Discuss About The Occupational Safety Health Administration Act.
Amazon.com. Inc., otherwise simply referred to as Amazon is the US based cloud computing and electronic commerce company, which is headquartered at Seattle, Washington. The company was established on 05th July, 1994 by Jeff Bezo[1]s. In a short span, the company became the largest internet retailer across the globe in terms of market capitalization and revenue. It comes just second when it comes to the sales figures[2]. The company had initially started itself as an online bookstore but it went on to diversify itself in downloading and streaming of videos, MP3s, audio books, and went forth with its entering streams like food, toys, furniture, jewellery, apparel, electronics, video games and software. Amazon also produces the consumer electronics like Echo, Fire TV, Fire tablets, and the most famous Kindle e-reader, along with providing cloud infrastructure services. Amazon is often taken as a seller of low end products due to its in house brand of AmazonBasics[3].
Amazon is truly a global company and has its operations spread across the globe. It also caters to different nations by bringing forth different retail websites for UK, US, Ireland, Spain, Italy, Germany, Canada, France, Australia, Brazil, India, Mexico, Japan and China. It goes beyond the international boundaries to ship products in varied nations. Due to the large scale of operations of Amazon, spread across the globe, the laws of different nations, where Amazon conducts its business, are applied on the company[4]. These include the laws of contract, property tort, insolvency, consumer, competition, labour and taxation. There are certain laws which are similar in the nations and then there are laws which differentiate on varied basis. This discussion aims at highlighting the different laws which apply on the business of Amazon, particularly when they conduct business in Australia and US.
Legal system of any nation refer to the procedures and processes which are made use of, for the purpose of interpreting and enforcing different legislations or laws. Based on the different jurisdictions and ideologies, different legal systems exist[5]. In order to conduct business in any nation, it is important for the companies to be clear on what exactly the legal system of such nation is. All these laws of the two nations have to be kept at the centre by Amazon to be an example of corporate citizen.
In Australia, there exists a parliamentary democracy[6]. The constitution of the nation had been established in 1901 as a federal system of government. This system provides that the powers have to be distributed in between the national government, which is otherwise referred to as the Commonwealth, and the six states in the nation. Apart from the six states in the nation, there are three self-governing territories. The boundaries of law making in between the state/ territories and the commonwealth are defined by the constitution of the nation[7]. At the time of colonisation, Australia inherited the legal system, which is a common law system, from England. There are two major sources of laws in the nation, which includes the statutes, and the cases. The statutes or the legislations are the legal rules which the parliament makes and these are the ones through which the parliament gets delegated authority. The other source of cases refers to the decisions which are made by the judges in courts, which are otherwise referred to as the precedents[8].
There is a division of powers in the nation, whereby the functions of government are divided under legislative, executive and judicial. This doctrine of separation of powers is meant to keep checks and balances where one institution is given a single power, and the functioning of one branch is not to be interfered with, by the other branch[9]. There are a number of basis on which the law in the nation is divided, one of which is the civil and criminal branches of law. The civil law includes the cases where the instances are not serious in nature, and include instances of tortious acts like negligence. In comparison to civil law, the criminal law covers instances like manslaughter and murder, where the aim is to punish the guilty. In doing so, certain requirements like showing mens rea are required[10]. With these separations and demarcations, the efficiency of the law is enhanced. The separation of law further ensures that there is specialization and efficiency in the varied fields and aspects of law.
As is the case in Australia, in US also, the legal system covers the federal and state governmental divisions. However, there is a lot more complexity involved in the legal system of US. For gaining a proper understanding of the legal system of US, there is a need to understand which rules, regulations or laws are applicable. Basically, there is a need to understand the laws which have a controlling effect or priority in the nation. In US, the constitution of the nation is the highest law of land[11]. The US Congress enacts the Federal Laws which come next in hierarchy. However, this does not infer that Federal Congress can adopt laws which control the states in every situation. This cannot be done till the time the law can be applied to the states based on the precedents and the US Constitution. Each state in US has a legislature where the state laws are adopted and are referred to as the statutes. These statutes are often complied in what is commonly referred to as a Code. This is basically just a codification of the applicable statutes[12].
There are a number of other similarities in between the legal systems of the two nations. Both the nations have adopted the doctrine of separation, where the powers are divided in between executive, judiciary and legislative branches. There is also the bifurcation of laws on the basis of civil and criminal jurisdictions. There is also a commonality in terms of law having two sources of court cases and statues[13].
