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AGENTAugust/September 2013 | Volume 46 Issue 4

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www.imal.com.au | Aug/Sep 2013 | AGENT | 3

coNTENTS

AGENTAugust/September 2013 | Volume 46 Issue 4

18

14

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No part of this journal may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system without the prior written permission of the publisher. The views contained in articles by contributing authors are not necessarily those of the publisher, editor or directors of the Institute of Mercantile Agents Limited. Articles and content may have been edited, but remain the copyright of the author. It should be noted that articles are of a general nature and are not a substitute for appropriate professional advice. Although all reasonable attempts have been made as to accuracy of submitted advertisements and their bona fides, no warranty is given to any party. The right is reserved to accept or reject any articles or advertisements.

ON THE COVER:

Best practice 16

MEDIA & NEWS 4

FACT OR FICTION? Truthful witness 26

FEATURE Unjust actions 12

FORUM Under investigation 14 Ditch the jargon 18

PROFESSIONAL DEVELOPMENT Social media 9 Best Practice Guide 16 Workplace bullying 21 Knowledge benefits 24

VALE Warren Mallard 10 Rosalind Fryer 11

INSTITUTE From the President: Alex caruana 28 From the cEo: Alan Harries 29

The AGENT also appears online at www.imal.com.au. While essentially the same content, the online version will include any updated information at the date of posting.

public sector

fraud

insurance

harassmentscamsbullying

investigator

AGENTAugust/September 2013 Volume 46 Issue 4AGENT is the official bi-monthly journal of the Institute of Mercantile Agents Ltd.17B Denney St Broadmeadow, NSW [email protected]: 94 000 514 483ISSN: 1443-3443Editorial DirectorAlan Harries Phone (02) 4927 0477 Fax (02) 4927 [email protected]

Editor contributions, articles, letters and comments from readers should be directed to:Institute of Mercantile Agents17B Denney StreetBroadmeadow, NSW 2292Phone (02) 4927 0477 Fax (02) 4927 [email protected] material deadline is the 1st of the month preceding publication.Design and ProductionAbigail ThompsonPhone (02) 4927 [email protected]

PrinterPrint NationalBroadmeadowPhone (02) 4908 5800 Fax (02) 4969 4844General, Membership andService Directory EnquiriesInstitute of Mercantile Agents Ltd.office hours: 8.30am-5.00pm [email protected] (02) 4927 0477 Fax (02) 4927 0677Po Box 233, Waratah NSW 2298Advertising EnquiriesPhone (02) 4927 0477 Fax (02) 4927 [email protected]

4 | AGENT | Aug/Sep 2013 | www.imal.com.au

MEDIA & NEWS

NO prison for farmhandRemember the news story “Boar in a roar” in the AGENT earlier this year? A sequel to that story recently played out in an Irish

court when the farm worker who had helped his employer subject two repossession men to the terrifying ordeal (ordering them to strip naked and get into a pen with an agitated boar) avoided a jail term.

Marin Danci (25), a Romanian national who pleaded guilty 12 months ago to threatening to kill or seriously harm the two repossession men at the pig farm of Donal Connaughton in Newtowncashel, Co Longford in April 2010 was handed a 2 year suspended prison sentence and 200 hours community service at Longford Circuit Court.

[Source: www.independent.ie - 6 June 2013]

A media release from the US Federal Trade Commission (FTC) details

that the world’s largest debt collection operation, Expert Global Solutions and its subsidiaries, has agreed to stop harassing consumers with allegedly illegal debt collection calls and to pay a US$3.2 million civil penalty - the largest ever against a third-party debt collector.

In its complaint, the FTC charged that the companies violated the Fair Debt Collection Practices Act and the FTC Act by using tactics such as calling consumers multiple times per day, calling even after being asked to stop, calling early in the morning or late at night, calling consumers’ workplaces despite knowing that the employers prohibited such calls and leaving phone messages that disclosed the debtor’s name and the existence of the debt to third parties. Further it was alleged the companies also continued collection efforts without verifying the

debt even after consumers said they did not owe it.

Under the proposed order whenever a consumer disputes the validity or the amount of the debt the defendants must either close the account and end collection efforts or suspend collection until they have conducted a reasonable investigation and verified that their information about the debt is accurate and complete. The proposed order also restricts situations in which the defendants can leave voicemails that disclose the alleged debtor’s name and the fact that he or she may owe a debt.

Further under the proposed order, the defendants must: stop falsely representing that they will not call a number to collect a debt; not harass, oppress, or abuse a consumer while attempting to collect a debt; not communicate with third parties about a consumer’s debt; not communicate with a consumer at his or her workplace if it is clearly inconvenient

or prohibited by the consumer’s employer; except in limited circumstances, cease communications if a consumer has requested no further contact or if a consumer refuses to pay a debt; and not violate any provision of the Fair Debt Collection Practices Act. The defendants are also required to record at least 75 percent of all their debt collection calls beginning one year after the date of the order, and retain the recordings for 90 days after they are made.

With more than 32,000 employees and revenues in 2011 of more than $1.2 billion, the Texas-based Expert Global Solutions and its subsidiaries (ALW Sourcing, LLC; NCO Financial Systems, Inc.; and Transworld Systems, Inc., which also does business as North Shore Agency, Inc.) collectively are the largest debt collector in the world.

[Source: www.ftc.gov - 9 July 2013]

EXPERT pays

55www.imal.com.au | Aug/Sep 2013 | AGENT |

MEDIA & NEWS

According to a recent report in the Sydney Morning Herald, Frank Monte is back on the case

Unlicensed private investigator Frank Monte has been repeatedly outed as a liar and cheat and is reportedly again using aliases to scam unsuspecting clients.

Readers will recall the article “Lying game” in the October 2012 AGENT where we reported the NSW police had refused to renew Monte’s private investigator’s licence last year for reasons of his ‘’lack of moral integrity’’ and history of “ripping off clients”.

Investigative reporter Kate McClymont has reported that “just one year down the track, a Fairfax Media investigation can reveal the serial cheat and one-time bankrupt is back doing what he does best - using a variety of aliases to rip off unsuspecting members of the public”. Monte apparently was less than forthcoming when asked if he was back in business.

NSW licensing police refused to renew Mr Monte’s licence on the grounds he was not a fit and proper person. They told him: ‘’You have demonstrated in the past that you lack moral integrity and rectitude of character … It is in the public interest to protect the members of the public … from persons such as yourself who receive money and then do not undertake the works.’’

The NSW Police were responding to some “88 complaints to the Department of Fair Trading about Mr Monte and his companies over work that had been paid for but not performed”.

Evidence was presented when Monte went to the Administrative Decisions Tribunal to contest his licence cancellation - such evidence revealing “a string of fictitious identities used by Mr Monte to rip people off”.

In the latest media report it is alleged Monte is still cheating people using new aliases that include Richard Sterling, John Blackman and Christian Horner.

A Perth share trader retained Christian Horner from Kennedy Marshall in Sydney to get information in relation to a court case where he was being sued for criticisms he posted on a chat site about an oil company. Despite a deposit of $2,500 being paid, the trader could not get news on the investigations, with Horner first claiming he was unable to talk as he was in court before

later becoming abusive in response to requests for progress. The trader eventually discovered Kennedy Marshall was one of Frank Monte’s fronts.

Amanda Nella runs WA security and investigation agency Nella Global Solutions - she told Fairfax Media that last month her firm had been contacted by a Richard Sterling allegedly of an American-based investigations firm, Sterling Cooper and engaged to track a vehicle for him. Following location of that vehicle Nella requested payment before doing the further work requested but a terse email reply suggesting she “show some professional courtesy and conduct the remainder of the operation immediately and that payment would be in 60 days” triggered her interest in Sterling Cooper.

Using her skills as an investigator, Nella established the email from Sterling Cooper had come from a server with an IP address in NSW rather than originating as claimed from Los Angeles. The investigation firm “Sterling Cooper” interestingly shared its name with television series Mad Men’s fictitious ad agency

Nella hasn’t been paid and believes Sterling is in fact Monte - she has referred her concerns to the NSW Police.

Fairfax Media quotes the director of the NSW Police’s Security Licensing & Enforcement Directorate, Cameron Smith as saying that police had received information that Mr Monte “may be operating under a new alias” and that both the Rocks and Rose Bay police “are investigating those complaints”.

[Source: www.smh.com.au - 14 July 2013]

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DEBT experiencesConsumer Action Law Centre has released a report

publication entitled “Like Juggling 27 Chainsaws” by Dr Eva Bodsworth of the Brotherhood of St Laurence which looks at the experience of default judgment debtors in Victoria.

