Models for reform : the directors’ duty of care in a modern commercial world

The Australian responses to corporate collapses in the modern commercial world have been
implemented at both judicial and legislative levels over a period of decades. South Africa has lagged behind the reform process, only recently reviewing its company laws with a view to legislatively incorporating, inter alia, its directors’ duties. The consequence of such review of the duty of care is found in subsection 76(3)(c) of the Companies Act 71 of 2008. This article critically evaluates the existing South African common law and the new legislative directors’ duty of care in light of the equivalent duties in Australia and the United States. The analysis ultimately aims at determining whether the approach taken in any of these jurisdictions provides useful guidance in regard to reform options for the duty of care. While the Companies Act contains features that are preferable to the Australian Corporations Act 2001, the impact of the Companies Act on crucial features, such as the objectivity of the duty of care, is unclear and will have to await judicial review. It is concluded that while the South African measures at times echo Australian law in a positive manner, the Australian legislative regime is not without legitimate criticism as it can be unnecessarily complicated. Ultimately it is the United States and Australian common law duty of care that provides the best model for legislative reform.

The new law of torts: case book

The New Law of Torts Case Book is a collection of edited cases, designed as a companion to The New Law of Torts textbook. It provides students with access to a carefully selected range of case extracts of seminal judgements that have created and shaped the modern law of torts, provides examples of judicial reasoning and illustrates approaches to doctrines that govern the interpretation and construction of statutes. Cases extracted in this volume allow the readers to form their own opinions and perspectives on themes and issues presented in the textbook. New to this edition Expanded collection of case extracts that mirror the table of contents of principles text. Recent key cases that have been added include: Wallace v Cam [2013] HCA19 – relates to remoteness of damage and causation and proof of breach Strong v Woolworths [2012] HCA 5; 246 CLR 182 – relates to Breach of Duty of Care and Causation and Proof of Breach Levy v Watt and Anor [2014] VSCA 60 – relates to Torts of Intentional Interference with Goods and Personal Property and Defences to Intentional Torts

Intensity and authenticity: the duty to give real and genuine consideration in the context of superannuation trusts

 This article critically examines the suitability of the duty of a trustee to give real and genuine consideration when exercising discretionary powers in superannuation or pension trusts. The article reviews the rearticulation by the Australian High Court in Finch v Telstra of a ‘more intense’ real and consideration duty for superannuation trustees. It argues that this revised duty should be regarded as a temporary solution because longer term, the unique legal structure and social context of the superannuation trust demands judicial implementation of a substantively new, multilayered obligation that promotes reasonable, fair, and informed decision-making.

Intendedness of pregnancy among active duty women in the U.S. Army

Objective. The objective of this study was to determine the prevalence of unintended pregnancy and the association between social and demographic factors among a population of active duty women in the U.S. Army giving birth to viable infants at a U.S. Army hospital at Fort Hood, Texas. Prevalence of unintended pregnancy in this group was 50.9% (95% CI 44.0 to 57.9) with 36.3% being mistimed (95% CI 29.8 to 33.2) and 14.6% being unwanted (95% CI 10.2 to 20.1). A further 14.2% of the women experienced ambivalence (95% CI 9.8 to 19.6). ^ The study population was a cross-sectional group of active duty pregnant women who represent the target population of all female soldiers that deliver viable infants in the Army. Using a survey based on previous studies, intendedness of pregnancy at conception was retrospectively determined. Unintended births are further characterized as mistimed or unwanted. Demographic and other exposures were described bivariately. Associations were evaluated using measures of relative risk and chi-square analysis. ^ The results of the research indicate that in the study population, race/ethnicity is not associated with unintended pregnancy and non-commissioned officers had a lower rate of unintended pregnancy than other rank groupings. ^

Managing university records and documents in the world of governance, audit and risk: Case studies from South Africa and Malawi

