Sentia, a Sydney-based IT development company founded in 2006, says its brand was hurt when the media intelligence company formerly known as Media Monitors last year rebranded itself to iSentia.

Sentia chief executive Michael Cindric told SmartCompany the confusion between the brands has had a huge impact on his business and has potentially lost it clients and referrals.

As iSentia prepares to launch its initial public offering, Cindric says he believes the IPO will give iSentia more ability to “flood the market with their brand” and “heavily dilute” Sentia’s existing and pre-dating brand.

He is currently attempting to block the trademark request for the name iSentia with IP Australia because he believes the media giant has begun moving into the IT development sector.

Cindric says when the media intelligence company originally changed its name, first to Sentia Media in 2012 and then to iSentia in March 2013, he believed the companies could co-exist because they were in different markets.

“I thought as long as they’re not in our market, I don’t see a problem. I didn’t think there was any potential issue, because I thought they did something totally different, I had no idea what they were moving towards,” he says.

But Cindric believes iSentia is now offering similar services and encroaching on the IT development market.

“They are looking for development in iPhones and that sort of thing,” he says. “They claim they are in a different market from us, but the consumer doesn’t draw such a fine line.”

However, iSentia said in a statement to SmartCompany it is committed to “work[ing] positively through the proper channels to resolve this issue for both parties”.

“iSentia received professional advice from our IP lawyers that we were on solid ground to move from Sentia Media to iSentia,” said the company.

Cindric says days after Media Monitors changed its name to Sentia Media in 2012, chief executive John Croll contacted him with an offer of $50,000 to buy the rights to Sentia.

“It was a bit of naivety on my part, we didn’t object to Sentia Media at the time because I assumed that IP Australia wouldn’t allow for too much conflict,” he says.

But Cindric says when the company rebranded again to iSentia, it continued to cause market confusion and Sentia then lodged its opposition to the “iSentia” trademark.

He says iSentia suggested a co-existence agreement but those discussions broke down over his request for an extension to the opposition submission deadline.

“Since we were in the process of working things out, we didn’t want to get caught with not submitting our opposition should the talks break down. The only instruction we got back from their lawyers was that they received no instruction on the extension,” he says.

Cindric says iSentia has now put in an opposition to his trademark request for “Sentia” on the grounds there is a conflict between the two companies, a stance he says the company had originally used as a defence in its original rebranding.

The Australian American Association's Victorian branch has been left devastated after over $800,000 was embezzled from it.

The non-profit organisation is aimed at fostering relations between Australia and the United States. 

Last week the Australian American Association’s former executive director, journalist Tony McAdam, received a suspended 15-month jail term after pleading guilty in the County Court to stealing $100,660.

But the Australian American Association claims McAdam embezzled much more.

Sam Muscat, president of the Australian American Association’s Victorian branch, told SmartCompany when McAdam was appointed the association had a “huge membership”, owned a property on Bourke Street in Melbourne’s CBD and had “in excess” of $800,000 in investments.

Alarm bells sounded when McAdam kept on making excuses as to why there were no financial reports and repeatedly blamed the association’s auditor.

“In 2007 he was dismissed in accordance with the rules of the organisation for allegedly embezzling over $800,000 from the Australian American Association’s investment fund,” Muscat says.

“I was appointed as treasurer and we were left with a bank balance of minus $1000.”

The fraud squad was called in to investigate and the association became embroiled in a court case against McAdam to recover the funds which dragged on for seven years.

"During the course of your employment you sold shares owned by the association without its knowledge or consent," Judge Christopher Ryan told McAdam last week when sentencing him in the County Court

"You used the proceeds from the sale of shares to make unauthorised payments from the association's cheque account.”

But McAdam’s sentencing doesn’t bring the Australian American Association of Victoria any closer to retrieving the embezzled funds.

McAdam now survives on a pension and lives alone in housing commission accommodation. 

“Why you stole the money and how the monies were used remain a mystery,” Judge Ryan told McAdam.

“It is plain that by your conduct you have caused real and possibly irreparable harm to your former employer”. 

Muscat says he “hates to think” what the prosecution has cost the taxpayer. 

“Because it is a white collar crime this guy literally walks away scot-free,” Muscat says.

“He does not even apologise and only admits guilt to $100,660.”

The Australian American Association of Victoria must now consider whether to pursue its bank and auditors to recover the missing funds.

Following last week’s public hearing, the Senate Economics Legislation Committee is preparing to report on its inquiry into a government bill that would significantly water down the Future of Financial Advice (FOFA) legislation.

The legislation banned “conflicted remuneration” - commissions provided to advisers and financial planners by the producers of financial investment products such as banks and wealth management firms. FOFA also required bi-annual renewal of any ongoing fee agreements between investors and their planners on an “opt in” basis, and made it the duty of financial services providers to advise and act in the “best interests” of their clients.

The government argues the “streamlining” of FOFA will help to “cut red tape” and reduce costs to consumer investors. Unfortunately, while there is always room for fine-tuning new legislation to “streamline” it, the government’s proposals do far more. They seriously undermine the consumer protections in the FOFA legislation and, in some ways, take investors back to the pre-FOFA position.

Banks win under a ‘streamlined’ FOFA

While not attempting to reinstate product-based commissions for personal advice, the government’s bill does propose to allow them for “general advice”.

Bankers, planners and lawyers may understand the difference between “personal advice” and “general advice”, but the subtleties of this distinction may be lost on consumers in real-life situations. A bank employee may say to a consumer, “This product is very good for people (in general) of your age with your income/asset position,” without considering the consumer’s particular needs, objectives and financial situation. This is “general advice” only but under the current legislation, the employee still may not receive a commission if the consumer invests in the product as this would be “conflicted remuneration”.