Each year 30,000 to 40,000 consumers receive default judgments against them in the Victorian Magistrates’ Court, often for relatively small debts. The impetus for this study focusing on court data and individual consumers’ experiences of default judgment came from concerns about the prevalence of default judgments and the impact of such legal action on vulnerable debtors. Of particular concern is the high number of claims for small debts which result in default judgment, given the potentially harsh and ongoing consequences for vulnerable consumers.

The publication can be accessed at www.consumeraction.org.au.

| AGENT | Aug/Sep 2013 | www.imal.com.au6

MEDIA & NEWS

For members in Victoria, the Department of Justice has announced from 13 May 2013 the content of the Business Licensing Authority (BLA) website has now been

merged into the Consumer Affairs Victoria website at www.consumer.vic.gov.au.Jurisdictional arrangements for licensing remain the same: the BLA remains the state

Government body that licences certain businesses that require a licence to operate in Victoria. Licensing and regulation information and forms are now available on the CAV website. For debt collectors, the direct link is: www.consumer.vic.gov.au/debtcollectors.

The Victorian Government has announced car registration stickers for cars and light vehicles are to be scrapped in Victoria from 1 January 2014 in a move estimated to

save almost $20 million a year.This decision was reportedly argued for by industry groups including those

representing the rental car industry and was a decision supported by the Opposition.The reform brings Victoria into line with most other states, which have either

abolished registration labels or plan to (Western Australia and South Australia were the first to axe car registration stickers followed by Tasmania and NSW - Queensland is still investigating the issue).

VicRoads issued about 5.4 million registration labels in 2011-12. Vehicle owners will continue to have registration reminders sent to them - the only change from their perspective is the requirement to stick a label on their windscreen will no longer apply. Registration costs will not change.

[Source: www.theaustralian.com.au - 3 July 2013]

NEW website

STICKERS no more

ASIC has released a report and updated regulatory guidance refining the rules for access to external dispute resolution

(EDR) schemes for small business borrowers. Key points from the report of the existing EDR access

arrangements in situations where the lender has already commenced legal proceedings include: • Smallbusinessborrowerswillcontinuetobeabletotake

disputes with their lender to the lender’s EDR scheme

• Evenwherethelenderhasalreadycommencedcourtproceedings against them, if the credit contract is $2 million or less, the small business borrower will continue to be able to take the matter to the EDR scheme

• Wheretheloanexceeds$2millionandthelenderhasalready commenced proceedings in a court, the small business borrower will not have access to EDR. This restriction commences from 1 January 2014.

[Source: ASIC Media Release - 13 June 2013]

COSL update

EDR access for small business

The Credit Ombudsman Service Limited (COSL) reports that in

the past 12 months, complaints from consumers increased by 33% but despite this overall timelines in investigating and handling complaints improved, with the average age of open complaints falling by 26 days (currently 158 days) and the median age of open complaints falling from 119 days to 97 days.

74% of all complaints closed in the past 12 months (which were within COSL jurisdiction) resulted in favourable outcomes for consumers. Outcomes included payment variations on grounds of financial hardship, fee reductions and refunds, monetary compensation and non-monetary orders (such as amending or removing a credit listing or returning a security asset to the consumer’s possession). In terms of monetary outcomes, consumers received compensation exceeding $3.9 million.

In recent months, COSL has increasingly promoted its services to vulnerable and disadvantaged consumers. Its case managers also attended training courses in order to better understand the needs of disadvantaged consumers, such as those with mental health issues. COSL also engaged extensively with community support networks including community centres and financial counsellors by distributing information packs with financial hardship brochures and other guides at consumer forums.

Additionally, COSL continued to engage with financial services providers by attending and presenting at their events - this activity being aimed at allowing COSL to respond directly to issues of concern to industry.

[Source: COSL News - July 2013]

The IMA’s SA President Andy Smith recently attended a Security Liaison Meeting organised by Consumer and Business Services South Australia. He reports:

The suggestion by the IMA that a suitable flyer promoting the available industry associations be issued to all licence applicants was not accepted but modified - the regulator agreeing to place a brief description of the industry associations together with relevant contact details on its website to assist licence applicants.

Under consideration is a suggestion that for the licensing of Process Servers the criteria to obtain an Investigation Licence both for Inquiry Agents and Debt Collectors should include a segment on Process Serving, so all that is required is the wording “Process Serving” to be included on issued Licences.

Also under consideration is a suggestion to issue ‘Temporary’ Investigation Licences for both Inquiry Agents and Debt Collectors whilst the applicant’s training is undertaken - the regulator has agreed to use a recent applicant as a test to see how such an arrangement might work.

SA licensing

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MEDIA & NEWS

The Canberra Times has reported the Auditor-General has raised concerns about the confidentiality of details given to

private debt collection agencies chasing people owing money to Centrelink.

Whilst Centrelink is reportedly getting value for its money with the two agencies retained (Dun & Bradstreet and Recoveries Corporation) increasing the success rate of their recovery, the Department of Human Services (DHS) which oversees Centrelink is according to the audit considering “alternative future models” for debt recovery.

Annually delivering some $150 billion in payments Centrelink recovers approximately $1.1 billion each year in debts due to overpayments. Of the total amount recovered in 2011-12, the external collection agencies (ECA) recovered about 10% of those overpayments, or $114 million. This recovery by the ECAs was noted to have almost doubled since 2009-10, when it was $60.8 million or 5.5 per cent. Interestingly, the report also noted that “the recovery activity by the agencies generated a quarter of all complaints about debt recovery”.

The overall cost of recovering Centrelink debts in 2011-12 was estimated at almost $30 million. The audit report noted that “while it is not possible to provide a final contract value, in 2012-13, DHS raised initial purchase orders for a total of $8 million (GST exclusive) to cover the expected ECA [external collection agencies] commissions”. The report also noted the department’s administration of the agencies’ contracts to recover debt was generally effective.

If there was one criticism in the report it was a finding in relation to confidentiality: the DHS had not conducted formal audits of the agencies’ compliance to protecting customer information. Accordingly, an audit recommendation was made that the DHS “periodically verify compliance with the IT, physical and personnel security requirements contained in the current contracts with external collection agencies, to gain assurance that DHS customer information is being managed securely”.

The finding was agreed by DHS who claimed to be committed to the introduction of security audits, consistent with the contractor’s responsibilities, for the protection of information.

[Source: www.canberratimes.com.au - 9 July 2013]

CENTRELINK confidentialityUK media have reported Graham Freeman, one of the

PIs at the centre of the Leveson inquiry into the use of confidential data by the media has now admitting to having spied on behalf of financiers too! Freeman claims the list of those blue chip companies if published would rock London, whilst the UK Police and the Serious Organised Crime Agency (SOCA) are dragging their feet on releasing the details as, he claims, to do so will expose their own failures to investigate serious fraud allegations.

Freeman was one of four private detectives jailed last year for stealing confidential information on behalf of big business clients. That matter apparently prompted SOCA to secretly compile a list of 102 names of well known financial institutions, law firms and insurance companies all linked to the corrupt investigators. The SOCA operation was reportedly codenamed “Millipede” due to it connecting so many financial institutions, firms and high profile figures to the work of corrupt PIs. Freeman insists publication of the names will lead to high profile prosecutions but the refusal to publish amounts to those companies being protected by the police.

These revelations add to concerns that while Lord Justice Leveson dealt with some newspapers’ using criminal private detectives, nothing was done to tackle the much greater use of them by others in London, who Freeman claims sometimes turned to private investigators because the police failed to investigate claims of property and investment fraud.

Sentenced to 6 months gaol last year but only serving 8 weeks imprisonment for “conspiring to defraud by ‘blagging’ - or stealing – personal information through phone calls to banks and companies” Freeman now lives in Spain and works on maritime security.

The “Millipede” list of names was deliberately kept confidential in a decision by SOCA and the Crown Prosecution Service with none of the clients’ names being read out in court as would have been customary. The list of names was apparently finally surrendered to the UK Parliament by SOCA in mid July 2013 on the strict proviso it be kept under lock and key and not shown to the public due to “human rights concerns or the risk of harm to the companies’ commercial interests”. UK members of Parliament are now calling for information as to which companies on the list behaved illegally.

Freeman told the Mail on Sunday “the SOCA list is a ‘Pandora’s Box’ which, once opened, will bring about a criminal investigation that will end in the gaoling of dozens of bankers, lawyers and boardroom executives as any of the PI clients that requested the information could be charged with the same conspiracy for which he and the three other detectives were gaoled”.

