BLR Exam Notes PDF

lOMoARcPSD|35672371 BLR exam notes Business, Law and Regulation (Curtin University) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Justin Ambalavaner (a...

lOMoARcPSD|35672371 BLR exam notes Business, Law and Regulation (Curtin University) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 business, law and regulation regulator one: ip australia Intellectual Property: various rights which the law accords for the protection of creative effort- and especially for the protection of economic value for creative efforts ‘IP’ is intangible as opposed to physical in character Role in Society: Australian Governmental Agency that administers IP Rights and Legislation relating to patents, trade marks, designs and plant breeders’ rights 1.Deliver improved IP Rights administration and professional registration 2.Increase awareness of the IP System 3.Shape the IP System domestically and internationally to serve Australian innovation and business Arguments for Regulating this Area of Law Arguments against Regulating this Area of Law Protects the creative and industrial endeavour of people Consumers may get cheaper products if idea is not protected Certain products attract individuals to company (creates Can lead to monopoly = one business/small group have a brand - such as Toblerone) - attracts public cornered a market- leads to low demand, reduces consciousness economic efficiency Companies pay alot of money to create these products and services and assists with their creation of profit Wouldn’t pay as much money if product could be copied by others Economic importance = brings in international investment as Australian companies pay money to create products Patent Right granted for any device, substance, method or process which is new, inventive (or innovative) and useful Legislation that governs patents = Patents Act 1990 (Cth) and Patents Regulations 1991 (Cth) 2 types: standard (20 years duration - Patents Act s 67) - annual renewal fee / innovation (8 years - Patents Act s 68) - annual renewal fee Inventive Step = new; novel; must not be obvious to someone who is skilled in that particular art Innovative Step = obvious contributions Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Standard Patent Innovation Patent Application by filing documents and payment of Examination not required but can be requested fee (Patents Act s 29) by any person (or Commissioner can decide to) Application sets a priority date (s 43) - s 101A Details of each patent application must be Commissioner must conduct a formalities check published in the Australian Official Journal of in respect to innovation patent (s 52; Patents Patents (subsection 53-54) Regulation reg 3.2B) Being granted a monopoly (fee for application) Refuse patent request (s 50) Examination is required (applicant must request Any person can oppose grant of a innovation the examination conducted within 5 years of patent (s 101M) filing application) Where a innovation patent is opposed, the Once commissioner conducts the examination (s Commissioner must hear and decide the case 45) the Commissioner can either: The commissioner must be satisfied, on the ◦ Accept patent request (s 49) balance of probabilities, that the ground(s) of ◦ Postpone acceptance of patent request opposition exist in order to refuse the application (s 49A) (s 101N) ◦ Refuse patent request (s 50) Any person can oppose grant of a standard patent (s 59) Where a standard patent is opposed, the Commissioner must hear and decide the case The commissioner must be satisfied, on the balance of probabilities, that the ground(s) of opposition exist in order to refuse the application Trade Mark Registration Sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person Legislation that governs Trade Marks = Trade Marks Act 1995 (Cth) and Trade Marks Regulations 1995 (Cth) One type of trade mark application (10 years duration - s 72) Renewal possible (Trade Marks Act ss 75-77) In the application, the applicant must register the trade mark with respect to one or more classes of goods and/or services (Act 1995 - s 19) Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 regulator two:australian securities and investments commission Role in Society - Australia’s integrated corporate, markets, financial services and consumer credit regulator - Operates under the ASIC Act 2001 and Corporations Act 2001 - Under the ASIC Act 2001, ASIC has a role in maintaining and improving the performance of the financial system, promoting participation by investors and consumers, informing the public about companies and administering and enforcing the law effectively. - Corporate: - registers companies and receives, processes and stores public records; - monitors companies, their officers, auditors and insolvency practitioners - Markets: - assesses compliance with obligations of markets and their practitioners - supervises trading on Australia’s domestic markets - Financial Services: - ASIC acquired regulatory powers over financial services - licences and monitors financial services businesses and professionals - Consumer Credit: - licenses and regulates consumer credit activities - ASIC must strive to: a) maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and b) promote the confident and informed participation of investors and consumers in the financial system; and c) administer the laws that confer functions and powers on it effectively and with a minimum of procedural requirements; and d) receive, process and store, efficiently and quickly, the information given to ASIC under the laws that confer functions and powers on it; and e) ensure that information is available as soon as practicable for access by the public; and f) take whatever action it can take, and is necessary, in order to enforce and give effect to the laws of the Commonwealth that confer functions and powers on it. Financial Services - Corporations Act 2001 (Cth), s 766A - ‘providing a financial service’ - Essentially: - financial product advice; - dealing in a financial product; - make a market for a financial product; - operate a registered managed investment scheme Credit Activities - National Consumer Credit Code (schedule 1 to the National Consumer Credit Protection Act 2009 (Cth)) s 3 - ‘credit activities’ - Credit is provided if under a contract: a) payment of a debt owed by one person (the debtor) to another (the credit provider) is deferred; or b) one person (the debtor) incurs a deferred debt to another (the credit provider) e.g. banks, credit unions Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Market - Corporations Act 2001 (Cth) s 767A(1) - ‘financial market’ - facility through which offers, or invitations, to acquire or dispose of financial products are regularly made or accepted - e.g. ASX and Chi-X Market Misconduct - Insider Trading - trading in securities on the basis of price sensitive information which has not been made available to the other party to the transaction Arguments for Regulating Markets (example: insider trading) Ensure provision of information about company to relevant stakeholders is accurate Set standards for corporate governments to protect the company from fraudulent people in the companies Disclosure necessary to protect investing public Disclosure ensures market is efficient and fair Necessary for corporate control - takeovers and mergers, acts to protect stakeholders Regulation of securities promotes confidence about honesty and efficiency of market Exemption Powers - ASIC has the power to grant exemptions from or modifications to the statutory laws it administers (particularly the Corporations Act 2001 (Cth)) in certain situations - known as ‘applications for relief’ - companies must submit this application in order for ASIC to decide on whether or not to grant them an exemption - Examples of ‘relief’: - Chapter 6D of the Corporations Act 2001 (Cth) = relief may be granted from the requirements in this chapter to provide prospectuses and other documents; - Chapter 7 of the Corporations Act 2001 (Cth) = relief may be granted from the requirements in this chapter to provide Product Disclosure Statements and Financial Services Guide - May be granted on an individual basis or by legislative instrument (published in the Federal Register of Legislation) - In determining applications for relief, ASIC attempts to achieve consistency and definite principles - ASIC does not have the power to grant retrospective relief but the courts do. Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 - Class relief is where ASIC will implement legislative instruments so that applicants don’t need to apply for relief on an individual basis. - ‘Comfort relief’ - where the application of the law to particular circumstances is unclear or uncertain. Investigatory Powers - ASIC’s information giving power can be split into 2 broad areas: - Surveillance Work; and - Investigation of suspected breaches of law - Categories of information gathering powers: - require the production and inspection of documents;* - require disclosure of information; - require attendance at an examination;* - require reasonable assistance with an investigation;* - search warrants Legislation: Australian Securities and Investments Commission Act 2001 (Cth) Division section Division 3 - Inspection 30 - Notice to 1) ASIC may give to: of books and audit Produce books a) a body corporate that is not an exempt public authority; or information-gathering about affairs of b) an eligible person in relation to such a body corporate; powers body corporate a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to affairs of the body. 33- Notice to 1) ASIC may give to a person a written notice requiring the production produce to a specified member or staff member, at a specified place and documents in a time, of specified books that are in the first-mentioned person’s person’s possession and relate to: possession a) affairs of a body corporate; or ab) affairs of a registered scheme; or c) a matter [relating to financial products]; or d) a matter [relating to financial services] / 13 - General 1) ASIC may make such investigation as it thinks expedient for the due powers of administrations of the corporations legislation (other than the investigation excluded provisions) where it has reason to suspect that there may have been committed: a) a contravention of the corporations legislation (other than the excluded provisions); or b) a contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, being a contravention that: i ) concerns the management or affairs of a body corporate or managed investment scheme; or ii) involves fraud or dishonesty and relates to a body corporate or managed investment scheme or to financial products 14 - minister may direct investigations 15 - - ASIC may investigate matters relating to reports or returns lodged investigation under s 422 or 533 of the Corporations Act after report of receiver or liquidator 29 Power to inspect books without charge Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Division 2 - 19 - Notice 1) this section applies where ASIC, on reasonable grounds, suspects or Examination of requiring believes that a person can give information relevant to a matter that Persons appearance for it is investigating, or is to investigate, under Division 1 examination 2) ASIC may, by written notice in the prescribed form given to the person, require the person: a) to give to ASIC all reasonable assistance in connection with the investigation; and b) to appear before a specified member or staff member for examination on oath and to answer questions. 3) A notice given under ss (2) must: a) state the general nature of the matter referred to in ss (1); and b) set out the effect of ss 23(1) and section 68 21 - 1) The inspector may examine the examinee on oath or affirmation Requirements and may, for that purpose: made of a) require the examinee to either take an oath or make an affirmation; examinee and b) administer an oath or affirmation to the examinee 2) the oath or affirmation to be taken or made by the examinee for the purposes of the examination is an oath or affirmation that the statements that the examinee will make will be true 3) the inspector may require the examinee to answer a question that is put to the examinee at the examination and is relevant to matter that ASIC is investigating, or is to investigate, under Div.1 34 ASIC may authorise persons to require production of books Search Warrants 35 - Application - May apply for warrant if ASIC has reasonable grounds to suspect for warrant to that a person hasn’t complied with a notice to produce books seize books 36 - Grant of warrant 36A - Execution of warrant 63 non-compliance with requirements made under this Part 64 false information 67 concealing books relevant to investigation Divison 7 - Offences 68 - self- 1) for the purposes of this part, of Div. 3 of Part 10, and of Div. 2 of incrimination Part 11, it is not a reasonable excuse for a person to refuse or fail: a) to give information; or b) to sign a record; or c) to produce a book; in accordance with a requirement made of the person, that the information, signing the record or production of the book, as the case may be, might tend to incriminate the person or make the person liable to a penalty. 3) the statement, or the fact that the person has signed the record, as the case may be, is not admissible in evidence against the person in: a) a criminal proceeding; or b) a proceeding for the imposition of a penalty; other than a proceeding in respect of: [the falsity of the statement or record] 69 legal professional privilege Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Investigatory Powers:Steps to an Investigation 1)report of misconduct 2)does the misconduct fall within ASIC”s regulatory responsibility 3)assessment: strategic significance, benefits of pursuit, issues specific to case, alternatives 4)notice is served 5)decision to use compulsory info-gathering powers 6)collection of information Enforcement Powers Act section 1. ASIC Act 2001 1. s 49 To take punitive action (criminal prosecution, civil penalty) (Cth) 2. s 1317J 2. Civil Penalty 2. Corporations Act 2001 (Cth) 1. ASIC Act 2001 1. s 50 1. ASIC may cause civil proceedings to be begun; ability to recover (Cth) 2. s 1323 and damages or property 2. Corporations Act 12GD of ASIC 2. ability to pursue injunctions (2001) Cth ACT - these are preservative actions ASIC Act 2001 (Cth) s 93AA - Enforceable undertakings (negotiated resolution) Corporations Act s 206F;1317DAC - Administrative proceedings 2001 (Cth) Corporations Act Part 9.4AA; Infringement notices 2001 (Cth) 1317DAC - Protective Action = protects investors and financial consumers through public warning notices, suspension/ revocation of licences, or disqualification from engaging in specific financial practices. - Preservative Actions = protect assets and compel compliance (e.g. court-ordered injunction) - Corrective Action = used to correct misleading or deceptive information made public via court order - Compensation Action = ASIC has the power to recover damages or property for people who have sustained losses if it is in the public interest - Punitive Action = minor regulatory offences up to major breaches of law - More serious offences can lead to fines, prison sentences under criminal law and penalties under civil law - If a case requires criminal law involvement, it is referred to the Commonwealth Director of Public Prosecutions (CDPP) Enforcement Powers: Relevant Factors 1) Nature and seriousness of the suspected misconduct Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 2) conduct of the person or entity after the alleged contravention; 3) strength of the case; 4) expected level of public benefit; 5) likelihood behaviour will change in response to the action; 6) likelihood the business community will be deterred from similar conduct through greater awareness of its consequences, and; 7) mitigating factors regulator three:australian taxation office Role in Society - The ATO functions according to the Public Governance, Performance and Accountability Act 2013, inside the Treasury Portfolio, and are held responsible under the Public Service Act 1999. - The role of the ATO is to effectively administer and regulate the tax and superannuation systems that support and fund services for Australians. - This includes: - Revenue collecting - Administration of the Goods and Services Tax (GST) on behalf of Australian States and Territories - Governing a range of programs resulting in transfers and benefits back to the community - Administration of the major aspects of Australia’s superannuation system - Being custodian of the Australian Business Register Exemption Powers Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Act section 1. Taxation General administration - Commissioner’s exemption powers Administration Act 1953 (Cth) s 8AAG - 1. remit penalties remission of charge Schedule 1, release tax debt in cases of serious hardship - commissioner may Division 340 - release you from a particular liability Commissioner’s power in case of hardship s 13CA - setting aside a conviction or order on an application setting aside etc. of conviction or order on application of Commissioner - Commissioner’s Remedial Powers = discretionary power; limited and seen as a last resort, used sparsely and only under circumstances where administrative or interpretive approaches are not viable options - used for general issues which concern all taxpayers and focus on creating certainty for taxpayers by lowering excessive compliance costs and addressing any negative consequences faced by taxpayers as a result of the current law. Exemption Powers - Income Tax Legislation Part, Schedule section Income Tax Chapter 2 - Part 2-15 = - subdivision 50A - various exempt entities Assessment Act Liability rules of Non- - subdivision 50B - endorsing charitable entities as 1997 (Cth) general application assessable exempt from income tax income - guide to subdivision 50B - 50-100 = what this subdivision is about Division 50 - - endorsing charitable entities as exempt from income exempt tax entities - 50-105 = endorsement by Commissioner Taxation Schedule 1 - Part 5-1 - - 355A = objects and application of Division Administration Act collection and The ATO - 353-10 = objects of division 1952 (Cth) recovery of a) to protect the confidentiality of taxpayers’ affairs by income tax and Division 355 imposing strict obligations on taxation officers (and other liabilities - others who acquire protected tax information), and so Confidentialit encourage taxpayers to provide correct information to y of the Commissioner; and taxpayer b) to facilitate efficient and effective government information administration and law enforcement by allowing disclosures of protected tax information for specific, appropriate purposes. Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Investigatory Powers: Information Gathering Legislation Part, Schedule section Taxation Schedule 1 - Division 353 - - 353-10 = Commissioner’s Powers Administration collection and Collection and 1) the Commissioner may by notice in writing require you Act 1953 recovery of income recovery of to do all or any of the following: to furnish the (Cth) tax and other income tax and Commissioner with such information as the liabilities other liabilities Commissioner may require; a) to give the Commissioner any information that the Commissioner requires for the purpose of the administration or operation of a taxation law; b) to attend and give evidence before the Commissioner, or an individual authorised by the Commissioner, for the purpose of the administration or operation of a taxation law; c) to produce to the Commissioner any documents in your custody or under your control for the purpose of the administration or operation of a taxation law Note: failing to comply with a requirement can be an offence under s 8C or 8D 2) The Commissioner may require the information or evidence: a) to be given on oath or affirmation; and b) to be given orally or in writing For that purpose, the Commissioner or the officer may administer an oath or affirmation 3) the regulations may prescribe scales of expenses to be allowed to entities required to attend before the Commissioner or the officer Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 - 353-15 = Access to premises, documents, etc 1) For the purposes of a taxation law, the Commissioner, or an individual authorised by the Commissioner for the purposes of this section: a) may at all reasonable times enter and remain on any land, premises or place; and b) is entitled to full and free access at all reasonable times to any documents, goods or other property; and c) may inspect, examine, make copies of, or take extracts from, any documents; and d) may inspect, examine, count, measure, weigh, gauge, test or analyse any goods or other property and, to that end, take samples 2) an individual authorised by the Commissioner for the purposes of this section is not entitled to enter or remain on any land, premises or place, if after having been requested by the occupier to produce proof of his or her authority, the individual does not produce an authority signed by the commissioner stating that the individual is authorised to exercise powers under the section. 3) you commit an offence if: a) you are the occupier of land, premises or place; and b) an individual enters or propose to enter the land, premises, or place under this section; and c) the individual is the commissioner or authorised by the commissioner for the purposes of this section; and d) you do not provide the individual with all reasonable facilities and assistance for the effective exercise of powers under this section Penalty: 30 penalty units Income Tax 264A - 1) where the Commissioner has reason to believe that: Assessment offshore a) information relevant to the assessment of a taxpayer Act 1936 information is: (Cth) i) within the knowledge (whether exclusive or otherwise) of a person outside Australia; or ii) recorded (whether exclusively or otherwise) in a document outside Australia; or iii) kept (whether exclusively or otherwise) by means of a mechanical, electronic or other device outside Australia, or b) documents relevant to the assessment of a tax payer are outside Australia (whether or not copies are in Australia or, if the documents are copies of other documents, whether or not those other documents are in Australia); The commissioner may by notice in writing served on the taxpayer (which notice is in the section called the offshore information notice), request a tax payer: c) to give to the commissioner, within the period and in the manner specified in the offshore information notice, any such information; or d) to produce the commissioner, within the period and in the matter specified in the offshore information notice, any such documents; or e) to make copies of any such documents and to produce to the commissioner, within the period and in the manner specified in the offshore information notice, those copies. 2) the period specified in the offshore information notice must end 90 days after the date of service of the notice. 22) a refusal or failure to comply with a request set out in an offshore information notice is not an offence. 24) nothing in this section affects the operation of s 353-10 in schedule 1 of the TAA Act and nothing in that section affects the operation of this section. Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Income Tax s 167 - Default If Assessment assessment - a) any person makes default in furnishing a return; or Act 1936 commissioner b) the Commissioner is not satisfied with the return (Cth) has the power furnished by any person; or to make an c) the Commissioner has reason to believe that any assessment and person who has not furnished a return has derived provide you with taxable income; a DA, which is the Commissioner may make an assessment of the based on an amount upon which in his or her judgement income tax amount that ought to be levied, and that amount shall be the taxable they think you income of that person for the purpose of section 166. should pay -Cooperative Approach = formulates plan, contacts people before requesting information -Formal approach: notice to provide information and gain access to premises - ATO’s formal investigatory powers fall into 2 broad categories: - Notice powers = which require one to give information, attend and give evidence to produce documents - Access powers = which requires one to give the ATO full and free access to places, books and documents. In these situations, it is also expected by the ATO for people to give reasonable assistance Enforcement Powers: Penalties - a uniform penalty regime applies to all taxation laws (e.g. income tax, company tax, GST, etc) - the uniform penalty is contained in Taxation Administration Act 1953 (Cth), Schedule 1, Part 4-25 - Penalties can be divided into 2 broad categories: - Administrative - Taxation Administration Act 1953 (Cth), Schedule 1, Part 4-25, Division 284 to 288 - Judicial - Taxation Administration Act 1953 (Cth), ss 8A to 13C - Crimes Act 1914 (Cth); and - Criminal Code 1995 (Cth) - ATO imposes a General Interest Charge (GIC) on all unpaid tax liabilities (TAA Act 1953, Part 11A) - Uplift factor of 7% is designed to make the GIC rate high so as to discourage the use of tax debts as a source of business or private finance - ATO also administers penalties against those who promote tax avoidance schemes and tax evasion schemes under Taxation Administration Act 1953 (Cth), Schedule 1, Division 290 - issuing fines and penalties = TAA Act 1953; sch 1, pt 4-25 - forcibly collect any tax owed = TAA Act 1953; sch 1, pt 4-15; div 255-A - charge interest - TAA Act 1953; pt IIA Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 -The ATO applies the administrative penalty regime and prosecutes less complex high-volume taxation offences, e.g. false records/failing to comply with lodgements -Department of Public Prosecutions exercises supervisory control over all tax offences and prosecutes the more serious cases, e.g. fraud. Enforcement Powers -Penalty Units = valued at $222 -Part 4A - The Commission may prohibit the departure of the person from Australia for a foreign country -Directors can be made personally liable by the ATO for certain taxation debts - Division 290 - Commission can apply to the Federal Court for civil penalties and injunctions against promoters of tax avoidance schemes; administers penalties against people who promote tax avoidance and evasion schemes ‘promotor penalties’ - Prosecutions for general offences may also be instituted under various provisions of the Criminal Code Act 1995 (Cth) and the Crimes Act 1914 (Cth). Taxes in Australia: Income Tax Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 regulator four:fair work commission Role in Society - Australia’s national workplace relations tribunal - Established by the Fair Work Act 2009 and is responsible for administering the provisions of the Fair Work Act - created pursuant to Part 5-1 of the Fair Work Act 2009 (Cth) - Assists employees and employers to maintain a fair and productive workplace - They set minimum wages, create and change modern awards, approve enterprise agreements, and act as the independent umpire, including fair dismissal - major role in decision making (example - through the approval of enterprise agreements, orders in relation to the general protections, orders in relations to unfair dismissal, etc) - important to regulate employment law as there can always be a power imbalance between an employee and employer. Exemption Powers Legislation: Fair Work Act 2009 (Cth) Part section 3-4 - ability of a 481- right of 1. A permit holder may enter premises and exercise a right under s person (for example a entry 482 or 483 for the purpose of investigating a suspected union official) to enter contravention of this Act, or a term of a fair work instrument, that a workplace) - must relates to, or affects, a member of the permit holder’s organisation: be preceded by notice a) whose industrial interests the organisation is entitled to represent; (s 487(1)) , however and FWC can grant an EC b) who performs work on the premises 519 1. The FWC must issue a certificate (an exemption certificate) to an organisation for an entry under s 481 (which deals with entry to investigate suspected contraventions) if: a) the organisation has applied for the certificate; and b) the FWC reasonably believes that advance notice of the entry given by an entry notice might result in the destruction, concealment or alteration of relevant evidence Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 487 4. If the FWC has issued an exemption certificate for the entry, the permit holder must, either before or as soon as practicable after entering the premises, give a copy of the certificate to: a) the occupier of the premises or another person who apparently represents the occupier; and b) any affected employer or another person who apparently represents the employer; if the occupier, employer or other person is present at the premises 2-4 - enterprise 186 1. If an application for the approval of an enterprise agreement is agreements made under subsection 182(4) or section 195, the FWC must - FWC must approve approve the agreement under this section if the requirements set an enterprise out in this section and section 187 are met. agreement before it 2. the FWC must be satisfied that: will become effective a) if the agreement is not a greenfields agreement - the agreement has - The BOOT (better been genuinely agreed to by the employees covered by the agreement off overall test) is a key feature of the approval process 193- When will 1. an enterprise agreement that is not a greenfields agreement passes an enterprise the BOOT test under this section if the FWC is satisfied, as at the test agreement pass time, that each award covered employee, and each prospective award the BOOt test? covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee 189 1. this section applies if: a) the FWC is not required to approve an - FWC has the enterprise agreement under s 186; and b) the only reason for this power to is that the FWC is not satisfied that the agreement passes the approve an EA BOOT test that fails this 2. the FWC may approve the agreement under this section if the FWC test in certain is satisfied that, because of exceptional circumstances, the approval circumstances of the agreement would not be contrary to the public interest (effectively 3. an example of a case in which the FWC may be satisfied of the exempting the matter referred to in subsection (2) is where the agreement is part employer from of a reasonable strategy to deal with a short-term crisis in, and to the BOOT) assist in the revival of, the enterprise of an employer covered by the agreement 4. the nominal expiry date of an enterprise agreement approved by the FWC under this section is the earlier of the following: a) the date specified in the agreement as the nominal expiry date of the agreement; b) 2 years after the day on which the FWC approved the agreement Investigatory Powers section Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 590 1) the FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate 2) without limiting subsection (1), the FWC may inform itself in the following ways: a) by requiring a person to attend before the FWC; b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC; d) by taking evidence under oath or affirmation in accordance with the regulations (if any); e) by requiring an FWC member, a full bench or an expert panel to prepare a report; f) by conducting inquiries; g) by undertaking or commissioning research; h) by conducting a conference (see s 592); i) by holding a hearing (see s 593) 591 FWC is not bound by the rules of evidence and procedure 592 conducting conferences 593 holding hearing 290 - Pursuant to Part 2-6, the FWC (through an expert panel) must conduct an annual wage review and create a national minimum wage order 1. the president may give a direction under s 582 requiring that a matter be investigated, and that a report about the matter be prepared, for consideration in an annual wage review 2. the direction: a) may be given to: i) an expert panel; or ii) an expert panel member; or iii) a full bench that includes one or more expert panel b) must require the report to be given to the Expert Panel that is constituted to conduct the annual wage review, unless the direction is given to that Expert Panel Enforcement Powers (Unfair Dismissal) - Unfair Dismissal: the termination of an employment contract in circumstances that are unfair, harsh, unjust or unreasonable Part, Schedule section 3-2 590 - general investigative powers are relevant for UD ss 398-399 - conduct a conference and/or a hearing in relation to UD s 390 - can make orders for reinstatement or compensation in respect to UD applications s 399A - can dismiss UD applications (where appropriate) 4 specific matters prior to the consideration of the merits 1. Consider the question of whether the application was made in the timeframe 2. Was person protected from UD? 3. Small business fair dismissal code and codes of general redundancy Is the person protected from unfair dismissal? section Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 382 A person is protected from UD at a time, if, at that time: a) the person is employee who has completed a period of employment with his or her employee of at least the minimum employment period; and b) one of more of the following apply: I) a modern award covers the person; II) an enterprise agreement applies to the person in relation to the employment; III) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold - if 1-3 are met, then the person will be protected from UD Has the person been unfairly dismissed? section 385 A person has been unfairly dismissed if the FWC is satisfied that: a) the person has been dismissed; and b) the dismissal was harsh, unjust or unreasonable; and c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and d) the dismissal was not a case of genuine redundancy * all 4 must be established - If you have been able to established to , then the person has been unfairly dismissed What remedy can be obtained? section Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 390 1) subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if: a) the FWC is satisfied that the person was protected from UD (see Division 2) at the time of being dismissed; and b) the person has been unfairly dismissed (see Division 3) 2) the FWC may make the order only if the person has made an application under section 394 3) the FWC must not order the payment of compensation to the person unless: a) the FWC is satisfied that reinstatement of the person is inappropriate; and b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case 3-2, Division 5 = s 394 = ability to make an application, application timeframe, extension for application Application and of time); and procedure s 396 = preliminary matters to be considered prior to merits Enforcement of FWC Decisions/Orders - FWC cannot enforce its orders - an order made by Commission is legally binding - however, the Commission does not have the power to enforce an order - failure to comply with an order of the FWC can result in the breach of a civil remedy provision (UD - s 405) - Part 4-1 is about compliance and enforcement section 539 1) a provision referred to in column 1 of an item in the table in subsection 2 is a civil remedy provision 2) for each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 regulator five:fair work ombudsman Role in Society - enforce compliance with the FW Act 2009, related legislation, awards and registered agreements. - also help employers and employees by providing advice and education on pay rates and workplace conditions - commission is the independent national workplace relations tribunal. It is responsible for maintaining a safety net of minimum wages and employment conditions, as well as a range of other workplace functions and regulations - position of the FWO is created pursuant to Part 5-2, Divi 2 of the FW Act 2009 (s 681 - ‘there is to be a Fair Work Ombudsman’) Functions section 682 1) the FWO has the following functions: a) to promote: i) harmonious, productive and cooperative workplace relations; and ii) compliance with this Act and fair work instruments; including by providing education, assistance and advice to employees, employers, outworkers, outworker entities and organisations and producing best practice guides to workplace relations or workplace practices; b) to monitor compliance with this Act and fair work instruments; c) to inquire into, and investigate, any act or practice that may be contrary to this Act, a fair work instrument or a safety net contractual entitlement. d) to commence proceedings in a court, or to make applications to the FWC, to enforce this Act, fair work instruments and safety net contractual entitlements; e) to refer matters to relevant authorities; f) to represent employees or outworkers who are, or may become, a party to proceedings, or a party to a matter before the FWC, under this Act or a fair work instrument, if the FWO considers that representing the employees or outworkers will promote compliance with this Act or the fair work instrument g) any other functions conferred on the FWO by any Act Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Modern Awards - ‘an award that has effect under the Fair Work Act’ - Award: a legal instrument that operates with the force of legislation and imposes obligations in relation to the employment of workers in a particular industry, occupation or enterprise’ - not the product of arbitration (remember: corporations power is now used to support most of the Fair Work Act) What can (and cannot) included in a modern award section 136 - what can and can’t be included 139 1. a MA may include terms about any of the following matters: a) minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and: i) skill-based classifications and career structures; and ii) incentive-based payments, piece rates and bonuses; b) type of employment, such as full-time employment, casual employment, regular part-time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities;… c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks, and variations to working hours; d) overtime rates; e) penalty rates, including for any of the following: i) employees working unsocial, irregular or unpredictable hours; ii) employees working on weekends or public holidays; iii) shift workers; 141 - coverage term (must include) 144 - flexibility term (must include) - employees tinker with terms and conditions to make mutually benefit decisions 145A consultation term with respect to working hours 146 dispute resolution team 150 - objectionable terms (must not include) 152 - right to entry (must not include) 153 - discriminatory terms (must not include) Investigatory Powers section 700 - appointment of Fair Work inspectors 701 1. fair work ombudsman is also fair work inspector Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 706 1. an inspector may exercise compliance powers (other than a power under s 715 or 716) for one or more of the following purposes (compliance purposes): a) determining whether this Act or a fair work instrument is being, or has been, complied with: b) subject to ss (2), determining whether a safety net contractual entitlement is being, or has been, contravened by a person; c) the purposes of a provision of the regulations that confers functions or powers on inspectors; d) the purposes of a provision of another Act that confers functions or powers on inspectors 2. an inspector may exercise compliance powers for the purpose referred to in paragraph (1)(b) only if the inspector reasonably believes that the person has contravened one or more of the following: a) a provision of the National Employment Standards; b) a term of a modern award; c) a term of an enterprise agreement; d) a term of a workplace determination; e) a term of a national minimum wage order; f) a term of an equal remuneration order 707 - an inspector may exercise compliance powers: a) at any time during working hours; or b) at any other time, if the inspector reasonably believes that it is necessary to do so for compliance purposes 708 1. an inspector, may, without force: a) enter premises, if the inspector reasonably believes that this Act or a fair work instrument applies to work that is being, or applied to work that has been, performed on the premises; or b) enter business premises, if the inspector reasonably believes that there are records or documents relevant to compliance purposes on the premises, or accessible from a computer on the premises 709 the inspector may exercise one or more of the following powers while on the premises: a) inspect any work, process or object; b) interview any person; c) require a person to tell the inspector who has custody of, or access to, a record or document; d) require a person who has the custody of, or access to, a record or document to produce the record or document to the inspector either while the inspector is on the premises, or within a specified period;.. e) inspect, and make copies of, any record or document that: i) is kept on the premises; or ii) is accessible from a computer that is kept on the premises; f) take samples of any goods or substances in accordance with any procedures prescribed by the regulations 711 1) an inspector may require a person to tell the inspector the person’s name and address if the inspector reasonably believes that the person has contravened a civil remedy provision - see also s 711(2) and (3) 712 1. an inspector may require a person, by notice, to produce a record or document to the inspector (see also 711(2)-(4) Compliance and Enforcement Policy Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Enforcement Powers Compliance Notices section 716 1. this section applies if an inspector reasonably believes that a person has contravened one or more of the following: a) a provision of the National Employment Standards; b) a term of a modern award; c) a term of an enterprise agreement; d) a term of a workplace determination; e) a term of a national minimum wage order; f) a term of an equal remuneration order 3. Compliance notice must comply with this part, which sets out - written notice legally requiring a business to rectify breaches of the FWA - a compliance notice can be issued by an inspector (s 716 (2)). The compliance notice can require action to be taken with respect to an alleged contravention (s 716(2)(a)), and can require proof of compliance (s 716(2) (b)). - compliance notice must comply with s 716(3), which sets out compulsory content for the notice (including, for example, the name of the alleged wrongdoer, the name of the inspector, the alleged contravention, the significance of contravention, etc) - a compliance notice cannot be issued if an enforceable undertaking is in place (s 716(4)) - it is possible to challenge a compliance notice via review by a relevant court, pursuant to s 717 - litigation cannot be brought by an inspector with respect to an alleged contravention if a Compliance Notice is in place, or if the compliance notice is under review (s 716, 4A) - compliance with a compliance notice is not an admission or finding of contravention (s 716 4B) - failure to comply with a Compliance Notice is a breach of civil remedy provision (s 716(5) except where ‘the person has a reasonable excuse’ (s 716(6)) Enforceable Undertaking - written agreement between an employer who has not followed workpalce laws and the FWO, allowing them to voluntarily fix the issue themselves and employ preventative measures for the future -an enforceable undertaking can be accepted by the FWO pursuant to s 715(2). consent from the FWO is required to withdraw the enforceable undertaking (s 715(3)) -an inspector cannot commence litigation while an enforceable undertaking is in place (s 715(4)) -an EU cannot be accepted Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 while a compliance notice is in place (s 715(5)) - the FWO can approach a court to seek enforcement of an EU (s 715(6)) and (7) Contravention Letter a written formal warning issued to an employer section 5.05 1. If an inspector is satisfied that a person has failed to observe a requirement imposed by or for the Act, these Regulations or a fair work instrument, the inspector may, by notice in writing: a) inform the person of the failure; and b) require the person to take the action specified in the notice, within the period specified in the notice, to rectify the failure; and c) require the person to notify the inspector in accordance with the notice of any action taken to comply with the notice; and d) advise the person of the actions the inspector may take if the person fails to comply with the notice Litigation - FWO may commence legal proceedings when there is sufficient evidence to suggest it would be in the eyes of public interest How does litigation fit into the FWO’s compliance and enforcement strategy? When will the FWO litigate? When will the FWO consider when determining the public interest? -table on pages 12-13 of the policy Compliance Partnership Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Record Keeping and Pay Slips - fair work inspector can issue an infringement notice in relation to certain breaches of provisions relating to record keeping and pay slips - power is conferred by the Fair Work Regulations Act 2009 section 558 1. if the regulations may provide for a person who is alleged to have contravened a civil remedy provision to pay a penalty to the Commonwealth as an alternative to civil proceedings 2. the penalty must not exceed one-tenth of the maximum penalty that a court could have ordered the person to pay under s 546 if the court was satisfied that the person had contravened that provision section 535 1. an employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees. 2. the records must: a) if a form is prescribed by the regulations - be in that form; and b) include any information prescribed by the regulations 3. the regulations may provide for the inspection of those records see also: s 535(4) and (5) 536 1. an employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work. 2. the pay slip must: a) if a form is prescribed by the regulations - be in that form; and b) include any information prescribed by the regulations. 3. an employer must not give a pay slip for the purposes of this section that the employer knows it false or misleading 4. subsection (3) does not apply if the pay slip is not false or misleading in a material particular When can an infringement notice be issued? section Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 4.04 1. if an inspector reasonably believes that a person has committed 1 or more contraventions of a particular civil remedy provision, the inspector may give to the person an infringement notice relating to the alleged contravention or contraventions 2. an infringement notice must be given within 12 months after the day on which the contravention or contraventions are alleged to have taken place 3. this regulation does not authorise the giving of 2 or more infringement notices to a person in relation to contraventions of a particular civil remedy provision that: a) allegedly took place on the same day; and b) allegedly relate to the same action or conduct by the person. 4. an inspector must not give an infringement notice in respect of a contravention if the FWO has accepted an EU from the person under s 715 of the Act in relation to the relevant civil remedy provision. section 4.09 1. if an infringement notice is not withdrawn, and the recipient pays the penalty stated in the notice: a) any liability of the recipient for the alleged contravention is discharged; and b) no proceedings may be brought against the recipient, by any person, for the alleged contravention; and c) the recipient is not taken to have admitted to having contravened the civil remedy provision; and d) the recipient is not taken to have been convicted of a contravention Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 regulator six:fair australian competition and consumer division - competition division How do competitive markets maximise consumer welfare? - Australia = free market company (laisse faire) - When businesses compete with each other, consumers get the best possible prices, quantity and quality of goods and services - competition laws encourage companies to compete so that both consumers and businesses benefit Role in Society - An independent Commonwealth statutory authority whose role is to enforce Competition and Consumer Act 2010 and a range of additional legislation, promoting compeitition, fair trading and regulating national infrastructure for the benefit of all Australians. - Competitive, informed and (when necessary) well-regulated markets lead to lower prices, better quality products and services, and more choice. This increases the prosperity and welfare of all Australians - We focus on taking action that most promotes the proper functioning of Australian markets, protects competition, improves consumer welfare and stops conduct that is anti-competitive or harmful to consumers - The ACCC employs the following strategies to achieve our purpose: - maintaining and promoting competition - protecting the interests and safety of consumers, and supporting fair trading in markets affecting consumers and small business - promoting the economically efficient operation of, use of, and investment of infrastructure, and identifying market failure - undertaking market studies and inquiries to support competition, consumer and regulatory outcomes Maintaining and promoting competitions Anti-Competitive behaviour - Cartel Conduct -Cartels exist when businesses agree to act together instead of Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 competing against one another - agreement designed to drive up the profits of cartel members while maintaining the illusion of competition - by controlling markets and restricting goods and services, cartels can put honest and well-run companies out of business while stifling innovation and protecting their own inefficient members - they often result when businesses struggle to maintain a profit by competing fairly - temptation to deliberately (and secretly) set up or join a cartel with their business competitors - some estimates suggest that when a cartel operates, the prices of goods affected increase by at least 10% - cartels can be global, local or national Legislation: Competition and Consumer Act 2010 (Cth) section 45AA 1. simplified outline of the criminal offences and civil prohibitions relating to cartel conduct - a cooperation must not make, or give effect to, a contract, agreement or understanding that contains a cartel provision - a cartel provision is a provision relating to: a) price-fixing; or b) restricting outputs in the production and supply chain; or c) allocating customers, suppliers or territories; or d) bid-rigging by parties that are, or otherwise be, in competition with each other 45AF criminal offence for making a contract, arrangement or understanding containing a cartel provisions 45AG criminal offence for giving effect to a contract, arrangement or understanding containing a cartel provision 45AJ civil prohibition for making a contract, arrangement or understanding containing a cartel provisions 45AK civil prohibition for giving effect to a contract, arrangement or understanding a cartel provision Anti-Competitive behaviour - Collective bargaining and boycotts - collective bargaining: an arrangement where 2 or more competitors come together to negotiate with a supplier or customer (the target) about terms, conditions and/or prices - collective boycott: occurs when a group of competitors agree not to acquire goods and services from, or not to supply them to, a business with whom the group is negotiating, unless the business accepts the terms and conditions offered by the group. Why is competition regulated? Arguments for Regulating Competition Arguments against Regulating Competition ensures continual innovation to improve products/ competition laws are complex - businesses confused on services whether they are abiding by law (driving prices down, etc) encourages manufacturers to keep costs down to offer punishes success = eliminates incentives for innovation competitive prices blocks new industry entrance that might invest in poorly drafted legislation can negatively impact market opportunities which may stifle economic growth if this is not regulated Exemption Powers - collective bargaining - has the power to grant exemptions from the requirements of the CCA - exemptions provide a form of statutory protection for businesses against conduct that could otherwise breach the competition provisions of the CCA section Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 ss 88-92 - 1. businesses must lodge an application with the ACCC and pay a lodgement fee Authorisation ($7,500) - public consultation conducted by ACCC with interested parties - draft determination issued by the ACCC - public consultation on the draft determination inviting written submissions and a pre- decision conference with the ACCC - fine determination issued by the ACCC - public benefit v public detriment (s 90(7)(b)) ss 93-95 - - used for collective bargaining and collective boycotts by two or more small businesses Notifications - reasonable expectation by each business that the value of the transactions it will make with the ‘target’ will not be more than $3 million/year (or higher threshold for some industries) - not applicable for trade unions - notification lodged with ACCC and fee payable ($1,000) - takes effect after notification (14 days for collective bargaining and 60 days for collective boycott) unless ACCC objects ss 95AA-95AB - - 95AA = allows the ACCC to make a determination by legislative instrument that one or class exemptions more types of anti-competitive conduct does not apply to conduct of the kind specified in the determination - the class exemption may not last more than 10 years and may be revoked or withdrawn in a particular case Investigatory Powers Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 section 154D - entry with 1. an inspector may enter premises if: consent a) the Commission, the Chairperson or a Deputy Chairperson has reasonable grounds for suspecting that there may be evidential material on the premises; and b) the inspector obtains the consent of the occupier of the premises to enter the premises 3. before obtaining the consent of a person to enter premises under this Division, the inspector must inform the person that the person may refuse consent 4. a consent of a person is not effective for the purposes of this section unless it is voluntary 154E - powers in - 1. an inspector or an assistant may do any of the following after entering premises under relation to premises this division: a) search the premises, and any thing on the premises, for the evidential material; b) make copies of the evidential material found on the premises; c) operate electronic equipment at the premises to see whether the evidential material is accessible by doing so; - NOTE: see also division 5 (which contains provisions relating to the operation of electronic equipment at the premises) d) remove the evidential material from the premises with the consent of the owner of the material; - NOTE: see also subsection (2) e) secure the evidential material, pending the obtaining of a search warrant to seize it; f) take equipment and material onto the premises, and use it, for any of the above purposes … 2. before obtaining the consent of a person to remove evidential material from premises under paragraph (1)(d), the inspector or an assistant must inform the person of the purpose for which the material is required and that the person may refuse consent. a consent of a person is not effective for the purposes of that paragraph unless the consent is voluntary Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 section 154G - the things 1. a search warrant that is in force in relation to premises authorises the executing officer that are authorised or an officer assisting to do any of the following: by a search warrant a) enter the premises; b) search the premises, and any thing on the premises, for the kind of evidential material specified in the warrant, and seize things of that kind found on the premises; c) make copies of the kind of evidential material specified in the warrant found on the premises; d) operate electronic equipment at the premises to see whether the evidential material specified in the warrant is accessible by doing so; - NOTE: see also division 5 (which contains provisions relating to the operation of electronic equipment at the premises) e) take equipment and material onto the premises, and use it, for any of the above purposes … 2) if: a) the executing officer or an officer assisting, in the course of searching for the kind of evidential material specified in the warrant, finds another thing that he or she believes on reasonable grounds to be evidence of: i) an indictable offence against this Act; or … iv) an offence against section 137.1, 137.2, or 149.1 of the Criminal Code that relates to this part; and b) he or she believes on reasonable ground that it is necessary to seize the other thing in order to prevents its concealment, loss or destruction; then he or she may seize that other thing 154L - availability of in executing a search warrant: assistance and use a) the executing officer may obtain such assistance as is necessary and reasonable in the of force in executing circumstances; and a search warrant b) the executing officer, or another inspector who is an officer assisting, may use such force against persons and things as is necessary and reasonable in the circumstances; and ba) a member of the AFP who is an officer assisting may use such force against persons and things as is necessary and reasonable in the circumstances; and c) a person who is not an inspector, but who is an officer assisting, may use such force against things as is necessary and reasonable in the circumstances Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 section 154X - issue of Application for warrant search warrants 1. an inspector may apply to a magistrate for a warrant under this section in relation to premises issue of warrant 2. the magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that: a) there is evidential material on the premises; or b) there may be evidential material on the premises within the next 72 hours NOTE: a magistrate who holds office under a law of a State or Territory may issue a warrant in relation to premises event if those premises are not in that State or Territory 3. however, the magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought. content of warrant 4. the warrant must state: a) a description of the premises to which the warrant relates; and b) the kind of evidential material that is to be searched for under the warrant (including stating the contraventions to which the warrant relates); and c) the name of the inspector who is to be responsible for executing the warrant; and d) whether the warrant may be executed at any time of the day or night or during specified hours of the day or night; and e) the day (not more than one week after the issue of the warrant) on which the warrant ceases to have effect. 154R - answering of 1. if a search warrant in relation to premises is being executed, the executing officer or an questions or officer assisting may: producing evidential a) require a person at the premises to answer questions or produce evidential material to material which the warrant relates; and b) seize the evidential material 2. a person commits an offence if the person fails to comply with a requirement under subsection (1) penalty: 30 penalty units or imprisonment for 12 months, or both 3) an individual is not excused from answering a question or producing evidential material on the ground that the answer, or the production of the material, might tend to incriminate the individual or make the individual liable to a penalty. 4) however, the answer is not admissible in evidence against the individual in any criminal proceedings, other than: a) proceedings for an offence against subsection (2); or b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part. Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Compliance Pyramid Enforcement Powers Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 ACCC Enforcement Powers - cooperation Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 regulator six:fair australian competition and consumer commission - consumer division Australian Consumer Law - contained in schedule 2 of the Competition and Consumer Act 2010 (Cth) - area of the law that offers consumer protections in respect of: - unfair contract terms, covering standard form consumer contracts; - consumer rights when buying goods and services; - product safety; - unsolicited consumer agreements covering door-to-door sales and telephone sales; and - lay-by agreements Consumer General Protections (chapter 2) Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Specific Protections (chapter 3) Why are consumer transactions regulated? - there is inequity in bargaining power between a consumer and business; Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 - consumers lack information and knowledge about products and services; and - consumers have a limited (if any) understanding of the law and their rights - broadly speaking, the role of government intervention and an effective consumer law/policy is to: - encourage competition and consumer confidence in the market; - protect consumers from the ‘unconscionable’ and/or ‘deceptive conduct’ of businesses; and - provide remedies if a consumer suffers loss because of the conduct of businesses or their products Investigatory Powers - enduring priority examples - product safety - vulnerable and disadvantaged consumers - conduct impacting indigenous Australians Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Enforcement of the ACL Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Enforcement Powers Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 regulator seven: worksafe wa/safe work australia What is Occupational Safety and Health (OSH) - physiological needs and well-being of persons engaged in work; the protection of persons from work- related death or trauma; and the rehabilitation and re-training of persons who have suffered work- related trauma - OHS legislation imposes a wide range of duties on employers, establishes workplace arrangements such as the creation of health and safety representatives, and provides for mechanisms for inspections to be carried out - 2 ways the law operates: these approaches differ according to whether they focus on what comes before, or what comes after, a work-related accident - first is compensation (after the accident) - who should pay for persons loss - second is prevention (before the accident) - if an employer is going to pay out damages for an injury incurred by an employee, there is some incentive to prevent the injury from occurring in the first place. - various sources of law in relation to OSH: - Civil: - breach of contract - negligence - breach of statutory duty - Criminal: - OSH Act 1984 (WA) - Harmonised work health and safety legislation (will soonish be adopted in WA) OSH Act - provides fro the promotion, co-ordination, administration and enforcement of OSH in WA - places certain duties of care for safety and health at the workplace on employers, principal/main contractors, sub-contractors, people involved in labour hire, employees, self-employed people, manufacturers, designers, importers and suppliers - it also places emphasis in the duties of care on the prevention of accidents and injury and harm - in addition to the broad duties established by the OSH Act, the legislation is supported by a further tier of statute, commonly referred to as regulations, together with a lower tier of non-statutory codes of practice and guidance notes Safe Work Australia - established by s 5 of the Safe Work Act 2008 (Cth) - the government of each Australian jurisdiction agreed, in the spirit of achieving harmonisation of OHS laws, to establish a commonwealth body to develop, monitor and maintain model OHS legislation - initially created with the primary function of creating a model OHS (WHS) Act and Regulations to be adopted in each Australian jurisdiction. - they achieved this purpose in 2011 with the publication of the ‘model’ laws, which include: - the model WHS Act; - the model WHS regulations; and - model codes of practice Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 - Safe Work Australia Corporate Plan 2019-23, our outcome: - healthier, safer and more productive workplaces through improvements to Australian work health and safety (WHS) and workers’ compensation arrangements. - Safe Work is not responsible for regulating, ie. investigating and enforcing, contraventions of Work Health and Safety Laws in Australia. - the Commonwealth, State and Territory governments are responsible for regulating and enforcing work health and safety in their respective jurisdictions Work Safe WA - responsible for administering and enforcing safety and health laws in WA - Led by the WorkSafe WA Commissioner, appointed under s 9 of the Occupational Safety and Health Act 1984 (WA) - WorkSafe WA adopt a ‘collaborative approach with industry, employers and the workforce’ focused on: - influencing the commercial environment in WA to ensure the achievement of best safety and health outcomes in the workplace - empowering business and community partners to lead in the reduction of workplace hazards and associated risks to health - developing a modern, world class regulatory environment; - strengthening organisational capacity to assist business operators and workers to manage OSH effectively. - targets certain areas with inspection programs in order to prevent incidents. these areas generally have high rates of injury and/or deaths - priorities: - mobile plants; - electricity; - work at heights; - hazardous substances OSH Act 1984 (WA) Downloaded by Justin Ambalavaner ([email protected])  lOMoARcPSD|35672371 Resolving Health and Safety Issues - employers have a positive obligation to resolve safety and health issues that arise in the workplace (s 24) - when a safety and health issue arises, employers must attempt to resolve the dispute in accordance with either the: - agreed workplace resolution procedure; or - if no procedure is agreed, the default procedure outlined in the OSH Regulations 1996 (WA), reg 2.6. Downloaded by Justin Ambalavaner (ambal