Each nation has different business structures, through which the business can be conducted by the organizations. Before entering in any nation, or even to run and expand the business, the division of business structure becomes very crucial. When conducting business in US and Australia, Amazon needs to carefully evaluate these structures, and adopt the structure which best suits their needs.
Australia has majorly four distinctive business structures, which can be adopted for conducting business in the nation. These include sole trader, company, trust and partnership[14]. Each of these structures comes with their set of unique features and reasons to be adopted or to be skipped over. There are some other structures as well in the nation which are incorporate associations and joint venture[15].
A sole trader is the easiest form of business structure in the nation, where a person conducts their business in an independent manner and has the responsibility for every aspect of the business. This model is also the least expensive model, coupled with minimal regulatory requirements[16]. The responsibility in case of sol trader is with the person who owns the business, and this responsibility is for debts and losses suffered by the businesses. The business name of the sole trader is to be registered with the ASIC, i.e. Australian Securities and Investments Commissions, based on the provisions of the Business Names Registration Act, 2011 (Cth)[17]. The sole trader form is not treated separately from the owner.
Just because the business is run by a single person, does not mean that other people cannot be hired in to do the work. The sole trader can employ people, so long as they are provided with superannuation, compensation insurance for workers and payroll tax. The taxes of the business can be clubbed up with personal taxes, and can be paid under Tax File Number of the individual[18]. However, the sole traders have unlimited liability. This means that for the debts of the sole trader, the personal assets of the sole trader can be attached. But this form brings with it a level of simplicity and flexibility which makes it as the structure of choice for a number of businesses[19].
The next business structure form is partnership. A partnership can be created when two or more individuals, up to a limit of twenty people, come together to run a business with common purpose, for earning profits. The partnership can be formed where the features of a partnership are met, even when the same are not reduced into writing in a partnership deed, as it is not an obligatory document[20]. Each jurisdiction in Australia has a different partnership act. For instance, in New South Wales, the Partnership Act, 1892[21] is applicable. There is equal responsibility under the partnership, whereby the partners are jointly and severally liable for the debts of the firm. There is applicability of agency law on partnership, which make all the partners binding to one another. Again, this is a relatively easier and inexpensive mode of setting up a business. However, instances like quarrels and fights can run in partnership ending. There is also the con of unlimited liability amongst the partners[22].
The most common form of running business in Australia is the corporations form. Under this form, the business is run by the management on behalf of the shareholders. The companies in Australia are governed by the Corporations Act, 2001[23] and are regulated by the ASIC. As against the business structures of partnership and sole trader, the company is deemed as a separate legal entity. This means that for the debts of the company, the shareholders cannot be made liable. They can only be made liable in the event of company being wound up, where they have any unpaid amount left on the shares. Beyond that, they cannot be made liable. The directors of the company run the daily operations[24].
Within the company structure, there are two sub classifications, i.e. public company and private company[25]; and these are further divided on separate basis, where the public companies can be unlimited public company with share capital, no liability company, company which is limited by guarantee, or lastly, they can be the company limited through shares. The proprietary companies, as is the case with the other form, also have subtypes where one the company can be limited by share and the other one is where it is unlimited with share capital. The chief difference between the public and proprietary companies is that the former can issue shares to anyone, but the latter are restricted to issuance of shares to friends and families, and cannot issue shares to the general public[26].
Apart from these three leading structures, there are structures like trust. Through trust, an obligation is imposed on the trustee to hold the assets or property for the other person’s benefit, which are referred to as the beneficiaries. This is a complex business structure and requires assistance in the setting up process. The operations of business are limited to the conditions which have been placed in the trust deed[27]. There are different types of trusts including express and non-express trusts. The other structure is joint venture, whereby two or more parties come together and pool their resources for fulfilling a specific task. Once the task is done, the joint venture comes to an end. There are also the incorporated associations which are deemed as registered legal entity formed for charitable, recreational and cultural purposes. Then there are structures like limited partnerships, no liability corporations and the like[28]. Amazon can enter the markets of Australia through company structure, as this is the most appropriate due to the sheer power of the company. A structure like joint venture or even partnerships is not suitable due to the magnitude of operations of Amazon and due to its ability of tapping in the suppliers and consumers, as it is already an established brand.