Freeman who is declining to name his own clients as he doesn’t want to go through any more court proceedings explains that many of his cases arose due to a police refusal to act and commit resources to investigate fraud - one lawyer client who hired him “had 35 clients who had lost millions in a property scam - the police didn’t want to know, so she resorted to private investigators”.

[Source: www.dailymail.co.uk - 28 July 2013]

Congratulations to IMA member David Cains of the ARMS Group in Hornsby who was elected at ACA International’s

National Convention held in San Diego in July 2013 as International Director for Oceania for its International Unit.

Australian members of ACA International wanting to reach David can best contact him by telephoning him on 0419 215 282 or by emailing [email protected].

PANDORA’S box

INTERNATIONAL director

9

PRoFESSIoNAL DEVELoPMENT

SOCIAL media

More and more Australian businesses are looking to harness what social media opportunities might exist for their business - for many it is uncharted territory with potential adopters left

languishing and indecisive on how to proceed, while attempting to navigate through the jargon and seeming superiority of those already entrenched with the new mediums.

It’s no surprise there is an increasing presence of social media in our lives - it is inevitable, engagement via social media will increasingly be an opportunity for businesses to increase their profile and communications.Here are some insights from the recent Sensis report:

Uptake: Businesses with a social media presence has grown markedly in recent years:

2011 2013

Small Business 14% 30%

Medium Business 25% 47%

Large Business 50% 79%.

Usage: The social networks used by businesses are: Reasons: Businesses say they use social networks to:

Small Medium Large

Facebook 88% 85% 87%

Twitter 22% 39% 64%

LinkedIn 21% 27% 34%

Google+ 10% 16% 9%

Blog 7% 4% 11%

Updating: Here is a downside of social media - the need to keep content dynamic and up to date. This requirement is easier for bigger businesses with dedicated resources, but no doubt is a burden for smaller size businesses. The frequency for updating has changed too in recent years:

Driving traffic: Businesses use a variety of methods to drive traffic to their social networks:

Means of driving traffic Small Medium Large

Links on own website to social media 32% 36% 51%

Like/follow/subscribe to other’s social media 15% 13% 6%

Advertise their social media in traditional media 11% 15% 24%

Advertise on other websites/Facebook 9% 13% 17%

competitions/promotions 6% 5% 5%

Includes links in directories 6% 8% 3%

Email 5% 7% 4%

Have no strategy to drive traffic 29% 24% 9%

The AGENT looks as some aspects of social media usage following the release of the Sensis 2013 Social Media Report.

Small Medium Large

Invite online comments, ratings & reviews

56% 58% 73%

create two way communication with clients & contacts

54% 62% 75%

Small Medium Large

Frequency 2012 2013 2012 2013 2012 2013

Everyday 22% 18% 39% 36% 60% 65%

A few times per week 15% 17% 12% 15% 18% 11%

once a week 28% 24% 19% 24% 10% 10%

A few times a month 9% 11% 7% 4% 2% 5%

once a month 9% 13% 12% 6% 7% 4%

www.imal.com.au | Aug/Sep 2013 | AGENT | 9

VALE

VALE: Warren MallardWarren “The Duck” Mallard, 64 passed away following a battle with cancer on 28 June 2013. He is survived by partner Anna Robilliard, daughters Kesa & Brooke and stepsons Todd & Jess.

Warren spent 11 years with the NSW Police before retirement on medical grounds following significant injuries sustained on duty. In 1982, he helped establish Lyonswood Investigations which grew to be one of Australia’s most respected and trusted private and forensic investigation companies.

Warren enjoyed many investigative successes - quite a few were significant:

In the 90’s Warren and his team coordinated extensive complex investigations for GIo which ultimately proved a criminal network were operating throughout Sydney suburbs staging motor vehicle accidents to give rise to fraudulent third party personal injury claims.

More recently Warren increasingly worked with the public, taking on work for the victims of scammers and fraudsters. His determination for success shone in the challenge of outing and stopping those who brought his beloved investigation industry into disrepute.

Some years back, he pursued and ultimately stopped a Sydney based training organisation which had been duping tens of thousands of dollars from gullible students on false promises its courses would qualify those individuals to gain a cAPI licence.

Those who preyed on emotionally vulnerable persons to extract up front large sums to undertake unnecessary and pointless investigations, discovered that whenever learning of such situations Warren would fearlessly pursue those operators to expose their fraudulent activities and then assist the regulators to shut down their activities.

Many will have heard Warren speak of his nemesis of more than 24 years, the colourful and infamous Frank Monte. Warren identified Monte and his investigation business as being at the centre of widespread fraudulent activities. He gathered evidence that Monte’s activities included creating fake names for private detectives, taking thousands of dollars from unsuspecting clients, then abusing and threatening them when they complained.

Assisted by the evidence Warren had collected, action was taken by NSW regulators and eventually this saw Monte stripped of his private investigator’s licence in late 2012. This milestone vindicated Warren’s efforts to rid the industry of a serial unethical operator.

Many in our industry enjoyed through Warren and his company Lyonswood Investigations their first opportunity of actual work and

industry experience. He was always willing to help others master their investigative craft.

Warren believed in the benefit of industry associations, not only joining but also leading a number of those groups at various times. He was a member of the IMA for 23 years and a Life Member of the World Association of Detectives following 25 years of membership.

Through the IMA Warren represented the industry in many meetings with government and regulators on matters of industry licensing, training and conduct. He was an enthusiastic, passionate and effective champion for the private investigation industry. He was also a regular contributor to this magazine.

Warren was often called upon by the media as an expert in his fields of private investigation practice and additionally assisted many journalists in getting to the facts in their investigation pieces on corrupt and fraudulent activities in the community.

His pursuit of excellence and successes in the detection and prevention of crime was acknowledged by 3 awards by commissioners of Police for acts of bravery and assistance to the police whilst operating as a private investigator.

Messages from industry friends around the globe describe Warren as a fine man, a true gentleman, an industry leader, a true investigation professional, one of the great investigators in the world and the most creative salesman. He was known and respected as a great investigator and a great fisherman with plenty of stories to tell for both - a joke up his sleeve but with a wise word to follow.

In closing, let me share one of Warren’s jokes:Sherlock Holmes and Dr. Watson went on a camping trip. As they lay down for the night, Holmes said: ”Watson, look up into the sky and tell me what you see?”Watson replied, “I see millions and millions of stars.”“And what does that tell you?” asked Holmes.Watson replied: “Well, it tells me that there are millions of galaxies and potentially billions of planets. It tells me that God is great and that we are small and insignificant. It tells me that we will have a beautiful day tomorrow. What does it tell you?”Holmes: “Somebody stole our tent.”

I spoke at Warren’s funeral and shared with those in attendance that “Warren’s contribution to our industry, his professionalism, integrity, determination, good humour and friendship will be long and sorely missed”.

Alan Harries

Warren presented his IMA membership by Henry Koster in 1988 Earlier this year, Warren and his dog, Floyd


11

VALE

VALE: Rosalind FryerRosalind Fryer, 64 passed away following a long illness on 12 July 2013. She is survived by her husband for 40 years Peter and their three children Luke, Justin and Monique.

Rosalind worked for 10 years for Peter Kay & Associates before joining with me in what would be a 21 year business partnership as Rapid Response Bureau, a Sydney based mercantile agency completing surveillance, repossessions, process serving, missing persons and skip tracing assignments.

Like many in our industry, Rosalind truly loved her work in an industry she found exciting, challenging and full of intrigue especially when undertaking skiptracing. She experienced great joy and satisfaction in locating someone and then effecting service of documents upon the elusive individual.

Rosalind regularly served court process about the Sydney cBD and suburbs with me acting as driver and navigator, whilst she would hop out of the car, run to the building and attend to service. Rosalind was professional, determined, tenacious and at times fearless in getting her process served.

As with most process servers, there are always jobs which are recalled due to difficulties or the notoriety of the individuals involved and in some cases due to the threats made by those attempting to evade service. At Rosalind’s funeral, I shared a number of those adventures as I reflected on her work life:

one job involved serving two notorious businessmen at the cross - after a few attempts at one nightclub, Rosalind managed to gain admittance to see one of the fellows concerned and a few minutes later came outside beckoning to me to come into the club. on entering the club fearing some problem, I found Rosalind engaged in an animated discussion with the businessman

concerned - the fellow was proudly explaining to Rosalind where he had been previously shot and knifed, even pulling up his shirt to show her the healed scars.

