Regulations in the Business Law in Australia - Assignment Example

Business Law Name Tutor Date Law is defined as the rules in a system, that govern a certain region, containing a group of people governed by common regulation, whereby, any break of the rules leads to a certain penalty. Australia as a nation has several rules guiding its citizen. Some of these are Alcohol Law in Australia, Anti-discrimination law in Australia, Australian case law, Human Rights in Australia and Business Laws in Australia among several others. In this concept, we shall discuss about some regulations in the Business Law in Australia. 1.a) The Retail Trading Act 2012 (Qld) Business Law has several rules under it. Examples include; National Consumer Credit Protection Act 2009, Consumer and Competition Act 2010, Law of contract, among several others. There are regulations that govern these laws. The Retail Trading Act 2012 revolves its regulation in and around businesses that deal with the retail section. Inclusion of these rules involves the opening of the business areas on public holidays. The Act has it that a retail business should not be opened before 10.30am on a public holiday that has been declared. The staff that can be used to work on this particular holiday should be that that has volunteered. The commonwealth Parliament in 2013, however, enacted the Fair Work Act on June 2013, so that the conditions of working of the employees of retail shopkeepers are protected. The Act has a provision for hourly rates of the employees who work on these public holidays or substitute that day with a gain of a leave day or addition to the number of leave days; this depends with different retail institutions (Mason, 2003). Fair work Australia, as it was known before, was changed to Fair Work Commission. It is the tribunal of the relations that are industrial in Australia that was made up by the 2009 Act in Fair Work. Some work that this Fair Work does includes the fixation of minimum wage, resolution of disputes, enterprise agreement approval, as well as unfair dismissal settlements. Fair work commission Australia, is a body that is independent that has some powers and ability to control as well as implement rations that relate to slightest wages and salaries, as well as the conditions of employment, bargain of enterprise, actions that are related to the industries, resolution of disputes and employment termination. The manager of Brisbane Supermarket can go ahead and open his business on the public holiday since he is ready to comply with all the requirements of the commonwealth Act. According to the retail trading hours amendment Bill 2012, trading hours can be varied for the retail shops that are general, in areas that are metropolitan with respect to a public holiday, as well as half-holiday that is public. b) In the Australian constitution, of the section 109, federal laws that are valid, supersede state laws that are inconsistent. Section 109 has provisions as follows: in the instance of commonwealth law having inconsistency with state law the former shall take precedence making state law invalid or valid to the extent of its consistency with the constitution of the commonwealth. Section 109 and section 5 from the Commonwealth of Australia Constitution Act 1900 that is not included in the Australian Constitution have the consideration of being the basis of judicial review power existence in Australia. Section 5 of the Act provides that every law that has been created by the Commonwealth Parliament under the Constitution will tie the judges, courts as well as citizen of each state In Australia even if its state laws are inconsistent with the commonwealth law. However, by using the term invalid here, does not literally mean that that law of that state is actually not valid for that state to pass it but it ceases to merely operateeven though it is fully valid. State law and commonwealth law has to be valid for the section 109 to fully operate. As soon as the commonwealth law comes into operation, there is yield of the state law to the law of commonwealth, albeit maintains its validity of the Parliament that was responsible of its existence The court that is responsible for the law that should override the other is the High court. Three approaches have been brought about by the developmentof the doctrine of the High Court in the cases that are related to section 109, to determine any existence of inconsistencies. These are: the possibility of obeying both laws; existence of one of the laws supporting a rightthat the other can easily do away with; and whether the laws that are federal cover the field at hand (Morabito and Strain,1993). An occurrence may occur, whereby, it becomes a challenge to comply with both laws. For instance, the manager of Brisbane Supermarket cannot comply with both laws since they have different regulations. Section 3 of the retail trading Act provides that a business running on a public holiday cannot be opened before 10.30am but the manager wants to open his business at 9am. The view that would be taken would include: The Parliament’s power is to enact laws while considering conciliation, as well as arbitration so as to prevent and settle disputes that are industrial and extend above the limits that whichever State will enable the Parliament to make authorization on awards that in the process of establishing the relationship that affect the disputants, without considering the provisions as well as policy of the law of the State; theArbitration Act,as well as theConciliation of the Commonwealth,deliberates this power towards the tribunal, that may bring about the settlement of the duties and rights of the parties with the dispute disregarding the ones that the law has prescribed, of which are superseded by sec. 109, which brings about Federal statute paramount so as to enable empowering of the tribunal, leading to the result that brings about State law having difficulty in operating validly, whereby, the exercise that the tribunal is empowered is empowered to resolve disputes regardless of state regulations. In case of any dispute with the law then the manager of Brisbane Supermarket can take the issue to the High court which would make the decision for them (commonwealth v Queensland, 1920). 