There are similar business structures in US as well, where the business can be conducted through sole proprietorship, partnership, corporation, S corporation, and Limited Liability Company[29]. The sole proprietorship matches sole trader form and the partnership is common. When it comes to companies, the theme continues to be the same, but there is variance in the types of corporations. In US, there are S Corporation and C Corporation[30]. Then there are the limited liability company, which are allowed by the state statute[31]. Again, there are other business structures in US as well which includes the joint ventures. In US, it already works as a company.
Insolvency and bankruptcy are important part of any business structure, as this is the procedure which has to be followed when the debts of the business are due and the same cannot be paid. Even though Amazon is not faced with bankruptcy till now, there is a need to be vigilant about these norms, particularly in dealing with the ones who have declared themselves as bankrupt or insolvent, and are associated with Amazon.
Bankruptcy had been originally designed to keep people out of jail where they were unable to pay off their debts. Upon a person becoming bankrupt, a trustee gets appointed by the government authority to take over their financial affairs. The law on bankruptcy in the nation is governed through the Bankruptcy Act, 1996[32]. The personal bankruptcy comes in two forms, i.e. voluntary and involuntary. The personal insolvency procedures applicable on persons, instead of company, are deemed as the bankruptcy and personal insolvency agreements[33].
The laws of Australia regarding insolvency and bankruptcy are quite detailed. In the nation, there are three common corporate insolvency procedures and these include receivership, voluntary administration and liquidation. Under section 588G of the Corporations Act, the directors are deemed to have incurred an offence, where they incur debts when the company is insolvent, or where they are aware that undertaking the particular debt would make the company insolvent, even when it was solvent at the time of taking such decision[34]. In liquidation, a liquidator is appointed for winding up the company; in voluntary administration, a voluntary administrator investigates and reports on the financial position of the company; and in a receivership, a manager or receiver, appointed by court or secured creditor undertakes the winding up process. The intricacies of the three separate them from each other[35].
Bankruptcy in US is governed through the federal law. Under Clause 4, Section 8, Article 1 of the US Constitution, the authority is given to the Congress for enacting uniform laws on the matter of bankruptcies across the nation. The Congress exercises their authority and this has been done since 1801. The most recent one was the adoption of Bankruptcy Reform Act of 1978[36], which has been amended a number of times, and has been codified in Title 11 of US Code[37], which is otherwise referred to as the Bankruptcy Code. The most significant change in this code was seen through BAPCPA, which stands for the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005[38].
The bankruptcy code imposes certain liabilities on the directors of the parent company. This liability s raised when the director of solvent companies fail in fulfilling their duty of loyalty and duty of care, which they owed towards the shareholders and the company. There is the defence of business judgement rule, which is also found under the Australian laws. This requires the directors to show that they had carried on proper due diligence. This code recognizes different types of insolvencies and presents provisions according to such types. For instance, Chapter 15 of the Bankruptcy Code provides for cross border insolvency and expects maximum cooperation from the trustees, courts and authorized persons regarding foreign representatives and foreign courts[39].
The consumer and competition laws are drawn in any nation to keep in mind the interests of the consumers, where not only are they properly protected, but it is also ensured that there is fair competition in the nation, which can ensure that a healthy competition exists, which benefits the every party.
In Australia, the Competition and Consumer Act, 2010[40] (CCA) is the primary legislation in this context. CCA became applicable in nation from January 01st, 2011 before which these provisions were covered under the Trade Practices Act, 1974[41] (TPA). CCA is a legislative instrument for competition law, where the goal is to promote competition and fair trading, along with protecting the consumers in an adequate manner. The act is administered by the ACCC, i.e. Australian Competition and Consumer Commission. Schedule 1 of this act is focused on the competition part and Schedule 2 is based on consumer law, which is otherwise referred to as the Australian Consumer Law.
The prominent provisions of ACL, which are commonly given relief to parties under are section 18, 21 and 29. Section 18 of the ACL refers to misleading or deceptive conduct and provides that an individual involved in trade or commerce is restricted from being engaged on misleading or deceptive conduct, or such conduct which is likely to mislead or deceive[42]. These provisions were earlier covered under section 52 of the erstwhile act of TPA[43]. In context of Amazon, it becomes crucial for the company to ensure that the provisions of this act are not breached. This is due to the fact that a breach of these provisions can result in a liability being attracted for the company.
