Business report about Santosh and Rama

Question 1- Business Structure

1.The two friends have established one food business. Personally Santosh bears the loan and faces with difficulties, it depends on several occasions. First, if they have established the company as legal person entities, the loan has been used for the asset management. Within the company, Rama is liable for the debt as accounts payable to bank regularly.

Second, if they want to form partnership, all the asset by partnership is owned jointly out of some agreement. However each partner is fully responsible for the third party. It means the two friends are joint and as they have stated about external debt, the payment is essential, however whether Rama should pay it by himself or if he wants to let others engage in the investment or further debt or further operation strategic management is unknown. That is to say, he should be liable to organize the business instead of independently being liable to the debt. If the operation and ownership should be separated, then if they two hold the ownership, or only Santosh holds the ownership, then it is Santosh’s responsibility to organize the debt payment, if he can not, he should declare property ownership transfer for assistance.

Third, if they structure? the shares together as joint venture, there can be public reserves for debt payment. Fourth, the trust principles can offer them a chance to use some properties as guaranty, some properties out of equivalent values can be used in credit assessment. Even Rama can not pay off right now, he can still alleviate the tension.

2.The company should have different types, including Pty Ltd, Ltd, Pty, holding company, subsidiaries, corporate group, related bodies corporate (Adams, 2005). Santosh and Rama as well as others belong to one legal entity while? Harvey has owned his café. They are separate. Theoretically, if Santosh has intelligent copyright, he should sell in independent price about the ice cream making method in one contract, stressing all obligations and rights.

Currently, according to Corporate Act 2001 and Constitution, he has breached the legal rights. breaching the statutory duties may cause several problems. First, the director position should be switched. It means Santosh’s behavior can result in his position failure, share failure, governance failure. Second, up to $200,000 should be paid. It means he should pay directly. Third compensation should be made if the market reputation, news, ice cream quality are negative. Fourth, commission should have not be belong to him (Adams, 2005). The 25% profit is invalid. If they have started cooperation silently, the historical sales volumes in café, intelligent copyright should all be compensated to the food company totally. The commission of Santosh should be returned to café. Fifth, a deliberate and fraudulent breach can result in criminal penalties. The Economic Law has suggested about administration fine, the Criminal Code Act 1995 Part 2.4-11.5 has suggested about conspiracy and joint commission. Part 2.5 has suggested about corporate’ s criminal responsibility, over one year, the compensation and criminal sanction should be executed (Arenson, Bagaric, Gillies, 2011). Sixth, the civil right of Rama and other members is violated, the board of director should negotiate about the further cooperation mode. On one hand, Harvey should outsource the manufacturing of ice cream, on the other hand, the channels are diversified from café to ice-cream shop. The benchmark of commission should be redefined, or 25% is applied and paid to Santosh’s corporate, included in employees’ salaries.?

Question 2 - Employment and Compliance

1. The Australian Corporate Law does not restrict the age of opening a corporate, from average 13 years old, people can become employees for corporate? (Adams, 2005). There are some regulations for them to cooperate. First, she can be the employee of Santosh and Rama’s shop as a part-time pastry chef on Friday weekends with some volunteering internship without payment. Second, the original chef and her can negotiate to decide about work distribution, when the sales volume increases, then she can become the second chef, if Maria can cook better than the chef, she can become the dominant chef as an official employee when they expand their business. If the chef is in charge of Maria, he should pay her for the work in price budget. If Santosh and Rama want to have Maria be an official chef, it must be every work day. Maria is currently unqualified, so she can primarily learn from the chef. Second, to be an independent contractor, she needs more. If she wants to be a sole trader, she should bear the independent administration procedure, selling the ice cream and bear taxation. It is her legal right to establish the shop in the name of Maria's Tasty Treats. She can register the new name and should form one contract in cooperation with them. The time restriction, product providence, price, commission distribution, sales target, enforcement, remedy, and particular volumes.

