Unravelling the muddles of summary dismissal under contracts of employment

This article seeks to address some fundamental errors in the application of contract law to disputes involving the summary dismissal of employees. The pre-existing law which arose out of the master servant era was not absorbed by the contract paradigm. Instead, remnants of the law remained and is still applied today. The decision of Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221 demonstrates this where the court relied upon concepts arising out of that time to justify the employer's decision to summarily dismiss an employee. The article also considers some more practical matters if the law was to be modernised to accord more strictly with contract principles. It may not necessarily lead to different outcomes, but it will lead to a more cohesive set of principles and avoid the often jumbled terminology used in employment law disputes.

Monitoring and incentives of executives in risky firms : a test of the association with firm performance

This study investigates the relationship between a firm's risk and the effectiveness of the firm's corporate governance practices. Previous research investigating the relationship between corporate controls and firm performance has been mixed and often weak. Therefore, this study sets out to determine the efficiency of monitoring and incentive contracts given certain characteristics of the firm. That is, the study sets out to determine whether risk firms with higher monitoring and levels of incentives are associated with higher firm performance.
The results of this study of 282 firms demonstrate how the relationship between firm risk and performance is associated with the monitoring and incentive contracts used by these firms. In particular, the results of this study showed that the negative association between risk and firm performance is weakened when firms have stronger monitoring and incentive mechanisms. The particular contribution of this study is to show that the role of corporate governance variables infirm performance should be evaluated in the context of the firm's risk.

Analysis of a large-scale IT outsourcing "failure": what lessons can we learn?

Much of the research that has been carried out into outsourcing is based on relatively successful case studies. Yet drawing inferences from case studies when those with largely negative outcomes rarely see the light of day represents a significant problem. When negative cases are systematically unrepresented, there is less opportunity to subject theory to scrutiny. This chapter goes some way towards redressing this trend, by reporting on a large scale “selective” outsourcing arrangement that has been publicly described as a failure — the Australian Federal Government’s “whole of government” IT infrastructure outsourcing initiative. This initiative, originally promoted as likely to lead to a billion dollar saving, was abandoned early in 2001, after a damning public report by the Australian Auditor General. However, a detailed study of the initiative suggests that the “failure” occurred despite the project adhering to many of the recommended guidelines for successful outsourcing that had been derived from earlier case analysis. The findings have important implications for decision makers confronted with outsourcing choices. The study suggests that the risks of outsourcing are often downplayed, or ignored in the rush to reap the expected benefits. The study also suggests that expectations of savings from outsourcing IT are often substantially higher than those that have been empirically confirmed in the field. Decision makers are advised that key assumptions about costs, savings, managerial effort, and the effects of outsourcing on operational performance might be incorrect, and to plan for their outsourcing activity accordingly. They should pay particular attention to coordination and transaction costs, as these tend to be overlooked in the business case. These costs will be magnified if “best in breed” multiple-vendor outsourcing is chosen, and if contracts are kept short. Decision-makers are also warned of the difficulties they are likely to have at the end of an outsourcing contract if there is not a large and robust pool of alternative vendors willing to bid against the incumbent.

An Analysis of the Association Between Firm Risk, Executive Share Options and Accounting Performance: Some Australian Evidence

This paper examines whether the financial performance of the firm is associated with the risk-taking propensity of executives, which is inferred from the structure of their share option portfolio. The objective of this paper is to determine if executives have greater risk bearing preferences when they have more share options than shares in their firm. In turn, executives' risk-taking preferences suggest that these decision-makers adopt value-increasing strategies. The results of this study support this notion. The results of the study of 182 Australian firms demonstrate that the negative relationship between firm risk and firm performance is weaker when executives hold a higher proportion of share options than shares in their investment in the firm. These results hold implications for executives' compensation contracts. That is, executives who share in their firms' risk via share options are more likely to undertake risky activities with high-expected performance outcome.

