The decision in Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic[2010] FWA 2078 in some ways paved the way for casual employees to bring an unfair dismissal claim in reliance upon s 384(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

The applicant in the case, Cori Ponce, worked for the respondent company daily and nightly over a 21 month period, satisfying the s 384(2)(a) requirement of employment on a regular and systematic basis, while also meeting the six month minimum employment period set out in s 383(a) of the Act. Commissioner Roe who oversaw the matter, articulated the principles attached with employment on a regular and systematic basis, which included the following observations:

· Regular and systematic does not necessarily mean the hours and days must be regular and systematic: Commissioner Roe found that ‘regular and systematic’ under the Act, meant that there must be “sufficient evidence to establish that a continuing relationship between the employer and the employee has been established” – which is the reason why the Act has included within its provisions, that an employee must also have a reasonable expectation of continuing employment.

· If the hours worked are small, and the gaps between days and times worked is long, other evidence must be produced to demonstrate regular and systematic employment:in instances where there is no clear pattern of employment, evidence of employment on a regular and systematic basis can also include the following: the employer regularly offered work when suitable work was available at the times when an employee has made him or herself available to work for the employer; and work had been offered and accepted on a sufficient basis where it can be no longer regarded as simply occasional or regular.

· Hours worked by the employee were similar or exceed full-time ordinary hours can also be deemed as strong evidence of regular and systematic employment.

· The reasonable expectation of continuing employment is not only about having that expectation at the moment of termination, but the expectation during the period of service as well.

Generally, a contract of employment will have both express and implied obligations to ensure the employer’s confidence. In Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167, Fullagar J said that express and implied contractual obligations protecting confidential information of the employer will (at 190), “depend for their existence and their attributes solely upon the law of contract. They are obligations at common law, although of course equity may act in their enforcement if the ordinary conditions for equity’s intervention are met.”

Section 165 of the Australian Consumer Law sets out multiple pricing offences that are the same as the civil pecuniary penalties. Additionally, a body corporate or other persons committing an offence against s 165 is one of strict liability. Therefore, intent is not a consideration for a person committing the offence.

We can turn to the Secondary Explanatory Memorandum for more context in relation to the offence:

“The strict liability nature of the offence reflects the potential for widespread detriment, both financially for individual consumers and for its effect on the market and consumer confidence more generally, that can be caused by a person that breaches this provision, whether or not he or she intended to engage in the contravention.

For a person to be found liable of contravening the s 35(1) of the Australian Consumer Law (the ACL) provisions of bait advertising, is dependent on the person’s knowledge during the time of when the advertising was directed to the consumer. The s 35(2) provisions, creates an absolute liability towards the advertiser, by obliging him or her to offer the goods and services which is advertised to be supplied.

One of the elements of the s 35 provisions is that of reasonableness, and reasonableness will be dependent on the nature of the product that is being advertised, as well as the length of the sale of the advertised product. In ascertaining reasonableness, past practices may also be taken into account.

One of the important aspects for anyone engaged in trade or commerce is not to engage in misleading or deceptive conduct, or conduct that is likely to mislead or deceive, as outlined in s 18(1) of the Australian Consumer Law (the ACL). However, most business owners will be asking themselves, what constitutes “misleading or deceptive” conduct? It’s an important question to ask and this piece will provide a brief introduction to representations that are misleading, or likely to mislead.

Although s 18(1) doesn’t define what behaviours constitute misleading or deceptive conduct, we can look to case law for some guidance to s 18(1), where the concept has been interpreted by the courts in relation to s 52 of the Trade Practices Act 1974 (Cth) (the TPA). Gibbs CJ held in Parkdale Custom Built Furniture Pty Ltd Puxu Pty Ltd (1982) 149 CLR 191:

“The words of s 52 require the Court to consider the nature of the conduct of the corporation against which proceedings are brought and to decide whether that conduct was, within the meaning of that section, misleading or deceptive or likely to mislead or deceive. Those words are on any view tautologous. One meaning which the words “mislead” and “deceive” share in common is “to lead into error”. If the word “deceptive” in s 52 stood alone, it would be a question whether it was used in a bad sense, with a connotation of craft or overreaching, but “misleading” carries no such flavour, and the use of that word appears to render “deceptive” redundant. The words “likely to mislead or deceive”, which were inserted by amendments in 1977, add little to the section; at most they make it clear that it is unnecessary to prove that the conduct in question actually deceived or misled anyone.”

Upon the identifying of the representation or representations, it is then essential to show that they were misleading, therefore, it is important to look at the context surrounding the representation as Gibbs CJ noted in Parkdale (at 199):

“The conduct of a defendant must be viewed as a whole. It would be wrong to select some words or act, which alone, would be likely to mislead if those words or acts, when viewed in their context, were not capable of misleading. It is obvious that where the conduct complained of consists of words it would not be right to select some words only and to ignore others which provided the context which gave meaning to the particular words. The same is true of acts.”

The courts will generally take the approach of looking at the facts of each individual case and the surrounding context when determining whether a representation is seen to be misleading or deceptive conduct.