The other businessman to be served in the same matter was somewhat less than happy to cooperate with the security guards at his nightclub barring Rosalind access whilst the fellow hid inside. I recall Rosalind standing her ground, identifying herself as an officer of the court and saying that “she had to pass the legal documents to him herself” - a short time later, the fellow came out and accepted the process.

Rosalind from time to time served process upon NSW Members of Parliament and would rush indoors to serve the MP concerned only to leave me out in my car for up to an hour at a time - her response to my concerns whether there had been some difficulties were usually dismissed with the explanation that she had been explaining to the MP concerned where he or she was falling short in their representative responsibilities.

on another occasion involving service of a young Middle Eastern male, I had been unsuccessful in effecting service as the fellow kept denying his identity - this result was not good enough for Rosalind who told me “give me the bloody document, take me there and I’ll serve it”. She got the document served with the male identifying himself. opening her handbag she pulled out the document handing it over saying “here it is, you’re served” before walking out. The fellow followed Rosalind outside confronting and ultimately assaulting her. The police were called and quickly attended and arrested the fellow.

Service in the city can be dangerous and difficult at times for a range of reasons

including access to high rise apartments. on one job Rosalind and I managed to get ourselves locked inside a stairwell unable to get out at the ground floor or on any of the floor exits as all doors were locked. This predicament was upsetting especially for Rosalind who yelled at me “I’ve got to go home and cook dinner, how are we going to get out?” My response that we might be stuck there for the night set Rosalind off. our argument occurred in the stairwell at the 2nd level being the floor where the subject resided - our noisy squabbling caused him to open the stairwell door to find out what was going on. In response to his challenge as to “What are you two doing here?” Rosalind quickly responded with “I’m looking for you, I’ve got a legal document for you” and served him.

Rosalind always had an affinity with her clients and loved talking and dealing with them. She held fond memories and regard for the agents she used around Australia especially those in the bush and would often get caught up having a chat with them about the work we all do.

There are so many memories of times spent doing surveillance, process serving, skip tracing and debt collection, Rosalind will be missed.

Frank Hoare

ScG AD


12| AGENT | Aug/Sep 2013 | www.imal.com.au

FEATURE

An investigation is now underway in the US into allegations that a Texas judge is corrupt. It is claimed the judge even

interfered in a child custody dispute involving an attorney he did not like. There are also allegations that Judge Layne Walker in Jefferson County may have misused a defence fund for the poor and multiple reports he lashed out at those whom he perceived as opposing him, up to and including issuing orders that they be arrested.

Judge Walker who has been on the bench in Jefferson County for more than 10 years is being investigated by the Texas State Commission on Judicial Conduct following a complaint and the FBI is said to be conducting its own investigation.

Difficult serviceA Texas process server in proceedings recently commenced

alleges the judge pulled a gun on him when he first served a records subpoena on him at his residence and then had him arrested on false charges when he later attempted to serve process on the judge in his courtroom. Process server Stephen Hartman has sued Jefferson County Judge Layne Walker - he also alleges the judge and the county sheriff destroyed evidence, tampered with witnesses and obstructed justice.

The background to these bizarre allegations is that Stella Morrison, a criminal defence lawyer who is an African American had earlier commenced a lawsuit against Walker claiming he had falsified perjury charges against her and had his bailiff rough her up. She also accused Walker of “intentional racial discrimination against African-Americans” and “an ongoing pattern of harassment, retaliation, unconstitutional actions, grossly negligent conduct, and intentional Texas torts” against her.

Hartman was engaged to serve the process on behalf of Morrison but following his difficulties in doing so, Hartman filed his own lawsuit against Walker and others, including Jefferson County Texas, its Sheriff Mitch Woods, four of Woods’ deputies, and the Jefferson County court coordinator.

According to Hartman despite successfully serving many documents, he had never been subject to arrest or confinement until trying to serve Judge Layne Walker in Morrison’s case. His filed complaint details Hartman had previously served Walker with a records subpoena at his home and in response Walker had brandished a handgun and had his son “chest-bump” Hartman in wilful violation of Texas Penal Code, Section 38.16. Walker refused to comply with the lawful records subpoena. Hartman reported Walker’s threatening misconduct to the Texas State Commission on Judicial Conduct.

No safety at courtHartman asserts that in the interests of personal safety, he

decided to serve Walker in his place of employment, as the Judge of the 252 Judicial District Court, Jefferson County Courthouse. He attended on 28 May at 8.45am and took a seat at the rear of the courtroom and sat quietly there for almost an hour. The Judge took to his bench at about 9.30am - at that time the courtroom was full and Walker handled his usual Monday list including hearing various motions to revoke probation.

At approximately 9.45am Hartman walked toward the bar in the courtroom, but he did not cross it and instead motioned for the bailiff, Sheriff Deputy Sharon Lewis, to come toward him - he whispered to her that when there was a break in the courtroom proceedings, he needed to serve Judge Walker with a federal summons in the Stella Morrison litigation against Judge Layne Walker.

Deputy Lewis didn’t respond or say anything but instead went immediately to Sheriff Deputy Steven Broussard - Deputy Lewis did not admonish Hartman nor advise he was in an unauthorised portion of the courtroom nor attempt to move or restrain Hartman in any way.

Deputy Broussard in a stern and loud voice told Hartman that he must leave the courtroom immediately. Hartman explained calmly he needed to serve a federal summons. Immediately, Deputy Broussard rushed over and began pushing Hartman physically toward the exit door. Identifying himself as a licensed

federal process server, Hartman asked Deputy

Broussard to cease his excessive and

needless physical force.

UNJUST actionsAll Stephen Harman wanted was to safely serve process on a judge but instead he found himself arrested and the victim of a vindictive vendetta.


FEATURE

ArrestedIn response, Deputy Broussard placed Hartman under arrest

- when asked if there was any charge for the arrest the deputy responded “we will tell you later”.

Hartman claims Broussard assisted by two other deputies handcuffed him and took him to the bailiff ’s office, where they patted him down and took “his wallet, his credentials, sunglasses, his undercover surveillance pen, keys to his car, and his iPhone”.

The deputies didn’t read Hartman his Miranda rights and denied him a phone call so he asked to see their supervisor.

Minutes later Sheriff Captain Carr came to the scene and according to the complaint “Captain Carr confirmed there were no criminal charges, but that Judge Layne Walker ordered an illegal arrest and the Jefferson County Sheriff ’s Office does not follow the laws or Constitution of the United States and the State of Texas, but instead only follows the criminal directives of Judge Layne Walker. Captain Carr stated to Mr. Hartman words to the effect that Mr. Hartman ‘tried to serve the wrong person at the wrong time’ and then Captain Carr immediately left but he took no action to remedy the situation.”

According to Hartman, the deputies kept him handcuffed in a courthouse cell then sent him to the Jefferson County Jail at 4.15pm and sometime before 7.00pm his employer bailed him.

Witnesses verify Hartman did nothing disruptive and never crossed over the bar into the restricted area of the court. The complaint further details the Sheriff ’s Deputies made up false charges and false allegations against Hartman and in the process defamed him.

Unlawful tamperingHartman was wearing a surveillance pen which recorded

the entire courtroom event however the Sheriff ’s Deputies confiscated it. Sheriff Mitch Woods later admitted that he and the Jefferson County Sheriff ’s Office would not return this property and would, in fact, destroy the critical evidence and wilfully participate in obstruction of justice and the unlawful destruction of evidence.

The complaint alleges Walker and the Sheriff ’s Deputies took apart Hartman’s iPhone and read all his emails and his text messages without a warrant or probable cause to do so, in violation of Hartman’s Fourth and Fifth Amendment Rights. The Defendants downloaded the contents of his mobile phone and called his contacts to try to intimidate them. These actions amount to not only an unconstitutional and unlawful search and seizure but also unlawful tampering with witnesses in violation of Texas Penal Code Section 36.05.

When the mobile phone was returned it had clearly been opened and tampered with - this is alleged to be the usual practice

of Judge Walker, Sheriff Woods and his Deputies who carry out his illegal activities. Further, the Defendants replaced Hartman’s surveillance pen with a pocket screwdriver - an action amounting to unlawfully concealing evidence, fabricating evidence, and obstructing justice in violation of Texas Penal Code §37.09.

Vindictive vendettaThese actions didn’t satisfy this vindictive judge and lawmen as

Hartman contends their actions continued.He claims following this unlawful conduct, Walker through

his Court Coordinator Ann Landry continued the unlawful vendetta by maliciously seeking and continuing to seek to revoke Hartman’s professional licenses. Walker and Ms. Landry maliciously filed formal complaints against Hartman with firstly the Texas Department of Public Safety, Private Security Bureau then with the Texas Process Server Review Board and finally with a trade association, the Texas Association of Licensed Investigators. The Texas Association of Licensed Investigators has expressed concern about the Defendants’ wilful, negligent and unlawful release of the Hartman’s personal information, in violation of the privacy provisions of the Texas Open Records Act.

