Business ordered to rehire worker it sacked for operating a side business on company time: A lesson in proper dismissal procedure

Business ordered to rehire worker it sacked for operating a side business on company time: A lesson in proper dismissal procedure

Matthew Elmas / Thursday, October 11, 2018

A Melbourne-based businessman has conceded he jumped the gun in firing a worker for operating a side business on company time, after being ordered to rehire her last week.

The Fair Work Commission (FWC) has ruled cabinetry and hardware importer Lek Supply unfairly dismissed sales associate Abigail Jackman in April over allegations she stole from the company by working on her own business.

Jackman started her own business, Royal Scent & Co, while she was on maternity leave last July, selling candles, as well as bath and body products.

Lek alleged when she came back to work Jackman was taking calls and fielding text-based customer queries on her phone during business hours.

However, despite finding Jackman did conduct her private business during her working hours, commissioner McKinnon ruled the manner in which Jackman was dismissed was “harsh”.

McKinnon found Jackman was given no opportunity to respond to the reasons for her dismissal, which occurred without notice in a meeting she was not told the purpose of.

“It was a disproportionate response to a valid concern, which had only recently become apparent,” McKinnon said.

“A warning would have been a more appropriate response.”

Jumping the gun

Speaking to SmartCompany, Lek Supply chief executive Ben Lek conceded he jumped the gun by dismissing Jackman in the way he did.

“The issue was created from her and it was quite a major issue,” he says.

“It should have never happened, but at the end of the day, we didn’t follow the steps for dismissing her properly.

‘“With a small business like ours, not having legal representation to know all the ins and outs is probably where we made our mistake,” he says.

Lek does not intend to appeal the decision and says he will welcome Jackman back to the business in the coming weeks.

Shane Koelmeyer, director at Workplace Law, says the case is a classic example of a business not affording a worker procedural fairness he has encountered often.

“Where the employer fell down here was in not affording the employee the opportunity to respond to the allegations,” he tells SmartCompany.

“Best practice would have been for the employer to put the allegations to the employee in writing and given her the time and chance to explain or respond.

“The employer’s decision should have then only been made after receiving and reviewing those responses and explanations,” he says.

“Worst case scenario”

Koelmeyer said if the business had sought advice the matter could have been rectified within a few days, but instead, the business has received what he describes as the “worst case scenario” in unfair dismissal cases.

“[It] may be seen by the other employees as the employer’s judgment or decision-making being undermined or questioned — which can make it harder for them to manage their employees in the future,” he says.

McKinnon found against Lek’s argument that Jackman was summarily dismissed, which may have justified the lack of notice.

Jackman was paid one week’s wages in lieu of notice and was not required to work the notice period, while there was also no mention of “serious misconduct” (crucial for summary dismissal) in the letter of termination.

Garry Bircks, an industrial advocate with Just Relations consultants who represented Jackman, says his client is happy to return to the company.

“She had no problems with her workmates,” Bircks tells SmartCompany.

Bircks said Jackman was content with the decision, but she was disappointed the FWC decided not to award lost wages.

“The decision is in her favour, but she’s not happy with it to the extent that there has been no award of lost wages … there have been substantial losses as a result of the dismissal,” Bircks says.

McKinnon decided not to award lost wages because of the weak financial position of the business and because Jackman’s conduct was the “sole catalyst” for the dismissal.

Article found HERE at SmartCompany.com.au

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Is a polygraph a reliable lie detector?

Is a polygraph a reliable lie detector?

 

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Does your body give away if you’re lying or not?
AP Photo/Edward Kitch

 

Jessica Gabel Cino, Georgia State University

Attorneys for Christine Blasey Ford, the woman who’s accused Supreme Court justice nominee Brett Kavanaugh of sexual assault, released the results of a polygraph test focused on the decades-old incident. They suggest that Ford’s responses to two questions about her allegations were “not indicative of deception.”

How trustworthy is that assessment and the polygraph technology it relies on?

People have long yearned for some way to separate truth from falsehood, whether in high-stakes court cases or family kerfuffles. Over the years, inventors have developed an evolving assembly of tools and instruments aimed at figuring out whether someone is telling a lie. They’ve tried to incorporate increasingly more science, but with varying degrees of success. Society has often looked to instruments like the polygraph to inject some objectivity into the detection of deception.