2a). An exclusion clause is that clause that exists in a contract which provides a restriction of rights to both parties forming the contract. There are three types of exclusion clauses. These are: true exclusion clause- this clause is responsible in recognizing potential breach of contract, and hence may excuse breach liability in future. The clause alternatively, is created in a manner that it only embraces care that is reasonable in the performance of duties that involves either of the parties. Limitation clause- this clause limits the quantity of claim in the instance of a breach of contract even when the loss is realized. Time limitation- this clause has it asserts that cause becomes extinguished if a claim is not began within a stipulated time. Traditionally, the courts have had it that exclusion clauses are in operation only when they form ‘part of the contract’. There are three methods existing of incorporation. These are: Incorporation by signature: As L'Estrange v Graucob puts it, in case a document has a clause written on, which has the entire parties signature, it is the considered asfragment of that contract. In a case where signature has not been done on the the document, whichever exception clause belonging to it will just be amalgamated in the case where the party laying its claim on the basis of the clause (the 'proferens') can be able to prove that reasonable steps were taken to bring inform the other party of circumstances before entering into the contract. In the instance of a contradiction, it is not necessary that proferens has to confirm the reading and understanding of the clause by the other party (with an exception whereby the clause is predominantly unusual). It is unnecessary to illustrate the responsiveness of the person for whom was aimed at. It is similar to the 'reasonable man' test in tort: the party on the clause is expected to ensure that the terms are reasonable in order to elicit the commitment of the convincing person. Incorporation by notice: According to Parker v SE railway, an exclusion clause should be integrated into the contract in instances in which the person who relied on it took steps that are reasonable in bringing making the other party aware of it. Thornton v. Shoe Lane Parking (1971) shows an indication that the broader the clause, the higher the chance of the party dwelling on it will be able to bring it forth to the attention of the other party. The announcement should be done afore the commencement of the contract. Incorporation by previous course of dealings: In accordance to McCutcheon v David MacBrayne Ltd, (1964) terms (including exclusion clauses) may be made part of the contract if there was consistent and regular contact between the parties. This means that a pattern can be established; however the courts have asserted that the bargaining power of each party is critical in determining the application of the clause. For the operation clause to be brought to bear, the breach must be covered. In case of an existence, the liability type arising is then significant. In general, there exist two diversities of liabilities: Strict liability-this is a liability that arises due to affairs state minus the party that has breached bearing responsibility and also liable for negligence- rising liability brought about by fault. There is a tendency of the courts to require the relying party on that clause to make sure it drafted the clause well so that exemption from the liability raised is done. In the course of presence of any ambiguity, the courts will have to interpret in a strict method against the party that relies on the clause. In the event of the attempt of construing exclusion clause in accordance to the ordinary as well as natural meaning of words, and ambiguity exists the contra proferentem rule. In the course of negligence, the courts have come to a conclusion that it is close to not being practical that a person can take a step of faith to contract which makes the other party not liable due to errors in the contract. In the instance of a party wishing to exempt negligence liability, it should be clearly stated that it is upon the other party to read and understand the terms of the contract. According to the decision that Canada SS Lines Ltd v The King, the decision was: In the case where the exclusion clauses indicate "negligence" overtly, then the negligence liability is excluded. In case "negligence" has not been declared, then the negligence liability is not included only if the terms of the exclusion clause are wide ranging such that they may exclude liability for negligence. The contra proferentem rule will be used in the instance of any ambiguity. If at all the claim made on additional basis can be completed other than the one on negligence, then the basis is instead covered. The ‘four corners rule’ in Australia has been implemented over the knowledge of “fundamental breach". There will be presumption of exclusion of losses’ liability by the parties to a contract that arises from acts that are unauthorized under that contract. Nevertheless, in the event of the occurrence of negligence during the acts that are authorized, exclusion clauses shall still be implemented. In the event of the contract of the carriage of goods, the path that was previously in the agreement is not fulfilled; the exclusion clauses that were there will no longer apply. Exclusion clauses in Australia have been known to be lawful by the High Court. In the event of deliberate breach, then the clause will not apply. 