Describe about the Business Law for Corporations for the Assistance.
1: In the present text conferred below, various questions have been answered associated with the competition policies and strategies which are being followed by all the corporations for the assistance of the public at large; it also provides a brief about the cases of neglect done on the part of any corporation and the reliefs which could be awarded to the plaintiff for such a misconduct; at last the standards have been mentioned which prevails in an organization for its employees to work accordingly. Any unconscionable conduct which if done against the weaker party have been stated with the remedies which can be granted to them.
Evanto is an Australian organization which operates in a number of digital market place in which it sells creative assets for the purpose of Web Designers, such as Audio, video, etc. The corporation also makes various strategies for obtaining a constant growth for the reason of capturing a large number of markers. Like, it has made an aim to increase its income for the consumers and for the benefit of the society in totality. It also have built certain plans for the growing different market strategies as they now accept payments by credit cards through online means which they were accepting earlier by way of PayPal only. The organization also has made such policies which help in granting opportunities to its consumers by finding out and discovering what the consumer need, and then to make such products or provide such services which would help them in long run. The corporation puts its focus on not only building the best product but also keep an eye on the factors which put an impact on the society all together. The working staff also put in all their efforts in order to make the organization work better and provide all the services which the user desires (Powell, 2016).
The growth of the organization and its success has been based upon the focus of the organization which altogether works for the users, community. The organizations have inculcated a forum which works with an aim that the large number of its authors could make contribution for providing their views and feedbacks on the same. It has built a category where the authors have a liberty that they can upload their queries regarding the products which do not fit in any category as specified. The corporation also believes that the ideas which come from the society works as a positive outcome by which the organization could work in a better manner. The other market players who have just entered the new era of work keep in mind that they should work and establish any product which fulfills the wants and desires of the consumers as they are the people by whom the organizations work. If the consumers would not be happy by the services of the corporation then the organization would not prevail. So, the strategies which were made by the corporations would be properly levied then the other market players would perform the same act. By keeping an eye on the other competitors the other market players would require to obtain the same type of strategies so that the consumers would be attracted by them in the same manner as the other corporations have. This would ultimately promote competition in the market and the consumer benefit would be granted.
As the environment in which individuals live and organization works is the complex and a dynamic one which is flexible as the changes occur on s day to day basis. In this atmosphere the people who live have their different needs and desires both in Australia and through regional and world over businesses. Also, the investigations which would take place for conducting and resourcing administrative regulatory bodies of Competition have been strengthened for the purpose of detecting any anticompetitive conduct. The corporation also puts a focus on the prosecution and punishments both with more streamlined association between the jurisdictions in the matters of enforcement done on behalf of the corporation. The corporation should make compliance with all the competition rules and laws which can help and grant advice to the consumers in regard to any unfair means done against them; any unfair terms of an agreement; any unconscionable conduct of the organization; or any misconduct. The corporation therefore should also make some regulations and rules which safeguard the community as whole and also the customers. As the consumers makes the goodwill of a corporation to develop and makes its place in the market for long run.
2: Draft of a Memorandum constituting the justifications for the action of negligence against BW
To: The Board of Directors, BW
From: Manager, Safety Operations, and BW
Subject: Regarding grounds for a successful case of negligence
Date: 25th September 2016
cc:
As per the circumstance, which has taken place in this memorandum the civil liability with the duty in regard to negligence and duty of care which the organization owed towards the plaintiff would be discussed. Also some recommendations would be affirmed with the declaration of compensation and remuneration which would be rewarded.
Negligence has been affirmed as a failure to take rational care to evade causing harm or loss to another individual. Negligence comprises of three primary elements such as the defendant must owe an obligation of care to the plaintiff; obligation must have been contravened; and the violation must have caused injury to the plaintiff. Therefore, in order to recover the damages the plaintiff must prove that:
There was an obligation in the situations to take care;
The performance or effective action of the defendant in the situations did not meet the standard of care which a prudent individual would meet in the situations;
The plaintiff has suffered harm or loss which a prudent individual in the situations could have been expected to foresee; and
The reimbursements were caused by the violation of obligation.
Duty can be affirmed as:
The obligation of care in tort;
A obligation of care under the agreement that was concurrent or coextensive with a duty of concern in tort; or
Another obligation under the statute or otherwise that was concurrent with a duty of care.
