Opting out of shareholder governance rights: a new perspective on contractual freedom in Australian corporate law

One of the classic debates in corporate law relates to whether the rules of corporate law are ar should be 'mandatory', in that companies must comply, or 'enabling' - meaning a set of default rules which companies have the choice of adopting or 'opting out' of through alternative contractual arrangements. The so-called 'mandatory/enabling' debate has been especially prominent in the United States fro numerous reasons, yet has also received some attention in Australia. That said, the extent to which companies can 'opt out' of corporate law has rarely been considered as a practical issue in Australia - particularly whether Australian companies can 'opt out' of provisions under the Corporations Act ("the Act"). However, just recently, two high-profile events in Australia have made 'opting out' of corporate law a relevant issue, especially the question of whether companies are free to 'opt out' of provisions of the Corporations Act  which provide express governance rights to shareholders. These events were Boral's constitutional amendment in 2003 to restrict the ability of shreholders to propose amendments to the company's constitution, and the contemplation and introduction of so-called 'pre-nuptial' agreements- designed to by-pass the right of shreholders to vote on removing directors in public companies. In the light of these two recent events, in this article the authors revisit the mandatory/enabling debate. However, rather than going over old ground as to whether a mandatory or enabling approach to corporate regulation is desirable, the authors approach the issue from a fresh perspective: that Australian Securitiesand Investments Commission's ("ASIC") existing relief powers under the Act should be extended to provide a means for companies to opt out of provisions containing shareholder governance rights.

People, power and public relations

Public relations is conventionally viewed from a corporate perspective. However, recent events in Victoria have illustrated the fact that grassroots activism holds an increasing share of public relations expertise. In contemporary Victoria civil activism has advanced a long way from traditional adversarial NIMBY (Not In My Back Yard) campaigns and has succeeded in generating both social and cultural change. How does a civil activist approach the complex problem of public relations? How do they convince publics their arguments are in the interest of the whole community? Is it is a question of mimicking corporate techniques or has a new style of public relations evolved specific to their needs? This paper examines a case study in which an outer- suburban grassroots activist group effected significant change in state government and corporate policy. The results challenge the view that public relations is the exclusive tool of large corporations and governments and calls for a redefinition of ‘what is public relations’?

Chinese consumers' perceptions of country design, assembly and parts capabilities : does country considered or consumer acculturation matter?

Chinese consumers are facing a diverse range of choices in regards to products produced wholly or in part overseas or by overseas corporations based in China. This study examines how consumers from China, both residing at home and abroad, perceived capability of Germany, Japan, US and China in regard to three dimensions of country capabilities- design, assembly and parts/components. The findings show that consumers have different perceptions concerning country capabilities and that Chinese consumers residing overseas appear to have more positive perceptions of foreign countries’ capabilities.

Comparing codes of ethics among the top companies in Australia, Canada and the USA

In the twentieth century, industrialized economies around the world enacted legislation to protect free and fair trade. These legislative initiatives were often precipitated by exposure to unethical business practices. With the fairly recent corporate business scandals around the world, ethics is once again at the forefront of concerns about commercial exchanges. This situation has become more complex with the globalization of commercial trade. Subsequently, there have been various attempts by international organizations to regulate the conduct of global corporations. One key technique to try to regulate the conduct of corporation is the use of codes of ethics. This study examines corporate codes of ethics and the measures in place to communicate the ethos of the codes to both internal and external stakeholders in three countries. A questionnaire that was non-sponsored and unsolicited was sent to the top companies operating in the private sector within Australia, Canada and the USA. Nine key areas of corporate ethics are examined and they are divided into two categories as follows:

Regulation
Consequences for a Breach
Ethical Perfonnance Appraisal
Conduct Ethical Audits

Staff Support
Support of Whistle blowers
Guide to Strategic Planning
Ethics Committee
Ethics Training Committee
Staff Training
Ethics Ombudsman.

Managing sport in drought-new stakeholders and new governance issues : a case study

Globally, almost every nation is facing some form of water crisis (World Commission on Water 2000). In Australia, the sport and recreation industry is one of the highest consumers of water. Other high water consuming industries (such as agriculture and farming) have been forced to adhere to strict managerial and governance reform due to the water crisis, yet in the sport and recreation industry, such changes are yet to be implemented and fully realised across the sector.

