Australian business : Law

Question:

Demonstrate  working knowledge and understanding of the principles of
Australian business law within the context of the prescribed readings.

Identify
and analyse relevant facts, problems and legal issues from a given
scenario and develop an argument in response, discussing available
options in the context of business law.

Answer:

When
it comes to business activities, individuals, corporate and business
houses are required to obey the applicable rules and regulations
stipulated by the Commonwealth, State Governments, local bodies and
other authoritative bodies for the time being in force. This process of
obeying the existing legislative stipulations is known as compliance.
Effective corporate management and corporate governance is presently the
essence of doing business. Companies and individuals are required to be
ethical in imparting their duties and business activities in order to
promote a healthy industry (Abr.gov.au 2016). In the given scenario, a
family runs a seafood restaurant in Sydney and intends to call it “the
Great Catch!” This essay is directed towards discussing the various
legislative provisions that will be applicable to the business and the
nature of compliance that is required of the business.
Sydney is the
capital of New South Wales (NSW) and local laws of NSW with respect to
the food and beverage industry will be applicable to the given
restaurant business. Along with the local laws, Food Safety Standards
applicable in Australia will also have to be complied with in this
respect. According to the Food safety Standards, food business is a
business or any other activity that involves dealing with any kind of
food that are offered for sale (Abr.gov.au 2016). The standards are
applicable to any kind of sale of food that takes place in Australia.
Food Safety Standards are necessarily to be followed by businesses that
produce food. The standards stipulate that such food produced shall be
safe and suitable to eat. The standards also impose health and hygiene
obligations on business units producing, processing and selling foods.
At present, there are mainly five types of Food Safety Standards namely,
interpretation and application, food safety programs, food safety
practices and general requirements, food premises and equipments and
food safety programs for food service to vulnerable persons (Asic.gov.au
2016). These standards are required to be adhered to in a strict manner
and compliance of all the five types of standards is required.
Apart
from the Food Safety Standards, there are other legislative
requirements that a business has to comply. The first being registration
of a business name. A business name can be registered under the
provisions of the Australian Securities and Investment Commission Act
2001 (ASIC) (Asic.gov.au 2016). Business name is required to be
registered when a business is carried on in Australia and trading does
not take place under the name of the owner. The registration process can
be completed by using the ASIC portal online. Another important
legislative requirement is obtaining an Australian Business Number
(ABN). An ABN can be applied from the portal of Australian Business
Register. The information required to be provided at the time of
application determines whether and ABN can be issued to the applying
party or not. An ABN is required while filing income tax with the
Australian Taxation Office (ATO) (Asic.gov.au 2016). Another important
requirement related to taxation is obtaining a Tax Filing Number (TFN)
for business. A TFN for business purposes can be applied from the portal
of Australian Business Register. Goods and Service Tax (GST) is an
important element for a business enterprise. The seafood restaurant will
be selling food and will be subject to GST. A business or enterprise is
required to be registered under the GST regime if it has a GST turnover
of $75,000 or more. Registration for GST can be done at the time of
registering the business or at a later period (Abr.gov.au 2016). At a
time when the business is expected to cross the GST threshold in near
future, steps should be taken to get the business registered under GST.
All these compliances are required to be done for a business or
enterprise while conducting its business activities. These compliances
are related to business laws applicable to the concern and taxation
norms that the business is required to follow.
As far as the nature
of business and the food and beverage industry is concerned, several
other regulations and legislations are required to be followed and
complied with by the business. In the state of NSW, a business belonging
to the food and beverage industry is required to comply with a few
primary legislations such as Australia New Zealand Food Standards Code
(FSANZ), Food Act 2003 and Food Regulation 2015
(Foodauthority.nsw.gov.au 2016). These legislations are primary
applicable dur to the nature of the business that is to be carried out
through a restaurant (Business.qld.gov.au 2016). Apart from these,
provisions of some other legislations are required to be complied with
namely Trade Practices Act 1974 (Cwlth), The Fair Trading Act 1987 and
the Australian Consumer Law (ACL) and other regulations related to
weights and measures. The primary objective of the Food Regulation is to
minimise the incidences of food related illness (Abr.gov.au 2016). The
regulations provide a framework and a set of standards that entities
engaged in the food business are required to follow. The aim is to
provide healthy and safe food to the customers that will ultimately
cater to the growth of healthy food habits (Business.qld.gov.au 2016).
These regulations are related to the nature and quality of food that is
to be produced, processed and served by the restaurant.