The government proposes to exempt such “general advice” from the ban on commissions. Further, there will be almost no restrictions on commissions when the result of the conversation between the bank employee and the customer results in a basic banking product, general insurance or life insurance. Not surprisingly, this is one area where consumer groups agree with the Financial Planning Association of Australia (FPA) as the latter is concerned at the decline of properly remunerated personal advice and the total domination of a “sales culture” built on commission-driven “general advice”.

Where the consumer groups and the FPA part ways, however, is on the issue of bi-annual renewals. Currently, under FOFA, a planner or adviser who is receiving ongoing commissions, either from product issuers for old pre-FOFA investments, or directly from the client, must notify the client every two years and allow them 30 days to “opt in” and renew the ongoing fee arrangement.

Best practice for all

The government proposes removing this requirement and returning to the old pre-FOFA “opt out” situation. This is despite strong evidence, from many sources including ASIC itself, that large numbers of consumer investors are “inactive” and that many planners and advisers receiving commissions from these consumers or their investments don’t bother regularly contacting them to review them. Of course, “best practice” in the financial planning industry is to conduct such reviews, annually or bi-annually. FPA members who abide by its Code of Practice would do so.

It is surprising, therefore, for the FPA to oppose this requirement and to support the government’s attempt to “streamline” it away. Other financial services products, like house and car insurance, are renewed annually and consumers are given notice and opportunity to consider the product and shop around. Why not investments? Informed and updated consumers regularly considering their investment performance and their fee arrangements with their planners and advisers makes for a better-performing investment industry and confident consumers.

FOFA also repealed the requirement for advisers to have a “reasonable basis” for their advice and replaced it with the obligation to act and advise in the “best interests” of the client. This duty, however, can be satisfied if the adviser can prove they complied with a “checklist” of quite specific obligations followed by the general requirement to consider “any other step” that was in the client’s best interest. This last requirement is the only item in the relevant sub-section that actually mentions “best interest”. The government is proposing to remove this last “catch all” provision, saying it is too open-ended and “creates uncertainty”.

Most professionals have open-ended obligations which require the exercise of professional judgement. While their insurers produce checklists to help manage risks, these are no defence to a claim of professional negligence. Indeed, the principles of the law of negligence itself, which apply to everybody, not just professionals, are expressed in general terms such as “reasonable foreseeability”.

If financial planners and advisers want to be seen as a profession and to charge accordingly, they need to accept that not all their obligations can be neatly spelt out for them in a legislative checklist.

Paul O'Shea is senior lecturer, TC Beirne School of Law at University of Queensland.

Paul O'Shea was commissioned to write an analysis for National Seniors Australia on the potential consumer detriments of the Commonwealth government's proposals to "streamline" the Future of Financial Advice reforms. He is affiliated with Queensland Consumers and is a "Friend" (Honorary Life Member) of the Financial Counselling Association of Queensland. He is a member of the Investment, Life Insurance and Stockbroking Panel of the Financial Ombudsman's Service. His private legal practice advises both consumers and financial services providers.

This article was originally published on The Conversation.

The Australian Competition and Consumer Commission has scrambled the plans of an alleged egg cartel, launching legal action yesterday against the Australian Egg Corporation Ltd (AECL) and several of its directors and associated companies.

The ACCC alleges the AECL, an industry body for egg farmers, attempted to persuade some of its members to enter into an arrangement to cull hens and dispose of eggs to reduce the amount of eggs available for supply.

It is claimed the AECL board encouraged its members to reduce egg production in its member publications from November 2010, in order to avoid oversupply which would affect egg prices.

The ACCC also alleges the board held an ‘Egg Oversupply Crisis Meeting’ in February 2012, which was attended by egg producers in Sydney, where it sought to coordinate a response by egg producers to reduce the supply of eggs.

However, the ACCC has not claimed the AECL was successful it its attempt to make a cartel arrangement with Australian egg producers.

In a statement, the AECL said it has fully co-operated with the ACCC in its investigations.

“AECL intends to co-operate fully in the court process but is not otherwise able to comment as the matter is now before the Federal Court.”

The AECL collects levies from its members for research and development activities, as well as promotional activities, and at the time of the alleged cartel conduct, it had between 100 and 150 egg producer members.

In 2012, the Australian egg industry consisted of 301 egg farms and produced 397 million dozen eggs with a gross value at market of $1.672 billion.

A landmark decision made yesterday in the Western Australian Supreme Court may have lasting implications on the relationship between organic suppliers and those who harvest genetically modified crops.

Organic farmer Steve Marsh lost his three week battle for compensation against childhood friend and neighbouring farmer Michael Baxter on Wednesday, after he alleged his organic produce was contaminated by Baxter’s genetically modified canola.

Supreme Court judge Kenneth Martin ruled Baxter had grown the canola crop legally and had not acted negligently when genetically modified canola from his property blew on Marsh’s organic farm. 

“I am not satisfied that the swathing harvest methodology used for Two Dams and Range paddocks in 2010 factually caused this economic loss under any tests of the common law,” read Justice Martin’s decision.

Justice Martin went on to say Marsh’s economic loss was the result of the organic regulator, the National Association for Sustainable Agriculture, unreasonably stripping Marsh of his organic status.

Chair of industry organisation Australian Organic, Dr Andrew Monk, told SmartCompany the organic community was yet to know the full legal implications of the decision and would likely see them play out in the years ahead.

“Unfortunately, we don’t think this will be the last court case we see,” says Monk.

Monk says Australian Organic would like to see a review of the GM production code and some legislative back-up to enforce the code.

“If the production of the GM crop in those first couple of years by the Baxters was viewed as completely legal and nothing untoward, then we are very surprised by that, given that the practice back then evidently led to contamination,” says Monk.

“We think a review of the code and legislation around the code would not only have made the contamination avoidable, but it would have made the entire court anguish for both parties avoidable,” he says.