This research examines the impacts of drought and sustainable water management for sport and recreation. Specifically, it provides a case study of sport and recreation provision in a municipality that has already undergone considerable reform due to long-term drought. Sport and recreation use water for purposes such as irrigation of playing fields/pitches, filling swimming pools, stadium amenities and facilities, kitchens, maintenance and cleaning, and clubhouse amenities.

For sports that are heavy users of water for the maintenance of playing fields (such as soccer, Australian Rules football, rugby league, rugby union, grass and clay tennis courts to name a few) the impacts of drought and water restrictions have been severe. Some sports have reported an increase in the risk of injury to participants because of the condition of un-watered playing fields (Sport and Recreation Victoria 2007). Others have been forced to delay or shorten their seasons (Sleeman 2007), or worse still, cancel training and organised competition completely (Connolly and Bell 2007). While the impact of water restrictions has been profound on most sports, there are some sports that are not heavy water users and the impact of drought and water restrictions has been minimal. This problem creates issues and apparent inequities raising the need to further examine water consumption in sport and recreation. The potential outcome that arises is that the future of those sports that cannot conduct their competitions may be disadvantaged, while other sports that do not have such problems may be able to flourish.

Water, and those who control the supply of it, then defines which sports are able to flourish and sustain sport development pathways, compared to those whose survival may be in jeopardy. This research explores the stakeholder management and governance issues that have resulted for sport and recreation in the City of Greater Geelong (CoGG) located in Victoria, Australia--a region in long-term water crisis. The supply of sport and recreation facilities in the CoGG (like most municipalities in Australia) is largely the responsibility of the municipal council. The corporation responsible for the supply of water to the municipality is Barwon Water.

Although other sport and recreation facilities exist in the CoGG, the municipal council of CoGG owns and maintains over 120 sporting ovals (including the stadium used by its professional Australian Football League (AFL) team, the Cats), six swimming pools, and three golf courses. The CoGG host their professional AFL team, a range of local, national and international sport events, and provide a wide range of sport and recreation facilities for the community residents.

Eight interviews were conducted in total. Interviews were conducted with representatives from CoGG municipal council (who are responsible for the delivery of sport and recreation services and facilities in Geelong), and representatives from Barwon Water (who are responsible for the ongoing provision and maintenance of sport and recreation services and facilities) through the provision of water. Results show that the ten highest users of water in the municipality are sport and recreation facilitieswhich between them use almost one-third of the city's total water consumption (City of Greater Geelong 2006).

The municipal council is under considerable pressure to find ways to continue to provide sport and recreation opportunities for community members, as well as professional athletes and teams who use these facilities despite water restrictions. After all, these facilities provide benefit to spectators and participants, as well as businesses that rely on visitors to Geelong for sport and recreation events.

Due to such pressures, from 2007, the CoGG and Barwon Water agreed to provide the sport and recreation sector with water allocations rather than to be denied of all water under the water restriction regimes in place in the municipality. During 2007 summer sport season, this allowed the CoGG to keep 16 of its 120 sporting ovals open for participation through allocating all available water to these fields in order to keep them safe and playable. However, CoGG and Barwon Water were required to devise a rating scale to determine which sports (and sport facilities) were to share the allocated water, and which were not. These decisions also had knock on effects through sports. In order to ensure the safety of the playing surfaces, the CoGG and Barwon Water also restricted use of fields to competition only, therefore sport participants were forced to train on local beaches and other parkland areas-transferring issues of safety and public liability to other locations and facilities in the community. Further, it was reported that scheduling of competition seasons and individual matches; as well as the allocation of "home ground" gate receipts and concessions profits were required to be governed by the CoGG and Barwon Water as the competing sports were unable to agree. Perhaps more importantly, the rating scale developed for water allocation also resulted in some sports being rated as ineligible for water and as a result were unable to stage their entire competitions.

Clearly, the water allocation rating scale, and approach taken in this municipality to the continued delivery of sport and recreation has provided a workable solution. However, this study also signals that new stakeholders have entered the arena for the governance of sport. Governance structures in sport and recreation are being impacted as a result of the water crisis.

