Call us 24/7: + 1(925)399 0085

Get your paper done by an expert

No matter what kind of academic paper you need, it is simple and secure to hire an essay writer for a price you can afford at StudyAcer. Save more time for yourself.

Order A Custom Paper

Approximate price: $

19 k happy customers
8.5 out of 10 satisfaction rate
527 writers active

Risk management assignment

SUBJECT NOTES & STUDY GUIDE

for

.0/msohtmlclip1/01/clip_image001.gif”>.0/msohtmlclip1/01/clip_image002.gif”>.0/msohtmlclip1/01/clip_image002.gif”>.0/msohtmlclip1/01/clip_image003.gif”>.0/msohtmlclip1/01/clip_image003.gif”>

RISK MANAGEMENT PRINCIPLES

SWINBURNE CODE: HES6721

RISK MANAGEMENT PROGRAMS

SWINBURNE UNIVERSITY OF TECHNOLOGY

Damien Smith and Derek Viner

2013 Semester 1

.0/msohtmlclip1/01/clip_image005.jpg”>

Version 2013 Sem 1

Swinburne University of Technology

Printed 4/03/2013

Faculty of Engineering & Industrial Science

HES 6721 Risk Management Principles

.0/msohtmlclip1/01/clip_image006.gif”>

Table of Contents

1

SUBJECT INFORMATION ……………………………………………………………………………………………………………..

4

1.1

INTRODUCTION……………………………………………………………………………………………………………………………

4

2 TOPIC 1 MANAGERIAL LAW ………………………………………………………………………………………………………..

5

2.1

WHAT IS MANAGERIAL LAW? ………………………………………………………………………………………………………..

5

2.2

IDENTIFIED DRIVERS OF MANAGING LEGAL RISKS …………………………………………………………………………….

6

2.3

WHAT ENVIRONMENTAL FORCES EXIST? …………………………………………………………………………………………

7

3

TOPIC 2 – CONTRACT……………………………………………………………………………………………………………………

8

3.1

COMMERCIAL CONTRACTUAL RELATIONSHIPS …………………………………………………………………………………

8

3.2

INTENT TO CREATE LEGAL RELATIONS ………………………………………………………………………………………….

10

3.3

CONTRACT TERMS AND CONDITIONS …………………………………………………………………………………………….

10

3.4

PERFORMANCE CRITERIA…………………………………………………………………………………………………………….

11

3.5

EFFECTIVE CONTRACT DOCUMENTATION ………………………………………………………………………………………

11

3.6

WHAT ARE THE RULES FOR THE INTERPRETATION OF CONTRACTS? ………………………………………………….

12

3.7

WHAT MAKES A SUCCESSFUL CONTRACT? …………………………………………………………………………………….

13

3.8

DISTINCTION BETWEEN REPRESENTATIONS AND TERMS OF CONTRACT ………………………………………………

13

3.9

COLLATERAL CONTRACTS …………………………………………………………………………………………………………..

13

3.10

CONDITIONS AND WARRANTIES …………………………………………………………………………………………………..

13

3.11

IMPLIED TERMS …………………………………………………………………………………………………………………………

14

3.12

UNCONSCIONABLE CONTRACTS……………………………………………………………………………………………………

14

3.13

EXCLUSION CLAUSES………………………………………………………………………………………………………………….

14

3.14

CHECKLIST –CONTRACT COMPLIANCE ………………………………………………………………………………………….

15

4

TOPIC 3 NEGLIGENCE……………………………………………………………………………………………………………….

16

4.1

NEGLIGENCE …………………………………………………………………………………………………………………………….

16

4.2

DUTY OF CARE ………………………………………………………………………………………………………………………….

16

4.3

BREACH OF DUTY OF CARE ………………………………………………………………………………………………………….

17

4.4

EXCLUSION CLAUSES OR DISCLAIMERS …………………………………………………………………………………………

18

4.5

VICARIOUS LIABILITY…………………………………………………………………………………………………………………

18

5

TOPIC 4 EMPLOYMENT……………………………………………………………………………………………………………..

19

5.1

EQUAL OPPORTUNITY LEGISLATION ……………………………………………………………………………………………..

19

5.2

SEXUAL HARASSMENT………………………………………………………………………………………………………………..

20

5.3

TERMINATIONS………………………………………………………………………………………………………………………….

20

5.4

OUTSOURCING…………………………………………………………………………………………………………………………..

23

5.5

EMPLOYMENT CONTRACT …………………………………………………………………………………………………………..