While Duty of care means a responsibility to take prudent care or exercise prudent skill (Australasian Legal Information Institute, 2016)… The concept of obligation of care functions as a control device which permits the courts to determine, as a policy as per the conditions in which there should be a liability for a negligent act. Courts have done various experiments with various advances to the new matters, developing incremental duties, emplaning with due regard to the price of the policy (Handford, 1982).
The best known test of the obligation of care was the neighbor test which was laid down in the English case of Donoghue v. Stevenson (1932). In this case it was stated that the individuals must take prudent care to avoid acts or omissions which could be prudently foreseen to be likely to harm one’s neighbors. This case concerns a privilege of a consumer to claim damages from a manufacturer of bottled ginger beer for nervous shock induced by the discovery of a fermenting snail in the bottle, after its content were being drunk. It was the matter in which extension of the concept of duty of care was made (The Personal Injury Lawyers, 2016).
In the case of The Wagon Mound no 1 [1961] AC 388 it was upheld that the defendant would only be accountable for the loss which was of a foreseeable kind. If the loss was of a foreseeable kind, then the defendant would be legally responsible for the full extent of loss, even if the loss was much greater than predictable.
In the matter of Baltic Shipping v Dillon High Court of Australia (1993) 176 CLR 344 it was held that settlements were obtainable where the distress or dissatisfaction arises from a infringement of an express or implied term or the pain which was resulted upon the distress of a physical impairment (Australian Contract Law, 2013).
Emotional distress can be regarded as the major factor for recovery of a private harm claims cases (Holme, 2004) (Rajendran, 2004). They are the monetary costs that are planned to reimburse the psychological effect of the impairment caused to the plaintiff (Australian Law Reform Commission, 2016) whereas Nervous Shock has been regarded as the inception of a psychiatric infirmity caused by witnessing the negligent act.
In the case of Dulieu v White it was clearly established that a plaintiff can only claim nervous shock if the fight was for the plaintiff only and not for the third party.
In another case of Giller v. Procopets it was stated that the claimant could recuperate costs for emotional distress in her equitable claim for breach of her confidence.
In the case of Rodrigues v state it was affirmed that the plaintiff’s could recover damages for a negligent infliction of emotional pain as a result of carelessly caused flood reimbursement to their house.
Also as per Division 4 of the Civil Liability Act 2002, section 26H some restrictions have been described which were being imposed on the grievances which occur for any non- monetary failure. It affirms that a court would not be in a situation to honor damages for non- financial loss except as permitted by this Division (Australasian Legal Information Institute, 2016). And Section 26I of the act describes the non-economic loss damages which were restricted to the workers return amount. (Australasian Legal Information Institute, 2016).
According to Division 5 of the act authority has been given to make subtractions from reimbursement under section 26J.
So, it has been suggested that the corporation should make relevant returns to the plaintiff for the loss sustained by him due to the steel which broke down due to corrosion. Corporation should also procure new apparatus for hampering any proposed hazard or destruction which could be founded if novel mechanism would not be accepted.
The corporation for building its services better can make a disaster control team in prior for dealing with such type of mishappenings for the future if it happens by any means (Bernstein, 2016).
3: The National Employment Standards (NES) are the 10 minimum job entitlements that have to be granted to all the workers in an employment (Fair Work Ombudsman, 2016). These standards have been mentioned in Part 2-2 of the Fair Work Act, 2009 (Fair Work Commission, 2016).
The national minimum wage and the NES formulate the minimum entitlements for workers in Australia. An award, employment agreement, enterprise contract or other registered contract can’t offer for the situations that were less than the national minimum wage or the NES (Australian Government, 2016). They can’t exclude these national employment standards (Fair Work Commission, 2016).
