Law 2 Essay Example

Cricos Code: 02035F RIO Code: 30100

Business Law

General Legal aspects of Business

Q1. Provide the legislation, codes of practice and national standards, for each of the following?

1. Duty of care —

Legislation;

The duty of care is governed by the Occupational Safety and Health Act 1984 and

The Occupational Safety and Health Regulations 1996.

The codes of practice:

An employer should offer a work environment in which employees are not exposed to health hazards

Employees are obligated to take reasonable care of their own health and safety, and that of other workers in the organization

Self-employed individuals have to ascertain that their work does not unfavorably impact on the health and safety of others.

A vaccination procedure should be integrated in an organizations policy for control and prevention of infectious disease for the workstation and where suitable

National standards:

All organizations should provide a work environment that maintains occupational safety

Both employees and employer should have vital protective attires that enhance safety in the workplace

Businesses whether self-owned should follow all safety regulations

1. Company Law

Legislation

Australian Securities and Investment Commision Act 2001

The Corporations Act 2001.

The codes of Practice

Company directors should practice honesty at all times

A company should pay its debts

A company should keep proper records

Information should be used in the best interest of the company’

A company should produce true financial records

Any changes in the company requires notification to relevant authorities (Australian Security and Investment Commision, 2015).

National Standards

Fair trading for businesses in all territories and states

Businesses have to comply to laid down regulations on business operations

1. Contract law

Legislations

The Sale of Goods Act 1896

Competition and Consumer Act 2010

Australian Consumer Law and Fair Trading Act 2012

Codes of Practice

The contract remains to bind the parties if it is operated without the existence of unfair terms.

The obligations and rights of parties to a contract are regulated by the terms of that contract

Each contract should be undertaken with an obligation of fair dealing and good faith

Each party must meet the requirements of the contracts as outlined

Every party must issue a notification in the event of termination of a contract

National Standards

All business should uphold contract requirements

Termination of contract should follow the laid down legal requirements

1. Environmental law

Legislations

Environmental Protection Act 1997

Environmental Planning and Assessment Act 1979

Wildlife Conservation Act 1950

Environmental Planning and Assessment Act 1979

Clean Energy Act 2011

Codes of Practice:

Industry codes of practice: Industries should practice responsibility towards the environment at all times. This is by ensuring that their activities do not affect the environment in a negative manner

Nature conservation codes: All forms of nature should be conserved by provision of safe environments. Keeping, selling and buying protected native wildlife for public display necessitates prior approval from the Department.

Codes of environmental compliance: The environment should be protected at all times. Activities such as geothermal activities, petroleum activities and mining should be done in a manner that cannot effect the environment (Department of Environmental Protection, 2015).

National Standards

Adherence to Environmental protection requirements Such as;

National Water Reform,

National Plan for Clean Air

National Waste Policy and Chemicals

Governance and Legislation

Landscape and Ecosystem Scale Biodiversity (National Environment Protection, 2015).

1. Freedom of information

Legislation

The Freedom of Information Act 1982

FOI Act 2010

Codes of Practice

Members of public have a right and obligation to have access to government documents and publication

Each individual is entitle to privacy of individual documents that should not be disclosed to the public

The information publication scheme should be followed as authorized by the law

National Standards

Section 11(1) of the FOI Act gives every individual a lawfully enforceable right to gain access to a document of a ministry or agency, except the document is exempt (Office of the Australian Information Commissioner, 2014).

1. Industrial relations law

Legislations

Fair Work Act 2009

Workplace Relations Act 1996

Conciliation and Arbitration Act 1904

Codes of Practice

Collective bargaining should be allowed in the work environment

Flexible work arrangements for employees

Protection against unlawful dismissal from work

Protection of the freedoms of both the employers and the employees

National Standards

Organizations should allow collective barging for the workforce

Both the employee and the employers have rights and freedoms which should be adhered to

1. Privacy and confidentiality

Legislation

Privacy Act 1988

Codes of Practice

Codes of Conduct

Privacy should not be introduced unless prescribed by law

Each individual has a right to privacy in terms of property, body privacy and communication privacy

National Standards

The Australian Privacy Principles (APPs), outlined in schedule 1 of the Privacy Act 1988 proposes the privacy of information of both public and private organizations and individual privacy.