2. One Saturday morning Maria's dad Mick comes over and says to Santosh that his daughter is being exploited and underpaid and he will be ringing Fair Work Australia to complain.? According to Fair Work Act 2009, the arrangement is as follows. “The Fair Work Act 2009 stipulates that employers must take all reasonable steps to notify employees of their right to a bargaining agent not later than 14 days after the notification time of the agreement. The negotiation should be on the basis of the contract (CCH editors, 2009).” First, without contract, Santosh has violated Contract Law, the remedy of work standard has never been listed. Second, if they avoid the accusation, it is a kind of illegal implementation on HR management, which deserves to pay compensation for the employees according to Labour Law. Third, Fair Work Act 2009 also indicates about unti-bullying and unfair misdismissal. It is suggested that “If you have been dismissed from your employment, within 21 days, Fair Work Commission can accept application (CCH editors, 2009).” If Maria is dismissed because of negotiation or other problems, the legal right of her is also protected.

There are some issues in the explanation. First, Maria is not an independent business entity and has not administration burden, she is one employee currently. Second, the agreement is one year and the fixed payment is 5$/hour. The fixed work time is 8 hours/week, the optional work time is 2 hours/week. The minimum monthly payment is $160, the maximum payment is $200. It will be paid to Maria on fixed date. The historical loss or delay in payment should be compensated at least according to the minimum monthly payment as they have negotiated previously. If Santosh rejects the payment, the further suing should be executed.

Third, if there is no record, the corporate has violated the Labour Law and Contract Law, Constitution, with evidence of Maria’s manufacturing ice cream, one agent or lawyer can be called to undergo the arbitration in tribunal. During this procedure, Santosh and Rama have no HR or accountant, the corporate governance has violated the enforceability and mutual consent, it is a kind of illegal management which should undergo the fine as administration loss (Gans, Palmer, 2004).

Fourth, the agreement should be followed. The volunteering work explanation has been announced before in internship for 3 months, however the equipment or tools provided by shop is for public use. In this procedure, it has nothing to do with work itself. When Maria is engaged in chef, what she should do is to accomplish the ice cream manufacturing. In the agreement later, apart from work time, work task, work salary, the enforcement and remedy, insurance should be as follows. According to Fair Work Commission in Australia, in the first level, the Fair Work Website can be in charge of investigation and audit, if the employees’ number and salary payment is not coordinated, the corporate should be the compensation. In the second level, the Constitution Law and Civil Law have listed out civil and legal right, when corporate acts differently from the agreement in the procedure of implementation, it is a kind of fraud or fake salary production, the conspiracy in corporate deserves economic compensation and criminal sanction. In the third level, Maria’s work quality should be reassessed, for example, material, manufacturing procedure, customer feedback, if the product is unqualified, or Maria goes out for assistance without consent of corporate or Santosh wants to recruit other workers excessively without any management, the possibility of employee’s loss can be predicted and investigated historically.

Question 3 - Contractual Issues (6 marks)

1.Elvis Presley’s promotion in hotel service as advertisement, stating “Supersized Special Santosh Sundae for 10 cents instead of its usual price of 10 dollars on Sunday in 'Santosh and Rama Ice Cream Food Truck'.” There are 120 Elvis impersonators and he declares stopping in doing so.

Australian Customer Law has reinforced that consumers are those who can acquire particular goods in transaction or service. Part 2-1 suggests prohibition of misleading or deceptive conduct in trade or commerce, Part 2-2 suggests prohibition of unconscionable conduct in trade or commerce. The elements of misleading conducts contain dishonesty, fact, ground. In this procedure, the results come out that the time is neglected without clear explanation and he only declares in the middle of the advertisement (Bottomley, Hall, Spender, Nosworthy, 2017). It is a kind of ignorance of fact and isolation from fact, overlook of ground, over-estimation of fact. These judgment faults have led to the declaration legally. The consumers are in a passive position, but further communication is necessary. Santosh has not clearly designed the advertisement, the budget making $10 and 10 cent would reduce the $1080, the advertisement activity costs more. In this procedure, the extra time limitation can be explained to consumers, on the condition of emptiness previously, it is not a kind of uncoordination, instead it is a kind of bi-lateral agreement, without illustration, Santosh owes consumers one opportunity to explain. However it is within legal perspective.