Those making decisions about which sport and recreation activities and/or facilities will be assisted with water resources are being made by local councils and water corporations. Sport managers are being required to understand existing areas of knowledge (such as turf management) in different ways, to gain knowledge in new areas (such as sustainable water management), and to lobby new stakeholder groups (such as water corporations) in order to secure their futures. The continued existence of some sports is no longer in the hands of governing bodies, but in the hands of local councils, and water corporations.

Clearly, any of the solutions implemented as discussed above, require multiple stakeholders to interact, and to reach agreement in order to assist in sustainable management of water in sport and recreation. In this sense, the management of water in sport (and all other industries) is more than a rational decision about policy, legislation, restrictions and resource allocations. It is a social and political process requiring scholarly attention for practical solutions.

International standards of business conduct: framework and illustration

Purpose: – The purpose of this paper is to describe the insights and a proposal into the structure of standards of business conduct and its intended applications.

Design/methodology/approach: – The case study is based upon an inductive content analysis of corporate ethics artefacts.

Findings: – It is concluded that the standards of business conduct may be highly prescriptive in world wide corporations, but that there should be an explicit commitment to a flexible and dynamic approach to the application of standards of business conduct.

Research limitations/implications: – An examination of the actual behaviour of a corporation's operations was beyond the scope of the present research, but such a study has potential for future research. This would open up the wider question of how corporations can minimise the gap between corporate intentions and actual outcomes in business operations across national and cultural boundaries.

Practical implications: – These diverse national and cultural contexts that world wide corporations encounter must be taken into consideration in the content of their standards of business conduct.

Originality/value: – The authors emphasise the concern of recognising that the contexts surrounding standards of business conduct are dynamic. Corporate codes of ethics should be regarded as dynamic artefacts. A framework of application is proposed.

Communicating the ethos of codes of ethics within the organization : a comparison of the largest private sector organizations in Sweden and Turkey

Purpose – The purpose of the paper is to examine the ways that the largest private sector organizations in Sweden and Turkey communicate the intent of their codes of ethics to their employees.

Design/methodology/approach – Primary data were obtained via a self-administered mail questionnaire distributed to a census of the top 500 private sector organizations based on revenue in each country.

Findings – The research identified some interesting findings that showed that the small group of companies in Turkey that have a code may appear to be more “advanced” in ethics artifacts usage than Sweden. Such a conclusion is counter-intuitive as one would have expected a developed nation like Sweden to be more advanced in these measures than a developing nation such as Turkey. Culture may play a large role in the implementation of ethics artifacts in corporations and could be a major reason for this difference.

Research limitations/implications – As this is such a new area of investigation in Turkey, the responses amount to only 32 companies that have a code. The small sample is indicative of the formative evolution toward having codes of ethics within companies operating within Turkey.

Practical implications – This study enables those organizations that comprise corporate Turkey to view the current state of codes of ethics in Turkish companies and to compare these with the responses of a developed country of the European Union. Originality and value – A review of the literature indicates that this is the first time that such an international study specifically focused upon codes of ethics and the artifacts to inculcate the ethos of the code into every day corporate affairs has included Turkey as one of the participating countries.

Reflexive and critical views of leadership performance in corporate accomplishment : framework and illustration

Purpose – This paper intends to shed some light on the relationship between leadership performance and corporate accomplishment through the aid of complexity sciences. The objective is to describe leadership performance in corporate accomplishment using different teleological approaches.

Design/methodology/approach – The paper discusses the underlying criteria of the relationship between leadership performance and corporate accomplishment. Case illustration and narrative analogy are also provided.

Findings – The authors believe that the discussion highlights a potential downside of leadership performance in corporate accomplishment and its precision rarely highlighted in practice and literature.

Research limitations/implications – There is a reigning assumption in management practice that is based on the belief that a top-down approach of leadership performance in management and business practices is superior to the bottom-up approach. It proffers the assumed importance of strategic management issues, but neglects the knowledge, experience, competence and awareness inherent among employees at tactical and operational levels of business practices. It also proffers a mechanical view of employee performance and ignores the worth of the generation of ideas from subordinates in management and business practices that contribute to corporate achievements. Furthermore, it neglects the fact that it is not possible to know the future nor it is predictable.

