Welcome to the January edition of the Smart Business Bulletin, linking Queensland businesses with fair trading information and tips.
Australian's spend approximately $1.5 billion on gift cards per year and with the Christmas festivities not far behind us, I would like to provide consumers with a timely reminder to read the terms and conditions before redeeming their gift cards.
It is also important that consumers and retailers have their say on the gift cards reform.
The Commonwealth Consumer Affairs Advisory Council (CCAAC), in conjunction with state and territory fair trading agencies, is looking at options for better consumer protection measures around gift cards.
A public consultation is now underway where you can have your say on the issues affecting the sale and use of gift cards in Australia.
You can complete a short, anonymous, online survey or provide a written response to the issues paper.
Whilst the government is contemplating legislative outcomes, it is clear it is good business practice and will give traders a competitive advantage if they have consumer friendly gift card policies, rather than those that seek to profit at consumer expense.
I look forward to continuing to work with consumers and retailers to identify best practice options for governing the terms and conditions of gift cards.
Hon Paul Lucas MP
Attorney-General, Minister for Local Government and Special Minister of State
Transition to Personal Property Securities Register
On 30 January 2012, a new national scheme governing all types of security interests over personal property will start.
To facilitate the transition from Queensland's Register of Encumbered Vehicles (REVS), Bills of Sale Register and Register of Cooperative Charges to the new national Personal Property Securities Register (PPSR), Queensland's registers will close at 5pm AEST on Friday, 27 January 2012. Paper applications will close at 5pm AEST on Wednesday, 25 January 2012.
Once the Queensland registers close, you will be unable to register or modify a security interest until the PPSR commences on Monday, 30 January 2012. This weekend of down-time will be used to ensure all security interests held on Queensland's existing registers are migrated across to the new national PPSR. You will still be able to conduct searches of the registers over this weekend.
Regulation on safety standards for bunk beds
A new regulation to improve child safety by requiring short-term accommodation premises to comply with a mandatory safety standard for bunk beds was made on 8 December 2011.
The Fair Trading (Safety Standards) Regulation applies to people who provide short-term accommodation services, where the accommodation could be used by people under 16 years of age. Under the regulation, short-term accommodation is defined as accommodation supplied in trade or commerce for a period of 60 days or less.
Short-term accommodation providers have until 21 October 2013 to ensure all bunk beds supplied or offered as part of their accommodation service comply with the mandatory standard.
The safety standard prescribed in the regulation is based on specified clauses of the Australian and New Zealand Standard for bunk beds (AS/NZS 4220:1994), which is available for purchase from the SAI Global website.
For more information, visit our website.
New regulation for duplex owners
A new regulation for residential community titles schemes containing only two lots (more commonly known as duplexes) will commence on 28 February 2012. The new regulation aims to make the day-to-day management of duplexes less complex and less onerous for lot owners.
The regulation simplifies management arrangements in the areas of decision-making, financial management and by-law enforcement by:
- enabling a decision of the body corporate to be made by written agreement between the owners of the lots in the scheme. The body corporate need not elect a committee and need not hold meetings for body corporate matters.
- providing a lot owner to authorise a person to act for the owner in body corporate matters.
- providing body corporate expenses to be funded in a way agreed between the owners, by written agreement. There is no requirement for the body corporate to establish accounts, decide budgets or prepare annual statements of accounts.
- enabling a lot owner, rather than the body corporate, to enforce the scheme's by-laws.
For more information, visit our website.
New Laws for Associations and Retirement Villages Passed by Parliament
New laws for associations and retirement villages were passed by Parliament in late 2011. These changes make it easier for Queensland associations to transfer to a company structure, and introduce new protections for retirement village residents.
Making it Easier for Associations to Transfer to Companies
Amendments to the Associations Incorporation Act 1981 allow incorporated associations to seamlessly transition to being a company limited by guarantee under the CommonwealthCorporations Act 2001 or an Indigenous corporation under theCommonwealth Corporations (Aboriginal and Torres Strait Islander) Act 2006.
