Workplace Law

Running head: WORKPLACE LAW
Workplace Law
Name of the Student
Name of the University
Author Note

1WORKPLACE LAW
Question 1:
Issue:
The issue is regarding the fact that whether the nature of the pre-contractual contractual
negotiation is binding upon the parties or not.
Rule:
From the very beginning, the rules regarding interviews and pre-contractual negotiations
are regulated by the provisions of Section 18(1) of Schedule 2 of the ACCA (Cth). It is
noteworthy to mention here that, according to the provisions of Section 18(1) of Schedule 2 of
the ACCA Act (Cth), it has prohibited misleading and deceptive conduct in trade. The example
of pre-contractual-negotiation has been well explained in the case of Barto v GPR management
Services Pte Ltd (1991) 105 ALR 339. This case is an example that how a misleading conducts
regarding trade practices can lead to misconduct. In this case, it was observed that, the employer
made representations t the employee during the tenure of employment and in such process
various negotiations took place in relation to the contract made prior to his employment.
It is worthwhile to refer here that, different business types of business are associated with
various forms of contracts (Wilkinson-Ryan & Hoffman, 2015). As a result of it, the parties in
contract relied upon the terms depicted in the written contract and does not consider the
circumstances associated with it. In the case of Noone, Director of Consumer Affairs Victoria v
Operation Smile (Australia) Inc & Ors [2012] VSCA 91, it was observed that, an appeal was
made by the Director of Consumer Affairs Victoria regarding the statements that has been stated
in the website concerning the treatment of cancer. The statements made by the respondents were
to mislead the general public.

2WORKPLACE LAW
It is worthwhile to mention the provisions of Section 18(1) of the Australian Consumer
Law (ACL). According to the provisions 18(1) of the ACL, misleading conduct in regard to trade
and commerce has been highly prohibited. In this context, mention can be made of the provisions
of Section 52. According to the provisions of Section 52, if any organization, during the course
of trade and commerce engages in any conduct which can mislead the contracting, then such act
should be strictly prohibited. In Stoelwinder v Southern Health Care Network [2000] FCA 444,
it was held by the Court that the employer has misrepresented the provisions f Section 52 during
the negotiation of the terms with the employee.
Application:
In the present case, before the offer was accepted by Max and during the tenure of negotiation,
he was informed that, he is liable to access the generous employee share scheme. It was observed
that after the contract was signed by Max, he observed that he could only access the employee
share scheme if he continues to work in the company for a period of 2 years. In this part, the
provisions of Section 18(1) can be applied which deals with the concept of misleading conduct in
trade. The case of of Barto v GPR management Services Pte Ltd (1991) 105 ALR 339 can also
be applied because it dealt with the fact that pre-contractual negotiations are binding upon the
parties to contract.
The case of Stoelwinder v Southern Health Care Network [2000] FCA 444 can be
eferred because Creative Advertising Ltd has misrepresented the terms of the contract and
breached the provisions of Section 52.
Conclusion:
It can be concluded that pre-contractual negotiations are binding upon the parties.