There are enormous benefits for any organisation from practising sound records management. In the context of a public university, the importance of good records management includes: facilitating the achievement the university’s mandate; enhancing efficiency of the university; maintaining a reliable institutional memory; promoting trust; responding to an audit culture; enhancing university competitiveness; supporting the university’s fiduciary duty; demonstrating transparency and accountability; and fighting corruption. Records scholars and commentators posit that effective recordkeeping is an essential underpinning of good governance. Although there is a portrayal of positive correlation, recordkeeping struggles to get the same attention as that given to the governance. Evidence abounds of cases of neglect of recordkeeping in universities and other institutions in Sub-Saharan Africa. The apparent absence of sound recordkeeping provided a rationale for revisiting some universities in South Africa and Malawi in order to critically explore the place of recordkeeping in an organisation’s strategy in order to develop an alternative framework for managing records and documents in an era where good governance is a global agenda. The research is a collective case study in which multiple cases are used to critically explore the relationship between recordkeeping and governance. As qualitative research that belongs in the interpretive tradition of enquiry, it is not meant to suggest prescriptive solutions to general recordkeeping problems but rather to provide an understanding of the challenges and opportunities that arise in managing records and documents in the world of governance, audit and risk. That is: what goes on in the workplace; what are the problems; and what alternative approaches might address any existing problem situations. Research findings show that some institutions are making good use of their governance structures and other drivers for recordkeeping to put in place sound recordkeeping systems. Key governance structures and other drivers for recordkeeping identified include: laws and regulations; governing bodies; audit; risk; technology; reforms; and workplace culture. Other institutions are not managing their records and documents well despite efforts to improve their governance systems. They lack recordkeeping capacity. Areas that determine recordkeeping capacity include: availability of records management policy; capacity for digital records; availability of a records management unit; senior management support; level of education and training of records management staff; and systems and procedures for storage, retrieval and dispositions of records. Although this research reveals that the overall recordkeeping in the selected countries has slightly improved compared with the situation other researchers found a decade ago, it remains unsatisfactory and disjointed from governance. The study therefore proposes governance recordkeeping as an approach to managing records and documents in the world of governance, audit and risk. The governance recordkeeping viewpoint considers recordkeeping as a governance function that should be treated in the same manner as other governance functions such as audit and risk management. Additionally, recordkeeping and governance should be considered as symbiotic elements of a strategy. A strategy that neglects recordkeeping may not fulfil the organisation’s objectives effectively.

Nonprofit Boards in Australia: A Distinctive Governance Appoach

This article reports the findings into patterns of governance on nonprofit boards in Australia. The research surveys 118 boards, upon which serve a total of 1405 directors. The findings indicate that nonprofit boards can mimic some aspects of a shareholder approach to governance. But nonprofit boards, in the main, indicate priorities and activities of a stakeholder approach to governance. The features of `isomorphism' that arise largely stem from legislative requirements in corporate governance. Generally, nonprofit directors are influenced by agenda and motivations that can be differentiated from the influences upon director activity in the corporate sector. The study indicates that nonprofit boards prize knowledge and loyalty to the sector when considering board composition. The survey suggests nonprofits ``compensate'' for the demands placed upon them about fiduciary duty and due diligence responsibilities with the diverse intellectual expertise of non-executive directors. Nonprofit boards possess greater diversity than boards in the corporate sector; they include more women as directors than corporate boards and they include a greater proportion of directors from minority groups. While strategic issues feature significantly as a task of the nonprofit board, they distinguish themselves from their corporate counterparts by engaging in operational management. The findings indicate that, in the main, directors on nonprofit boards deliberate and operate in ways distinctive from their corporate counterparts. Such findings offer a contribution to the reform of Corporations Law in other countries and the likely consequence on boards outside the corporate sector.