Indulging in breach of section 18 of ACL proved costly for TPG as was seen in Australian Competition and Consumer Commission v TPG Internet Pty Ltd[44]. In this case, TPG was held liable for holding a misleading headline advertisement. In this case, the fine print disclaimer was not deemed as sufficient to cancel out the misleading representation in the headline statement. There is another case where the misleading conduct claim was brought against the company, in Google Inc v Australian Competition and Consumer Commission[45]. In this case, the tech giant Google was likely to bear the costs of being indulged in misleading or deceptive conduct. Though, Google was not held liable in this case, as it had not sponsored the links. The two cases highlight the comprehensive element of this legislation, where the courts analyse the case in detail and only uphold the misleading or deceptive conduct where is clear evidence to show the presence of it, that too undertaken by the party against which the claims have been raised.
Section 21 of the ACL covers the provisions regarding unconscionable conduct. Under this section, a prohibition has been placed on the individuals that during the course of trade or commerce, they are not to indulge in conduct which can be deemed as unconscionable under any circumstances, with regards to supply of goods or services[46]. In order for this section to be operable, there is a need to show that the party which has been alleged to have been indulged in such conduct had been aware of the vulnerability of the other party. In Australian Competition & Consumer Commission v Radio Rentals Limited[47], the court held that the aggregation of dealings of different employees of a company could not be seen as exploitative, when the employee had not been aware of the disability of the customer, or had no reasons of knowing so.
Section 29 of the ACL refers to misleading or false representation and provides that an individual involved in trade or commerce is restricted from being engaged on misleading or false representations[48]. In the case of Australian Competition and Consumer Commission v A Whistle & Co (1979) Pty Limited[49], the franchisor admitted to posting of fabricated testimonials, which resulted in hefty pecuniary penalty of $215,000 being imposed on the defendant, along with other requirements to be fulfilled, per se the court order. In Australian Competition and Consumer Commission v Bunavit Pty Ltd[50], for making false or misleading representations in context of the consumer guarantee rights, Harvey Normal franchisee was ordered to pay penalties to the total of $52,000, along with other orders.
The competition laws under the Competition and Consumer Act are also very stringent. Under Part IV of this act, the prohibition has been placed on cartel conduct. A landmark case in this context is Australian Competition and Consumer Commission v Visy Holdings Pty Ltd (No 3) [51]in which the far reaching consequences of violating competition law was highlighted. This case saw pecuniary losses and damage to reputation and is a record case in terms of imposed fines. $36 million[52] was imposed as a penalty on Visy and the two employees of the company, i.e. Harry Debney and Rod Carroll were imposed with personal fines amounting to $1.5 million and $500,000 respectively[53].
The crux of the matter is that the Competition and Consumer Act, 2010 ensures that not only the consumers in Australia are protected, but so are the entities running trade or commerce in the nation. Further, this legislation also ensures that a healthy competition is in existence, which gives everyone a fair chance of running their business. A giant like Amazon has to ensure that it follows these laws carefully, or else would have to be imposed with penalties. Till now, Amazon has shown to be in adherence to these norms. This is the reason why the ACCC, has deemed the entry of Amazon in Australia as good for the competition, ultimately being good for the consumers[54].
In US, the citizens are safeguarded from fraud, unfair business practices, unsafe products, and deceptive advertising through a combination of state, local and federal laws. The United States Federal Trade Commission, at the federal level, is the principal consumer protection agency. A range of consumer protection laws are administered by the Federal Trade Commission by their own initiatives and by coordinating with the other federal agencies. The Federal Trade Commission has the overall objective of affording the consumers of US with a marketplace which is deception free, and in providing the highest quality products which are at reasonable costs. The Federal Trade Commission is deemed as an independent federal agency which has 5- senate confirmed and presidentially approved commissioners. The objectives of it include protecting the consumers from unfair business practice, fraud and deception, and maintaining competition whereby anti competitive business practices are prevented[55].
