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

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    Jobseeker Steven Willmott said he was “embarrassed and humiliated” and "sickened beyond belief".

    A Queensland job seeker has been awarded $5000 in damages after supermarket giant Woolworths asked him to state his age and gender on a job application, breaching anti-discrimination laws.

    The ruling comes as some companies make a move to remove the gender question from applications.

    Steven Willmott said he was “embarrassed and humiliated” and "sickened beyond belief" by Woolworths’ disregard for the anti-discrimination laws, after applying for a petrol station job position in 2013, according to the decision.

    The Queensland Civil and Administrative Tribunal heard the supermarket had advertised for a console operator’s position at its petrol outlet in Beerwah, Queensland, in December 2013.

    Willmott, who was unemployed at the time and lives in Beerwah, saw the advertisement on Woolworths’ website and decided to apply for the position via Woolworths’ online application system.

    In completing the online application, Willmott was required to provide answers to certain mandatory fields, which included his gender and date of birth, and was also required to provide documentary proof of his right to work in Australia.

    In its defence, Woolworths said the information was reasonably required so it could “discharge its obligations as a potential employer and also to comply with Commonwealth legislation”. It also told the court the form has since been changed and such questions are no longer asked.

    But QCAT senior member Oliver found questions compelling applicants to provide their date of birth and gender was a contravention of the Anti-Discrimination Act, as was requiring candidates to upload proof of work documents.

    “Taking into account the embarrassment, humiliation and some notional amount for the loss of a chance, I assess Mr Willmott’s total compensation at $5000,” said Oliver in the judgment.

    Oliver took into account the fact Woolworths had already taken steps to change the online application form.

    Anthony Massaro, principal at Russell Kennedy Lawyers, told SmartCompany the lesson to learn from this case is that employers need to be very careful about the questions they ask at the application stage. 

    “For example, while it is necessary to know an employee's date of birth for the calculation of wages and other entitlements, it may not be strictly necessary to have that information at the application stage, or even at interview,” says Massaro.

    “When recruiting, employers need to focus on the specific requirements of the job, and ensure that the questions they ask of candidates centre around the ability of the candidates to meet those requirements.”

    SmartCompany contacted Woolworths for comment but did not receive a response prior to publication.

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    Appliance giant Fisher & Paykel has been hit with a $200,000 fine by the consumer watchdog over misleading customers into believing they needed to buy extended warranties for its products when they did not.

    The Federal Court of Australia found the New Zealand-based company had engaged in misleading or deceptive conduct and made false or misleading representations to consumers concerning the need to purchase extended warranties, when products may have been already covered by remaining statutory warranties.

    The Australian Competition and Consumer Commission began legal action against Fisher & Paykel and Domestic & General, the warranty provider that issued the extended warranty on behalf of the company, in 2013.

    Each company was fined $200,000 by Federal Court Justice Michael Wigney for breaches of Australian Consumer Law on December 19, 2014.

    The ACCC alleged Domestic & General sent around 48,214 letters to Fisher & Paykel customers who had purchased an appliance in 2011 and 2012, containing an offer to purchase an extended warranty for the product.

    “Your Dishwasher is now a year old, which means you have 12 months remaining – after that your appliance won’t be protected against repair costs. Fisher & Paykel can help,” read the letter.

    The letter offered customers a chance to purchase a new two-year warranty, on top of their original warranty.

    Justice Wigney found the letter had breached the Australian Securities and Investments Commission Act, by making a misleading statement in a "prominent" position in the main text of the letter on the front page.

    Wigney found references to remaining statutory warranties, which would potentially cover any broken appliances, were only included “in relatively fine print on the reverse side of the letter”.

    Consumer lawyer Jon Gregerson, consultant at Finlaysons, told SmartCompany Fisher & Paykel had breached sections of the Australian Securities and Investments Commission Act, because they made the offer a year after the supply of goods.

    But Gregerson says if the appliance company had made the offer at the time of the supply of goods, it would have also been potentially in breach of the Australian Consumer Law Act.

    “The only thing they really did wrong was to say that after two years the goods would not be covered,” says Gregerson.

    “You can’t really say you need to buy an extended warranty after a certain time because there is no other cover, because a statutory warranty may not have a time limit. It is up to a court to decide once someone makes a claim for a faulty appliance.”

    Gregerson says a statutory warranty could cover an appliance used for residential purposes potentially up to five years. He says the court found Fisher & Paykel did not make any relevant statutory warranties clear to consumers.

    “The court said because of the presentation and bluntness of, ‘you won’t be covered anymore’, the overall impression was misleading and deceptive,” he says.

    Fisher & Paykel said in a statement it takes such matters seriously and it regrets any inconvenience this may have caused its customers. It said it immediately ceased the offer after being contacted by the ACCC.

    “Over the past six months we have written to all affected customers in Australia and offered a full refund where they wish to cancel the extended warranty,” said Fisher & Paykel.

    Fisher & Paykel was contacted for further comment but SmartCompany did not receive a response prior to publication.

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    The multi-national eight-month investigation by WA's major fraud squad, Australian Federal Police and authorities in South Africa and Nigeria has resulted in a year's jail for the convicted mastermind.

    Ntuen Promise Ekenmini tried to sell a $780,000 home in the Perth suburb of Falcon using forged documents.

    The Nigerian court heard the attempted fraud began when after a property manager of a Mandurah real estate agent was contacted in December 2012 by a man claiming to be the owner of a home managed by the agency.

    He requested property documents, which were sent through by the property managers and contact details changed.

    He used a Yahoo email address in the name of one of the real owners, who was a Johannesburg resident, and requested that all future correspondence be forwarded to this new email address and all phone contact to be made through a new mobile phone number.

    The agency then received a request to sell the property and a sales agreement with false signatures was sent, along with copies of fake passports of the two owners and forged documents purporting to be from the Australian High Commission in Pretoria confirming their identity.

    The agency staff became suspicious, WA's fraud squad was contacted and they pretended to go ahead with the sale to try to identify the fraudsters.

