Issue
Have Adam and I formed a partnership?
Rule
Partnership Act (SA) 1891 Section 1- Definition of Partnership
Partnership Act (SA) 1891 Section 2- Rules for determining Existence of Partnership
Partnership Act (NSW) Section 2- Rules for determining Existence of Partnership
A partnership entails the relationship that exists between two or more people with the intent of running a business for profit making purposes (Partnership Act (SA) 1891 s 1).
Based on Partnership Act (SA) 1891 s 2 and Partnership Act (NSW) s 2, for a partnership to exist, the relationship must satisfy three aspects:
The establishment of a business;
In common;
With a view of making a profitable return.
Application
Adams and I agreed to contribute equal sums of money aimed at the establishment of the “Pop-Up Sports” bar. In Smith v. Anderson (1880) 15 Ch D 247 at 273, James LJ described a partnership as two or more people that unite, through verbal or written contract, for the achievement of a joint objective (James 2014).
Conclusion
Given the rules and application above, it would be safe to state that Adam and I have formed a partnership.
Issue
What are the legal consequences for Adam and I if we have not yet written up a partnership agreement and things start to go wrong?
Rule
Business Names Registration Act 2011 (No. 126, 2011) Sec 18- Offence carrying on a business under an unregistered business name
Given that the Partnership Act holds, a partnership commits an offence if:
Their business performs a transaction under a name but have not registered the entity as an organization on the country’s Business Names Register.
In this case, the defendant bears evidential or strict liability as applied to subsection 13.3 (3) of the country’s Criminal Code (Business Names Registration Act 2011 (No. 126, 2011) s 18).
Application
Conclusion
Given the above illustration, Adam and I are liable to legal prosecution and loss sharing should things start going wrong even though we lack a written partnership agreement.
Issue
What is the preferred business approach for Adam and me to formalize our business relationship?
Rule
Business Names Registration Act 2011 (No. 126, 2011) - Section 22 decision to register a business name to an entity. (Commonwealth Numbered Acts, 2011)
Here, partners must register their business name if this entity has a viable ABN, the name is available, and they have paid the registration fee.
Partnership ACT 1891 Section 5- Nature and formation of limited partnerships and incorporated limited partnerships
Here, an application for a limited partnership could be made through all or any member of the partnership.
Application
As part of a limited partnership, the business must be operational courtesy of all members. For instance, in Lang v James Morrison and Co Ltd (1912) 13 CLR 1, the court system ruled that the company had active members in the applicants. In our case, we intend to register the business as a partnership.
Conclusion
That said, it would be best to register the business as a limited partnership because it comprises of two active members.
Customers and Competitors
Issue
We have run a number of ads both in the media and the bar stating “Come and have a drink with David Beckham” long after his appearance on opening night. Also, we have styled our signature dish, meatballs served in a spicy sauce, as “Beckham’s Balls.” Have we engaged in deceptive and misleading conduct?
Rule
Sale of Goods Act (NSW) 1895 Section 19 - Reservation of right of disposal
Given a contract, the seller reserves the rights to dispose of the goods until key the buyer meets certain conditions. However, a breach of contract from the buyers’ side entitles them to associated damages (McDougall & Popat, 2010).
Competition and Consumer Act 2010 Section 44zzx-Corporation must not make disclosure of pricing information etc. for the purpose of substantially lessening competition (Commonwealth Consolidated Acts, 2010).
Here, businesses must not use or disclose information if this disclosure results in a substantial decline in competition within the market, as applied to a competitor.
Application
Sheppard J in Spreage and Anor v. Paeson Pty Ltd and Ors, considered the extent to which there had been a breach of contract as per the Sale of Goods Act (NSW). Here, a brick maker had sold an equipment that failed to perform as advertised. Sheppard J ruled that the customers had full entitlement to damages for a breach of contract. Here, the corporation did not fulfil their promises made concerning the purchase (McDougall & Popat 2010, pp. 385,). Commonwealth v. Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80 also ruled that one would be liable to misleading the public if their actions lead to fiscal loss (McDougall & Popat 2010, pp. 400).
Conclusion
The above analysis proves that we have engaged in deceptiveness and misleading actions for the consumers’ part. However, the competitor will have to prove that our actions resulted in a significant financial loss for their part.
Employing Staff
Issue
Is Donna an employee and what are the consequences for Adam and I if the court determines that she is an employee?
Rule
Work Health and Safety Act 2012 part 1 subdivision 1 definitions
This section describes a worker as an individual that performs company duties in any capacity whether on full time, contractual, sub-contractual, or out working basis.
Work Health and Safety Act 2012 Division 4- Duty of officers, workers and other persons
Here, a person running a business must ensure the provision as well as the sustenance of a work environment with minimal risks to safety and health.
Work Health and Safety Act 2012-Division 5 (33) - Failure to comply with health and safety duty.