Confidential information should not be released to the public without the consent of the owner.

1. Legislation relevant to organisation’s operations

Legislation

Fair Work Act 2009

Fair Work Regulations 2009

Fair Work Commission Rules 2013

Code of Conduct

The organization and its employees should comply with the applicable regulations and laws at all times.

The organization should not condone behaviors or activities of employees that endeavor to achieve results by engaging in unethical behaviors or violating the law.

The organization should not support activities that do not have a guaranteed public scrutiny.

National Standard

All organizations should conduct their operations fairly, efficiently and honestly.

All organizations should integrate corporate social responsibility into their objectives.

1. Legislation relevant to operation as a business entity

Legislation

The Corporations Act 2001

The Australian Securities and Investment Commission Act 2001

Code of Conduct

The business entity and its investors and employees should comply with the laws and regulations at all times.

All the business activities should be subject to public scrutiny.

The business entity should not put up with behaviors or activities of employees aimed at violating the law or engaging in unethical behaviors.

National Standard

All business entities should operate honestly, diligently, carefully and with integrity to the best interest of the consumer.

All business entities should treat employees, customers and other stakeholders with courtesy and respect and without bullying or coercion.

All business entities should comply with the laws and regulations.

1. Reasonable adjustment in the workplace for people with a disability

Legislation

The Disability Discrimination Act 1992

The Equal Opportunity Act 2010

Code of Conduct

Employers should review and adjust to the performance requirements of the job to cater for the needs of the disabled individuals.

There should be flexible work hours at the workplace to cater for the needs of the people with disability.

Employees should purchase the appropriate equipment to address the specific impairments of the disabled employees at the workplace.

National Standard

It is unlawful to discriminate against disabled individuals in matters pertaining recruitment and other selection processes.

It is unlawful to discriminate against disabled employees in matters concerning promotion, pay rates, retrenchment and other employee benefits at the workplace.

1. Anti-Discrimination

Legislation

Age Discrimination Act 2004

Australian Human Rights Commission Act 1986

Disability Discrimination Act 1992

Racial Discrimination Act 1975

Sex Discrimination Act 1984

Code of Conduct

All employees have the right to equal and fair treatment at the workplace.

Employers should not subject employees to any form of discrimination; both directly and indirectly.

National Standard

Employers should ensure that the workplace is free from discrimination and sexual harassment.

Employees should understand their rights and the rights of their employees under the anti-discrimination law and human rights.

1. unlawful dismissal rules and due process

Legislation

The Fair Work Act 2009

The Industrial Relations Act 2001

Code of Conduct

Employers should not terminate the employment contract of an employee due to

• The temporary absence of the latter emanating from injury or illness.

• The membership of the employee in a trade union or his/her participation in the trade union activities.

• Sexual orientation, race, sex, color, family or carer’s responsibility, marital status, mental disorder, social origin or national extraction, pregnancy, political opinion or religion.

• Non-membership of the employee in a trade union.

• Decision of the employee to seek office or act as a representative of other employees.

• Filing a complaint against the employer or employment terms.

• Absence from work for parental leave, family reasons or voluntary emergency.

National Standard

Employers should not dismiss employees from the workplace in a harsh, unreasonable and unjust manner.

Q2. Formulate risk management plan for any project, including occupational health and safety (OHS)?

Risk Management plan for A Construction Project

Introduction

The plan will cover the risk management process that will be adopted in the project. The process will also entail identification, assessing, quantifying, reporting and tracking various risk that may affect the project. The document will also consist of occupational health and safety (OHS) requirements that will be observed while undertaking the project.

