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ASIC reports on decisions to cut red tape: Feb-May 2015

ASIC has released its latest report outlining decisions on relief applications covering the period February 1 to May 31, 2015.

Businesses frequently approach ASIC for assistance to help make the law work better for them. ASIC uses its discretion to vary or set aside certain requirements of the law where there is a net regulatory benefit or where ASIC can facilitate business or cut red tape without harming other stakeholders.

This is a key part of ASIC's function and between February 1 to May 31, 2015, ASIC approved 372 relief applications.

Report 449 Overview of decisions on relief applications (February to May 2015) (REP 449), aims to improve the level of transparency and the quality of publicly available information about decisions ASIC makes when asked to exercise its discretionary powers to grant relief from provisions of the:

  • Corporations Act 2001 (Corporations Act), or
  • National Consumer Credit Protection Act 2009 (National Credit Act).

REP 449 also discusses the various relevant publications released by ASIC during the four months.

The report summarises examples of situations where ASIC has exercised, or refused to exercise, its exemption and modification powers under the Corporations Act. The report also highlights instances where ASIC has considered adopting a no-action position regarding specified non-compliance with statutory provisions.

Finally, the report provides examples of decisions that demonstrate how ASIC has applied its policy in practice which ASIC thinks will be of particular interest for capital market participants and for participants in the financial services industry. The report includes an appendix detailing the publicly available individual relief instruments referred to in the report.

BACKGROUND

ASIC can modify or set aside certain provisions of Chapters 2D (officers and employees), 2G (meetings), 2M (financial reporting and audit), 5C (managed investment schemes), 6 (takeovers), 6D (fundraising) and 7 (financial services) of the Corporations Act.

ASIC also has powers to give relief under the provisions of Chs 2 (licensing) and 3 (responsible lending) of the National Credit Act and from all or specified provisions of the National Credit Code, which is in Sch 1 to the National Credit Act.

In limited situations, ASIC may also consider providing a no-action letter when instances of non-compliance with certain statutory provisions have been brought to ASIC’s attention.

A no-action letter states to a particular person that ASIC does not intend to take regulatory action over a particular state of affairs or particular conduct. The factors that ASIC will consider when dealing with a request for a no-action letter is set out in Regulatory Guide 108 No-action letters (RG 108).

ASIC publishes a copy of most of the relief instruments issued in theASIC Gazette. Credit instruments are available from the ASIC website under credit relief.

APPLYING FOR RELIEF

Applications for relief must be in writing and should address the requirements set out in Regulatory Guide 51 Applications for relief (RG 51) (and any other regulatory guides relevant to the application).

Applications can be submitted electronically toThis email address is being protected from spambots. You need JavaScript enabled to view it.. Fees are applicable for relief applications.

ASIC is streamlining the process for considering applications for relief to ensure that applications are assessed as quickly and efficiently as possible. As part of this, ASIC will be more strictly enforcing its policy to refuse applications for relief where information needed to make a decision is not provided.

Where ASIC has asked for additional information within a specified time period—and a reasonable explanation is not provided for any delay—an application for relief may be refused.

www.asic.gov.au

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ACCC authorises Solar Retailer Code of Conduct

The Australian Competition and Consumer Commission has granted re-authorisation to the Clean Energy Council for its revised Solar Retailer Code of Conduct for five years.

The Council represents Australia’s renewable energy and energy efficiency industries. The Code is a voluntary system that solar retailers can sign up to and meet best practice standards that will benefit consumers and the industry.

"Ensuring that solar retailers, as well as other industry participants, strive to improve standards of practice is important for consumers as household solar panels are a significant purchase,” ACCC deputy chair Delia Rickard said.

"Achieving higher standards in the industry will increase consumer confidence, enable consumers to make better decisions and enhance compliance as the industry grows."

The Code enhances consumer protection by requiring ethical sales practices, increases disclosure to consumers about the costs of entering into agreements and reduces safety risk by requiring Code signatories to use accredited installers.

