One of the most important functions in business is marketing and advertising. Knowing who to market your product to, finding those people and reaching them with the right message which motivates them to purchase a product is a fundamental element of business for every enterprise from micro businesses to massive multinational corporations. Marketing and advertising involves building relationships with customers and messaging them with the right message. Sometimes though, when you are trying to promote your product or brand it can be difficult to know when a line has been crossed. There are a number of laws which regulate what can and cannot be said in marketing and advertising and it can be helpful to have advertising copy reviewed for compliance before it goes out to make sure that you are reducing the risk to the business that is advertising to its customers.

Particularly in Australia, there are a number of things that simply cannot be present in marketing campaigns. According to experts like a business attorney, a rapidly expanding area of law at the moment is the law of misleading and deceptive conduct which prevents businesses from engaging in misleading and deceptive conduct when advertising products. Section 18 of the Australian Consumer Law prescribes that in trade or commerce, a corporation shall not engage in conduct which is misleading or deceptive or likely to mislead or deceive. As an example, recently in the case of Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] FCA 330 Coles supermarkets was ordered to pay an AUD$2.5 million fine because it had been advertising bread as being “Baked Today, Sold Today” and “Freshly Baked” when in fact it had been snap frozen offsite and then reheated at the supermarket. A seemingly innocuous attempt by the marketing and advertising department at Coles to make bread seem slightly more appealing to customers on the basis that it was fresh was found to be a violation of the law.

There are other considerations in the law of advertising as well. For instance, when making comparisons between products its necessary to make sure that the information about competing products is accurate in relation to price, quality, range or volume. Baiting customers with specific prices for goods that are not available or available in very small quantities is also illegal. False claims about country or origin or premium status of products or their moral, environmental or nutritional benefit is also forbidden by Australian Consumer law. Also, hiding behind fine print is something that will not be allowed by the courts if, for instance, a product is advertised as free when in fact there is a charge for it.

If you would like to take advantage of our advertising review services, we are more than happy to oblige. Please do not hesitate to contact us.

Although it is often underestimated, a contract of employment is often one of the most important documents in our life because it governs your rights and responsibilities in relation to your employment.

What are the essential elements of an employment contract?

A contract is an agreement or an exchange of promises between two legal persons. An employment contract is no different. It requires an offer, acceptance, consideration and the intention to create legal relations as the fundamental elements of an employment contract. Because employment law is highly regulated, it must also be compliant with the wide array of employment regulations, awards and collective agreements which apply to the Australian workforce.

The most important of these is the National Employment standards which are the fundamental standards enshrined in the Fair Work Act of 2009. The national employment standards mean, amongst other things, that employees have and retain the right to contact and seek the counsel of a workers compensation lawyer or personal injury compensation lawyer in the event of a workplace accident or injury. Similar to this, another right retained is the right to request flexible working arrangements, parental leave, annual leave, personal/carer’s leave and compassionate leave and community service leave. Long service leave, public holidays, notice and redundancy pay and a fair work information statement are also all rights which are derived from the Fair Work Act of 2009. In matters or cases in which a company does not appear to want to honor these rights, you can seek the legal counsel of a workers compensation attorney. With their assistance and representation these rights can be respected, observed, and enforced as they should by law.

Employment law specialists like employment law consultants from Avensure can provide valuable guidance and expertise in ensuring the rights of employees are addressed. In addition to the legal framework in which employment law operates, Employment contracts specify a number of things such as the rate of pay, location of work, the identity of the employer, relevant jurisdictions, job description and general and miscellaneous provisions. For more information, visit https://wylliespears.com/ because their labour lawyers can help.

Changing nature of work

There are a number of factors at present which are coalescing to radically change the nature of work and expectations about rights and obligations and law in relation to work. At a fundamental level, automation of the workforce is beginning to mean that the steady long term well paid jobs which were once available are now disappearing and being replaced by a model of work which accomodates the on demand economy. People move jobs and even careers quickly, change their roles inside organisations and the workplace environment constantly morphs. We have begun to see a trend where the legal certainty of having a contract is still required, but organisations and workers are requiring greater flexibility in their work arrangements and need to accomodate this in their employment contracts. Increasingly casual employment is preferred and contractor arrangements are becoming much more common because of the need for flexibility.

