This report outlines on current status of Australian business law with including the area of contract law, statutory law, common law and Australian consumer law. As well as, the report is demonstrating the legal solutions to everyday business problems. In this concern, ‘Shane travel Pty Ltd’ is considering to understand different legal issues and legal solutions in businesses.
The business structure is termed as the legal recognition of a business entity under the jurisdiction or under the law of the country it is working. Four wide categories are considered in Australia as sole trader, partnership, company and trust (Buisness.gov.au, 2017). There are slight differences between all of them. As per the information provided in the assignment; the easy and suitable structure for travel agency for 3 persons is Partnership firm or a company (SBDC, 2016). Due to separate identity and limited liability of the owners; it is considered that structure of the firm as a company will be a suitable option for functioning as a travel agency. It is a structure designed for two or more persons wishing to work mutually for generating profit. The powers are defined on the mutual understanding among all participants. The profits are also shared on decisions prior to the starting of the business, in the absence of any such discussion or written deed; profits are divided on the basis of capital introduced. Proprietary company requires Australian business number, a unique business name not registered earlier and the details of the business name and Australian company number in case of registration with ASIC
The reasons behind the selection of this choice are if they register a company than the company will be responsible for all the losses and debts in extreme case. It is having complex structure of business having high cost of setup and reporting. Company is served as separate entity from owners; it is also required to maintain the financial records for seven or more years. Tax records are also need to keep tax records for 5 years (Bainbridge, 2015). Although it is having several documentation and licensing requirements but it is having facilities like availability of funds and cost of registration are one time payable. The proper maintenance of the records helps to perform as a company in the commercial world.So, structuring of the business as a company is recommend for the travel agency.
Shane travel Pty Ltd. is the name suggested for the business. It is checked by visiting on the ASIC login page and than finding the required name in the search for organization and Business names (ASIC Connect, 2017). First it is required to take Australia business number than registration on ASIC. It is the company formed which is having private control in the hands of the owners. The maximum numbers of persons limited by law are 50. It is required to register name and trademark for the business, registering a website and other license and lease documents in case of rented office. As per the corporation act companies must maintain records of financial transactions, position and performance. It is also required to audit the statements by a competent auditor (Ferran and Ho, 2014). It also includes the proper maintenance of records of activities such as prime entries; working papers the method of accounting and preparing adjusted financial statements. The company needs to maintain the list of assets and the final statements with cash records and the details of the various tourists that travel through their agency. It is also required to maintain the financial documents electronically with retaining hard copies with themselves. These details are required to be maintained for 5-7 years for record purpose.
There are several registrations that are required for the business to develop the first is Australian business number which is also required to get a GST, ABN is a 11 digit unique number which confirms business identity (ato, 2017). Australian Company number is also required there after company is registered at ASIC for the operations in the business era. It is also required to register for Taxation, it needs tax file number, goods and service tax, fringe benefit tax and other tax registrations for the functioning under Australian taxation office. The records of the taxation related documents are required to be kept for a period of five years with paper or electronic mode.
There is a need to maintain proper books of accounts by every business a travel agency is required to maintain the records of the vendors, its expenses on the various departments and there are several books that are to be maintained as per the norms of the Australian tax authority (ASIC, 2017). Accounting of all the cash related transactions such as bookings of tickets for the visitor’s attractions, taxi service and hotel bookings, and payments received from the passengers. There is a requirement of current bank account in the name of the firm for cheque, and cash deposits and tallying bank with the bank account of the firm (Australian securities & Investments Commission, 2017). It is also required to maintain the records of the final accounts, budgeted statements and the audit of the financial statements. There is requirement to maintain the tax receipts and invoices to be kept in the records of the company. It is also required to maintain the records of the assets of the firm, records of the employees and details of the meetings, annual returns and ASIC forms.
There are needs of several types of relationship building for successfully running a business. There are certain criteria’s for the enforceability of a contract between two parties for the purpose of business. The basic requirements are two parties, mutual consent, a lawful object and consideration for the parities (SBDC, 2017). The enforceability of a contract depends until both the parties to the contract are having trust among them. But in the competitive market it is a difficult task to maintain trust among suppliers and customers. It is difficult to prove verbal contracts in case any of the parties having conflict. So it is very important to have contracts in writing for all the businesses. A written contract is having ease in proving the consent of the parties to the contract in case of any dispute of conflict. There are several operations that are done by the travel agencies during their business functioning so it is very important to function in to the legal consideration for successfully running a company.
