party, Bell said Ralph asked if she thought her “breasts were nice” and lifted her shirt in front of Bell.

    Bell said Ralph made other inappropriate comments at another work function earlier that month, including telling her “I’m not wearing any undies”, and throughout 2012 was “aggressive and abusive” towards her, which she interpreted as being linked to Bell’s refusal to have sex with her.

    As a result, Bell said she developed a psychological injury, which was compounded by Queensland Health’s allegedly not taking any steps to prevent the harassment.

    While Ralph denied the allegations, Queensland Civil and Administrative Appeals Tribunal member Fiona Fitzpatrick sided with Bell in a recently published judgment, finding her psychological injury was materially caused by the incident at the Christmas party and was the subsequent “bullying and aggressive management at the hands of Ms Ralph. Ralph and Queensland Health were ordered to pay $9000 in compensation.

    A spokesperson for Queensland Health told SmartCompany the government has paid the compensation order and will not be appealing the decision.

    “Queensland Health is committed to providing employees with a safe, secure and productive work environment, free from harassment,” the spokesperson says.

    “We have a zero tolerance approach to workplace harassment and sexual harassment.”

    Alana Heffernan, a lawyer in Maurice Blackburn’s employment and industrial law team, told SmartCompany the case “really highlights that even one single remark can be extremely inappropriate and cause significant psychological distress for a person”.

    “It highlights to businesses the need to not only have policies in place, but to provide training to their employees about the policies in the lead up to Christmas,” she says.

    Heffernan says the case also emphasises the importance of employers investigating any allegation of harassment, even if a remark may seem trivial, and to ensure the person making the allegation is not blamed in any way or their complaint is muddled with counter-allegations about their work performance.

    “It is very important for employers to minimise their liability by first preventing this from happening and if it does happen, dealing with it swiftly and seriously,” Heffernan says.

    READ MORE: Five tips to keep it together at your work Christmas party

    Workplace lawyer Peter Vitale told SmartCompany he was surprised the order for compensation was not higher, given other recent sexual harassment cases that have resulted in much higher penalties.

    While Bell’s case was heard before the landmark Oracle judgment in July, Vitale says the relative low level of damages awarded in this case may demonstrate “the state jurisdictions and state tribunals are taking a little bit longer to get where the superior courts are at”.

    Nevertheless, Vitale says it is a warning to employers of the seriousness with which they need to approach allegations of sexual harassment, particularly at a time of year when social functions are more common.

    “Employers need to be aware of the measures they should take to try to avoid this sort of conduct,” Vitale says.

    “They also need to be aware of the fact compensation is increasingly likely to be much more than this case, not to mention the legal costs.”

    “It could make for a very expensive Christmas”.


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    A Sydney retail manager has won an unfair dismissal case after the Fair Work Commission found she was unfairly dismissed for refusing to accept a $26,000 pay cut.

    Angela Johnson was dismissed from fashion retailer URBRANDS in April after she refused to accept a cut in remuneration from a base salary of $80,000 plus a car, to a base salary of $54,000 and no car.

    Justice Boulton found it was harsh and unreasonable for Zehut Pty Limited, which trades as URBRANDS, to terminate Johnson’s employment and awarded 14 weeks’ pay as compensation.

    Johnson had agreed to move from a head office role to a “lower position” at a poorly performing Chatswood store in 2013 to try to improve the store’s performance. She agreed to stay on the same remuneration package and after 11 months the store's turnover increased by about 19%, making it one of URBRANDS’ top six stores outlets.

    The company’s director then told her that her salary was to be brought into line with other store managers and Johnson was informed if she did not accept the new pay structure, she would have to resign.

    Boulton found Johnson’s refusal to accept the proposed reduction in remuneration did not provide a valid reason for termination.

    “The respondent is a sizeable employer and would be expected to have procedures in place for dealing with terminations of employment,” said Boulton.

    “The respondent employs dedicated human resource staff but it would seem that they were not involved in the discussions, negotiation or decision relating to the termination of the applicant’s employment.”

    Boulton said a more appropriate way of dealing with the issues relating to Johnson’s remuneration package could have been found if URBRANDS had opted to use the expertise of its human resources staff.

    M+K Lawyers partner Andrew Douglas told SmartCompany an employer employs a worker as a job, not a person. As such, any change to the job can be seen as a termination.

    “It usually isn’t a problem because it usually happens as a promotion,” says Douglas. “But when you demote someone, they cease to have the same job and that is termination.”

    While Douglas says there are clauses that allow employers to alter job descriptions, it is never something that can be put in a contract, and an employer must seek to fairly renegotiate a contract with an employee.

    He says URBRANDS did not have a valid reason for dismissal, and did not demonstrate an attempt to find Johnson suitable alternative work to cover a possible claim for redundancy.

    “For SMEs, the lesson is simple. If you hire someone to do a job, then you change that job to lower pay or conditions, you want to have a better argument, such as part of a restructure, and there has to be a consultation process and the employee has to accept it,” Douglas says.

    SmartCompany contacted URBRANDS but did not receive a response prior to publication.

    Follow SmartCompany on Facebook, LinkedIn and Twitter.


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    The operator of a Western Australian business has been charged with breaching Australian Consumer Law after allegedly selling fake ultrasound images to expectant mothers.

    The WA Department of Commerce's Consumer Protection division confirmed to SmartCompany it has began prosecuation against Rawinia Hayes of Bunbury, trading as Amazing 4D Imaging, on multiple charges under Australian Consumer Law, alleging she made false and misleading representations to consumers.

    Consumer Protection WA received 76 written complaints about the home-based business between January 30 and February 26, after some of the company’s customers discovered they were given identical ultrasound images when they shared what they thought were images of their unborn babies on Facebook.

    Allegations about the ultrasound images, which some customers claimed were taken straight from Google image searches, were first aired in the Bunbury Crime Stoppers Facebook group at the end of January.

    The Bunbury Mail reported in January more than 100 people who believed they had been given fake ultrasound photos had also joined a ‘victims only’ online support group, while a ‘baby photo scam’ Facebook page attracted more than 1200 members

    ‘We had an unprecedented 76 actual written complaints in relation to that issue,” Debbie Butler from WA Consumer Protection told the ABC this week.

    “That was huge for us and that’s culminated in charges having been laid for false and misleading representation,” Butler said.

    Melissa Monks, special counsel at King & Wood Mallesons, told SmartCompany this case highlights the “power of social media in bringing to light potential breaches of the law when emotional and angry customers believed they’ve been wronged”.

