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In compliant with the assignment requirement criteria the case scenarios in the assignment questions shall be addressed with an intention to understand the legality of the cases.
Jarvis Bay located on the coastline of New South Wales is among one of the large open embayment that support commercial fishing and scallop dredging to a certain extent. This particular location is evident to produce about 2, 800 tonnes of scallops with a present market price of about $4 million. However this large market price of the scallops obtained from the Jarvis bay of New South Wales is not consistent and occurs every one in 10 to 20 years. In order to maintain consistency in scallop production it is essential to address the problems related with low and variable recruitment of juvenile scallops with an intention to obtain sustainability in scallop farming industry ("Scallops - research information sheet", 2016).
The above mentioned information is vital for Bob Beech that has been identified as the primary subject of the provided case scenario. According to the case provided it is observed that Bob Beech is a scallop fisherman involved in scallop fishing in the Jarvis bay waters of New South Wales. Important to note that he has to follow the guidelines in term of catch limit restriction. However, supporting his intention to double his business law profitability, his daughter has suggested incorporating a company in this respect. In this context understanding the requirement of Bob Beech it can be stated that his daughter’s suggestion shall not be effective as restrictions on catch limit is applicable in all the cases.
In order to obtain sustainability in the marine freshwater ecosystem the governing body of Australia has formulated the Fisheries Management (supporting plan) Regulation 2006 and the Fisheries Management (general) Regulation 2010. Hence if Bob Beech desires to establish a company in this respect he should be very much aware of the relevant fisheries legislation and applicable endorsement conditions. Furthermore he should be thoroughly informed regarding the restrictions applicable of fishing operations particularly those applicable in the marine protected locations. For example according to Section 8 of the Fisheries Management Act 1994, it is restricted to take all species of fish using abalone viscera as bait or berley by all individuals and in all waters. This above mentioned fishing closure is valid for tenure of 5 years from the date of publications of this notice. .Bob Beech should also known that the primary objective of this above mentioned fishing closure is to lower the risk of transmission of abalone viral ganglioneuritis into the waters of New South Wales and this fishing closure is applicable on both commercial law and recreational fishing (Fisheries Management ACT 1994, 2014).
Important to note that incorporating a company shall not be an effective approach for Bob Beech to double his business profitability because of the fact that statutory rights with respect to fishing and catch limit is applicable under all circumstances. The statutory fishing rights are imposed by the Australian government. According to Section 31 of the legal rights with respect to fishing has been documented while Section17 of the Fisheries Management Act 1994 are associated with the execution of management planning. However Bob Beech should also know that legal guidelines with respect to fishing rights and restrictions vary according to location and habitat of the marine species (Fisheries Management ACT 1994, 2014).
Similar to other fisherman, Bob Beech is also entitled to apply for a fishing right permit wherein he shall be permitted to catch a specific amount of scallop. For the use of fishing equipment and gear certain statutory rights are also found to be applicable. According to Section 4 of the same act statutory fishing rights are imposed on the boat that can be used in Australian waters for the purpose of fishing. Bob beech should file an application for the commonwealth fishing permit that is issued under Section 32 of the Fisheries Management Act 1994 through which he can obtain the permission to fish in high seas ("Fisheries Management ACT 1994", 2016 ).
Important to note, that even though Bob Beech proceed for incorporating a company he has to follow the bag limits applicable for the scallops taken by means of a dredge. According to the Fisheries Management (general) Regulation 1995 under Section17 (1) of the act, ‘when scallops are taken by means of a dredge or similar device or by a combination of dredges and similar devices from a boat, the daily limit of scallops is whichever of the following applies: (a) if the scallops are placed in sack-30 approved sacks of scallops, (b) if the scallops are placed in crates- 48 approved crates of scallops.’ On the contrary Section18 (1) of the act is applicable on commercial fisherman in possession of the scallops that is in a boat containing a dredge or similar device. Therefore in either case, Bob Beech has to follow the restrictions imposed with respect to the catch limit of the scallop and hence suggestion to incorporate a company cannot be appreciated. However for improving his business profitability, Bob Beech may opt for exports business of the scallops as it has a lucrative demand within the Asian markets ("Fisheries Management ACT 1995 - REG 15Bag limits-scallops taken by means of a dredge", 2016).
