Business and Corporate Law

This document provides an overview of various topics related to business and corporate law. It covers the distinction between exclusive powers, concurrent powers, and residual power in the Australian Constitution. It also discusses the concept of a valid contract and the rights of consumers in such contracts. Additionally, it explores the common law rules regarding contracts entered into by infants and the operation of the contra proferentem rule. The document concludes with information on the termination of employment and the rights of employees under Australian law.

Business and Corporate Law

Table of Contents
Question 1:.......................................................................................................................................1
Distinction between Exclusive Powers, Concurrent Powers and Residual Power......................1
Question 2:.......................................................................................................................................2
(i) Discussion on a Valid contract...............................................................................................2
(ii) With whom the consumer enters a contract...........................................................................3
Question 3:.......................................................................................................................................4
Common law rules regarding contracts entered into by infants..................................................4
Question 4........................................................................................................................................5
The operation of the Contra Proferentem rule.............................................................................5
Question 5:.......................................................................................................................................6
REFERENCES................................................................................................................................7

Question 1:
Distinction between Exclusive Powers, Concurrent Powers and Residual Power
The Australian Constitutions refers to the legal framework that set rules for establishing
way to govern Australia (Rawling and Schofield-Georgeson, 2019). It describes how Parliament
and entire government works as well as powers they possess to run nation. The division of
powers defines allocations of law making powers to the State and Commonwealth during
federation, therefore, incorporate mainly into four main sections – specific, exclusion, concurrent
and residual powers. Exclusive powers are those powers possessed by Commonwealth only to
make laws, for national concerning areas like defence, immigration and currency. But states are
excluded from such legislations, for example – Section 90 states power to impose the excise and
custom duties, Section 115 that prohibits states from mining own coins (Carr, 2019). Within
these set of law making powers which are given to Commonwealth, the non-exclusive ones are
shared with states, that provide authority for legislating specific areas. These powers are known
as Concurrent powers, which include areas like divorce, bankruptcy and marriage. In other
words, any power is said to be concurrent if both states and Commonwealth pass the laws on
same matter. But in some cases, if any law made by State conflict the laws of Commonwealth,
then as per S109, State laws will be override by Commonwealth laws. Trade and commerce at
global level, taxations, postal and telegraphic services are some examples of Concurrent Powers
(Purdy, 2019). On contrast, Residual powers however, not found within Australian Constitutions,
but when colonies during federation, want to retain some powers. Then under such condition,
they got a set of law making powers, where each state has to legislate as per their needs. Such
areas of law under residual powers include education, health and criminal laws, commerce &
industry, society development etc. ae some common examples of residual powers.
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Question 2:
(i) Discussion on a Valid contract
Considering the given case, it has been evaluated that there is a valid contract as
installation of any machine at public place that display beverage or any other food items, offer
people the same in exchange of money who are willing to pay (Lohrey and et. al., 2019). A valid
contract in general defines a written agreement among two parties, where one offers a product
and other buys the same. As per the vending contract, snack vendor is liable to refund or provide
another choice to customers, if food delivered by machine found unhealthy or unreliable.
Focusing on key contract areas, in terms of vendor and customer access, the written agreement
includes certain terms and conditions (Birt and et. al., 2020). It includes Proprietary &
confidential info; Price & payment; Changes in scope and deliverables; Termination & remedies;
Disclaimer & Indemnifications. Considering the present case, claimant who buys a chip packet
while waiting for a train at station in exchange of $3.50, from XYZ Vendsolutions Pty Ltd.
which contains a lots of plastic inside then, he/she comes into valid contract. In this regard,
considering the case, it has evaluated that disclaimers are one of the important function of valid
contract that reduce uncertainties as well as mitigate risks. So, this provision states that to bring a
claim, party under contract must show liabilities or prove damages in order to get refund. In this
sense, limitation of liability clauses certain liabilities like compensation & refund under the
contract, insurance coverage and more. Third Party and the vendor can typically under contract,
where liability is capped usually at some dollar amount (Chen, 2019). Therefore, if liability
exists or certain damages has been proved, then in such condition, aggrieved party can recover
those damages, which is up to agreed cap.