Division 2 of Part 3-1 of the Australian Consumer Law states that businesses cannot make a demand for payment for the provision of unsolicited goods or services unless they hold a reasonable belief that there was a right to receive payment. If a business makes a demand for payment for unsolicited goods or services, the burden of proof rests with the business making the unsolicited supply. For any person who has received something unsolicited, they must allow the business who made the unsolicited supply to recover possession within three months. However if there has been no attempt to recover possession, ownership of the goods will fall to the recipient, and there can be no longer a demand for payment.

Applications for design registration can be filed by one or more persons, and specification of the owners of the design must be entered on the Register.

Besides the designer, other parties that can register a design can include:

>> the employer of the designer if the design was created in the course of the person’s employment, subject to an agreement to the contrary;

>> the person who commissioned the design, where the design has been produced on commission, subject to an agreement to the contrary;

>> a person deriving title to the design from the above persons, or by devolution by will or by operation of law or a person who would, on registration of the design, be entitled to have it assigned to the party; and

>> the legal personal representative of a deceased person in any of the above categories as set out in s 13(1) of the Designs Act 2003 (Cth).

Within the application, a single design relating to one or more products may be used on an item belonging to the same classification category.

Many businesses begin life via a domestic or social setting, and with such agreements, the common law presumption in relation to legal intention is that agreements of such nature is that the parties held no intention to create a legal relationship. However, the presumption is rebuttable if it could be demonstrated through sufficient factual evidence that there was an intention for the agreement to be legally binding.

Elements such as the images, multimedia files (e.g. MP3 files and video attachments) and the text used in a website can be protected. However, unless you developed the website yourself, it may be the developer who ultimately holds the copyright for the design.

Like all other property interests, commercial leases should contain the following details:

>> the parties to the agreement

>> the property to be leased

>> the date of commencement

>> the length of the agreement

>> how the premises will be used.

Similar to residential leases, a commercial lessee has the right for quiet enjoyment of the property, but must also allow a lessor to enter and inspect the property, carry out repairs, and finally, to re-enter and take possession if necessary.

Although commercial leases are more businesslike in its construction, the reasonable person should still be able to understand the substance of the agreement, as well as the purpose and object of the transaction.

Under the provisions of the Corporations Act 2001 (the Act), companies can either implement their own constitution, use the replaceable rules found in the Act, or have a combination of both in regards to the rules that will guide the internal management of the company.

Section 136(1) of the Act outlines the following ways in which a company can adopt a constitution:

>> a company may adopt a constitution on registration if each person specified in the application, who consents to being a member, agrees in writing to the terms of the constitution before the application is lodged; or

>> a company registered without a constitution, may adopt one upon the passing of a special resolution.

Alternatively under s 233 of the Act, the court can also make an order requiring the company adopt a constitution (the oppression remedy).

Public companies that have a constitution are required to lodge a copy and any relevant special resolutions with the Australian Securities and Investments Commission (ASIC) within 14 days.

For a lessee of a commercial premises, the standard insurance obligations that will form most commercial leases are obligations to insure items such as plate glass windows, doors and to maintain public liability insurance.

Furthermore, under the common law where a lessee is required to undertake insurance against certain risks, a lessee may only engage with insurers approved by the lessor – even if the premium charged by the recommended insurer is greater when compared with other insurers.

The common law has also stated that lessors who have an absolute right to choose an insurer, are also afforded the right to withhold approval if a lessee chooses the services of another insurer, whilst having no obligation to inform a lessee as to the reasons behind the exercising of the right.

However, the Australian Competition and Consumer Act (the Act) prevents corporations, in this case a lessor, from engaging in exclusive dealing, and as a consequence statute law may have an effect on the ability of the lessor to direct which insurer a lessee must engage with and any similar clauses of such a nature must contemplate the effects of the Act on a lessor’s requirement that the lessee only insure with an improved insurer.

Why do I need a corporate lawyer?
You need a corporate lawyer to protect your interests and assist you in drafting agreements and overseeing transactions. You can benefit by having an experienced business lawyer in Melbourne in the event of a dispute or litigation.

What types of cases does your law firm handle?
At Parke Lawyers we are highly experienced in business law and we provide a wide range of legal support to businesses, including small start­ups as well as large corporations.

What is the best corporate structure for my business?
This will depend on your needs. You want to create a business structure that minimises the risks and your tax exposure, while simultaneously protecting both you and your partner’s assets, if the business is in a partnership. It is important to work with an experienced corporate lawyer to determine which structure is best for your business.

What can a franchise lawyer do for me?
Franchising is quite heavily regulated and there are a lot of legal requirements to consider. A franchise lawyer can assist you to sell a franchise by helping you prepare all the documents and submitting these to the potential franchisees.

Parke Lawyers can assist you to buy a franchise by advising you on complex franchise documentation and work with the franchisor to secure the franchise. At Parke Lawyers we are experienced in franchising and can provide you with all the guidance you need throughout the process.

What is important when I want to buy a business?
Make sure that you are provided with a contract, and go through the financial statements in detail. Also remember to structure the payments of the total purchase price accordingly. If you are not sure how these payments should be structured for your specific purchase, contact us to talk to our expert legal team for assistance and helpful guidance.

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