Monk says the growing organic farming industry is experiencing significant demand and the market is undersupplied, with organic sales tipped to hit $1 billion in coming years.

“We need more organic growers, not less,” he says. “Particularly given the context that the number of Australian farmers is decreasing every year, we all need to work on collaborating farming as an industry.”

“It certainly hasn’t been resolved and, as people are suggesting, it isn’t a great win for either side. There has been anguish on both sides of the fence and there are no winners in the case.”

A Melbourne man who claimed to be a financial planner faced the Magistrates’ Court this week, charged over his involvement in a fraud scheme said to be worth $100 million over 10 years.

Fairfax reports Bill Jordanou faces 142 charges relating to 40 incidents between 2004 and 2013, including more than 100 charges of “obtaining a financial advantage”, often in the form of home loans and electronic transfers into home loan accounts.

Jordanou is also facing charges related to obtaining property by deception, conspiring to defraud the Commonwealth Bank, ANZ Bank, Bankwest, Bank of Melbourne and Bank of Queensland, conspiring to pervert the course of justice, and the theft of a Mercedes-Benz.

Prosecutor Luke Excell told Fairfax Jordanou is “alleged to have drawn funds using false client approvals and invoices … then used it across various property developments as well as maintaining a lifestyle.”

Excell said Victoria Police became aware of Jordanou’s activities, and those of his associates, when the Commonwealth Bank discovered a number of loan applications lodged on behalf of Jordanou’s clients were supported by false documents, including ATO documents, letters of employment and financial statements.

The bank lodged complaints against accounting firm Zaia Arthur & Associates, where Jordanou was working as a “financial adviser” at the time.

SmartCompany attempted to contact Zaia Arthur & Associates this morning but the phone number listed for the firm has been disconnected.

Jordanou’s lawyer, George Defteros, told Fairfax his client has “been waiting for these charges for two-and-a-half years … and we welcome these charges because Mr Jordanou wants to get on with his life”.

Mark Rantall, chief executive of the Financial Planning Association of Australia told SmartCompany there are a number of rules individual investors and small business owners should follow to safeguard themselves against unsound financial advice.

Rantall says the "golden rule" is to always check the qualifications of the person giving the advice and to make sure they are a member of the FPA, which is the national professional association for financial planners.

“The second golden rule is that if something sounds too good to be true, it usually is,” says Rantall. “If you are being offered a get-rich-quick scheme, the risk associated with that scheme will be extraordinarily high.”

“The third rule is that your financial planner should spend more time talking about you and your investments, than themselves and the products they may be offering,” says Rantall.

Rantall says it is also important to make sure your financial plan matches your own personal risk profile, and that your investments are diversified across different products and different asset categories.

“The final thing would be to make sure you keep you to date with your portfolio and that you always feel comfortable with the investments being recommended,” says Rantall. 

A spokesperson for the FPA told SmartCompany individuals and business owners who are concerned about receiving sound financial advice can use the “Find a Financial Planner” function of the FPA’s website to find an expert, as FPA members are held to higher professional standards.

A former chief executive of Australia’s second-largest dental chain is suing the group’s parent company for wrongful dismissal, according to reports in The Australian Financial Review.

Mike Timoney, who co-founded Dental Partners in 2008, was dismissed by the company last year after a performance review by a consulting firm he alleges is part-owned by Dental Partners chairman Alan Clarke.

Fairfax reports Timoney has filed a $4.5 million unfair dismissal claim in the Supreme Court of Queensland against Abano Healthcare, the New Zealand-based parent company of Dental Partners.

Court documents allege Dental Partners chairman Alan Clarke engaged K2 Consulting to undertake two performance reviews of Timoney, despite allegedly being a joint shareholder in the consulting firm. Clarke is also the managing director of Abano Healthcare.

“All I ever wanted was to be treated fairly,” Timoney told The Australian Financial Review. “I founded this company. Being chucked out of the business in the dead of night like a criminal was not my idea of how I would depart,” he said.

Yvonne Walker, founder of HR with Ease, previously told SmartCompany businesses need to take care when sacking employees.

“Most ongoing conduct or performance issues can be valid reasons to dismiss an employee, provided that the conduct or performance is affecting the business sufficiently to warrant letting the employee go,” said Walker.

“Where there appears to be no reason for poor performance, you need to clearly explain the required performance levels required and ask whether they feel they’re able to do this,” she said.

Walker said reasons which are not valid for sacking an employee include their sex, race, age, disability or lawful industrial action.

“If a performance or conduct problem is linked to one of these areas, then dismissing someone because of that problem could also be unlawful,” said Walker.

“Even if a reason for termination is valid, a dismissal can still be found to be unfair if the process followed is harsh or unreasonable in the circumstances. Because most of these elements aren’t black and white, checking with an HR expert or employment lawyer is usually a good idea,” she said.

Fair Work provides a free fact sheet for businesses on their own rights and those of employees when it comes to termination of employment.

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

The planned expansion of Café del Mar in Australia has come to a halt after a legal dispute over the control of the local arm of the business.

The famous bar and restaurant in Ibiza which spawned an entire genre of chill-out music has one Australian outpost, Café del Mar Sydney, at Sydney’s Cockle Bay wharf.

But plans to open further Café del Mars, including one in Melbourne, have now descended into a legal brawl.  

Michael Vale claims to be the founder and majority shareholder of Café del Mar Australia, and says he plans to open another Café Del Mar in Melbourne.

But Café del Mar Australia’s managing director, John Zappia, says Vale has been removed as a director and has no authority to represent the brand.

Zappia told SmartCompany the situation was “very serious” and was now being handled by Café del Mar Sydney’s legal team.  

He says Zappia owns the master licence in Australia for Café del Mar Australia and was given the right by Ramon Guiral Broto who started Café del Mar in Ibiza.

Zappia describes Vale as “an unauthorised voice of the brand” and a “disgruntled ex-director”.

