Clearys

I know what happened with Cleary's was legally correct despite the fact that it was ruse to split the brand from the valuable building and avoid having to pay redundancy's.

The company that acquired the building are avoiding any scrutiny of how the deal came about it was not thought up on the Saturday the shop closed down, therefore to get a little more cooperation form them, the department of environment should intimate to them that difficulties with planning permission for redevelopment might arise if they are not prepared to cooperate. Now of course all this would happen unofficially.

My point is would that be morally acceptable after all it the government and by extension the tax payer thats going to pick up the tab.

Godge

mariaalice wrote: »

I know what happened with Cleary's was legally correct despite the fact that it was ruse to split the brand from the valuable building and avoid having to pay redundancy's.

The company that acquired the building are avoiding any scrutiny of how the deal came about it was not thought up on the Saturday the shop closed down, therefore to get a little more cooperation form them, the department of environment should intimate to them that difficulties with planning permission for redevelopment might arise if they are not prepared to cooperate. Now of course all this would happen unofficially.

My point is would that be morally acceptable after all it the government and by extension the tax payer thats going to pick up the tab.

One of the reasons Ireland features near the top of the list of least corrupt countries is that we don't do business like that. We actually enforce rules.

I would argue that it is not corruption as such just being pragmatic.

Godge

mariaalice wrote: »

I would argue that it is not corruption as such just being pragmatic.

It is corruption as you are applying different rules to different applicants.

Leroy42

Surely the solution to these types of instances is some sort of bond/insurance that every company must maintain in order to provide for any redundancy costs.

In Clerys case it was clear it was only surviving based on the continued support of the parent company and as such they should have to provide for some redundancy costs. To avoid the charge in the accounts the parent company would have to provide assurance that for the next financial year they will continue to support, if they don't, like in this case, then the redundancy costs fall to them.

Why should it fall to the state to provide the redundancy costs (the employees are entitled to it but why should the company get way without paying it?)

To avoid having to set aside the cash, a company could take out a bond or insurance or if they have the funds invest it like a pension type vehicle so that it sits outside the influence of the company itself.

Accountants could calculate the required fund based on the length of staff working, the viability of the company, and actuary's could base the required level based on the stats etc like in pensions

andrew

Leroy42 wrote: »

Surely the solution to these types of instances is some sort of bond/insurance that every company must maintain in order to provide for any redundancy costs.

In Clerys case it was clear it was only surviving based on the continued support of the parent company and as such they should have to provide for some redundancy costs. To avoid the charge in the accounts the parent company would have to provide assurance that for the next financial year they will continue to support, if they don't, like in this case, then the redundancy costs fall to them.

Why should it fall to the state to provide the redundancy costs (the employees are entitled to it but why should the company get way without paying it?)

To avoid having to set aside the cash, a company could take out a bond or insurance or if they have the funds invest it like a pension type vehicle so that it sits outside the influence of the company itself.

Accountants could calculate the required fund based on the length of staff working, the viability of the company, and actuary's could base the required level based on the stats etc like in pensions

Doesn't employee and employer PRSI mean that the state isn't really 'picking up the bill'?

Leroy42

andrew wrote: »

Doesn't employee and employer PRSI mean that the state isn't really 'picking up the bill'?

In a way, yes, but in reality it is just a form of tax.

in effect the holding company has sidestepped this cost. The state is there to pick up the pieces when something extraordinary happens. An unforeseen event causes the collapse of a company. For Eg, the company gets hit with a massive fraud etc like Barings Bank.

This is not the same. In effect the holding company simply took away their support and left the employees to fend for themselves.

If the PRSI is meant to cover it then why does any company need to pay redundancy, simply pass it over the government?

Valetta

What would you hope would be achieved by doing that?

andrew

Leroy42 wrote: »

In a way, yes, but in reality it is just a form of tax.

in effect the holding company has sidestepped this cost. The state is there to pick up the pieces when something extraordinary happens. An unforeseen event causes the collapse of a company. For Eg, the company gets hit with a massive fraud etc like Barings Bank.