Approach of management

Responsibilities

There are specific roles and responsibilities that will be accorded to different individuals at various stages of the project. This include;

Position	Responsibility
Principle Contractor	Formulating, apprising and implementing this OHS Management Plan and all associated procedures Assessing all the legal OHS necessities Ascertaining that all stages of the project are conducted in a way that cannot pose risks to employees Ascertaining that all duties are conducted safely Designing and planning stages of the OHS Pinpointing OHS training necessary for an activity
Contractor	Identification of the high levels of risks that exist in the project Ascertain that safe work approaches are identified and implemented Ensure that safety policies are followed Comply with the OHS requirements Follow directions provided by principle contractor all high risk construction work associated with their activities and ensuring safe work method statements
Employees	Taking care of their safety and health Ascertaining that their conduct does not affect others during the project Obeying the instructions as long as they are reasonable Complying with the laid down procedures and polices

OHS Requirements

Relevant Legislation

Occupational Safety and Health Act 1984

Occupational Safety and Health Regulations 1996.

Codes of Practice

	Application
An employer should offer a work environment in which employees are not exposed to hazards	Construction Area
Employees are obligated to take reasonable care for their own health and safety, and that of other workers in the organization	Construction Area
A vaccination procedure should be integrated in an organizations policy for control and prevention of infectious disease for the workstation and where suitable Managing risks associated to electricity , hazardous chemicals and materials at the workplace	Construction Area
Managing the facilities and the project environment	Construction Area

Risk Management

Common Areas of Risk

Project Risk Areas	Potential Risk
Plants and Equipments	Insufficient planning can result to injuries from plants and equipments
falls in housing construction	Falls can cause injury
Hearing loss at work	The existing noise in the work area can affect hearing capabilities
Hazardous chemicals	Chemical used in construction can cause injury
Welding processes	Welding process can cause injury

Risk management

The process of risk management entails the identification of risk and implementation of actions that can lower the probability of the occurrence of the risk. The follow are the risk mitigation strategies that will be applied in the project

Risk management Approach	Objectives	Features
Avoidance	Risk is reduced or eliminated by altering the parameters of the construction project	Changing the plan of the project in order to avoid certain risks
Mitigation	Adapting a series of control actions that can mitigate the risk	Systematic identification of the root causes of the risk Adoption of effective measures and actions to control the risks
Transfer	Risk is transferred to another area	Involves transferring of the risks to other aspects of the project
Assumption	Risk is acknowledged and basically taken on by the construction project	Accepting the risk and doing nothing about it

Monitoring and review of the plan

It is imperative for the risk management plan to be reviewed and monitored. Monitoring and reviewing is essential in order to evaluate the progress of the plan. It can also identify existing new risks or an increase or reduction in the number of risks.

Approaches

Establish standards that are to be monitored

Measure the actual performance or the performance on the ground against the set standards

Adjust any performance

Continue to review the process

Q3. What is the relevant legislation from all levels of government that may affect aspects of business operations, such as?

1. Anti-discrimination legislation:

The Anti-Discrimination Act 1991 — The Act propagates that all people should not be discriminated on the basis of religion, sex, race, age and color

14. Ethical principles

The Corporations Act 2001 (Cth) which deals with the overall regulations that govern business in Australia

1. Codes of practice

The Corporations Act 2001 (Cth) which deals with the overall regulations that govern business in Australia

1. Privacy laws

The Privacy Act 1988

1. Environmental issues

Environmental Protection Act 1997

The Workplace Health and Safety Act 1995 sets out the laws about health and safety requirements affecting most workplaces, work activities and specified high risk plan

Business Structures

Q4. Legal structures a business can be set up as.

1. The Sole Trader

A business owned and controlled by one individual. The owner of the business makes all decision and gets all profits from the business.

2. A Partnership

A business structure where two or more individuals run a business as co-owners of the business and share the proceeds. Each co-owner acts on behalf of the other partner.

Trusts can be described as a structure in which a trustee, which can be a company or an individual operates a business on behalf of another individual/company. The trustee however gives the profits to the owner of the business.

4. Companies

A business entity that is detached from officers or shareholder. Companies can either be public companies or limited companies.

Q5. List 5 keys considerations when deciding on the structure of a business?

One of the considerations is the amount of capital investment. The amount of capital that one has can influence them to open a sole business or a partnership of another business structure.