Zappia provided SmartCompany with a copy of Café del Mar’s Australian trademark registration, which is registered to Broto, and an ASIC registry search which shows Zappia as an officeholder in Café del Mar Sydney and Café del Mar Australia.

But Vale says he is “not really in dispute” with Zappia.

Vale acknowledges he may have resigned as a director but says whether he is a director or not is irrelevant as along with another shareholder, Norman Hilton, he owns 60% of Café del Mar Australia.

Vale claims Zappia owns the remaining 40%. 

Vale says in 2008 he went to Spain and met with the directors of Café del Mar in order to secure the “head franchise for the Commonwealth of Australia”.

“I met the three partners who established Café del Mar. I received the licence to build and commercialise eight Café del Mars in Australia,” he says.

Vale says Zappia is only a minority shareholder of the “franchise operation” which is Café del Mar. 

“For [Zappia] to say he has the rights to build Café del Mar in Australia and not me is simply ridiculous,” Vale says.  

“[Zappia] has invested a lot of money, he owns 100% of Café del Mar Sydney, but it is a franchise operation and I am the franchisor and he is the franchisee.”   

Vale provided SmartCompany with a copy of the licence agreement between Javier del Moral Ruiz, on behalf of Ibiza Music and Clothes, and Vale, on behalf of Café del Mar Australia, which purports to grant Café del Mar Australia the licence for the use of Café del Mar brand in Australia.

Both Vale and Zappia claim they will open a branch of Café del Mar in Melbourne.

“Café del Mar Melbourne will be a totally new entity, it will be run by a Melbourne-based marketing company and it will be spectacular,” Vale says.

But Zappia says Café del Mar will open other outlets throughout Australia but Vale is not involved in this expansion.

“We are talking to investors in Melbourne but we are trying to keep it as low key as possible,” Zappia says.

The co-founder of Melbourne-based startup HealthKit, Alison Hardacre, was surprised and confused to learn Apple is using its name for one of iOS 8’s features.

Even the capital K.

In the early hours of Tuesday morning, Hardacre woke to the startling news.

. @HealthKit was around a long time before iOS 8... #justsaying

— Healthy Startups (@healthystartups) June 3, 2014

“I just happened to wake up at 4.15am and couldn’t get back to sleep, so like any good tech entrepreneur I decided I’d check my emails on my iPhone,’’ Hardacre says.

“I found an email from a friend asking, ‘Has Apple just trampled on your name?’”

Surprised, she jumped out of bed and checked for herself and found numerous reports about HealthKit, Apple’s new native health tracking platform.

Apple’s HealthKit is designed to help users keep track of all their health and fitness data, effectively collating health data from the many health apps available by allowing them to share data.

The Melbourne-based HealthKit is a global health administration platform which enables patients to find practitioners online and enables users to track, manage and share their health records.

“Every startup worries that Google, Apple or Facebook will enter their market, but nobody thinks they’ll take their name when they do it,’’ Hardacre says.

@healthystartups @HealthKit The new cyber squatting. The big don't have to care! #notfairapple

— Tim Offor (@timoffor) June 3, 2014

Following the announcement her company’s name was the fifth most popular trending term on Twitter yesterday and traffic on its website www.healthkit.com, which it has owned since 2012, was 10 times more than usual, according to Google Analytics.

“We’ve been growing at a rate of 7% a week, which is really a fantastic rate of growth, it’s what the founders of Airbnb say you should be aiming for,’’ Hardacre says.

“We’ve been over in San Francisco at health tech conferences; we’re not like some company hidden in some backwater. We’ve grown and we’ve followed a particular strategy, we’ve looked at moving the company to Silicon Valley.

“Part of me thinks it’s the cut and thrust of the business, but it’s actually not.

“It made me realise that this could happen to every startup.

“I kind of felt a little bit let down – didn’t they spend five seconds to visit HealthKit.com?”

StartupSmart contacted Apple for comment, but has yet to receive a response.

@tim_cook @HealthKit I know you're new to this whole Ruthless-Like-Steve-Jobs game, but my good man, you need to learn subtlety!

— Daniel Cohen (@CodaAzzurra) June 3, 2014

Executive director of Premier IP Ventures and intellectual property expert Brian Goldberg says the incident serves as a warning to startups to ensure they register their brand name as a trademark.

Goldberg says it’s not conclusive at this stage that the brand HealthKit is entirely owned by the Australian startup, nor whether or not Apple will use it as a standalone brand name or in conjunction with its core Apple brand.

“So at this stage the Australian startup may have some brand rights in Australia but it’s not definitive as to the extent,’’ he says.

“It is important to file your brand as a trademark. This provides certainty and clear rights for the brand owner. Importantly the rights can then be enforced as well as negotiated."

This story first appeared on StartupSmart.

The Fair Work Commission has ruled in favour of a nursing home which sacked a cleaner after she suggested a resident complain to a current affairs television program. 

The cleaner, who is not named in the case, told residents she was concerned about the provision of water jugs and certain food issued to residents.

"Look, we are going to have to do something about this — you should go to the current affairs program like before to expose what is going on here, we cannot let them get away with this," she told one resident.

The nursing home had previously been the subject of a current affairs program story. 

The nursing home sacked the cleaner after her behavior was investigated. She had previously been given a final warning.

The Fair Work Commission found the cleaner’s conduct justified dismissal and was “a deliberate act of misconduct”.

“[The cleaner] had the capacity and the opportunity to raise any concerns she had about the provision of water to residents with appropriate managers,” the commission found.

“[Her] actions undermined the trust that an employer is entitled to have in an employee. On this basis it must represent a valid reason for the termination of her employment.”

Rachel Drew, partner at law firm TressCox, told SmartCompany the problem is the cleaner was specifically encouraging residents to complain in an external and publicly embarrassing way. 

