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The FMA and ASIC confirm Trans-Tasman collaborative approach to fintech

The Financial Markets Authority (FMA) and the Australian Securities and Investments Commission (ASIC) have re-affirmed their commitment to collaboration and cooperation on the expanding opportunities in fintech and innovation.

The FMA and ASIC entered a wide-ranging Memorandum of Understanding in 2012.

In Sydney, senior executives from both regulators discussed the opportunities and challenges of balancing the desire to foster innovation and growth in the emerging fintech industry, while protecting consumers and managing risks. Regulators will assist innovative businesses hoping to make ventures into each other's markets by providing referrals for advice and support.

Garth Stanish, FMA Director of Capital Markets, said, "ASIC and the FMA have a strong relationship in all the areas we regulate. Our mutual commitment to innovation and fintech is no different. We'll continue to share information and views on the regulatory issues arising from emerging technology and increasing innovation."

John Price, ASIC Commissioner, said, "We're pleased to further develop our relationship with the FMA and demonstrate our collaborative approach in this space. Across the Tasman we'll continue to cooperate with the FMA and refer new businesses where they have an appetite to work in both jurisdictions."

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Takeovers Panel: Asia Pacific Data Centre Group - Panel declines to conduct proceedings

The Takeovers Panel has declined to conduct proceedings on an application dated 9 October 2017 from NEXTDC Limited in relation to the affairs of Asia Pacific Data Centre Group.

Asia Pacific Data Centre Group is currently the subject of an off-market takeover bid by 360 Capital FM Limited (in its capacity as trustee for the 360 Capital Diversified Property Fund) for all stapled securities in Asia Pacific Data Centre Group that it does not own.  The application concerned, amongst other things, whether disclosure in the bidder's statement and the target's statement was adequate in respect of a proposed capital distribution which may be implemented after the end of the offer period.

The Panel noted that the bidder's statement discloses that the implementation of the proposed capital distribution is subject to the decision and legal obligations of Asia Pacific Data Centre, and that 360 Capital will only make a decision to proceed following legal and financial advice on those requirements.

The Panel considered that further disclosure would require speculation on various matters, including the circumstances at the time the proposed capital distribution is implemented, and the Panel considered it unlikely that such speculation would contribute to an informed market.  The Panel noted that NEXTDC has already highlighted its concerns in its announcement to the market on 26 September 2017, and 360 Capital responded to the announcement on 27 September 2017.

The Panel concluded there was no reasonable prospect that it would make a declaration of unacceptable circumstances.  Accordingly, the Panel declined to conduct proceedings.

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7-Eleven franchisee in court after allegedly dismissing worker who refused cash-back

The Fair Work Ombudsman announced that a 7-Eleven Franchisee in Brisbane is facing court for allegedly dismissing a worker by removing him from the roster after he refused his employer's request to repay an amount he had been paid.

Balaji Australia Pty Ltd and current director and shareholder Madhav Ponnada will also face the Federal Circuit Court on allegations that false and misleading records were created during the employment of two employees and were later provided to Fair Work Inspectors during the course of their investigation.

It is alleged that the worker, an Indian national, was first employed in February 2015 as a casual and then engaged as a part-time employee between December 2015 and July 2016. During this time he accrued annual leave entitlements equivalent to $731.06.

In July 2016 it is alleged the worker was then transferred to a casual employment relationship and was paid $731.06 in accrued annual leave and leave loading from the preceding period in which he was engaged on a part-time basis.

The Fair Work Ombudsman alleged that Mr Ponnada, on behalf of the company, then made multiple requests for the worker to return the $731.06 that had been paid.

It is further alleged that the day after the worker refused to repay this money, Mr Ponnada instructed a store manager to remove the employee from a rostered shift and advised the store manager that the employee no longer worked at the store.

The matter is listed for a directions hearing on 30 October 2017.

This is the tenth matter filed by the Fair Work Ombudsman involving a 7-Eleven franchisee with more than $1 million in penalties ordered in cases to date.

Fair Work Ombudsman Natalie James said requiring workers to repay portions of their wages is an insidious practice.

"We are concerned that so called 'cash-back' schemes are being utilised to disguise the underpayment of some of the most vulnerable workers in our community," Ms James said.

"This is the type of behaviour that warrants serious enforcement action, such as litigation through the courts," she said.

The Fair Work Ombudsman is asking the Federal Circuit Court to impose penalties against Mr Ponnada and his company for several alleged contraventions of workplace laws as well as seeking compensation for the worker who was allegedly dismissed.

"Workers cannot be deprived of work for exercising their rights, regardless of whether they are engaged on a casual, part-time or full-time basis," Ms James said.

"We encourage anyone with information on alleged 'cash-back' schemes to come forward and assist us in our investigations," Ms James said.

In December 2016, the Fair Work Ombudsman and 7-Eleven signed a Proactive Compliance Deed. The deed requires 7-Eleven to overhaul its systems and implement fully biometric time recording to prevent the falsification of records. The alleged record-keeping contraventions in this litigation occurred prior to the signing of this deed.

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Recent News

The FMA and ASIC confirm Trans-Tasman collaborative approach to fintech 20/10/2017 8:49:27 PM
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Takeovers Panel: Asia Pacific Data Centre Group - Panel declines to conduct proceedings 20/10/2017 12:57:32 AM
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7-Eleven franchisee in court after allegedly dismissing worker who refused cash-back 19/10/2017 1:18:50 AM
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