This is not the same. In effect the holding company simply took away their support and left the employees to fend for themselves.

If the PRSI is meant to cover it then why does any company need to pay redundancy, simply pass it over the government?

Ah, I hadn't realised redundancy pay is a statutory thing. Yeah, seems like it'd make sense for companies to hold a 'redundancy reserve' or some fund reing-fenced for employees.

andrew

andrew wrote: »

Doesn't employee and employer PRSI mean that the state isn't really 'picking up the bill'?

If the employer in this case Cleary's does not pay the redundancy then it falls to the state so therefore the state is picking up the tab so to speak, saying employees' and employers pay PRSI is a very week argument. It is the fact that a construct was devised to hive off the valuable asset the building it was a deliberate attempt to avoided being open to paying redundancy.

That deal was put together by somebody and it was done very specifically so therefore a lot of legal brains went in to it.

Valetta

Valetta wrote: »

What would you hope would be achieved by doing that?

I think it shows a complete disregard for the state, government and by extension everyone who lives in the state.

There are always people in the background legal firms, accountancy firm, people who make their living putting deals together they need to be accountable, why should say a legal firm for example with one hand make steady money from government contracts and at the same time be putting together reports for some deal maker telling them how to avoid costs and get the government to pick up the tab.

Leroy42

Valetta wrote: »

What would you hope would be achieved by doing that?

Company accounts are supposed to give a true and fair view of all assets and liabilities existing at the Balance sheet date. Every company has some liability to redundancy, it is up to them to prove how small that may be.

In this case, due to the very nature of the dependence on the continued support of the holding company, without which the company was insolvent, it should have recognised the potential liability. (I am saying this based on my idea, this is not what is actually required).

Most companies, by the fact of reserves and continued trading etc will effectively be able to cost this as zero, but in this case the holding company should be required to give a 12 month financial assurance, withdrawl of which then triggers the costs, which would either be borne by the company itself or the holding company as they stated they would continue to support the company.

I really don't understand why a company should not recognise this liability. In most cases it would be small to immaterial anyway, but it should be part of the accounts regardless.

glacial_pace71

The problem was that there were three sets of accounts. Firstly there was a holding company, OCS Investment Holdings ...
https://search.cro.ie/company/ListSubDocs.aspx?id=516491&type=C
... with a separate company carved out to hold the valuable asset of the Clerys building. This one was called OCS Properties:
https://search.cro.ie/company/ListSubDocs.aspx?id=516502&type=C
Then there was the dumping ground company, for staff, taxes and other liabilities. This was called OCS Operations:
https://search.cro.ie/company/ListSubDocs.aspx?id=516503&type=C

Basically when the Americans sold these companies to Natrium the latter clearly had its eye on the valuable buildings (OCS Properties), with the taxpayer to pick up statutory redundancy costs for the Clerys company (OCS Operations) once it was immediately liquidated upon acquisition.
Some of the concession holders would appear to have had a contractual relationship with OCS Properties, i.e. they were renting space in the building, but others would appear to have had a concession to trade from OCS Operations: it seems quite a mess, probably reflecting how it wasn't too easy for the split of the building from Clerys to be engineered without some legacy issues.
I'd be surprised that the auditors could sign off on the accounts in 2014 if OCS Properties was in such trading difficulties, e.g. why didn't it negotiate a rent holiday from OCS Properties? It'd appear that the latter was allowed gouge everything out of the situation, in effect hollowing out the Clerys balance sheet through asset transfer and rack-renting.
Given that the matter could ultimately end up before the courts it may not necessarily be wise to have a lengthy thread lambasting Natrium, as that could allow Natrium to argue that their ability to get a fair trial has been prejudiced. (However, that would presume criminal proceedings and indictable offences, i.e. jury-tried offences, which is highly unlikely. It'd be far more likely for civil litigation to arise, e.g. the concession holders and possibly the trade unions, on grounds of reckless trading, asset stripping and so forth. Similarly if the ODCE bring proceedings it'd be likely to be of summary jurisdiction, i.e. trial by judge without jury. Nevertheless the potential remains for Natrium to grasp a thread as a fig leaf under which to hide).

