Australia legal system
Globe International Limited is an international company that was founded in 1985 in Australia by three native brothers of Australia. They deal in production and distribution of apparel meant for specific activities such as those used in workplace and sports, footwear and skating board hard goods. The company’s products are divided into proprietary brands, distributed brands and licensed brands (Singer, 2018). The company has several international offices located in different countries. The company has operation activities in Australasia, North and South America and Europe.
The company’s products are consumed in more than a hundred countries internationally. Despite having an international presence, Globe International has not attempted to penetrate the African market. A detailed analysis of Kenya and South Africa business environment will help the company to decide which of the two countries to invest in. in this paper, the legal system of Australia will be reviewed (Liu et al., 2018). It then is compared with the legal system of Kenya and South Africa in relation to business operation. In this paper also, the SWOT and PESTEL of South Africa will be discussed and finally, a recommendation is going to be given to the board of directors of Globe International Limited on the country they should invest.
The Australian legal system is derived from England which was her colonial power. Australian constitution came into effect in 1901. This constitution led to the formation of a federal system of governance (Murphy, Grant & Anthony, 2018). The constitution highlight exercise of power between the government at the national level and the states. It also highlights the limits of law formulation between the government and the states. Three types of powers are involved in the Australian legal system. They are the executive, the judiciary and the legislature.
The legal system of three countries varies slightly. The laws of Kenya and Australia are derived from England while the law of South Africa is a mixture of civil law from Dutch, British laws and customary laws.
The company operating in Australia have to comply with the employment laws as stipulated in the Fair Works Act 2009. The Act gives guideline in areas such as work, health and safety matters and non-discrimination guidelines (Dawkins, Tian, Newman & Martin, 2017). Companies operating in Australia or willing to expand in Australia should keep the following consideration in mind so as to be in harmony with the law.
- Employers should be fair in providing employment to all parties. They should avoid discriminations at all costs and provide equal employment opportunities.
- According to the Fair Work Act, employers are not supposed to discriminate employee with respect to race, color, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, and social origin (Haigh, 2018).
- Employees in Australia have a right to 12 months unpaid parental leave.
- Employees should be provided with the same job they had before the leave.
- Fathers have a right to a week’s paid leave.
- Employees with parental and caring responsibilities have an entitlement to a flexible working plan upon request as long as the request does not have a negative impact on business operations (Godden & Kallies, 2018).
- Employees who work on a contract of service are usually protected by employment laws while independent contractors are not under protection.
- Employment contracts can either be in written or unwritten form.
- An employee is not supposed to exceed the weekly working hours set by the National Employment Standards (Corbin & Perry, 2019).
- Employees should be provided with written notice before their contract is terminated.
- The law permits the employer to make an employee remain at home during their notice period. During this period an employee remains employed.
- Termination of employees’ service should be done in a just way, nondiscriminatory, and reasonable (Jacquet, Witt & Rifkin, 2018).
- Employers should exercise dismissals in a procedural way.
- The fine imposed on forced labor varies in the three countries. In Kenya, the fine is 5 million shillings.
- The minimum wage paid in the three countries is not the same. It depends upon many factors. The minimum wage is determined by respective country agencies. It also varies depending on the type of occupation.
- The currency used in payment varies in each country. Kenya uses shilling while South African uses Rand.
- Australia has a maximum working of 37 working hours a week while in Kenya the maximum working hours of employees in Kenya is 52 hour in a week. On the other hand, the maximum weekly working hours in South Africa is 45 hours. This implies that companies intending to invest in Kenya will enjoy service of employees in a week when compared to Australia.
- Employees in Australia and South Africa are entitled to a 2 day bereavement leave each and every time there is a death or sickness of a family member. This days are exclusive of the annual leave. On the other hand, in Kenya, the compassionate leave is subtracted from the annual leave.
The intellectual properties rights recognized by the law in Australia are patents, trademarks, copyrights, design rights, trade secrets, and confidential information and others. Companies operating in Australia should be aware of all the requirements pertaining to intellectual property rights (McWilliam, Yeung & Green, 2018).
- A patent is used to protect an invention that meets the criteria below:
- The invention should be novel and beneficial to society.
- The invention should entail an inventive step.
- A patent can also be provided to an invention that has not met the inventive step condition.
- An innovation patent is valid for eight years while the standard remains valid for twenty years (Crush & Peberdy, 2018). The validity for pharmaceutical patent may be extended to twenty-five years.
- Employers are required to pay an annual patent renewal fee.
- A patent search is used as a method of avoiding the violation.
- Violation activities can be checked through examination of market activities through internet searches.
- Organization trademarks may be registered with IP Australia.
- A renewal for trademark registration should be done after every ten years.
- Violation of registered trademarks can be prevented by carrying out a search for whether a similar registered trademark exists (Commons, 2017).