The consumer affairs are governed through a range of federal and state laws. At the federal level, there is the Fair Debt Collection Practices Act[56], Federal Food, Drug, and Cosmetic Act[57], Fair Credit Billing Act[58], Gramm–Leach–Bliley Act[59], Truth in Lending Act[60], and the Fair Credit Reporting Act[61]. There are different bodies which enforce these federal level consumer protection laws, and these include the US Department of Justice, the Food and Drug Administration, the Consumer Financial Protection Bureau and the Federal Trade Commission. When it comes to the state level, a majority of states have adopted the Uniform Deceptive Trade Practices Act[62]. This legislation prohibits deceptive trading practices in two categories, i.e. fraudulent or unfair business practices, and misleading or untrue advertising. This legislation also covers a private remedy in terms of attorneys’ fees where the losing party engages in trade practices known as deceptive in a wilful manner, for the prevailing parties[63]. There is a Department of Consumer Affairs in the majority states, which are devoted towards regulation of certain industries and towards protection of the consumers making use of services and goods from these industries[64].
The antitrust laws of US are a collection of laws of federal and state governments which regulate the conduct and the organization of business corporations, where the theme is of promoting fair competition in order to benefit the consumers. Included in the key statutes are the Sherman Act of 1980[65], the Federal Trade Commission Act of 1914[66] and the Clayton Act of 1914[67]. Through these legislations, the formation of cartels is restricted; the collusive practices are prohibited and are regarded as being in restraint of trade. These also restrict the mergers and acquisitions of the companies which have a potential of majorly depleting competition. Lastly, these restrict the formation of monopoly and also the abuse of the monopoly power. The state governments, private parties, US Department of Justice and the Federal Trade Commission which can be affected by it, can bring action in court for enforcement of these antitrust laws.
For a company like Amazon, it is crucial for them to abide by these regulations, as not doing so can result in violation of these laws. In FTC v. Amazon.com, Inc.[68], Amazon made use of unfair business practices where the software of the company allowed for “in-app purchases” which the majority of consumers had not been familiar with. As a result of this, the majority of adults had not been aware of the changes which were incurred by their children. It was established by the court that Amazon was liable for the damages for unfair practices to the consumers. Though, the court did not award a permanent injunction as there was no clear danger for Amazon in context of making this violation[69].
As a company employing so many people, even with its working on online platform, Amazon needs to abide by the plethora of labour laws, as are applicable in Australia and US, while conducting work in the two nations.
In Australia, the key legislation surrounding the employment laws is the Fair Work Act, 2009[70]. This act governs the employment of majority Australian employees and is supplemented by territory, federal and state legislative schemes which are applicable in areas of non-discrimination and healthy and safety. There is also the Workplace Health and Safety Act, 2011[71], which specifically works towards ensuring, that there is safety at workplace and that the health of the people at workplace is not put in danger. There are also the National Employment Standards, which provide the ten areas where minimum standards of employment have to be followed[72]. For attracting talent and for retaining talent, it is important for Amazon to follow all these laws when it employs people in Australia.
The employment laws in US are governed by a mix of state, local and state laws and these vary based on the jurisdiction. The chief or the primary source of federal employment law includes Civil Rights Act of 1866[73], Age Discrimination in Employment Act[74], Fair Labor Standards Act[75], Americans with Disabilities Act[76], Title II of the Genetic Information Nondiscrimination Act[77], Occupational Safety and Health Administration Act[78], Uniformed Services Employment and Reemployment Rights Act[79], National Labor Relations Act[80], Worker Adjustment and Retraining Notification Act[81], Title VII of the Civil Rights Act of 1964[82]. The employers have been prohibited from retaliating against their employees while they exercise rights in these laws. The whistleblowers are also protected in the nation whereby they can raise complaints where the laws are violated[83].
Amazon has had its fair share of allegations regarding being in contravention of the labour laws. In 2016, Amazon had been sued by three people who had worked as drivers of the company, where they claimed that they were employees, instead of being contractors, and that they had been owed with overtime pay, benefits and money for vehicle maintenance and gas[84]. In 2017, a Sacramento man filed a complaint against the tech giant for violation of state and federal laws regarding working conditions[85]. This has led to complaints by National Labour Relations Board, for these violations[86]. All these are troublesome for Amazon, and it is crucial for the company to follow such norms, particularly when it undertakes its business in both US and Australia.
As the name suggests, taxation law is the law associated with tax on different aspects of life. Since the discussion relates to the work of Amazon, the corporate tax aspect would be discussed here forth.
