Business Legislation Update 2012

Sunshine CoastBusiness Expo – May 2012Business Legislation Update. The Year ahead 2012 Byron Cannon, Director Ferguson Cannon Lawyers fclawyers.com.au

Contents• Carbon Pricing Mechanism• OHS Harmonisation• Personal Property Securities Act• ATO & Director Responsibilities• Warranties against Defects fclawyers.com.au

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 fclawyers.com.au

OHS HarmonisationBackground• National Model• Commenced 1/1/12• Queensland largely enacted the Model legislation• Similar to WHS Act, but important differences fclawyers.com.au

• 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 fclawyers.com.au

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 fclawyers.com.au

• Worker can cease work if exposed to serious risk• HSR can direct workers to cease fclawyers.com.au

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 fclawyers.com.au

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; fclawyers.com.au

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 fclawyers.com.au

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; fclawyers.com.au

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. fclawyers.com.au

PPSA (continued):• PPS Register: - Online register - Can search the register;• Why register? - Obtain priority on other creditors; - First in, first served.• ROT Super priority; fclawyers.com.au

PPSA (continued):• How to register? - Online; - Register a finance statement; - Party Details; - Customer Details; - Goods; - Addresses• Can register once for each customer. fclawyers.com.au

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 fclawyers.com.au

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 fclawyers.com.au

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? fclawyers.com.au

• 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 fclawyers.com.au

• Warranty against defects vs. express warranties• Transitional Arrangements• Other requirements?• Penalties for non-compliance fclawyers.com.au

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Business Legislation Update 2012

by Ferguson Cannon Lawyers

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