2b). There has been a breach of contract between K-Lark’s and Roderick. This is because their contract involves carriage of goods.K-lark’s did not make Roderick understand of their exclusion clause and instead went ahead and agreed to abide by the time condition which brought losses to Roderick. K-lark should pay damages to Roderick, the $50000 losses that it incurred 2c). Chapter 2 of the Australian Consumer law protects the standards of business conduct in the market which include a ban that is general on the conduct that ismisleading and is deceptive in trade, a provision that makes contracts void that have contract terms which are not fair. Roderick can sue K-Lark’s for misrepresentation since K-Lark’s did not abide to what they had stipulated. They did not take the goods exactly where they had been expected and told to take them. According to the Australian Competition and Consumer Act (2010), K-Lark’s will have to pay the $50000 that Roderickincurred due to wrong destination and failure to abide by the time, as damages. 3a). Law of agency is part of business law that deals with a couple of fiduciary relationship, which is contractual, non- contractual, as well as quasi-contractual. All these should involve an intermediary known as an agent. An agent is allowed to act as a representative of a person or even company, known as the principal, when creating a legal agreement known as a contract. The function of the agent is to negotiate for the principal to the third party so as to form a contract. The rights and liabilities of a principal and agent show a reflection of realities of commerce and legalities. The owner of a certain business normally relies on his or her employee to do business for him or her. Examples like corporations, which are legal persons, entirely rely on human agents to do business for them. From the contract that the agent enters with a third party, a principal is bound if the nature of the contract is within the agency scope. When an agent identifies himself to a third party with his terms, the other party relies in good faith on the presented representation. It is actually a challenge to go investigating on the credibility of the agent’s authority to represent a corporate or person. In case of a fraudulent action of the agent, that is, he is not representing the principal as he is claiming, then, he will be held liable. There exist three broad categories of agents. They include: universal agents- these agents have a broad authority that may hold the power of attorney; General agents-have a limited authority in conducting a business transaction and special agents- conduct a specific transaction over a stipulated time. 3b). Henry Lawson was the agent representing BBC Limited in getting into contract with the French supermarket chain, Ulti in supplying of low fat Queensland beef. Henry however did not act as the agent for BBC Limited since he acted as the agent for Floaties Limited where he had major shares. He made a step of convincing the Ulti firm to engage into business with Floaties Limited through making them accept the shipping of the beef to France. From this, Henry was no longer acting as an agent to the BBC Limited since the business was shifting to Floaties Limited which was not part of the contract terms since Ulti wanted initially to do business with BBC Limited through entering into a contract with them. Ulti can therefore go ahead and sue Henry for the breach of contract since there is no legal valid beef supply contract with the BBC Ulti was initially interested in entering into a contract with BBC Limited and not Floaties Limited. Henry made a point of convincing them into doing business with another company, Floaties, which was not the intention of Ulti. This is because there was no agreement with this Floaties Company before. Henry convinced them due to his own selfish reasons of earning more salary and more credit since he had shares at that place.Ulti should sue Henry for making them enter into a contract with Floaties which was not their intention. Ulti relied on Henry in good faith since he acted as an agent to the BBC Limited. Since Henry was not representing BBC Limited then he is liable to be sued. Henry had an actual authority to act as the agent of BBC Limited which was not what he represented. Henry had actual authority, but he performed acts outside the scope of the BBC Limited which was the original principal. The relationship between Henry and Floaties was not disclosed to Ulti and this was not right and fair to the Ulti organization. BBC Limited is not liable here since Henry is not representing them. Henry had certain duties that he owed BBC Limited which included performing of the tasks that were specified in the contract, and in this case, he was to supply low fat Queensland beef. Henry was also supposed to perform his duties with diligence and care, yet in this case he did not show an act of diligence. Henry was also supposed to maintain the principal’s interests, as well that of his own; this was to happen in the sense that he was not supposed to engage in an activity or conduct that would make him benefit some gains at the expense of the principal’s main activity and intention. Henry gained through convincing Ulti into accepting Floaties Company to supply beef to France since he had a lump sum share at that Company as well as would receive more money. He did this without the consent of BBC Limited. Henry engaged in his own selfish self-dealing activities which are not just to the BBC Limited, as well as Ulti. Henry is therefore liable to Ulti business for the breach of implied warranty. 