The Associations Incorporation Act 1981 provides a simple and inexpensive mechanism for small non-profit groups to incorporate. However, when associations grow in size and financial turnover, it may be more appropriate for some of them to choose to incorporate as a company limited by guarantee or an Indigenous corporation. Such a transition may be prohibitively expensive due to transfer duty and capital gains tax costs.
Under the new transition process provided by the amendments, transfer duty and capital gains tax are not payable because the assets of the association continue to be owned by the same body, despite the change of corporate status.
Consistency for Exit fees in Retirement Villages
Amendments to the Retirement Villages Act 1999 in relation to exit fees were also passed as part of the Civil Proceedings Act 2011. The amendments clarify the circumstances in which the exit fee must be calculated on a daily pro rata basis.
An exit fee is the amount paid under a residence contract to a retirement village operator by a resident when they leave a village. The fee is normally included in the residence contract and usually increases the longer a resident stays in a village.
For all future residence contracts, the amendments provide a daily pro rata method of calculation will apply. Under this method, the exit fee will be calculated taking into account the specific number of days the resident has resided in the unit. In addition, the daily pro rata method of calculation will apply to existing contracts where the contract does not specify another basis for calculation.
These amendments will provide fairness and certainty for retirement village residents in relation to how their exit fee will be calculated. They will not commence until a date to be determined, thereby giving scheme operators time to revise their residence contracts to incorporate the new mandatory requirement.
For more information on these changes, visit the Regulatory reformsection of our website.
Proposed reform to current plumbing laws has been introduced into Queensland Parliament.
The Sustainable Planning and Other Legislation Amendment Bill 2011 was introduced into Parliament on Tuesday 11 October 2011. The Bill includes amendments to the Plumbing and Drainage Act 2002 to reform the approval system for plumbing work. What is currently known as Notifiable Minor Work (NMW) will be expanded to increase the amount of plumbing and drainage work that can be undertaken under this process. Once these changes are passed, NMW will be known as 'Notifiable Work' (NW).
In summary the amendments will:
- add a new category of work known as Notifiable Work (NW)
- require lodgement of NW (Form 4) with Plumbing Industry Council rather than local government
- shorten the period in which a licensee must lodge a Form 4 from 40 business days to 10
- enable a licensee to lodge a Form 4 electronically through Smart eDA
- require a licensee to give a copy of a Form 4 for work performed to the consumer
- add a new disciplinary provision so that the Plumbing Industry Council can take disciplinary action against a licensee who fails to give a notice or document as required
- provide for a Plumbing Industry Council auditing function to enable Plumbing Industry Council staff to audit licensees to ensure they lodge forms
- change the term 'regulated work' to 'compliance assessable work'
- change the term 'Other Minor Work' to 'Minor Work'.
The Bill and the explanatory notes are available here. If the Bill is passed by the Legislative Assembly, a regulation will specify the full details of the scope of NW and minor work with the remainder of work to be classified as 'compliance assessable work'.
Check your business name before you apply
The selection of a business name is important, as a clever or memorable name can lead to business success. But choosing a name that infringes on an existing trade mark can be a costly exercise, it could mean hefty legal bills, drawn out disputes or even the closure of a business.
When you're going into business it is vital to understand the difference between trade marks and business names.
- A trade mark identifies a product or a service, distinguishing it from similar products or services. Trade mark registration gives the owner the exclusive right to use the trade mark for the goods and/or services for which it is registered. Registration covers the whole of Australia.
- A business name is a trading name only. Registering a business name does not provide the owner with proprietary rights to that name.
TM Check is one of a raft of new initiatives that form part of the Council of Australian Governments reforms to reduce the regulatory burden on business and to help deliver a seamless national economy that supports Australian innovators.
Make sure your business name is not infringing someone's trade mark, search TM Check now.