We offer complete services for employment contract drafting in all types of settings at very reasonable prices. Naturally, advice is also provided in consultation where it is requested. Please do not hesitate to contact us if you require additional information.

Our Team:

David Coleman
BEc(SocSci).LLB
9 Years PQE
E: info@legallawyers.com.au
M:0410187654

There are a number of changes to employment law standards which are coming into effect in Australia in the upcoming period. 2017 will see a number of increases to minimum wages under the modern awards and enterprise bargaining agreements. Rises in the minimum wage generally keep pace with inflation and increase at the start of each financial year. Last year, they increased by 2.4% and we are likely to see a similar increase this year.

Employers need to ensure that underpayment of staff does not occur as this can lead to serious penalties imposed by Fair Work Australia for non-compliance with basic employment standards. It is impossible to contract out of the basic awards which are inherent to employment law in Australia. At the moment in Australia, the minimum wage is $17.70 per hour and staff who are 20 or less are entitled to be paid less than this based on a system set out by Fair Work Australia.

Another change which is currently coming into operation is the level of the high income threshold for the bringing of an unfair dismissal claim. If a member of staff is paid less than 138,900.00, it will be much easier for an unfair dismissal claim to be brought and the amount of compensation available will be greater. This is of particular importance when considering the terms of executive employment contracts and whether to dismiss an employee who falls between certain threshold amounts. Recent changes to the threshold amounts means that $69,450 is now the maximum amount of damages for unfair dismissal that can be obtained.

Finally, 2017 ushers in a new fair work information statement which must be given to new members of staff. Actually, this has been a requirement in Australia for some time now but it is not well known that this is in fact a legal requirement when someone begins employment. If an employer fails to meet this requirement there is the capacity for a civil remedy provision to be applied. This can be applied to a corporation, a person, the director of a company or an HR manager.

One area in which we often receive questions is whether our firm offers training services. Particularly for the managers in an organisation, training on law and legal concepts can provide great assistance and help to avoid costly mistakes.

We have lawyers that offer training on the following areas:

– Contracts
– Employment Law
– Consumer Law
– General Business Law
– Financial Services Compliance
– Property and Environmental Development Law
– International Trade and Transactions

If you are interested in obtaining the training services of any of our lawyers, please do not hesitate to contact us so that we can arrange a fixed fee quote.

Guardianship allows an adult person in Australia to act another persons behalf in relation to their financial, health and lifestyle decisions. Although it is possible for someone to appoint a guardian without an application being made to the tribunal, if the person for whom the guardianship is being instituted disputes this or disagrees with it, or it is disputed by a third party often a guardianship order will be necessary. It is usually necessary to seek a guardianship where the person concerned no longer has the mental capacity necessary to appoint a guardian themselves and they do not have an enduring guardianship or enduring power of attorney.

In modern estate planning, most people are encouraged to make a will, enduring power of attorney and enduring guardianship because these three legal instruments are capable of covering most of the issues that arise in the estate planning process. Basically, a will outlines the intentions of a person after they pass away, a power of attorney allows someone else to manage the person’s financial affairs and a guardianship enables another person to make decisions about the health and lifestyle of the person under guardianship.

If you are in need of a consultation in relation to any elder law issue such as the making of a will or a power of attorney or guardianship, please do not hesitate to contact us. Please not that we usually only offer services to clients located in New South Wales.

If you are just starting a new business in Australia, sometimes its difficult to know what you need to set up the basic fundamentals of a company. We explain the most important documents which are used to create a business in almost any field. Aside from the documents, you may also need other items like that retail shelving ,for instance, if you’re opting for a brick-and-mortar store. And if you need notary services, then you can search for notary near me online.

