> > What we do
Last Modified: 4th August 2005
- Secure compliance with South Australia's consumer laws, including taking appropriate action to enforce the law when necessary
- Educate, inform and advise consumers and businesses on their rights and responsibilities
- Assist consumers to resolve disputes about consumer transactions, including the buying and selling of goods and services and landlord and tenant matters
- Encourage businesses and consumers to act honestly, ethically and responsibly
- Ensure that consumers receive fair measure in all consumer transactions and ensure that the goods they purchase are safe
- Maintain accurate and secure public and business registers
- Maintain civil registers of births, deaths, marriages and other registrable life events, certify these events as required and provide civil marriage facilities and celebrant services
- Administer and regulate South Australian bodies corporate
- Regulate licensed occupations and administer occupational licensing regimes
- Monitor the market and provide effective policy advice to Government.
Many of the OCBA roles stated above relate directly to the marketing industry. I will outline and discuss the relevant roles. To begin, the first role above states, “Secure compliance with South Australia's consumer laws, including taking appropriate action to enforce the law when necessary.” What is meant by this is that the OCBA makes sure that all businesses and consumers are abiding by current laws , and also dealing with those who do not follow the law. Marketers need to follow laws at all times in relation to the sale and promotion of some products, as they may be considered unsafe and inappropriate for consumers.
The next OCBA role that relates to marketing is, “Educate, inform and advise consumers and businesses on their rights and responsibilities”. By this, the OCBA mean that it is their responsibility to let businesses (and marketers working for businesses) know about their rights and responsibilities in relation to consumers and products, eg. if a product is banned, it is the OCBA’s job to alert businesses that may sell banned product to remove it from shelves, in order to protect consumers from the product, and businesses from legal action.
An important role of the OCBA which is strongly connected to marketing is “Encourage businesses and consumers to act honestly, ethically and responsibly”. Marketers are often reminded of the fourth stage of the Marketing evolution process, ‘Societal Marketing’. This is the theory that marketers should act in a socially responsible manner (Rix 2004, p. 10).
The major role of the OCBA in relation to marketing is ultimately to protect consumers from harm caused by illegal marketing and unsafe products.
Section 2: Codes of Practice/Standards
- Gain a copy of a relevant industry code of practice
I have obtained the South Australian Advertising Code of Practice from the Office of the Liquor and Gambling Commissioner (2004).
- Outline the responsibilities and requirements of this code of practice
The purpose of this Code of Practice is to provide a structured outline of advertising activities that are acceptable and socially responsible for gambling providers, in order to protect communities from gambling-related harm. The Code insists that gambling providers advertise responsibly and do not deceive customers. Gambling providers must ensure that any advertising they undertake complies with both Commonwealth and State laws and with all updated relevant Codes of Practice and standards. Specific provisions in the Code state that gambling advertising:
- Must not be directed at minors
- Does not portray minors gambling
- Is not directed at vulnerable or disadvantaged groups of society (including reformed gambling addicts)
- Does not promote gambling as a way to solve financial problems or difficulties
- Does not promote gambling as though it increases social standing or sexual prospects
- Does not imply that gambling can be used to pay for household staples, education, rent or mortgage
- Does not make exaggerated claims about prizes that can be won
- Does not promote gambling as though it involves skill
- Does not associate gambling with alcohol
- The sounds of gaming machines must not be present in radio or television advertisements eg. Coins landing in tray, poker machine noises when prizes are won.
- Gambling mustn’t be advertised on radio between 6.00am and 8.30am Monday to Friday; or on television between 4.00pm and 7.30pm Monday to Friday.
- Prize advertisements must include odds of winning and likeliness of the particular prize being won within a certain time period.
Advertising is defined in the Code as a ‘plug’ (information about a gambling provider’s gambling products) broadcast on either television or radio, in exchange for payment or another form of valuable consideration (including an agreement to purchase advertising).
Briefly outline one way you could keep abreast of any changes to regulatory requirements in the marketing industry
An effective way to keep up to date with changes to Codes of Practice would be to visit the Australian Codes of Practice website and use the query, search, and report functions that are available. This database contains frequently updated codes relating to many industries including advertising.
Section 3: Contract Law
- Identify three business situations where you may have to arrange a written contract
- A written contract may have to be arranged when a person/company chooses to go onto a mobile phone plan. These contracts often span for 12 to 24 month time periods and they outline the responsibilities/duties of both the mobile phone user and telecommunications provider.
- Australian Workplace Agreements are also frequently used in business. These contracts are between an employer and an employee and outline issues such as rates of pay, overtime rates, annual leave terms, and conditions that both employees and employers must abide by.
- Frequently used in business, lease agreements are contracts that outline the responsibilities and duties of both Landlord and Tenant for a fixed term. Lease agreements can apply to both residential and business properties.
- Include a copy of one of these contracts and list (or highlight in different colours)
-SEE ATTACHED LEASE AGREEMENT-
The TENANTS responsibilities and duties under the contract are highlighted in BLUE
The LANDLORDS responsibilities and duties under the contract are highlighted in YELLOW
Terms and conditions that apply to both parties under the contract are highlighted in ORANGE
Fields of the contract that must be completed by both parties are highlighted in GREEN
What might be considered a breach of this contract?