Practical implications – The paper contends that the importance of top management tends to be inflated in respect to corporate achievements in the management/leadership literature. It also contends that it should be questioned as to whether the top management of corporations are largely responsible for the corporate results on which they attempt to justify their salaries and other benefits. Furthermore, the paper contends that it also should be questioned as to what extent corporate accomplishment may be derived from the performance of the top management in organizations.

Originality/value – The paper strives to contribute to the ongoing discussion of leadership performance in corporate accomplishment in various ways. The principal contributions are: a set of teleological sub-processes of leadership performance and a case illustration and narrative analogies of teleological leadership performance patterns, in respect to corporate accomplishment in management and business practices. These contributions provide theoretical and managerial ideas and insights to anticipate and avoid deficient or erroneous grounds of leadership performance evaluation in corporate accomplishment.

Organisation change and its impact on Australian Building Societies' performance

The paper examines the relation between changing ownership structure and performance of Australian building societies. An analysis and discussion of the theories of organizational development and change is undertaken to explore the mutual building societies' motivation for change. The financial performance measures, provided by financial ratios of the major mutual building societies in Australia, are examined to assess the behaviour of building societies under different governance structures in the 1980s and 1990s. The theoretical and empirical literature has suggested that mutual deposit-taking institutions should have lov^^er profitability and higher operating expenses than their publicly listed counterparts. Accounting ratios are observed over time to investigate if governance change in mutual deposit-taking organizations accounted for any discernable differences in profitability and cost efficiency pre- and post- demutualization. The study finds support for the contention that demutualized building societies will have higher profitability and lower costs than their mutual counterparts. The study is confined to investigation of the six largest building societies that undertook the demutualization process. It could he extended to the entire building society sector. The results have implications for investors, managers and 'ovraers' of firms that retain their mutual structure, suggesting the demutualization vnû benefit these groups. There is no study that compares mutual deposit-taking institutions pre- and post-conversion in Australia.

Can universities be good corporate citizens?

As universities respond to a prolonged period of economic rationalism there appears to be resignation, for the most part, that the role of a university is not what it once was. By adopting the operational strictures of economy, efficiency and performance, many universities are behaving like and being run as though they were a business. The term ‘corporate university’ now carries much meaning and has been the subject of significant discourse over the last decade. Resource limitations, political influences and competitive pressures are commonplace with implications for the way in which a university can fulfil a role in society, however that is defined. In this paper we consider the notion of corporate citizenship and ask whether this concept is relevant to the role of a university in Australia and New Zealand. In these countries universities are substantially (although progressively less so) funded by the government and are public service entities. The application of corporate citizenship to universities serves to highlight the duality of these institutions, which operate like corporations, and yet have more obvious historically based obligations to society. The comparison also suggests that as corporations are becoming more aware of the long-term benefits of a societal role for business entities that universities appear to be moving in the opposite direction. With a few exceptions academics have been reluctant to engage in public debates. They have progressively lost control of their working environment. The risk is that the public interest will have no place in the corporatised university of the 21st century unless academics increase their critic and conscience activities.

Codes of ethics artefacts in Australia, Canada and Sweden : a longitudinal study

It would appear that corporations operating in Sweden have embraced the ethos of codes of ethics differently to their Canadian and/or Australian counterparts and that in each culture the way that companies fashion their approach to business ethics appears to be in line with their national, cultural values.

Principles of business law

Contents: 1. Development and overview of the Australian legal system -- 2. An introduction to the law of contract -- 3. Intention -- 4. Consideration -- 5. Capacity -- 6. Genuine consent -- 7. The contents of the contract -- 8. Termination -- 9. Remedies -- 10. The tort of negligence and liability for pure economic loss -- 11. Agency -- 12. Partnerships -- 13. An overview of business organisations -- 14. The day-to-day existence of business corporations -- 15. Trusts.

