General Legal Aspects of Business - Assignment Example

Business Law-Section A General Legal aspects of Business Q1. Provide the legislation, codes of practice and national standards, for each of the following? Duty of care: The duty of care in a company is owed by the company directors, company secretaries along with any other individual who makes or takes part in companies decision that affect the business or who has the ability to considerably affect the financial status of the company. In addition, employees have a duty to take reasonable care for their own health and safety as well as that of anybody else in the workplace. Company law: A company is a separate legal entity and laws of Corporations Act 2001 (Cth) apply to a company. All companies have legal duties on their financial statements and audits. Each company should maintain written financial records which appropriately document and explain its transactions and financial status. A company’s constitution creates obligations for proprietary companies. If a company breaches some obligations, The Australian Securities and Investments Commission (ASIC) is mandated to investigate, order specific documents to be produced, fine the company or take an action against the company directors. Contract law: Contract law includes laws that are involved in enforcement of certain promises. Contract law is divided into the following categories: formation of the contract; contents and scope of the contract; avoidance of contract’s duties; contractual performance and termination; and remedies of breach of contract. For a contract to be formed: there should be an agreement consisting of offer and acceptance; consideration, intent to create a legal relationship, compliance with any legal formalities as well as the capacity of the contracting parts to contract. Environmental Law: These laws protect soil, air, water, sea, biodiversity and also generally protect the environment. Environmental laws may obligate that an environmental impact evaluation is done before a business approval is given and it is an offence to cause harm to the environment. Federal, state as well as local government administers environmental protection laws within Australia. The Environment Protection and Biodiversity Conservation (EPBC) Act obligates the assessment and approvals of national environmental aspects. Freedom of information: The Freedom of Information Act 1982 (FOI Act) gives the public a legally enforceable right to access of government documents and of its agencies. Industrial relations: Industrial relations in workplace are legislated through the Fair Work Act 2009. The key aspects of industrial framework include: Employment terms and conditions Bargaining obligations as well as regulations that govern industrial action Provision for flexibility arrangements to enable employees and employers to make flexible work arrangements to meet their honest needs Protection against unfair and illegal termination employment Protection of employees’ and employers’ freedom to choose if or not to have a third part representation within workplace matters and provision of regulations that govern the rights and duties of employer and employee representatives. Privacy and confidentiality: The Privacy Act 1988 regulates how information about private and confidential information about people and company is regulated. This consists of the collection, usage, storage as well as disclosure of personal information and access to the information. Additionally, companies and business ought to have their confidential policies reviewed to make sure they are complaint with the state law. Legislation relevant to organisation's operations: Australian Securities and Investments Commission Act 2001 (ASIC Act) regulates organizations, markets as well as financial regulators in Australia. Legislation relevant to operation as a business entity: The Corporations Act 2001 is the legislation that deals with business entities within Australia. The legislation regulates issues like business formation as well business’ operations and obligations of officers. Reasonable adjustment in the workplace for people with a disability: Anti-discrimination legislation obligates employees to make reasonable adjustments for workers and forthcoming workers with disability by making changes that guarantee equal opportunity. Anti-discrimination: The Anti-Discrimination Act 1991 is the act that promotes equal opportunities for everybody through protecting them from unfair discrimination some areas of activities and also from sexual harassment and certain related offensive conduct. Unlawful dismissal rules and due process: According to the The Fair Work Bill 2008, an employee’s dismissal is illegal if the decision to dismiss the employee is based on the prohibited reasons or if an employee is dismissed without satisfying the minimum notice duration. For instance, it is illegal to dismiss a worker based on physical disability, absence on sick leave or for joining or leaving union membership. Q2. Formulate risk management plan for any project, including occupational health and safety (OHS)? Q3. What is the relevant legislation from all levels of government that may affect aspects of business operations, such as? The Corporations Act 2001 (Cth) regulates business operations in Australia Occupational Health and Safety Q4. What legislative frameworks govern the Occupational Health and Safety (OHS) in an organization such as KFC? According to OHS legislation, organisations like KFC are obliged to provide safe premises; safe equipment and substances; safe work systems; information, guidance, training and supervision; as well as a suitable working environment and facilities. Q5.What is the common Personal Protective Equipment should workers at KFC wear? Head cover, shoes, as well as cooking apron to protect the employees from accidents such as being burn by boiling water and also to prevent contamination of the food which is vital for health and safety of KFC customers. Q6. Explain