A contract have no specific format but it is needed to have the detail of the parties, the duration for which the contract is done, the important conditions and terms for which contract made such as payments, responsibilities and key areas of work for both the parties are to be mentioned clearly (McKendrick, 2014). It also contains the consequences or penalties for the damages caused to either of the parties in case of failure to perform by any of the parties. Termination of the contract and any other specific conditions between the parties are to be entitled to discuss in the contract for the smooth functioning of the business. But still the main factors of the contract remains same which are the keys for the a valid contract starting from offer than acceptance, legal relationship/enforceability in law and a consideration for the activities performed by the parties.
In Australia, the term “Intellectual Property (IP)” is used as an intangible assets which is designed to protect and encourage innovation in order to get competitive advantages. Intellectual property is governed by Australian Government to administer the legal rules and legislations for the businesses. In this concern, the Australian government provides different intellectual properties Patent, Trade mark protection, Registering domain name, design protection and copyright for the businesses to protect their uniqueness in the territory (Drahos, 2016). Acquaintances of ‘Shane travel Pty ltd.’ may use Trade mark protection and Domain name to protect its intellectual property.
The Trade mark protection is a well developed legal system by Australian government to protect the intellectual property of individuals and organizations. In this sense, Shane travel Pty ltd will use register a trade mark as a marketing tool for the travelling business, which will provide the legal protection and prevent other individuals to use this name in the nation. In addition, the Company will register through unique domain name on internet that will allow others to access the firm’s website (Australian Government, 2017). The domain name for this travel business will be ended by ‘.au’ as it is registered in Australia. This domain name will protect this company’s intellectual property and provide uniqueness in the world.
After obtaining the intellectual property rights from Australian government it will be responsibility of the proprietors to monitor a way in which the intellectual property rights can be protected. In this process, the IP that will be protected is communicated in the related market with containing the copyrights or trade mark. The owners of Shane travel Pty ltd. should be aware that their IP licenses are covered by Personal Property Securities Act 2009 and the rights related to licensees are registered under the Act to protect business uniqueness (Hanrahan, 2017).
In addition, the IP regimes that may be used to protect the intellectual property are discussed below:
Hence, the regimes related to IP will be useful for the establishing company in protecting its intellectual property rights such as Trade mark and Domain name in proper manner.
There are different types of limitations in trademark protection which may impact on intellectual property of the company. These limitations are discussed as below:
Geographical Limitation:
The Trademark protection creates limits for the trademarked companies to trade in the limited area. The trademark obtained for Shane travel Pty ltd. provided the limits to operate its business activities in Australia only and resisted to operate the functional activities in other countries (Dratler, 2017). In this sense, it is analyzed this travel company is not authorized to operate its business activities other than Australia.
Functionality Limitation:
In Trademark protection the important limitation lies to what will be trademarked to protect the IP. It is analyzed that when the possibilities are almost limitless than the entrepreneurs will have all things in general as they are non-functional. For instance, the shape of a water bottle can be trademarked by the company (Luckasson and Schalock, 2013). This limitation is intended to defend against the using the trademark protection and limit the competition by listing the functional elements.
Fair Use Limitation:
The trademark regimes also involve fair use doctrines that are essential for a trademarked firm. A trademarked organization cannot compel its rights if the trademark is used legally in different contexts (May, 2013). In addition, if the trademark is fanciful and arbitrary than the proprietor may still not be capable to compel its rights to recognize and separate its products and services from the competitors.
Import Limitation:
In the competitive business environment, usually the goods and services are sold in different countries with different pricing and packing. In this concern, it is analyzed that the trademark protection is not capable to block the “parallel imports” when an individual buys goods without the permission of the trademark owner. For instance, an organization owns trademark in USA and UK but the prices of products are different in both countries (Chisum et al., 2011). In this situation, if an individual buys products from that country where the price is lower than the company probably cannot use trademark laws. But, if the products are bought from other than these two countries than the trade owner can use trademark law to stop the illegal importation of goods and services. In this regard, the trademark rights provides legal rights to Shane travel Pty ltd. but these rights also make limits for the company to operate the business activities only in Australia.