2. Insufficient concerns should not be provided because it is dishonesty and violates the Consumer Law. The fact is they can make sufficient products. What they should communicate is that, Santosh should suggest that, “we only have 10 pieces or other number.” It is the authority for Santosh to do the marketing. Furthermore, he can suggest “more audience can engage in voting on TOP 10 impersonators“, then more audience can turn into consumers, the impersonators also admit their performance’s value. If he says it is insufficient, it is deceptive and should bear legal responsibility.

3.He had provided the contract and should make his contract valid,? if he has the advertisement and denies the advertisement, it is a kind of misrepresentation and deceptive conduct, dishonesty, the remedy should be paid to all the consumers if he suddenly withdrawn the advertisement. It should cost compensation, injunction. S236, S232, S237, S239 should be obeyed? (Bottomley, Hall, Spender, Nosworthy, 2017). What is worse, it is a kind of conscionable conduct,? compared with unconscionable conduct, it should pay for psychological damage or loss. What he should do is continue to execute the advertisement or optimize the advertisement to alleviate the problem and communicate honestly with consumers about the value of his products and original meaning of the show.

Question 4 - Intellectual Property (6 marks)

1.In advertisement, the property is classified as real property, personal property (chattels property, chattels personal (tangible and intangible property)). The creative, intelligent, administrative efforts should be reinforced and commercialized. Containing in transaction and protection because of individual preferences and talent differences. The World Intellectual Property Organization is one organization in UN. Inside the intellectual property, the trade mark, service mark, commercial name, designation, unti-fake product, activities around trade mark should be included in one integrated solution making.

When Santosh and Rama start the brand activity,? " Santosh and Rama's Ice-Cream Food Truck" and its visual image is protected in the procedure of their business. Without any permission from them, others can not deliberately take advantage of it to commercialize. However, if they are fans or publicly use these visual images, it is a kind of advertisement, Santosh and Rama should be happy because their brand can be expanded. Furthermore, if they misrepresent the visual image with other brand, it is a kind of violation and tort. On one hand, the intellectual property has been falsely invaded. On the other hand, they have not clearly applied for trade mark in food category.

As Consumer Law has suggested, the statutory protection contains copyright, patent, trademark, design, moral right, performer right, plant breeder right, geographical indication of Wines, layout of integrated circuits, business identity and goodwill, Olympic commonwealth games, common law protection covers secrete and confidential information, indigenous knowledge, cultural expressions and genetic resources, passing off and so on.

In a business sense, the geographical indication of Santosh’s business is not limited in local areas, when they hold the club on the beach, it is also applied. The design should not be copied because of the coordination between the brand visual image and the business content. The conceptual ideas inside the visual image should be tightly coordinated to business. It means, wherever the business of Santosh goes, they hold the authority to declare the intellectual property. (it is suggested within the legal range in Australia, for example, in China, the intellectual property is different).

What is the problem inside Intellectual property protection is that the cultural expression is always different, if the beach’s fans take advantage of the visual image to express their own cultural content, then Santosh also can do nothing but accept the current condition according to the legal act. If he complains about the picture of himself, he should apply for the violation of portrait and security. At the same time, the visual image has been publicly seen and watched by all the consumers, there is also no excuse to say that it is confidential information protection. In this perspective, the fans can take advantage of the picture of the visual image, if Santosh is not comfortable about his picture, he can apply for civil right violation, but he can not prohibit fans’ taking photos with the visual image.

In the intellectual property statement, the duration of the copyright is 70 years after the end of the calendar year in which the author of the work died. The earliest activities can be counted.

If the fans use it for commercial use, it is a kind of infringement because of similarity. Both casual connection and objective similarity are prohibited (Thampapillai, Bozzi, Tan, Matthew, 2015). But, for example, the fans do not use Santosh’s visual image similarly and changes a lot, it is not a kind of copyright infringement. For another example, if fans’friends do not know it belongs to Santosh and start second hand utilization of the visual image on T-shirt or other places, even it is irrelevant to Santosh’s business, he should sue them because it is violation of intellectual property of him. For a further example, if the utilization is relevant to Santosh’s business, it is a kind of volunteering advertisement, why Santosh is not happy is about his own photo, he can optimize his advertisement and replace his own picture with other pictures.