    “If the consumer complaints are correct and the regulator takes action, this business will face the prospect of fines of up to $1.1 million per breach amongst other others,” Monks says.

    “Although this may be the least of its problems given the reputational risk it is facing right now. Bunbury is a relatively small town and surviving even unsubstantiated claims like this can be difficult for a business.”

    While Monks says businesses are generally familiar with the Australian Competition and Consumer Commission, which is “very visible in the media”, they are often less familiar with the state and territory-based consumer law regulators, such as Consumer Protection WA, “who can and do enforce the same consumer protection laws as the ACCC though in relation to localised issues”.

    The charges against Amazing 4D Imagery will be heard in the Bunbury Magistrates Court on January 12.

    SmartCompany was unable to contact Amazing 4D Imaging.


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    The competition watchdog has another free range egg producer in its sights, announcing the launch of legal proceedings in the Federal Court today against Derodi and Holland Farms, which trade as Free Range Egg Farms.

    The latest legal action follows the Australian Competition and Consumer Commission’s pursuit of Rosie’s Free Range Eggs and Pirovic Enterprises for fake free range egg claims. 

    Free Range Egg Farms supplies eggs under the label Ecoeggs and Free Range Eggs in New South Wales.

    The ACCC claims Free Range Egg Farms use of the term ‘free range’ for its egg brands is false and misleading.

    The ACCC also claims Free Range Egg Farms falsely labelled its egg cartons and made “deceptive representations” across social media and on its website claiming the hens were farmed in conditions where they were able to move about freely.

    But the competition watchdog says the hens for Free Range Egg Farms were not able to do this because of farming practices and conditions which did not allow for the hens to roam freely on most days.

    Read more: Uncertainty cracks the free range egg market

    ACCC chairman Rod Sims said the ACCC considers free range means more than animals just having potential access to the outdoors.

    “Consumers expect free range to mean animals genuinely can and do go outside on most days,” he said in a statement.

    Melissa Monks, special counsel at law firm King & Wood Mallesons, told SmartCompany this latest action by the ACCC is part of its industry crackdown on misleading credence claims relating to egg and chicken products.

    "The ACCC has been very transparent about its views, even sending egg suppliers a written notice last month to make it clear," she says.

    "This is not an unusual step by the ACCC when it considers there to be widespread practices within an industry that may breach the law, but it does signify that it takes the matter very seriously and likely to take action in efforts to bring industry change."

    Monks says we've seen this approach by the ACCC in many industries including telecommunications and the energy sector. 

    "The ACCC has the backing of the courts on this one, as they've clearly found that the term 'free range' means that hens can and do go outside freely on most days," she says.

    "If farming practices are not consistent with this, then claims that eggs are free range are likely to be misleading. The principle applies equally to any food business - if your labels and marketing claims such as free range, organic, halal, etc don't reflect your production practices, you could be engaging in misleading conduct and come onto the ACCC's food focussed radar."

    SmartCompany contacted Derodi and Holland Farms but neither responded prior to publication.

    The proceedings are set down for a directions hearing in Sydney on February 4, 2015.

    Follow SmartCompany on Facebook, LinkedIn and Twitter.


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    The full bench of the Federal Court has rejected an appeal by a former senior EnergyAustralia employee who claimed she was unfairly dismissed following allegations of sexual harassment, in a decision with big legal implications for all businesses.

    In August 2013, Kate Shea sued EnergyAustralia (then known as TRUenergy) in the Federal Court, accusing its former chief financial officer of harassing her during a 2010 work trip to Hong Kong.

    EnergyAustralia underwent a corporate restructure during February 2012 in which Shea was made redundant. However, Shea, who was the company’s head of corporate and government affairs at the time, claimed the dismissal was in response to the sexual harassment claim.

    Shea also accused the company of a culture of sexual harassment so bad the human resources director had to actively monitor the managing director for anything inappropriate.

    However, on March 25, Judge Dodds-Streeton dismissed Shea’s $6 million adverse action claim against the company, in the process setting an important precedent about the need for workplace complaints to be genuine.

    “The complainant must hold a genuine belief in the truth of the matters communicated as a grievance or accusation. In the absence of such a belief (which may be difficult, albeit not impossible, to establish in the absence of some reasonable basis) the complaint would not be a genuine grievance or finding of fault,” Dodds-Streeton said.

    Following an appeal, in a decision handed down on December 8, the full bench of the Federal Court further clarified the obligations for businesses when dealing with complaints.

    “Considerable care needs to be exercised before implying … any constraint that would inhibit an employee’s ability to freely exercise the important statutory right to make a ‘complaint’,” the judgment states.

    “To too readily imply … the necessity for a complaint to be a ‘genuine’ complaint, necessarily would be productive of argument about whether a ‘complaint’ is bona fide and may serve to discourage those who may well have mixed motives for making a complaint.”

    “When considering the construction of these provisions, there is an obvious need to balance the legitimate interests of both employees and employers in a manner consistent with the objects of the Act as a whole.”

    Based on this, the court upheld Dodds-Streeton’s original ruling.

    “Ms Shea failed to demonstrate that her Honour erred in finding that none of her alleged complaints were a substantial and operative factor in EnergyAustralia’s decision to make her position redundant,” the judgment states.

    In a statement, an EnergyAustralia spokesperson told SmartCompany the company is “pleased with the Federal Court decision to uphold the original judgement”.

    “In March, the Federal Court dismissed Ms Shea’s application and found in favour of EnergyAustralia. Ms Shea appealed the decision,” the spokeswoman says.

    “We want to focus on the future, not the past, and ensure we are growing our business and delivering for our customers.”

    “We are a business that values our employees and strives to provide a safe work environment, and we expect our employees to meet the highest standards of conduct and decency at all time.”

    M+K Lawyers partner Andrew Douglas told SmartCompany the case is a landmark decision for all business owners.

    “Shea’s case is the leading case for workplace investigations to make sure complaints are made for a proper purpose. And if they are not made for a proper purpose, the complaint itself will be the basis of a serious misconduct and the complainant can be subject to disciplinary action,” Douglas says.

    “What the appeal from the first decision makes clear is that the complaint must be wholly for an improper purpose for an improper complaint finding.”

    Douglas says it is quite common for someone sent off into performance management to file a bullying complaint that is clearly for an ulterior motive. The decision is a powerful tool in the arsenal of employers in that situation.

    SmartCompany also contacted Kate Shea’s counsel, Charles Gunst QC, who did not comment on the matter.


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    How important is securing the direct domain name for a new business?

    It is something mining giant BHP Billiton is discovering this week, after it emerged the direct domain name for its spin-off company, South32, is already taken.