    "It had generally been thought that people attempting to perpetrate frauds from Nigeria were beyond the reach of the law," Consumer Protection assistant commissioner Gary Newcombe said.

    "This prosecution shows that, while difficult, prosecution is not impossible.

    "The imprisonment of Mr Ekenmini should send a strong message to other potential fraudsters in Nigeria that they are not beyond the law."

    Detective Senior Sergeant Dom Blackshaw of the Major Fraud Squad (WA Police) noted in 2013 the arrest represented a major breakthrough in the investigation of real estate fraud in Western Australia where there were two successful and five attempted frauds reported over the past five years.

    “Six of the seven cases involved owners who live in South Africa, have investment properties in Perth which are rented and have had their identities stolen. There is now clear evidence of a link between criminals in South Africa and Nigeria," detective Senior Sergeant Dom Blackshaw said.

    The first successful property fraud in Western Australia was reported in September 2010 when home owner Roger Mildenhall, based in South Africa, discovered his investment home in Karrinyup, Perth had been sold for A$485,000 in August 2010 without his knowledge or consent by the agent who was managing the property on his behalf.

    In April 2011, a home in Ballajura, another suburb of Perth, owned by a couple who were living in Nigeria at the time, was sold for $410,000 allegedly by Nigerian fraudsters without the knowledge or permission of the real owners. The fraudulent sale was not reported until August 2011 when the owners returned to Perth wanting to inspect the property.

    In both these cases the funds were transferred to bank accounts in China.

    In November 2011, the Codes of Conduct for WA real estate agents and sales representatives and settlement agents (conveyancers) were strengthened to incorporate strict identity verification guidelines for all transactions, particularly involving overseas owners.

    The Western Australian government’s land titles office, Landgate, has also put in place strict fraud prevention measures.

    This story originally appeared on Property Observer.

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    Two Melbourne men, Najam Shah, 55 of Glen Waverley, Victoria and Aizaz Hassan, 34, of Truganina, Victoria have been arrested and charged following an ASIC investigation into the alleged use of false documents in support of loan applications valued at about $110 million.

    Shah and Hassan have been charged with one count each of common law conspiracy to defraud, according to an ASIC release.

    The charges relate to the men’s roles at a Footscray company, Myra Home Loan Pty Ltd trading as Myra Financial Services (no longer trading).

    It is alleged that between April 2008 and December 2011, Shah and Hassan conspired to defraud 12 lenders, banks and other financial institutions, by creating and using false documents to support loan applications submitted on behalf of Myra clients.

    The false documents included bank statements, payslips, citizenship certificates and statutory declarations. These were predominantly used in support of applications for home loans for house and land packages as well as for the purchase or refinance of existing homes. 

    At least 350 loans valued at $110 million were submitted and approved on behalf of Myra clients.

    The alleged conspiracy involves submission of false documents for more than 300 loan applications to numerous banks and financial institutions, including the Commonwealth Bank of Australia, Westpac Banking Corporation, St George Bank, Bankwest, Adelaide Bank, ANZ, Bank of Queensland, Choice Home Loans, Citibank, National Australia Bank, Pepper Homeloans and Suncorp Bank.

    Property Observer gleans the company was established in 2006 out of Whitehall Street premises.

    The offence carries a maximum penalty of 15 years imprisonment.

    Shah appeared at the Melbourne Magistrates’ Court and Hassan before a bail justice on 2 January 2015.

    Shah and Hassan were bailed on conditions including that they report to police twice a week, surrender valid passports or any other valid travel documents and not apply for any other, not attend any points of international departure and not leave Australia.

    Both men are to reappear at the Melbourne Magistrates’ Court on 17 April 2015.

    Manija Zayee, Shah’s partner and former Myra director, has also been charged on summons in connection with this matter with one charge of obtaining a financial advantage by deception. Zayee is to appear at the Melbourne Magistrates’ Court on 27 January 2015.

    It is alleged that Zayee submitted false documents in support of a loan application for a home loan, in her own name, in September 2009.

    The matters are being prosecuted by the Commonwealth Director of Public Prosecutions.

    This article originally appeared on Property Observer.

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    Two supermarket trolley collecting firms and individuals involved in the companies have been fined close to $200,000 for failing to pay 12 workers who collected trolleys at a Costco shopping centre in Sydney.

    Federal Circuit Court judge Michel Lloyd-Jones handed down the hefty penalties in late December, after the Fair Work Ombudsman began investigating the case in early 2013.

    Nick Iksidis, operator of Xidis Pty Ltd, which traded as Effective Supermarket Services, was fined $39,600 for his role in the underpayments, while trolley collecting and cleaning company Jay Group Services, which was contracted by Effective Supermarket Services to undertake the work, was fined $109,725.

    Jay Group general manger Jatinder Singh was fined $23,760 and Jay Group employee Teijinder Singh Sandhu was fined $17,160.

    The court previously heard the 12 trolley collectors, aged between 19 and 32, were not paid for 11 days of work at the Costco shopping centre at Lidcombe in Sydney in 2011. All of the employees, who were on 417 working holiday visas, should have been paid more than $27,000.

    Effective Supermarket Services had been paid a contract fee of $34,633 from Costco to provide the trolley collection services but sub-contracted Jay Group Services to collect the trolleys for a fee of $14,800.

    This is the third time the Fair Work Ombudsman has pursued Iksidis and Effective Supermarket Services for underpayments.

    In 2007, he was fined $25,000 for underpaying three trolley collectors and in 2008, he was handed a $125,000 fine after he “bullied, intimidated, threatened, exploited and underpaid” a further 42 trolley collectors.

    Judge Lloyd-Jones said in his judgment Iksidis’ history of non-compliance warranted a substantial penalty.

    “The person who should have been the best informed and appropriately the most cautious in respect of the appropriate remuneration was Mr Iksidis,” Lloyd-Jones said.

    Overall, Lloyd-Jones said the trolley collectors were “vulnerable to exploitation” and there had been “a total failure to meet minimum standards of the most fundamental kind being a complete non-payment of wages and entitlements.”