The ten minimum standards which every employment has to provide to their workers who are employed in the employment are as follows:
In addition to the rational additional hours which are being provided to the workers, they should work for maximum of 38 weekly hours;
In some conditions the employees can make an appeal for making a transformation in their arrangements of work;
Every worker should be provided up to 12 months for an unpaid leave for parental leave and associated entitlements plus they should have the liberty to make an appeal for a supplementary unpaid leave for 12 months;
Annual leaves should be offered to the employees which includes 4 weeks paid leaves per year with an extra week for some shift workers;
Personal/ carer’s leave and considerable leaves should also be granted which includes 10 days paid personal leaves; 2 days unpaid carer’s leave as per requirement; and 2 days considerable unpaid leaves as per requirements;
Unpaid leaves should be granted for preferred disaster actions and up to 10 days of paid leaves for the service of the Jury;
An agent has a privilege for the employees as declared in a pertinent pre- modernized return in anticipation of the development of a reliable national long service leave standard;
On every public holiday a paid off would be granted except where reasonably asked to work;
Up to 4 weeks notice of implementation plus an extra week for the workers over 45 years of age who have been in the employment for at least 2 years and up to 16 weeks division pay on being jobless both based on the span of service; and
The Fair Work data report was obtainable from the Fair Work Ombudsman (The Australian Workers Union, 2016).
According to section 26(4) of the Fair Wages Act 2009, all the workers in the national workplace relations system were covered by the National employment standard regardless of the award, registered contract or employment agreement that applies to them.
Being a HR manager an individual should ensure that all the above mentioned standards should be complied with and should not be violated as per section 44 of the Act. Similarly, if any of these standards would be contravened then the manager would be punishable under section 550 of the act.
4: Unconscionable behavior deals with the dealings among the stronger and weaker parties; although it extends beyond force and undue influence (Australian Contract Law, 2011). It has been constrained both in fairness and more recently by laws. It is also the declaration or action so unreasonable that it defies good conscience (Australian Competition & Consumer Commission, 2016).
Equity mediates where one party has taken benefit of an extraordinary disability has been held by the other party. The consequential dealings must normally be cruel and unfair to the weaker party. Where it has been established the weaker party may prefer to avoid the dealing.
In Australia, this doctrine was put into practice by the High Court in the case of Blomley v Ryan case and its validity was further strengthened in the matter of Commercial Bank of Australia Ltd v Amadio case.
Australian Consumer Law initiated the countrywide reliable limitations on unconscionable behavior. Section 21 of the act limits unconscionable behavior in connection with the supply or acquisition of goods or services by or from an individual.
In the case of ACCC v. Craftmatic [2009] FCA 972 it was stated that restriction would be levied for 7 years for limiting Craftsmatic from a wide range of conducts that were found to be misleading or unconscionable (Competition & Consumer Law Education Programs, 2016).
In another matter of CIT Credit v. Keable it was held that the behavior was unconscionable only where there was some real and substantial argument based on conscience for limiting an individual from relying on what were in terms of general law, about the individual’s lawful rights (Burke & Mead, 2012).
In order to decide whether the conduct was a conscionable one or not a court would consider various factors which include:
Some circumstances which were imposed on the weaker party that was not reasonably necessary to safeguard the lawful interests of the stronger party;
The weaker party could appreciate the documentation used by use of undue influence, pressure or unfair tactics by the stronger party; etc.
Also, if an unconscionable conduct has occurred the court can grant a variety of remedies which may be structured by the court to the plaintiff which includes:
Restriction;
Reimbursements;
Orders;
Reimbursement for failure or harm;
Financial punishment;
Having the contract affirmed canceled in whole or in part; etc
The maximum civil fines have been $220,000 for individuals and $1.1 million for body corporate.
Therefore, it has been advised that Rebecca can claim compensation as it has bee her right which have been granted against any forceful act.