Conclusion

It
can be seen from the above discussion that a wide range of rules and
regulations are applicable to a business. Some of these legislations are
exclusively applicable to businesses engaged in the food and beverage
industry. At the beginning of the business, there are certain
registration requirements and the rules thereof are required to be
complied with along with other requirements so that the business can be
commenced. In the next paragraph, detailed discussions of the types of
legislations that are required to be complied with while conducting the
business have been stipulated. Lastly, a legislative framework has been
provided, that a food business is required to follow and comply with.
Apart from the above legislations and regulations, the rights of
customers are to be ensured by complying with the ACL. The ACL
stipulates the rights of customers and the obligations of the business
entities that tend to serve their customers. Therefore, this essay
portrays the entire legislative framework within which the restaurant
business has to work. 

Introduction

In
the course of undertaking business activities, business entities are
required to ensure that they do not harm the interests and rights of
their consumers. The business activities should not be detrimental to
the rights of the customers. Protecting these customers’ rights is a
legislative obligation of business entities. In Australia, a wide
legislative framework floated by the Commonwealth and the State
Governments protects these rights of the customers
(Australiancontractlaw.com 2016). One such obligation of business
entities is to be fair and honest in their trading activities and
prevent themselves from misrepresenting facts to the customers. In the
given case,     Manny and Bella wanted to buy a pizza oven that will be
able to bake 30 pizzas at a time for 16 continuous hours. They
specifically mentioned this to the manager of Tuscan Ovens Pty. Ltd
while placing the order. The manager after understanding their
requirements suggested a product that was later purchased by Manny and
Bella depending upon the recommendations of the manager. Eventually, the
product that was supplied to the couple was not according to their
requirements and as a result, the couple incurred a substantial amount
of financial business loss. This essay aims to bring out the legislative
provisions of the applicable laws in this regard (Lawhandbook.sa.gov.au
2016).
The main topic of discussion in the given case is the
misrepresentation that was made by the manager of the Tuscan Ovens Pty.
Ltd, to the couple. Many and Bella incurred a significant amount of
financial loss and eventually lost many of its customers because they
were not able to serve them at the required time and as per their
demands. The requirements were specifically pointed out and communicated
by the couple before they bought the oven. The concept of misleading
and deceptive conducts has been stipulated under the Australian Consumer
Law that is contained in the Second Schedule of the Competition and
Consumer Act 2010 (Australiancontractlaw.com 2016). Section 18 of the
ACL states that a person must not engage in a conduct that is deceptive
or misleading while undertaking a trade or business activity (commerce).
For the purpose of this section, “trade or commerce” excludes any
private sale but includes most of the commercial sale contracts. Cases
where any violation of the above-mentioned section 18 occurs, several
contractual remedies are available to the aggrieved party
(E-lawresources.co.uk 2016). Remedies are available in the form of
damages, variation of the contractual terms or even avoidance of the
specific contract. The nature and extent of relief to be granted is
decided by the court. One of the most recent cases relating to
misrepresentation is the case of Google vs. ACCC (2013).
The
Misrepresentation Act 1972 also governs misrepresentation. Section 4 of
the Misrepresentation Act relates to misrepresentations made in the
course of business or trade and states that a person is guilty of an
offense if in the course of doing business or trade such person makes
any misrepresentation that induces the other party to enter into a
contract. Such a person making the representation that is false or
misrepresentation in the course of employment can also be held guilt of
the offence (Lawteacher.net 2016). The provision also states that if a
party is induced to make a payment as a result of misrepresentation, the
party making such misrepresentation can also be held guilty of the
offense. Therefore, it can be seen that the Misrepresentation Act and
the Australian Consumer Law forms a complete code to protect the rights
of the customers.
Damages are also available under the provisions of
the Misrepresentation Act. Section 7 of the Act states that where
misrepresentation has been made fraudulently and has caused a
considerable amount of loss to the other party, the aggrieved party will
receive damages according to the laws of tort. The court may allow the
aggrieved party to rescind the contract entirely or it may enforce any
part of the contract as it deems fit (E-lawresources.co.uk 2016). When a
contract is held to subsist by the court, the rights and liabilities of
each party to the contract are determined accordingly by the court. All
the above legislative provisions will be applicable in the given case
scenario. Therefore, legislative remedies will be available to Manny and
Bella against Tuscan Ovens Pty. Ltd. On the other hand, the couple
advertised the oven in their own name before they received the same
(Lawhandbook.sa.gov.au 2016). The oven was promoted under a false name.
However, this did not result any financial loss for the company. After
the sale, ownership of the oven was transferred to the couple and there
is no legal basis for initiating a legal against the couple by the
company.