Since mostly organisations that deal in food and beverage sector, used to place vending
machines in public places like stations, malls and more, for promoting their products. Therefore,
to protect consumes as well as ensure the fair trading, Australian Government has made The
Australian Consumer Law (ACL) as nation law, which is a part of Competition and Consumer
Act 2010. It consists unsolicited consumer agreements, consumer guarantees, false or misleading
claims, deceptive conduct and more (Viven-Wilksch, 2019). In this regard, if any organisation or
vendor breach the ACL or fails to offer good quality of food to customers, then claimants can
claim against potential loss against them. Along with this, according to ACCC (Australian
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Competition and Consumer Commission), which gives commencements on Consumer’s rights
and obligations, when a person buys products or services they automatically come under
contract, where if vendors fails to deliver reliable products then they are liable for replacement or
refund, compensation for loss and damage (Mees and Smith, 2019). So, present scenario also
comes into a contract where Vendsolutions Pty Ltd. has to compensate for loss, either by refund
or replacement.
(ii) With whom the consumer enters a contract
As it has been proved that the person who receive unreliable chip packet from vending
machine, enter into a contract. He/she can claim the remedy from vendors in terms of
replacement or refund and in certain case, can also demand for compensation (Rahim, Rahim and
Rauscher, 2019). Along with this, a remedy can also be claimed directly from authorities at
station, who oversee the entire operations especially for passenger guarantees, because they are
directly come under valid contract with vendors, for placing their vending machines for public
usage.
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Question 3:
Common law rules regarding contracts entered into by infants
The terms “infant” in law describes an individual who is under the legal age of an adult, i.e.
less than 18 years old. The common rule in this regard regarding with contracting with infants is
that such type of contract is voidable. This type of rule has mainly established for protecting the
younger individuals who are less than 18 years old, may not fully grasp any consequences of
some particular contracts. Infants are usually believed to have less capacity to contract, therefore,
in such case, courts and statutes help in providing the ability to exit contract at the infant’s
discretion. However, such right is not belonged to any other contracting party, because it is only
made at the infant’s discretion (Mees and Smith, 2019). In this sense, these contracts refer to be
valid, where infant can basically leave it if he/she sees fit. Along with this, because of the fact
that such type rule may be abused or lead to harsh the results, therefore, a variety of exceptions
can be carved out of common voidability of an infant’s contract.
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Question 4
The operation of the Contra Proferentem rule
The contra proferentem rule refers to a legal doctrine within contract law, that states if any
clause is considered to be ambiguous then it should be interpreted against interests of associated
party, because it may dispute the intended meaning (Viven-Wilksch, 2019). In such case, contra
proferentem rule helps in guiding the legal interpretation of those contracts which consider as
challenged in court. There are minority of cases present, where courts may consider that
ambiguity could great but it cannot be resolved easily. So, they apply "contra proferentem rule",
which states that ambiguity can be interpreted against – The parties who are prepared such
ambiguous contract; and The party that seeks to rely on provision of ambiguous contract like
beneficiary of a guarantee or indemnity. The contra proferentem rule in other words, states that
when there is any doubt about clear description or meaning of contract, then words of same will
be construed against contractor or person who has put them forward (Chen, 2019).
The contra proferentem also includes principle which essentially states in case of doubt on
scope of the exclusion clause, ambiguity has to be resolved against party who seek to rely on
such exclusion clause. For this purpose, main focus is given on parties that are not lightly to be
taken for any intended cut down of remedies, that law provides for contract breach, unless it will
prepare again which contains clear words. Similarly, in case of exclusion clauses, it emphasis on
applying the narrower interpretation in such contracts (Rahim, Rahim and Rauscher,
2019). However, contra proferentem principle has fallen away, especially in relation with
commercial contracts, that are made between among sophisticated parties, because it is usually
negotiated from both sides. Therefore, parties under commercial contracts are recognised as free
to allocate any type risks as they see fit.