The companies which are Australian residents are subjected to Australian income tax on the income which they earn across the globe. In general, the non-resident companies are subjected to income tax in the nation on such income only which is sourced from Australia. Though, when it happens that a company is resident in a nation where Australia had undertaken a double taxation agreement with that nation, the right to taxing of the profits of business in hands of the nation gets restricted to the profits which are attributable to the Australian permanent establishment. The laws which have been presently enacted provide that all companies are subjected to 30% federal tax rate on their taxable income. The exception to this rule is of the small business companies, which have been subjected to reduced taxation rate of 27.5% up to the year of 2023/24, after which the rates would change progressively. The reduced rates are applicable on the basis of certain limitations and thresholds[87].
Amazon has a reputation of avoiding tax and with Amazon entering the Australian markets; questions have been raised on the company navigating through the Australian taxation system. The infamous project Goldcrest has been studied in detail by Australian Tax Office, which has led to legal cases against the company for its work in Europe and UK. It is thus required on part of Amazon to avoid misusing taxation laws, and to avoid missing out on the fair share of corporate tax for the company[88].
As is the case with the other laws in US, the taxation system also is based on taxes being imposed at federal, state and local government level. The taxes are levied on sales, income, capital gains, property, payroll, gifts, imports, dividends and estates, along with being applicable on different fees. The corporate tax is imposed at the three levels on the incomes which the entities are, and which are to be treated for tax purpose as being corporations. At present, there is a flat rate of 21% corporate tax applicable as a result of applicability of Tax Cuts and Jobs Act of 2017[89]. Even though there are variations in the taxes and rules of states and local levels, there is an overall adoption of federal concepts and definitions. There can be difference in the taxable income in context of tax deductions, the applicability of tax, and the timing of income. At federal level, the corporations are subjected to Alternative Minimum Tax and also have the applicability of alternative state taxes. There is a need for the corporations to file tax returns each year and have to make quarterly estimated tax payments[90].
The property law of Australia is the system of laws which regulate and prioritize the rights, responsibilities and interests associated with property law which the individuals owe regarding “things”. These are the things which create a right or property in context of the ownership or possession of any object[91]. The rights are prioritized or ordered by the law, along with the purpose served by law regarding classification of property as being real and tangible like land, or the intangible one like the right of author towards their literary works, or the person and tangible work like pencil or book.
Broadly, there are two classifications of property in terms of the real property and the personal property. The interest in structures, land and other fixtures are deemed as real property, whilst the property which is not real property is personal property and covers tangible objects and certain intangible legal rights. Tangible property is the one which is in a physical form and has existence as independent of law, whilst intangible property is one which does not exist out of law’s recognition. The owner has the lawful rights on the property, which includes the right of transferring the possession or ownership, and this is known as absolute title. Possession refers to the right of control which comes in existence where the individual holds physical custody of thing with the intent of asserting an exclusive control on it[92].
In Mulcahy v Curramore Pty Ltd[93], it was provided in context of real property that possession had to be open and could not be forceful; it had to avoid any secrets and was required to be peaceful. The law regarding real property in the nation is based on the old English Feudal system. At present, the Native Title Act, 1993[94] is a substantial legislation in context of real property in the nation. There are various other legislations which cover different aspects of property law in the nation. Again, there is a need to have thorough knowledge regarding the intellectual property laws of the nation, where a company like Amazon conducts its business in the nation[95].
As is the case with Australia, the property is divided in two categories in USA, which includes realty and personality. The former refers to land and the latter refers to possessions in terms of furniture, jewellery and money. The state laws cover the authority of making purchase of property, who can own it, the manner in which it would be distributed on the owner’s death. There is the applicability of this reasoning till the time the land is deemed as federal property; where such happens, the determination is to be made by the federal government[96]. Apart from the applicability of these laws, there is a need to consider the intellectual property laws of USA. These are meant to secure and enforce the legal rights of intellectual property. These always are passed by the US Copyright Office and the US Patent and Trademark Office[97].
Tort denotes the civil wrong done which results in one party being harmed as a result of the other party. One of the torts is negligence, which is the focus of discussion here. The reason for tort of negligence being significant in context of Amazon stems from the fact that it cannot take any risks of breaching the duty of care which they reasonably owe towards different stakeholders, particularly the employees, and has to keep a vigilant eye at the things which can go against it. Also, in cases where such things happen, it is crucial for the company to be aware of the possible defences. There is a need to pay heed to these laws, otherwise Amazon would have to bear huge losses, in terms of compensating the injured parties; this is true in context of both the nations.