    BHP Billiton spent a long time deciding on a name for the spin-off, so long that the name of the business became commonly known as “Crap Co”.

    Finally, BHP Billiton announced on Monday the company it intends to create through its proposed demerger will be called South32.

    But the domain South32.com is owned by a US company, Kari Bian Film Company, and currently features a video loop of a woman’s tongue.

    According to Fairfax, the Californian company has attempted to sell the domain to BHP for a sum of $10 million.

    A spokesperson for BHP told SmartCompany this morning that BHP had looked at South32.com as part of its due diligence but decided it was “not prepared to pay the price demanded by the owner”.

    “Suggestions that we omitted to do this are incorrect,” the spokesperson says, adding that a number of URLs for South32 have been registered by the company and will be announced “as the company is established”.

    The domain registry through which South32.com was registered has also denied claims of cyber squatting, with a spokesperson for Dark Blue Sea, owner of Brisbane-based Fabulous Domains, telling SmartCompany this morning the domain was secured by Kari Bian Film Company long before BHP’s South32 concept was a reality.

    “The domain South32.com was first registered in 2008, fully six years before BHP even mentioned the phrase,” the spokesperson says.

    “That some publications have labelled this cyber squatting is clearly not the case.”

    The spokesperson confirmed the domain has not changed hands since its registration and says Fabulous Domains “does not own or control the domain” and is not privy to any discussions between the owner and potential buyers.

    But two experts told SmartCompany the case has important lessons for business owners looking to launch a new company or brand.

    Social media and communications expert Catriona Pollard says all business owners need to conduct thorough research of domain names and other online assets before launching their company or brand.

    “When you are starting a business, it is so critical to do your research,” Pollard told SmartCompany.

    “In Australia, that means looking at all the registered companies to see who has a name that is similar. You have to do this right at the beginning.”

    “But it’s not just about the domain name. You need to look to see what is available on Facebook, Twitter, Pinterest and Instagram, the whole of social media.”

    Pollard recommends businesses also take a long-term, strategic view. While some new companies may only plan to operate in Australia, she recommends checking to see if the .com domain name is available for your company name, in addition to the .com.au address.

    “Even as a small business, you need to think about where this might go, you might want to sell [the company] in the future,” she says.

    But independent branding specialist Michel Hogan says securing a direct domain name is only essential for companies for which a direct URL of their name is “pretty critical”, such as online retailers.

    But for other companies, such as BHP, which primarily use their websites to provide information, Hogan says not having a direct domain “is not the death knell a lot of people make it out to be”, as search engine marketing can help searchers find the correct site.

    Hogan suggests business owners consider how important having the direct domain is to their business model before deciding on a name.

    “If it is structurally important, you may reconsider your name,” she says.

    “If you are an online retailer, you want a URL that is easy to remember and you don’t want customers to get it wrong. If they can’t find it first go, they will type it in to Google and all the other options will come up. It’s a barrier to get to your product.”

    SmartCompany was unable to contact Kari Bian Film Company. 


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    Well-known Melbourne musician Joe Camilleri was among those stung by the Ponzi scheme

    A trusted Melbourne lawyer who swindled clients out of more than $12 million yesterday received a 12-year jail sentence for his crimes.

    The Supreme Court of Victoria heard Philip Linacre operated a 12-year-long Ponzi scheme, a fraudulent investment where returns are paid to investors are paid by new investors, rather than from profit earned from the investment itself.

    Linacre told clients, including his own family and friends, their investments would be given to a third party as a mortgage loan, promising them between returns of 12% and 24% on the investments. He was instead using their money to pay out the interest on other clients' investments.

    Linacre, who said he started the scheme because of his own bad financial position, operated the arrangement from 2000 until 2012, when he turned himself in to police. He pleaded guilty to 21 counts of dishonesty and five counts of having a deficiency in a trust account.

    Chief Justice Warren called Linacre’s actions “calculated and complex” and said many of the victims were already in difficult financial circumstances when Linacre convinced them to invest.

    “You have committed a number of serious offences in the trusted position of a lawyer,” said Warren in her ruling.

    “Importantly, these victims came to you in their time of need. Many sought information about investing their life savings, superannuation or inheritance. They placed complete trust in you. You did not only steal money from your victims, you robbed them of their future.”

    Warren also found many of Linacre’s victims suffered ill health because of his criminality.

    Linacre will serve a minimum of eight years’ jail.

    Brett Warfield chief executive of forensic accounting firm Warfield & Associates, told SmartCompany Ponzi schemes have been around for a long time and there were two major red flags for investors to watch out for.

    “The first, and most glaring, is the rate of return you are promised,” says Warfield.

    “As soon as you are promised above the market rate, so in this instance the mortgage lending rate, when you get someone offering double, triple or four times that, straight away that should be a sign.”

    Warfield says the greater the return on investment, the greater the risk for investors.

    “The other thing with Ponzi schemes is asking questions about the actual investment,” he says. “Asking what type of information will be provided about my investments?”

    Warfield says investors should expect detailed reports and correspondences on their investment, such as what one might expect from superannuation funds. He says although some people may feel uncomfortable asking for this information, investors have to be proactive to protect themselves.

    “You have to be in charge of your money,” he says. “The good thing is vulnerable people who would have invested may see and may think twice.”

     


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    ANZ has successfully defended a $9 million breach of contract claim after a senior executive sent a doctored email to a journalist. 

    The NSW Supreme Court found ANZ was within its rights to sack its NSW head of institutional property group, Paul Bartlett, in 2012 for gross misconduct.

    Bartlett brought the case against ANZ after he was marched out of ANZ’s headquarters following an internal forensic investigation which identified him as the author of a doctored email that was sent to Matthew Cranston, a journalist at The Australian Financial Review.

    ANZ told the court Bartlett had doctored the email from ANZ’s global head of institutional property, Eddie Law, including a new subject line — “ANZ Balance Sheet is Closed for Remainder of Year for Property Deals” and the line “No more new lending. We are closed for business. Do not tell the market or our ­clients”.

    The doctored email read:

    “FROM: Law, Eddie

    SENT: Wednesday, 20 June 2012 1:10 PM

    TO: Lawrence, Matthew;

    CC:

    Subject: Re: ANZ Balance Sheet is Closed for Remainder of Year for Property Deals

    The key discussion points from the announcements from Mike Smith and Alex Thursby are as follows:

    Focus going forward is on Balance Sheet productivity. No more new lending. We are closed for business. Do not tell the market or our clients.