As a defense lawyer, I’ve had many a client tell me that he or she did not commit the alleged crime. But I’ve never asked a client to submit to a polygraph exam: It’s high risk, low reward, and the results – while inadmissible in a criminal case – are unpredictable. Just how reliable is a polygraph at identifying who’s lying and who’s telling the truth?

Looking for signs of lies

Methods of lie detection have progressed from their torture-centric roots. Early techniques included subjecting someone to a water test: Those who sank were considered innocent, while floating indicated guilt, lies and witchcraft. Neither outcome was good news for the accused. In medieval Europe, an honest man was thought to be able to submerge his arm in boiling water longer than a liar.

Eventually people developed more humane methods, focusing on physiological factors that could be used as arbiters of truth. In the early 20th century, William Moulton Marston – self-proclaimed “father of the polygraph” – showed a strong link between systolic blood pressure and lying. Basically, spin a tale and your blood pressure rises. Martson also created the comic book character Wonder Woman, whose golden lasso can extract the truth from those it ensnares.

In 1921, physiologist John Larson, from the University of California, Berkeley, was the first to couple measurements of both blood pressure and breathing, looking at rises and drops in respiration. The Berkeley Police Department adopted his device and used it to assess the trustworthiness of witnesses.

In 1939, Larson’s protégé, Leonarde Keeler updated the system. He made it compact for travel and added a component to gauge galvanic skin response, which measures sweat gland activity that could reflect the intensity of an emotional state. His device, purchased by the FBI, was the precursor to the modern polygraph. Later versions were variations on this original.

 

Sensors detect changes in how the subject’s body reacts to questions from the examiner.
AP Photo/Fernando Vergara

 

Lie detectors today

“Lie detector” is a broad term. It most often refers to a polygraph, but also applies to a Certified Voice Stress Analysis, an fMRI brain scan, or even software used to analyze the word choice and variation a subject uses when recounting an event.

What today’s polygraph does is encapsulated in the word itself. “Poly” means many or multiple, and “-graph” means to write. The system records several physiological responses – most often perspiration, heart rate, breathing rate and blood pressure – and graphs them out visually for an examiner to interpret.

There are two most common approaches to administering a polygraph. In what’s called the Controlled Question Technique, an examiner will ask irrelevant questions, control questions and relevant questions. Then, based on what he sees in the graphical representation of the subject’s physiological responses, he will identify whether they change significantly in response to relevant questions. The underlying assumption is that deception will, due to the stress induced by lying, lead to a measurable response in the form of increased perspiration, heart rate and so on.

The second approach is known as the Guilty Knowledge Test, which is really a misnomer. It tests any knowledge of events, not just guilty knowledge. The examiner measures a subject’s response to specific questions in an attempt to discern whether the subject does in fact have personal knowledge of an event. This could be anything from knowing how many times a victim was stabbed to the color of the getaway car.

Presumably, a person who lacks knowledge of an event would not react significantly differently to the accurate answer because he or she wouldn’t know what’s right and what’s not. Meanwhile, so the logic goes, a person who has firsthand knowledge would demonstrate a physiological response. Of course, this method also has inherent limitations regarding, among other things, what types of questions may be presented.

Can polygraphs really tell truth from lies?

 

An examiner keeps an eye on how various measures change in response to particular topics or questions.
DENker/Wikimedia Commons

 

The efficacy of polygraphs is hotly debated in scientific and legal communities. In 2002, a review by the National Research Council found that, in populations “untrained in countermeasures, specific-incident polygraph tests (GKTs) can discriminate lying from truth telling at rates well above chance, though well below perfection.” Better than flipping a coin to figure out whether someone is telling the truth, but far from achieving consistent and reliable results.

The NRC warned against using polygraphs in employment screenings, but it did note that specific-incident polygraph tests in the field yield more accurate results. It seems targeted, relevant questions – for instance, “Was the robbery committed with a gun?” – meant to unmask a subject who may have a strong motive to lie or conceal information seem to work better.

Polygraphs can deliver false positives: asserting that someone is lying who is actually telling the truth. The consequences of “failing” a polygraph can be serious – from not getting a job to being labeled a serial killer.