realitykeeper

A simple way of dispensing with the problem of companies dodging redundancy payments is to abolish statutory redundancy payments altogether. If companies did not have to pay redundancy, then the problem would never arise. Furthermore, it would make Ireland a more attractive place to invest because there would be one less major expense to be factored in, over the lifetime of a business. Also, from a moral perspective, what is redundancy if not money for nothing. Workers get paid for the work they do so why should they get a free handout in the end for doing nothing.

Another plus would be that the taxpayer would save a fortune because state workers would get nothing when they finish.

nice_guy80

realitykeeper wrote: »

A simple way of dispensing with the problem of companies dodging redundancy payments is to abolish statutory redundancy payments altogether. If companies did not have to pay redundancy, then the problem would never arise. Furthermore, it would make Ireland a more attractive place to invest because there would be one less major expense to be factored in, over the lifetime of a business. Also, from a moral perspective, what is redundancy if not money for nothing. Workers get paid for the work they do so why should they get a free handout in the end for doing nothing.

Another plus would be that the taxpayer would save a fortune because state workers would get nothing when they finish.

er, yes they would.
that is not covered under statutory redundancy legislation

Paulzx

realitykeeper wrote: »

Another plus would be that the taxpayer would save a fortune because state workers would get nothing when they finish.

I don't understand the connection with redundancy here????

Paulzx

realitykeeper wrote: »

Also, from a moral perspective, what is redundancy if not money for nothing.

Please don't even talk about morals in a thread that is about what the owners of Clerys have done. What's "moral" about hiving off the assets of a company into your back pocket whilst screwing creditors, staff and the state?


Forget about talk of "blocking" future planning for this building. Whats done is done. What we need to do is to ensure company law or legislation or whatever makes this legal is amended to ensure it makes it difficult to happen again

realitykeeper

nice_guy80 wrote: »

that is not covered under statutory redundancy legislation

Of course, how silly of me. Redundancies do not apply in the protected public sector.

nice_guy80

realitykeeper wrote: »

Of course, how silly of me. Redundancies do not apply in the protected public sector.

they do, actually.
In the likes of the OPW, County Councils, Duchas, OSI and lots of other government departments staff were let go during the recession

well, usually reducing numbers in the public sector is done by the government do is stop hiring to fill positions vacant due to retirements.
Which puts more pressure on the staff left to do the same amount of work with less staff with very little planning as to how that will work

Hotblack Desiato

It was pretty telling that many people (including myself) who felt sad that Clerys was closing, couldn't remember the last time they'd bought anything in there...

My mother used to shop there in the 80s but even then it had a reputation for being staid and excessively priced

I wasn't going to sign a petition to 'save' a store I haven't shopped in in years, because then I'd be an utter hypocrite. Clerys was too big, too staid and too outdated, it's been dying a slow death for years.

It needs to change into attractive ground floor / first floor retail and change the upper floors into other uses, hotel would be better than offices, but it's quite possible that there will be more people employed in the Clerys building of the future than there was when it closed.

I do feel bad for the concession holders and their employees, it was timed to just miss a payment to them so they have been cheated of most of a month's takings. The direct employees, no not really. It's been obvious for years that the Clerys retail business has been going down the tubes for a long time - to be honest I didn't expect it to re-open after the flood. It is the nature of capitalism that poorly run or outdated businesses eventually fail and better run and more innovative businesses replace them.

It doesn't really make any difference in the end about the Natrium takeover and how it was done, sooner or later Clerys was going to go bang and someone else would then buy the building and hope to make better use of it.