- Reviews of competitors’ activities should be carried out at an interval to ensure that violation activities are observed.
- They are usually not registered in Australia. A copyright exists in a work that is original and with a traceable human author.
- Internet searches should be used to avoid copyright infringement.
- Goods produced by competitors should be periodically reviewed and internet searches conducted as a monitoring activity (Anand, 2017).
- A company to register its design, the design should be unique from all the existing designs.
- A design right is valid for five years after which it should be renewed only once.
- Registered design search, as well as market check searches, should be undertaken to avoid the violation.
- A market review should be carried out at intervals as a monitoring activity (Moore, 2017).
- Confidential information is not usually considered as a personal property. It usually protected through contract signing or punishing those who breach confidence.
- To avoid a violation, employers should be cautious in using information received from new employees as it may have been obtained from the previous employer.
- The duration for a copyright varies significantly in the three countries. It also depends on the category in which the work belong. For example in artistic work,
- Copyright protection in Australia covers the entire period in which the artist lives with an additional period of 70 years.
- In Kenya and South Africa, the protection covers the entire life of the artist with an additional protection of 50 years.
- Patents in the three countries expires after 20 years and should be renewed annually. The renewal fee varies significantly in the countries.
- Registered design in Australia remain protected for five years with an opportunity of renewing once. Although the protection duration in Kenya is the same as Australia, Kenya gives an individual opportunity to renew twice. On the other hand, South Africa has two categories of design protection, that is, aesthetic design and functional design. The former last for fifteen years while the later last for ten years.
- Renewal for registered design is done every year after the third year.
- Agency in Australia is usually guided by the common laws of respective states of operation as well as the federal legislation.
- Employers ought to abide by the agency laws in the respective state where their operations are based.
- Different statutes are used in guiding the licensing and business activities of agents in the different field. For example, travel agents are guided by Travel Agent Act of the respective state of operation.
- Termination of an agency is done as per the agreement in the contract document.
- Common law principles are used in the determination of unpaid commission and entitlement to damages.
- Australian common laws are used in governing the breach of contract.
- Agency should be terminated by following the agreement in the contract.
- Acts of tort in Australia can be classified as defamation, trespass, and negligence (Howells & Ramsay, 2018).
- The employer is responsible for the safety of the employees when at the workplace.
- Interference with the employee’s privacy is an act of tort.
- Workers who are injured while at work should be compensated by the employer.
- The remedy to tort cases is compensation.
- Tort in South Africa is referred to as the law of delict. It is based on the Roman law. On the other hand, the law of tort in Kenya and Australia is mainly borrowed from the British law.
- Due to the complexity of the contract law, investors are advised to prepare a standard agreement with the help of the solicitor to prevent confusion.
- A contract can only be entered by those who have the legal capacity to enter.
- A contract should also comply with all the legal formalities.
- An employer is supposed to adhere to the agreements in the contract document.
- An employee must understand the terms of the contract before signing it.
- In Australia and South Africa a written contract is not mandatory. On the other hand, in Kenya, an employment of more than three months should have a written contract.
Having analyzed the two countries, that is, Kenya and South Africa, I would like to recommend to the board of directors of the Australian company that they should consider investing in South Africa as opposed to Kenya.
South Africa has many exploitable opportunities which the Australian company can take advantage of. One of the greatest opportunity is the availability of natural resources. These energy resources include the availability of precious metals, energy minerals, and industrial minerals. Energy minerals such as coal and uranium are used in the production of the huge amount of energy required for industrial use (Lakin & Scheubel, 2017).
Comparison of the Australian legal system with Kenya and South Africa
The second opportunity that can be exploited is the availability of labor. South Africa has a high rate of unemployment. This provides a cheap labor force required in an organization. The company can provide employment opportunities in the country and provide good terms of employment. This will, in turn, improve the output of employees. The end results will be satisfied employees and improved profits (Kshetri, 2017).
By giving back to the society that is faced with uneven distribution of resources, the company with improving its reputation and acceptability in the South African environment. The legal requirements of starting a business in South Africa are not very complex. The only major risk of starting a business in South Africa is the unstable political environment. However, the situation has improved since the election of the new president. The situation is further expected to improve after next year’s elections (Richardson & Callegari, 2017).
Conclusion
Among the many African countries, South Africa has been listed among the best countries to start a business. It is also among the most developed economies in Africa. The economic position in which South Africa is placed in the African continent clearly indicates that is a good country for investors to invest. When compared to other African countries, South Africa has a well improved infrastructure which can effectively support a company’s operations. The country is well endowed with natural resources which enable the country to produce cheap electricity. Furthermore, the country has many opportunities for growing their business. South Africa provides a good opportunity for the Australian company to venture in and expand their business. With their huge financial muscles, Globe International Limited can take advantage of South Africa to widen their market to the African countries.
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