“This was not a situation of the employee being treated harshly because she wanted to make a complaint, it was the reverse ­– she was dismissed for failing to bring client complaints to the employer's attention, instead encouraging the clients to take their complaints to an external body,” Drew says. 

Drew says the FWC carefully considered the employer's procedure and found the nursing home did not treat the cleaner harshly because it notified her of its concerns and gave her an opportunity to respond. 

“The FWC thought the employer had done the right thing, [the nursing home] didn’t overreact to that situation,” Drew says.

“They followed their policy and made sure she was advised of what the issue was and allowed her to provide a response to that.

“The message for employers is no matter what misconduct you are faced with make sure you deal with it in a considered way and in accordance with your policy.”

Enrico Burgio, associate in the employment law department at Maurice Blackburn, says the case demonstrates employees should exercise caution in how they go about complaining about matters relating to their employment.

"Employees should not assume that because they are 'blowing the whistle', that they are always going to be protected under the law," he says. 

Burgio says while it is unlawful under the Fair Work Act to discipline or dismiss an employee because they have complained (or propose to complain) about their employment, this protection is not absolute.

"If an employee encourages others to complain to the media or politicians, and this has the potential to harm the employer's reputation and interest, it may constitute a valid reason for dismissal," he says.

More than half of Australian organisations surveyed in a recent study have experienced economic crime in the past 24 months.

With white collar crime penalties in Australia paling in comparison to other jurisdictions, the latest Global Economic Crime Survey from PwC shows that number had risen from 47% in 2012.

The PwC survey, which interviewed more than 5000 respondents across 95 countries and a range of different business sizes, also revealed 36% of those surveyed had suffered losses in excess of $1 million in the past 24 months.

PwC partner Malcolm Shackell told SmartCompany the report applied equally to businesses regardless of their size.

“We have seen that big frauds do happen to small organisations,” says Shackell.

He says many SMEs have limited resources to tackle fraud, but need to think about managing potential risks.

“The first thing for small and medium size business is to ask, ‘where within my business is the biggest risk?’ Then they need to focus their limited resources on tightening control of those risky areas,” says Shackell.

Shackell says for many small businesses, the supplier channel represents the biggest danger and companies should focus on the integrity of organisations and individuals working in that area.

He says many of the frauds he sees are ‘collusive’ frauds, where an external party is in collusion with an internal party to commit the fraud, or ‘account payable’ frauds.

“Account payable type frauds are where you have a small business looking at rapid expansion and they have to spend money,” says Shackell. “They need to open new shops or buy a new building or warehouse.”

“And because that needs to happen quickly, the controls that are normally in place fall away in the need for speed,” he says. “Some of the worst frauds we’ve seen are where one particular employee has been given a whole lot of new responsibility to spend money and that particular employee has taken advantage of that situation.”

“We’ve seen some pretty bad ones, for example, where they’ve worked in collusion with someone from the outside, they falsified invoices, set up their own fake company… all that kind of stuff can add up to multimillion-dollar fraud,” says Shackell.

Shackell says small business owners and operators can often become emotional, but they are better served to approach these matters in a dispassionate way.

He says businesses need to take logical steps if they are suspicious of a fraud or economic crime taking place, which include identifying the frauds, proving with evidence that is has occurred, not making unfounded accusations and then dealing with the matter with lawyers.

“The problem some organisations have is they don’t want to believe it, they want to stick their head in the sand,” he says.

Home improvement company Gotta Getta Group has paid $20,400 in penalties after being issued with an infringement notice by the consumer watchdog, which alleged the company engaged in misleading advertising.

According to the Australian Competition and Consumer Commission, Gotta Getta Group offered consumers 60 cents per kilowatt hour for energy fed back into the grid if they purchased a solar panel and entered a three-year energy plan with Simply Energy.

The advertisements, which ran on television, the internet and radio in South Australia during 2013, claimed the feed-in credit meant consumers would recoup the cost of their solar panel up to three times faster than if they purchased it from a competitor.

The ads also claimed consumers would not have to spend any money in order to benefit from the offer.

In a statement, the ACCC alleged the Gotta Getta Group advertisements made false or misleading claims and contravened Australian Consumer Law.

“Gotta Getta Group did not take into account the fact that consumers who purchased a solar system from another supplier would receive the benefit of the 9.8 cent minimum retailer payment in addition to the 16 cent South Australian Government feed-in tariff,” said the competition watchdog.

“Gotta Getta Group charged consumers an amount in relation to the 60 cent feed-in tariff offer, by including in the purchase price of its solar systems an amount in respect of a commission payable by Gotta Getta Group to Simply Energy,” said the ACCC.

However, an ACCC spokesperson told SmartCompany infringement notices are not an admission of conduct.

SmartCompany contacted Gotta Getta Group this morning, but did not receive a response prior to publication.

The incident is the latest in a series of investigations into the energy sector by the ACCC.

Last month, the agency instituted proceedings in the Federal Court against Origin Energy, claiming it had made false or misleading representations to consumers.

In a statement, ACCC Commissioner Sarah Court said complex terms and conditions can make it difficult for consumers to compare offers from competing suppliers.

“Suppliers must ensure that representations made about the benefits of purchasing a solar system are truthful and accurate, so that consumers can make informed purchasing decisions, and suppliers do not gain an unfair advantage over their competitors,” said Court.

Melissa Monks, special counsel at law firm King & Wood Mallesons, told SmartCompany in February the energy sector was one of the ACCC’s key priorities for 2014. 

“We will definitely see litigation in relation to the savings ‘discounts off what?’ concerns, likely in the energy sector given the ACCC has been investigating this concern since at least June last year,” she said.

Thousands of Australians and small businesses were scammed out of a combined $89 million in 2013, according to report released by the Australian Competition and Consumer Commission today.

