Good faith in contractual performance and enforcement : Australian doctrinal hurdles

In the ongoing and spirited debate about the relative merits of an obligation of good faith in contractual performance and enforcement, widely divergent views have been expressed about the appropriateness and content of the putative obligation. However, relatively less time has been devoted to discussion of the sparseness of tools available to facilitate doctrinal development and the hurdles necessarily imposed by such limited doctrinal resources. This article seeks to examine the Australian doctrinal position against the backdrop of good faith as it finds application in the wider global context.

The source of the good faith obligation in the performance and enforcement of commercial contracts

There are many issues associated with good faith that will ultimately confront the Australian High Court and a number of these have been well canvassed. However, one significant issue has attracted relatively little comment. To date, a number of Australian courts (lower in the judicial hierarchy) have been prepared to hold directly, tacitly accept or assume (without making a final determination) that good faith is implied (as a matter of law) in the performance and enforcement of a very broad class of contract, namely commercial contracts per se. This broad approach is demonstrated in decisions from the Federal Court, the New South Wales Court of Appeal, the Supreme Courts of Victoria and Western Australia and has crept into pleadings in commercial matters in Queensland

Performance-based compensation vs. guaranteed compensation: contractual incentives and performance

Top management from retail banks must delegate authority to lower-level managers to operate branches and service centers. Doing so, they must navigate through conflicts of interest, asymmetric information and limited monitoring in designing compensation plans for such agents. Pursuant to this delegation, the banks adopt a system of performance targets and incentives to align the interests of senior management and unit managers. This paper evaluates the causal relationship between performance-based salaries and managers’ effective performance. We use a fixed effects estimator to analyze an unbalanced panel of data from one of the largest Brazilian retail banks during the period from January 2007 to June 2009. The results indicate that agents with guaranteed variable salary contracts demonstrate inferior performance compared with agents who have performance-based compensation packages. We conclude that there is a moral hazard that can be observed in the behavior of agents who are subject to guaranteed variable salary contracts.

How contracts and enforcement explain transaction outcomes

This study considers the influence of contracts on enforcement and the subsequent performance impact of aligned and misaligned enforcement. We define enforcement as a corrective action aimed at remedying problems occurring in the transaction. First we explain the role of contracts and show that at the component level, contracts can both increase and decrease enforcement. Building on an alignment perspective and accounting for the endogeneity of enforcement, we use these contractual components and variables related to enforcement to predict the occurrence of enforcement. We use such predictions to show that aligned enforcement results in higher performance. We also show that the performance impact of misaligned enforcement is relatively greater for transactions where enforcement is not expected. We conduct the study using a unique dataset reporting on 971 business transactions across a wide range of industries.

Speeding in Australia and China : a comparison of the influence of legal sanctions and enforcement practices on car drivers

Despite increasingly sophisticated speed management strategies, speeding remains a significant contributing factor in 25% of Australia’s fatal crashes. Excessive speed is also a recognised contributor to road trauma in rapidly motorising countries such as China, where increases in vehicle ownership and new drivers, and a high proportion of vulnerable road users all contribute to a high road trauma rate. Speed choice is a voluntary behaviour. Therefore, driver perceptions are important to our understanding of the nature of speeding. This paper reports preliminary qualitative (focus groups) and quantitative (survey) investigations of the perceptions of drivers in Queensland and Beijing. Drivers’ definitions of speeding as well as their perceptions of the influence of legal factors on their reported speeds were explored. Survey participants were recruited from petrol stations (Queensland, n=833) and car washes (Beijing, n=299). Similarities were evident in justifications for exceeding speed limits across samples. Excessive speeds were not deemed as ‘speeding’ when drivers considered that they were safe and under their control, or when speed limits were seen as unreasonably low. This appears linked to perceptions of enforcement tolerances in some instances with higher perceived enforcement thresholds noted in China. Encouragingly, drivers in both countries reported a high perceived risk of apprehension if speeding. However, a substantial proportion of both samples also indicated perceptions of low certainty of receiving penalties when apprehended. Chinese drivers considered sanctions less severe than did Australian drivers. In addition, strategies to avoid detection and penalties were evident in both samples, with Chinese drivers reporting a broader range of avoidant techniques. Implications of the findings for future directions in speed management in both countries are discussed.