Employers that fail to comply within category 3 offense attract a maximum penalty of AUD 50,000.
Application
In Boland v Trainee and Apprentice Placement Service Inc. (2016) SAIRC 14, the employer pleaded guilty to failure to comply with the Work Health and Safety Act (2012). The court determined that in 2014, an employee at the organization had suffered an electric shock following the company’s failure to conduct safety and health measures at the facility (South Australian Industrial Relations Court, 2016).
Conclusion
Based on this analysis, Adam and I are liable to a conviction that could attract upon to AUD 50,000. However, the conviction is liable to Donna proving that we failed to comply with the country’s safety requirements at the organization.
Issue
Emma often comes to work in revealing clothes. Can I fire her on the basis that she refused to change her outfit to something more acceptable?
Rule
The Fair Work Act (2009) mandates that employees who feel that the management unfairly terminated their contracts should contact the Industrial Relations Commission of South Australia for relief (Office of Legislative Drafting and Publishing, 2009).
Application
In Johnson v Zehut Pty Ltd (2014) FWC 7496, the court ordered Zehut Pty Ltd to compensate Johnson for unfair dismissal. Here, the management had advised Johnson that she would be out of a job unless she accepted a salary reduction. In a similar move, I seem to have threatened Emma that she would lose her job unless she defied my orders to change her dress code.
Conclusion
Based on the above discussion, I can state that the court may consider dismissal in this case as a harsh and unjust punishment. Therefore, Adam and I would be subject to a law suit if I fired Emma without a reasonable cause and explanation.
Issue
Donna keeps making sexist comments about Freddy. Even though he reported this issue, I encouraged him to ignore Donna, suggesting that he learns to take a joke. However, he reported to the EOC. Are there any likely consequences for Adam and me?
Rule
The Equal Opportunity Act 1984 (SA) mandates employers to prevent any form of sexual harassment within the work environment (Anon., 2016).
The Work Health and Safety Act 2012) further requires that employers provide safe work environments, with proper assessment of associated risks, including sexual harassment (Anon., 2015).
Application
In Hughes v Narrabri Bowling Club Ltd (2012) NSWADT 161, the applicant claimed that she had suffered sexual harassment and told her employers about it. She added that they failed to take adequate measures to investigate the claim (Overell 2013). The court determined that Narrabri Bowling Club was liable for Hughes’s case. In this case, Freddy reported that Donna had been sexually harassing her. However, I dismissed the claim as a joke, resulting in further legal action from EOC.
Conclusion
Reference List
Anon., 2015. Work Health and Safety Act 2012. South Australia Legislation v. 2015, 19 Nov.
Anon., 2016. Equal Opportunity Act 1984. [Online] Available at: https://legislation.sa.gov.au/LZ/C/A/EQUAL%20OPPORTUNITY%20ACT%201984/CURRENT/1984.95.UN.PDF[Accessed 28 Jan 2017].
Commonwealth Consolidated Acts, 2010. COMPETITION AND CONSUMER ACT 2010 - SECT 44ZZX. [Online] Available at: http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s44zzx.html[Accessed 28 Jan 2017].
Commonwealth Numbered Acts, 2011. BUSINESS NAMES REGISTRATION ACT 2011 (NO. 126, 2011) - SECT 18. [Online] Available at: http://www.austlii.edu.au/au/legis/cth/num_act/bnra2011311/s18.html[Accessed 28 Jan 2017].
James, N., 2014. Business Law. Milton, QLD Australia: Wiley.
Legislatiion of South Australia , 2015. Work Health and Safety Act 2012. [Online] Available at: https://www.legislation.sa.gov.au/LZ/C/A/WORK%20HEALTH%20AND%20SAFETY%20ACT%202012/CURRENT/2012.40.UN.PDF[Accessed 28 Jan 2017].
McDougall, A. & Popat, P., 2010. International Product Law Manual. 1st ed. London, UK: Kluwer Law International.
Office of Legislative Drafting and Publishing , 2009. Fair Work Act 2009. [Online] Available at: https://www.safework.sa.gov.au/show_page.jsp?id=2693[Accessed 28 Jan 2017].
Overell, A., 2013. Hughes v Narrabri Bowling Club Ltd. [Online] Available at: https://wiki.qut.edu.au/display/CPNS/Hughes+v+Narrabri+Bowling+Club+Ltd[Accessed 28 Jan 2017].
South Australian Current Acts, 2011. PARTNERSHIP ACT 1891. [Online] Available at: http://www.austlii.edu.au/au/legis/sa/consol_act/pa1891154/[Accessed 28 Jan 2017].
South Australian Industrial Relations Court, 2016. Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14 (27 May 2016). [Online] Available at: http://www.austlii.edu.au/au/cases/sa/SAIRC/2016/14.html[Accessed 28 Jan 2017].