The application of the psychological contract to workplace safety

Introduction: Psychological contracts of safety are conceptualized as the beliefs of individuals about reciprocal safety obligations inferred from implicit or explicit promises. Although the literature on psychological contracts is growing, the existence of psychological contracts in relation to safety has not been established. The research sought to identify psychological contracts in the conversations of employees about safety, by demonstrating reciprocity in relation to employer and employee safety obligations. The identified safety obligations were used to develop a measure of psychological contracts of safety. Method: The participants were 131 employees attending safety training sessions in retail and manufacturing organizations. Non-participant observation was used to collect the data during safety training sessions. Content analysis was used to analyze the data. Categories for coding were established through identification of language markers that demonstrated contingencies or other implied obligations. Results: Direct evidence of reciprocity between employer safety obligations and employee safety obligations was found in statements from the participants demonstrating psychological contracts. A comprehensive list of perceived employer and employee safety obligations was compiled and developed into a measure of psychological contracts of safety. A small sample of 33 safety personnel was used to validate the safety obligations. Conclusions and impact on industry: Implications of these findings for safety and psychological contract research are discussed.

Predictors of job strain and intention to quit in a reorganised Australian workforce

This study examined the role of working conditions in predicting the psychological health, job satisfaction, organisational commitment and intention to quit of employees working in an industry sector that had undergone large-scale organisational change. The working conditions were assessed using an augmented job strain model- whereby job demand, job control and social support had been augmented by industry-specific stressors - and the psychological contract model. The results of regression analyses indicate that social support was predictive of all of the outcome measures. Job control and the honouring of psychological contracts were both predictive of job satisfaction and commitment, Furthermore, job satisfaction and organisational commitment were found to mediate the relationship between working conditions and intention to quit. Collectively, these findings suggest that strategies aimed at combating the negative effects of organisational change could be enhanced by addressing several variables represented in the models - particularly social support, job control and psychological contracts.

Isn't sport taxing? The taxation of sports professionals post-Agassi

In Agassi v Robinson (Her Majestyʹs Inspector of Taxes), a majority of the House of Lords found that payments under two sponsorship contracts between a company owned and controlled by Mr Andre Agassi, (Agassi Enterprises Inc) and Nike Inc and Head Sport AG were assessable under UK tax law. This was so despite (i) none of the parties to the contracts was resident, nor domiciled, in the United Kingdom and (ii) none of the payer companies conducted business, directly or indirectly, through branches/agencies in the United Kingdom. The article considers whether the Australian Taxation Office could similarly assess non‐resident sports‐persons, like Mr Agassi, personally, and/or entities they control, on payments made under sponsorship agreements with a company such as Nike Inc. While the preferable view is that such payments are not sourced in Australia, Australian source rules are so ill defined that there is some basis for asserting such payments are sourced in Australia.

Sources of well-being and commitment of staff in the Australian Disability Employment Services

This study examined the role of working conditions in predicting the psychological health, job satisfaction and organisational commitment of personnel responsible for helping people with disabilities gain employment in the mainstream Australian labour market. The working conditions were assessed using two theories: the Job Strain Model (job demand, social support and job control) and Psychological Contract Theory (unwritten reciprocal obligations between employers and employees). In the case of the Job Strain Model, the generic dimensions had been augmented by industry-specific sources of stress. A cross-sectional survey was undertaken in June and July 2005 with 514 staff returning completed questionnaires (representing a response rate of 30%). Comparisons between respondents and non-respondents revealed that on the basis of age, gender and tenure, the sample was broadly representative of employees working in the Australian disability employment sector at that time. The results of regression analyses indicate that social support was predictive of all of the outcome measures. Job control and the honouring of psychological contracts were both predictive of job satisfaction and commitment, while the more situation-specific stressors - treatment and workload stressors - were inversely related to psychological health (i.e. as concern regarding the treatment and workload stressors increased, psychological health decreased). Collectively, these findings suggest that strategies aimed at combating the negative effects of large-scale organisational change could be enhanced by addressing several variables represented in the models - particularly social support, job control, psychological contracts and sector-specific stressors.