    This means that we will need to prioritise deployment of new capital. In order to do so we may seek to free up capacity by non renewal/ sale of assets.

    Selling down existing exposure and prioritisation of future exposure may negatively impact the revenue line, however this has been provided for.

    Rgds

    Eddie Law

    Global Head Commercial Property Group, ANZ

    Sydney”

     

    The email was doctored, printed out and then posted to the journalist but the handwritten envelope proved to be the undoing of Bartlett. 

    ANZ alleged Bartlett doctored the email as he felt aggrieved Law had been promoted over him and because the bank’s tightening of new lending could impact his bonus. 

    ANZ claimed Bartlett was also concerned after a series of unfavourable performance reviews following an investigation which found Bartlett had made his executive assistance complete online compliance training on his behalf. 

    The court noted it might be asked why someone as clever as Bartlett would write the envelope by hand rather than, for example, type an address label.

    “There was no evidence that [Bartlett] was particularly adept at typing or document preparation. He used the services of an EA. To require someone else to type a label or write the envelope would be to incur a greater risk of detection,” the court found.

    Bartlett was ordered to pay ANZ’s costs of the proceedings.

    Ben Tallboys, senior associate at law firm Russell Kennedy, told SmartCompany the case was a breach of contract claim so all the court was concerned about was whether ANZ had a contractual right to dismiss the employee. 

    “Employers who are on the ball will already have contracts which will allow them to dismiss senior employees where the employer has a reasonable opinion that the employee has done something that is serious misconduct or that could cause disrepute,” he says.

    “The case does confirm that those clauses are likely to be upheld unless the employee can prove the employer was acting in bad faith, which will be very difficult.”

    But Tallboys says employers still need to comply with the Fair Work Act and have to give minimum periods of notice when dismissing someone unless the serious misconduct actually occurred. 

     “Employers will need to satisfy the Fair Work Commission in unfair dismissal cases that the misconduct actually occurred,” he says.

    ANZ declined to comment and SmartCompany was unable to contact Bartlett.

     


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    Small businessman John Viscariello won a lengthy legal battle against liquidator PPB Advisory and law firm Minter Ellison on Tuesday.  

    The Chief Justice of the Supreme Court of South Australia found in Viscariello’s favour in his claim of improper conduct against PPB and Minter Ellison.

    Viscariello’s retail business Bedroom Mazurka which included 18 outlets in South Australia went into administration in 2001 and lawyers and liquidators spent more than half a million dollars chasing a debt of just $28,000.

    Justice Kourakis found liquidator Peter Macks, formerly of PPB and now of Macks Advisory, had fabricated documents and given “evasive and unconvincing testimony”.

    The court lifted the veil of legal professional privilege to include damning evidence including minutes of meetings between PPB and Minter Ellison which stated “The number one rule is to protect the insolvency practitioner at all cost”.

    Viscariello fought a string of legal proceedings brought by Macks and brought his own against the legal practitioners board. 

    The court found the continuation of the proceedings could only be explained by Macks’ concern for his own personal financial and reputational interests.  

    "The disconnection between the legitimate purpose of the litigation and Mr Macks’ personal purposes, and the way in which it was funded, were calculated to corrupt the proceedings," the court found.

    PPB was not named as a party to the proceedings as PPB’s former Adelaide office was an affiliate relationship that ran independently.

    PPB chairman Stephen Parbery said in a statement that the insolvency firm is “disappointed” a former affiliate has been found to have acted improperly.

    “This type of conduct is not condoned at PPB Advisory and we maintain very high standards of professionalism and integrity,” he says. 

    “Insolvency law reform is an area where PPB Advisory has been very proactive putting forward a number of recommendations, and we believe such reform will help to strengthen our profession and the conduct of all practitioners.”

    In a statement to SmartCompany, Macks said he respected the court’s decision and was pleased “the whole of Mr Viscariello’s case concerning my conduct as administrator of the companies was thrown out”.

    “However, I am deeply disappointed by its findings concerning the litigation that I pursued in good faith for the benefit of all creditors. I am currently reviewing the contents of the judgment and taking further advice regarding my options, including as to any appeal to challenge those findings.” 

    Minter Ellison declined to comment while Viscariello did not respond to SmartCompany’s request for comment prior to publication.


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    Two wholesalers of cycling accessories have entered into separate court enforceable undertakings with the Australian Competition and Consumer Commission, after admitting they engaged in conduct that amounted to, or was likely to amount to, resale price maintenance.

    Resale price maintenance occurs when a supplier specifies the minimum resale price of its products to other members of the supply chain, including retailers. It is a key priority of the ACCC, which cracked down on KitchenAid distributor Peter McInnes for the same conduct earlier this year.

    An investigation by the ACCC found Italiatech Australia engaged in resale price maintenance by inducing or attempting to induce three Australian retailers who sold its bicycle helmets and saddles not to sell the products below recommended retail price (RRP).

    TMO Sports sells bicycle parts and accessories and was found by the ACCC to have induced or attempted to induce three retailers not to sell the parts and accessories below a specified price.

    In court enforceable undertakings, both Italiatech Australia and TMO Sports have agreed not to engage in resale price maintenance for five years and to implement and maintain training programs for current and future staff. The companies have also agreed to write to their retail customers explaining the undertaking and informing them any reference to resale prices are only recommendations.

    ACCC chairman Rod Sims said in a statement retailers must have the “freedom to set their own prices, including offering discounts, when they are faced with strong competitive pressures”.

    “Restrictions on vigorous price competition can adversely affect locally based online retailers that are otherwise well-placed to compete directly on price with international online retailers,” said Sims.

    “They can also inhibit bricks-and-mortar retailers from competing with a combination of personal service and lower prices.”

    SmartCompany contacted Italiatech but did not receive a response prior to publication. TMO Sports declined to comment when contacted by SmartCompany.

    Melissa Monks, special counsel at King & Wood Mallesons, told SmartCompany enforcement actions against resale price maintenance occur “very regularly” and many businesses, particularly SMEs, “don’t seem to be aware that requiring a customer either contractually, through casual sales conversations or otherwise, not to resupply below a minimum price is a breach of Australian competition law”.

    “Setting a floor price is not permissible,” Monks says. “However, setting a maximum resale price is permissible, as long as it is a genuine maximum and not impractically low where no margin could ever be made so that it is in effect a minimum.”

    Monks says resale price maintenance is “relatively easy conduct to detect and enforce” because it is often clearly captured in contracts or written materials. Unhappy customers who are price constrained can also be willing complainants and witnesses, she says.