Another factor is the complexity. In the event that one does not have a high amount of capital then one should select a simple structure such as a partnership or a sole proprietorship.

The implications in terms of taxes; one should evaluate the type of tax structure that is favorable to them

The risk associated to a certain structure should also be examined. If the risks are too high than one can handle then it is vital to select a business in which the existing risks can be managed effectively

The legal implications are also a significant consideration.

Another critical factor includes the future needs of the business (Makari, 2011).

Q6. List 2 advantages and 2 disadvantages of each legal business structure.

1. The Sole Trader

Advantages

One of the benefits is that it is easy to start

The owner has full control of the business therefore decision making is not difficult

Disadvantages

There is unlimited liabilities in that the owner’s assets are at risk

Opportunities for tax planning are also minimal

2. A Partnership

Advantages

Setting up the business is less expensive as opposed to a company or a sole trader

Partners can share the risks of the business.

Disadvantages

Decision making is difficult due to individual differences

Each partner is liable for the debts of the business

Advantages

Offers limited liabilities and protection of assets

In terms of taxes, trusts are very flexible

Disadvantages

High startup costs

The legal structure is complex in the sense that it must be set up by an accountant or solicitor

4. Companies

Advantages

Low tax rates

The company can trade in any place

Disadvantages

Highly regulated

Profits are taxable and are shared to all the shareholders

Q7. Explain what each of the following key methods of protecting a product or idea.

1. Copyright

The lawful right that is given to the works of authors or a creator where the owner of the work has the right to control copying, publish work, make their work available to the public and perform the content.

The owner of a product or idea has the legal obligation to design their product in the manner in which they desire.

3. Trademark

An identifiable expression or design which is aimed at the identification of services or products. It aims at differentiating one product from another.

The rights accorded to an inventor by the state for a short period in exchange for the disclosure of the product or service to the public

Risk Management

Q8. Insurance is a way a company protects its assets, resources and workers against risks. Explain why an organization would insure against the following risks?

1. property insurance

Minimizes the financial implications that can result due to catastrophic occurrences such as theft, weather destructions. When disasters occur property is bound to be destroyed as a result property insurance is essential

The valuable assets can be protected

By insuring the business property recovery is much easier and therefore the business continues to have a going concern.

Property insurance can also cover a wide range of assets or properties that the business possess for instance it can cover all types of assets that a business owns

2. liability insurance

Assists in preventing financial deterioration in the event of a liability. Claims are usually expensive to cater for, as a result the liability insurance is therefore useful in covering claims for the company

Protects the customers of the business from harm that may be caused by the business

Companies or businesses dealing with technology are protected from changes in litigations that arise due to changes in technology or negligence

3. Workers compensation insurance

A business would take a workers compensation insurance to make it easy to compensate employee in the event of accidents

It can also assist in the payment of the employees wages

4. loss of gross profit insurance

In the event of loss of profits then the company would be compensated

When the business does not operate normally the losses experiences can be covered

5. disability insurance

A disability insurance would provide financial security to the business in the event that an employee is disabled and cannot work

It caters for the benefits of the disabled employee such as sick leaves and various benefits

Q9. 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?

1. Sending a demand letter to the debtor for a period of seven days. This will put them in notice concerning the outstanding balance

2. In the event that debtor does not pay the amount that is outlined on demand letter the next action would be to write a statutory demand which gives a twenty one day period. The letter eliminates the lengthy court process

3. The third step is to petition to end the company in the event that the debtor does not meet the requirements of the statutory demand. This will ascertain that the company or individual can be declared bankrupt

Q10. 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.

In the event that a consumer is sold for poor quality services or goods, then they are entitled to the replacement of the goods or the supply of equivalent goods;

The consumer is entitled to enjoy quiet possession of the goods except in circumstance where it is unlawfully distributed by the supplier

Goods are free, and will continue to be free until the time when the property passes, from any encumbrance or charge that is not known or disclosed to the consumer before the contract is completed

 Services will be offered with due skill and care and that any materials delivered in connation with those services will be rationally fit for the objective for which they are supplied

Consumers are entitled to a fresh supply of services in the event that the services provided do not meet quality standers.