24

5.6

EMPLOYMENT LAW VS INDUSTRIAL RELATIONS ……………………………………………………………………………..

24

5.7

THE NATIONAL WORKPLACE RELATIONS SYSTEM……………………………………………………………………………

26

5.8

COMMON LAW CONTRACTS OF EMPLOYMENT ………………………………………………………………………………..

27

5.9

CHECKLIST OF APPLICABLE LAW TO EMPLOYMENT CONTRACT …………………………………………………………

27

5.10

FIDUCIARY DUTIES IN THE EMPLOYMENT CONTRACT ………………………………………………………………………

28

5.11

THE IMPLIED DUTY OF FIDELITY AND GOOD FAITH IN THE EMPLOYMENT CONTRACT ……………………………

28

5.12

FRAUD……………………………………………………………………………………………………………………………………..

28

5.13

HOW POTENTIAL AREAS OF FRAUD SHOULD BE ADDRESSED ……………………………………………………………..

29

5.14

OCCUPATIONAL HEALTH AND SAFETY…………………………………………………………………………………………..

29

6

TOPIC 5 COMPETITION AND CONSUMER ACT……………………………………………………………………….

33

6.1

THE LEGISLATION ……………………………………………………………………………………………………………………..

33

6.2

PENALTIES………………………………………………………………………………………………………………………………..

36

6.3

SELLING –ADVERTISEMENTS VS REPRESENTATIONS ……………………………………………………………………….

37

6.4

LESSENING OF COMPETITION ……………………………………………………………………………………………………….

38

6.5

AUTHORISATIONS………………………………………………………………………………………………………………………

39

6.6

MISUSE OF MARKET POWER…………………………………………………………………………………………………………

39

Version 2013 Sem 1

Swinburne University of Technology

Page 2 of 70

Printed 4/03/2013

Faculty of Engineering & Industrial Sciences

HES 6721 Risk Management Principles

.0/msohtmlclip1/01/clip_image006.gif”>

6.7

PRICE FIXING …………………………………………………………………………………………………………………………….

40

6.8

EXCLUSIVE DEALING ………………………………………………………………………………………………………………….

40

6.9

SILENCE …………………………………………………………………………………………………………………………………..

41

6.10

PRODUCT SAFETY AND PRODUCT INFORMATION……………………………………………………………………………..

41

6.11

VOLUNTARY RECALL PROCEDURE………………………………………………………………………………………………..

42

7

TOPIC 6 LEGAL COMPLIANCE PROGRAM………………………………………………………………………………

43

7.1

RISK MANAGEMENT AND LEGAL COMPLIANCE PROCESSES ……………………………………………………………….

43

7.2

COMMITMENT AND EMBEDDING…………………………………………………………………………………………………..

43

7.3

LEGAL COMPLIANCE…………………………………………………………………………………………………………………..

43

7.4

ENTERPRISE CARE PRINCIPLES TO GUIDE LEGAL AUDIT ……………………………………………………………………

44

7.5

EXPOSURE ………………………………………………………………………………………………………………………………..

45

7.6

GROWTH OF UNCERTAINTIES……………………………………………………………………………………………………….

45

7.7

THE ‘INTENSE SCRUTINY’FACTOR ……………………………………………………………………………………………….

45

7.8

SELF REGULATION……………………………………………………………………………………………………………………..

46

7.9

TRAINING COVERAGE …………………………………………………………………………………………………………………

46

7.10

COMPLIANCE SUPPORT ……………………………………………………………………………………………………………….

47

7.11

SUMMARY ………………………………………………………………………………………………………………………………..

47

8

TOPIC 7: RISK MANAGEMENT THEORY AND PRACTICE………………………………………………………

48

8.1

INTRODUCTION………………………………………………………………………………………………………………………….

48

8.2

LEARNING OBJECTIVES AND RESOURCES ……………………………………………………………………………………….

48

8.3

AN INTRODUCTION TO THE RISK MANAGEMENT PROCESS…………………………………………………………………

48

8.3.1

The conceptual base ………………………………………………………………………………………………………………

48

8.3.2

Safety and productivity…………………………………………………………………………………………………………..

50

8.3.3 Attributes of a risk management system ……………………………………………………………………………………

52

8.4

ORGANISATIONAL STYLE AND THE QUALITIES OF A MANAGED RISK ………………………………………………….

53

8.5

WHAT PROMOTES RISK MANAGEMENT IN AN ORGANISATION? ………………………………………………………….