    Monks says being able to resolve the matter through an enforceable undertaking is “an early Christmas present” for Italiatech and TMO Sports.

    “The ACCC has taken a number of companies to court for resale price maintenance and secured reasonably high penalties,” she says.

    “With a maximum penalty of the greater of up to $10 million per breach or three times the gain or 10% of the turnover of the corporate group, it is so worthwhile for businesses to have in place training and procedures to make clear to their staff that they cannot control the price at which their customers on sell goods.”

    Rohan Harris, principal at Russell Kennedy Lawyers, told SmartCompany individuals found to be involved in resale price maintenance can also face fines of up to $500,000.

    “Companies need to manage this kind of situation very proactively,” says Harris, who says entering into a court enforceable undertaking can often be preferable to fronting up to fight the ACCC in court.

    In this case, Harris says it is notable that both companies have agreed to implement and maintain quite detailed training programs for their executive and sales staff.

    “A training program is essential for business in the retail space,” he says.


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    Mountain View Farm Organic Bath Milk has been recalled today following the death of a three-year-old Melbourne child and the hospitalisation of four others.

    The Australian Competition and Consumer Commission is alerting consumers about the recall, pointing out the bath milk contains raw – or unpasteurised – milk and is sold in one or two litre varieties.

    ACCC deputy chair Delia Rickard said in a statement Mountain View Farm Organic Bath Milk has been linked to a number of health concerns in young children after it was used as a substitute for regular pasteurised milk.

    “The message from health agencies is clear: do not drink unpasteurised milk,” Rickard said.

    “If you have this product, do not drink it in any circumstances. Return it to the place of purchase for a full refund.”

    The sale of unpasteurised cow’s milk for consumption is illegal in Australia. However, the consumer watchdog says it understands some people do consume the product despite it being marketed as bath milk.

    Rickard said while the Mountain View Farm unpasteurised milk is labelled as a cosmetic product and carries a warning that it is not safe for human consumption, the ACCC will investigate whether there was any breach of Australian Consumer Law.

     

    “This product is sold in containers that resemble commonly used milk containers, and four children under the age of five have fallen ill after drinking contaminated raw milk in the last few weeks, while the death of the three-year-old has been referred to the coroner,” she said. 

    The ACCC said it is leading a national investigation of consumer law regulators, and will consider whether voluntary or mandatory changes to labelling for unpasteurised milk will need to be implemented to address health concerns.

    Earlier this week the owner of Mountain View Farm, Vicki Jones, told 3AW radio the media had “sensationalised” the death of the three-year-old who had reportedly drunk her company’s unpasteurised milk.

    “I'm in shock, I think it's a bit sensationalised,” she said.

    “The label actually says not for human consumption – it's a cosmetic product, not for human consumption. Every time we're approached by someone who says 'can we drink this milk' we tell them that it's not for consumption.”

    SmartCompany has contacted Mountain View Farm for comment.


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    A Melbourne childcare centre has escaped blame in a bullying case before the Fair Work Commission, but the watchdog has told the centre it must improve its performance management after hearing claims an employee was yelled at by a colleague and inappropriately questioned about her sexuality.

    The unnamed childcare centre is the latest employer to avoid a bullying judgment this year.

    The employee, who was named only by the initials YH in the Fair Work Commission finding, claimed a co-worker bullied her on numerous occasions between 2010 and 2014.

    YH claimed her colleague yelled at her on several occasions, threatened to “kick her out” of the centre’s room for three-year-olds, and asked about her sexuality after she gave a lift to another female worker.

    But the co-worker in question told the commission she believed the employee had performed below expectations and had “not pull[ed] her weight with respect to providing care needs to the children”.

    YH lodged a complaint with the centre's committee of management about her treatment, but it was dismissed as unsubstantiated after an investigation by two committee members. The committee found there had simply been a "history of interpersonal conflict" between the two workers, which did not amount to bullying.

    Commissioner Wilson agreed with their view, dismissing YH’s bullying claim and finding she was likely difficult to supervise and prone to avoid unpleasant or undesirable tasks.

    Wilson did, however, find YH’s co-worker had acted in a   “heavy-handed” way and the centre had not managed the issue well.

    He recommended the centre “adopt and follow a performance management process that ensures early judgements about poor, or less than satisfactory, behaviour are not reached by [the co-worker] without allowing the employee to whom she is talking to understand the nature of the complaint and to then respond.”

    Employment lawyer and M+K Lawyers partner Andrew Douglas told SmartCompany it was a “heartening” ruling that took into account the “reality of the workplace”.

    “It shows that there will be continued conflict, people not getting on together or occasional rudeness, but those things don’t amount to bullying,” says Douglas.

    Douglas say that while the childcare centre was told to “pull their socks up” by the commission and told they could have done a better job in managing the conflict, the finding shows the commission won’t be “drawn into petty conflict”.

    “It shows workplaces are quite robust places,” he says.

    “Despite the hyperbole on bullying in the mainstream media, it shows most employers are really decent people trying to do the right thing, even if they lack some of the basic skills to do so,” says Douglas.


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    Business woman 'Champagne' Jayne Powell  and actor George Clooney

    Australian business woman Jayne Powell is battling the Comite' Interprofessionnel du Vin de Champagne (CICV) in the Federal Court today over her use of the name ‘Champagne Jayne’.

    Powell has gone from being awarded the prestigious ‘Champagne Dame’ status  (Dame Chevalier de L'Ordre des Coteaux de Champagne) by the champagne industry to being sued by CICV, the French body which represents the interests of wine growers and producers in France’s Champagne region.

    Powell has been running master classes, tasting, tours, and speaking about champagne for several years now. 

    She has a website, blog and social media presence using the name Champagne Jayne and has established herself as an expert on the subject.

    Powell successfully registered the trademark “Champagne Jayne” in July 2012 but the CIVC opposed the trademark in November that year.

    The CIVC claims Powell has unlawfully made a living off the name, deceived clients and tarnished the brand by referring to sparkling wines which are not champagne alongside the genuine article.

    It wants the Federal Court to force Powell to cancel the business name Champagne Jayne, withdraw her trademark for the name and dump her website, Facebook and Twitter accounts all bearing the brand.

    Powell says her business turns over less than $100,000 a year and says while she does also reference sparkling wines this is for the purpose of comparison. 

    “All I can say is that although litigation is a challenging exercise both financially and emotionally for an individual such as myself, I am defending the claim and have every confidence that the decision that the court will ultimately make will be the right one," she said in a statement to SmartCompany.