The Targeting Scams report says while the amount of money lost through scams decreased by 5% last year, compared to 2012, the number of scam-related contacts reported increased by 10% to almost 92,000.

Persons aged 45 to 54 were the most common reporters of scams, and the amount of people aged 65 and over reporting scam contacts nearly doubled to 18%.

Delia Rickard, deputy chair of the ACCC, told SmartCompany the biggest threats to small businesses are false billing scams.

“It can take a whole range of forms: getting a bill from a domain name register saying it will expire if you don’t pay within 24 hours,” says Rickard.

“[Or] it could be one of the directory scams where you get a bill or false invoice for a Yellow Pages entry that you never ordered,” she says.

False billing scams made up 3600 of all contacts reported last year, with 445 losses amounting to a total of almost $725,000— a 45% increase in reports, and a 28% increase in the amount of reported losses. 

“It’s really important to have systems in place to check whether the bills you are receiving are legitimate,” says Rickard.

“If something doesn’t look quite right, don’t trust it, and don’t use the contact details in the emails,” she says.

The Federal Department of Communications warned small business owners earlier this month to keep their eyes open for electricity and gas bill scams.

The email-based scam bills, which purport to be from Energy Australia, often have links to malicious websites and can automatically download the malware to victims’ computers.

The ACCC report suggests businesses receiving suspicious bills should verify them by contacting the companies directly, using contact details sourced independently through an internet search or a phone book.

The Australian Competition and Consumer Commission has slapped a marketing company with a $750,000 fine for misleading and unconscionable door-to-door sales tactics.

The watchdog started its investigation against Australian marketing company, Titan Marketing, last year, but proceedings were concluded in the Federal Court last week. The company’s director has also been banned from managing corporations for five years.

The court heard the company misled consumers while conducting door-to-door sales of first aid kits and water filters in indigenous communities and other locations across Queensland, New South Wales and the Northern Territory.

Titan Marketing was found to have made misrepresentations to consumers about the value of the first aid kits and misrepresentations about its sales representatives’ association with a community group or charity.

The court also found the company had not taken reasonable steps to ascertain whether the consumer was capable of understanding the agreement documents, including how much the goods would cost and how the consumer was to pay for the goods, and had intentionally not informed the consumer about their cooling off rights.

Titan was also found to have engaged in unconscionable conduct by using undue influence and unfair sales tactics to enter into unsolicited agreements with two individual consumers in indigenous communities.

Both consumers had limited ability to read or write English or to understand the nature of the agreements they were entering into. One of these consumers was a long-term resident in a care facility.

When the ACCC first launched its investigation, Hall and Wilcox partner Sally Scott told SmartCompany the watchdog had made an effort to pursue a number of companies over misleading and unconscionable conduct in connection with sales to those in indigenous communities.

“Issues affecting Indigenous consumers are a priority area for the ACCC,” ACCC commissioner Sarah Court said in a statement.

The court also declared Titan’s director, Paul Giovanni Okumu, was knowingly concerned in the systemic unconscionable conduct, ordering him to pay a further penalty of $50,000 and disqualifying him from managing corporations for five years.

“The substantial penalties imposed against both Titan and Okumu, as well as the five year disqualification order against Okumu, reflect the egregious nature of the conduct involved in this case, against particularly vulnerable consumers,” said Court.

The Court ordered injunctions against Titan and Okumu, which include being conditionally restrained for five years from entering Indigenous communities that require permission from Elders or Administrators to enter to sell any goods.

Titan was also ordered to pay costs of $100,000, and Okumu was ordered to pay costs of $20,000.

Titan Marketing was contacted for comment, but SmartCompany did not receive a response prior to publication.

According the ACCC website, door-to-door sellers must provide a printed sales agreement in plain, clear language and must tell consumers about their cooling off rights before they sign the agreement.

Sellers must accompany a sales agreement with a form that consumers can use to cancel the agreement during that cooling-off period.

Saskia Beer, the daughter of celebrity chef Maggie Beer, has been accused by the Australian Competition and Consumer Commission of making false or misleading representations about the origins of her company’s pig meat.

The ACCC has previously stung meat suppliers for misleading consumers over the free range nature of their meat, but has cracked down on Beer for the colour of her pork.

Barossa Farm Produce, of which Beer is the sole director, was accused of sourcing meat from white pigs for its ‘The Black-Pig’ smallgoods range, instead of from more premium quality black pigs.

Between December 2010 and May 2013, Barossa Farm Produce made various representations on its product labelling, websites and social media that the pork used in the range was sourced from heritage Berkshire pigs, when that was not the case.

Black pig breeds, which include Berkshire pigs, are heritage breeds. Berkshire pork is known for its texture and flavour due to a higher fat-to-meat ratio than white pig breeds, qualities that make Berkshire pork a premium meat product.

Beer was also accused of making misrepresentations at an autumnal cooking class held at the Maggie Beer Farm Shop in April 2013.

The ACCC additionally found statements made on the websites www.saskiabeer.com and www.barossafarmproduce.com, which read “we know the origin of every animal that makes its way onto the plate”, were also misleading, as Barossa Farm Produce did not in fact know the origin of every animal used in those products.

The ACCC has accepted an enforceable undertaking from Barossa Farm Produce that will prevent it from making any misrepresentations about the breed or type of pigs in its ‘The Black Pig’ labelled smallgoods and will require that it knows the origin of every animal used in the production of the range.

Barossa Farm Produce will also be required to publish a corrective notice on its website, and Beer will have to attend trade practices compliance training.

Beer has released a statement taking responsibility and apologising “unreservedly to any customer who has in any way been misled”.

“This is an isolated instance that arose as a result of miscommunication on the part of our supplier and a failure on our part to adequately verify in this instance the source of the product,” said Beer.

“There was no intention to mislead or misrepresent in any way the origin of the product,” she said.