"The solar panel market is evolving, which has led to different business models emerging. While this could lead to greater confusion for customers, signatories to the Code will be required to provide important information to consumers about the nature of the agreement they are entering into," Ms Rickard said.

Authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010.

Broadly, the ACCC may grant an authorisation when it is satisfied that the public benefit from the conduct outweighs any public detriment.

Further information is available at Clean Energy Council Limited - Revocation and Substitution - A91495 & A91496.

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ACCC concerned over implementation of the Food and Grocery code

The Australian Competition and Consumer Commission is investigating reports about the approach supermarket retailers are taking to implement the Food and Grocery Code of Conduct (Code).

ACCC Chairman Rod Sims said, “The aim of the Code is to redress the imbalance in bargaining power that can exist between suppliers and large grocery retailers by prohibiting certain types of unfair conduct.

“The Code imposes a duty to deal with suppliers in good faith and we are concerned by reports we have received from suppliers that suggest that some retailers have not got off to a good start when it comes to implementing the Code,” Mr Sims said.

“The ACCC has concerns as to the manner in which some retailers, in particular Woolworths and Aldi, are presenting new Grocery Supply Agreements (GSAs), which might give the impression that the supplier is not able to negotiate the terms of the GSA.

“The ACCC is also concerned about the low level of detail provided in some GSAs about the circumstances in which certain payments may arise.”

The Code sets out a number of prohibitions on, for example, requiring a payment for wastage that occurs at the premises of the retailer.

While it is possible for retailers and suppliers to opt out of such prohibitions, this can only occur if the opt outs are agreed, if the agreement sets out the circumstances in which the opt out applies and if the payment is reasonable in the circumstances.

“One of the purposes of the Code is to provide certainty to suppliers, who are often in a much weaker bargaining position when dealing with retailers. In order to provide that certainty, the ACCC expects retailers to set out the circumstances in which they will seek payments from suppliers,” Mr Sims said.

The Code requires that retailers offer code-compliant GSAs. Suppliers should not feel compelled to sign these agreements and should seek advice before signing them. In particular, the Code will confer protections on suppliers 12 months after a retailer has signed up to the Code, regardless of whether a supplier has accepted a code-compliant GSA.

The ACCC has written to retailers about the manner in which they purport to be giving effect to the Code. The retailers have responded providing their new GSAs and the correspondence they have sent to suppliers offering the new GSAs. The ACCC will continue to monitor compliance with the code.

Background

The ACCC is responsible for enforcing the Code and has developed guidance material, which is available at Food and Grocery Code of Conduct.

Coles, Woolworths, Aldi and Sydney-based retailer About Life have signed up to the Code.

The Code has rules about GSAs, payments, termination of agreements, dispute resolution and a range of other matters.

It is a voluntary code which complements existing protections under theCompetition and Consumer Act 2010, including the unconscionable conduct provisions.

The Code requires retailers and wholesalers to deal with suppliers in good faith during the bargaining stages of establishing GSAs, during the term of the agreement, and in dealing with any disputes.

Under the Code, retailers are required to offer suppliers code-compliant GSAs – whether the agreements are new, or variations to existing ones.

www.accc.gov.au

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COSBOA slams secret big business letter to Government

COUNCIL of Small Business of Australia (COSBOA) has expressed deep concern at the existence of a confidential briefing letter provided to the Federal Cabinet from the Business Council of Australia (BCA), arguing against an effects test in competition regulation.

The fact that this letter is confidential and unavailable to the public and other industry groups is highly concerning and COSBOA calls on the BCA to immediately release this letter for scrutiny and comment from other interest groups.

Paul Nielsen, Chairman of COSBOA said, “We note, as reported in the AFR (24 Sept 15), that the Chairman of the BCA, Catherine Livingstone has provided a confidential eight page briefing letter on 25 August to the Federal Cabinet that spells out the BCA’s case against an effects test, including an attachment containing their views on unintended consequences.