In a final volley, it is alleged Walker used his control over the Jefferson County District Attorneys’ Office, Judge Tom Maness (Criminal District Attorney) and Ed Shettle (the First Assistant to the Criminal District Attorney) “to file malicious, fabricated criminal charges against Hartman, even though the Jefferson County District Attorneys’ Office, Judges Tom Maness and Ed Shettle know these charges are falsified, stem from numerous Constitutional violations and are yet another act of an almost endless series of official oppression perpetrated by Judge Layne Walker and those who follow his orders, in wilful violation of Texas Penal Code Section 39.03”.

Hartman is seeking punitive damages for civil rights violations and is represented by John Morgan of Beaumont who also represents Morrison in her complaint against Judge Walker. ■

[Source: www.courthousenews.com - 6 June 2013]

“Power does not corrupt men … fools, however, if they get into a position of power, corrupt power”

George Bernard Shaw

Judge Layne Walker


public sector

fraud

insurance

harassmentscamsbullying

investigator

FoRUM

You might wonder what the hapless Mark McGowan had to say, which

caused sufficient offence to warrant any attention whatsoever, let alone this article.

In June this year, Mark McGowan sought to make mileage out of the outsourcing to private investigators by the WA State Government - he reported tender documents showed WA had spent $3 million on “several private investigators over a two year period from October 2010”.

Find the leakThe context to his comments were

revelations the WA Department of Environment had engaged a PI at a fee exceeding $5,000 to track, according to media reports “the source of a leak involving a former Minister Murray Cowper who was being investigated for alleged illegal land clearing” - Mr Cowper was subsequently cleared of any wrongdoing.

Environment Minister Albert Jacob defended the handling of the situation including his Department’s engagement of a PI to ensure all enquiries into the

case of alleged serious misconduct be independent, telling the ABC “as Minister, the CEO has my full support in him taking action that he deems necessary to enforce the standards of the Public Sector Management act, which is exactly what I would expect as Minister”.

Labor MP Chris Tallentire allegedly received confidential information from a public servant and as such was someone the PI wished to speak to - he took exception claiming “he felt threatened by the investigator’s approach”. Mr Tallentire told the ABC he saw the advice from the PI that “this may constitute an act of misconduct under the Corruption and Crime Commission” as a threat and further he was offended “a department would target a Member of Parliament in such a manner - that means we’ve got public servants, managerial public servants actually ordering an outside of Government person, a private investigator to pursue a member of parliament - I find that totally unacceptable”.

The private investigator involved was Joe Baskwell of Australia Wide Investigations who maintains he was professional

and courteous at all times and that as soon as Mr Tallentire advised he would not cooperate with his enquiries, he immediately sent an acknowledgement email and thanked him for responding.

Police stateWA Opposition Leader Mark McGowan

weighed in with an accusation the WA Government was “running a police state” and adding “departments have their own process to investigate internal matters …I think employing shady, outside private investigators is not desirable in the public sector and what’s more this could be costing many, many thousands of dollars”. He claimed to the ABC that despite 16 years in parliament he had not encountered such a situation previously.

Whoops, seems Mr McGowan got it wrong about knowledge of such outsourcing to PIs!

Firstly Joe Baskwell, the PI involved soon revealed he had previously probed leaks from a Labor office and then the WA Premier pointed out deficiencies in Mr McGowan’s recollections/knowledge.

Was it naivety or hypocrisy which drove recent comments by the State opposition Leader in Western Australia? His poor form comments suggest a desire to make political mischief with scant if any regard to the facts or the integrity of the investigation industry.

UNDER investigation


FoRUM

Get it rightOn 18 June 2013, in the WA Parliament’s

Question Time, Premier Colin Barnett hit back at Mr McGowan’s claims revealing the “former Labor government hired contractors to look into 107 matters in the Education Department alone in 2007” and pointing out that for at least part of the relevant period, Mr McGowan had been the Education Minister!

Mr Barnett went on to say there was “nothing wrong with using outside investigators to examine allegations of misconduct” and explained that if it’s a matter of “investigating the conduct or perhaps misconduct of a public servant, and if it’s not so serious as to go to the Corruption and Crime Commission, it’s handled by the Public Sector Commissioner”.

OffendedMr McGowan’s sweeping description

of private investigators as “shady” is both deeply offensive and revealing of his ignorance of the professional nature and importance of the Australian investigation industry.

As most readers will appreciate the majority of licensing regimes across Australia require industry members to undertake and prove training and other competencies to be licensed as investigators. Being entrusted with assignments by clients, which widely and routinely include government departments, major corporations, banks, insurers, crown lawyers and private practice law firms similarly requires industry members to demonstrate their competencies and integrity.

Industry realitiesIf Mr McGowan actually cares (and his

offensive and ill considered comments about the private investigation industry suggests he probably won’t) it will shock

him to learn of the modern realities of the private investigation industry throughout Australia.

The undisputable facts are that in Australia the investigation industry is highly evolved, sophisticated, fully transparent and accountable for their actions to their clients and relevant regulators for the work they undertake in areas which routinely include:• Insuranceinvestigationsforworkers

compensation, general insurance (property and motor vehicle), public liability and professional indemnity

• Workplaceinvestigationsintomatters such as official public sector misconduct, harassment, sexual harassment and discrimination, bullying, conflicts of interest, fraud and theft

• Generalinvestigationssuchaspre-trial evidence gathering, criminal investigations, unsolved crimes, patent & trademark investigations, debugging/security sweeps, workplace theft, fraud & injury investigations, internet & IT related investigations and forensic investigations ■

the investigation industry is highly

evolved, sophisticated, fully transparent and

accountable

cENTRAL VIc AD



Alan Harries reports on the meeting recently held to showcase to stakeholders the Best Practice Guide (BPG) for the Repossessions Sector and to workshop validation and endorsement of the content.

The BPG project for the Repossessions Sector rolls on as detailed in the last

edition of the AGENT with a meeting of stakeholders held in Melbourne on 18 July 2013. Invitations were extended to the major banks and financiers who regularly engage the industry to undertake repossessions and also to ACCC and ASIC and the two EDR Schemes, the Financial Ombudsman Service and the Credit Ombudsman Service.

Interestingly as approaches were first made to a number of financiers to support the meeting they expressed a view they would prefer a “stakeholders only” meeting in the first instance rather than involving field agents so as to ensure an open opportunity to express issues of importance to financiers without any risk of disturbing the good relations held with their service providers in the sector.

The agenda for the meeting was pretty straight forward - after a welcome and brief overview by National President Alex Caruana, the group stepped through the format of the BPG before offering general comments on the initiative. This was followed up by a workshop of the actual content with participants identifying areas where there was a need for tweaking or modification.

Insights to reporting relevanceThe representatives of FOS and COSL

provided insight to the meeting as to their respective processes in investigating complaints lodged by consumers about matters involving repossessions - the

reports of industry members play a significant role in the respective EDRs determining the actual facts of each complaint. The value of such reports and the need for a strict adherence to objective facts with actual timelines and the avoidance of gratuitous opinions within reports was noted.

The recording of actual times for actions detailed within reports becomes particularly significant as members of EDR Schemes are obliged to halt all collection activities including repossessions immediately upon the lodgement of a complaint by a consumer with the EDR Scheme, so as an example if a repossession was noted to have been completed at 1.00pm and a complaint was lodged at 1.05pm, it is clear the collection/repossession action was not in conflict with the creditor’s EDR obligations, however if those times were reversed, potentially the creditor might be required by the EDR Scheme to release the repossessed asset back to the consumer who lodged the complaint.

Compliance pathwayKonrad Chmielewski, the National

Director of Education and Engagement Compliance Strategies with the ACCC

praised the BPG initiative as a significant first step towards possibly a Code of Practice being developed in the years ahead. He explained “Best Practice Guide” is regarded as a better descriptor than “Good Practice Guide” for such compliance expectations as it provides an aspirational element to the document for members to take up.

Valuable meetingIn addition to the EDR and Regulator

representatives, other participants at the meeting came from ANZ/Esanda, BMW Finance, Collection House as the outsourced agent managers for St George Bank, Credit Union Australia, Liberty Financial, Mercedes-Benz Financial Services, Nissan Finance & Toyota Finance. Other financiers expressed strong interest in the project but were unable to attend.