    Other businesses likely to be impacted by the outcome of the case include the Victoria's Secret lingerie chain, which has registered the mark ‘Strawberries & Champagne’ in Australia in relation to its line of body care products, and many smaller businesses including Diamonds in Champagne and Champagne Life on a Beer Budget. 

    Richard Hoad, partner at law firm Clayton Utz, told SmartCompany businesses need to be careful when selecting a name as battling litigation after the fact is costly.

    “It is definitely worthwhile conducting searches of the trademarks register to make sure you are not treading on other people’s toes,” he says.

    “Some people are more vigilant about protecting their rights than others and the French wine regions are particularly vigilant.”

    The CIVC failed to respond to SmartCompany’s request for comment prior to publication.

    The four day Federal Court hearing is before Justice Beach in Melbourne.


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    Millionaire Ultra Tune boss Sean Buckley says he will appeal an order to pay $4200 to a veterinary clinic for the treatment of his two pet dogs.

    According to News Corp, Buckley, who is also known for his love of racing horses, was ordered last week by the Victorian Civil and Administrative Tribunal to pay the Malvern Veterinary Hospital thousands of dollars for the removal of a tumour from 13-year-old pooch Tora and fortnightly grooming sessions for Tora and fellow canine Jack.

    According to evidence provided to the tribunal by vet Dr Andrea Tims, the hospital received regular payments from the Ultra Tune accounts department on a longstanding account for Buckley until mid-September, when the hospital was told the account would no longer be paid as Buckley had separated from his partner, who he said is now the owner of the pets.

    But a “dog concierge” who used to pick up the dogs for their treatments told Tims that Buckley’s former partner also does not believe she is responsible for paying the vet bills.

    News Corp reports the tribunal documents it has seen indicate Buckley gave consent for Tora’s surgery.

    “Despite the fact that the services were provided before he notified us of his marital breakup and subsequent change of ownership of the dogs, and despite the fact he gave us signed consent to perform surgery, Mr Buckley has simply decided not to pay,” the documents state.

    But Buckley’s lawyer, Therese Borger of Belleli King & Associates, told SmartCompany this morning Belleli King & Associates will be seeking a re-hearing as the order “was made in our client’s absence”.

    While Borger says Buckley has settled the bill, he did so “under protest pending the outcome of the re-hearing”. She says he will argue at a re-hearing that he had not engaged the vet and was therefore not responsible for the bills.

    SmartCompany contacted Buckley and the Malvern Veterinary Hospital but did not receive a response prior to publication.

    It’s not the first time Buckley has been on the losing side of a legal ruling, after the Victorian Supreme Court last year handed Buckley a $1.5 million bill over his investment in failed forestry scheme Willmott Forests.

    At the same time, Fairfax reported the ATO was pursuing Buckley over $11.5 million in allegedly unpaid income tax.

    Disputes over a $350,000 aquarium built at Buckley’s former Toorak home were also aired this year, after a $40,000 civil action filed by a contractor against Buckley in the Magistrates Court was settled for an undisclosed sum.

    Buckley founded the Ultra Tune car service franchise in 1979 and the company currently has more than 270 stores in its network.

    But Ultra Tune has also been the recipient of some unwanted attention this year, with a petition against the sexualised nature of its advertising attracting support from Ultra Tune franchises.


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    ASIC first used its wind-up powers in August 2013.

    The corporate regulator has used its powers to wind up 32 collapsed companies this year in a bid to help 99 employees recoup more than $1.4 million in entitlements.

    While company directors will often call in administrators or liquidators of their own accord, the Australian Securities and Investments Commission has the power to appoint liquidators in circumstances where a company’s directors are unable to discharge their duties or have abandoned their insolvent companies without putting them into liquidation.

    Once companies are formally in liquidation, employees can access the federal government’s safety net Fair Entitlements Guarantee Scheme (FEG). Liquidators can also investigate why the company failed and potentially recover any voidable or unreasonable director-related transactions.

    ASIC first used its wind-up powers in August 2013. ASIC Commissioner John Price said at the time the power is one regulator will take “great care in exercising”.

    “In deciding to place these companies into the hands of liquidators, we know that the affected employees will not be able to access the entitlements owed to them,” Price said.

    “We will continue to work with the appointed liquidators to see if other follow-up investigations are needed and if further action is warranted.”

    Last week, ASIC appointed liquidators to nine companies that owe 30 employees more than $310,000 in entitlements. The collapsed companies included: ITAP Australia, CNP Properties, IGAS Services, Global Geotech Australia, Malglor, DMG Tech, LTP Group and Celltek Electronics. 

    Damin Murdock, director of Murdock Cheng Legal Practice, told SmartCompany as the body charged with administering the Corporations Act, ASIC will appoint liquidators to a company if the company’s directors have not responded to contact from ASIC in six months; the company has not lodged any other document under the Corporations Act in 18 months; ASIC has reason to believe the company is no longer carrying on business; and making an order would be in the public interest.

    Murdock says companies must satisfy each of the criteria, but the crucial factor is if it is in the public’s interest for the regulator to act.

    “If a particular company owes money to a creditor, it is not likely that is in the public interest,” Murdock says. Instead, ASIC is more likely to act when there are employees owed their entitlements.

    However, there are other situations in which ASIC will choose to wind up a company, including if the company has not paid its review fee to ASIC at least 12 months after it is due. According to Murdock, this can be a cheaper way for directors to wind down a company that no longer has business, compared to appointed administrators or liquidators.

    “The problem with hiring administrators or liquidators is that it is very, very expensive,” Murdock says.

    “Administrators and liquidators charge between $400-650 an hour. If there are creditors, the general fee ranges from between $4000 and $40,000 to complete the investigations needed of the company’s financial conditions. On top of that, directors must file an application to the Supreme Court or Federal Court for a winding up order and the application fee to the courts ranges between $1800 and $3000.”

    But Murdock says if a company does not have debts, the winding up process is much simpler.

    “If you don’t have any creditors, you can close down a business very easily,” he says. “You have your accountant file your final tax returns and all relevant forms. It’s an easy process if there are no debts.”


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    "Ethical" and "free-range" are two marketing buzzwords the ACCC scrutinises closely.

    As consumers increasingly seek out local food producers who utilise high quality, ethical and sustainable production methods, the Australian Competition and Consumer Commission has responded by increasing its focus on companies in the food production and manufacturing industry.

    Several cases in 2014 found that companies had misrepresented the origins of their products, the types of products used and the methods of farming. 

    Further demonstrating its focus, in February the ACCC launched its 2014 Compliance and Enforcement Policy

    As part of that policy, the ACCC announced that one of its areas of priority would be “credence claims, particularly those with the potential to adversely impact the competitive process and small businesses.”