1. Company Incorporation Documents

Invariably, setting up a business means considering a company structure for the business. The privately held corporation in Australia is the most common method of incorporation for small business and has a number of advantages. To incorporate a business you need some basic things like director consents, the initial register of shareholdings and you can chose to incorporate the company using its own bylaws although the standard ones in Corporations Act 2001 (Cth) are adopted by default as what are called the replaceable rules.

2. Company record keeping documents

In most companies, as a minimum, it is necessary to hold annual general meetings and minutes need to be kept of the meetings. Usually it is necessary to produce annual accounts and audited financial statements. If the company is of any substantial size (usually annual revenue of more than $25million) it is a legal requirement that audited financial statements are produced. Meeting minutes can also serve as an aid to resolving disputes if they arise between directors and/or shareholders. And if you are seeking an alternative to bringing your case to court in order to avoid high legal fees and backlogged court dockets, consider fair dispute resolution or arbitration.

3. Shareholder Agreements

A shareholder agreement sets out the rights and obligations of shareholders in relation to their shares and in many cases defines access to management positions in the company and the terms of corporate control of the company, particularly where it is a small business. The agreement defines how profits and losses are distributed and often contains buy out provisions if someone wants to leave the business.

4. Non-disclosure agreement

Invariably, the information generated by a business like customer records, financial records, pricing strategies and the proprietary technology of the company are immensely valuable and often need legal protection. The non-disclosure agreement is a method of applying a legal umbrella of protection to a business to prevent the unauthorised disclosure of information about the business.

5. Employment Agreements

Being in business means working with people and employment contracts set out the rights and obligations of employees of the business in relation to the business. Having an employment agreement often assists with protecting the confidential information of the business. It defines and sets out the most basic rights and benefits of the employee. In any business which is more than a few people, well drafted employment agreements are an essential part of structuring the business effectively.

6. Business Plan

Although not a legal document, a business plan sets out the objectives of the business and a strategy for achieving those objectives. It is essentially a statement of where the business is going and how to get there. Business planning is often underestimated for its effectiveness.

Furthermore, in a fast-paced business world where data interpretation is key, the necessity of deciding between an analytical and operations dashboard cannot be overstated. A visit to http://www.inetsoft.com/info/analytical_vs_operations_dashboards/ provides the basis for such a decision, illuminating the differences and highlighting their respective benefits. Remember, the choice will greatly influence the future growth and development of your business.

8. Website Terms of Use

Being in business these days means being online and that means you need a terms of use document for your website to define your relationship with the users of your website and how they are expected to interact with you online.

9. Website Privacy Policy

The internet allows you to rapidly gather customer data and share content instantly with anyone in the world. Internet users have a legally recognised right to privacy and you need to explain on your website how you handle customer information.

10. Apostilles.

As so much of business crosses international borders these days, anyone transacting with overseas customers or suppliers will at some point encounter the need for legalization certificates for use in other Hague Convention countries, known as an “apostille,” that authenticates the origin of a public document (like articles of incorporation) so they can be recognized in another country.

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If you have questions about any of the above documents or you are looking into starting a business, a business lawyer or corporate lawyer can provide you with legal advice on the formation of the business and all of the relevant documentation referred to above and more.

Disputes between the shareholders of companies of all sizes are common although it is particularly common in smaller private companies with multiple shareholders. Basically, the idea of shareholder oppression is that the dominant shareholder or shareholders are acting in a manner that is oppressive to the interests of the minority shareholders. This may manifest itself through the denial of directorships or other management positions in the company. It may be because the company fails to allocate dividends fairly or organises a company buy back of shares in a manner that disregards the interests of the minority shareholders. Shareholder oppression suits can exist in relation to public companies as well although these dealings are on a much larger scale than what is normally seen in smaller private companies.