Where an individual owes a duty of care to another person, negligence is undertaken where they fail in reasonably carrying out this duty, where the other person is injured, damaged or has to bear a loss as a result of it[98]. Negligence is covered under both statutory and common law. Each state or territory has their own civil liability act which sets out the basis of claiming damages under negligence. Under the common law, there are certain requirements stated which have to be established before a case of negligence can be made. It is worth noting that the laws of tort of negligence in Australia are majorly influenced and take on the English laws[99].
The first step in making a case of negligence is to show a duty of care was owed by one person to another. In this context, the case of Donoghue v Stevenson[100] proves to be of help. In this case, the judges held that the proximity between the parties and the direct causation in this case had to make the manufacturer liable for the illness caused to the consumer. This is the case through which the neighbour principle was born. As per this principle, an individual has to take reasonable care in avoiding acts or the omissions which are foreseeable and which can likely injure the neighbour[101].
Once a duty of care is shown to be present, there is a need to show that the duty of care had been breached by the party which owed such duty. There is then a need to show that this breach of duty of care resulted in the other person suffering some sort of damage. Only when these three elements are present can a case of negligence be made. In this context, there is a need for the individuals to deploy a standard of care. Apart from the three conditions, there is a need to show that the damage was reasonably foreseeable, that a reasonable person would have taken care in such situation, and that such carelessness resulted in the damage[102]. An example of this can be cited in Paris v Stepney Borough Council[103]. In this case, the defendant was said to have breached his duties when they failed in providing the plaintiff with the safety gears, which could have protected him at his work. Any reasonable person, in the view of court, would have provided this to the plaintiff[104].
There are certain defences which can be cited by the parties in order to protect themselves against the claims of negligence. These include volenti non fit injuria where it is shown that the plaintiff themselves took on the risk of harm. There is also the defence of contributory negligence, where the parties can show that the plaintiff contributed towards the injury sustained by them. In Gala v Preston[105] both of these were established, and resulted in upholding the assumption of risk and contribution of injury by the plaintiff. Another important concept under negligence is negligent misstatement. Under this concept, the plaintiff is induced to get in a contract where the defendant makes a careless or a false statement. The principle of vicarious liability makes the superiors liable for the negligence of their subordinates. This concept is reinforced through the Employees Liability Act, 1991[106].
To elucidate the statutory law, the case of NSW can be taken, where there is applicability of Civil Liability Act, 2002[107]. Section 5B(1) of the Civil Liability Act provides that a person can be made liable for negligence where they fail in undertaking the requisite safeguards to restrict the chances of risk of injury or loss from taking place, where this was foreseeable in a reasonable way and a reasonable person would have adopted these safeguards[108]. Section 5B(2) provides that the duty of care would be taken as having been breached in such cases where a harm or loss has the chance of happening and this chance is not taken into consideration in a proper manner, particularly where the loss or harm is of serious nature. Apart from this, this has to be coupled with failure in considering the burden of applying the requisite safeguards and precautions for avoiding harm for the social utility of activity which had been undertaken[109].
In U.S., the tort law is predominantly covered under the common law. More or less, the provisions of tort law in U.S. are similar to that of Australia, but with slight variations. Negligence is classified under unintentional torts in the nation. In order to establish a case of negligence, there is a need to show duty of reasonable care, the violation of such duty, causation, damages, and certain other cause of actions. In order to establish breach of duty of care, there is a need to show that burden of exercising more care had been less than the harm or damage’s probability in context of the expected losses. There are certain other manners in which this breach can be established, as had been elucidated under United States v. Carroll Towing Co[110]. Even though the concepts of negligence are similar under the two nations, the U.S. follows its own cases predominantly in comparison to the English cases. The findings regarding the conduct of defendant being reckless, despicable or wanton are crucial as often the defences like contributory negligence are not available where such conduct results in damages[111].
The most substantial piece of law for Amazon is the contract law, as every work of the nation is dependent on contracts being formed.