    This article looks at some of the highest profile cases from 2014 and sets out some lessons that can be learnt from the year that was.

    Origin of products

    There are three recent cases involving ACCC action for misleading conduct in relation to the origin of products.

    In August 2014, Maggie Beer Products gave a court enforceable undertaking acknowledging that certain place of origin representations on the labelling of “Maggie Beer” products was likely to mislead consumers. The labelling on certain items in the Maggie Beer Products range contained the words: “A Barossa Food Tradition” in close proximity to “Made in Australia” and “Maggie Beer Products: ... Tanunda, South Australia”. The ACCC considered that the effect of these statements was to convey the impression that the products were manufactured in the Barossa Valley and/or South Australia when in fact the products were manufactured elsewhere in Australia.

    In June 2014, Basfoods received hefty penalties totalling $30,600 and gave a court enforceable undertaking, after receiving infringement notices from the ACCC in respect of its “Victoria Honey” product. The ACCC considered that labelling the product “Victoria Honey” misrepresented the product as being produced in Victoria, when in fact it was made in Turkey. Product labelling and representations on the website also implied that “Victoria Honey” was made by honey bees when in fact it was mainly comprised of plant sugars. 

    Finally, in December 2014, Hume Import & Export (trading as Bera Foods) also received a penalty of $10,200 for including the word “honey” and a map of Australia on its “Hi Honey” product. The ACCC considered that this represented the product was honey made in Australia when in fact the product was largely made up of plant sugars and made in Turkey. 

    Lessons learned:

    1. There is danger in representing that products are made in one part of Australia when in fact they are made elsewhere. This is particularly risky if, in making the representation, the producer is seeking to benefit from the reputation of a certain region or by implying that the products are produced locally.
    2. Even if the ingredients and/or the country or place of origin of a product is included in fine print, product names, marketing information and slogans can still amount to misleading and deceptive conduct if the representations send a message which is contrary to the true origin of the product.
    3. The ACCC is cracking down on identifying a synthetic product by a name that implies it is a natural product. Honey is a current focus but other products may also be targeted.

    Premium animal products and “free-range” claims

    In June 2014, Barossa Farm Produce gave a court enforceable undertaking in respect of misleading and deceptive representations made about its “The Black-Pig” smallgoods range.  The representations were that The Black Pig smallgoods range was made from heritage Berkshire pigs or other heritage black pig breeds (which are premium products) and/or free range pigs, when this was not the case. Barossa Farm Produce acknowledged that it did not have adequate systems in place to verify the breed or type of pig used in The Black Pig smallgoods.

    In September 2014, the Federal Court of Australia ordered Pirovic Enterprises, an Australian egg producer, to pay $300,000 after the court found Pirovic had engaged in misleading and deceptive conduct by marketing its eggs as “free range”. The court made this finding despite Pirovic’s labelling practices having been compliance tested by the Australian Egg Corporation and the free range egg farms in question having a “Level A” accreditation for free range egg production under the Egg Corporation Assured National Egg Quality Assurance Program Trade Mark Certification Scheme. The court found that the eggs were not farmed in such a way that the hens could and did in fact move about freely on an open range on most days.

    Lessons learned:

    1. Animal welfare is a hot topic in food marketing. Consumers are generally willing to pay more for ethically raised meat, therefore any representations that animals are raised ethically are likely to be closely scrutinised by the ACCC.
    2. Industry body certifications and standards may not be sufficient to render a product “free range” or “ethical” and the court will look behind these to the actual living conditions of the animals.
    3. Producers should be aware that any representations regarding the breed or type of animal should be backed up by systems to ensure that other types of animal are not used in making the product. 

    Tanya Jackson is a senior associate and Alexandra Ottens is a lawyer at law firm Holding Redlich.


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    Supermarket giant Coles has agreed to pay a $10 million penalty to resolve its ongoing court battles with the Australian Competition and Consumer Commission, admitting it pressured small suppliers to pay ongoing rebates.

    After “categorically” denying the allegations in July, Coles released a statement yesterday admitting to two separate cases of unconscionable conduct towards its suppliers in late 2010 and 2011.

    “Coles unconditionally apologises and accepts full responsibility for its actions in these supplier dealings,” Coles managing director John Durkan said.

    “I believe that in these dealings with suppliers, Coles crossed the line and regrettably treated these suppliers in a manner inconsistent with acceptable business practice. We will await the Judge's decision in these matters.”

    The supermarket reached an agreement with the ACCC to pay a proposed penalty of $10 million, although the amount is still to be reviewed and cleared by the Federal Court in Melbourne. An admission of guilt was also part of the orders sought by the ACCC.

    In July, Coles lodged a 34-page court defence of its Active Retail Collaboration (ARC) program, which asked around 200 suppliers for additional and ongoing rebates. The ACCC alleged that Coles' target was to obtain $16 million from suppliers from this rebate. Coles had maintained participation to the program was at all times voluntary.

    It yesterday admitted that “at times” during the negotiations of the ARC program, it “fell considerably short” of its best practice business standards and “the reasonable expectations of suppliers”.

    “Coles has identified with the ACCC, dealings with a number of suppliers where its conduct was unacceptable and has made a number of admissions,” said the supermarket.

    “In these particular dealings, Coles was not respectful of supplier needs for full and timely transparency, and of the responsibility attached to Coles’ bargaining power.”

    Coles said it has addressed this imbalance with its August appointment of former Victorian premier and active Coles critic Jeff Kennett as an independent arbiter of its supplier dealings.

    The supermarket, with the help of Kennett, will assess whether compensation for the suppliers is appropriate.

    The grocery giant also admitted to unconscionable conduct in regards to its communications and negotiations with five suppliers over late delivery, waste and profit gaps.

    Peter Strong, executive director of the Council of Small Business of Australia, told SmartCompany the settlement was good news for small suppliers.

    “This is what we’ve known for a long time. There has been at least a decade of this behaviour by Coles, but also others,” says Strong.

    Strong says he hopes the penalty will lead to a change in the standard of conduct towards small suppliers.

    “Sure, they’ll pay the fine, but will they change? Admitting is good, but they need to do something about it, something real,” Strong says.

    “They are a big organisation, so they need to bring in a system that sends the message out to all their people.”

    Strong says COSBOA will endeavour to meet with Richard Goyder, head of Coles’ parent company Wesfarmers, to offer its assistance to set up such systems.


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    Two Melbourne Rich Listers are set to battle it out in court after former ad man Harold Mitchell issued legal proceedings against tyre and automotive entrepreneur Bob Jane.