“Whilst we understand the need for secret inter-governmental briefings from departments such as Defence on security matters, the BCA and its members are public companies and competition policy affects the whole business community – not just the big businesses that make up the BCA,” said Mr Nielsen.

Mr Nielsen further questioned whether the clandestine document was provided at the behest of the Government. “If that is the case, has the Government requested a similar briefing letter from organisations with a different view?  So far all anyone has seen from the BCA are assumptions to ‘protect their patch’ and fly in the face of organisations and regulators like the ACCC, who are chartered with protecting and preserving the rights of the whole community, not just big business.

“Given that Competition Policy and the proposed changes to the effects test by the Government’s own Harper Review will affect all businesses in Australia, we are dismayed that the BCA should try and unduly influence Government policy under a sinister cloak of secrecy. What do they have to hide?” asked Mr Nielsen.

Peter Strong, CEO of COSBOA added: “The only comment that we have seen from the confidential briefing from the BCA is that an effects test will ‘put at risk developments such as the iPhone’. The iPhone was developed in a country that has an effects test, the USA. There is an argument that it was because of the effects test that innovators were able to prosper and grow in that country. What other pieces of misinformation are in the BCA’s submission?

“COSBOA, and its members, as well as many regulators, noted economists and the broader community, know the power and influence held by this small number of big businesses is having a hugely negative effect on innovation and productivity in Australia. An effects test will aid the ACCC to make informed assessment of competition and ensure any dominance is good for the economy and not just for a few big businesses,” said Mr Strong.

http://www.cosboa.org.au/

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Competition policy reform: get on with it, says IPA

THE Institute of Public Accountants (IPA) is urging the Government to move forward with the Harper Review and get on with the job of competition policy reform.

“Australia is in desperate need for competition reform to ensure we have a healthy and effective competitive market and in particular, address the need to protect the competitive process so that small and medium-sized enterprises can compete on a more level playing field,” said IPA chief executive, Andrew Conway.

“Reform means more than just tax reform, which of course is also essential for our economy; it is about healthy competition and the Harper Review has provided a framework for Australia to move forward – so let’s get on with it.

“Key areas of current policy to be addressed include unconscionable conduct and section 46 of the Competition and Consumer Act.  Section 46 needs an overhaul to strengthen the prohibition on firms using their market power to substantially lessen competition; including the removal of the ‘take advantage’ element from the existing prohibition.

 “In essence, section 46 needs to be amended with an appropriate 'effects test'.  These recommendations form part of our Australian Small Business White Paper.

“There are other areas to be addressed for effective competition policy reform such as small business access to remedies, collective bargaining and competitive neutrality.  The IPA supports a strengthened ACCC to implement the changes.

“We need to ensure a fair and level playing field for small business that encourages innovation and growth of the SME sector,” said Mr Conway.

www.publicaccountants.org.au

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Smart City: Melbourne embraces technology

The City of Melbourne is recognised as a leader in both civic engagement and urban innovation. Tomorrow, representatives from the City of Melbourne will address the Standing Committee on Infrastructure and Communications’ Inquiry into the role of Smart ICT in the design and planning of infrastructure, to provide an insight into how Smart Cities can overcome urban challenges.

In their submission, the City of Melbourne discusses how its Smart City policies “recognise and prioritise the potential benefits flowing from collaborations enabled by technologies”.

It goes on to say that “Complex urban challenges can now be addressed collaboratively via Smart communities comprising hyper-connected, technologically agile and often entrepreneurial innovators. These Smart communities are the new agents of change and the generators of knowledge.”

Committee Chairman Jane Prentice MP (Ryan, Qld) said, “Smart cities are the way of the future. By embracing new technologies, local governments are making a major contribution to the future productivity and liveability of our urban environments.”