In the 1998 Supreme Court case United States v. Scheffer, the majority stated that “there is simply no consensus that polygraph evidence is reliable” and “[u]nlike other expert witnesses who testify about factual matters outside the jurors’ knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion.”

Notably, litigation over the precursor to the modern polygraph gave rise to the seminal Frye opinion from the D.C. Circuit in 1923, which held that the polygraph evidence was inadmissible in court. In 2005, the 11th Circuit Court of Appeals reiterated that “polygraphy did not enjoy general acceptance from the scientific community.”

The reality is that multiple factors – including nervousness in a high-stakes situation – can affect the readings detected by a polygraph machine, and give an impression that the subject is lying. For that reason, polygraphs are not generally admissible in any criminal case, even though police interrogators will sometimes trick a suspect into submitting to one. Polygraphs may be admissible in civil cases, depending on the state, and some states allow polygraph tests to be used in criminal cases if everyone agrees to it.

Better than nothing?

In short, polygraphs may offer some – albeit slight – confidence that a person is telling the truth about a particular incident. Studies have shown that when a well-trained examiner uses a polygraph, he or she can detect lying with relative accuracy.

But a polygraph is not perfect: An examiner’s interpretation is subjective, and results are idiosyncratic to the person being tested. Under the right circumstances, the polygraph allegedly can be fooled by a trained individual. Even some of my forensic evidence students “beat the test” when I bring a polygraph examiner in for a classroom demonstration.

Perhaps the 11th Circuit summed it up best: There is no Pinocchio factor associated with polygraphs. As much as we’d like a sign as obvious as a growing nose, there’s no 100 percent reliable physical sign of telling a lie.

A polygraph examination demonstrates “that the examinee believes her own story.” And perhaps that’s enough. A subject’s willingness to even submit to an exam often reveals a level of veracity and can fill a void when the other party has not similarly submitted to an exam.The Conversation

Jessica Gabel Cino, Associate Dean for Academic Affairs and Professor of Law, Georgia State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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How will my divorce affect my kids?

How will my divorce affect my kids?

 

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Conflict, and not the separation itself, is a greater predictor of how children will fare post-divorce.
from www.shutterstock.com

 

Kim Halford, The University of Queensland

This is part of a package on Parenting after Divorce. Read the other articles in the series here.


Most children adjust well to parental separation and divorce, at least in the long term.

A minority of children of separated parents have long-term problems, which can affect them through their childhood and into adult life. But it’s conflict between separated parents, and not the separation itself, which accounts for many of the problems children of separated parents experience.

Many Australian children experience parental separation and divorce. About 50,000 to 60,000 children in Australia experience their parents separating each year. Around one in five Australian children (about one million) will experience parental separation before the age of 18.

Immediately before and after parental separation, children are often upset. But for most children, their adjustment improves across the next year or two. Studies show most children adjust reasonably well in the longer term.

On average, children of separated parents do just a little bit worse than children of parents in intact families. This effect is evident across multiple outcomes. For example, children of divorce do a little bit worse on educational attainment, have slightly more behaviour problems, and are slightly more likely to suffer from anxiety and depression.

While the average effect of parental separation is small, children of separated parents have twice the rate of serious mental health problems and substance abuse, and are twice as likely to attempt suicide, as children of parents in intact families. These statistics reflect that a minority of children from separated parents have very poor adjustment.




Read more:
How to tell your child you’re getting divorced


Witnessing conflict

The strongest predictor of poor child adjustment after separation is conflict between the separated parents. Poor long-term outcomes for children occur when parental conflict is severe (such as verbal abuse or physical violence), is frequent, and occurs in front of the child.

Children are particularly affected when the conflict is about them, or issues around parenting. Many children blame themselves for parental conflict, particularly when the conflict is about parenting or child behaviour. If the child believes they have caused the conflict, or should be able to stop the conflict, then they are particularly likely to suffer adjustment problems.

Severe parental conflict in front of the children is also associated with child adjustment problems in intact families. In high conflict parental relationships, separation sometimes reduces children’s exposure to parental conflict. So staying in a relationship does not necessarily protect children from parental conflict.