Beer said systems for ensuring compliance had been reviewed to ensure no reoccurrence and said she was committed to providing the accurate and reliable information that her customers expected of her.

ACCC chairman Rod Sims said in a statement false credence claims relating to food products “are a priority area for the ACCC”.

“A business must not make claims about the characteristics of its products when it has no reasonable basis for doing so,” said Sims.   

He said the mislabelling gave Barossa Farm Produce an “unfair advantage” in the market, as consumers were likely to seek and pay more for products with specialised ingredients.

Hall and Wilcox partner Sally Scott told SmartCompany a credence claim is a claim or representation about the characteristics of a product, such as place of origin, free range and environmentally friendly.

Scott says any business making a credence claim needs to ensure that the claim is not misleading and should consider not only express statements, but also implications.

“The ACCC has pursued similar cases to this in the past, including cases involving misleading claims about ‘King Island’ products and free range eggs and chickens,” says Scott.

She says there are penalties of up to $1.1 million for misleading claims and any statement or representation made in the course of business can be subject to action by the ACCC if it is misleading.

“Many businesses are starting to be more conscious of the risk of misleading conduct in connection with advertisements, as there have been many high profile misleading conduct cases in relation to advertisements,” says Scott.

“However, this case stands as a warning to businesses that they need to be cautious about all statements in business, not just in advertising,” she says.

Australian producers could soon have clarity over just what free range means, with state and territory ministers announcing this month action will be taken to develop a draft national standard for free range eggs.

In response to a growing consumer demand for transparency and ethical produce, state and territory ministers said on June 13 work on developing a national policy will be spearheaded by the New South Wales Office of Fair Trading.

There is currently no national or legally enforceable definition of free range in Australia and companies have previously been slapped with fines for claiming their eggs were free range.

According to the NSW Office of Fair Trading, a draft standard could include a definition of free range as well as minimum labelling requirements for product packaging.

Phillip Westwood, owner of Victorian egg farmer Freeranger, told SmartCompany as a small producer he welcomes the introduction of a national standard as it will enhance consumer confidence in his product and will create a more even playing field for smaller ethical companies.

But he cautioned that divergent opinions as to what ethical poultry farming standards should be would take some time—possibly one year—to resolve.   

“We fully support the need for a national standard but at this stage we don't know the wording and possible loopholes,” says Westwood.  

“The Queensland government has already said it doesn't like restrictions on the number of hens per hectare, and Victoria's Agriculture Minister, Peter Walsh, is known to favour industry self-regulation,” says Westwood.  

“Hopefully the standard will limit the number of fowls per hectare to 1500 and prevent the big boys from falsely labelling their products,” he says.

However, Westwood says he doubts there will ever be “real free-range eggs in major supermarkets because of quantity and volume demands”.

“Our eggs are distributed through places like smaller health food stores,” he says.  

John Coward, chief executive of Queensland United Egg Producers, told SmartCompany he also supports the standard but focusing on the number of birds per hectares is not practical.

“It is not about the number of birds per square hectare, it is about the way you manage the life of them,” says Coward.

“The process should accelerate the guidelines for the model code of practice for the welfare of poultry to provide uniformity and legislation in all states,” he says.  

“Standardisation should be dealt with by the agricultural, animal welfare and environment ministers and with consumer demands in mind. Then it will offer uniformity, transparency and clarity.”

NSW Fair Trading Minister Matthew Mason-Cox has said he will prepare a draft free range definition for discussion at the next meeting of the ministerial forum.

A childcare centre that dismissed an employee following an accusation the staff member smacked a two-year-old child has lost an unfair dismissal case.

On November 7, 2013, the Children First Blacktown Road Children's Centre in Blacktown, NSW, received a complaint from a parent alleging one of its employees – Donna Eland – had smacked their two-year-old child on the hand.

Eland was eventually dismissed from her position, following an internal investigation, but a Fair Work hearing into the case found Eland had been unfairly dismissed as she was not told statements from her co-workers during the investigation formed the basis of the dismissal, instead of the parent’s initial complaint.

The Fair Work Commission heard that Diane Rawlings, manager of the Children First Blacktown Road Children's Centre, initially suspended Eland on full pay after receiving the parent’s complaint and commenced an internal investigation.

On November 8, Rawlings gave the other three staff who had worked with Eland a questionnaire asking whether they had ever seen a staff member smack a child, and whether they had ever seen a staff member “roughly handle” a child.

Two of the three staff members answered no to the first question, while a third mentioned she had seen an employee smack a child, identifying Eland.

For the second question, two of the three staff identified that they had seen Eland “roughly handle” a child.

Rawlings asked both of the staff members who claimed to have seen Eland roughly handle a child to provide a written account of what they had seen.

In one of the handwritten statements, one of Eland’s co-workers accused her of a string of rough behaviour against children at the centre.

“Donna has pulled [a child’s] hair when he has pulled another child’s hair,” the co-worker said. “She has also been rough towards a few children that I feel irritate her.”

“If [some children] have done something wrong she would strongly pull them and tell them to sit on the floor. Donna has also lightly smacked their hand if they have done something wrong,” said the staff member.

On November 12, after receiving accounts, Eland was called in to a disciplinary meeting, and was terminated the following day.

The Fair Work Commission found that while Eland “was provided with the written statements of the other employees, and thus aware of the other allegations that had been made against her, she was not told that these allegations were to form the basis of her dismissal”.

“Indeed, it was not until the day of the hearing that the applicant understood that it was these allegations, and not the allegations made by the parent in the initial complaint, that formed the basis of her dismissal,” said the commission. “This prevented the applicant from putting her case as effectively as she otherwise might have.”

A spokesperson for Children First told SmartCompany a lesson from the case is that small businesses need to be careful while collecting evidence.

“To my mind, the issue is we made a decision based on the evidence in front of us. Meanwhile, the Fair work Commission made its decision based on the evidence we were allowed to present,” the spokesperson says.