what information should KFC include in an OHS management plan? The Safety and Health Management Plan should encompass KFC’s specific objectives and actions and identify individuals responsible for the actions; safe systems of work; correct work procedures and emergency action plan specifying procedures to handle sudden unexpected events such as fire incidents. Q7. What information would KFC include in an induction package of a new staff? Information about KFC as an organization Information on confidentiality and professionalism Employment contract including the pay and the probation period The organizational policies and procedures The KFC’s working environment The staff’s specific role of the new staff in the organization Information about the department/division Working hours Health and safety aspects Q8.When is it appropriate to review the OHS management system in an organization such as KFC? After every six months for the KFC management to make sure that there is constant sustainability of the OHS management system and it is effective as well. Workplace Safety Q9.Why is it important to keep records of manufacturers' and suppliers' information including dangerous goods storage lists? These records are necessary to protect the company, the employer and even workers in an event of a workplace accident because without accurate records it would not be possible to prove that all required OHS regulations, policies and procedures have been followed. The records are also necessary to ensure that the necessary precautions are always followed when handling the goods. Q10. Why is it important to records of the Material Safety Data Sheet readily available in a workplace? To ensure that everyone in the organization can easily access the information and familiarize themselves with the information and also become aware of what is required of them when handling the materials Q11. What is a hazardous substances register? It is a document that provides information and instructions to employees regarding how to safely manage and prevent themselves from the risk of exposing themselves to harmful substances within the workplace Q12. Why is it necessary to keep plant and equipment maintenance and testing reports? In order to ensure that the records are available to show when the machinery and equipment were tested and examined. This can guide on appropriate maintenance of equipment which is necessary to making the plant and equipment more reliable and preventing dangerous contacts with the equipment and plant. In additional, the records help ensuring that there is proper maintenance of machinery which can prevent hazardous, injuries and fatalities that can arise from faulty machineries. Human Resource Management Q13. Why is it necessary for organizations to provide information and training including training in safe operating procedures, procedures for workplace hazards, hazard identification, risk assessment and risk control, and emergency and evacuation procedures? Because this information helps in identification and assessment of the potential risks and thus it helps in taking actions to protect against the risks and also in mitigating the risks. In addition, this information helps the responsible individuals as well as employees to know the necessary actions to take in case of an accident. Q14. Write a procedure to terminate staff in accordance with legal and organisational requirements where serious misconduct occurs? 1. The management should investigate the alleged misconduct widely and this should include enquiries from witnesses if any 2. The management should request the employee to respond to the allegations and allow them to have a hearing while taking notes. During the employee representation, the management should have a witness present. 3. The management should give candid consideration to the worker’s responses as well as the circumstances 4. If still appropriate, after conducting a comprehensive investigation, the management can terminate the worker 5. The management ought to keep a file of all proof gathered and actions that were taken in these circumstances 6. The organization will then send a termination letter to the employee noting brief detail of reasons behind the termination Financial Q14. What are the relevant legislation and current requirements of the Australian Taxation Office, including GST? The Australian Taxation Office is required to collect revenue for the Australian government. The office also administers the Australian federal taxation system and superannuation legislation. The Australian Taxation Office requires businesses to keep financial business records and businesses can be penalized if they fail to comply. Businesses are also required to keep their business activity statements as well as the tax file number. The legislation that guides the Australian Taxation Office includes Income Tax Assessment Act 1936 and Income Tax Assessment Act 1997. All businesses in Australia that have a turnover higher than the minimum threshold (at present $75,000 annually) are obligated to register for GST and business with turnover than the threshold they can register if they wish. Taxable supplies consist of goods exclusively in Australia, from or to Australia or real property in Australia. Q15. What organizational record keeping requirements are required by the ATO for auditing purposes? Organisations are required to maintain financial records for a period of minimum of 5 years and the records should be also maintained for 5 years even after the business is sold or closed. The records should be in plain English and should be easily accessible by the tax office. The records that organisations need to keep include income tax and GST and they consist of: sales records, purchase/expense records and Year-end income tax records. Records related to payment of employees such as tax file number declarations, employee payment records, FBT information, PATG payment details as well as superannuation documents should be kept. In addition, records related to fuel tax records and PAYG withholding records should also be kept as per the ATO requirement. Q16A. Where would HR Managers gather information on award and enterprise agreements, and relevant industrial instruments? HR managers can gather the information from the website of the Fair Work Commission as well as from the Fair Work Act and from the Fair Work (Transitional and Consequential Amendments) Act 2009 [Cth].  