In common law countries, there is an extensive body of case law which deals with the concept of shareholder oppression. However, the action in its most basic form is derived from the Part 2F.1 of the Corporations Act 2001(Cth). Sections 232 and 234 of the legislation allow shareholders to make oppression applications or former shareholders or even persons determined by ASIC to be entitled to do so. If an application is made, the courts must find that the conduct of a companies affairs is oppressive by reason of it being contrary to the interests of the shareholders as a whole or oppressive, prejudicial or unfairly discriminatory against a shareholder or group of shareholders. The term company’s affairs is defined very broadly and basically refers to anything which involves the management and operation of the company and its affairs. Oppression could involve the diversion of corporate opportunities, excessive renumeration, manipulation of share issues, withholding information, boardroom tactics or misappropriation of company funds.

The courts have a broad discretion to deal with such activity. Courts may order that a company be wound up, one shareholder purchase the shares of another shareholder or that a receiver be appointed. It is not uncommon for shareholders to seek recompense from a company in which they own share where their interests have been overlooked by the management of the company. If you need to know more about shareholder oppression suits, please do not hesitate to contact us.

There is a perception that because of the unenforceable nature of mediation as a method of dispute resolution it is doomed to failure. However there is significant empirical evidence that indicates that mediation is a very effective method of dispute resolution. Across a wide of jurisdictions, in family law cases research indicates that mediation is effective in between 50% and 85% of cases with participants satisfied as to the procedure and outcomes involved.

In the context of family law, mediation is seen to be particularly effective because of the way in which mediation promotes the self-determination of the parties in a context where the discussions are confidential. It also has the marked advantage of giving the parties to the dispute the sense of being listened to in a way which simply cannot be achieved through formal litigation.

In relation to matters outside the realm of family law, mediation remains an effective dispute resolution mechanism although perhaps not at the same levels as is the case in family law. However, participants recognise the same advantages as in the case of family law participants. Parties recognise that mediators listen to the parties concerns and give them the opportunity to voice their concerns in front of a third independent party. Participants in the mediation process also report a greater sense of control over the mediation process than they have in relation to other types of dispute resolution, particularly, litigation which tends to be dominated by the procedural emphasis of courts.

Another type of dispute settlement is known as arbitration. Arbitrators decisions are binding on parties but are not arrived at using the same formal rules of evidence as in courts. In smaller civil claims jurisdictions, arbitration has a very good track record in terms of achieving dispute settlement when compared with traditional litigation. Research conducted on the claims records of the District Court in New South Wales, Australia clearly indicates this. Overall, the research indicates that mediation and arbitration are extremely effective methods of dispute resolution which achieve this outcomes by reducing average settlement times and increasing settlement rates whilst achieving the a substantially reduced caseload for the traditional court system. Many of the jurisdictions inundated by their case loads such as the family law jurisdiction and increasingly the estates jurisdiction are utilising mediation and arbitration as effective family law and estate litigation disputes settlement procedures, respectively.

If you are investing in a business or considering the formation of a new business there is a lot to consider. Aside from deciding what business structure your business or investment in a business is to have, one of the most important things to consider is a shareholder’s agreement. A shareholder’s agreement is a contract between the shareholders of a company which sets out their rights and obligations in relation to each other and the company. It would be helpful to consult an expert in corporate law to have better understanding about shareholder’s agreement and forming a business.

It gives the investors certainty on a number of issues like the appointment of directors and their terms of engagement, share buy back and/or ‘drag along’ or ‘tag along’ provisions. Other issues which might be addressed include insurance for directors, the terms on which new subscriptions of shares can be made, the quorum for board meetings, the payment of dividends, the sale of shares, how loan accounts with the company are to operate, confidentiality issues and the jurisdiction of law in which the company is to operate.

You will also often need to look at the company constitution in order to verify that there is not a conflict with the constitution of the company. Many companies have simply adopted the replaceable rules of the Corporations Act 2001 (Cth) but others haven’t and in the case where the constitution is non-standard it is necessary to review both the shareholder’s agreement(s) and the company constitution to adequately understand what the rights and obligations of shareholders are in relation to the company and the other shareholders.

We have fixed fee shareholder agreements available which we can draft for you when you are in the process of setting up a business or if you need to amend a shareholder agreement can assist with the process of drafting a deed of amendment to a shareholder agreement. Please do not hesitate to contact us if you would like more information about shareholder agreements.