The copyright holder and author of photo, portrait in the photo are three concepts. The copyright holder runs the whole program with regards to intellectual property. The author of photo just takes the photo and manufacture the visual image as one part of intellectual property. The portrait in the photo is a kind of natural entities’ preferences, when it is commercialized, it should be consented in person and once it is utilized in business, it no longer belongs to the natural entity because it should be used as a kind of intellectual property relating to the whole program, any change should be consented by the corporate? (Bottomley, Hall, Spender, Nosworthy, 2017).

If Santosh engages his photo into the visual image willingly, he should pay compensation, if he unconsciously does so and wants to change, he can sue his own corporate because of violation of civil right, including portrait right, privacy, goodwill and so on. If he likes to let his photo be inside the visual image in business but does not want others to separate his photos or twist his photos, he can ask others to stop doing so and individually or personally sue the person who take advantage of his photo without consent.

If he wants to stop others to use his photos, if he wants to change the total visual image, including name or slogan or other issues, the fans should be sued because of the violation of the intellectual property, in intelligent industries, the intellectual property is exclusively applied, the fans have no creative artwork or relevant activities, their behavior in commercial use is a kind of deceptive conduct and dishonesty in corporate governance, violating the corporate law, the behavior is deserved to be punished with fine and go to jail for criminal penalties as a kind of plagiarism (Mitchell, Donnell, Marshall, Ramsay, 2016). The misrepresentation between the visual image and the use has seriously damaged the original corporate’ s market reputation. If the fans have their own huge business, and even have thousands of revenues, their market reputation would also be seriously effected because of intellectual property infringement. For example, if one fan has 16000 employees and promoted the pictures to employees as uniform, the economic compensation should be related to the scale of the corporate and the market value of the corporate. After the budget making, the compensation to Santosh and Rama’s small business would be huge. If the products contain Santosh’s portraits, all the products should be returned to the fans’ corporate, the damage should be owed to that corporate (Bruce, 1989).

Furthermore, if the fans misuse the portrait in other places in commercial use. For instance, if the portrait of Santosh is marked in public bus. There are two conditions, one is relevant to Santosh, the other is irrelevant to Santosh. If it is irrelevant to Santosh, it fringes the civil right of personal security and privacy. If it is relevant to Santosh for advertisement but does not know Santosh, it violates the civil rights as mentioned above. If it is relevant to Santosh and knows Santosh, it should pay him for the advertisement.

In addition, if it is not commercially used, if Santosh does not agree, he can contact fans to delete the photos, if he permits to do so, he can explain which function can he use.? What is more, if he wants to make advertisement about his own business, he should try out several solutions (Mitchell, Donnell, Marshall, Ramsay, 2016).

2.First, the visual image contains his portraits and can be reused in the market as a kind of advertisement. Second, the visual image contains his LOGO without portrait but contains other trade mark, the market can also take it as advertisement, which can be recognizable in marketing and sales volume increase (Mitchell, Donnell, Marshall, Ramsay, 2016).

Third, if the visual image contains his portraits with other brands, there are two possibilities. One is his visual image can be reused to expand the business. Which brand can be so strange to use other corporate’s founders’ portraits in their own advertisement? The other is his visual image can be misused and his reputation and other civil rights can be violated. The compensation should be paid to him.?

Fourth, there are two founders who accidentally have similar appearance. There is no legal responsibilities for such kinds, if Santosh wants to keep his business more unique, he must change his brand’s visual image. However he can do nothing to intervene others’ business.

Fifth, if others changes his portraits into some artworks, such as surrealism paintings or changes him into stars for commercial use, the intellectual property is still violated for that corporate and should pay compensation, the author of the artwork should negotiate with Santosh if they two would like to cooperate, if the author wants to purchase the painting, Santosh has not right to intervene in the painters’ artwork product, because it is the authors’ intellectual property.