Development and implementation of agri-environmental policy: english experience and lessons for Australia

In this article we consider what Australia can learn from English experience with regard to the design, implementation and evaluation of Agri-Environmental Policy (AEP). First, we examine the emergence of the
need for farmers to meet Good Farming Practice standards to receive AEP payments. This concept closely relates to the 'duty of care' idea in Australia. Second, we explain how contracts have been used to implement AEP identifying important issues in design. Finally, we consider the importance of benefit and costs estimates of AEP implementation in determining policy developments. We conclude with a summary of results for AEP design and implementation in Australia.

Procurement of construction facilities: a case study of design management within a design and construct organisation

Presents a case study of design management within an Australian design-construct organization on a large residential apartment project, with the purpose of identifying and analysing issues associated with the organization, responsibilities and stages of development in a typical design-construct project. Discusses the nature of introspection in the Australian construction industry, the shift in procurement methods, the design and build approach, whole life issues, the need for a design manager, and the role of the facilities manager. Profiles the case study organization and its contracts and procurement methods, before focusing on weaknesses in the company, the role of the project design development manager in leading the design team, managing the design consultants, and interacting and advising the developer in relation to design decisions. Suggests from the exercise that: the project manager should remain the overall project leader, manager and interface between design, cost, programme, buildability, construction and user requirements; the design manager should be responsible for issuing all documentation; and the design cost manager should be responsible for verifying that the design developed accords with project budgets, project brief and quality requirements in conjunction with the design manager.

Prevalence of health promotion policies in sports clubs in Victoria, Australia

In recent years, some health agencies offered sponsorship to sporting associations to promote healthy environments by encouraging clubs to develop health-related policies. However, the extent to which these sponsorship contracts reach their stated aims is of concern. This study aimed to quantify levels of policy development and practice in sports clubs for each of five key health areas, namely smoke-free facilities, sun protection, healthy catering, responsible serving of alcohol and sports injury prevention. Representatives from 932 Victorian sports clubs were contacted by telephone with 640 clubs (69%) participating in the survey. Results suggested that the establishment of written policies on the key health areas by sports clubs varied widely by affiliated sport and health area: 70% of all clubs with bar facilities had written policies on responsible serving of alcohol, ranging from 58% of tennis clubs to 100% of diving and surfing clubs. In contrast, approximately one-third of sports clubs had a smoke-free policy, with 36% of tennis, 28% of country football and 28% of men's cricket clubs having policy. Moreover, 34% of clubs overall had established sun protection policy, whereas clubs competing outside during summer months, [diving (86%) and life-saving (81%)] were most likely to have a written sun protection policy. Injury prevention policies were established in 30% of sports clubs, and were most common among football (56%), diving (43%) and life-saving (41%). This study suggests that policy development for health promotion can be achieved in sports clubs when it is well supported by health agencies and consideration is given to the appropriateness of the specific behaviours to be encouraged for a given sport. Communication between associations and clubs needs to be monitored by health agencies to ensure support and resources for policy development to reach the club level.

New dog, old tricks : solving a conflict of laws problem in CISG arbitrations

Parties to international sale of goods transactions often exercise their rights to choose a governing law and refer disputes to arbitration . Where their choice is incomplete, as is the case where the contracts for the International Sale of Goods (CISG) is chosen, complex conflict of laws problems can arise, including disputes over the governing limitation period. While such disputes are traditionally resolved using conflict of laws methodologies, this article argues a superior solution can be achieved through procedural late. Through a simple discretion, arbitral tribunals may apply the limitation period from either the International Institute for the Unification of Private Law (UNIDROIT) Principles 2004 or the UN Limitation Period Convention. Such an approach makes determination of the governing limitation period a simpler process, allowing parties to focus their attention on what they are really concerned with—the merits.