Quantification of motor vehicle emission factors from on road measurements

Assessment and prediction of the impact of vehicular traffic emissions on air quality and exposure levels requires knowledge of vehicle emission factors. The aim of this study was quantification of emission factors from an on road, over twelve months measurement program conducted at two sites in Brisbane: 1) freeway type (free flowing traffic at about 100 km/h, fleet dominated by small passenger cars - Tora St); and 2) urban busy road with stop/start traffic mode, fleet comprising a significant fraction of heavy duty vehicles - Ipswich Rd. A physical model linking concentrations measured at the road for specific meteorological conditions with motor vehicle emission factors was applied for data analyses. The focus of the study was on submicrometer particles; however the measurements also included supermicrometer particles, PM2.5, carbon monoxide, sulfur dioxide, oxides of nitrogen. The results of the study are summarised in this paper. In particular, the emission factors for submicrometer particles were 6.08 x 1013 and 5.15 x 1013 particles per vehicle-1 km-1 for Tora St and Ipswich Rd respectively and for supermicrometer particles for Tora St, 1.48 x 109 particles per vehicle-1 km-1. Emission factors of diesel vehicles at both sites were about an order of magnitude higher than emissions from gasoline powered vehicles. For submicrometer particles and gasoline vehicles the emission factors were 6.08 x 1013 and 4.34 x 1013 particles per vehicle-1 km-1 for Tora St and Ipswich Rd, respectively, and for diesel vehicles were 5.35 x 1014 and 2.03 x 1014 particles per vehicle-1 km-1 for Tora St and Ipswich Rd, respectively. For supermicrometer particles at Tora St the emission factors were 2.59 x 109 and 1.53 x 1012 particles per vehicle-1 km-1, for gasoline and diesel vehicles, respectively.

Statutory protections from forfeiture of a leasehold estate following Apriaden Pty Ltd v Seacrest Pty Ltd

In Apriaden Pty Ltd v Seacrest Pty Ltd the Victorian Court of Appeal decided that termination of a lease under common law contractual principles following repudiation is an alternative to reliance upon an express forfeiture provision in the lease and that it is outside the sphere of statutory protections given against the enforcing of a forfeiture. The balance of authority supports the first aspect of the decision. This article focuses on the second aspect of it, which is a significant development in the law of leases. The article considers the implications of this decision for essential terms of clauses in leases, argues that common law termination for breach of essential terms should be subject to compliance with these statutory requirements and, as an alternative, suggests a way forward through appropriate law reform, considering whether the recent Victorian reform goes far enough.

Manufacturing challenges with fabrication of large size mechanical harmonic drives

In truck manufacturing, the exhaust and air inlet pipes are specialized equipment that requires highly skilled, heavy machinery and small batch production methods. This paper describes a project to develop the computer numerically controlled (CNC) pipe bending process for a truck component manufacturer. The company supplies a huge range of heavy duty truck parts to the domestic market and is a significant supplier in Australia. The company has been using traditional methods of machine assisted manual pipe bending techniques. In a drive of continuous improvement, the company has acquired a pre-owned CNC bending machine capable of bending pipes automatically up to 25 bends. However, due to process mismatch, this machine is only used for single bending operation. The researchers studied the bending system and changed the manufacturing process. Using an example exhaust pipe as the benchmark, a significant drop of manufacturing lead time from 70 minutes to 40 minutes for each pipe was demonstrated. There was also a decrease of material cost due to the multiple bends part in one piece without cutting excessive materials for each single bend like it used to be.

Cyberbullying : the new face of workplace bullying?

While the subject of cyberbullying of children and adolescents has begun to be addressed, there has been less attention or research on cyberbullying in the workplace. Whilst male-dominated workplaces such as manufacturing settings have been found to have an increased risk of workplace bullying, the prevalence of cyberbullying in this sector is not known. This exploratory study investigated the prevalence and methods of face-to-face bullying and cyberbullying of males at work. One hundred and three surveys (a modified version of the NAQ-R1), were returned from randomly selected members of the Australian Manufacturing Worker’s Union (AMWU). The results showed that 34% of the respondents were bullied face-to-face, and 10.7% were cyberbullied. All victims of cyberbullying also experienced face-to-face bullying. The implications for organisations of their “duty of care” in regards to this new form of bullying are indicated.

