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BUS101 Business Law

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BUS101 Business Law

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Course Code: BUS101
University: Alphacrucis College

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Country: Australia

Question 
Legal Issue Briefing
Required:
 
Select One of the following Legal Issues Only: Small Business and working with the Australian Consumer Law
 
Not for Profits and integration of Employment Law Policies and Practices or Churches and integration of secular Legal practices in church ministryand then critically evaluate the issue/s within a legal framework.
You are required to develop your answer using legislation and precedents from case law databases to support your argument.

Answer

Small Business and working with the Australian Consumer Law 
What is a small business?
There is a clear definition and demarcation of a small business under the prevalent legal regime. Any business shall be termed a small business if it annual turnover does not exclude $ 2 million, exclusive of the GST. According to the Fair Work Australia, any business that employs less than 15 people comes within the purview of a small business [Small Business And The Law, 1st ed. (Canberra: Australian Government Pub. Service, 1985).]
Australian Consumer Law
The Australian consumer is the law intended for, as the name suggests, Australian consumers. It is a national law and thus has jurisdiction throughout the territory of Australia. Now, from the name it is clear that the consumer law is intended for the consumers, then where does the nexus lie between the consumer law and the business? For any economy to prosper, the most important requirement is that there should be a healthy competition coupled with free entry and exit. In many cases it may so happen that in a market a particular firm, or a group of firms, dominate. Thus, by virtue of such domination the firms may, factually, control the whole market and eliminate competition. In the long run, the ultimate sufferers would invariably be the consumers. To prevent such an eventuality, the consumer law has come into force and it carries a host of provisions to that effect [Peter Thorpe and Liz Hutley, Small Business Street Smarts, 1st ed. (Surry Hills, N.S.W.: Advertising Dept., 1997).] 
Keeping the above factors in mind, a small business becomes all the more relevant, because greater the number of players in the market, greater is the competition and consequently greater is the efficiency. Small businesses need protection and guidance simply because they are small. At the same time, they must remain under some sort of regulation and control because if that is not done, again the consumer will suffer ultimately.
Small Businesses and the Australian Consumer Law
According to data, currently in Australia, more than 2 million small businesses operate. Obviously such businesses have a number of rights accrued to them, and liabilities imposed upon them, under the Australian consumer law B. [L Johns, W. C Dunlop and W. J Sheehan, Small Business In Australia, 1st ed. (Sydney: Allen & Unwin, 1989).] 
Under the ACL a small business is amenable to all the rights that a customer is guaranteed under the ACL and this requirement is non-negotiable. Examples of such rights include the right to treated as a consumer in case the consumer meets all the criteria as laid down in the law. Other than this other rights include the right to replace repair or refund in of defective goods. Other mandatory requirements under the ACL for small businesses include the duty to provide individual bills and receipts for every transaction that they enter into with consumers [Tim Mazzarol, “Do Formal Business Plans Really Matter? – An Exploratory Study Of Small Business Owners In Australia”, Small Enterprise Research 9, no. 1 (2001): 32-45.].
However, the nexus between ACL and small businesses assumes increased significance when the point of unfair business terms is in question. Unfair terms, as the name suggests, are any term that may be termed as unfair or even unconscionable. The ACL works zealously against such unfair terms that may be imposed on the consumers. According to the law, such an imposition was prohibited to protect the consumers from exploitation. After a recent amendment, this protection has also been extended to the small businesses by virtue of section 46. The main reason such a protection has been extended to small businesses is because like the consumers, small businesses are rather vulnerable to being exploited as well, and their exploitation will ultimately boil down to hardships and exploitation of the consumers. To prevent such a scenario and nip this practice in the bud, this protection now stands extended to the small businesses as well [Small Business Guide To Trade Practices Compliance Programs, 1st ed. (Dickson, A.C.T.: Australian Competition & Consumer Commission, 2006).].
The law also provides for when a particular term may be treated as ‘unfair’ [ACCC V Coles Supermarkets Australia Pty Ltd, 1405 17 (FCA 2014).] The circumstances when a term may be treated as being unfair are enumerated hereunder:

The terms are such that they result in an appreciable change in the balance between the contracting parties, i.e. whereby one party assumes a power disproportionately much greater than the other party;
Is neither reasonable nor necessary to protect the valid interests of the party that is already receiving a benefit under the contract;
Somehow it causes a loss, either monetary or otherwise to any party under the contract.

These three elements run simultaneously and thus they must be satisfied all at once in order that the term be called an unfair business term [F. Chittenden, S. Kauser and P. Poutziouris, “Tax Regulation And Small Business In The USA, UK, Australia And New Zealand”, International Small Business Journal 21, no. 1 (2003): 93-115.].
Therefore, the law as it stands now, is such that whenever small business enterprises enter into a contract with larger business entities, the terms should be such that both them benefit and are burdened equally, under the contract, as far as practicable. This protection is needed because obviously small businesses will lack the wherewithal to effectively and equally deal with the larger business houses and therefore chances are rife that in case a small business enters into a contract with a large business, the small business house may be exploited through and through. This is where the law comes into play.
Conclusion:
The ultimate beneficiaries under the ACL are obviously the consumers. In an economy, the two most general categories are obviously the sellers and the consumers; therefore the consumer should obviously command the greatest priority [ACCC V Woolworths, 3 32 (FCA 2016).]. Keeping the above factors in mind, the provision of the ACL aimed at protecting small businesses may be said to be misplaced. For a market to prosper there should be minimum interference by any external agency. The ‘invisible hand’ of the market economy will automatically guide the market to its most efficient form [Australian Competition And Consumer Commission V Colgatepalmolive Pty Ltd, 2 AC 528 (FCA 2016)]. At best, the authorities should ensure that there should be free entry and exit in the market. In such manner the consumer interests would be the best protected.
References 
ACCC V Coles Supermarkets Australia Pty Ltd, 1405 17 (FCA 2014).
ACCC V Coles Supermarkets Australia Pty Ltd, 1405 17 (FCA 2014).
Australian Competition And Consumer Commission V Colgatepalmolive Pty Ltd, 2 AC 528 (FCA 2016).
Chittenden, F., S. Kauser, and P. Poutziouris. “Tax Regulation And Small Business In The USA, UK, Australia And New Zealand”. International Small Business Journal 21, no. 1 (2003): 93-115.
Johns, B. L, W. C Dunlop, and W. J Sheehan. Small Business In Australia. 1st ed. Sydney: Allen & Unwin, 1989.
Mazzarol, Tim. “Do Formal Business Plans Really Matter? – An Exploratory Study Of Small Business Owners In Australia”. Small Enterprise Research 9, no. 1 (2001): 32-45.
Small Business And The Law. 1st ed. Canberra: Australian Government Pub. Service, 1985.
Small Business Guide To Trade Practices Compliance Programs. 1st ed. Dickson, A.C.T.: Australian Competition & Consumer Commission, 2006.
Thorpe, Peter, and Liz Hutley. Small Business Street Smarts. 1st ed. Surry Hills, N.S.W.: Advertising Dept., 1997.

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