Q11. 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?

Some of the common grounds of discrimination include; Age, race, gender, marital status, sexual orientation, family status and disability.

Occupational Health and Safety

Q12. What legislative frameworks govern the Occupational Health and Safety (OHS) in an organization such as KFC?

Work Health and Safety Regulations 2011(WHS Regulations)

Work Health and Safety Act 2011

Q13. What is the common Personal Protective Equipment should workers at KFC wear?

Oven Mitts: Provide protection from burns that arise from handling hot plates and ovens

Kitchen Aprons: Although aprons act as uniforms however, they can provide protection against chemicals, hot oils and grease splashes

Freezer gloves; protect the employees when working in cold freezers that store food

Gloves that are cut resistant: Workers spending a lot of time in cutting and chopping food such as meat products can be protected from cuts

Gloves for Dish washing: The protect the hands from chemical associated to dish washing

Q14. Explain what information should KFC include in an OHS management plan?

The KFC OHS plan should include a full description of the plan on the basis of existing risks and hazards that exist in the organization. As Dollard et al (2013) highlight, it is actually difficult to maintain workplace safety in the restaurant business due to increasing number of risks and the inability to address health and safety issues due to the increasing pressure in the industry. The project description should therefore highlight key areas of risks and hazards that exist. In addition the description should outline each phase of the plan which entails duration, safety consideration, purpose and name.

The second aspect is the responsibilities in the OHS management plan. This includes the people that are to be in charge of executing various stages of the plan.

Consultation, training and induction is another viable section to be included in the plan. In order to effectively implement the plan a contractor is needed in order to coordinate, cooperate with the employees on issues that relate to workplace safety and health. The contractor is therefore supposed to undertake consultations within the organization, disseminate information and make key decisions concerning the process. Training and induction on the other hand are key elements that ascertain that the employees are effectively informed about the OHS plan.

Identification of risks, assessing and controlling the risks is another integral component of the OHS management plan. This section entails a description of the procedure that will be used to define the risks, assess them and measure them as the plan continues.

Incident management is another critical component to be included. The plan should provide a description of the manner in which incidences will be managed. This entails a detailed description of how emergency situations such as fire outbreaks will be dealt with, how the organization will respond to the injuries and how stability will be restored.

Monitoring and review of the plan is another is the last component. These area should describe the manner in which the plan will be inspected and audited. The objective of monitoring and reviewing is to identify areas of compliance and also provide recommendations for corrective actions and improvements (Dollard et al, 2013).

Q15.What information would KFC include in an induction package of a new staff?

Use protective ware when handling dangerous substances or hot equipments

One should not use their hands when handling food products essentially in the kitchen.

Always ensure that the skin is not brushed, itchy or wet when working with hot equipments.

Divide heavy objects for easy carriage

Observe all the health and safety requirements in all areas of the restaurant

Q16. When is it appropriate to review the OHS management system in an organization such as KFC?

The OHS plan should be reviewed on a monthly basis. This is because the restaurant environment is very busy and many new incidences are bound to occur constantly.

Workplace Safety

Q17. Why is it important to keep records of manufacturers’ and suppliers’ information including dangerous goods storage lists?

Keeping records of manufactures and supplies is essential in the sense that it can be used to verify the transactions of the business with various suppliers and manufactures

In addition, current recording keeping of manufacturers and suppliers information can assist to lower the burden of defence in the event of a law suit (Sampson, 2002).

The dangerous goods storage lists assists in the identification of hazardous goods that may affect the employees. By identification of the dangerous good the organization is able to maintain workplace safety by providing warning about the use and exposure to such goods.

Q18. Why is it important to have records of the Material Safety Data Sheet readily available in a workplace?

The material Safety Data sheet should be readily available in the organization in order to make it easy and convenient for the employees to find the required information concerning safety management and handling of emergency circumstances. It provides information such as the health implication of various materials, first aid approaches, the boiling and melting point of the material and toxicity.

Q19. What is a hazardous substances register?