Domain name provides uniqueness to an organization but it also has limitations that are discussed as below:
Hence, it is observed that an organization also should focus on limitations of the IP regimes to protect their intellectual property in legal way.
There are some intellectual property assets such as patents, copyrights and trade secrets that are owned by other business for their uniqueness and innovations. These intellectual property assets may be used in the proposed travelling business as requirements of the business operations. The company can use patent as an intellectual property to have its name unique in the industry. As well, Copyrights may be used by the company to protect the “unique work of authority” with including artistic expressions, written words and other intellectual operations. Furthermore, Shane travel Pty ltd. Company can use Trade secrets as its intellectual property assets to protect the strategic planning and create the competitive advantages over the competitors (Rosenthal, 2010).
There are mainly two legal methods of obtaining the rights to use intellectual property assets. These methods are discussed as below:
Licensing: It is an important method to grow a business by trademark, patents, designs and copyrights. It is a systematic and essential element for the business to operate business in Australia (Grimpe and Hussinger, 2014). In this method, the businesses fulfill all the required information to obtain the rights of using intellectual properties.
Registration: This is used to provide visibility to an organization’s name, logo, business slinks and image. Through registration method an organization can add Business registration with its domain name (Kur et al., 2013). Therefore, it is an important method of obtaining intellectual rights and protecting intellectual assets.
Australian Consumer Law: travel agency companies are covered under the consumer protection law it details about the fair pricing to the visitors and especially in the advertisements it is required to provide the services and benefits to the visitors mentioned at the time of booking of the tour (Australia Competition & Consumer Commission, 2013). In case of changes on the service quality to cancellation of the tour due to tour operator than it is the responsibility of the operator to pay compensation or arrange alternate transport service immediately. It is also required to provide same level of services as discussed in the meeting or advertisement to the clients. Such as hotel services, tickets of the bus, train or air and package venues in the absence of any service or lack of quality in comparison to promised will result to suing company by the visitors under consumer law.
The business is needed to use fair practices for competition they must not promise for lower prices in the advertisements for a tour which is not possible in such low price. It is also required to provide services that are promised with the tourists at the time of tour booking (Whish and Bailey, 2015). The details about the terms and conditions of the travel agency should be provided to the customers well in advance. It is required to disclose actual information to the tourists about the accommodation, food and other services offered by travel companies. It is also required to give receipts for the payments received from the travelers.
Retail Travel Manager: It is the person responsible for managing finance and performance of the travel agency. It is the motivator for the sales team to perform; it is responsible for the overall working of the travel agency (Atcc, 2015). It manages all the activities and act as key for the travel agency. It is required to be hired for the company.
Retail Travel Consultant: It is professional who deals with external parties like public, arrangements of accommodation and other facilities. It may include air tickets, hotel bookings, transport service and planning for the travelling plans. It is required to hired for the company
Receptionist: It is not necessarily required at the starting of a business, its role is to manage the visitors to the office and fixing meetings, scheduling and managing distribution of documents of the tourists, managing drivers and other basic services at the office.
Financial Record Keeper: financial record keeper can be hired on contractual basis for initial few months of year as there is no specific requirement for full time financial record keeper as there are few transactions in the starting period of operation.
Tour Guides: tour guides can also be hired on contractual basis having fix remuneration per trip. As they are responsible for the details about the tourist attraction and about the city visitors are visiting. As several times visitors avoid tour guides for their trips.
Financial Advisor: Professionals which provides paid advice to about managing finance in a company (DaSilva, and Trkman, 2014). It is also required to hire a financial advisor for contractual basis.
Drivers: it is required to hire drivers as it is vital part of the travel agency the key areas of functioning are picking and dropping tourists to the hotel and tourist place, taking them to airport or stations and other facilities to the visitors.
Cleaner/s: they are the persons responsible for the cleanness of the office. So they are also appointed on contractual basis for the cleanness of the office, vehicles and other business assets.
Conclusion
From the above discussion it can be concluded that there are various legal formalities that are essential for the business to operate operational activities in Australia. It is observed that intellectual property rights can be used by the firms to protect their uniqueness in a specific territory.
References
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