References:
Australasian Legal Information Institute. (2016) CIVIL LIABILITY ACT 2002. [Online] Commonwealth Numbered Acts. Available from: https://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/ [Accessed on 25/09/16]
Australasian Legal Information Institute. (2016) COMPETITION AND CONSUMER ACT 2010 – SCHEDULE 2. [Online] Commonwealth Numbered Acts. Available from: https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html [Accessed on 25/09/16]
Australasian Legal Information Institute. (2016) FAIR WORK ACT 2009 (NO. 28, 2009). [Online] Commonwealth Numbered Acts. Available from: https://www.austlii.edu.au/au/legis/cth/num_act/fwa2009114/ [Accessed on 25/09/16]
Australasian Legal Information Institute. (2016) FAIR WORK ACT 2009 (NO. 28, 2009). [Online] Commonwealth Numbered Acts. Available from: https://www.austlii.edu.au/au/legis/cth/num_act/fwa2009114/ [Accessed on 25/09/16]
Australian Competition & Consumer Commission. (2016) Unconscionable conduct. [Online] Australian Competition & Consumer Commission. Available from: https://www.accc.gov.au/business/anti-competitive-behaviour/unconscionable-conduct [Accessed on 25/09/16]
Australian Contract Law. (2011) Unconscionable Conduct. [Online] Australian Contract Law. Available from: https://www.australiancontractlaw.com/law/unconscionable.html [Accessed on 25/09/16]
Australian Contract Law. (2013) Baltic Shipping v Dillon High Court of Australia (1993) 176 CLR 344. [Online] Australian Contract Law. Available from: https://www.australiancontractlaw.com/cases/baltic.html [Accessed on 25/09/16]
Australian Government. (2016) The National Employment Standards. [Online] Australian Government. Available from: https://www.ieuvictas.org.au/files/8613/4214/4413/nes.pdf [Accessed on 25/09/16]
Australian Law Reform Commission. (2016)Breach of Confidence Actions for Misuse of Private Information. [Online] Australian Government. Available from: https://www.alrc.gov.au/publications/13-breach-confidence-actions-misuse-private-information/reimbursement -emotional-suffering [Accessed on 25/09/16]
Bernstein, J. (2016) The 10 Steps of Crisis Communications. [Online] Bernstein Crisis Management. Available from: https://www.bernsteincrisismanagement.com/the-10-steps-of-crisis-communications/ [Accessed on 25/09/16]
Burke & Mead. (2012) Unconscionable Conduct Under the Australian Consumer Law. [Online] Burke & Mead Lawyers Community. Available from: https://www.burkemeadlawyers.com.au/commercial-law/unconscionable-conduct-australian-consumer-law/[Accessed on 25/09/16]
Competition & Consumer Law Education Programs. (2016) Unconscionable conduct. [Online] Competition & Consumer Law Education Programs. Available from: https://www.ccaeducationprograms.org/?page=tertiarystudents&moduleid=18§ionid=168 [Accessed on 25/09/16]
Fair Work Commission. (2016) National employment standards. [Online] Fair Work Commission. Available from: https://www.fwc.gov.au/awards-and-agreements/minimum-wages-conditions/national-employment-standards [Accessed on 25/09/16]
Fair Work Commission. (2016) National employment standards. [Online] Fair Work Commission. Available from: https://www.fwc.gov.au/awards-and-agreements/minimum-wages-conditions/national-employment-standards [Accessed on 25/09/16]
Fair Work Ombudsman. (2016) National Employment Standards. [Online] Fair Work Ombudsman. Available from: https://www.fairwork.gov.au/employee-entitlements/national-employment-standards [Accessed on 25/09/16]
Handford, P.R. (1982) Damages for Injured Feelings in Australia. University of New South Wales Journal. [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/au/journals/UNSWLawJl/1982/16.pdf [Accessed on 25/09/16]
Holme,R. ( 2004) MENTAL SUFFERING DAMAGES FOR BREACH OF CONTRACT. Victoria University of Wellington Law Review. 35. [Online] Available from: https://www.victoria.ac.nz/law/research/publications/vuwlr/prev-issues/pdf/vol-35-2004/issue-3/holmes.pdf [Accessed on 25/09/16]
Powell, D. (2016) Melbourne startup Envato has reached a major milestone. [Online] Startup Smart. Available from: https://www.startupsmart.com.au/advice/growth/melbourne-startup-envato-reaches-a-major-milestone-how-it-got-there-and-what-comes-next/ [Accessed on 25/09/16]
Rajendran, R. (2004) “Told Nervous Shock: Has the Pendulum Swung in Favour of Recovery by Television Viewers?”. Deakin Law Review 7319(2). [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/au/journals/DeakinLawRw/2004/31.html [Accessed on 25/09/16]
The Australian Workers Union. (2016) What are the 10 National Employment Standards (NES)?. [Online] The Australian Workers Union. Available from: https://www.awu.net.au/national-employment-standards [Accessed on 25/09/16]
The Personal Injury Lawyers. (2016) What are Emotional Suffering Damages in Personal Injury Cases?. [Online] Available from: https://www.thepersonalinjurylawyers.com.au/What-are-Emotional-Suffering-Damages-in-Personal-Injury-Cases [Accessed on 25/09/16]
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