This is a record that offers a practical guide concerning how to work with hazardous materials in a safe manner. It should also outline information concerning how to store and use hazardous materials (Safe work Australia, 2015).

Q20. Why is it necessary to keep plant and equipment maintenance and testing reports?

Plant and equipment maintenance and testing reports assist in monitoring the nature of the equipments and areas in the plant in order to identify any breakdowns that may be dangerous to the health and safety of the employees.

The reports can also assist ensuring that plants and equipments are well maintained with people who are competent.

The reports also stores information concerning the tests conducted on equipments and the measures undertake in order to ascertain that they are safe
(Safe work Australia, 2015).

Human Resource Management

Q21. 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?

The Occupational Health and Safety Act 2004 (the Act) propagates that employees should be trained on safety operation procedures because it enables them to execute their work in a way that is safe and does not instigate health risks.

Another importance is that employees will be aware of the existing hazards and risks in the organization and have adequate knowledge concerning how to deal with them.

Additionally, information and training would enable learning of new skills that can assist in the behavioral change of the organization.

Workplace incidences will also be reduced (Workplace Victoria, 2004).

Q22. Write a procedure to terminate staff in accordance with legal and organizational requirements where serious misconduct occurs or ongoing poor-performance occurs?

The recommended legal procedure for terminating an employee if found guilty of serious offence include giving a fair warning which can be done either through writing of verbally. Additionally one can provide training to the employee in order for them to improve in the event that the dismissal is due to poor performance.

The employee should then be given an opportunity to provide a response to the warning.

In the event that the employee does not display an improvement or change of behavior the employee should immediately be dismissed (Fair Work Australia, 2015).

Financial

Q23. What are the relevant legislation and current requirements of the Australian Taxation Office, including GST?

Legislations

Taxation Administration Act 1953

Tax Assessment Act 1936.

Goods and Services Tax) Act 1999

Current Requirements of GST Include;

GST is payable on taxable importation and taxable supplies

GST will be extended to cross-border supplies of digital products and other services imported by consumers.

Australian businesses should register for GST whereby they are given Australian Business Number (Australian Taxation Office, 2015).

Q24. What organizational record keeping requirements are required by the ATO for auditing purposes?

Financial reports for instance financial statements, annual budgets, audit reports, accounts receivable and accounts payable

Governing documents such as trust deed

Copies of appraisals of prerogative to tax concessions

Cash book records of daily payments and receipts

Records of payments pending from suppliers who do not make a quotation an Australian business number (ABN).

Income tax records and tax invoices for instance as debtor’s records and motor vehicle and stocktake expenses, creditors lists

Records involving employees such as fringe benefits

Banking records for instance; cheque books, bank statements, , bank reconciliation , deposit books

Grant documentation for instance, when funding will be expected

Agreements and Contracts and for example; insurance and maintenance contracts and lease or finance agreements

Records to assist prepare tax returns and statements

Registration, accompanying and certificates booklets to regulators for instance; ATO, Australian Charities and state regulators and Not-for-profits Commission (Australian Taxation Office, 2015).

Q25. Where would HR Managers gather information on award and enterprise agreements, and relevant industrial instruments?

In government websites such as business and government website such as <www.business.gov.au>

Q26. . What are the taxation requirements for each of the following?

1. Sole trader—

Registration for Goods and Services Tax (GST)

Fringe benefits tax (FBT) in the event that the business has employees

Tax is paid at the same income tax rates for personal taxpayers

An individual Tax File Number (TFN)

Application of ABN which is used in all business transactions

1. Partnership—.

Formal partnership agreement

GST registration for the annual turnover

A partnership Tax File Number (TFN)

Fringe benefits tax (FBT) in the event that the business has employees

1. Joint venture—

TFN for lodging its annual tax return

GST registration for the annual turnover

A Joint venture Tax File Number (TFN

Companies must lodge a yearly company tax return showing deductions, income and income tax liable to pay

Registration for Goods and Services Tax (GST)

Fringe benefits tax (FBT) for Employees

Company Tax File Number (TFN