Conclusion

It
can be inferred from the above discussion that the rights of consumers
are well protected under the existing legislative framework. The
Australian Consumer Law and the Misrepresentation Act provides effective
remedies to the aggrieved parties to a contract. In the given case,
misrepresentation caused the couple to enter into a contract and buy an
oven from the company. The requirements were clearly communicated by the
couple to the manager of the company before placing the order. Based on
the recommendations made by the manager, the couple went ahead and
bought the oven. Later when the product was delivered, it was not
according the specifications. This resulted in a considerable financial
and business loss to the couple. The misrepresentation made by the
manager on behalf of the company was intentional and the couple may
resort to legal proceedings against the manager and the company in a
competent court.

References

Abr.gov.au.
(2016). Applying for GST. [online] Available at:
https://abr.gov.au/For-Business,-Super-funds—Charities/Applying-for-other-registrations/Apply-for-GST,-PAYG,-business-name-and-AUSkey/
[Accessed 4 Jun. 2016].
Abr.gov.au. (2016). Obtaining ABN. [online]
Available at:
https://abr.gov.au/For-Business,-Super-funds—Charities/Applying-for-an-ABN/Apply-for-an-ABN/
[Accessed 4 Jun. 2016].
Abr.gov.au. (2016). Obtaining TFN. [online]
Available at:
https://abr.gov.au/For-Business,-Super-funds—Charities/Applying-for-other-registrations/Apply-for-a-TFN-for-business/
[Accessed 4 Jun. 2016].
Asic.gov.au. (2016). Compliance for small
business | ASIC – Australian Securities and Investments Commission.
[online] Available at:
http://asic.gov.au/for-business/your-business/small-business/compliance-for-small-business/
[Accessed 4 Jun. 2016].
Asic.gov.au. (2016). Steps to register your
business name | ASIC – Australian Securities and Investments Commission.
[online] Available at:
http://www.asic.gov.au/for-business/registering-a-business-name/steps-to-register-your-business-name/
[Accessed 4 Jun. 2016].
Asic.gov.au. (2016). What is a business
name? | ASIC – Australian Securities and Investments Commission.
[online] Available at:
http://asic.gov.au/for-business/registering-a-business-name/before-you-start/what-is-a-business-name/
[Accessed 4 Jun. 2016].
Ato.gov.au. (2016). Registering for GST.
[online] Available at:
https://www.ato.gov.au/business/gst/registering-for-gst/ [Accessed 4
Jun. 2016].
Australiancontractlaw.com. (2016). Australian Contract
Law | Julie Clarke. [online] Available at:
http://www.australiancontractlaw.com/law/avoidance-misleading.html
[Accessed 4 Jun. 2016].
Australiancontractlaw.com. (2016). Australian
Contract Law | Julie Clarke. [online] Available at:
http://www.australiancontractlaw.com/law/avoidance.html [Accessed 4 Jun.
2016].
Business.qld.gov.au. (2016). Food and beverage industry
regulations and compliance | Queensland Government. [online] Available
at:
https://www.business.qld.gov.au/industry/food/food-and-beverage/food-beverage-regulations
[Accessed 4 Jun. 2016].
E-lawresources.co.uk. (2016).
Misrepresentation. [online] Available at:
http://e-lawresources.co.uk/Misrepresentation.php [Accessed 4 Jun.
2016].
Foodauthority.nsw.gov.au. (2016). Legislation for Food and
Beverage Industry. [online] Available at:
http://www.foodauthority.nsw.gov.au/ip/legislation [Accessed 4 Jun.
2016].
Foodstandards.gov.au. (2016). Food safety standards (Australia
only). [online] Available at:
http://www.foodstandards.gov.au/industry/safetystandards/pages/default.aspx
[Accessed 4 Jun. 2016].
Lawhandbook.sa.gov.au. (2016).
Misrepresentation. [online] Available at:
http://www.lawhandbook.sa.gov.au/ch10s02s10.php [Accessed 4 Jun. 2016].
Lawteacher.net.
(2016). Misrepresentation Lecture | Contract Law | Law Teacher.
[online] Available at:
http://www.lawteacher.net/lecture-notes/contract-law/misrepresentation-lecture.php
[Accessed 4 Jun. 2016].

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