Hearing details
Date: Friday, 25 September 2015
Time: 8:00 am–3:00 pm
Venue: Legislative Council Committee Room, Parliament House, Melbourne

8:00 am Victorian Government (Submission 24)
8:30 am Australian Academy of Science (Submission 5)
9:00am Victorian Spatial Council (Submission 6)
9:30 am Australian Academy of Technological Sciences and Engineering (Submission 13)
10:00 am City of Melbourne (Submission 35)
11:00 am Independent Project Analysis (Submission 11)
11:30 am Professor Keith Hampson, Sustainable Built Environment National Research Centre (by teleconference)
12:00 pm Swinburne University of Technology (Submission 36)
1:30 pm University of Melbourne (Submissions 17, 31 & 32)
2:30 pm IBM (Submission 2)

The public hearing will be webcast live at http://www.aph.gov.au/live

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Disrupy.Sydney to focus on 'disruption for good'

AS DEBATE swirls around disruptive forces such as Uber, Airbnb and Apple Music, the third annual technological innovation conference, DISRUPT.SYDNEY, will this year have as its theme 'disruption for good'.

Amongst other things, DISRUPT.SYDNEY will look at digital innovation in rural Australia and China; the workplace of the future; the empowerment of women in the high-tech world and the role of virtual reality in the prevention, assessment, and treatment of posttraumatic stress.

“Digital Disruption is typically associated with the various challenges new technologies and business ideas bring to incumbent organisations and jobs in established industries,” says Associate Professor Kai Riemer. “While digital technologies certainly bring challenges, there are equally many opportunities to shape our lives for good.”

Associate Professor Riemer leads the Digital Disruption Research Group at the University of Sydney Business School, which is hosting DISRUPT SYDNEY in association with the School’s Balanced Enterprise Research Network.

"Tomorrow’s conference will be tackling a number of issues including the future of work, flexible and activity-based working; enterprise social networking, engagement and collaboration through networking,” Associate Professor Riemer said.

University of Southern California researcher Albert 'Skip' Rizzo will join the conference to present his work utilising immersive VR technologies in trauma therapy with war veterans.

ABC Radio National presenter Antony Funnell will give the keynote address, taking a critical look at our often uncritical engagement with new technologies in business and our daily lives.

DISRUPT.SYDNEY Details:

Event              8.30am – 6.30pm, Friday 25th September 2015   

Venue             University of Sydney Business School CBD Campus

Level 17, 133 Castlereagh Street, Sydney

Contact           Kai Riemer Office 02 9036 9053, Mobile 0435 557 909

Further Info            https://disruptsydney2015.wordpress.com

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Resource employers welcome new Turnbull Ministry

AUSTRALIA’S national resource industry employer group, AMMA, welcomes the appointment of ministers and assistant ministers in portfolios critical to the future prosperity of the resource industry, and for jobs and opportunities across the Australian community.

“AMMA congratulates Michaela Cash and Josh Frydenberg on their appointments to the portfolios of Employment and Women, and Resources, Energy and Northern Australia respectively,” says AMMA executive director, policy and public affairs, Scott Barklamb.

“Minister Cash is very highly regarded by the resource industry for her consultative approach as Assistant Minister for Immigration and Assistant Minister for Women, and her appreciation of the importance of our industry to the national wellbeing.  She brings to the employment portfolio professional experience and a keen interest in workplace relations, which will be a great asset.

“Minister Cash takes on the portfolio at a time when the Productivity Commission is completing a once-in-a-generation workplace relations framework review, and AMMA looks forward to working closely with her on ensuring the system better supports growth, jobs and living standards.

“Increasing workforce gender diversity has also emerged as a key priority for resource employers, and AMMA appreciates the opportunity to continue our work with Minister Cash on bolstering women’s participation across the mining, oil and gas sectors.