54

8.6

WHAT WORKS AGAINST RISK MANAGEMENT IN AN ORGANISATION?………………………………………………….

55

8.7

AWAY FORWARD ………………………………………………………………………………………………………………………

56

8.8

THE EXTENDED GENERALISED TIME SEQUENCE MODEL …………………………………………………………………

56

8.8.1

Introduction ………………………………………………………………………………………………………………………….

56

8.8.2

Risk Identification …………………………………………………………………………………………………………………

57

8.8.3

Valuing Assets ………………………………………………………………………………………………………………………

57

8.8.4

Liabilities …………………………………………………………………………………………………………………………….

59

8.8.5

Estimation of Risk …………………………………………………………………………………………………………………

60

8.8.6 Decision-making (evaluation of risk control measures) ………………………………………………………………

61

8.8.7 Contingency planning and crisis management…………………………………………………………………………..

61

8.9

VIEWS ON SAFETY AND RISK MANAGEMENT…………………………………………………………………………………..

63

8.9.1 The need for specific risk control measures ………………………………………………………………………………

63

8.9.2 Where are the failings? ………………………………………………………………………………………………………….

63

8.9.3

“Resilience engineering” ……………………………………………………………………………………………………….

65

8.9.4

Specifying work methods ………………………………………………………………………………………………………..

66

8.9.5

Summary………………………………………………………………………………………………………………………………

67

8.10

RISK AND SAFETY MANAGEMENT SYSTEMS ………………………………………………………………………………….

68

8.10.1

Introduction ……………………………………………………………………………………………………………………..

68

8.10.2

An introduction to risk management systems …………………………………………………………………………

68

8.11

SUMMARY OF THIS TOPIC ……………………………………………………………………………………………………………

70

Version 2013 Sem 1

Swinburne University of Technology

Page 3 of 70

Printed 4/03/2013

Faculty of Engineering & Industrial Sciences

HES 6721 Risk Management Principles

.0/msohtmlclip1/01/clip_image006.gif”>

1 Subject Information

1.1 Introduction

This unit provides an introduction to the legal origins of liability in an organisation and to the theory of the management of risk. The subject HES6724 Risk Management Systems provides an opportunity to study the practice of risk management in greater detail.

Topics 1 to 6 have been compiled by Damien Smith LLB, B.Com, FAICD, FAIM, CAHRI, FCIS. Damien is a practicing lawyer, holds various directorships, has authored numerous books including “Breakthrough and Achieve with Governance Intelligence®”; developed unique governance SaaS tool -“governABILITY™”; and is Managing Director of a successful consulting company Enterprise Care Pty Ltd.

Topic 7 has been compiled by Professor Derek Viner of Swinburne’s Faculty of Engineering and Industrial Sciences. Derek has over thirty years of industrial and academic experience in the technical and management aspect of risk.

Version 2013 Sem 1

Swinburne University of Technology

Page 4 of 70

Printed 4/03/2013

Faculty of Engineering & Industrial Sciences

HES 6721 Risk Management Principles

.0/msohtmlclip1/01/clip_image006.gif”>

2 TOPIC 1 Managerial Law

2.1 What is managerial law?

Managerial law is descriptive of those laws, many of which impact on enterprises and management of those enterprises as they go about their day to day operations and decision making.

Often it can be surprising just how many laws there are which we need to be aware of including:

ñ Constitutional Law and State / Federal Relations

ñ Negligence / Duty of Care

ñ Trade Practices / Fair Trading and Consumer legislation

ñ Contract

ñ Environment and Occupational Health and Safety

ñ Employment and Industrial Relations

ñ Intellectual Property

ñ Taxation (State and Federal).

The above is by no means exhaustive, yet any one may constitute a considerable impact on the decision making (or at least one expects this to be so) of any enterprise and its managers.

Every law needs to be understood at least from the position of how it may influence a decision of a manager, a person carrying out their role and duties on behalf of the enterprise; and hence the impact it has on and within the enterprise.

Hence a professional manager is one who understands their working environment which includes the impact of law. The professional manager has a working knowledge of each of the relevant managerial laws and a sound understanding of their fit within the decision making processes of both the role as manager and the enterprise as an operating unit.

Managerial law manifests itself in matters of:

ñ compliance

ñ sign-offs

ñ policies

ñ accountabilities

ñ training and awareness sessions

ñ audits

ñ specific roles established within an enterprise.

The success of any professional manager and indeed the enterprise itself will depend upon the understanding and adoption of professional practices in the area of managerial law.