4). Civil Liability Act (QLD) has protection of the statutory for those individuals who perform work that is voluntary for the organization of the communities from personal civil liability involvement. This act has also changes that are fundamental to the Common Law of Negligence. Due to civil liability, as well as the insurance crisis, the Queensland Parliament passed this Act. Several initiatives of this Act depend on the endorsements of the law of negligence report review. The issue of protection of volunteer that is dealt by legislation has every state passing it, as well as the Australian territories. In the United States, legislation has also been passed that has the same issues. This Act got into practice from the 9th of April, 2003. It lacks retrospective effects. In an organization, this Act applies to a volunteer during a community work that has been brought about by an organization from the community afterwards. The term ‘volunteer’ is used to mean an individual whose work is to perform the work of the community on ‘voluntary basis’. For one to be considered as a volunteer, he or she should make provision of services with no expectation of return in form of payment. The volunteer should only expect compensation of the expenses he or she has incurred. When one performs work that has been assigned to him or her by the court through a court order, then that is not considered as a volunteer or the work he or she is doing is not volunteering Section 38 (1), (2). A volunteer is given some certain protection during his volunteering duties. This protection given to the volunteer is met up for whichever act, as well as omissions done in good faith by the volunteer during the volunteering sessions either formed up by the organization of the community or even as an organization’s office holder. Any damage from any claim that is civil is relevant to the protection that arises from injury that is personal, damage of property, or even loss of economic status. This does not include claims that relate to some identified areas of liability that have been defined. Liability might have several bases such as tort- an example to this is an act of negligence; contract- example to this is when a party engages in the breach of contract and breach of duty of the state, which includes discrimination. When a volunteer is under protection, he or she will not personally be responsible to consider whatsoever compensation to the third party that may be brought about by an injury he or she might have caused, a damage that might have held him or her responsible, or even loss that might have been as a result of negligence of their own The Act however does not point out clearly whether the protected liability of a volunteer, a community organization will bore it. In the best parts of Australian jurisdictions, a volunteer’s liability that is protected by the statutory is transferred automatically to the organization of the community There are certain criteria that the volunteers need to meet to enable them earn the protection. These criteria are as follows: Be the defined volunteer as it is in the Act Community work should be carried out by the volunteer either as an organization of the community or as the holder of an office ‘community organization’. Ensure that the area that the volunteer is working in is within the protected liability area The volunteer should not be any example of the defined exceptions. There are also exceptions to the protection of the liabilities of a volunteer. These are as follows: When it is clear and proven that the volunteer did not work in good faith. The volunteer was conducting an offensive act as per the time the act was done. The volunteer was not sober as per the time the act took place hence did not practice care. The volunteer was not within the defined scope of the community work defined as per the time the act took place. The volunteer was not following the defined instructions stipulated to him at the time of the act The incurred liability by the volunteer was the one that the state insured against. The liability that the volunteer incurred is covered under the third party ‘insurance policy under the motor accident insurance act 1994 (Qld). For a volunteer to qualify for protection, he or she must be doing community work. Community work is an act that does not involve direct financial gains, and often performed for purposes such as charity work, benevolent work, one that is recreational, cultural, and political or even educational (section 38 and 39). The Act is however silent on the vicarious liability of the acts of a volunteer or even that volunteer who holds an office. Liability that is vicarious is whereby a liability that is legal is transferred from the one who committed to another person. A community organization, under the common law, has a vicarious liability to injured persons as an outcome of the negligent act of its employees, whereby, the act was done during the work stipulated. It will be even in the course where, the organization of the community was not on the wrong. The liability is due to the relationship of the employee and employer. The common law is not as clear on the vicarious liability principle as to the extent of the volunteer and community organization relationship. Availability of protection is not in all areas of liability. This includes: As the Workers Compensation and Rehabilitation Act 2003 (QLD) defines an ‘injury’, whereby, a factor that is contributing to the injury is the employment. An injury which has a condition that is dust related. An injury that is brought about by the use of tobacco products like smoking them or even tobacco smoke exposure. The Act will be ineffective in case the claimant suffers from the factors above. In conclusion, business law has several regulations and rules under different Acts. These include the retail employees Act which protects the working conditions of the employees. Civil Liability bill is also protects the liability of employees who work as volunteers to an organization developed by the community. While some clauses such as exceptional clause is used to exclude some liabilities incurred by one party of a contract through making it clear to the other party of the exception clause. Before one enters into a contract, there is need to understand the terms of the contract. This will enable one to determine any form of breach as well as rights. References The constitution of Australia, chapter v Commonwealth v Queensland (1920) HCA 79, High Court Mason, A. (2003). High Court of Australia: A Personal Impression of its first 100 years Melbourne University Law Review 864 at 873-4 Morabito, V. and Strain, H. (1993).The Section 109 Cover the Field Test of Inconsistency: an Undesirable Legal Fiction. University of Tasmania Law Review University of Tasmania pp 12 (2): 182–207. Read More