K-9

Mod:

Stay on topic please and no public sector bashing.

FreudianSlippers

mariaalice wrote: »

I think it shows a complete disregard for the state, government and by extension everyone who lives in the state.

There are always people in the background legal firms, accountancy firm, people who make their living putting deals together they need to be accountable, why should say a legal firm for example with one hand make steady money from government contracts and at the same time be putting together reports for some deal maker telling them how to avoid costs and get the government to pick up the tab.

It's not as simple as that - you're not talking about your local firm on the corner doing wills and probate. Hundreds of lawyers working in a firm where people barely know everyone on their floor, let alone everyone working in a commercial department.

Law firms have very good Chinese walls for the most part, and internal breach of same is gross misconduct which would effectively end your career.

Eric Cartman

Hotblack Desiato wrote: »

It was pretty telling that many people (including myself) who felt sad that Clerys was closing, couldn't remember the last time they'd bought anything in there...

My mother used to shop there in the 80s but even then it had a reputation for being staid and excessively priced

I wasn't going to sign a petition to 'save' a store I haven't shopped in in years, because then I'd be an utter hypocrite. Clerys was too big, too staid and too outdated, it's been dying a slow death for years.

It needs to change into attractive ground floor / first floor retail and change the upper floors into other uses, hotel would be better than offices, but it's quite possible that there will be more people employed in the Clerys building of the future than there was when it closed.

I do feel bad for the concession holders and their employees, it was timed to just miss a payment to them so they have been cheated of most of a month's takings. The direct employees, no not really. It's been obvious for years that the Clerys retail business has been going down the tubes for a long time - to be honest I didn't expect it to re-open after the flood. It is the nature of capitalism that poorly run or outdated businesses eventually fail and better run and more innovative businesses replace them.

It doesn't really make any difference in the end about the Natrium takeover and how it was done, sooner or later Clerys was going to go bang and someone else would then buy the building and hope to make better use of it.

this is the biggest point of the whole thing, if the business was viable it wouldn't have been asset stripped or closed. If your complaining about the closure and haven't bought anything there in the last 12 months then a hypocrite is all you are.

Geuze

Most people agree that the business wasn't viable in its current form. Fair enough.

But for the owners to walk away with 25-27m, and with the new owners acquiring a prime building, and yet the workers are left with nothing, even a hardened capitalist must admit that is unfair by any measure.

K-9

Might as well open another Burger Macs.

Permabear

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Geuze

Permabear wrote: »

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They used accounting/legal trickery to weasel their way out of paying redundancy.

Legal, maybe.

Moral, no.

Permabear

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nice_guy80

Best Menswear got into examinership because of the Cleary farce

€2 million owed by Clearys

FreudianSlippers

nice_guy80 wrote: »

Best Menswear got into examinership because of the Cleary farce

€2 million owed by Clearys

Not sure where you're getting that figure - reports are that €270k is the figure. Best Menswear isn't painting a picture of the strongest company if that level of loss put them in examinership.

They've even gone so far as to explain the real crux of the problem:

the biggest challenge remains unsustainably high rents and upward only rent reviews, which are a significant burden on our business

seamus

realitykeeper wrote: »

A simple way of dispensing with the problem of companies dodging redundancy payments is to abolish statutory redundancy payments altogether.

And allow a situation where any company can just close up shop overnight leaving workers without any money?

Eh, no thanks. The US employment law model is the last one you want to emulate. Closing down a business should incur a large cost to discourage any kind of economic tourism where companies can set up and shut up shop with the same level of ease.

Setting up shop should cost you nothing because the economy gains. Closing up shop should be expensive because the economy loses when you do it.

In fact, statutory redundancy should probably be expanded. Closing your business in Ireland should be something that generates substantial debate in the boardroom as to whether it's the financially prudent course of action.

Permabear

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seamus

Permabear wrote: »

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Valid point, but it doesn't seem to be a deterrent so far.