Q16B. What are the taxation requirements for each of the following? 1. Sole trader: A sole trader is required to used her/his personal Tax File Number when lodging the income tax return; register for GST of the business is an enterprise and the yearly GST turnover is or above $ 75,000; pay tax equivalent to income tax rates for individual taxpayers; pay quarterly PAYG installments and claim deductions for any individual super contributions made after fund’s notification. 2. Partnership: Partnership owns Tax File Number; the partnership should lodge an yearly partnership return indicating all business income and deductions; Every partner pays tax on the profit they get and hence the partnership never pays income tax on the earned profit; The partnership should own an ABN and should register with GST when yearly turnover is or above $75,000. 3. Join venture: Each partner in a joint venture is expected to separately pay tax basing on the income and claim percentage share 4. Company: Companies pay a company tax rate of 30 percent via the dividend imputation system 5. Trusts: Trustee lodge tax returns for the trusts and trust beneficiaries declare the trust’s income in their own tax returns and pay tax on it. Business Structures Q17. List 4 main legal structures a business can be set up as Sole trader Partnership Trust Company Q18. List 5 keys considerations when deciding on the structure of a business? 1. The complexity of forming the business and the complexity of conforming to the relevant laws and regulations. For example, a sole proprietorship can be established without formal documentations and it is very easy to form 2. The number of business owners and their involvement level 3. Liability 4. Tax considerations 5. Business management preferences Q19. List 2 advantages and 2 disadvantages of each legal business structure Sole proprietor Advantages Easy to start The owner has total control of the business and keeps all profits Disadvantages The owner has unlimited liability because there is no legal separation between business and private assess such as home The business’ life is limited Partnership Advantages Easy to start Shared responsibilities Disadvantages Unlimited personal liability because partners are personally responsible for business debt Every partner is jointly and severally liable for debt of other partners Trust Advantages There can be limited liability if after appointment of a corporate trustee Taxation of income in a trust is done as individual’s income Disadvantages Trust is a complex business structure It is costly to set up and maintain Company Advantages Limited liabilities for partners A company can trade anywhere within Australia Disadvantages There is no privacy because financial activities are public Can be costly to set up, maintain and wind up Q20. Explain what each of the following key methods of protecting a product or idea Copyright: It is the is the ownership of an intellectual property and a legal method that gives the creator of the work such as artistic or musical work the right to publish and sell the work. Violating the copyright is known as infringement Design: This is a patent on ornamental or artistic features of a device Trademark: This is any word, name, symbol or design that is utilized in business in identifying and differentiating goods of one manufacturer or seller from goods of another and also to show the source of goods. Patent: This is a right given to a person or a group such as a company and gives them the permission to prevent other from creating, utilizing, or selling the invention stipulated in the patent. Q21. Insurance is a way a company protects its assets, resources and workers against risks. Explain why an organization would insure against the following risks? i. Property insurance: Organization take property insurance to ensure longevity and success of the business because when company properties and equipment are destroyed the organization does not have to incur the cost of replacing the properties and also no business income is lost due to unavailability of the property. ii. Liability insurance: This insurance protects business against lawsuits from customers or uncertainties that comes with operating the business iii. Workers compensation insurance: The insurance is important because in case of an emergency in an organization injured employee necessitating medical care can get it, organization is able to compensate workers who lost income during an incident and also employers are protected from lawsuits that employees may file in case of injuries while working. iv. Loss of gross profit insurance: The losses that an organization experiences when not being able to function normally are compensated v. Disability insurance: When organizational employees suffer non-work related injuries, disability insurance assists in covering daily living expenditures and also provides resources to recover and return to work Q22. Bad Debts are when a customer refuses to for goods and services they receive. List 3 ways an organization can use to recover bad debts? Using solicitor a solicitor who will take a legal action Use a debt collection agency A letter of demand written requesting debt settlement Q23. Under the TRADE PRACTICES ACT the State consumer protection laws imply certain conditions and warranties in relation to goods and service. Provide 5 implied conditions and warranties i. Services should attain the consumer’s stated purpose ii. Services should be provided within a reasonable time iii. No hidden defects iv. Goods will be of acceptable