    “Further, there is a need for deterrence in the trolley collecting industry, which is generally a low-skilled industry that often uses sub-contracting arrangements to avoid obligations under workplace law,” he said.

    TressCox employment, industrial relations and workplace safety solicitor Edmund Burke told SmartCompany the penalties imposed by the court are “quite high” and said Costco was fortunate to have avoided any fines.

    Burke said following the admission by supermarket giant Coles in October 2014 that it has an “ethical and moral responsibility” to the workers that collect its trolleys, it appears the Fair Work Ombudsman is working its way through all shopping centres across Australia to ensure workers are being paid fairly.

    “It puts everyone else on notice,” Burke says of the case. “It wouldn’t be a bad idea for all the big supermarket companies to look at their contracts.”

    Burke says the ombudsman has a strong track record in prosecuting cases where vulnerable employees have been mistreated and has identified supermarket trolley collecting as a key area of concern.

    “The general principle is, if it looks too good to be true, it probably is,” Burke says of contracts for this kind of work.

    “In this case it was quite clear the contractors were sub-contracting and the maths didn’t add up.”

    SmartCompany attempted to contact Costco, Effective Supermarket Services and Jay Group Services but did not receive a response prior to publication.

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    Slater and Gordon, the previously recommended legal firm for investors in a matter concerning two outer west Melbourne land banking arrangements, has written to hundreds of investors with warnings about the property schemes.

    According to a Fairfax report, the law firm expressed concern last February around the secrecy of the developers behind the projects and included, no doubt disturbing, warnings that the investors may have not only overpaid, but been misled.

    It seems that the land banking sites in question are linked to the family of notorious property spruiker Henry Kaye. There have been denials made to Fairfax that he was a beneficiary or unit holder.

    Referring investors to Slater and Gordon was the company Market First Property Consulting, who used the law firm in their seminars across Melbourne, Sydney and Perth promoting ‘wholesale options’.

    The managing partner of Market First is Henry Kaye’s sister Julian Feldman.

    The free seminars include field trips out to their sites in an “on the road” style tour. Their website boasts that investors are able to buy at 10% to 20% less than the retail pricing seen in “premium residential projects”. It says that purchasers can secure the house and land packages and delay settlement for up to two years.

    The office for Market First Property Consulting is based in Woolloomooloo, Sydney. The URL records for their website indicate that it is currently registered with Greg Klopper of Global1, who is in the same Woolloomooloo office building. Global1 runs wealth building and motivational seminars across the country.

    Fairfax also claims that they know of similar land banking schemes from 21st Century group in Wallan, Bendigo, Shepparton and Townsville.

    Law firm Minter Ellison has been hired by Slater and Gordon to represent itself against investors that they previously recommended. They have suggested that investors seek independent legal advice.

    This article originally appeared on Property Observer.

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    A former employee of an events company in regional Victoria has successfully argued he did not quit his job but was fired, after receiving a phone call from his employer in which he claims he was threatened to be replaced.

    Evan Hope has launched an unfair dismissal case before the Fair Work Commission against his employer, Select Events Mildura, after his employment ended in August last year.

    The commission heard the first part of the case this week, finding Hope’s employment was in fact terminated and he did not leave his employment voluntarily.

    Hope, who was hired by the company to install and remove event infrastructure, told the commission he was fired by Select Events during a telephone conversation with the company’s operations manager, Darren Wheeler. He told the commission he had “expressed dissatisfaction” with having to work for close to two weeks without a day off.

    In response, Wheeler allegedly told Hope: “I’m just sick of you b-tching about this sh-t, I’ll just get someone else to do your job then!”

    “If you don’t like it just go because I’m going to get someone else to do your job and pay them half the amount I’m paying you and they won’t be winging all the time like you either, where else is going to pay you $75,000 a year just to put up tents?” Wheeler allegedly said.

    While the commission heard there were different accounts of the particular conversation, Commissioner Lewin found Hope’s account was a “fuller, better, more detailed recollection” than that of his manager.

    “I judge that Mr Wheeler expressed an intention to no longer employ Mr Hope but rather to find someone who would replace him, at a lower cost,” said Lewin.

    Lewin’s finding means that Hope’s application for unfair dismissal can proceed.

    Enrico Burgio, associate employment and industrial lawyer at Maurice Blackburn, says this appears to be a clear-cut case of an employer taking a course of action that results in the employment relationship ending.

    “Though they have tried to characterise it as a resignation, they have expressed their intention to dismiss and replace the employee in a telephone conversation,” says Burgio, pointing out the court also heard evidence of previous discussions to terminate Hope.

    “What else is an employee to assume, other than that employment is terminated?” says Burgio.

    Burgio says while each case before the Fair Work Commission will turn on the specific facts, if an employer communicates an intention to replace or dismiss an employee, it can be seen by the commission as a termination.

    “Caution should be exercised in what is said in such conversations,” he says.

    Burgio also says the ongoing unfair dismissal case is a reminder for employers that it is unlawful to dismiss employees because they’ve complained about wages or conditions.

    Select Events was unable to comment when contacted by SmartCompany as the case is ongoing.

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    A Tasmanian takeaway restaurant has been slammed with a whopping $100,000 penalty after engaging in “particularly disturbing behaviour” towards one of its chefs.

    The owners of Dave’s Noodles, Priscilla Li Peng Lam and David Wing Leong Lam, were each fined $15,000 after admitting a Chinese chef at their restaurant was underpaid more than $80,000.

    The business’s parent company, ECFF Pty Ltd, has also been slapped with a $70,000 fine and ordered to rectify the underpayments. So far the chef has only been back-paid $50,000.

    The penalties were handed down by the Federal Circuit Court following an investigation by the Fair Work Ombudsman. The investigation found the chef – who was being sponsored to come to Australia on a 457 working visa – was paid flat weekly wages ranging from $804 to $913 between 2008 and 2011 for 38 hours of work.

    However, the chef, who is aged in his 40s, was required to work 60 hours a week. This resulted in the business underpaying the chef for his minimum hourly rate, as well as penalty rates for overtime, night, weekend and public holiday work.