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Question 5:
Layoff refers to a term, that includes termination conditions initiated by employer for a hired
worker. In general, Layoff can be considered as temporary or a permanent suspension due to
consequences of the economic downturns, changes in conditions of market in terms of demand
and supply etc. Therefore, in such condition, if a firm wants to decrease its workforce level to
reduce the costs until it is undersigned under employment contract, they they have right to
terminate the employees (Birt and et. al., 2020). The termination of employment in Australia,
comes under Fair Work Act, which may be brought in numerous ways, like exercising a statutory
or contractual right to terminate, via agreement or operational law. But before terminating any
employees, employers must aware of contractual, common law obligations and statutory
provisions before ending the employment relationship (Purdy, 2019). Australian Government has
also set minimum periods of notice for both employers and employees, where length of notice
period is required on the basis of duration of continuous service of worker within company. In
this regard, a person who has been employed for less than a year in a firm, is entitled to get one
weeks’ notice. While individuals who are working from more than five years, are entitled with
prior one month’ notice before termination from job (Carr, 2019). Along with this, written notice
of the termination day also needs to be given and payment of terminated employee or person
who wants to switch job may be made in terms of notice lieu which include superannuation also.
Similarly, all people who are worked in an organisation are entitled to redundancy pay in
case of termination of employment at the initiative of employers (Rawling and Schofield-
Georgeson, 2019). It states that if a certain organisation no longer requires the job which done by
certain employee due to unfavourable market condition, employer being bankrupt and more, then
entitlement is made on the basis of sliding scale. It is generally calculated by reference to length
of continuous service of employees on termination. In this regard, four week’s pay is given to
employee who works for more than a year but not for two years. While 16-weeks pay is given to
workers working for less than ten year. Therefore, considering all such terms and conditions of
employment contract, Bryan who has hired by Amina to work as delivery man, but just after a
month get notice for termination, where she no longer wants his service due to some economic
circumstances (Lohrey and et. al., 2019). So, under this case of termination, Bryan cannot sue
Amina because he has worked only for a month then there is no evidence that can prove for
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breach the contract by Amina. She has the right as per National Employment Standards, to
terminate any employee who is under probationary period.
REFERENCES
Books & Journals
Birt, J. and et. al., 2020. Accounting: Business reporting for decision making. John Wiley &
Sons.
Carr, C., 2019. Corporate social responsibility, human rights and law firms. Alternative Law
Journal, 44(3), pp.220-225.
Chen, V., 2019. Enforcement of directors’ duties in Malaysia and Australia: the implications of
context. Oxford University Commonwealth Law Journal, 19(1), pp.91-117.
Lohrey, R. C. and et. al., 2019. Coming to grips with corporate governance in local
government. Australian Journal of Public Administration, 78(4), pp.596-612.
Mees, B. and Smith, S. A., 2019. Corporate governance reform in Australia: a new institutional
approach. British Journal of Management, 30(1), pp.75-89.
Purdy, J. M., 2019. Common Law and Colonised Peoples: Studies in Trinidad and Western
Australia. Routledge.
Rahim, M. M., Rahim, M. M. and Rauscher, 2019. Code of Conduct on Transnational
Corporations. Springer International Publishing.
Rawling, M. and Schofield-Georgeson, E., 2019. Industrial legislation in Australia in
2018. Journal of Industrial Relations, 61(3), pp.402-420.
Viven-Wilksch, J., 2019. GOOD FAITH IN CONTRACTS: AUSTRALIA AT A
CROSSROADS. The Journal of Commonwealth Law, 1(1), pp.273-316.
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