The trend towards having an integrated risk management program reflects that risk management is part of an overall organisational management activity of which legal compliance is simply an important part.

Version 2013 Sem 1

Swinburne University of Technology

Page 5 of 70

Printed 4/03/2013

Faculty of Engineering & Industrial Sciences

HES 6721 Risk Management Principles

.0/msohtmlclip1/01/clip_image006.gif”>

Standards Australia states in its Standard for Compliance program AS 3806:

“However, like other areas of risk management, legal compliance has its own characteristics and needs to be considered in the light of applicable legislation and the high standards for due diligence set by the courts. If these standards are not met, major operational problems can result. This means that, to an extent, legal compliance cannot always be handled under the same principles as can be applied to other areas of risk management. The court’s requirements for ‘due diligence’ defences have been set at a very high level, and reducing the standard of the precautions taken, for any reason, can easily lead to a complete loss of defence, leaving company directors and managers exposed. Standard AS 3806 indicates the methods found most satisfactory in securing proper management of legal risks.”

The purpose of this Standard is to provide a framework for an effective compliance program, the performance of which can be monitored and assessed. A compliance program can be an important element in any corporate governance program as well as any due diligence of an organisation, and should:

a) aim to prevent, and where necessary, identify and respond to, breaches of laws,

b) regulations, codes or organisational
standards occurring in the organisation;

c) promote a culture of compliance within the organisation; and

d) assist the organisation in remaining or becoming a good corporate citizen.

2.2 Identified drivers of managing legal risks

Managerial Law intends to highlight for enterprises all aspects of regulation and law as it impacts on organisational development, operations and leadership. Organisations and their leaders recognise that they operate in an increasingly complex world of ever increasing regulations that now for many stretch across national and international boundaries.

Managerial Law seeks to acknowledge the dynamics of that environment and provide a platform for our development of a more mature approach to management of both the law and our operational practices. This is to be approached by taking into account:-

1. Organisation wide perspective of risk and its oversight.

2. Compliance is acknowledged as being more then rules as it is integrated into the culture of the company.

3. Adoption of consistent policies and processes is crucial for sound compliance.

4. The view of the organisation includes all stakeholders as part of the wider understanding of the enterprise operating environment.

5. Technology as a key tool to assist enterprises in their management of this area.

6. In certain cases the outsourcing of part of the compliance monitoring means there is a greater objectivity and discipline applied.

Version 2013 Sem 1

Swinburne University of Technology

Page 6 of 70

Printed 4/03/2013

Faculty of Engineering & Industrial Sciences

HES 6721 Risk Management Principles

.0/msohtmlclip1/01/clip_image006.gif”>

2.3 What environmental forces exist?

On an ENTERPRISE WIDE basis:-

Legal entity itself

Corporate veil

From the basis of LAW:-

Common law

Legislation

Equity

Common law

State

Commonwealth

International

Matters that involve PEOPLE:-Capitalism and workers

Enterprise or workplace style agreements Master / servant relationships

Team based operations

Individual accountabilities and performance management systems Independent Contractors

Virtual Organisations – working from home

Partnering / Alliances – new approach to contracting relationships Joint Venture Activities

Our guarantees

Study Acers provides students with tutoring and help them save time, and excel in their courses. Students LOVE us!No matter what kind of essay paper you need, it is simple and secure to hire an essay writer for a price you can afford at StudyAcers. Save more time for yourself. Delivering a high-quality product at a reasonable price is not enough anymore.
That’s why we have developed 5 beneficial guarantees that will make your experience with our service enjoyable, easy, and safe.

Money-back guarantee

You have to be 100% sure of the quality of your product to give a money-back guarantee. This describes us perfectly. Make sure that this guarantee is totally transparent.

Read more

Zero-plagiarism guarantee

Each paper is composed from scratch, according to your instructions. It is then checked by our plagiarism-detection software. There is no gap where plagiarism could squeeze in.

Read more

Free-revision policy

Thanks to our free revisions, there is no way for you to be unsatisfied. We will work on your paper until you are completely happy with the result.

Read more

Privacy policy

Your email is safe, as we store it according to international data protection rules. Your bank details are secure, as we use only reliable payment systems.

Read more

Fair-cooperation guarantee

By sending us your money, you buy the service we provide. Check out our terms and conditions if you prefer business talks to be laid out in official language.

Read more

Our Homework Writing Disciplines

With a highly diverse team in almost all academic fields including: