Manage Legal Requirements for Business Compliance PDF

Manage legal requirements for business compliance D1.HML.CL10.05 D1.HRM.CL9.14 D2.TRM.CL9.07 Trainee Manual  Manage legal requirements for business compliance D...

Manage legal requirements for business compliance D1.HML.CL10.05 D1.HRM.CL9.14 D2.TRM.CL9.07 Trainee Manual  Manage legal requirements for business compliance D1.HML.CL10.05 D1.HRM.CL9.14 D2.TRM.CL9.07 Trainee Manual Project Base William Angliss Institute of TAFE 555 La Trobe Street Melbourne 3000 Victoria Telephone: (03) 9606 2111 Facsimile: (03) 9670 1330 Acknowledgements Project Director: Wayne Crosbie Project Manager Jim Irwin Chief Writer: Alan Hickman Subject Writer: Nick Hyland Editor: Jim Irwin DTP/Production: Daniel Chee, Mai Vu, Cindy Curran The Association of Southeast Asian Nations (ASEAN) was established on 8 August 1967. The Member States of the Association are Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand and Viet Nam. The ASEAN Secretariat is based in Jakarta, Indonesia. General Information on ASEAN appears online at the ASEAN Website: www.asean.org. All text is produced by William Angliss Institute of TAFE for the ASEAN Project on “Toolbox Development for Tourism Labour Divisions for Travel Agencies and Tour Operations”. This publication is supported by the Australian Government’s aid program through the ASEAN-Australia Development Cooperation Program Phase II (AADCP II). Copyright: Association of Southeast Asian Nations (ASEAN) 2015. All rights reserved. Disclaimer Every effort has been made to ensure that this publication is free from errors or omissions. However, you should conduct your own enquiries and seek professional advice before relying on any fact, statement or matter contained in this book. The ASEAN Secretariat and William Angliss Institute of TAFE are not responsible for any injury, loss or damage as a result of material included or omitted from this course. Information in this module is current at the time of publication. Time of publication is indicated in the date stamp at the bottom of each page. Some images appearing in this resource have been purchased from stock photography suppliers Shutterstock and iStockphoto and other third party copyright owners and as such are non-transferable and non-exclusive. Clip arts, font images and illustrations used are from the Microsoft Office Clip Art and Media Library. Some images have been provided by and are the property of William Angliss Institute. Additional images have been sourced from Flickr and SXC and are used under Creative Commons licence: http://creativecommons.org/licenses/by/2.0/deed.en File name: TM_Manage_legal_req_for_bus_comp_150115 Table of contents Introduction to trainee manual............................................................................................... 1 Unit descriptor....................................................................................................................... 3 Assessment matrix................................................................................................................ 5 Glossary................................................................................................................................ 7 Element 1: Research the legal information required for business compliance..................... 11 Element 2: Ensure compliance with legal requirements...................................................... 85 Element 3: Update legal knowledge.................................................................................. 123 Presentation of written work.............................................................................................. 131 Recommended reading..................................................................................................... 133 Trainee evaluation sheet................................................................................................... 135 Trainee self-assessment checklist..................................................................................... 137 © ASEAN 2015 Trainee Manual Manage legal requirements for business compliance © ASEAN 2015 Trainee Manual Manage legal requirements for business compliance  Introduction to trainee manual Introduction to trainee manual To the Trainee Congratulations on joining this course. This Trainee Manual is one part of a ‘toolbox’ which is a resource provided to trainees, trainers and assessors to help you become competent in various areas of your work. The ‘toolbox’ consists of three elements:  A Trainee Manual for you to read and study at home or in class  A Trainer Guide with Power Point slides to help your Trainer explain the content of the training material and provide class activities to help with practice  An Assessment Manual which provides your Assessor with oral and written questions and other assessment tasks to establish whether or not you have achieved competency. The first thing you may notice is that this training program and the information you find in the Trainee Manual seems different to the textbooks you have used previously. This is because the method of instruction and examination is different. The method used is called Competency based training (CBT) and Competency based assessment (CBA). CBT and CBA is the training and assessment system chosen by ASEAN (Association of South-East Asian Nations) to train people to work in the tourism and hospitality industry throughout all the ASEAN member states. What is the CBT and CBA system and why has it been adopted by ASEAN? CBT is a way of training that concentrates on what a worker can do or is required to do at work. The aim is of the training is to enable trainees to perform tasks and duties at a standard expected by employers. CBT seeks to develop the skills, knowledge and attitudes (or recognise the ones the trainee already possesses) to achieve the required competency standard. ASEAN has adopted the CBT/CBA training system as it is able to produce the type of worker that industry is looking for and this therefore increases trainees chances of obtaining employment. CBA involves collecting evidence and making a judgement of the extent to which a worker can perform his/her duties at the required competency standard. Where a trainee can already demonstrate a degree of competency, either due to prior training or work experience, a process of ‘Recognition of Prior Learning’ (RPL) is available to trainees to recognise this. Please speak to your trainer about RPL if you think this applies to you. What is a competency standard? Competency standards are descriptions of the skills and knowledge required to perform a task or activity at the level of a required standard. 242 competency standards for the tourism and hospitality industries throughout the ASEAN region have been developed to cover all the knowledge, skills and attitudes required to work in the following occupational areas:  Housekeeping  Food Production  Food and Beverage Service  Front Office © ASEAN 2015 Trainee Manual 1 Manage legal requirements for business compliance Introduction to trainee manual  Travel Agencies  Tour Operations. All of these competency standards are available for you to look at. In fact you will find a summary of each one at the beginning of each Trainee Manual under the heading ‘Unit Descriptor’. The unit descriptor describes the content of the unit you will be studying in the Trainee Manual and provides a table of contents which are divided up into ‘Elements’ and ‘Performance Criteria”. An element is a description of one aspect of what has to be achieved in the workplace. The ‘Performance Criteria’ below each element details the level of performance that needs to be demonstrated to be declared competent. There are other components of the competency standard:  Unit Title: statement about what is to be done in the workplace  Unit Number: unique number identifying the particular competency  Nominal hours: number of classroom or practical hours usually needed to complete the competency. We call them ‘nominal’ hours because they can vary e.g. sometimes it will take an individual less time to complete a unit of competency because he/she has prior knowledge or work experience in that area. The final heading you will see before you start reading the Trainee Manual is the ‘Assessment Matrix’. Competency based assessment requires trainees to be assessed in at least 2 – 3 different ways, one of which must be practical. This section outlines three ways assessment can be carried out and includes work projects, written questions and oral questions. The matrix is designed to show you which performance criteria will be assessed and how they will be assessed. Your trainer and/or assessor may also use other assessment methods including ‘Observation Checklist’ and ‘Third Party Statement’. An observation checklist is a way of recording how you perform at work and a third party statement is a statement by a supervisor or employer about the degree of competence they believe you have achieved. This can be based on observing your workplace performance, inspecting your work or gaining feedback from fellow workers. Your trainer and/or assessor may use other methods to assess you such as:  Journals  Oral presentations  Role plays  Log books  Group projects  Practical demonstrations. Remember your trainer is there to help you succeed and become competent. Please feel free to ask him or her for more explanation of what you have just read and of what is expected from you and best wishes for your future studies and future career in tourism and hospitality. © ASEAN 2015 2 Trainee Manual Manage legal requirements for business compliance  Unit descriptor Unit descriptor Manage legal requirements for business compliance This unit deals with the skills and knowledge required to Manage legal requirements for business compliancein a range of settings within the travel industries workplace context. Unit Code: D1.HML.CL10.05 D1.HRM.CL9.14 D2.TRM.CL9.07 Nominal Hours: 90 Element 1:Research the legal information required for business compliance Performance Criteria 1.1 Identify sources of legal information and advice correctly 1.2 Access, select and analyse information for relevance to the business 1.3 Record and distribute information appropriately Element 2: Ensure compliance with legal requirements Performance Criteria 2.1 Assess the need for legal advice and seek assistance where appropriate 2.2 Share information with appropriate work colleagues in a timely manner 2.3 Organise information updates and training for colleagues and staff where appropriate 2.4 Establish and monitor workplace systems and procedures to ensure compliance with legal requirements 2.5 Identify aspects of operations which may infringe licensing laws and solicit advice on how to develop and implement modifications Element 3:Update legal knowledge Performance Criteria 3.1 Use informal and formal research to update the legal knowledge required for business compliance 3.2 Share updated knowledge with colleagues and incorporate into workplace planning and operations © ASEAN 2015 Trainee Manual 3 Manage legal requirements for business compliance Unit descriptor © ASEAN 2015 4 Trainee Manual Manage legal requirements for business compliance  Assessment matrix Assessment matrix Showing mapping of Performance Criteria against Work Projects, Written Questions and Oral Questions The Assessment Matrix indicates three of the most common assessment activities your Assessor may use to assess your understanding of the content of this manual and your performance - Work Projects, Written Questions and Oral Questions. It also indicates where you can find the subject content related to these assessment activities in the Trainee Manual (i.e. under which element or performance criteria). As explained in the Introduction, however, the assessors are free to choose which assessment activities are most suitable to best capture evidence of competency as they deem appropriate for individual students. Work Written Oral Projects Questions Questions Element 1: Research the legal information required for business compliance 1.1 Identify sources of legal information and 1.1 1,2 1 advice correctly 1.2 Access, select and analyse information for 1.2 3,4,5,6,7,8,9 2 relevance to the business 1.3 Record and distribute information appropriately 1.3 10 3 Element 2: Ensure compliance with legal requirements 2.1 Assess the need for legal advice and seek 2.1 11 4 assistance where appropriate 2.2 Share information with appropriate work 2.2 12 5 colleagues in a timely manner 2.3 Organise information updates and training for 2.3 13 6 colleagues and staff where appropriate 2.4 Establish and monitor workplace systems and 2.4 14,15 7 procedures to ensure compliance with legal requirements 2.5 Identify aspects of operations which may 2.5 16 8 infringe licensing laws and solicit advice on how to develop and implement modifications Element 3: Update legal knowledge 3.1 Use informal and formal research to update 3.1 17,18 9 the legal knowledge required for business compliance 3.2 Share updated knowledge with colleagues and 3.2 19,20 10 incorporate into workplace planning and operations © ASEAN 2015 Trainee Manual 5 Manage legal requirements for business compliance Assessment matrix © ASEAN 2015 6 Trainee Manual Manage legal requirements for business compliance  Glossary Glossary Term Explanation Statute enacted as primary legislation by a national Act of Parliament or sub-national parliament. A person or organization having political or Authority administrative power and control A measurement of the quality of an organization's policies, products, programs, strategies, etc., and Benchmarking their comparison with standard measurements, or similar measurements of its peers Caveat emptor 'Let the buyer beware’ A code of practice is a set of written rules which Codes of Practice explains how people working in a particular profession should behave Common law Law which is not the result of legislation Compliance Behaviour in accordance with legislation Consumer protection is a group of laws and organizations designed to ensure the rights of Consumer protection consumers as well as fair trade, competition and accurate information in the marketplace. Failure of an injured party to act prudently, Contributory Negligence considered to be a contributory factor in the injury which they have suffered. The exclusive and assignable legal right, given to the originator for a fixed number of years, to print, Copyright publish, perform, film, or record literary, artistic, or musical material. Civil law Disputes between individuals Criminal law Issues between the government and an individual Treating someone unfairly because of the Discrimination characteristics that apply, or are thought to apply, to persons of a particular group Business to take reasonable care to ensure that Duty of Care ‘foreseeable harm’ does not occur to people © ASEAN 2015 Trainee Manual 7 Manage legal requirements for business compliance Glossary Term Explanation EEO Equal Employment Opportunity Moral principles that govern a person's behaviour or the Ethics conducting of an activity FAQ Frequently Asked Questions GST Goods and Services Tax OHS Occupational Health and Safety Legal glossaries Assist in interpreting and defining legal words and terms Authorize the use, performance, or release of License (something). Liquor Alcohol The system of rules which a particular country or community recognizes as regulating the actions of its Law members and which it may enforce by the imposition of penalties Source of law which consists in the declaration of legal Legislation rules by a competent authority Officials Representative of an organisation An official document giving someone authorization to do Permit something A statement of intent, principle or direction regarding a Policy specific area of activity within the organisation Statement of tasks and associated methods for the Procedures conduct of specific work activities QA Quality Assurance Principle or rule, with or without the coercive power of Regulations law, employed in controlling, directing, or managing an activity, organization, or system A sexual favours or unwanted conduct of a sexual Sexual harassment nature SOP Standard Operating Procedures A person with an interest or concern in something, Stakeholder especially a business © ASEAN 2015 8 Trainee Manual Manage legal requirements for business compliance  Glossary Term Explanation Statute A written law passed by a legislative body Any proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw or other instrument made Subsidiary Legislation under or by virtue of any Ordinance and having legislative effect Regular payment made into a fund by an employee Superannuation towards a future pension Any person who freely travels from his normal place of residence to other place for temporary period with the Tourist objective other than to carry on his occupation or to earn income Industry which provides or gives services in return for Tourist industry remuneration, in connection with tourism within and outside the country Tourist industry operator Person who is engaging in tourist industry A body of rules or principles of action which deals with the regulation, authority, relations and obedience among Tourism law members of a society involved in tourist travel and accommodation. Unconscionable conduct Conduct does not conform to the dictates of conscience © ASEAN 2015 Trainee Manual 9 Manage legal requirements for business compliance Glossary © ASEAN 2015 10 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Element 1: Research the legal information required for business compliance 1.1 Identify sources of legal information and advice correctly Introduction The notes in this Learner Guide do not constitute professional legal advice and are provided as an overview of legal compliance requirements. They do not contain specific information relevant to individual countries, cases or needs. Given that the ASEAN community is made up of 10 different countries, all with their own specific laws and regulations, the common principles of law and legal compliance will be discussed. As you encounter a need to comply with legal requirements specific to your country you are advised to:  Contact the relevant government authority or agency for direction, advice and assistance  Seek professional legal advice. As an overview of various compliance requirements this subject does not provide comprehensive and all- embracing information. There are many, many pieces of legislation, licences, permits, fees etc. that will apply. They will differ from country to country and to different types of tourism and travel related businesses. As each business is unique it is impossible to predict what individual personal or business need will be. In addition, legislation, licences and fees etc. are always subject to change over time so it is essential you develop knowledge of where to go to obtain current information and who to speak to. The intention of these notes is to provide a direction for you to take to gain the necessaryadvice and to give you a basic understanding of your general legal obligations as well as an appreciation of where to go to obtain the information you need. © ASEAN 2015 Trainee Manual 11 Manage legal requirements for business compliance Research the legal information required for business compliance Definition of a tourism industry, operator and tourist The “tourist industry” means the industry which provides or gives services in return for remuneration, in connection with tourism within and outside the country and includes:  Tour business  Tourist hotels business  Business relating to restaurants, service places and resorts for tourists  Business relating to the sale of souvenirs or other goods for tourists  Business related to sports for tourists  Exhibitions, shows, trade fairs, promotional advertisement or any other activities with the aim of encouraging and promoting tourism. A “tourist industry operator” means a person who is engaging in tourist industry. A “tourist” means any person who freely travels from his normal place of residence to other place for temporary period with the objective other than to carry on his occupation or to earn income. Tourism Law Before we explore the different laws impacting on the travel and tourism industry, firstly let’s look at the concept of 'Tourism Law'. Tourism Law is commonly defined as a body of rules or principles of action which deals with the regulation, authority, relations and obedience among members of a society involved in tourist travel and accommodation. It includes persons travelling from place to place for pleasure (tourist), and business establishments or persons engaged in the occupation of providing various services for tourists. Therefore tourism laws deal with the various laws governing tourism in different ASEAN countries. It includes various government agencies, both at a national and regional level. The law explores current situations existing in the tourism and travel industry which maybe analysed, interpreted and resolved applying existing jurisprudence and legislation. It is important to notes that laws change, to reflect changes in the industry, on a regular basis. © ASEAN 2015 12 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Types of 'laws' Before we look at the different types of legal requirements that businesses must comply with, it is important to understand the different types of laws that govern business operations and activities. Laws are legally binding requirements established under legislation / Acts. In addition to laws, there are many other 'rules' or 'conditions' set down by governments, local councils and industry authorities which not be legal, but advise you to adhere to in addition to legislative requirements. Therefore for the purpose of this manual, the term 'law' will be used to refer to both legally and non-legally binding requirements. These general rules or principles are aimed providing guidelines in how to conduct business. Common legal terminology Following are some commonly used terminology and explanations that are used through this manual. Law The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. Legislation Legislation is that source of law which consists in the declaration of legal rules by a competent authority. Legislature is the direct source of law. Legislature frames new laws, amends the old laws and cancels existing laws in all countries. In modern times this is the most important source of law making. The term legislature means any form of law making. Its scope has now been restricted to a particular form of law making. It not only creates new rules of law it also sweeps away existing inconvenient rules. Another source of law is judge-made law or case law. Common law This is law which is not the result of legislation. It is law made by the decisions of judges over time. It is a set of rules developed by judges and these rules are based on ‘precedence’ meaning the judge must follow previous binding decisions when deciding a case. If a judge does not follow precedence then the decision is not legally binding. Common law looks at ‘fault’ and damages will be awarded based on the degree of fault, age of the victim and the extent of the pain and suffering. © ASEAN 2015 Trainee Manual 13 Manage legal requirements for business compliance Research the legal information required for business compliance Act of Parliament An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. Regulations Principle or rule, with or without the coercive power of law, employed in controlling, directing, or managing an activity, organization, or system. Regulations are enforced usually by a regulatory agency formed or mandated to carry out the purpose or provisions of a legislation. Also called regulatory requirement Codes of Practice Where codes of practice are established under legislation, these have legal weight. Compliance codes support and supplement the intent of legislation. They provide advice, information and direction on how businesses can achieve compliance with the legislation. Compliance with these codes is not mandatory. You may elect to comply with your obligations in other ways other than as set out in the codes, however in practical terms, compliance with codes equates to compliance with the Act or the regulations. If a venue breaches these codes, they cannot be penalized at law. It is up to the industry bodies to take action on the breach and bring the offending property back into line by the use of explanations or sanctions. The key is to research the legal standing of any Code of Practice you have to deal with to determine the legal standing of the code. Ethical requirements Ethical requirements relate to issues about which a personal judgement has to be made regarding the way the business elects to conduct its business. In some cases, the ethical behaviour of a business may be governed by legislation, and in other cases it is purely up to the individual operator to determine what is acceptable as ethical behaviour and what is not. Ethical requirements will be discussed in more detail in Section 2.4 Civil and criminal law Civil law deals with disputes between individuals. An example would be where a staff member sued you for negligence in failing to protect their safety while at work. It provides for compensation through the awarding of damages or injunctions. Criminal law deals with issues between the government and an individual. An example is failure to comply with the requirements of an Act. This law provides for punishment of the wrong-doer such as via fines and gaol. © ASEAN 2015 14 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Identify sources of legal information Before you can start to research different types of regulations that may impact on your organisation, it is important to identify the different sources of information that you can utilise to gather information relating to legal compliance. Sources of legal information may include:  Internet – the Internet provides an excellent starting point for research in terms of basic compliance requirements however it is rarely the case the online research will ever fully answer the specifics of questions to be answered in your context  The best starting point for gaining an overview of all relevant legislation is to look up 'Acts, Regulations & Subsidiary Legislation websites in your country  For example in Singapore the most appropriate site is http://statutes.agc.gov.sg/aol/home.w3p  Industry or employer associations - they represent the interests of their industry sectors – they engage in communication and negotiation on behalf of their members with unions and the government. They frequently also speak to the media as representatives of their industry sectors.  Government agencies - these may the on a national or local basis  Reference books  Media  Industry journals  Customers and suppliers  Legal experts  Informal/formal research  Legal glossaries - There are various online glossaries available to assist in interpreting and defining legal words and terms. They are often referred to as ‘Dictionaries’ or ‘Law dictionaries’. Many contain links to related legal web pages such as links to legislation, overviews of the legal system and sample forms  ‘Frequently Asked Questions - You are advised to check all the sites you visit for an ‘FAQ’ section and spend time becoming familiar with the nature of the information provided in each of these sections.  Register online - You are also advised to check each site to determine if there is an online facility through which you can register to receive updates, newsletters, alerts, press releases or other electronic advice. Where such a facility exists, you should register to receive this information. © ASEAN 2015 Trainee Manual 15 Manage legal requirements for business compliance Research the legal information required for business compliance Activity 1 - Research 'Acts, Regulations & Subsidiary Legislation websites in your country Please look up and gather information relating to all relevant legal requirements that may affect a tourism business including:  http://statutes.agc.gov.sg/aol/home.w3p (Singapore example)  'Acts, Regulations & Subsidiary Legislation websites in your country. 1. What are areas of legal requirements that impact on a tourism business? ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ 2. What are examples of legislation that must be complied with? ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ © ASEAN 2015 16 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Activity 2 - Sources of legal information For a tourism organisation, you are to identify the:  Different businesses within each source of information  Examples of information you can obtain from that source CATEGORY OF SOURCE BUSINESS EXAMPLE OF INFORMATION Internet Industry or employer associations Government agencies - these may the on a national or local basis © ASEAN 2015 Trainee Manual 17 Manage legal requirements for business compliance Research the legal information required for business compliance CATEGORY OF SOURCE BUSINESS EXAMPLE OF INFORMATION Reference books Media Industry journals Customers and suppliers © ASEAN 2015 18 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance CATEGORY OF SOURCE BUSINESS EXAMPLE OF INFORMATION Legal experts Informal/formal research Legal glossaries © ASEAN 2015 Trainee Manual 19 Manage legal requirements for business compliance Research the legal information required for business compliance Steps in determining how regulations apply to the business The first stage is to obtain the relevant legislation and then ways to determine how regulations apply to business include: Reading and examining regulations Many operators go to the trouble of obtaining the required legislation but take things no further. They never read the information. It is essential you read the relevant information and legislation and examine it so you have a full and proper understanding of what is required. Make notes about what is required, or what applies to your particular business and then make sure these aspects are followed-up and actioned Taking training courses In some circumstances you may be able or prefer to enrol in a formal training course, or attend a specific industry course offered by an industry association. These courses are often targeted specifically to industry sectors and conducted by suitably qualified, trained and experienced industry personnel who are well-placed to make what initially seems a complex subject relatively simple to both understand and implement. These presenters have extensive industry-specific knowledge making them evaluable reference point. Contacting the appropriate authority Every authority has a public education role and part of their job is to assist businesses to understand and comply with their legal obligations. Never be ‘afraid’ to contact these authorities to ask for clarification, advice and assistance with compliance. The officials in these authorities are trained in assisting businesses and their experiences with other businesses gives them a wealth of experience they can draw on to help you. Make it standard practice to make notes of these conversations and especially capture the name of the person you spoke with, and record the time and date of the conversation. This will be discusses in more detail in the next section. © ASEAN 2015 20 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Meeting with local officials Local officials must be regarded as your friends rather than your enemies. Officials generally have a role to ‘assist, advise and educate’ so you should never be afraid of contacting them for advice. You should also be ready to invite them into your premises so they can view your operations and make specific recommendations based on your actual operating conditions. Meeting with local officials is a better option than dealing with a ‘head office’ official as your local official will have not only local knowledge, but will likely be the person who formally inspects your premises and who has the discretionary power about whether or not to charge you with an offence. Where this official is aware you are or have been trying to comply they are less likely to breach you, often opting to issue a verbal warning instead. Contacting authorities Where you plan starting a new business, you must contact the authorities and your business advisors and legal advisors to get their advice and direction. It is never advisable to rely solely on your own research. Where you work for an existing and established business, you should follow what they are already doing and seek internal advice from management or head office when concerns arise or when you are unsure about your compliance obligations. The basic advice in relation to identifying the regulations which apply to your business in terms of compliance issues are to speak to the agencies involved and get their advice about what applies. You may also contact an industry association for advice, do an Internet search or speak to professional advisers. You may find it difficult to find what you are looking for on the Internet and there is also potential confusion about ‘what are regulations’. Contacting relevant authorities Once you have identified the relevant authorities you may have in relation to your individual legal compliance issues, you should then proceed to obtain legal information. You always have the choice of contacting your own professional advisor, either a legal advisor or a peak industry body to which you belong, or may also elect to speak to those people who are part of your network of contacts. The options for obtaining clarification about questions from regulatory authorities include:  Visiting their website  Emailing or telephoning contacts  Visiting the office of the authority in person  Checking their online FAQ section. © ASEAN 2015 Trainee Manual 21 Manage legal requirements for business compliance Research the legal information required for business compliance Visiting their website This is the most common and effective starting point as most authorities will provide a range of helpful information including but not limited to:  Names and contact details of key personnel  Concise information about legislative requirements  Updated information  Links to appropriate brochures, compliance checklists or information sheets  Links to documents required as part of submission process  Details of submission or compliance processes. Emailing the authority Authorities provide email addresses enabling online questions to be asked and in some instances there can be quite specific information provided to assist you directing your question to the right person or department. In other cases, there is just one ‘General’ email address for Help. The limitations of emailing questions include:  The communication is one-way, meaning the authority can only respond to the information it is provided or the question it is asked even though they may need more detail to provide a better answer  There may be a lengthy response time especially where the authority is busy or the person you wish to communicate with is away. The response time often reflects how closely the email in-box is monitored. Telephoning the authority Phoning the authority and asking to speak to an appropriate officer is a much better option than email as this approach enables follow-up questions to be asked and allows the officer to gain a fuller understanding of the specifics of your particular situation Before phoning you should make sure you have all your questions prepared, and have all information that might be needed in front of you. Think through the questions you need to ask and try to determine what support information you might be asked to provide to assist the authority give you a better and more accurate advice. When seeking over-the-phone advice always:  Obtain the name of the person you are speaking with  Record the time and date of the call  Take notes about the advice or clarification you are given  Realise the officers who give you advice or information over the phone and the authority they represent, are not bound by the advice they give. This means if you follow their advice and you are subsequently found to be in breach of requirements you cannot rely on the fact you were given advice by them, and acted on that advice, as a defence to the charge. This applies to all information provided, in any form, by authorities. © ASEAN 2015 22 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Visiting the agency in person Where time allows, this is the most preferable option. Certainly make a phone call to make an appointment where the matter is complex, otherwise simply call into the office during their opening hours as advertised on their internet site. When speaking to an officer face-to-face, tips include:  Take notes about the advice given  Record the officer’s details and the date and time of the meeting  Obtain whatever brochures and hard copy information available to assist you. Using FAQs In some cases you may be able to get the clarification or information you are after by having a look at the FAQ section on the authority’s website but be aware the information provided on these sites is not legal advice, and is mainly general in nature as opposed to being specific to what may be the individual needs of your business. FAQ information is more a guide or an indication rather than specific information for your individual need. Receive a copy of regulations Once you have identified the regulations you believe are relevant to you, the basic two requirements are you must:  Obtain a copy of each regulation – this may be achieved via the Internet or direct from the relevant authority.  You may be able to telephone and arrange for a copy to be sent to you or you may have to contact them in person to buy one. © ASEAN 2015 Trainee Manual 23 Manage legal requirements for business compliance Research the legal information required for business compliance Activity 3- Contacting authorities Please identify 3 strategies you would use to contact authorities to seek legal information AUTHORITY CONTACT DETAILS / METHOD OF CONTACT INFORMATION PERSON REQUIRED © ASEAN 2015 24 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance 1.2 Access, select and analyse information for relevance to the business Introduction It is essential you apply all regulations and legislation applicable to you to the business you are operating. This means it is not sufficient to merely obtain them, read them and understand them. You must implement their mandated requirements. As mentioned in the previous section, this manual will look at common legal requirements that apply in most ASEAN countries. Naturally each country will have their own specific laws and regulations that must be followed In practice, there are likely to be numerous pieces of legislation you may never need to know about while there may be other pieces of legislation that you will need to know about and comply with on a daily basis. It is easy to see, given the wide range of legislation with which you may have to comply, why most businesses engage professional legal assistance to help them navigate their way through what is required. Determining relevance of legal requirements There a wide variety of legal requirements you may be required to comply with. As you can see below there are numerous pieces of legislation with which you may need to become familiar depending on:  The type of business you intend operation within the tourism industry  Where it is to be physically located  The products and services to be sold  Your immediate need  Possible future need or intentions  Your workplace role and responsibilities.  Potential problems, charges or offence you may be facing  The changing nature of the tourism industry. © ASEAN 2015 Trainee Manual 25 Manage legal requirements for business compliance Research the legal information required for business compliance Activity 4 – Determine relevance of legal requirements You are required to select a tourism business in which you will base your legal requirements on. As mentioned above, in order to determine relevance of legal requirements it is first essential to determine the type and purpose of the business in which you are operating. Based on your tourism business, identify the following: BUSINESS CHARACTERISTICS ANSWERS The type of business you intend operation within the tourism industry Where it is to be physically located The products and services to be sold Your immediate need/s © ASEAN 2015 26 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance BUSINESS CHARACTERISTICS ANSWERS Possible future need or intentions Your workplace role and responsibilities Potential problems, charges or offence you may be facing The changing nature of the tourism industry © ASEAN 2015 Trainee Manual 27 Manage legal requirements for business compliance Research the legal information required for business compliance General areas to which legal requirements apply The industry has numerous legal compliance requirements covered by an assortment of legislation. These apply to areas including, but not limited to:  Business establishment  Business operation  Licensing  Consumer protection and trade practices  Duty of Care  Fair trading legislation  Food  Liquor  Tobacco  Gaming  Employment relations  Employment of foreign workers  Superannuation / Pension Funds  Contributory Negligence and Personal Injuries legislation  Contracts  Income & company taxation  Goods and Services taxation  Financial recording and management  Anti-corruption  Copyright, patent, design and trademark protection, trade secrets Occupational health and safety (OHS)  Fire Safety  Environmental legislation  Insurance requirements. These areas will be explored in more detail in this section. Subsidiary legislation When obtaining legislation relevant to your needs you must also enquire as to whether or not there is ‘subsidiary legislation ‘such as Regulations, Rules, Notifications and Amendments established under the primary legislation. © ASEAN 2015 28 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Currency of legislation Legislation changes over time. Existing Acts and subsidiary legislation may be revoked, or amended. New legislation may be introduced. Always make sure the legislation you are reading is current. Ask the relevant Ministry, or checkits status online Business establishment Registering a company When registering a company there are a number of common steps that must be followed including, but not limited to:  Decide on business structure  Choose company name  Determine the legal frameworks in which your business will operate  Obtain necessary consents from members, directors and secretaries  Complete and lodge the required application form  Obtain commemorative record of registration (optional)  Identify your legal obligations. Business structure The first issue that needs to be considered is the type of business structure that is most suitable. The most common types of business structure are:  Sole traders  Partnerships  Proprietary Limited Companies (private companies)  Trusts  Public companies  Incorporated association.LC001A De © ASEAN 2015 Trainee Manual 29 Manage legal requirements for business compliance Research the legal information required for business compliance Activity 5 – Determine appropriate business structure Please provide answers to the following questions: 1. Explain each business structure listed above and the types of business activities most suited to each. ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ 2. What are the advantages and disadvantages of each form of business structure? ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ 3. What factors will determine the type of business structure you should use? ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ © ASEAN 2015 30 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance The business name All countries require that all businesses that trade under a business name and must register that name. The exception is a person who carries on business under their own personal name with no other words added to it. The business name suggested is checked against a Company Names Register to ensure that it is not too similar to the name of any other trading entity.TXGLC001A Develop and C001A Activity 6 – Determine business name Please provide answers to the following questions: 1. Why is it important to have a business name? ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ 2. Why should the business name be not too similar to that used by another firm? ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ 3. How can register a business name? ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ 4. Who can register a business name? ____________________________________________________________________ ____________________________________________________________________ 5. Under what circumstances will the registration of a business name be refused? ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ © ASEAN 2015 Trainee Manual 31 Manage legal requirements for business compliance Research the legal information required for business compliance License and permits Part of the registration process is identification of the necessary licences and permits needed to operate the business. In all countries there will be licensing requirements that must be met relating to:  The business itself  The management and staff employed update the legal knowledge. Activity 7 – Determine licensing requirements Please provide answers to the following questions: 1. What licensing requirements are required for the business to operate? ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ 2. What licensing requirements must management and staff have to work in a tourism enterprise? ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ © ASEAN 2015 32 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Owner’s responsibilities after registration General legal requirements require the owner of a Business Name to:  Commence business under the Business Name within 2 months of its registration  Carry on business under the registered Business Name at all times, as a name cannot be registered to hold it for future use  Display a sign showing the registered business name in a conspicuous position outside the Registered and Business Addresses and on every Business Card, letter, invoice, receipt etc. issued in connection with your business  Use the correct registered business name at all times, do not abbreviate or alter the name. Register a new name if necessary  Notify any change to details e.g. addresses, owners, cessation of business etc. on aprescribed form within one month of the date of the change or a fee may be incurred.  Ensure current registration. Activity 8 – Determine legal requirements for establishing a tourism business You are required to identify the legal requirements for establishing a new tourism business in your country. REQUIREMENTS ACTIVITIES TO BE UNDERTAKEN TO MEET REQUIREMENTS © ASEAN 2015 Trainee Manual 33 Manage legal requirements for business compliance Research the legal information required for business compliance Consumer protection and trade practices Consumer protection laws deal with laws that have been developed to regulate the marketplace, in particular the commercial dealings between consumers and sellers or manufacturers. The major objective of consumer protection law is to strengthen the position of the buyer in the marketplace in everyday transactions for goods and services. Common law Underpinning this area of common law is the principle of caveat emptor which means 'let the buyer beware’. In a fairly simple marketplace where consumers could see, touch and often taste the product prior to purchase, the seller took no responsibility for the quality or suitability of the goods purchased. Today, however, the manufacturing process is far more sophisticated, the range of goods more diverse and complex and the seller is not always the person responsible for the production of the goods. It is therefore more difficult for consumers to protect themselves and be compensated at common law for goods and services that are defective. Activity 9 – Principle of 'Caveat Emptor' You are required to answer the following questions: 1. Explain the principle and importance of ‘Caveat Emptor'. ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ 2. How relevant do you think it is in today’s marketplace? ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ © ASEAN 2015 34 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Key consumer legislation Goods Act This Act defines a contract of sale as a contract by which the seller transfers or agrees to transfer property in the goods to a buyer for a money consideration called a price. For the purpose of the legislation, ‘goods’ include all personal property except ‘choses in action’ consisting of intangible things like shares or interests in property and money. The provision of services is also not covered. Fair Trading Act Fair Trading legislation is designed to increase protection for consumers and traders and provide a basis for more honest business dealings. In contrast to Sale of Goods legislation, the Fair Trading Act does not rely on the existence of a contractual relationship. This means that employees, agents and independent contractors fall within the ambit of the Act, together with any intermediary who makes claims or representations or provides false information to consumers Fair trading legislation places obligations on businesses to:  Avoid misleading and deceptive contact  Not to use unfair consumer contracts  Avoid unconscionable conduct  Issue receipts and itemised bills. The legislation also makes provisions regarding:  Implied contractual conditions involved in a sales transaction  Refunds  Lay-bys  Advertising. A Fair Trading Act generally prohibits misleading and deceptive conduct and seeks to control certain business practices. Its main areas of control are: False representations or statements in relation to goods and services  Conduct likely to mislead a person seeking employment  Offering gifts and prizes with an intention of not providing them  Participation in and promotion of pyramid selling schemes  Seeking payment for unsolicited goods or services  Advertising specially priced goods and services that a person does not intend to supply at that price (bait advertising). The Act also prohibits ‘unconscionable conduct’ against consumers. © ASEAN 2015 Trainee Manual 35 Manage legal requirements for business compliance Research the legal information required for business compliance Trade Practices Act The major aim of the Trade Practices legislation is to regulate business and trade practices, generally those that are considered to be anti-competitive. The legislation also incorporates the implied conditions contained in the Sale of Goods legislation and covers the provision of services. Unconscionable Conduct Unconscionable conduct is identified as “A corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods and services to a person, engage in conduct that is, in all the circumstances, unconscionable.” The Act does not define ‘unconscionable’ but rather lists some factors to be considered:  Relative bargaining positions of the parties  The existence of undue influence or pressure  The ability of the consumer to understand the paperwork concerned with the deal. The contract in question must be a consumer contract and restricted to the supply of goods and services for personal or domestic use. It does not cover goods bought for re-supply or to be used in the consumer’s business. The legislation normally covers the following areas:  False representations made in conjunction with the supply of goods and services  Conduct that might mislead the public with respect to the manufacturing process concerning the characteristics, suitability or quality of goods  False representations in conjunction with the sale of land  Offering goods or prizes and accepting payment for the same without the intention to provide them  Bait advertising  Pyramid selling  Referral selling  Unsolicited credit cards  Supplying goods and services which do not comply with product information or safety standards  Demanding payment for unsolicited goods. Legislation also identifies conditions and warranties that must be present in all consumer contracts. The most common offences that are committed under the Trade Practices Act concern:  False or misleading representations concerning price  Unconscionable conduct e.g. where a company takes advantage of someone who may have a disability  Passing off  Misleading or deceptive conduct. © ASEAN 2015 36 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Duty of Care Legislation notwithstanding, employers owe a common law ‘duty of care’ to their employees and to customers. Indeed, anyone who enters the business premises is covered by this concept. Duty of care provisions require a business to take reasonable care to ensure that ‘foreseeable harm’ does not occur to people. Where harm, injury or damage actually results from a business including the actions of a staff member, that is failing to exercise reasonable care to address foreseeable harm. If a link can be proven between the negligent act and the damage that resulted then the injured person can successfully sue for damages. © ASEAN 2015 Trainee Manual 37 Manage legal requirements for business compliance Research the legal information required for business compliance Activity 10 – Identify legal requirements relating to consumer protection and trade practices You are required to research the different legal requirements, relating to your country, in terms of consumer protection, trade practices and duty of care. DESCRITION OF REQUIREMENTS ACTIVITIES TO BE UNDERTAKEN TO MEET REQUIREMENTS © ASEAN 2015 38 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Food Where food is handled, prepared, stored or sold as part of an operation food legislation will apply. The central aim of this legislation is to maintain food that is fit for human consumption. You may need to access legislation (Acts and Regulations) relating to:  Sale of Food  Food Regulations  Food Handling  Food Storage  Food Hygiene  Food transportation. Activity 11 – Identify legal requirements relating to food handling You are required to research the different legal requirements, relating to your country, in terms of food handling. DESCRITION OF REQUIREMENTS ACTIVITIES TO BE UNDERTAKEN TO MEET REQUIREMENTS © ASEAN 2015 Trainee Manual 39 Manage legal requirements for business compliance Research the legal information required for business compliance Liquor Liquor legislation establishes a framework of requirements applying to the operation of business. The responsible dispensing and consumption of alcohol is necessary to not only ensure enjoyment of events and social outings but also to meet the social and legal imperatives relating to the sale of alcohol Normally tourism organisations may not be handling alcoholic beverages however where tours are arranged, the service of liquor may apply. Objectives of liquor legislation The objectives of the specific liquor legislation are :  To contribute to minimising harm arising from the misuse and abuse of alcohol by:  providing adequate controls over the supply and consumption of liquor  ensuring as far as practicable that the supply of liquor contributes to, and does not detract from, the amenity of community life  To facilitate the development of a diversity of licensed facilities reflecting community expectations  To contribute to the responsible development of the liquor and licensed tourism industries. Liquor legislation requirements If liquor is provided as part of business operations there will be legal requirements that apply in terms of:  Obtaining a license to handle, sell or serve liquor  Licensing hours  Types of liquor to be sold  Location to serve alcohol  Responsible service of alcohol  Handling intoxicated patrons  Restrictions on who may be employed. © ASEAN 2015 40 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Responsible serving of alcohol Responsible serving of alcohol is part of an industry response to changing community attitudes towards alcohol abuse and an attempt to show that the industry can self-regulate. Industry-developed codes of practice are not only an important way of improving professional standards across the industry but they are also good for business. Responsible serving is sound business practice. It is an important contributor to the prevention of:  Underage drinking  Intoxication and alcohol abuse  Anti-social behaviour. As an example in Singapore liquor legislation can be accessed through links from:  http://statutes.agc.gov.sg/aol/home.w3p  http://www.spf.gov.sg/licence/  http://www.mha.gov.sg/basic_content.aspx?pageid=210  http://www.mha.gov.sg/basic_content.aspx?pageid=210. Activity 12 – Identify legal requirements relating to liquor You are required to research the different legal requirements, relating to your country, in terms of liquor DESCRITION OF REQUIREMENTS ACTIVITIES TO BE UNDERTAKEN TO MEET REQUIREMENTS © ASEAN 2015 Trainee Manual 41 Manage legal requirements for business compliance Research the legal information required for business compliance Tobacco Every country will have specific tobacco related laws. It is essential that you comply with all necessary requirements that may relate to:  The sale of tobacco  Advertising and promotion tobacco products  Restrictions on who tobacco can be sold to  Rules regarding location and conditions of tobacco usage on the premises and in public areas. It is very useful to visit http://www.tobaccocontrollaws.org/legislation/country. Activity 13 – Identify legal requirements relating to tobacco You are required to research the different legal requirements, relating to your country, in terms of tobacco. DESCRITION OF REQUIREMENTS ACTIVITIES TO BE UNDERTAKEN TO MEET REQUIREMENTS © ASEAN 2015 42 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Gaming In countries where venues provide gaming facilities, both the facility and the people who work in those gaming departments must be licensed. Regulation which regulate the use of restricted areas and cover issues such as:  Location of gaming machines  Supervision of gaming areas  Entry and behaviour of patrons  Consumption of food  Provision of entertainment. Activity 14 – Identify legal requirements relating to gaming You are required to research the different legal requirements, relating to your country, in terms of gaming. DESCRITION OF REQUIREMENTS ACTIVITIES TO BE UNDERTAKEN TO MEET REQUIREMENTS © ASEAN 2015 Trainee Manual 43 Manage legal requirements for business compliance Research the legal information required for business compliance Employment relations There is no universal definition of what constitutes employment relations. However, it can be said that it includes all facets of the relationship between the employer and the employee. This ranges from the terms and conditions of employment and employee benefits, to workplace health and safety issues, and enterprise bargaining. Employment of staff includes their safety, health, remuneration and employer/employee rights and responsibilities. Employment contracts There exists between every employer and employee a contract of employment that establishes the contractual rights and obligations of the parties and defines the nature of the employment relationship. This contract is often described as a contract of service rather than a contract for services. The law requires that the terms and conditions agreed to under an employment contract are fair and just and do not undermine minimum standards set for all workers. A contract of employment is a legal document and can be enforced through the courts in the same way as any other contract. Definition of an employee There are some situations where it is necessary to decide whether there is an employer- employee relationship arising from a contract. Employees assume particular rights, obligations and legal liabilities as a result of their employment. These rights, obligations and legal liabilities are quite different from those of a contractor. Some of the key factors in differentiating between an employee and a contractor are:  The degree of control exercised over the work being performed  Whether the person is paid for time worked or results achieved  The responsibility for providing the materials necessary to do the work  The benefits accruing from employment (e.g. sick leave). © ASEAN 2015 44 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Activity 15 – Identify rights of employees You are required to research the different legal requirements, relating to your country, in terms of identifying and meeting the rights of employees. 1. What are examples of employees in a tourism industry? ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ 2. What are some rights of employees and what can businesses do to comply with these rights? RIGHTS OF AN EMPLOYEE ACTIVITIES TO MEETS RIGHTS OF EMPLOYEES © ASEAN 2015 Trainee Manual 45 Manage legal requirements for business compliance Research the legal information required for business compliance Regulatory requirements If you employ staff you must comply with employment-related legislation. There are a number of laws and regulations that may apply to tourism establishments. This list is not exhaustive and you should consider how they impact on the organisation at which you work. Foreign manpower  Passes and visas  Applications for foreign worker permits  Rights of foreign workers  Conditions of employment of foreign workers  Accommodation and living requirements  Use of employment agencies  Tax deductions. Activity 16 – Requirements for utilisation of foreign manpower You are required to research the different legal requirements, relating to your country, in terms of employing foreign manpower. ASPECTS OF FOREIGN MANPOWER LEGAL REQUIREMENTS EMPLOYMENT Passes and visas Applications for foreign worker permits Rights of foreign workers Conditions of employment of foreign workers Accommodation & Living requirements Use of employment agencies Taxation © ASEAN 2015 46 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Employment practices  Employment rights and conditions  Part time employment  Employment related services  Fair employment  Work Life Harmony  Medical benefits  Trade unions  International labour relations  Workplace diversity management. Activity 17 – Employment practices requirements You are required to research the different legal requirements, relating to your country, in terms of employment practices. ASPECTS OF FOREIGN MANPOWER LEGAL REQUIREMENTS EMPLOYMENT Employment rights and conditions Part time employment Employment related services © ASEAN 2015 Trainee Manual 47 Manage legal requirements for business compliance Research the legal information required for business compliance ASPECTS OF FOREIGN MANPOWER LEGAL REQUIREMENTS EMPLOYMENT Fair employment Work Life Harmony Medical benefits Trade unions International labour relations Workplace diversity management © ASEAN 2015 48 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Choices in the employment arrangements Industrial instruments are defined as awards or agreements. An award is an official document that sets out the pay and working conditions for people in a nominated industry. An agreement is an individual negotiated arrangement between an employer and employees for a set time period that covers their pay and working conditions Minimum requirements for agreements relate to:  Pay  Hours of work  Annual leave  Personal leave  Unpaid parental leave Under most current legislative frameworks, there are a number of modes by which staff can be employed. These include: Awards An award sets out the rights and obligations of employees and employers engaged in a particular industry; it deals with conditions of employment such as hours of work, pay rates, penalty rates and leave entitlements etc. Formal or informal agreements Employers and employees can choose to enter into formalised agreements that must be registered or approved by the relevant authorities or informal employment arrangements Workplace Agreements These are individual agreements between employers and employees about the employee’s terms and conditions of employment Certified agreements These are collective agreements covering wages and conditions of employment that can be made directly between an employer and a group of employees or a union representing a group of employees. These agreements must comply with legislative provisions that are in place, they should be in writing and signed by or on behalf of the parties and they should be for a fixed term of between one and three years. © ASEAN 2015 Trainee Manual 49 Manage legal requirements for business compliance Research the legal information required for business compliance Activity 18 - Employment arrangements You are required to research the different legal requirements, relating to your country, in terms of employment arrangements. TYPES OF EMPLOYMENT ARRANGEMENTS LEGAL REQUIREMENTS © ASEAN 2015 50 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Equal employment opportunity and anti-discrimination In recent years there has been a tendency for governments to strengthen laws designed to eliminate discrimination and promote equal opportunity in workplaces. Governments have made it clear that discrimination in employment practices including recruitment and termination is totally unacceptable. Whilst the legislation clearly identifies what constitutes discrimination and the penalties for breach, it is also intended to heighten people’s awareness of the deprecatory nature of discriminatory practices. Current Legislation Equal opportunity legislation seeks to ensure that people are judged on the basis of merit rather than on factors irrelevant to merit. There is a range of legislation to outlaw discrimination. These cover:  Human Rights and Equal Opportunity  Affirmative Action (Equal Employment Opportunity for Women)  Racial Discrimination  Sex Discrimination  Disability Discrimination  Equal Opportunity Act. Activity 19 – Types of Equal employment opportunity legislation You are required to identify the different types of equal employment opportunity legislation that applies to your country. What are the key principles of your EEO legislation? © ASEAN 2015 Trainee Manual 51 Manage legal requirements for business compliance Research the legal information required for business compliance Discrimination Within the context of the legislation, discrimination means treating someone unfairly because of the characteristics that apply, or are thought to apply, to persons of a particular group as defined by the grounds in the legislation. Attributes upon which discrimination is prohibited include:  Age  Impairment  Industrial activity  Lawful sexual activity  Marital status  Physical features  Political belief or activity  Pregnancy  Race  Religious belief or activity  Sex  Parental status or status as a carer  Personal association, whether as a relative or otherwise, with a person who is identified by reference to any of the above attributes Anti-discrimination legislation prohibits discrimination in all aspects of employment, including:  Recruitment and selection  Terms and conditions of employment  Training and development  Promotion and transfer  Termination. Avoid discrimination Employers must ensure that all recruitment and employment practices are free from discrimination and are based on the merit principle (the best person for the job). The employer also has a responsibility to provide a harassment-free workplace. It is also a requirement to ensure that men and women receive equal pay for equal work. Both parties to the employment contract are expected to fulfil their obligations under that contract. Where one party is in breach of the contract, the innocent party is entitled to terminate the contract. © ASEAN 2015 52 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Employers have the right to summarily dismiss an employee for misconduct. Examples of misconduct may include:  Incompetence of an employee claiming to have particular skills or experience  Wilful disobedience of a lawful instruction given by the employer  Drunkenness in the workplace  Fraud or dishonesty  Abusive or bad language or offensive behaviour. Dismissal in relation to incidents of misconduct is not mandatory but rather at the discretion of the employer. There are, however, many instances where an employee is not dismissed in accordance with the law or where the employee believes they have been unfairly dismissed. Unfair dismissal occurs when an employee’s dismissal is harsh, unjust or unreasonable given the circumstances. ‘Harsh, unjust or unreasonable’ considerations include:  Whether there was a valid reason for the termination which was related to the capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or service  Whether the employee was notified of that reason  Whether the employee was given an opportunity to respond to any reason related to his or her capacity or conduct  If the termination related to unsatisfactory performance by the employee, whether the employee had been warned about that unsatisfactory performance before the termination  Any other matters the Commission considers relevant. © ASEAN 2015 Trainee Manual 53 Manage legal requirements for business compliance Research the legal information required for business compliance Activity 20 – Discrimination legislation You are required to identify the different types of discrimination legislation that applies to your country. TYPES OF DISCRIMINATION KEY PRINCIPLES LEGISLATION General discrimination Racial discrimination Sexual discrimination Disability / physical discrimination © ASEAN 2015 54 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Sexual harassment Sexual harassment is an unwelcome sexual advance or request for sexual favours or unwanted conduct of a sexual nature. It is NOT mutual attraction between people. Sexual harassment may be very subtle or quite overt. The sorts of behaviours that constitute sexual harassment are:  Repeated, unwanted physical contact such as touching, patting or brushing too close to someone on purpose. Everyone is entitled to their own personal space  Leers, gestures or comments of a sexual nature  Subtle pressure or repeated and unwanted propositions for sexual activity  Distribution or display of material that people might find offensive  Sex-oriented or smutty jokes that make people feel uncomfortable, or sexual innuendo  Demands for sexual favours that may or may not be related to threats or promises about employment status  In extreme cases, sexual harassment may include sexual assault and rape. Sexual harassment often comes to the attention of management when:  The complainant has reasonable grounds for believing that their rejection of it will endanger their application for a position, their current job, or their future in the workplace OR  The complainant objects to sexual harassment and is then unfairly treated by denial of a job or promotion, sacked, demoted or subjected to further harassment. Legislation makes it unlawful to harass another person in any of these circumstances and employers are obliged to provide a harassment free workplace for their employees. Employers who fail to do this may be held liable for the actions of their employees. Employer’s Responsibilities An employer must take ‘all reasonable steps’ to prevent discrimination and harassment in the workplace if they wish to avoid liability. This means that they must actively implement precautionary measures to minimise the risk of discrimination or harassment occurring. Some of the steps that would be necessary when implementing a successful program to eliminate discrimination from the workplace might be:  Develop policies and procedures to provide information and solutions to ensure that discrimination and harassment do not occur within the workplace. Such policies and procedures must be framed in equal opportunity principles  Disseminate the policies and procedures on a regular basis.  Managers and supervisors should be trained to identify unlawful or unacceptable practices and to respond to such situations appropriately.  Managers should also be involved face-to-face in the dissemination of such policies  Identify a number of points of contact for people wishing to raise concerns and develop an effective and confidential process to deal with complaints. © ASEAN 2015 Trainee Manual 55 Manage legal requirements for business compliance Research the legal information required for business compliance Activity 21 – Sexual harassment legislation You are required to identify the different types of sexual harassment legislation that applies to your country. TYPES OF SEXUAL COMPLIANCE REQUIREMENTS HARASSMENT LEGISLATION © ASEAN 2015 56 Trainee Manual Manage legal requirements for business compliance  Research the legal information required for business compliance Superannuation / Pension Funds Superannuation is a form of pension that is paid upon retirement to a worker who has contributed during their working life to a superannuation scheme. Contributions are made into a superannuation scheme (trustees carefully invest and manage according to strict government guidelines) to ensure that there is maximum investment growth. Upon retirement, this money is paid to you in either a lump sum or as a superannuation pension. Superannuation is quite an effective way of saving for your retirement. The fund’s trustees invest the money on your behalf so that there is investment growth, and the government taxes superannuation at a lower rate. Over the long-term, greater financial security can be ensured. In some countries employers are required to provide a minimum level of superannuation, in line with both industrial awards and the superannuation legislation. This may or may not be added to by the employee. Activity 22 - Superannuation legislation You are required to identify the different types of superannuation legislation that applies to your country. TYPES OF REQUIREMENTS COMPLIANCE REQUIREMENTS © ASEAN 2015 Trainee Manual 57 Manage legal requirements for business compliance Research the legal information required for business compliance Contracts For the most part when you provide a tourism product or service in exchange for money you are entering into a contractual relationship. A contract arises when two or more parties agree to do something in exchange for something else. Contracts may be verbal or written and are based on a promise or agreement to do something. A contract, then, may be defined as ‘a legally enforceable agreement.’ There is a saying that ‘all contracts