Undoubtedly from the comments made by those who did attend they found immense value in participating in the meeting and the rare opportunity to network and discuss matters with other industry stakeholders in an open, non-confrontational, cooperative and informative environment.

One attendee asked, “how often do you hold these stakeholder meetings?”

The meeting was the very first open engagement style meeting with stakeholder representatives for one sector of the industry held by the IMA in its 51 years of operation. There was agreement by all present that the meeting had been

unanimous validation of the content of the BPG and endorsement of the

initiative



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extremely insightful, useful and positive and there was definitely merit and interest in making the stakeholder forum possibly an annual event for the IMA.

The meeting concluded with unanimous validation of the content of the BPG and endorsement of the initiative by the stakeholder representatives as a positive step for both the sector and the IMA.

Next stepsFollowing this meeting, work is underway

to update the BPG to pick up the matters provided by the stakeholders as feedback to the content and format of the guide. The final draft version of the BPG will then be released to IMA members by email with an invitation for written feedback to advise any concerns as to the draft content. A teleconference has been convened for IMA members who work in the Repossession Sector on Wednesday 28 August 2013 at 12 noon to discuss the guide and its formal adoption. ■

INVITATIONAll IMA members providing repossession services are invited to join in a teleconference of the Repossessions Sector to be held:

Wednesday 28 August 2013 From: 12 noon to 1.00 pm

(Eastern Daylight Savings Time)

Join by telephoning from a landline or mobile telephone to:

TOLL FREE 1800 857 029or a local call from:

Adelaide 08 8220 0836

Brisbane 07 3811 0988

canberra 02 6210 0851

Darwin 08 8989 0817

Gold coast 07 5560 0956

Hobart 03 6218 0647

Melbourne 03 8779 7440

Perth 08 9460 0829

Sydney 02 9696 0774

ENTER 91408364# when prompted.

Having the benefit of working across all industry sectors, I am constantly reading reports from agents across Australia

to our business in respect to repossessions, field calls, process serving and investigations.

What is both obvious and interesting to me is that industry wide there is a lack of consistency in reporting styles. Differentiation of reporting styles is likely one method we each use to brand our unique product or service delivery to the market - this is both understandable and appropriate. My concern is more about the descriptors used as jargon in those reports and which do shape the tone of the communication both in the way it is drafted and how it is perceived by those reading it.

Agents for instance variously refer to the persons they are dealing with as “debtors”, “targets”, “persons of interest”, “defendants”, “subjects” and “customers” to name just a few.

Wrong terminologyFrom movies and documentaries I’ve watched a “target” is a

term used by the military, a “person of interest” is typically used by the police whilst “subject” denotes a relationship to the Realm (ie the Queen). I’m not at all convinced any of those terms should be used in reports relating to the work assignments our industry actually undertakes.

Alex caruana asks is it time as an industry to modify the jargon used in reports to ensure the descriptors used are professional, respectful, consistent and appropriate.

DITCH the


out of place for the context for use given the

actual work we do

www.imal.com.au | Aug/Sep 2013 | AGENT |19

This got me thinking - what do our clients think of our industry and in particular IMA members who misuse those various words to describe their customers and/or persons they deal with? I wonder too, what impressions during any complaints process do the regulators and ombudsman services form about the industry and individual operators whenever they read copies of industry reports using such inappropriate terms?

Out of contextI suspect the main reason we have such

an array of words being used to identify the people we deal with, directly stems from the varying work backgrounds a lot of our members come from. As we all know, many members are drawn from a former police background, others from the military then we have those from the banking and finance sector and others from a variety of past occupations such as publicans, insurance and the list goes on.

Putting aside where we individually started our working lives, we need to think of the industry we currently work

in. My perspective is it is time to turn our collective minds to adopting a consistent and respectful use of descriptors in our reports.

At the recent stakeholder workshop for the Best Practice Guide for the Repossessions Sector, it was interesting to hear from representatives from the Credit Ombudsman Service and the Financial Ombudsman Service both informing the group that they rely upon the reports from agents when making a decision on a complaint. It follows that they too must be reading the same reports I do and most likely forming some opinions about some of our members based upon the reports reviewed.

Returning to the terms I’ve highlighted above, there is not anything inherently wrong with each of those words in the ordinary course but undoubtedly they are out of place for the context for use given the actual work we do and report on.

Simple changeThis isn’t very radical - shouldn’t we all

perhaps just call the person we are dealing

with what they actually are? A bank’s customer perhaps is best described as a “customer”. The person we are serving process on is a “Defendant”, “Witness” or “Judgment Debtor” etc. The person we follow on behalf of an insurer for surveillance is a “Claimant” whilst a person who owes money for an insurance claim is a “Third Party” and perhaps a person who allegedly owes money for all other matters is best described as the “Debtor”.

Over time I expect the industry will be increasingly called upon to better describe the people with whom it deals - this will be particularly so for those of us who work for clients in the banking and finance sector. It might be a good initiative for us to all think about the way we report to our clients and the terminology we use so as to ultimately provide a better approach to reporting and in turn amongst those who view our reports a better impression of members of the IMA - such action I’m sure will ultimately lead to us being seen as the “go to place” whenever clients are seeking out a professional agent. ■

FoRUM

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Allegations of workplace bullying are becoming disturbingly common.

The Public Service Association (New South Wales) (PSA) announced that it intends to prosecute WorkCover NSW for breaches of the Work Health and Safety Act 2011 (NSW) (WHS Act) due to the “systematic bullying and mistreatment of [WorkCover’s] staff”. The irony of this is unlikely to be lost on WorkCover NSW - it is the statutory authority responsible for enforcing the WHS Act in New South Wales.

The PSA announcement follows the recent decision of Butler v Safety Return to Work Support Division (WorkCover) [2013] NSWIRComm 45. The decision contained a scathing critique of WorkCover NSW. Deputy President Harrison found:

‘The conduct by [WorkCover NSW] is shabby and disgraceful. It lacks any objectivity and has the characterisation of institutional bullying.... the manner in which the investigation was conducted and the subsequent treatment of Mr Butler is deplorable. The decision to conduct the investigation was devoid of any common sense or fairness to Mr Butler. The conclusions reached and the logic behind them conveys an

attitude of premeditation and witch hunt, not a process grounded in fairness or objective, evidence based decision making.’

The decision is a timely reminder that no employer is immune to allegations of bullying.

Many mistakenly assume that the law defines bullying to include the traditional schoolyard examples of name calling, teasing or physical intimidation. However, from a legal perspective, bullying is so much more. As but one example, giving an employee an unrealistic work load could, in certain contexts, constitute workplace bullying.

Within the mercantile industry, it is particularly important to be mindful of the demanding working environment that collections officers may work in. A good example of this is key performance indicators or KPIs, which need to be clear, reasonable and communicated to the employee in an easy to understand manner. If not, employers become highly vulnerable to allegations of adverse action, unfair dismissal or a breach of WHS laws.

The text-book examples of bad performance management include KPIs that are unrealistic, unclear and/or altered without the employee being consulted.

Too commonly, managers in target orientated environments do not clearly explain to under-achieving employees their areas of concern and/or do not give employees a reasonable opportunity to improve. Where an employee is struggling to meet their KPIs, and is not given the opportunity to explain why and discuss the reasonableness of their KPIs, they can feel bullied by the pressure placed on them. They may also perceive the manager’s style as being dismissive and contributing to their stress and anxiety levels.

Of course, performance managing an under-achieving employee, in a reasonable manner, will not constitute bullying.

The decision involving WorkCover NSW also reminds us of the importance of ensuring that employees, particularly in management roles, receive adequate training on workplace bullying. No amount of policies or procedures will protect an employer from allegations of bullying, particularly if the way in which a particular manager acts is not reasonable in all the circumstances.

A handy tip for mercantile organisations to ensure their management receive workplace bullying training is to maintain a training register. This will help employers to know who received training, who needs to receive refresher training and the like. As a general best practice guide, workplace bullying training should be provided to new-starters upon commencement, employees who receive a promotion, and when there has been a policy change. Outside of these situations, it is a helpful refresher training tool to conduct general workplace behaviour training around every 12 to 18 months.

The announcement by the PSA also coincides with SafeWork Australia releasing a draft model Code of Practice entitled “Preventing and Responding to Workplace Bullying”. The draft can be accessed from the SafeWork Australia website. It is important that you consider the final version of the code very carefully to ensure your workplace is compliant. The code, once finalised, will also serve as a practical source document for your very own policy and procedure on workplace bullying.