Consideration of corporate social orientation in managing sport organisations' internal stakeholders

Increasing pressure from the public has raised the expectations on corporations to be better citizens of their communities and society as a whole (Bennet 2002; Carroll 1999; Epstein 1989; Van Marrewijk 2003; Wood 1991). As a result, corporations have engaged in corporate social responsibility efforts with most of the subsequent research focused on its impact on consumer response (e.g., attitudes, behaviours, etc.) (Bhattacharya & Sen 2001, 2004; Porter & Kramer 2002). Similarly, research interest on corporate social responsibility in the sport industry has risen, yet no research studies have explored the influence and perceptions about corporate social responsibility of important internal constituents (employees and volunteers) of sport organisations. Particular interest would be in uncovering what employees and volunteers specifically believe are important among CSR elements (ethical, discretionary, legal, economic) and what impact a sense of 'shared CSR values' with the respective sport organisation would have on employee and volunteer response. Will understanding how shared social values influence organisational commitment provide insight on recruitment, retention and/or development strategies of employees and volunteers? Further, assessing any difference in sensemaking between these two groups would be of additional value to this line of enquiry, as the perceptions of the organisation are understood as "tantamount to reality, since organisations are social constructions made up of and acting in accordance with shared perceptions," (Brickson 2007, p. 865) particularly those of employees and volunteers of sport organisations. With increasing academic and industry interest of corporate social responsibility in sport and to address the obvious gap on CSR and employees and volunteers in the literature, the present study will explore how CSR impacts internal constituents (employees and volunteers) of sport organisations. Specifically, the main purpose of the present study is to assess the level of perceived shared values as they related to CSR (measured as corporate social orientation) between employees- organisation and volunteers- organisation. Further, the influence of the level of perceived shared corporate social orientation (CSO) on organisational identification will be evaluated in the context of a proposed model, which includes the relationship of perceived shared corporate social orientation>organisational identification> attitudinal and behavioural outcomes (i.e., commitment, satisfaction, and organisational behaviour). Using a sample of employees and volunteers of a sport organisation, the respondents will be asked to complete an online survey composed of demographic items, the corporate social orientation scale, and items that measure organisational identification, value commitment, job/ volunteer satisfaction, and organisational citizenship behaviours. Discussion of how other stakeholder (e.g., sponsors, consumers, etc.) perceptions on CSR potentially impacts the model and outcomes (e.g., corporate reputation, consumer behaviour) will be addressed. Analyses and results will support discussion and conclusions made to provide evidence for practitioner and researcher implications.

Back to basics : breakthrough proposals for the Australian environment

In this book Dr Geoff Wescott proposes a new approach to environmental decision making. He suggests we move forward from relying solely on individual virtuous action to improve our environment. He argues that the time has come to get ʻback to basicsʼ: for governments to be decisive and courageous and make positive environmental decisions in the interests of their current and future constituents rather than continue to be locked into short term decision making at the beck and call of corporations and large political donors.

Segment reporting and corporate takeovers : user needs

The nature of a corporate takeover often leads to the contraction in the number of companies operating in a given industry classification, along with the contraction in the amount of formal financial statements produced by the companies in that industry. Since 1985 Australian diversified companies are required to break their operations down into industry and geographical segments, so it would be expected that companies which diversify their operations through a corporate takeover would be forerunners in the adoption of this relatively new accounting standard on segment reporting. While previous studies have both declared the benefits of segment reporting to report users, and exposed some preconceived problems of its application in practice, there has not been any work on the 'usefulness1 of segment reporting as a form of reporting that will compensate shareholder users for the information loss suffered during a corporate takeover. This study endeavours to determine this, by questioning shareholders of companies that have been involved in takeovers in a period subsequent to the application date of the segment reporting standard, and obtaining their views on the usefulness of the post-takeover segment reports produced by their companies. A link is discovered to exist between shareholder dissatisfaction with segment reporting and the non-practice of creating a new segment in the post-takeover annual report for the target acquired. The underlying assumption that the practice of new segment creation after a takeover is influenced by the type of takeover undertaken is supported by the study. Regardless of whether or not a company is diversified before the takeover, the findings show that a corporate acquirer in a takeover is less likely to create a new industry or geographical segment for the target acquired if they are involved in horizontal or vertical takeovers than if they are involved in diversified takeovers. In these situations, segment reporting is found to not compensate shareholders for the loss of information incurred by them in these types of takeovers.