Contract law in the nation is predominantly based on the common law. The formation of contract encompasses the important elements of contract, which include offer and acceptance to denote the meeting of minds. Once these two elements are present, certain other elements come into play, which includes the consideration, intention of creating legal relations, capacity, and the other pertinent formalities. Again, the contract law of the nation is taken from the English legal system, due to which the majority of precedents set under the English common law of contract, apply in Australia as well. As a result of this, there is the inclusion of factors like unconscionable conduct, unfair term, misleading conduct and misrepresentation amongst the others which continue to apply in the Australian jurisdictions as well. Though, there are a number of precedents set through Australian cases, which are now given preference over the English laws.
Where it so happens that the contractual promise is not undertaken, the parties can avail the different remedies available under the common law, which help them in getting to such a place where they would have been upon the contract being performed properly instead of being contravened. There are also certain statutory laws which continue to apply with the common law in different aspects of contractual obligations. For instance, some of the statutes require that certain contracts have to be in writing. So, there is a need to ensure that such laws are followed when the contracts are created. For instance, Marine Insurance Act, 1909[112] require the contracts of marine insurance to be put down in writing, the land dealings have same requirement, and the mortgages and assignments of life insurance policies have to be put in writing based on the Life Insurance Act, 1995[113]. Now if the common law is only followed in such cases, where the contract can be drawn in either oral or written manner, these statutory laws would be contravened.
As this discussion relates to Amazon, it is worth noting down here that a company which undertakes its business online has to abide by the Electronic Transactions Act, 1993[114] particularly where selecting a particular option box, or ticking on a box can result in a contract being created between Amazon and its customers. Section 10 of this act makes the signature of contracts an obligation[115]. The date of communication is taken to be the date on which the communication leaves the device of the sender as per section 14[116]. Such communication becomes binding on electronic communication where this communication is sent or created on authority or by the creator based on section 15 of this act[117].
In Mehta V J Pereira Fernandes S.A[118], the automatic insertion of email headers was deemed as unreliable mode of document being signed. Section 19 of this legislation gives validity to the electronic contracts[119]. There are also important points regarding the contracts concluded through clicking on buttons, where the contracts are created in different modes like the click through and the browse wrap[120]. In DeJohn v The TV Corporation International, et al[121], the contract was deemed to have been created upon the consumer clicking “Accept” icon put at the end of terms of the contract. Amazon has already been warned for the Amazon Marketplace regarding use of unfair contract terms, and in this context, these laws become all the more important for the company to follow. This would not only breach the contract related laws, but would also contravene the fair trading provisions discussed earlier[122].
The contract law in U.S. covers the obligations which are created through the law, be it implied or express, in between the private parties in the nation. There is a variation of law of contract from state to state and there is a lack of federal contract law applicable across the nation. Yet, there is a similarity in the provisions regarding contract law in U.S. and Australia, albeit with different terms. There is a commonality in terms of offer, acceptance breach of contract, promissory estoppels, consideration, mistake, illegality, misrepresentation, duress and undue influence. Contracts form the base of operations for Amazon, and any instance of the representatives Amazon, deploying force, coercion, or making false statements, can prove costly for the company. There is a Uniform Commercial Code which needs to be followed. A slight variation is in the quasi contracts where the law deems them synonym to the contracts. There are two types of quasi contracts, i.e. restitution and unjust enrichment[123]. There is a significance given to difference between express and implied terms. The e-commerce is regulated through two legislations, i.e. Uniform Computer Information Transaction Act[124] and the Uniform Electronic Transaction Act[125]. These laws have to be followed in context of the contracts created online, when the consumers buy products from the company.
Conclusion
From the detailed discussion undertaken in the previous segments, it can be concluded that a plethora of laws are applicable on the working of Amazon in US and Australia. This discussion merely attempted to shed a light on the different laws applicable on Amazon where it conducts its operations in the two nations. There are a number of other laws and sub-laws which still have to be taken care of by the company, apart from the aforementioned laws. In order for the company to run its business in a hassle free manner, it is crucial for it to abide by the various laws. There have been cases where the company has contravened certain laws, and in this context it becomes important for Amazon to follow the laws in both letter and spirit. Even though the laws of both Australia and US are more or less the same, there are certain minute variations, which have to be specifically taken care of. This is in particular context of the different statutory legislations and instruments which different in the two nations. Even within the two nations, the variations in the law at both commonwealth/ federal level and for the state or territory level require a strict eye. All in all, the wide ambit of business undertaken the tech giant Amazon, does require a wide ambit of laws to regulate the business of the company, to keep in check the work being undertaken by Amazon.
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