Physical performance and self-efficacy under happy and sad moods

Two experiments involving 87 undergraduates examined whether happiness produces increased performance on a physical task and tested whether self-efficacy mediated the results. When mood inductions covered the full range from happy to sad, mood influenced physical performance; however, evidence regarding self-efficacy was equivocal. Efficacy for the performed task was unaffected by mood, although it remained a good predictor of performance. Since mood altered efficacy for a nonperformed but more familiar task, inconsistent efficacy results could reflect task differences. Findings offer prospects for the use of mood inductions in practical sporting situations.

Construction performance and organisational culture

The purpose of this paper is to summarize the outcomes of a detailed research study carried out as part of the fulfilment of a doctoral programme which examined the relationships between, and impacts of organisational culture on construction performance within a Hong Kong context. The research used a mixed methodology approach consisting of an organisational culture survey using an adapted validated and reliable measurement instrument (the Denison Organisational Culture Survey), mini-case studies in four Hong Kong construction companies and correlated the derived culture scores against performance scores measured by the Hong Kong Housing Department Performance Assessment Scoring System (PASS). The significance of the research was to advance knowledge of the importance of organisational culture strength as a performance driver in the construction industry and the further proof of the culture performance links using a set of measures of the latter which were not financially-based. The findings of the research make a contribution to theory by further validating the work by Denison (1990) and others, not only in that a successful link between organisational culture and performance was demonstrated, but it also identifies particular cultural factors in organisations that appear to be significantly responsible for achieving successful outcomes and reveals opportunities for further research into the organisational culture of construction companies Keywords: organisational culture, construction performance, business success.

Piezoelectric PVDF materials performance and operation limits in space environments

Piezoelectric polymers based on polyvinylidene fluoride (PVDF) are of interest for large aperture space-based telescopes. Dimensional adjustments of adaptive polymer films are achieved via charge deposition and require a detailed understanding of the piezoelectric material responses which are expected to suffer due to strong vacuum UV, gamma, X-ray, energetic particles and atomic oxygen under low earth orbit exposure conditions. The degradation of PVDF and its copolymers under various stress environments has been investigated. Initial radiation aging studies using gamma- and e-beam irradiation have shown complex material changes with significant crosslinking, lowered melting and Curie points (where observable), effects on crystallinity, but little influence on overall piezoelectric properties. Surprisingly, complex aging processes have also been observed in elevated temperature environments with annealing phenomena and cyclic stresses resulting in thermal depoling of domains. Overall materials performance appears to be governed by a combination of chemical and physical degradation processes. Molecular changes are primarily induced via radiative damage, and physical damage from temperature and AO exposure is evident as depoling and surface erosion. Major differences between individual copolymers have been observed providing feedback on material selection strategies.

Boxing Ears: Performance and Out of the Box 2010

A review of the musical element of QPAC's 2010 Out of the Box Festival of Early Childhood

For the better or the worse? The impact of business idea changes on new venture performance and novelty

Should new ventures stick to their knitting once they start commercialising or should they engage in frequent changes of their business idea? In this paper we argue that new ventures still need to learn their way in the early phases of commercialisation and that changes are good, but subject to two important contingencies. First is that changes should be aimed at enhancing uniqueness, which in turn enhances new venture performance. Second is that our results show that changes have limited affect on uniqueness and performance for entrepreneurs aiming at maximising opportunities, but that changing the business idea has a significant positive impact for entrepreneurs focusing on minimising losses. Our findings indicate that entrepreneurs aiming at minimising losses may offset their initial disadvantages by engaging in a series of adaptations of the business idea to gain higher performance and a more unique product offering.