ABN email scam circulating
A number of fraudulent emails have been circulating recently targeted directly at members of the Australian public and those with businesses. The emails are purporting to be sent by the Australian Taxation Office, attempt to trick users into clicking links contained in the body of the email by claiming that there have been changes made regarding either the use of an ABN or changes regarding the submission of tax lodgements.
While the links appear to be to the Australian Business Register website, if the user hovers the mouse cursor over the link, the link actually displays a completely different destination website. If a user clicks on the links contained within the emails they are taken to a malicious website which will infect their computer with malicious software, also known as malware.
Malware will potentially perform harmful activities such as stealing passwords or other sensitive information and relay the stolen information to criminals, or even damage the user's data and operating system. Visit Stay Smart Online for more information.
Court rules agent failed to comply with Fair Trading form
The Queensland Court of Appeal recently heard a case involving a real estate agent who had sold a $9 million property appealing against a District Court verdict that denied him over $225,000 in commission for the sale.
The case centred on whether the real estate agent was able to claim commission on
the sale, taking into account that he had not completed every section of the 'PAMDA Form 22a – Appointment of a real estate agent', an Office of Fair Trading form. The real estate agent had specifically failed to fill out section 4.1.1 of the form, which details the services the agent would provide to the seller.
The real estate agent maintained he had 'substantially complied' with the form, as defined by s49 of the Acts Interpretation Act 1954. The seller contended that, by leaving the section blank, he had not substantially complied.
In a unanimous judgement, three Court of Appeal judges ruled that by failing to fill in the form completely the real estate agent had not substantially complied with the form, and so had not been properly appointed – meaning he was not entitled to receive commission. In delivering its judgement, the court found that the intent of the legislation was consumer protection and that under the circumstances; it should be construed in favour of the seller, who was the 'consumer'.
This decision has ramifications for any industry where the law imposes an obligation to properly complete paperwork before being entitled to be paid. The Office of Fair Trading reminds businesses and licensees that every care should be taken to ensure that the information outlined in the form is understood and every relevant section is completed. Please also ensure that you are using the correct and up-to-date version, by downloading it from our website. Businesses that fail to complete the paperwork correctly risk being unable to recover the fee they have earned.
The full text of the judgement is available from the Supreme Court of Queensland
What's in the news?
Toxic toys pulled from Australian shelves -16/12/11
The Queensland Government is leading the way in the battle to stamp out toxic phthalates in children´s toys.
Family affair as unlicensed car dealers fined - 14/12/11
A man, his sister and her husband have been fined a total of $12,500 after being convicted of unlicensed motor dealing in the Richlands Magistrates Court recently.
Bunk bed laws protecting Queensland children from today - 09/12/11
The risk of unsafe bunk beds harming Queensland children will now be reduced with new laws coming into effect today.
Comment sought on gift card use in the Australian market - 09/12/11
Queenslanders will be able to have their say on the issues that affect them when they buy or receive gift cards following the release of an issues paper.
Dating agency director sentenced for breaching court order - 02/12/11
A Gold Coast dating agency director has been sentenced to six months imprisonment for contempt of court after a hearing in the Brisbane Civil Supreme Court today.
Gold Coast charity fined for unauthorised fundraising - 22/11/11
Gold Coast charity Peace for the Children Ltd and one of its directors, Grant Hilton, have been fined a total of $60,000 in the Southport Magistrates Court for unlawful fundraising.
Beenleigh real estate agent and company fined $25,000 - 08/11/11
A Beenleigh real estate company and the principal licensee have been fined $25,000 in the Beenleigh Magistrates Court for unauthorised withdrawals from a trust account.
Gold Coast real estate company fined $100,000 - 04/11/11
A Gold Coast real estate company has been convicted and fined $100,000 in the Southport Magistrates Court today for unauthorised withdrawals from a trust account.
New laws simplify business registration - 26/10/2011
Queensland businesses will have access to easy processes to register their names following the passing of legislation in Parliament tonight.