    In handing down the penalties, Judge Norah Hartnett described the contraventions as “a very substantial underpayment of basic entitlements over an extended period of time”.

    Hartnett also found the situation was “significantly aggravated” because the business operators had created false time and wages records in an bid to show the chef had worked 38 hours a week and given these to Fair Work inspectors.

    In addition, while the chef is now an Australian citizen, at the time he was considered a “vulnerable person” because of his reliance on his employers to remain in the country.

    “The creation of false time and wages records by the respondents was particularly disturbing behaviour, worthy of significant reprimand,” Hartnett said.

    Sarah Lock, principal consultant at Workplace Law Specialists Brisbane, told SmartCompany small and medium-sized business owners need to ensure they are paying their employees the correct rates under the relevant industrial award

    “The Fair Work Act itself is a minefield and a minefield for practitioners for a start,” Lock says.

    “If it’s like that for us, imagine what it’s like for employers and employees out there. Because we have potentially a change of government every three years, this legislation has the potential to change every three years. So if they [small business owners] are not on top of it, ignorance of the law is no excuse.”

    Fair Work Ombudsman Natalie James said in a statement the penalties reflected the court’s concern about businesses underpaying foreign workers – as well as companies attempting to mislead the employment watchdog.

    “The small minority of employers who are inclined to contravene the rights of vulnerable workers should be aware that they can face significant financial consequences for such behaviour,” James said.

    “Successful litigations such as this also help to create a level playing field for the majority of employers who are committed to doing the right thing by their employees.”

    SmartCompany contacted the owners of Dave’s Noodles but did not receive a respond prior to publication.

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    The Australian Securities and Investments Commission (ASIC) says it is determined to continue its crackdown on loan fraud to ensure consumers can have trust and confidence in the lending industry.

    ASIC was responding to media articles today that reported on ASIC’s investigation of an alleged $110 million loan fraud which resulted in conspiracy charges against two men late last week.

    "Those articles, which are critical of ASIC’s work, are inaccurate and speculative," ASIC stated.

    "ASIC is strongly committed to transparency in our enforcement and regulatory work, as demonstrated through the publication of regular enforcement reports.

    "However, there are very good reasons why we can only provide limited details on criminal investigations and matters before the court.

    "It is important for the public to understand the reasons."

    Property Observer notes ASIC's response did not address the issue of the four day gap when it appeared it failed to move against the mortgage broking licence accreditation of one of the alleged fraud participants after the bail appearance.

    The Melbourne man arrested after an alleged $110 million mortgage fraud, Aizaz Hassan, was capable of writing loans until his accreditation was stopped on Tuesday this week, 6 January 2015.

    But Hassan had appeared before a bail justice on 2 January 2015, bailed on conditions including that he report to police twice a week, surrender valid passports or any other valid travel documents and not apply for any other, not attend any points of international departure and not leave Australia.

    The Australian reported several other concerns including ASIC not flagging the investigation with his current employer.

    ASIC advised its investigation into the allegedly fraudulent loans arranged by Myra Financial Services had been conducted by ASIC over several years.

    "It has necessarily been a long, complex and at times extremely sensitive operation.

    "There are some important parts of the investigation which we are not able to divulge.

    "While we understand the frustration that this may cause the media, there are very good reasons why ASIC, and other law enforcement bodies, have significant restrictions on what we can disclose in such matters.

    "In some matters such disclosure could jeopardise the entire case.

    "In others it could put people at risk. During an investigation the premature public release of information could result in evidence being destroyed by an accused.

    "And there are important legal restrictions on the information we can make public.

    "We are expressly required to maintain the confidentiality of information we obtain in connection with the exercise of our functions (s 127 ASIC Act)."

    ASIC advised another issue that all law enforcement agencies face was deciding the scope of the case.

    "Najam Shah and Aizaz Hassan have each been charged with conspiracy to defraud.

    "Decisions regarding the nature and scope of the charge have been made following extensive investigation and forensic analysis.

    "ASIC, like other law enforcement bodies, does not as a rule flag an impending arrest to an employer (or, for that matter, to other related parties).

    "To do so would increase the risk of the person of interest being tipped off, even if this was inadvertent.

    "It would potentially place the employer in a compromised position.

    "For example, the employer may wish to suddenly treat the employee differently – perhaps even sack them.

    "How could this occur without affecting the confidentiality of the investigation?

    "How many people in the employing organisation should be told?

    "The decision to seek orders from a court to restrict a person’s travel movements is not taken lightly, and court orders are not obtained routinely.

    "Importantly, it is not ASIC that decides if an individual is to be prevented from travelling. That decision that can only be made by a judge once an application has been successfully made to a court, which includes giving the affected person the right to respond.

    "In short, ASIC has followed common and carefully developed principles in its investigation and legal actions in the Myra case."

    This story originally appeared on Property Observer.

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    Qantas has been fined $200,000 in the Federal Court for selling unsafe products, after a toy industry veteran discovered the airline was selling magnetic toys deemed unsafe for sale in Australia on board its flights.

    The airline was found to have advertised the $50 magnetic children’s toy “Nanodots” for sale in its In Sky Shopping catalogue for around six weeks in 2013 through its duty free program, which is managed by supplier Alpha Flight Services.

    However, the toys had been prohibited for sale under Australia’s product safety law as they were deemed unsafe for children due to potential health risks associated with swallowing the product, including choking and intestinal blockages.

    Ian Anderson, who has worked in the toy industry for more than 55 years, alerted Qantas to the potential hazards of the product after seeing them advertised while on a flight to Hong Kong,

    But the court heard nothing was done about Anderson’s concerns for six days after he telephoned Qantas with his complaint.

    Federal Court Justice Tony Pagone criticised the delay, finding action to remove the products was only taken after external queries about why Qantas had not taken action.

    “This evidence reveals that at the time Qantas lacked an appropriate system to ensure that it complied with its obligations about product safety and that it would respond appropriately when breaches were drawn to the attention of Qantas staff,” said Justice Pagone.

    Fining Qantas $200,000 and Alpha Flight Services $50,000, Justice Pagone said in determining the appropriate penalties, it was the not accurate to say the airline had a more limited role than Alpha in the contraventions.