Finally, the Fair Work Amendment Bill 2013 (Bill) has now passed the Senate. Once law, the Bill will create a new “bullying” jurisdiction for the Fair Work

WORKPLACE bullyingWorkplace bullying is making headlines. Again! What is your workplace doing to investigate, identify and/or prevent workplace bullying? Michael Kay and Matoula Makris of Wallmans Lawyers take a look at workplace bullying in light of recent headlines relating to legal developments in this increasingly topical area.Michael Kay

Matoula Makris



Commission (FWC). In short, if an employee reasonably believes they have been bullied at work, they can apply to the FWC for an order to stop the bullying. The FWC must deal with the application within 14 days and will have the power to make orders that are “appropriate” to prevent a worker from being bullied. Importantly, the FWC will be unable to make an order for reinstatement or require the payment of compensation.

If any of these claims were made against your organisation, it is vital that your organisation has adequate training, policies, procedures and records, to defend any allegations of bullying. Management training should include:• how bullying can be identified;• how to respond to an allegation of

bullying including how to investigate;• what can be done to prevent bullying

- managerial best practice; and • a reminder of the employer’s legal

obligations (and rights) when allegations are made.

The law of bullying is complex and does

not fall within any one specific Act. Anti-bullying regulations are found within a number of Acts of Parliament, including those relating to work health and safety, anti-discrimination, workers compensation and now, the Fair Work Act 2009 (Cth).

If in doubt, it is very important that

employers seek legal advice. With the significant publicity surrounding workplace bullying, it is only a matter of time before a significant case again hits the headlines. Don’t let your workplace become a headline. ■

Michael Kay, Senior Associate and Matoula Makris, Associate specialise in all aspects of employment, industrial relations and workplace safety law at leading Adelaide based law firm Wallmans Lawyers.

Wallmans Lawyers is well versed in providing mercantile agents and financial institutions Australia wide with a focus on practical expert advice and cost effective outcomes.For more information on how Wallmans Lawyers Employment and Workplace Team can be of assistance to your organisation, please contact either Michael Kay on (08) 8235 3044 or [email protected] or Matoula Makris on (08) 8235 3002 or [email protected].

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load could, in certain contexts, constitute workplace bullying

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KNOWLEDGE benefitsDanny Gumm explains members who know the basics of a well designed insurance policy are better placed when negotiating their next policy or cover renewal.

Firstly, I note it was an absolute pleasure for Parmia Insurance to again

have been a major sponsor of the IMA National Conference in Brisbane in May. We thoroughly enjoyed the structure and educational benefits of the event provided by Alan, Abbie and the conference team.

Similarly, it was an honour to be part of the session panel on Professional Indemnity issues and to present some key points which all mercantile agents should be aware of when negotiating a new Professional Indemnity/Liability policy or at each renewal. I thought it might be worthwhile just to reiterate some of those points for your further consideration, not so that you can take my place in the role of consulting as a professional insurance broker (as exciting as that may sound!) but to assist you to recognise some key

aspects to look for when negotiating your next policy.

Combined cover with one insurerIf at all possible, it is important to

have both your professional indemnity insurance & liability insurance covers combined with the one insurer for a number of reasons, including:• Thiscombinationstronglyreduces

the likelihood of duplication of coverage, or more importantly, gaps in coverage if one insurer is responsible for both policies - the wordings are likely to be better tailored to work together as they have been designed to work together, whereas completely separate policies designed by two separate insurers cannot provide the same benefit.

• Intheeventofaclaimwhereitis “grey” as to which policy is to respond, you will be in a far better position to have a claim paid efficiently if both policies are with the same insurer, rather than each

understand the importance of

several key elements of your policy

wording

Danny Gumm

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individual insurer trying to apportion responsibility for the loss onto the other, leaving you in the middle waiting for this argument to resolve itself.

• Thereportingproceduresforthesetypes of claims can be completely different, causing confusion as to when and how a claim can be submitted. By having the one combined policy, the claim only has to be reported once and much of this confusion disappears.

Know the Basics Again, without taking time off from work

to study insurance, it is important that you understand the importance of several key elements of your policy wording, and most importantly, the policy schedule (the page with all of the specific company details on it), including: • Makingsurethe“Insured”accurately

reflects not only the name of your company, but any other party that needs to be noted, and especially any contractors and/or sub-contractors. Parmia Insurance can extend your policy to include your contractors and/or sub-contractors activities, automatically again minimising any potential conflict between the contractor’s insurance and yours.

• Wherepossible,makesurethattheexcess for your policy does not apply against the costs associated with defending any claim, as otherwise you may need to pay out money initially prior to getting any advice from your elected legal representatives

• Ensurethatallofyourbusinessactivities have been declared in

writing to the insurer, preferably in the proposal form you complete, and also preferably noted in the policy wording to avoid any dispute of the intention of what activities are covered in the event of a claim.

• Lookcarefullyattheextensionsofyour insurance cover to ensure that it does provide specific benefits for your occupation, and therefore is truly tailored to meet your needs. Examples may be:a) Credit Ombudsman Service

(COS) or Financial Ombudsman Service (FOS) Enquiries - due to the very nature of your profession, allegations may be a source of additional exposure through no fault of your own; and

b) Breaches of the Trade Practices Act (Misleading and Deceptive Conduct) for the same reasons as above.

Understand your Policy ObligationsIn addition to understanding the policy

schedule, it is just as important to fully understand your obligations as a legal participant in the Insurance Contract. Some of those obligations include:

a) DisclosureYou have a contractual obligation to fully disclose all information to your insurer which may be relevant in their decision as to whether to offer insurance protection to your company, and/or on what terms and conditions. If you do not do this, the insurer has the right to reduce their claim payment to you in proportion to the importance of the lack of that advice causing the loss. In the event

that the lack of disclosure was seen to be intentional and fraudulent, the insurer has the right to avoid paying the loss altogether.

b) Claims/Circumstance NotificationIn Australia, we suffer from a syndrome known commonly as ‘She’ll be right, mate’ which is not an acceptable excuse for any delay in notifying your insurer in a timely fashion of a potential event that may lead to a claim. All insurance policies allow an insurer to reduce their payment of a claim in direct proportion to the relevance of their client not notifying an event immediately they become aware of it.

The above is by no means a complete listing of the key aspects of reviewing your insurance policy, but I am hopeful it will provide some helpful insight when negotiating your next insurance policy or completing your cover renewal.

Obviously, the best means of ensuring you meet all of your obligations prior to, during and after the negotiation of your insurance policy is to deal through a specialist insurance broker who specialises in providing advice to your industry. Parmia Insurance is very aware of and proud to competently meet its obligation to provide such advice and recommendations exclusively to members of the Institute of Mercantile Agents. ■

Danny Gumm is Managing Director of Parmia Insurance Brokers and can be contacted on 1800 727 642 or by emailing [email protected].


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PN_ad_Streamer_horz_190x65.indd 1 12/03/13 12:40 PM

FAcT oR FIcTIoN?

TRUTHFUL witnessWhen Grandma goes to court In a trial, a Mississippi small-town prosecuting attorney called his first witness, an elderly, grandmotherly looking woman to the stand. He approached her and asked, ‘Mrs. Jones, do you know me?’ She responded, ‘Why, yes, I do know you, Mr. Williams. I’ve known you since you were a boy, and frankly, you’ve been a big disappointment to me. You lie, you cheat on your wife, and you manipulate people and talk about them behind their backs. You think you’re a big shot when you haven’t the brains to realise you’ll never amount to anything more than a two-bit paper pusher. Yes, I know you.’

The lawyer was stunned. Not knowing what else to do, he pointed across the room and asked, ‘Mrs. Jones, do you know the defence attorney?’

She again replied, ‘Why yes, I do. I’ve known Mr. Bradley since he was a youngster, too. He’s lazy, bigoted, and he has a drinking problem. He can’t build a normal relationship with anyone, and his law practice is one of the worst in the entire state. Not to mention he cheated on his wife with three different women. One of them was your wife. Yes, I know him.’

The defence attorney nearly died.

The judge asked both counsellors to approach the bench and, in a very quiet voice, said, ‘If either of you idiots asks her if she knows me, I’ll send you both to the electric chair.’

For those who wonder as to the factual origins of the above tale which has recently been in the email traffic apparently it has no foundation in any actual case. Myth buster site, www.snopes.com reports this story involving a testy elderly lady on the stand delivering scathingly accurate character assessments of the lawyers present first surfaced in a self published collection of jokes and anecdotes by British author Charlie Walker in 2000. The story plays upon the notion everyone has some personal secret they’d rather not see come to public light whereas the reality is that jurists would swiftly intervene at the point of any witness on a stand responding with “I’ve known you since you were a boy, and frankly, you’ve been a big disappointment to me” as likely to be an attempt to subvert the podium for her own personal soapbox and would halt such testimony and admonish her to restrict her answers to a simple “yes” or “no” and direct the lawyer to control his witness. ■


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Look out. It’s a bird, it’s a plane, no, its the BEST PRACTICE GUIDE!