As well as parental conflict, poor child adjustment is predicted by mental health or substance abuse problems in a parent. Many separated parents re-partner and these new relationships sometimes end. Frequent changes in the child’s living arrangements, and changes in who cares for the children, are also associated with poor child adjustment.




Read more:
How to co-parent after divorce


 

Children are particularly affected when the conflict is about them, or issues around parenting.
from www.shutterstock.com

 

Co-parenting after divorce

When parents separate there has to be an agreement about how the children will be cared for. Agreements have to address issues such as where the child will live, how much time each parent will spend with the child, and how and where the parents will communicate about parenting decisions.

About 30% of separating parents reach a co-parenting agreement without assistance. Another 30% seek advice from professionals such as family lawyers, psychologists, or family counsellors, and then negotiate an agreement acceptable to both parents. But about 40% of separated parents have disagreement about parenting arrangements they’re unable to resolve.

In Australia, most parents who disagree about parenting arrangements are required to undertake mediation. If mediation does not produce an agreement, then the parents can apply to the Family Court to make a decision. In some circumstances, the parents can go straight to court without having to attempt mediation. Examples of such circumstances are if there is family violence, or if one of the parents has a mental health problem that is seen to make mediation inappropriate.

Family mediation usually involves four or five hours of sessions with a professional mediator. Typically the mediator conducts a separate individual interview with each parent to assess the family background, and identify the current issues of dispute around parenting. There might also be a session talking with the child or children asking them their views. Then there would be a conjoint session between the mediator and the two parents.




Read more:
What type of relationship should I have with my co-parent now we’re divorced?


Of separated parents who undertake mediation, about two-thirds reach a co-parenting agreement. The remaining third usually go to the Family Court to have a judge or magistrate determine what the parenting arrangements will be.

As most parents will realise, parenting arrangements need to change as children’s circumstances change. Parenting agreements need to allow for decision-making as new circumstances arise, and to be renegotiated across time. For example, a child who usually stays weekends with her mother might get interested in a weekend sport that occurs near her father’s home, and the child might want to change around where she spends her weekends.

Due to the ongoing nature of co-parenting, separated parents often have contact with each other for 20 or 30 years after they separate. Developing collaborative co-parenting can be challenging for separated parents. If separated parents allow conflict to occur in front of their children, the children suffer. If parents manage to be mutually respectful and keep their child’s best interests as their shared focus, then the child is likely to do well.

Numerous services are available to assist separated parents to develop more effective co-parenting. These include parenting education, counselling, and legal advice. The Family Relationships Advice line provides information and referral to services. Their telephone line is open Monday to Friday 8am to 8pm, and Saturday 10am to 4pm (local time) on 1800 050 321. Information is online here.The Conversation

Kim Halford, Professor of Clinical Psychology, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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In defence of conspiracy theories (and why the term is a misnomer)

In defence of conspiracy theories (and why the term is a misnomer)

 

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Jeremy Renner as US journalist Gary Webb in the 2014 film Kill The Messenger. The film is an account of Webb’s role in uncovering CIA links to cocaine importation to the US.
Sierra / Affinity,Bluegrass Films,The Combine

 

David Coady, University of Tasmania

Before 2012, if you had voiced suspicions that the Australian government had been anything but open and honourable in dealing with East Timor – its newly independent but impoverished neighbour – you would likely have been dismissed as a conspiracy theorist. But it was then revealed Australian Secret Intelligence Service agents had bugged East Timor’s cabinet office during treaty negotiations over oil and gas fields.




Read more:
When whistleblowers are prosecuted, it has a chilling effect on press freedom in Australia


Yesterday’s conspiracy theories often become today’s incontrovertible facts. In the mid-1990s, journalist Gary Webb’s claims that CIA officials conspired with drug dealers bringing crack cocaine into the United States were dismissed by many as a prime example of a conspiracy theory. But the claims were true.

It’s reasonable to suppose many of the views that are now dismissed or mocked as conspiracy theories will one day be recognised as having been true all along. Indeed, the net effect of terms such as “conspiracy theory” and “conspiracism” is to silence people who are the victims of conspiracy, or who (rightly or wrongly) suspect conspiracies may be occurring. These terms serve to herd respectable opinion in ways that suit the interests of the powerful.