    Mitchell and Jane have been friends for almost 40 years but Mitchell has filed civil proceedings in the County Court against Jane.

    News Corp reports Mitchell claims he loaned Jane $300,000 last year but despite demands it still hasn’t been repaid.

    Mitchell alleges the loan was to assist with Jane’s “personal and business needs”.

    At the time of the loan, Jane was embroiled in a lengthy legal battle with his son Rodney Jane.

    In 2012 Jane won a court ruling which allowed him to trade under his own name despite protests from the Bob Jane Corporation, which is now run by Rodney.

    Last year the father and son were back in court with Jane seeking to recover $2.9 million, which he claims was loaned to Rodney – Rodney claims a large portion of that was a gift.

    Jane’s legal disputes have become increasingly acrimonious with his son labelling him a “calculating” liar last year.

    He once had a vast fortune but has fallen on hard times in comparison to Mitchell, whose wealth has been estimated at up to $370 million after he retired last year from ad company Aegis.

    He now spends his time on philanthropy through the Harold Mitchell Foundation.

    The legal action against Jane comes despite years of friendship.

    Mitchell’s autobiography, Living Large, lists Jane amongst one of his first clients in the 1970s. 

    Mitchell says he has begun proceedings reluctantly.

    “It’s very sad and I’m sorry to do it,” he told News Corp. “Bob Jane has been a hero of us all. I was happy to help him out in a tough time for him. I hope we’d always be friends. He’s been a great Australian.”

    Mitchell declined to comment to SmartCompany.

    SmartCompany contacted Jane through his lawyers but did not receive a response prior to publication.


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    Endorsed by celebrities from Lara Bingle to Madonna, coconut water is in the spotlight after Australian business H2Coco acknowledged making potentially misleading claims.

    Coconut water is the clear liquid inside the immature green coconut and it’s big business thanks to its claimed health-giving properties.

    But coconut water business H2Coco and its director and chief executive David Freeman have agreed to an enforceable undertaking after an investigation by Consumer Affairs Victoria.

    Consumer Affairs asked the company to substantiate claims made about H2Coco water in advertising and promotional materials.

    The claims included that the water “contains a complex blend of vitamins, minerals, amino acids, antioxidants, enzymes, health enhancing growth hormones and other phytonutrients”.

    Consumer Affairs found this representation was false or misleading.

    Freeman also acknowledged H2Coco may have unintentionally contravened the Australian Consumer Law by misrepresenting that H2Coco coconut water had a particular composition, when he was unable to substantiate this claim.

    H2Coco agreed to ensure all claims and representations about its products are correct, factual and able to be substantiated upon demand, before publication. The coconut water business will also implement and maintain a compliance, education and training program to ensure it meets all legal requirements and ensure all sales staff are adequately trained.

    Freeman also agreed to pay $2000 to the Australian Consumer Law Fund. 

    David Freeman said in a statement to SmartCompany that H2Coco has always produced 100% natural coconut water and the business stands by the quality of its product.

    "I happily agreed to sign an enforceable undertaking, which ensures that I stand by all the claims H2Coco currently makes about our products and I’m happy to be accountable to that."

    Freeman said there are some who like to target Coconut Water and H2Coco specifically due to company profile and the profile of some of its shareholders.

    "We will tackle these groups and individuals head-on and remain professional, open, honest and transparent to all," he said.

    Melissa Monks, special counsel at law firm King & Wood Mallesons, told SmartCompany while consumer law enforcement action by state and territory regulators doesn't hit the headlines as often as that by the Australian Competition and Consumer Commission, these regulators are still very active and have the same powers to investigate and enforce potential breaches of the Australian Consumer Law. 

    “In this case Consumer Affairs has relied on a key weapon consumer regulators have at their disposal – substantiation notices which require a business to, within 21 days, provide evidence or information to support any marketing claims,” she says.

    “H2Coco has acknowledged an unintentional contravention of the false and misleading conduct provisions, although this is irrelevant as an individual or company can still be found to breach the law whether the conduct was intended or not.” 

    Monks says the state and territory regulators seem more willing to resolve breaches of consumer law in non-litigious, unique ways, as demonstrated here with H2Coco’s payment of $2000 to the Consumer Law Fund.

    Monks says this is “relatively small” when compared to penalties of $1.1 million per breach for breaches of the false and misleading conduct provisions.


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    Employee now free to pump iron on the balcony

    The Fair Work Commission has revoked its only substantial bullying order of the year after the employee involved declared the conflict between her and her male colleague was now “negligible”.

    In September the commission ordered an unnamed male employee to stop exercising on a balcony in front of his female colleague, following a bullying claim by the female worker.

    Senior deputy president Drake ordered the man to refrain from exercising on the balcony of the workplace between 8.15am and 4.15pm and not to speak to his colleague in situations where no one else is in listening range.

    Drake also ordered the man not to comment on his colleague’s attire or appearance; not to send emails to his colleague unless the content is work-related and another colleague is copied in; not to text or call his colleague on her personal phone unless there is an immediate work-related emergency; not to raise any issues relating to his colleague’s job performance unless he has notified others in the company first; and that the female employee not arrive for work before 8.15am.

    Drake revoked all the orders on Tuesday after receiving an application from the female employee.

    “Since our last meeting there has been a negligible amount of conflict between [the male employee] and myself, and I have felt comfortable approaching my supervisor… with any concerns that I have,” said the employee.

    “The past year of intervention from Fair Work has been very positive and helpful and I am very grateful for the support that has been given to me by senior deputy president Drake,” she said.

    “I think that the New Year is an appropriate time to lift the orders and that it is in the best interest of everyone involved to do so.”

    Andrew Douglas, partner at M+K Lawyers, told SmartCompany the original orders showed the depth of the power the commission has to “get into an organisation and regulate its work”.

    “It showed they could interfere utterly in management prerogatives,” says Douglas.

    “Orders like, ‘John must not work within five metres of Jane’, could be made.”

    Douglas says the case was a lesson to employers that they should resolve issues before they end up before the commission.”

    “If you don’t resolve the issues, you end up with these orders that are impractical,” he says.

    Douglas says the revoking of the orders was a “successful outcome” for the unnamed business at the centre of the case. He also says it shows good workplace communication can resolve issues and lead to the removal of orders, reminding employers any breach of orders can lead to significant penalties.

    “Once you do get an order, don’t stop working. This [case] provides a window into what you can do. Building good business requires good communication and good businesses can continue to work on through difficult problems,” he says.


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