Application of system dynamics for evaluating truck load regulations in Anhui, China

In the critical situation of prevailing overweight transportation and crag-fast enforcement in Chinese highway networks, this paper develops a methodological framework for truck weight regulation (TWR) evaluation using System Dynamics (SD). Composed of five interrelated subsystems, the framework is able to capture the highway, vehicle and freight variables that influence the effect of TWR and transportation efficiency over time. It specifically describes the development and use of the Truck Weight Regulation Evaluating Model (TWREM) for the highway freight system in Anhui province, China. Three policy alternatives are analyzed: 1) tolerant policy approach, which allows heavy-duty freight activity to continue in its current state, and is shown to lead to nearly catastrophic results; 2) rigid policy approach, which would terminate all heavy-duty freight activities immediately, and is shown to be economically infeasible; and 3) moderate policy approach, which advocates a gradual reduction of heavy-duty freight activities to a moderate state. The simulation results shows that the moderate policy approach is the most appropriate option to solve the social and economic problems arising from the activities of the heavy-duty freight transportation in Anhui. In addition, some suggestions of TWR policy in China are also made in this paper.

Behaviour disorders and teacher negligence

The purpose of this paper is to examine the legal implications of the continuing rise in the number of school children diagnosed with behaviour disorders. Not only are teachers now subject to a dense grid of legal regulation, they are also increasingly vulnerable to actions in tort. It will be argued here that as more and more children are labelled ‘disordered’, the duty of care become more onerous, and hence harder for teachers to meet. As a consequence, teachers are more likely to face claims of negligence. It is concluded that while the schooling system needs to retain a healthy scepticism about each new pathologising disorder that seeks special status for its sufferers, it also needs to provide greater training and resources for teachers regarding disorder management. It is also concluded that recent changes to negligence law regarding the issue of ‘reasonable foreseeability’ within breach of duty of care, may not be as significant as might have been hoped by the teaching community. Indeed, the elevated standard of care required by the increasing numbers of disordered pupils, places teachers in an ever more difficult legal position.

Behaviour disorders and the negligent teacher

The purpose of this paper is to examine the legal implications of the continuing rise in the number of school children diagnosed with behaviour disorders. Not only are teachers now subject to a dense grid of legal regulation, they are also increasingly vulnerable to actions in tort. It will be argued here that as more and more children are labelled ‘disordered’, then the concomitant duty of care requirements for teachers becomes more onerous. As a consequence, teachers are less likely to be able to defend themselves against claims of negligence. It is concluded that while the schooling system needs to retain a healthy scepticism about each new pathologising disorder that seeks special status for its sufferers, it also needs to provide greater training and resources for teachers regarding disorder management. It is also concluded that recent changes to negligence law regarding the issue of ‘reasonable foreseeability’ within breach of duty of care, may not be as significant as might have been hoped by the teaching community. Indeed, the elevated standard of care, as required by increasing numbers of disordered pupils, place teachers in an ever more difficult legal position.

Project culture in the Chinese construction industry : perceptions of contractors

In recent years culture has become one of the most studied topics in project management research. Some studies have investigated the influence of culture at different levels – such as national culture, industry culture, organisational culture and professional culture. As a project-based industry, the construction industry needs to have more insight concerning cultural issues at the project level and their influence on the performance of construction projects. Few studies, however, have focused on culture at the project level. This paper uses a questionnaire survey to determine the perceptions of Chinese contractors about the impact of project culture on the performance of local construction projects. This is augmented by a series of in-depth interviews with senior executive managers in the industry. The findings indicate that specific project culture does contribute significantly towards project outcomes. In particular, goal orientation and flexibility, as two dimensions of project culture, have a negative statistical correlation with perceived satisfaction of the process, commercial success, future business opportunities, lessons learnt from the project, satisfaction with the relationships, and overall performance. This paper also indicates that the affordability of developing an appropriate project culture is a major concern for industry practitioners.