    “It may be that Alpha sourced the product and put it on the carts but Qantas had its own obligations with which to comply and it was Qantas staff who sold all of the Nanodots on Qantas flights,” Pagone said.

    “Qantas crew were responsible for selling the products listed in the inflight catalogue and were paid commissions by Qantas for sales of products in the catalogue.”

    Consumer Affairs Victoria, which seized the products and brought the legal action against Qantas and Alpha Flight Services before the Federal Court, accused the airline of “washing its hands of the obligations it had in respect of compliance with the relevant provisions”.

    In a statement provided to SmartCompany today, Qantas said it has worked with Alpha, which is responsible for the management and administration of its in-flight duty free program, to respond to this matter.

    “We have already implemented a Product Safety Compliance Program to ensure a case like this one cannot occur again,” said the spokesperson.

    SmartCompany understands no consumers have been injured as a result of the supply of Nanodots on Qantas’ services.

    Alpha Flight Services was contacted for comment but SmartCompany did not receive a response prior to publication.

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    Liquidators HLB Mann Judd are investigating Victorian textile manufacturer Bruck Textile Technologies, after it was accused of deliberately entering into a questionable business arrangement to avoid paying workers’ entitlements when it was sold to another company for $1 last year.

    SmartCompany understands the Australian Securities and Investments Commission has approved funds for the liquidators to investigate the closing of the company, with a report expected to be delivered to the watchdog by mid-February.

    But Mark Wells, a spokesman for Bruck, says the company’s former directors are “not particularly concerned” by the investigation.

    “They are confident that no adverse findings will be levied against them by any current or future inquiry,” Wells told SmartCompany.

    Federal Employment Minister Eric Abetz referred the Wangaratta manufacturer to ASIC after concerns were raised in July 2014.

    Voluntary administrators were appointed to Bruck Textile Technologies on July 11, 2014.

    However, at the same time, a company named Australian Textile Mills reportedly purchased the company for a token $1, reported Fairfax. Australian Textile Mills was registered only a month earlier by its own principal shareholder, Philip Bart, and chief executive Geoff Parker, according to the reports.

    “The government is very concerned at any suggestion of companies entering into contrived arrangements to avoid paying employees' entitlements, and any wrongdoing should be dealt with by the relevant authorities,” a spokesman for Abetz said at the time.

    Bruck, which was more than 60 years old as a company and in prior years had had a turnover of around $56 million, made around 60 staff redundant when it went into liquidation.

    The company told redundant workers it would not be paying annual leave, long service leave, notice pay or redundancy pay entitlements, despite having received $2.9 million of state government assistance in the previous 18 months, reported Fairfax.

    Speaking to SmartCompany in July, liquidators Barry Taylor from HLB Mann Judd said employees’ entitlements were estimated to be worth around $4 million. Bruck’s creditors were owed around $7-8 million.

    Australian Textile Mills chief executive Geoff Parker previously told SmartCompany all creditors would be paid and Australian Textile Mills would take on liabilities of approximately $20 million.

    The company has not made a statement on the worker’s entitlements, but Michele O’Neil, national secretary of the Textile, Clothing and Footwear Union told the Herald Sun  workers had been left with “nothing”.

     HLB Mann Judd was contacted for comment, but SmartCompany did not receive a response.

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    Former chairman of BHP Billiton and chief executive of the National Australia Bank, Don Argus, is embroiled in a legal battle with the Australian Tax Office over his superannuation.

    The ATO wants to charge tax on almost $1.2 million in income earned by the $15 million self-managed superannuation fund of the elder statesman and his wife, Patricia.

    Argus, who is now chairman of the Bank of America Merrill Lynch Australia Advisory Board, claims the income should be tax free.

    On 16 April 2014 the Argus’s objected to the ATO’s assessment of income tax issued to their SMSF for the year ended 30 June 2010.

    On 29 September 2014 the ATO disallowed the objection and so the Argus’s have now filed an application for the decision to be varied in the Federal Court.

    The Argus’s are seeking an almost $1.2 million reduction on the tax paid by them for the 2010 tax year claiming the assessment of $2.25 million in tax is “excessive” because it wrongly concluded the SMSF did not pay out the minimum amount required.

    Graham Colley, director of technical and professional standards at the SMSF Professionals’ Association, told SmartCompany with a $15 million fund value the minimum amount of pension to be paid should be around $900,000. 

    “[SMSF trustees] need to make sure you pay the minimum amount of your pension for the year,” he says.

    “You can do it simply by making sure you have direct debits into your bank account.”

    Colley advises SMSF trustees also need to make sure the valuation of the investments are made so the calculation of the amount has been correctly done. 

    “Even if you have underpaid a small amount the commissioner will exercise his powers of administration providing you make up the shortfall as soon as it is discovered,” he says.

    “Make sure you know when your pension starts, make sure you know when it stops and one of the standards to qualify as a pension is to make sure you pay the minimum amount.”

    Fairfaxreports the dispute is scheduled for a court hearing in Melbourne on Februrary 2.

    SmartCompany contacted Argus but did not receive a response prior to publication.  The ATO declined to comment. 

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    Retailers who publicly name and shame shoplifters on social media may be exposing themselves to legal risks, including defamation actions, according to one social media law expert.

    But one small business owner who experiences shoplifters helping themselves to goods in their stores each week says the method works.

    Matt Parry, owner of The Surf Shop in Victor Harbour in South Australia, says he catches or sees evidence of shoplifters in his two surfwear stores or fashion shop at least once a week.

    Parry has taken to posting about the offenders on the company’s Facebook page and, according to News Limited, he is not the only South Australian retailer doing so. He told SmartCompany this morning the store’s Facebook posts have been a “huge success”.

    “With the most recent post, within 48 hours we had 20,000 views or hits, it practically went viral,” says Parry. The result was the two individuals in the CCTV footage rang the store from Melbourne, apologised and offered to pay for the goods they had taken.

    In other cases, Parry says friends and family of the individuals in the post have identified them, which he says helps as the business often has “little success with the police” in following up the alleged crimes.