quality v. Goods should match samples shown to the consumer Q24. There are Federal and State anti-discrimination laws which apply to the workplace. Direct and indirect discrimination what is prohibited in the workplace. What are the common grounds that workplaces could discriminate against? Race, ethnicity, gender, pregnancy, family responsibilities, disability and age Business Law – Section B You must complete all sections of this assessment Section B - Part 1 True/False Indicate whether the statement is true or false 1. The Australian Constitution brought about some fundamental changes to the Australian legal system including full legislative independence to the Australian Parliament. True 2. The Racial Discrimination Act 1975 (Cth) is a valid exercise of the Commonwealth Parliament under s. 51(xxix), the external affairs power True 3. Under the Canadian model of federation, specified legislative powers are assigned to the provinces and the residual powers are assigned to the Dominion Parliament. Australia adopted this model, but our States are equivalent to the provinces and the Federal Parliament is equivalent to the Dominion Parliament False 4. Australia has a fused legal system in which courts can administer both common law and equity True 5. Barristers are either junior counsel or senior counsel False 6. To ensure the separation of the judicial power from executive and legislative power, judges are to be independent of those who appoint them True 7. Juries tend to lengthen the trial True 8. One refers to Parliamentary legislation by its short title True 9. An attempt to commit a crime is an offence, but mere preparation for the commission of a crime is not False 10. Internet content is presently regulated, in a similar fashion to television and radio, under a complaints-based system of Internet censorship False 11. A company cannot commit any crime where a guilty mind (mens rea) is required True 12. Carlill v Carbolic Smoke Ball Co. [1983] 1 Q B 256 is an example of a bilateral contract False 13. Contracts that do not comply with the requisite formal requirements are invalid True 14. Subject to the partnership agreement, every partner must participate in management decisions False 15. Part of the definition of a partnership is ‘the carrying on of a business’. However, a partnership structure can be used for a single undertaking True 16. A partnership is simple to establish as it is a contractual relationship. It can be established by a written agreement, oral agreement or even by conduct of the parties True 17. An exclusive branded distributorship arrangement is where the franchisor provides either the product or the essential ingredient to a manufacturer for distribution in an exclusive territory False 18. The Franchising Code of Conduct does not enable franchisors to block the transfer of a franchise True 19. All taxes should be judged by the criteria of fairness, simplicity, equity and efficiency False 20. Stamp duty is a tax generally payable on certain transactions such as sales of land True Assessment Section B - Part 2 Multiple Choice Identify the choice that best completes the statement or answers the question 21. people should stand equal before the law’ means that: D A. an enactment applies to all persons within the territory to which it extends. B. there cannot be alternative bodies of law applying to different people within the same territory C. Australian law only applies to persons ordinarily resident within the country. D. Both A and B above. 22. One function of the High Court is to: B A. grant Royal Assent as set out in the Australia Act 1986 B. adjudicate in cases involving doubts as to the validity of the exercise of law-making power by the Federal Parliament C. amend the Constitution on a regular basis according to s. 75 of the Australian Constitution D. act as the sole court to adjudicate in all cases involving State law 23. A Commonwealth Act requires all members of the defence forces to drink two cans of Coca-Cola each day, to help keep them stay alert. A Queensland Act states that no person shall drink more than 8 cans of soft drink per week, in an attempt to reduce the number of overweight people in that state. There are many defence force members in Queensland. Which response below best describes the constitutional position of these laws? C A. The Commonwealth law is invalid as there is no power in the Constituion to support it B. The Queensland law is not valid as there is no power in the Constituion to support it C. The Queensland law is inconsistent with the Commonwealth law, so will not be valid D. The Queensland law is not inconsistent with the Commonwealth law, so will be valid 24. The jurisdiction of all courts must include: C A. appellate only B. original and appellate C. original only D. None of the above. 25. Contingency fees are lawyer’s fees that are charged B A. regardless of whether the case is won or lost B. only in the event of a win C. to legal aid commissions D. in accordance with a scale 26. Which of the following is false? B A. Juries decide questions of fact and length of sentence B. Juries are often used in trials of serious criminal matters C. Juries decide questions of fact and law D. None of the above. 27. Which of the following is designed to enable a litigant to obtain more information about the other party’s version of the facts of the case before the trial? D A. Interrogatories B. Cross-examination C. Counterclaim D. None of the above. 28. In a civil action C A. the burden of proof is on the prosecution and the standard of proof is on the balance of probabilities B. the burden of proof is on the accused and the standard of proof is on the balance of probabilities C. the burden of proof is on the plaintiff and the standard of proof is on the balance of probabilities D. the burden of proof is on the plaintiff and the standard of proof is beyond reasonable doubt 31. Hearsay evidence: A A. comprises statements of what another person said to yet another person B. is not direct evidence and as such is not permitted in the courtroom C. cannot be tested for the accuracy of the conversation repeated D. All of the above. 