Exit costs are not a barrier to setting up, whereas high setup costs are.

Most companies do not enter a market expecting to have to leave it again, so the potential cost of an exit doesn't factor very highly in any assessment, though I'm sure it factors in to a certain extent.

There's also the debate that if a company is pondering an entry to the Irish market on the basis of sweating some profits out and then leaving again a couple of years later, would we even want them operating here at all?

Permabear

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Geuze

Permabear wrote: »

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Legally, you are correct, it seems all was legal.

However, most reasonable people agree that what they did should be illegal.

FreudianSlippers

Geuze wrote: »

Legally, you are correct, it seems all was legal.

However, most reasonable people agree that what they did should be illegal.

I don't think any reasonable person, with any education in business or law, would argue that the concept of separate legal personalities of companies should be illegal. There are ways within the law to ensure that situations such as this do not arise, but removing the cornerstone of our corporate legal system would be insane.

glacial_pace71

Permabear wrote: »

This post had been deleted.

Firstly, although the figures weren't officially disclosed, we know that the Gordon group of companies acquired the 30-odd million of the Guiney vehicle (Clery 1942) debt for something in the region of 60 cent in the euro. There was an undertaking at the time that Clerys would be run as a going concern.

Secondly, the splitting of Clerys into separate companies was a pure property play. It's manifestly obvious from the annual returns that the directors are barely able to maintain a pretence that the OCS Operations company could survive. So why do they fail in their duty as directors and not seek to have it wound up? Because the OCS Investment Holdings/OCS Properties/OCS Operations charade is a property play: they're waiting on the capital appreciation of the building to reach a particular point upon which to exit. In this regard the OCS Operations is required to continue, so they squint a little, bury the heads slightly in the sand, and lo! it's still a going concern. In this regard the staff and the concession-holders are a bit like the Bruce Willis line in the 'Sixth Sense', i.e. some are dead and they don't even know it. Sad to see Bennetton fork out several hundred thousand re-fitting their Clerys store when the plug was going to be pulled at some stage from late 2014/early 2015 onwards by Gordon Bros.

(See attachments and marvel at how the Directors could legally continue to sign off on the accounts. This is quite apart from the Natrium three-card trick when acquiring the various OCS companies).

Surely any hardened capitalist would be interested in viable retail businesses rather than supporting the various predators and hangers-on of the property-tariat that the Irish state, banks and certain insiders love so much but which add little/no productive value to the Irish economy. But we hear today that the Govt are looking at the sale of AIB next year, so on will go the hand-wringing about some aspects of how the current tax regime and planning process encourages property speculation over investment in productive businesses, but at the end of the day the Govt has too much of a vested interest in the property/banking business to act in Ireland's best interest.

Elsewhere on the thread there's been a number of comments to the effect that the staff "were asking for it", the old "short skirt" argument of the 1970s. There's nothing the staff on the shop floor of Clerys or its concession holders could've done to avoid this property play unfold. Even then, within Clerys itself the wider strategic decision-making of the ratio of direct sales to concession-holders, on stock rotation, whether to go mid-market or upmarket etc are all far removed from what outcomes the sales staff can affect, i.e. even if every one of them was Blake from Mitch & Murray.

Permabear

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Geuze

FreudianSlippers wrote: »

I don't think any reasonable person, with any education in business or law, would argue that the concept of separate legal personalities of companies should be illegal. There are ways within the law to ensure that situations such as this do not arise, but removing the cornerstone of our corporate legal system would be insane.

I don't think anybody is suggesting that separate companies within a larger group should be abolished.

FreudianSlippers

Geuze wrote: »

I don't think anybody is suggesting that separate companies within a larger group should be abolished.