    Parry says The Surf Shop will only post video footage or images when they are certain the individual has stolen something and signs in the store clearly state shoplifters will be caught, publicly humiliated and referred to the police.

    “The main reason we do it is it acts as a deterrent,” he says.

    “People see themselves on Facebook or in the papers and they don’t want their names out there or to be shamed and humiliated.”

    And Parry believes the naming and shaming of shoplifters has flow-on effects for other businesses in the community.

    “We know it does. We’re in a country sort of town with only around 15,000 people.”

    But intellectual property and social media lawyer Jamie White – solicitor director and owner of Pod Legal – says SMEs could be sued for defamation over a social media post that identifies and shames an alleged shoplifter.

    “If a person posts material via social media that identifies a person and the material has the capability of lowering the reputation of that person in the minds of others, then allegations of defamation may follow,” White told SmartCompany.

    “It does not matter if material is published via social media as any material made available online will be a ‘publication’ for the purpose of defamation law.”

    White says there are a range of legal defences under defamation law that may provide some legal protection to business owners, including if the person posting the material can substantiate the material with facts or if they posted it in honest opinion.

    But he says relying on these defences is “risky business”.

    “If a person makes a statement that straddles the divide between permissible and defamatory, then it would be very wise to first ensure that a clear legal defence applies,” he says.

    However, Parry says he is not concerned about the legal risks at this stage.

    “We’re the victim here. We’re only posting about people who have actually stolen something so I don’t think there is an issue,” he says.

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    Changes to employee share option scheme laws, released in draft legislation by the federal government on Wednesday, will help fix the unworkable situation of taxing startup employees on value that they don’t have and may never get.

     The draft legislation provides more detail on the proposed changes, which the government committed to making last October, as part of its Industry Innovation and Competiveness Agenda.

     Senior lawyer at Adroit Lawyers, Reuben Bramanathan, says the draft legislation is great news for Australian startups and their employees.

     “If startups implement a complying ESOP, employees will generally pay tax when they exercise their options, rather than when they first get the options,” Bramanathan says.

     “This won’t give startups free reign to hand out tax-free options – there are still a number of conditions that need to be met.

     “There is more good news for all companies, not just startups, in the way that unlisted options will be valued for tax purposes. Under the proposed changes, options that are issued out-of-the-money will be deemed have a lower value than they do under current law. This will mean that options can be issued with a lower strike price, or for a longer period, without adverse tax consequences for the employee.”

     The law will cover all Australian early-stage startups – companies with less than $50 million turnover, existing for less than 10 years. However, the changes will only apply to Australian companies, and won’t help Australians employed by a foreign company if they get equity in that company.

     Bramanathan says he’s pleased to see practical changes contained within the legislation, like approved valuation methodologies and improved ESOP documents. These will be published by the Australian Tax Office and will remove the need for startups to get a professional valuation, which Bramanathan says can be prohibitive for early stage startups.

     The ATO is now inviting interested parties to comment on the draft legislation. The closing date for written submissions is February 6.

     Australian Private Equity and Venture Capital Association chief executive officer Yasser El-Ansary says it’s vital that the legislation is finalised and gets before Federal Parliament in enough time to ensure it takes effect on July 1 this year.

     “Startups have been waiting for close to five years for these changes, so we need to get on with it,” he says.

     “We will be looking closely at the draft legislation over the next few days to see if the changes deliver on the government’s stated policy objectives.”

    This article originally appeared on StartupSmart.

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    The operator of a furniture retailer based in Melbourne has been banned from managing a corporation for the next two years after breaching Australian Consumer Law.

    Burlesque Interiors director Olivia Eckford has been banned from operating a business until December 2017, after Consumer Affairs Victoria commenced action against her retail business in the Melbourne Magistrates Court.

    The Victorian consumer watchdog had received multiple complaints that the Moorabbin-based furniture and fit-out company was failing to supply custom and pre-made goods to its customers within an agreed or reasonable timeframe.

    Burlesque Interiors has subsequently been restrained from taking deposits for the sale, supply, delivery or installation of furniture or furniture fit-outs prior to the delivery or fit-out until January 1, 2018.

    The court ordered Eckford and Burlesque Interiors to pay costs of $4388.50, as well as place a notice on the company’s website stating it has contravened Australian Consumer Law.

    Andrew Parlour, principal at Russell Kennedy Lawyers, told SmartCompany it is important to understand agreements between customers and businesses do not have to be in writing in order to be enforceable. 

    “You don’t need a contract in writing for a contract to be formed,” Parlour says.

    “But having a written agreement provides evidence that it exists and also provides evidence of its terms. By paying your deposit you would say that would bring a contract into existence. The difficulty is establishing what the terms of that contract were – for example delivery days.”

    Parlour says Australian Consumer Law exists to create a basic set of protections for consumers who acquire goods from local suppliers, importers or manufacturers.

    “One of these is that services must be provided to customers within a reasonable time if the time is not otherwise fixed in a contract or agreed between the consumer and the supplier,” he says.

    “Consumer Affairs may seek an injunction to stop a business from engaging in conduct in breach of the ACL, or to require the business to do certain things. The increasing number of complaints made against Burlesque is likely to have triggered the action that Consumer Affairs initiated.”

    Parlour says it is important for business operators to note that directors can also be held personally liable for breaches of Australian Consumer Law.

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

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    The operators of an IGA supermarket in regional Western Australia have been hit with a $2250 penalty for illegally employing an underage worker.

    According to a statement from the WA Department of Commerce, an 11-year-old girl worked five weekend shifts as a shop assistant at the Jurien Bay IGA in August 2014

    But under the Western Australian Children and Community Services Act 2004, retailers are prohibited from employing children younger than 13 years. Children aged between 13 and 15 years can work in retail businesses as long as they are not required to work before 6am or after 10pm and the retailer has obtained permission from a parent or guardian.

    The case was heard in the Perth Industrial Magistrates Court on Wednesday after MMG (WA) Pty Ltd, the company which operates the supermarket, was charged with breaching the act.