Breaches of the above-mentioned contract may include:
- The Landlord entering the leased premises, (not in the case of an emergency) without previously arranging to do so with the Tenant would be a breach of Section 9; “Landlord’s right of entry”.
- Failure of the Tenant to notify the Landlord of any damages caused as a result of removing a fixture is a breach of Section 12: “Removal of Fixtures”
- A Tenant knowingly using a premises for illegal purposes would be in breach of Section 6: “Use of Premises”
- Failure of the Landlord to maintain the premises and ancillary property in a reasonable state of cleanliness would constitute a breach of Section 4 of the agreement entitled: “Maintenance of Premises”.
Section 4: Consumer Law
Identify six particular points of consumer legislation that will impinge on your business (include a discussion of both State and Federal consumer legislation where applicable)
1. Misleading and Deceptive Conduct – s52 Trade Practices Act and s56 Fair Trading Act (SA). This legislation prevents corporations from engaging in conduct that misleads or could mislead consumers. Eg, a packet of crisps may be advertised as ‘light’, leading consumers to believe they are lower in fat, when in actual fact, the fat content is very similar to that of normal crisps. The Trade Practices Act is Federal legislation and the Fair Trading Act is State legislation.
2. Not Specifying the Full Cash Price – s553C Trade Practices Act, s61 Fair Trading Act (SA). This consumer legislation prevents corporations from advertising only a small part of the full price of a good or service. Eg. They may not state postage and handling cost, or conversely they may only state the deposit price of the product. Again both Federal and State laws enforce this legislation.
3. Falsely offering gifts of prizes – s54 Trade Practices Act, s62 Fair Trading Act (SA). This legislation has been put in place to protect consumers from corporations that offer gifts and prizes with no intention of providing them. Eg, a retailer may offer a free gift with purchase and then claim that they have run out, when they did not even have any gifts in the first place.
4. Misleading Conduct Regarding Services – s55 and 55A Trade Practices Act, s63-64 Fair Trading Act (SA). This legislation prevents corporations from misleading the public about suitability, nature, characteristics, purpose or quality of its offered services. Eg. A travel agent cannot advertise a 15 day holiday that actually goes for 13 days because that would be a breach of this Federal and State legislation.
5. Bait Advertising – s56 Trade Practices Act, s65 Fair Trading Act (SA). This legislation inhibits corporations from advertising a good or service, when it has reasonable grounds to believe that it will not be able to comply with the advertisement. Eg, a retailer may advertise a product for a very cheap price, but they may only have limited stock, that is bait advertising.
6. Referral Selling – s57 Trade Practices Act, s66 Fair Trading Act (SA). This legislation protects consumers from being told that they will receive a discount, rebate or extra benefit for entering into a contract. Eg. A corporation may advertise that customers will get a 10% discount if they refer a friend to the business. This legislation is covered by both State and Federal Law and can have serious consequences if it is breached.
- List a series of actions that could be taken to ensure the business complies with the areas identified.
- Check appropriate websites often and keep up to date with legislation. Ignorance of the law is no excuse.
- Make sure advertising has proper approval so as not to risk falling out of compliance with current consumer legislation
Section 5: Intellectual Property Law
a. Identify the specific areas of intellectual property law that might apply to your current/future business operations. Explain why they might apply to you.
COPYRIGHT – Right to reproduce a form or expression of an idea or information. May apply to a person in business if they develop a literary work relating to the business, for example an operations manual or an advertisement, they will have to get it copyrighted to prevent other businesses using and profiting from their work.
DESIGN – Design deals with protection of the visual form of articles that can be produced. Again this relates to businesses because they may produce visual art in the form of advertising and need to protect it.
PATENT – A patent grants the owner the right to exploit an invention that is new, inventive and not obvious. Mostly products are patented; a corporation may develop a totally new product and need to patent it in order to prevent it from being copied.
TRADEMARKS – A Trademark is a sign, which indicates that goods or services originate from a particular trader. For example, the ‘golden arches’ is a trademark of the McDonalds Corporation. If a corporation chooses to develop a distinguished sign to act as their trademark, it will have to distinguish their goods and services.
PASSING OFF – Is when one company tries to ‘pass off’ as something that is relevant to another company, this could be by using marks, names or colours by which the owner’s goods are known. This could be relevant to a business because they may be the victims of passing off; in order to prevent this they must protect their intellectual property.
b. Outline the action you have taken or will need to take, to meet the requirements of ONE of the areas of intellectual property law you have identified. This might involve protecting intellectual property owned by the business, or obtaining the right to use intellectual property owned by others.
TRADEMARKS
Firstly, in order to obtain a trademark a business must apply for registration and meet the relevant criteria. Once the Trademark application has been accepted the owner will have a set of rights. These rights include: exclusive rights to use the trademark and exclusive rights to authorise other persons to use the trademark in relation to the goods and/or services in respect of which the trademark is registered. The registered trademark will last for 10 years with an unrestricted right to renewal.