That's not the point - the point is abandonment of the policy of separate legal personality which someone effectively claimed should be "illegal".

andrew

Permabear wrote: »

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I get that you think redundancy pay shouldn't be a thing, but given it is, how is it defensible for that cost to be foisted upon taxpayers via a tricky corporate structure? A private business has failed, and our money - not private money -has to pay for it.

Permabear

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andrew

Permabear wrote: »

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I just don't see how it follows that if companies shouldn't have to pay this cost, that it's OK when they shirk it and the state has to pay it. If companies shouldn't have to pay it that's one thing, but the state paying when they don't pay it is another issue.

I think there are a bunch of reasons for redundancy pay to exist that appeal to the efficient functioning of the labour market, and as you well know well functioning markets are a good thing.

There are also non market based reasons to have redundancy pay. For example, I think it's nice that people aren't immediately thrown into poverty when they lose their job, even if I think that people should endevour to ensure they aren't put in that position, because poverty is really crap.

Permabear

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K-9

The larger point is did they mislead staff, suppliers and partners like Benetton and where they an actual going concern?

If you're ok with the general principle of what they did, and don't really see much wrong with it as it was all legal and above board, well there's enough there to nit pick and sidetrack from the wider view.

andrew

Permabear wrote: »

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Going by what glacial_pace71 wrote, there is a holding company and two subsidiaries, right? So in one way legally the subsidiaries are seperate but in another way, they're joined by the fact that they have the same shareholder. The distinction is pretty artificial; they belong to the same group.

Again, going by what glacial wrote, this structure was established so that the holding company could shirk it's responsibility to what are ultimately it's employees, by ensuring that upon liquidation the employing company would have no assets with which to pay redundancy.

To recitfy this situation, you don't have to overturn the legal system. You could either make the ultimate shareholder responsible for the debts of it's subsidiaries when those debts relate to redundancy payments. Or, becasue that's messy, you could make companies engage in some sort of financial transaction (e.g. hold assets, get a letter of credit) which enable them to at a minimum pay statutory redundancy. In any case, just because something is legally correct doesn't mean that it's fair or good in any sense.

glacial_pace71

Permabear wrote: »

This post had been deleted.

I'm not going to nit-pick with you ad infinitum, as you've clearly a particular view about this set of transactions.

I've provided you with the data upon which the company directors signed off, you've decided to discount that and instead place some blind faith in a press release.

It was always about acquiring a debt at 60-odd cent in the euro, separating out the assets from the liabilities, realising the value of those assets and divesting responsibility for the liabilities. As this matter may ultimately be the subject of a legal challenge I'm not going to continue here with providing Natrium and/or its cheerleaders with any fig leaf under which to hide from the staff or concession-holders.

FreudianSlippers

K-9 wrote: »

The larger point is did they mislead staff, suppliers and partners like Benetton and where they an actual going concern?

If you're ok with the general principle of what they did, and don't really see much wrong with it as it was all legal and above board, well there's enough there to nit pick and sidetrack from the wider view.

In fairness, I think the staff and suppliers were equally as screwed had they not stepped in during the receivership in the first place.

Godge

K-9 wrote: »

The larger point is did they mislead staff, suppliers and partners like Benetton and where they an actual going concern?

If you're ok with the general principle of what they did, and don't really see much wrong with it as it was all legal and above board, well there's enough there to nit pick and sidetrack from the wider view.

What they did was morally wrong.

Was it legally wrong? Don't know.
Was it good business? Looks like it.
Did some people get stung by sharp business practice? Yes, but is that legally wrong?

johnnyskeleton

Mod note

Discussing moral, economic or political wrong is fine. But determinations as to criminal liability are for a judge or jury to decide. Also, if there are ongoing high court proceedings then please dont speculate as to potential findings and stick to the reported facts.

K-9

Godge wrote: »

What they did was morally wrong.

Was it legally wrong? Don't know.
Was it good business? Looks like it.
Did some people get stung by sharp business practice? Yes, but is that legally wrong?

Which would suggest legislation should be brought in to address the moral wrong.