32. Which of the following is NOT one of the most common justifications for punishment of those who breach the criminal law? C A. Deterrence B. Rehabilitation C. Incapacitation D. Revenue raising 34. A possessory interest is: A A. an interest in a possession B. unenforceable at law C. enforceable against all except the true owner of an item D. an interest only enjoyed by the true owner of an item 35. Which of the following statements is most correct? D A. An express trust may be created verbally B. An express trust must be created in writing C. An express trust must have certainty as to the beneficiaries D. A and C above 39. Subject to the Partnership Agreement, the Partnership Act states that a partnership will terminate on the occurrence of which of the following events? D A. Death or bankruptcy of a partner B. Court order where one partner is incapable of managing his affairs as he is found to be of unsound mind C. Court order where one partner’s conduct is found to prejudicially affect the carrying on of the business D. A and B above E. All of the above 40. Taxable income may include income from A A. Salary B. dividends and interest C. capital gains D. all of the above E. A and B but not C. Assessment Section B - Part 3 Multiple Response Identify one or more choices that best complete the statement or answer the question 41. What are some of the consequences of Australia becoming a more litigious society? (Can select more than one response) A & C A. Increased cost of litigation to society B. Increased threats to those who provide advice as an occupation C. Potential liability for negligent advice is reduced D. Legal complexity has been reduced 42. Which of the following are required for a class action in the federal jurisdiction? (May select more than one) D A. Plaintiffs from more than one state B. At least four plaintiffs C. Plaintiffs with substantially similar claims D. A common issue of law E. The prior consent of all potential plaintiffs. Assessment Section B - Part 4 Numeric Response 43. Unintentional innocent misrepresentations based on a reasonably held belief are the subject of which section of the Insurance Contracts Act? Section 29 (3) 44. In what year was Capital Gains Tax introduced in Australia? 1985 Assessment Section B: Part 5 Short Answers 45. How can Australian constitution be amended? The Australian constitution can be amended through referendum as stipulated in section 128 of the constitution. The federal parliament must first approve the proposed amendments as a bill. The bill is the sent to the Governor-General who issues an injunction for referendum to be conducted. 46. If there is a Commonwealth law than bans the importation of iPods into Australia from 1 January 2009, would a Victorian law requiring all primary school students to have an iPod from 1 January 2009 be valid? The Victorian law will not be valid because even if states can make any laws over any area, the law is invalid if it conflicts with the Commonwealth law. 47. Petty v R. (1991) 173 CLR 95 and Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 were heard in the same year. Explain why their citations are so different? Because the cases were reported and published in different publications and hence their series and volume numbers differ 48. What is a majority verdict? It a verdict where the jury contains 12 jurors, where at least 11 jurors are in agreement or where juror contains 11 jurors and at least 10 jurors are in agreement 49. What is the purpose of committal proceedings? Committal proceedings are held to establish if there is adequate evidence to require the defendant to stand a trial in the case of more serious criminal offenses 50. What are the possible consequences for the purchaser of a motor vehicle in New South Wales who fails to search the Register of Encumbered Vehicles? Failure to search the register of Encumbered vehicle a person can unknowingly purchase a stolen motor vehicle or one that a vehicle that has money owing on it 51. What is a Romalpa clause? This is a provision within a contract for the sale of goods whose title remains vested within the seller until the buyer fulfills specific obligations 52. Define “resulting trust” A resulting trust arises after the failure of an express trust. 53. Briefly discuss the relevance of registration to transferring land interests in Australia According to the Torrens system to have a legal transfer of an interest, this can only be passed after registration and the interest transfer can only be applied to the individual who has the responsibility of managing the estate. 54. Briefly discuss the concept of a ‘basis clause’ and its effects in an insurance contract before and after the Insurance Contracts Act 1984 (Cth) The insurance can depend on an “other insurance” clause to refuse coverage to an insured eligible to indemnity under another insurance contract. This happens as long as the insured is not a contracting party to that other contract of insurance. Assessment Section B - Part 6 Problem 55. Reliable Airlines (RA) issued printed timetables and also made them available on the Reliable website. Pamela checked the timetable for May, chose a flight that was scheduled to arrive in Melbourne in time for an important research conference presentation commencing at 10 a.m., and then booked a ticket. On the day of her flight, she arrived at the airport to find that her flight was delayed, and it actually took off two hours after the scheduled departure time. Pamela missed her conference presentation and wants to sue Reliable Pamela can sue Reliable Airline because the airline had a duty of care towards her as a passenger and the airline has the obligation of providing high level consumer protection to all passengers. Pamela missed the conference presentation due to delay and she can sue Reliable Airline for compensation. Read More