Well, that’s the impression I got after attending the recent Industry and Regulator stakeholder meeting in Melbourne on 28 July 2013 on behalf of all the members of the IMA.

This meeting was the first of its kind ever held by the IMA in the past 51 years! Sure we have met in the past at various times with individual stakeholders but here we had a wide forum of multiple stakeholder representatives all keen to focus on issues relating to compliance within repossessions.

What I found encouraging is we had representation from regulators at a senior level, both EDR schemes and of course agent managers, lawyers and compliance managers from major finance companies and banks who were all interested to learn what the IMA might be doing to assist its members to comply with the ever increasing compliance minefield.

From a regulator point of view, it was great to see the National Director of Education and Engagement Compliance Strategies (the man responsible for actually formulating all the codes of conduct for the ACCC) take part in the meeting. It was humbling to be acknowledged as an industry taking the initiative to create a guide that will assist members to adopt regulatory guidelines and of course adhere to all State and Federal Laws and client Service Level Agreements when undertaking repossession activities.

We were also humbled to have both EDR schemes in the room (the Financial Ombudsman Services and the Credit Ombudsman Service) - both agreeing the Best Practice Guide would assist them to identify what might be industry standards, something which is a vital part of their processes whenever investigating complaints made against agents.

The EDR representatives also provided invaluable information that will now form part of the guide.

Finally we had a fantastic representation from the finance industry, who were not only engaged in the meeting, but also contributed with suggestions on how we could improve the guide. These suggestions will close the gap on what your clients may be asking and what is in the guide thus creating a great blue print for getting your compliance ticks in place if you are serious about repossession work.

Let’s do it againAnother exciting outcome of the

meeting which will ultimately be a win for all members was that everyone in the room agreed a similar meeting (although perhaps not again after a State of Origin Game) hosted by the IMA annually, would be a great way to workshop issues and to cooperatively put in place strategies to improve member relations with their clients.

In closing, I have to say I am proud and excited to be working on the IMA executive team during what I think is a turning point for our association and industry and I look forward to launching the completed Repossessions Best Practice Guide in the near future. I also look forward to working with everyone to formulate and complete the Debt Collection, Process Serving and Investigation Best Practice Guides.

In the meantime stay safe, work hard, play hard and above all, keep it real and simple.

Regards

Alex Caruana

FRoM THE PRESIDENT

Alex caruana

a great way to workshop issues and to

cooperatively put in place strategies

IMA President Alex Caruana admits to his excitement following his involvement on behalf of members at a stakeholders meeting

EXCITED


Forward pathAs Alex details in his column opposite,

a significant and very positive milestone in the IMA’s journey occurred last month with the first ever consultative meeting held by the IMA for stakeholders to the Repossession Sector. The meeting was highly successful and augers well for the industry in its pursuit of best practice to meet modern day compliance.

The outcome was both validation of the content of the guide and endorsement of the IMA initiative. The next step is the release to IMA members for their review and adoption - this is expected to be completed by the end of August 2013.

The initiative in the repossessions sector has generated interest and excitement for members working in the other sectors, with a number already volunteering to assist in the drafting of guides for the other sectors.

Challenging stereotypesIn the article “Under Investigation” at

page 14, I take aim at the clumsy use of inappropriate stereotyping of the industry by a senior politician in Western Australia, State Opposition Leader, The Hon Mark McGowan, MP.

Some members may not have seen the comments to the media by the politician involved, however others found his use of the adjective “shady” when referring to all private investigators both inappropriate and deeply offensive. As noted in the article, Mr McGowan demonstrated ignorance about the modern industry and its long established role in providing effective and transparent outsourced investigations to many organisations including the WA Government over many years, including to a department whilst he was the responsible Minister.

As an industry it brings no credit to simply leave unchallenged incorrect stereotyping. Yes, I understand such

stereotypes are perpetuated by the fictional stories portrayed by Hollywood and in novels - stories providing entertainment and escapism but regrettably no reality.

The continuing damage to our industry inflicted by such mindless use of false stereotypes is clearly evident in the type of prejudices held against the industry by some elements of the media, regulators and the wider community.

As an industry we need to be grounded to the task of challenging and stamping out such false stereotypes at every opportunity presented to us in our daily work and whenever the industry is sledged unfairly in the media. Not correcting false prejudices only makes the industry’s work more difficult to complete.

The work and assistance provided by members in the daily course of their duties gives many reasons for us all to be immensely proud about our industry. It remains for every one of us to challenge the incorrect stereotypes which damage the industry’s image and reputation.

Sadly missedThe past 6 weeks have been very difficult

for a number of members adjusting to the loss of long time industry friends and colleagues. At pages 10 & 11 are details of the contributions to the industry made by Warren Mallard and Rosalind Fryer. May they both rest in peace. These losses understandably are an inevitable but tragic part of life and even if sometimes expected still confronting to our individual mortality as dearly loved and close friends depart. Many fond memories linger on and allow some perspective in times of grief.

Cheers

Alan Harries

FRoM THE cEo

GROUNDEDIMA cEo Alan Harries reflects on some matters important to members and our industry.

Alan Harries

not correcting false prejudices only

makes the industry’s work more difficult

to complete


NETWoRK

IMA NATIONAL OFFICE17B Denney StreetBroadmeadow NSW 2292PO Box 233 Waratah NSW 2298Ph: (02) 4927 0477Fax: (02) 4927 [email protected] www.imal.com.au

NATIONAL BOARDNational President Alex CaruanaPh: (02) 8833 3300Fax: 1300 556 [email protected]

National VP Administration Daniel TaylorPh: (02) 8568 6500Fax: (02) 8568 [email protected]

National VP Finance Basil FaulknerPh: (08) 9325 3855Fax: (08) 9325 [email protected]

Immediate Past National President Ian MitchellPh: (08) 9409 4088Fax: (08) 9409 [email protected]

CEO Alan HarriesPh: (02) 4927 0477Fax: (02) 4927 [email protected]

EXECUTIVE COUNCIL Comprises the National Board, President of each Division and Directors Emeritus.

EXEcUTIVE

BUYING or SELLING?Have an opportunity and want to discreetly find and engage with interested members?

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for details of this affordable and effective service.

Victoria DivisionVictorian President Michael NugentPh: 1300 228 588Fax: 1300 535 [email protected]

Victorian Vice President/Secretary Derek ChallisPh: (03) 5277 [email protected]

WA DivisionWestern Australian President Phil BotsisPh: (08) 6296 7455Fax: (08) 6296 [email protected]

Western Australian Vice President David CombrinkPh: (08) 9409 4088Fax: (08) 9409 [email protected]

Western Australian Secretary Richard AdamsPh: (08) 9325 6387Fax: (08) 6314 [email protected]

Sector Sub-committees

Collections Chairperson Daniel TaylorPh: (02) 8568 [email protected]

Investigations Chairperson Peter HarkinPh: (07) 3210 [email protected]

Process Serving Chairperson Nick WrightPh: (07) 3210 [email protected]

Repossessions Chairperson Travis CarterPh: 07 3868 [email protected]

ACT BranchACT Liaison Nigel GregoryPh: (02) 6255 [email protected]

NSW DivisionNSW President Frank FodorPh: (02) 9630 6844Fax: (02) 9630 [email protected]

NSW Vice President/Secretary Bill EdmondsPh: 1300 4AMPACFax: (02) 9223 [email protected]

NT BranchNorthern Territory Liaison Grant JonssonPh: 08 8927 [email protected]

Queensland DivisionQueensland President Nick WrightPh: (07) 3210 5000Fax: (07) 3229 [email protected]

Queensland Vice President Liat WalkerPh: (07) 3034 8900Fax: (07) 3034 [email protected]

Queensland Secretary Peter HarkinPh: (07) 3210 5000Fax: (07) 3229 [email protected]

Queensland Treasurer John SweeneyPh: (07) 5546 2476Fax: (07) 5546 [email protected]

SA Division South Australian President Andrew SmithPh: (08) 8244 1922Fax: (08) 8244 [email protected]

South Australian Vice President/Secretary Liam O’CallaghanPh:(08) 8215 4777Fax (08) 8232 [email protected]

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agent - imalimal.com.au/images/agent/agen0813.pdf · agent where we reported the nsw police had...

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