 

Karl Popper: popularised the term ‘conspiracy theory’.
Wikimedia Commons

 

Ever since the philosopher Sir Karl Popper popularised the expression in the 1950s, conspiracy theories have had a bad reputation. To characterise a belief as a conspiracy theory is to imply it’s false. More than that, it implies people who accept that belief, or want to investigate whether it’s true, are irrational.

On the face of it, this is hard to understand. After all, people do conspire. That is, they engage in secretive or deceptive behaviour that is illegal or morally dubious.

Conspiracy is a common form of human behaviour across all cultures throughout recorded time, and it has always been particularly widespread in politics.

Virtually all of us conspire some of the time, and some people (such as spies) conspire virtually all of the time. Given people conspire, there can’t be anything wrong with believing they conspire. Hence there can’t be anything wrong with believing conspiracy theories or being a conspiracy theorist.

Thinking of conspiracy theories as paradigmatically false and irrational is like thinking of phrenology as a paradigm of scientific theory. Conspiracy theories, like scientific theories, and virtually any other category of theory, are sometimes true, sometimes false, sometimes held on rational grounds, sometimes not.

It’s a striking feature of much of the literature on conspiracy theories, like much of the literature on terrorism, that authors assume they are referring to the same phenomenon, while a glance at their definitions (when they bother to offer them) reveals they are not.




Read more:
Online conspiracy theorists are more diverse (and ordinary) than most assume


But seeking a fixed definition of the term “conspiracy theory” may be an idle pursuit, since the real problem with the term is that, although it lacks a fixed meaning, it does serve a fixed function.

A new Inquisition?

It’s a function similar to that served by the term “heresy” in medieval Europe. In both cases these are terms of propaganda, used to stigmatise and marginalise people who have beliefs that conflict with officially sanctioned or orthodox beliefs of the time and place in question.

If, as I believe, the treatment of those labelled as “conspiracy theorists” in our culture is analogous to the treatment of those labelled as “heretics” in medieval Europe, then the role of psychologists and social scientists in this treatment is analogous to that of the Inquisition.

 

Stefano di Giovani, The Burning of a Heretic, circa 1423-1426.
Wikimedia Commons

 

Outside the psychology and social science literature some authors will sometimes offer some, usually heavily qualified, defence of conspiracy theories (in some sense of the term). But among psychologists and social scientists the assumption that they are false, the product of an irrational (or nonrational) process, and positively harmful is virtually universal.

Whenever we use the terms “conspiracy theory”, “conspiracism” or “conspiracist ideation”, we’re implying, even if we don’t mean to, there is something wrong with believing, wanting to investigate, or giving any credence at all to the possibility people are engaged in secretive or deceptive behaviour.

One bad effect of these terms is they contribute to a political environment in which it’s easier for conspiracy to thrive at the expense of openness. Another bad effect is their use is an injustice to the people who are characterised as conspiracy theorists.

Following the philosopher Miranda Fricker, we may call this a form of “testimonial injustice”. When someone asserts that a conspiracy has taken place (especially when it is a conspiracy by powerful people or institutions) that person’s word is automatically given less credence than it should because of an irrational prejudice associated with the pejorative connotations of these terms.

When professional psychologists imply these terms it can constitute a form of gaslighting; that is, a manipulation of people into doubting their own sanity.

I hope and believe that in the future these terms will be widely recognised for what they are: the products of an irrational and authoritarian outlook. Prior to Popper, we got along perfectly well without these terms. I’m sure we can learn to do so again.The Conversation

David Coady, Senior Lecturer in Philosophy, University of Tasmania

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Evictions versus holdouts. How to painlessly dissolve a strata title

Evictions versus holdouts. How to painlessly dissolve a strata title

Duygu Yengin, University of Adelaide and Jonathan Pincus, University of Adelaide

Should private citizens be allowed to force the sale of a neighbour’s property against his or her will?

Let’s ask the question another way: is it fair that just one neighbour, or maybe a small group of neighbours, should be able to block the sale or redevelopment of someone else’s property?

When it comes to collective strata sales, the answer isn’t obvious.