“AMMA also looks forward to working closely with Minister Frydenberg as he takes on the important task of enhancing Australia’s reputation as a globally competitive destination for resources investment, and continuing the very positive work of Ian Macfarlane and his predecessors. 

“Unlocking greater productivity is one of the key challenges facing our nation, so AMMA welcomes Dr Peter Hendy being appointed as Assistant Minister for Productivity.”

AMMA also pays tribute to long-serving former ministers Eric Abetz and Ian Macfarlane for their support for the resource industry and unwavering commitment to strengthening the economy and lifting living standards of all Australians.

“Mr Abetz leaves the employment portfolio having successfully set Australia on a course to achieve a more modern and flexible workplace relations environment” Mr Barklamb says.

“AMMA thanks Mr Abetz for his commitment to essential reforms in often highly adversarial circumstances. The lasting value of his work will be seen in years to come”.

“Mr Macfarlane has been a dedicated and committed minister for industry, with a strong focus on delivering a framework that fosters the innovation and skills necessary for Australia to be recognised as a resources powerhouse well into the future.  His decades of work with and for the industry have made a very significant national contribution.

“AMMA wishes the outgoing ministers well and looks forward to working with the new Turnbull Ministry to ensure Australia’s resource industry is a more attractive and competitive place to invest and do business. This will ensure the resource industry can play a central role in maximising employment, growth and opportunities for all Australians.”

www.amma.org.au

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Productivity Commission’s workplace relations recommendations must go further

DRAFT recommendations to improve Australia’s workplace relations framework contain some positive proposals but do not go far enough to tackle serious economic challenges facing our nation, resource industry employer group AMMA will tell a Productivity Commission (PC) hearing in Melbourne today.

Speaking in support of AMMA’s comprehensive reply to the PC’s Draft Report into Australia’s Workplace Relations Framework, AMMA executive director, Scott Barklamb, will highlight shortcomings in the PC’s response to addressing escalating problems with our workplace laws.

“Far from being ‘fit for purpose’ the current workplace relations system will not be able to buffer Australia against future challenges, nor allow employers and employees to seize the benefits of genuine flexibility and fairness,” Mr Barklamb says.

“While the draft report proposes improvements in key areas such as new project agreement making, the PC has taken an overly cautious approach, canvassing mainly technical amendments to the Rudd/Gillard Fair Work system, and leaving other areas in the too hard basket.

“It is very disappointing that the PC has largely focussed on repairing and tweaking existing arrangements, rather than considering what our laws need to do and how best they can operate.”

Mr Barklamb will encourage the PC to focus on key priorities for investors and employers, as part of a more fundamental examination of our workplace system and options for reform, including: 

  • Ensuring workplace agreements focus on the direct relationship between employers and employees, and not extraneous issues, such as union wish lists.
  • Ensuring that above a safety-net, employers and employees can progress their interests and contribute to the productivity and competitiveness of enterprises.
  • Broadening agreement making options through of a range of collective (union, non-union, and greenfields) and individual statutory agreements.
  • Ensuring strike action can only be taken as a last resort.
  • Ensuring union ‘right of entry’ visits are reasonable and take due account of operational needs.
  • Ensuring protections against unfair dismissal and adverse action are genuinely balanced.

“It is imperative for our workplace relations system to better support growth and jobs, and the PC has a responsibility to deliver recommendations for real change for the future,” Mr Barklamb says.

“AMMA looks forward to engaging further with the PC as it considers how our workplace relations framework can better equip Australia to tackle increasing economic pressures, and to seize opportunities for our future prosperity.”

Over the past two years, at least 149 major resource projects valued at a minimum $197 billion have failed to proceed in Australia.

KPMG research indicates that if key industrial relations reforms advocated by AMMA are implemented, they could add up to $30.9 billion to Australia’s GDP and create 36,000 extra jobs.

www.amma.org.au

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Broadband boffins take a byte out of infrastructure

THE Infrastructure and Communications Committee will hold public hearings in Brisbane and Melbourne later this week as part of its Inquiry into the role of Smart ICT in the design and planning of infrastructure.