    Joseph Lee, acting executive director of the Commerce Department’s Labour Relations Division, said in the same statement the penalty should serve as a reminder to employers of their legal obligations.

    “Of particular concern in this matter is the very young age of the child concerned,” Lee said.

    A spokesperson for IGA parent company Metcash told SmartCompany all IGA stores are independently owned so each individual business owner is responsible for its own recruitment.

    The spokesperson also said it is the responsibility of employers to be aware of the minimum age requirements in their state or territory.

    But Emma Starkey, senior associate in Maurice Blackburn’s employment and industrial practice, told SmartCompany legislation relating to the minimum age requirements of workers differs substantially between Australian states and territories.

    “Ultimately rules will vary between states and certain exceptions will also apply,” Starkey says.

    For example, under Victorian legislation, it is a common misconception that all workers must be at least 14 years and 9 months old, but Starkey says it is possible for an 11-year-old to be employed delivering newspapers.

    “It depends on the nature of the work,” she says.

    “There are also exceptions for family businesses so it up to the owner to fully understand their obligations.”

    Starkey says minimum age requirements can often be more of an issue for smaller businesses in regional areas and says business owners should also be aware of any rules in their state relating to working with children police checks.

    SmartCompany contacted the Jurien Bay IGA store but did not receive a response prior to publication. 

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    Two businesses operating in north-east Victoria have been ordered to display notices detailing breaches of workplace law after a sister restaurant underpaid two cooks more than $20,000.

    Hargulab Singh, the former operator of the Hot Million Indian Restaurant in Mount Beauty, has agreed to back-pay two former employees following an investigation by the Fair Work Ombudsman. Singh also operates the Hot Million Indian restaurant in Benalla and Yack’s café in Yackandandah.

    The two cooks – one a 23-year-old man on a 457 visa and the other a 36-year-old man who is a permanent Australian resident – were underpaid a total of $13,081 and $7521 respectively between November 2013 and March 2014.

    The Fair Work Ombudsman found both workers received sporadic and irregular payments which were the equivalent of receiving on average $11.42 and $9.84 an hour respectively. The restaurant also underpaid the employees’ annual leave entitlements, made unauthorised deductions from their pay and failed to issue pay slips.

    Both cooks resigned because they could not support themselves financially and later contacted Fair Work about the mistreatment.

    According to the employer watchdog, Singh “cooperated fully” with the investigation and agreed to enter an enforceable undertaking. Under the terms of the agreement, he has agreed to a payment plan which will see the former employees back-paid for all outstanding wages and entitlements by March this year.

    The undertaking also requires Singh’s two other businesses in Benalla and Yackandandah to display notices detailing the parent company’s breaches of workplace law.

    Sarah Lock, principal consultant at Workplace Law Specialists Brisbane, told SmartCompany

    The Fair Work Ombudsman can offer an enforceable undertaking to an employer instead of taking the matter to court, which is a “very time consuming and costly process”.

    “In this case not only did the employer have to back pay all outstanding wages and entitlements, but a number of other requirements were imposed including workplace notices to be posted around the other two restaurants owned by Mr Singh,” Lock says.

    “Whilst I think enforceable undertakings are a good alternative by actively rectifying the breaches, it needs to be ensured that the enforceable undertakings are not a more severe reprimand and more onerous than the employer taking the matter to court.” 

    “Some employers simply do not understand the implications of not paying and classifying employees correctly and could be named and shamed through their lack of understanding of workplace compliance with the Fair Work Act.”

    Fair Work Ombudsman Natalie James said in a statement the incident serves as a reminder for SMEs to comply with workplace laws.

    “We know workplace laws can be complicated for the uninitiated, and for those who are not industrial experts, but we ask small business to use the tools and resources that we provide for them and inform themselves,” James said.

    “Equipping people with the information they need encourages and empowers employees and employers to resolve issues in their workplace and build a culture of compliance, ensuring a level playing field for all.”

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

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    A car salesman who allegedly gave a substance presumed to be cocaine to a young co-worker has failed in his bid for an unfair dismissal claim against his employer.

    The Fair Work Commission found the dismissal of Emmanuel Young by Stewart Automotive Group in New South Wales for gross professional misconduct was not harsh, unjust or unreasonable.

    Stewart Automotive Group alleged on June 28 last year, Young offered a newly-recruited female clerk a substance which he led her to believe was cocaine and he ingested that substance with her in his company car during work hours.

    The young employee, named only as PM in commission documents, gave evidence that she accepted the drug but later found it had little effect on her.

    Young was dismissed on July 14, following an investigation of the matter by the company.

    But Young gave conflicting evidence, denying taking any drugs at the workplace on that day, or any other day, or inviting his co-worker to his car.

    He claimed the real reason for his dismissal was that there was not enough work for both him and another co-worker employed in a similar position to his own, whom he claims was a personal friend of a senior manager.

    Young told the commission Stewart Automotive had seized upon the opportunity to get rid of him for the benefit of the other co-worker.

    But commissioner Helen Cargill accepted the young clerk’s evidence and found Young’s actions amounted to misconduct and provided a valid reason for his dismissal.

    “In this regard I prefer the evidence of PM,” Cargill said. “I found her to be a credible witness who gave clear, firm and responsive evidence.”

    Cargill found Stewart Automotive Group had a drug and alcohol policy in place which prohibited employees from consuming or being under the influence of alcohol or any illegal substance while at work and Young had breached this policy.

    Ben Tallboys, senior associate at law firm Russell Kennedy, told SmartCompany while the commission accepted misconduct occurred, no one was absolutely certain the young worker was offered cocaine.

    “However, the commission accepted the co-worker’s evidence that the applicant offered the co-worker cocaine, and that they both ingested a substance that the applicant alleged was cocaine, and this was sufficient to amount to misconduct warranting dismissal,” Tallboys says.

    Tallboys says it was important that Stewart Automotive Group had a clear drug and alcohol policy, and that Young was aware of the policy before engaging in the relevant misconduct.

    “This case again highlights an employer’s obligation to satisfy the commission that the relevant misconduct warranting a dismissal actually occurred,” he says.