Section 6: Business Premises
a. In terms of operating from a business premises, discuss what laws you must be aware of.
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LEASES – A contract in which an owner of property (the lessor) grants another person (the lessee) the right to exclusive possession of the property for a specific period of time in return for consideration, which is usually monetary rental.
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TITLE TO LAND – ‘Title’ to land describes a person’s right to ownership of land. Includes ‘Torrens Title’: a system of land that is controlled by the state.
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JOINT OWNERSHIP OF PROPERTY – Joint Tenants: When two tenants own the same property at one time, present are the four unities - Possession, interest, title and time. Tenants in common however, are different in that the tenants have unity of possession, but not necessarily the other three unities. Tenants in common is a widespread form of commercial ownership.
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MORTGAGES – A contract whereby one person (the mortgagor) borrows money from another and gives rights over real property to the lender (mortgagee) as security for the repayment of the loan.
b. How can you manage the legal risks identified?
- Make sure you keep up to date with rental or mortgage payments
- Be aware of all the legal requirements of your contract
- Choose a reliable person to share ownership or be in joint tenancy with, to minimise the risk of getting behind in payments to lessee or mortgagee
Section 7: Occupational Health, Safety and Welfare (OHS&W)
a. Conduct research (via the Internet or by contacting the Workers Compensation Authority in your state) and prepare a brief outline of the legislation, regulations and specific Codes of Practice that cover occupational health and safety in your industry.
Australian Occupational Health, Safety and Welfare consists of five sections of both mandatory legislation and voluntary guidance material. The main objectives of this legislation include:
- ACTS – secure health, safety and welfare of persons at work, eliminate risks, and protect the health and safety of the public.
- REGULATIONS – Focus on identifying hazards to prevent injuries in the workplace, resulting from: manual handling, noise, hazardous substances and plant machinery and equipment
- CODES OF PRACTICE – Approved by Parliament through powers outlined in the Occupational Health, Safety and Welfare Act. Give advice and guidance on how to comply with OHS&W Act. Codes are not considered law, but can be used as evidence in court to demonstrate what an employer should have been doing to comply with the Act.
- STANDARDS – Standards are relevant to health and safety. National standards are produced by the NOHSC. Standards are also devised by Standards Australia.
- INDUSTRY STANDARDS/GUIDANCE NOTES – Developed by employer associations, trade unions and industry bodies because they must be specific to the industry. The documents provide practical advice and guidelines for controlling risks and hazards in the workplace.
b. Considering your industry, what are the key legal requirements of employers?
The implied duties of employers are:
- To provide work
- To provide remuneration
- To ensure the safety of employees
c. What responsibilities fall on employees?
An employee owes the following duties to their employer:
- To work in a skilful and competent manner and to exercise reasonable care
- To obey an employer’s lawful and reasonable commands
- To be faithful to the employer’s best interest and retain confidential/private information
- To act in an ethical manner (including punctuality and attendance)
d. Briefly outline one way you could use to keep abreast of any changes to OHS&W legislation.
Regularly check websites such as ‘SafeWork SA’ and ‘Work Cover’; join mailing lists and stay up to date.
Section 8: Insurance
a. Given the potential legal risks identified in the course, list several risk management strategies you may implement to reduce your risk.
Risks can be controlled and managed using the following techniques
- Educate staff about potential risks
- Request that staff conduct a risk assessment of their work areas
- Assess security issues
- Ensure business is not under insured
- Take steps to minimise occupational health, safety and welfare risks within workplace.
b. Is there a specific insurance (or package) available for your industry that meets your needs? Research some of the insurance company websites and/or contact your industry association.
Insurance that is very much needed in the marketing industry is public liability insurance. This is insurance that covers claims by a third party for death, injury, loss or damage resulting form a product supplied by a firm. After researching some Insurance agencies, I have found that a sound provider of public liability insurance is SGIC Business Insurance. See enclosed printout of SGIC Retail Insurance Policy.
Reference List
Business unit of the Department for Administrative and Information Services, 2005, ‘OHS’, SA Government, viewed 10 April 2006, <http://www.safework.sa.gov.au/show_page.jsp?id=2263>
Business.gov.au, 2005, ‘Liability Insurance’, Australian Government, viewed 10 April 2006, < http://www.business.gov.au/Business+Entry+Point/Business+Topics/Insurance/Types+of+insurance/Liability+insurance.htm >
Insurance Australia Limited, 2006, ‘Insurance for retail businesses’, SGIC, viewed 10 April 2006, < http://www.sgic.com.au/pub/sgic/business/insurance/retail.shtml# >
Work Cover, 2005, ‘OHS&W’, SA Government, viewed 10 April 2006, < http://www.workcover.com/Safety/ManagingSafety/LegislationAndPublications/msSafetyPubsRegulations.htm >
Codes of Practice 2005, ‘Advertising Code of Practice’, Codes of Practice, viewed 24 Feb 2006, < http://codes.bli.net.au/Codes.asp?Section=35&Industry=0&Activity=4&CodeType=Australian+Code+of+Practice >
Establish Business and Legal Requirements
Research Report By Natalie Frey (0755031)
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