Read more:
When developers come knocking: why strata law shake-up won’t deliver cheaper housing


Strata title is the most common form of apartment ownership in Australia. It gives each owner ‘title’ over their own unit and shared ownership of the shared space. Three million people live in them. In most states (except for NT and NSW), 100% of the owners have to agree in order to terminate a strata scheme and sell the block of units.

The need for achieving a unanimous decision makes it difficult for ageing buildings to be sold and redeveloped in order to increase urban density. Until 2016, only 1.1% of all the strata schemes in NSW had been terminated since 1961.

Economists, at least since 1838, have understood that attempts to assemble complementary resources can be plagued by the holdout problem.




Read more:
Economic theories that have changed us: game theory


A new law, which commenced in NSW in 2016, intends to remedy it. Only 75% of the owners in a strata will have to agree in order to sell or redevelop a site. Early in 2018 the Land & Environment Court issued preliminary decisions in two cases in Sydney. It’s easy to see more will follow due to inherent problems with the solution.

What’s wrong with 75%?

First, the urban redevelopment benefits might not materialise. There’s no requirement for the properties developed to be replaced by properties with increased density.

Second, the legislation gives private citizens a power previously only available to the government: the power to compulsorily acquire someone else’s property. Given the cultural and legal importance of property rights in Western societies, violating those rights is a big step.

Third, the law says the terms of the settlement must be “just and equitable in all the circumstances”. This can be taken to mean the market value of the lot and other costs, such those of moving.

But market value is problematic. The market value of the entire block sold as one will often be much more than the sum of the market value of each unit sold individually. And the market value of an individual unit might be insufficient to purchase a replacement in the neighbourhood after the redevelopment takes place.




Read more:
It’s not just the buildings, high-density neighbourhoods make life worse for the poor


The property might be an investment which, if sold, would be subject to capital gains tax. After payment of the tax, the owner might have insufficient funds to purchase a suitable replacement.

And existing owners are likely to value their property higher than the market, otherwise, the property would already have been sold.

A premium is justified, but how much?

The legislation doesn’t define the highly subjective concept, “just and equitable compensation”.

It provides no guidance as to how to separate the true subjective value to the owners from what they might be asking for just because they’re holding out to inflate their financial gains.

Our solution: reducing holdouts while protecting property rights

We believe it is. Most people didn’t want to see a single owner holding out on a development purely for personal financial gain. On the other hand, most don’t want to see a vulnerable resident removed from their home against their wishes.

The method we propose in a working paper coauthored with economists from Florida State University and University of California Santa Barbara assigns to each owner a right to a defined fractional share of any collective sales proceeds, equal to his or her proportion of the overall market value of the whole building, as assessed by the independent valuer (the shares add up to 100%). Then, each strata owner specifies the lowest price at which he or she is willing to sell.

How it would work

Consider an owner called Jo whose share is 10% and who nominates $1.2 million as the compensation she wants (this may well be more than the valuer’s estimate of the market price of Jo’s apartment). For Jo to receive $1.2 million, the whole building would have to sell for $12 million.

Thus Jo, by nominating her required compensation as $1.2 million has, in effect, set a reserve price of $12 million for the whole building. Every owner does the same, each setting the building’s reserve price. The highest of these building reserve prices becomes the actual reserve price and it is what matters: when it is met, every owner will get at least what they asked for.

Wouldn’t the owners all nominate unreasonable and untruthfully high prices? It turns out our scheme gives the owners a financial incentive to set a truthful price, that is to nominate the lowest prices at which they would voluntarily sell their individual properties. If they set a price too high they run the risk of the sale falling through and getting nothing.

How it could be used

It’s an idea that could be applied in other contexts. The sale of group water rights in the Murray Darling Basin is one.

For decisions to sell strata-titled units, the scheme would require the appointment of a neutral agent to receive the individual demands for compensation and to set the (secret) reserve necessary to ensure no collective sale is made unless all demands for compensation are met.

It would eliminate the incentive for holding out. Any collective sale that took place would be unanimous, satisfying the NSW law and also the laws of the states that require 100% agreement.

There’s nothing to stop it being adopted voluntarily, on a case by case basis, now, as an option that will get the best result for development and owners within the laws that we have got.The Conversation

Duygu Yengin, Associate Professor of Economics, University of Adelaide and Jonathan Pincus, Visiting Professor, School of Economics, University of Adelaide

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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