    “The employer must demonstrate not only that the relevant conduct occurred, but also that the conduct was prohibited.”

    SmartCompany contacted Stewart Automotive Group but did not receive a response prior to publication.

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    EBay has taken legal action against its former Australian advertising manager and two associates, who it claims were involved in defrauding the online marketplace of millions of dollars in advertising revenue.

    An initial hearing was held on December 5 in the New South Wales Supreme Court for a civil dispute between eBay International and Glen Anthony Gaunt, Dana Nehal Joab and Mahmoud Amarni, with a directions hearing scheduled for March 6.

    According to the Australian, eBay is suing Gaunt, Joab and Amarni to recover $1.123 million in lost advertising revenues and $214,000 in commissions paid between 2010 and 2012.

    The alleged multiple frauds occurred between 2010 and 2012 and relate to third-party agents selling online advertising on eBay’s behalf during the time in which Gaunt was the Australian manager of advertising operations for eBay.

    According to The Australian, eBay is alleging several firms where Joab —Gaunt’s then de facto partner and now wife—and Amarni were sole directors and shareholders wrongfully profited from on-selling  advertising space on eBay’s website and email newsletters. It is alleged the companies told eBay they had sold the advertising spots for a particular rate but had in fact sold it for a higher price and pocketed the difference.

    The two firms involved are Digital Hub, of which Joab was the sole director and shareholder, and Digital Media Hub, of which Amarni was the director and shareholder. Also implicated is an advertising firm called Media Minds, founded by Joab, which allegedly facilitated the transactions and another company called Admedia, of which Armani was the sole director and shareholder, and which was allegedly appointed without authority to sell eBay banner ads on Google Ad Exchange. 

    A spokesperson for eBay Australia confirmed to SmartCompany this morning the company is “currently involved in legal proceedings” but said eBay is unable to comment on matters that are before the courts.

    SmartCompany contacted Media Minds but did not receive a response prior to publication. SmartCompany was unable to contact Digital Hub, Digital Media Hub and Admedia.

    Gary Gill, national head of forensic accounting at KPMG, told SmartCompany it typically takes 12 months for most fraudulent behaviour within a company to be uncovered.

    “The more senior the alleged perpetrator, it often take double that or sometimes even longer as they can usually circumvent the controls or hide things for longer,” Gill says.

    Gill says it can also take a significant amount of time for a company to gather enough evidence to mount legal action against the alleged perpetrators of fraud.

    “It depends on how complex the fraud is,” he says. “The more complex, the harder it is. If you have to access bank account information, there is a process for that.”

    “The wheels of justice grind slowly.”

    Gill says seeking redress for fraud through the court system can also be a lengthy process and the length of time will depend on the facts of the case and whether it involves both civil and criminal proceedings.

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    A Melbourne family trust has applied to trademark the terms ‘Charlie Hebdo’ and ‘Je suis Charlie’ within Australia, just a week after the terms gained notoriety in the wake of terrorist attacks in Paris, Mumbrella reports.

    The move follows an application made in July last year by Kuala Lumpur-based company to trademark the terms ‘MH17’, less than one day after Malaysia Airlines flight MH17 was shot down over eastern Ukraine, killing 298 passengers and crew.

    ‘Je suis Charlie’, translating to ‘I am Charlie’, went viral on social media after the attacks in Paris on January 7, which saw 12 people murdered at the offices of satirical magazine Charlie Hebdo. The phrase was intended as a show of support for the victims of the tragedy and for free speech.

    IP Australia’s records show the application for the trademarks of both terms was made on January 12 by the Trustee of M & G Besser family trust, located in Toorak, Victoria.

    The application for ‘Je suis Charlie’ is for class 41, the publishing category. The ‘Charlie Hebdo’ trademark is for class 24 and 25, covering apparel including clothing, footwear and headgear.

    Jamie White, solicitor director and owner of Pod Legal, told SmartCompany if successful, the owner of the ‘Charlie Hebdo’ trademark will have the exclusive right to use the trademark, including on items such as t-shirts and hats.

    “This means that if their trademark becomes registered and another person used the ‘Charlie Hebdo’ trademark in connection with these items, the trademark owner would be entitled to enforce its rights against the infringing party,” says White.

    White says in the event that the ‘Je suis Charlie’ trademark proceeds to registration, the owner of that trademark will have the exclusive right to use the trade mark for publishing services.  They would also be entitled to enforce their rights for unauthorised use of the trademark under the Trade Marks Act.

    “In my view, we are seeing more and more of this type of conduct, which is commonly referred to as 'trademark trolling',” says White.

    “Perhaps this trend is an extension of domain name cyber-squatting.”

    “These types of trademark applications are commonly filed by opportunists, who seek to cash in by selling the rights, via trademark assignment, to another party, usually the rightful owner.”

    But White says many of these opportunists are unaware that if the Australian Trade Marks Office accepts their trademark for registration, they are required to use it.

    “There are strict provisions in the Australian Trade Marks Act that provide for the removal of a registered trademark from the Trade Marks Register, upon application, if the owner does not use the trademark in connection with the goods and or services that it is registered for,” he says.

    NDA Law director and partner John MacPhail told SmartCompany he agrees  applications for trademarks in the wake of tragedies are on the increase.

    “It seems to be more and more common, people thinking they can make a quick buck,” says MacPhail.

    “It’s a little bit sad someone tried to capitalise on this.”

    While MacPhail says there is no reason the trust won’t gain the trademark rights in this case, he says the Charlie Hebdo magazine itself may make an opposition, if it wants to own the rights of the name within Australia.

    But MacPhail says if the trust is trying to stop others from using these phrases, it will be difficult to prove whether the use of the phrases on a shirt or cap is a trademark issue and not a political statement.

    “It will be dubious as to whether other people are using as it’s as a trademark, or as a brand, rather than a statement of support,” he says.

    There has been an application of withdrawal made on each application on January 17, but it is unclear whether the trust will go ahead with its application.

    SmartCompany was unable to contact the M & G Besser family trust.

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