Business Legislation Update 2012


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Byron Cannon, Director from Ferguson Cannon Lawyers goes through the various topics of the Business Legislation in 2012. Key topics include: Carbon Pricing Mechanism, OHS Harmonisation, Person Properties Security Act (PPSA), ATO and Direct Responsibilities and Warranties against Defects.

If you have any questions for Byron Cannon relating to the Business Legislation Update 2012 or any of the above topics, please contact him via email -

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Business Legislation Update 2012

  1. 1. Sunshine CoastBusiness Expo – May 2012Business Legislation Update. The Year ahead 2012 Byron Cannon, Director Ferguson Cannon Lawyers
  2. 2. Contents• Carbon Pricing Mechanism• OHS Harmonisation• Personal Property Securities Act• ATO & Director Responsibilities• Warranties against Defects
  3. 3. Carbon Pricing Mechanism• Only around 500 Businesses in Australia directly liable• Fixed price for 3 years, then flexible• Primarily mining, power & heavy industry• Issue for business is indirect effect• Depends on the industry you are in• Some benefits and opportunities
  4. 4. OHS HarmonisationBackground• National Model• Commenced 1/1/12• Queensland largely enacted the Model legislation• Similar to WHS Act, but important differences
  5. 5. • All “Officers” to exercise due diligence to ensure compliance• “Officer” includes: - Director, secretary, partner - Decision makers who can affect substantial part of business and financial standing - Those on whose instructions or wishes directors are accustomed to act - receivers, administrators, liquidators• Huge officer penalties• $600,000 fine or 5 years jail for reckless breach• $3 million for corporations
  6. 6. Workers – WHAT’S NEW?Includes:• Employees• Contractor or subcontractor• Employee of a contractor or subcontractor• Employee of a labour hire company• Out worker• Apprentice or trainee• Student gaining work experience• Volunteer
  7. 7. • Worker can cease work if exposed to serious risk• HSR can direct workers to cease
  8. 8. What to do? (Steven Cole of Emerson Stewart)• Engage OH&S expert to give a high level presentation to the Board on the principles and effects of the new regime.• Ask the executive team to review the Company’s existing OH&S arrangements and practices and report these to the Board, along with recommendations for improvements and assured compliance
  9. 9. OH&S (Continued)• Use these findings as the basis for a comprehensive review of the Company’s OH&S policy;• For a smaller Company without a specialist OH&S suitably competent person has responsibility for the OH&S function;• Schedule regular report and reviews of the Company’s OH&S practices in the annual Board calendar;• Ensure Board members visit relevant worksites from time to time so they have a thorough understanding of the workplace environment and practices;
  10. 10. Personal Property Securities Act(“PPSA”):• Significant change in Law;• Replaces many Laws which deal with: - Company charges; - Bills of Sale; - Motor vehicle securities, etc• Affects tangible and intangible property rights
  11. 11. PPSA (continued):• Application to your business (supplier of goods and credit);• Usual finance arrangements;• Terms of Trade;• Retention of title – where Purchaser has possession of goods but does not get title until full amount paid;
  12. 12. PPSA (continued):• For ROT to be enforceable, it must “attach” itself to the goods;• To satisfy – ownership retained until paid, and supply made;• Ensure ROT is enforceable against third party: - In writing; - Signed; - Contains description of goods.
  13. 13. PPSA (continued):• PPS Register: - Online register - Can search the register;• Why register? - Obtain priority on other creditors; - First in, first served.• ROT Super priority;
  14. 14. PPSA (continued):• How to register? - Online; - Register a finance statement; - Party Details; - Customer Details; - Goods; - Addresses• Can register once for each customer.
  15. 15. PPSA (continued):• What to do? - Review your sales terms; - Suitable for registration; - Allow you to recoup costs and fees; - Enforcement terms are tailored for you; - Reduce compliance obligations; - Ensure super priority• Get familiar with the registration process;• See your lawyer
  16. 16. ATO Personal Liability• New Law – if debt 3 months old – Director automatically must pay the full amount;• ATO can withhold PAYG credits for Director• If nothing done – ATO can automatically collect debt from Director;• New director liable after 14 days for PAYG and SG
  17. 17. Warranties Against Defects• Important Changes for 1/1/12• Any warranties provided must comply with Australia Consumer Law (“ACL”) requirements• What is a warranty against defects?• What is a consumer?• Who must follow the requirements in ACL?• What are the requirements?
  18. 18. • What is a “document” evidencing a warranty against defects?• What information must be included?• Can I include extra words in my warranty?• Why must the required information be provided?• Warranties vs. Consumer Guarantees
  19. 19. • Warranty against defects vs. express warranties• Transitional Arrangements• Other requirements?• Penalties for non-compliance