Research Essay on Key Areas of Law and Compliance in Australia

Question: Write a research essay on key areas of law and compliance in Australia. Answer: Part A The first step in case of compliance can be described as identifying the laws that are applicable in case of a particular business, the regulators having jurisdiction in those particular areas, the risks that are faced by the business and the legal issues that may have to be raised by the business. In the present case, a family owns and runs a restaurant in Sydney and they want to call it the Great Catch!. In this part of the assignment, a research essay needs to be written in which the major areas of law and compliance have to be discussed that will be significant in case of the business operations of restaurant. In this way, in this part of the assignment, the areas of law and compliance dealing with the restaurant business in Sydney have to be explored. In this regard, the major areas of law and compliance include the need for the registration of the name of the restaurant, the health and safety regulations that are applicable to the business, the consumer protection legislation and employment law which include the equal rights legislation. In this case, it has been decided by the family that they will start a restaurant in Sydney under the name of Great Catch and at the same time, the company is not going to register the company with Australian Securities and Investment Commission (ASIC). Under these circumstances, it is imperative that the name of the business has been registered with the ASIC. But the Intellectual Property law provides that if the name of the business resembles the first name of the first name or the surname of the owner or a partner of the business, the name of the busi ness is not necessary to be registered. In other cases, the name of the business has to be registered (Vickery and Flood 2009). For example, if it has been decided by a person named John Hart that he will start a business and the name of the business will be John Hart Computers, in such a case, it is not necessary that the person should register the name of the business. But if it has been decided by the owner of a business that the name of the business will be John's Burgers, in this case, the intellectual property law requires that the name of the business should be registered by the owner. In the present case also, the family had decided to name the business as the Great Catch!. As this name is not the first name or the surname of the owners of the business, it is necessary that this name should be registered with the ASIC. In this way, the business owners are required to consider all the legal requirements for establishing the new business. In case they fail to follow the legal requirements and regulations, serious penalties may have to be faced by the business. As mentioned above, there are a wide range of legal requirements that may have an effect on the business. One such requirement is related with business structure. It is very important that all registrations related with the business structure are kept up-to-date. In this regard, an example can be given of the requirement to renew the business name whenever it is due. On the other hand, if the business is being run as a company, detailed requirements related with the companies have been prescribed by the Corpor ations Act, 2001. In this context, the taxation requirements that are applicable in case of businesses include GST and PAYG. On the other hand, if the business is being done as a partnership, a written contract should be drawn are the parties before the business becomes operational and makes any financial commitments. Similarly, the requirements dealing with property law also applicable in this case. For example, a restaurant is being run in Sydney under the Retail Shop Lease Act, 1994. It is advisable that the lease is properly understood by the parties, before they sign it so that appropriate terms and conditions are mentioned in the least deed and the parties are aware of their obligations under the lease before they have signed. Similarly if the parties are operating the home business, it is possible that the number of persons who can work there may be restricted by the local council. Therefore it is advisable that the business owners should contact the local council. The next issue is related with intellectual property. The business should make efforts to protect their intellectual property as it gives them a legal entitlement over such intellectual property. In order to protect their intellectual property, businesses can use trademarks, designs and patents. At the same time, that businesses may be required to review and if applicable, renew the intellectual property protection regularly. For example, the businesses are required to renew their trademarks after every 10 years. However, it also needs to be knowledge that intellectual property involves complex issues and as a result, it is advisable to the advice from specialists. In the same way, when staff is employed by the business, there are certain employer obligations that may arise one part of the business. It is required in this regard that the right person is selected for the business that matches with the job description and the selection criteria that has been specified. The business is also required to make offer of employment to the prospect of employees in writing which includes the conditions of awards, agreements and the contract of employment. Another relevant issue is related with consumer protection. In this context, it needs to be mentioned that the Australian Consumer Law is the national law that is applicable in all jurisdictions in Australia and to all sectors. In this way, all the consumers in Australia have been provided the same rights and similarly, similar obligations have been imposed on the businesses regarding consumer protection, regardless of the State or the Territory in which the business operates (Clarke, 1989). The Australian Consumer Law prohibits unfair trading practices, covers general standards of the conduct of the business and it also regulates particular business to consumer transactions and at the same time, it provides business guarantees related goods and services to the consumers. The ACL also regulates the safety of the products and services supplied to the