“My advice to small businesses is to make sure they have adequate witnesses – and witnesses who are willing to testify before the Fair Work Commission.”

Employment lawyer Peter Vitale told SmartCompany businesses need to have appropriate processes for investigating accusations of misconduct.

“You have to be sure your process for investigating misconduct is appropriate and sufficiently establishes misconduct has actually occurred,” says Vitale.

“Secondly, it’s important employers have processes to put allegations of serious misconduct directly to employees, getting a response, then making a decision in regards to what disciplinary action is appropriate,” he says.

“That needs to have regard to the length of service, the seriousness of misconduct, what action the employer may have taken in action to similar misconduct from other employees, and making sure there’s a fair go between employer and employee.”

Coles has been found guilty of making false and misleading claims its bread was baked freshly in store, with the supermarket giant now facing penalties of up to $1.1 million per misrepresentation.

The decision was made by the Federal Court yesterday, although the Australian Competition and Consumer Commission began its proceedings against the company last June, when Coles declared it would “vigorously defend” the accusation.

The ACCC argued Coles had promoted its bread as "Baked Today, Sold Today" and "Freshly Baked In-Store" when the bread was actually partially baked and frozen in Ireland then transported to Coles stores and "finished" in store.

The court found such claims amounted to a misleading representation that the ‘par-baked’ bread products had been baked on the day of sale or baked in a fresh process using fresh not frozen product.

Coles yesterday released a statement which read: “In talking to customers about the ‘par-baked’ bread range we certainly never set out to deliberately mislead anybody but we completely accept that we could have done a better job in explaining how the products are baked.”

“Whether baked from scratch in-store or ‘par baked’ by our suppliers and finished in our ovens, our bread and baked goods are great quality products which taste great and are convenient for customers. They have won a number of awards around the country,” said Coles.

The company said it was already well advanced in changing product packaging and other information.

A hearing will be held in the Federal Court in Melbourne at a later date to determine the relief that will be ordered, with the ACCC seeking penalties, declarations, injunctions, costs and other orders.

The maximum penalty per misrepresentation contravention is $1.1 million.

Tony Smith, executive officer of the Baking Association of Australia, told SmartCompany the association welcomed the finding.

“When someone takes the easy way out and misleads people, then it puts a dent in the industry and a strain on the small businesses that actually get up early in the morning and bake their product from scratch, not just take them out of the packet,” says Smith.

Smith says Coles has numerous apprentice bakers under its wing and the finding leads the industry to wonder what the apprentices are being taught by the supermarket major.

Smith also says its leads him to wonder what ingredients are being used in the frozen products to keep their shelf life.

“It makes you wonder what else is being added. You can’t put a traditional loaf in the fridge like that, it’s a fresh product,” says Smith.

Smith says while consumers may think they’re getting a bargain on bread at the supermarket, they are actually getting inferior frozen products from overseas.

“While people are buying cheap bread, the smaller blokes doing it the genuine way, and employing the mums and dads of Australia, can’t keep their jobs because no one will buy their bread,” says Smith.

Smith says he hopes the ruling will inspire consumers to go back to their local bakery.

Hall & Wilcox partner Sally Scott previously told SmartCompany when making a decision about the branding, packaging and promotional activities, businesses must consider whether or not a claim is misleading.

“This will firstly involve consideration of the overall impression conveyed to consumers and secondly whether that overall impression is misleading,” said Scott.

“Failing to analyse whether there are misleading claims at this time will be fraught with risk. Indeed, it would be a brave or naive business that proceeds with branding, packaging or promotional activities without giving sufficient consideration to whether they are making misleading claims,” she said.

The Australian Communications and Media Authority (ACMA) has formally cautioned budget telco Dodo over its failure to warn customers who exceed their monthly data allowance.

The Australian government introduced new rules in September last year that require telcos to alert customers when they have used 50, 85 and 100% of their data or voice allowances in a billing period.

While research shows complaints from Aussies stung by extra data costs are on the rise, Dodo is the first company to be found to have breached the new rules.

Dodo failed to alert around 3300 of its fixed broadband customers in October 2013 and nearly 2000 fixed broadband customers during November 2013.

ACMA investigated seven large and medium telcos in a recent investigation, with only Dodo’s fixed broadband division falling foul of the new code.

Alan Chalmers, ACMA manager of consumer interests, told SmartCompany there has been excellent compliance across the industry, with most telecommunications companies exceeding the minimum requirements of communicating with their customers.

Chalmers says Dodo has worked swiftly to fix the IT faults responsible for preventing the alerts from reaching customers, while also compensating affected customers and capping excess usage charges.

“We were satisfied with Dodo’s response, which is why they only received a warning,” says Chalmers.

The formal warning is the first stage of a process ACMA goes through with telcos. Had Dodo not acted, they may have been liable for legal action.

Chalmers says many of the telcos have complicated IT systems with warning systems “just tacked on”, but most of the big players now had back-up systems in place to make sure their warning messages were delivered in the face of a technical breakdown.

“They’re taking their obligations very seriously,” he says.

Chalmers said that while only residential customers were affected in Dodo’s breach of the code, businesses should be aware there is no mandatory obligation for telcos to warn their corporate clients about data usage limits.

“I would anticipate some small business people, particular small small businesses, would be getting these types of alerts,” he says. “But the rules that allow users to check their usage themselves still apply.”

Chalmers says he urges business customers to be wary of their data limits and consider going up to the next level of data if they are exceeding limits each month.

“Our view is the people on included value plans are frequently incorrectly estimating their data requirements,” says Chalmers.

“More commonly if someone is using 2GB a month and there are on an included value plan which covers 1GB a month, then they are at risk of paying excess usage charges for the second GB.”

“There are enough pre-paid and stepped plans available that people have options to avoid excess usage charges,” he says.

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