These hearings will allow the Committee to canvass the views of a broad range of expert witnesses from industry, universities and government.

Committee Chairman Jane Prentice MP (Ryan, Qld) said, “The Brisbane and Melbourne hearings of the Smart Infrastructure Inquiry will draw together experts from a range of fields and give the Committee a comprehensive overview of the issues surrounding the use of Smart ICT in the design and planning of infrastructure in Australia.”

Hearing details

BRISBANE

Date: Thursday, 24 September 2015

Time: 1:00 pm–4:00 pm

Venue: Committee Room 3, Level 6, Parliamentary Annexe, Alice Street, Brisbane

Witnesses: Urban Circus (Submission 3), Queensland University of Technology (Submission 19), AECOM (Submission 21), Associate Professor Tan Yigitcanlar (QUT), and Bentley Systems (Submission 29).

MELBOURNE

Date:Friday, 25 September 2015

Time:8:00 am–3:00 pm

Venue:Legislative Council Committee Room, Parliament House, Melbourne

Witnesses: Victorian Government (Submission 24), Australian Academy of Science (Submission 5), Victorian Spatial Council (Submission 6), Australian Academy of Technological Sciences and Engineering (Submission 13), City of Melbourne (Submission 35), Independent Project Analysis (Submission 11), Professor Keith Hampson, Sustainable Built Environment National Research Centre (by teleconference), Swinburne University of Technology (Submission 36), University of Melbourne (Submissions 17, 31 & 32) and IBM (Submission 2).

The public hearing will be webcast live at http://www.aph.gov.au/live

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ARA urges continued support of retailers and small business under new Turnbull Ministry

The Australian Retailers Association (ARA) is calling on the new Turnbull Government Ministry to follow through on the commitments made to small businesses and tax reforms.

Key reforms include the introduction of a competition effects test and instatement of the zero value import threshold before July 2017.

ARA Executive Director, Russell Zimmerman, welcomed the announcement of the new Turnbull Government Ministry on Sunday, including the retention of Small Business in Cabinet with Kelly O’Dwyer to carry through these all important reforms.

“The surge in confidence expressed this week within business is reflective of the Government’s commitment to address issues including GST collection on overseas purchases and the possibility of real reform of competition policy,” said Mr Zimmerman.

Retailers are looking forward to the Government further lifting retail, consumer and business confidence through support for further GST reform, employment law reform and changes to the payments system recommended by the Financial Systems Inquiry (FSI).

“The ARA is pleased to see small business remains in the Cabinet, with the Assistant Treasury portfolio covering off many important areas for the retail sector, from the FSI payments reform to the Harper Review competition recommendations.

“It is now incumbent on the Turnbull Government to commence the task of implementing many of the recommendations which have been made in recent reviews from the Productivity Commission, Harper Review to the FSI,” Mr Zimmerman said.

“The 140,000 Australian independent retail business are demanding that the coalition bring in an effects test as per the recommendations of the Harper review, while a reduction in penalty rates for retailers is crucial in the upcoming Fair Work review."

With the new Turnbull Ministry now in place the ARA is reminding Ministers of the importance of role the retail sector as Australia’s largest private sector employer with more than 10 percent of the working population employed in the retail industry.

“The ARA looks forward to working with all key economic productivity Ministers, including Treasurer, Scott Morrison, Simon Birmingham through Education, Alex Hawke as Assistant Minister to the Treasurer, and Mathias Cormann in Finance.”

Founded in 1903, the Australian Retailers Association (ARA) is the retail industry’s peak representative body representing Australia’s $284 billion sector, which employs more than 1.2 million people. The ARA works to ensure retail success by informing, protecting, advocating, educating and saving money for its 5,000 independent and national retail members throughout Australia.

For more information, visit www.retail.org.au or call 1300 368 041.

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