consumer. As a result, it is very important that the businesses are aware of their obligations towards the consumers in view of the prov isions of ACL. Part B Problem Question On the basis of the facts that have been given in this part of the assignment, it has to be decided if Manny and Bella have any remedies against the manager of Tuscan Ovens Pty Ltd. This issue arises due to the fact that Manny and Bella wanted to purchase a heavy duty to oven that can cook at least 30 pizzas in an hour and should be able to operate for 16 hours continuously every day. Therefore when they visit the showroom of Tuscan Ovens, they clearly tell the manager that they only require such an oven otherwise they will lose customers, particularly during the peak hours. After listening to the requirements of Manny and Bella, the manager of Tuscan Ovens recommends that they should buy the new Tuscan XX commercial oven as this oven can satisfy their requirements. In this way, on the basis of the statement made by the manager and also on these recommendations, Manny and Bella decided to purchase the oven at the price of $15,000. But very soon, they found that the oven can go only 1 2 pizzas in an hour and at the same time, the oven was also found to be unreliable. As a result of these problems, the pizza business of Manny and Bella had been losing money. On the other hand, Tuscan Ovens was not ready to discuss the complaints regarding the oven. Under these circumstances, it has to be decided if Manny and Bella can take any legal action against Tuscan Ovens Pty Ltd and what remedies are available to them. In this regard, according to the Australian consumer law, the parties may avail contractual remedies that may be available under the common law in case of such pre-contractual misrepresentations or the parties may decide to avail the statutory remedies that have been provided by the Australian Consumer Law, which forms a part of the Competition and Consumer Act (Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd., 2011). Earlier, the relevant legislation was known as the Trade Practices Act, 1974. However the Australian consumer law is being used more commonly as it is applicable in a wider range of circumstances and it is considered that the ACL provides that the remedies to the parties that have suffered a loss as a result of the misrepresentation made by the other party. Section 18 of the ACL has imposed a statutory provision on misleading and deceptive conduct. This section is a part of schedule 2, Competition and Consumer Act and these provisions can be earlier found in s 52, Trade Practices Act. This is the reason why much of the case law related with this issue still refers to section 52. However according to section 18, it has been mentioned regarding misleading or deceptive conduct that a person should not be involved in conduct that can be considered as misleading or deceptive or if such conduct is likely to mislead or deceive, in trade or commerce (Miller Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd., 2010). As the reference has been made in this section to trade or commerce, it can be said that the sales that are purely private in nature have been excluded from the purview of this section but at the same time, the provisions of this section cover almost all commercial activity (Commonwealth Bank of Australia v Mehta, 199 1). When it has been established that there has been a breach of section 18 and a party has been involved in misleading or deceptive conduct, a wide range of remedies are available to the other party which include images and the avoidance of contract or variation (Demagogue Pty Ltd v Ramensky, 1992). In this case also, it needs to be seen if the requirements that have been mentioned in section 18 are fulfilled in this case and if the pre-contractual representation made by the manager of Tuscan Ovens can be considered as misleading or deceptive. In this case, Manny and Bella had clearly told the manager that they want an oven that can open at least 30 pizzas in an hour otherwise they will lose their customers, particularly during the peak hours. Similarly, it was also required that the oven should be reliable and it can be operated for 16 hours continuously every day. But after purchasing the oven, it was found that the oven can only cook 12 pizzas in an hour. Moreover, the oven also proved to be unreliable and therefore it cannot be operated for 16 hours continuously every day. Before purchasing the oven, Manny and Bella had clearly told the manager of Tuscan Ovens regarding the requirements and when the manager recommended a particular model, they decided to purchase it, on the basis of representation made by the manager. In this way, it can be said that Manny and Bella had relied on the representation that was made by the manager regarding the capacity of the oven and also its reliability. Moreover, this transaction was made in context of trade and commerce as the manager was clearly told that the oven is required to cook pizzas at the restaurant. In this way, it is clear that the present case is covered by the provisions of section 18. In case of the contracts that have been created as a result of misleading or deceptive conduct, the major remedy that is available to the other party is that of damages. Although an injunction is more significant regarding relief for the breach of section 18 generally but such relief is of little use under the circumstances where the parties have already entered into the contract on the basis of misleading or deceptive under (Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Ltd., 2004). Therefore in the present case also, Manny and Bella can claim damages from Tuscan Ovens Pty Ltd due to the misrepresentation made by its manager and relying on which, Manny and Bella entered into the contract for the purchase of oven. References Philip H Clarke, 1989, The Hegemony of Misleading or Deceptive Conduct in Contract, Tort and Restitution 5 Australian Bar Review 109 Roger Vickery and MaryAnne Flood 2009, Australian Business Law: Compliance and Practice, Pearson Education Australia Case Law Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 41 Miller Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357 Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Ltd (2004) 215 ALR 625 Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76.