According to the legal definition of ‘corporate veil’ is a legal implication that is effective to separate the personality of an organization from the individuals of its shareholders and subsequently protecting the parent company from the liabilities that may arise due to conflicts of interest, lack of duty of care and also from risk liabilities. However it is to be noted that corporate veil although act as a protection to a certain extent but is not of impenetrable in nature. It is completely on the decisions forwarded by the judiciary body whether corporate veil is applicable or it shall be pierced or lifted. In case of wholly owned subsidiary the parent organization although being the primary regulatory body is often excluded from the liabilities through the application of corporate veil. However with the implementation of the concept of ‘piercing the corporate veil’ from 1912 onwards, it was evident that the plaintiffs initiated arguments stating that the subsidiaries are ‘mere instrumentalities’ or ‘alter egos’ of their respect parent organization ("Anderson, Helen --- "Piercing the Veil on Corporate Groups in Australia: The Case for Reform"  MelbULawRw 13; (2009) 33(2) Melbourne University Law Review 333", 2016) .
Referring to the case provide in question 2 it is observed that a grave physical injury has been suffered by 5 of the audiences due to the negligent act of the Nuclear Blast Sounds Pvt . Important to mention that the above mentioned organization is a wholly owned subsidiary of New Nirvana Ltd that is identified as the parent organization. In this case the Nuclear Blast Sounds Pvt is evident to deny giving remedy to the damages suffered by the claimant due to absence of insurance claim. Although the Nuclear Blast Sounds Pvt is significantly liable from the physical injury caused to the claimants but the parent organization is also accountable in this respect. Important to note that as the extent of damages suffered is severe and has caused an auditory impairment on a permanent basis, New Nirvana Ltd cannot aloof itself from bearing the liabilities using corporate veil. Therefore in this case corporate veil has to be pierced holding the parent organization equally accountable from the damages caused to the audiences and should subsequently compensate them.
The case of Salomon versus Salomon & Co Ltd can be cited in this respect that is a classical example as a UK company law. In this case the effect of the House of Lords was found to be upholder firmly by the doctrine of corporate personality. The decisions forwarded in this case, stated that the creditors of an insolvent organization is not entitled to sue its shareholders in order to pay the outstanding debts ("Salomon v Salomon Legal Case Summary", 2016).
An essence of contributory negligence cannot be completely rules out because of the fact that both the parent organization and its wholly owned subsidiary are liable for the damages suffered by the claimants. The case of Nettleship versus Weston (1971) can be reviewed in this respect ("Nettleship v Weston  EWCA Civ 6 (30 June 1971)", 2016).
The phenomena of termination of employment can be explained as an incident when an employee’s employment with an employer ends, however employment can end for a number of causes. Therefore in situations related to termination of employment it is essential for the concerned employer to follow the legal guidelines about dismissal, issue of termination notice and settlement of the final pay. Considering the aspect of unfair dismissal it is important to note unfair dismissal of an employee occurs when an employee is unreasonably terminated from the job. Unfair dismissal laws are presented under the Fair Work Act 2009 that has the primary intention to safeguard the interests of the employees in Australia. However if an employee is terminated due to his unsatisfactory performance, it is lawfully correct ("Welcome to the Fair Work Ombudsman website", 2016). Citing the case situation termination through unfair dismissal is not evident as Millennium Pty Ltd has given a valid reason for termination of don.
In this context it is important to highlight that the procedure of employment termination in Australia is legally guided by the fair work act that is applicable in executing contractual or statutory rights to terminate employee, by agreement or by operation of law. However as a suggestion to the Millennium Pty Ltd , the employers of the concerned organization should remain informed and aware regarding the obligations produced by the contractual and common law and also about the statutory provisions related with termination of employee’s employment (Hor & Keats, 2009).
Considering the case of Millennium Pty Ltd, it is mandatory for the concerned organization to issue a termination notice period for don complying with the minimum period of notice at termination. The notice should be served in compliant with the national employment standards. However the length of notice should be according to the employment tenure of the concerned employee. Although specific age of don is not mentioned, but if his present age is 45 years and above don is entitled to an additional 7 days of notice as he has served for more than 2 years in this company. If the above mentioned obligations are followed by Millennium Pty Ltd, it is legally at a favourable position. Furthermore it is also essential for the concerned organization to comply with the procedural requirements wherein notice of termination should be given to the concerned employee by delivering it personally or sending it to the employee’s last known address ("Termination of Employment in Australia: Best Practice Guide - Employment and HR - Australia", 2016).
The issue relate to redundancy pay is also applicable in case of don as he has been terminated by the employer’s initiative. In this case, the concerned organization has expressed its desire to replace don with someone who is professional better. This fact clearly depict that Millennium Pty Ltd is not satisfied with the performance of don. However issues like bankrupted employer or the employer is insolvent is not applicable in this case. Therefore Millennium Pty Ltd should remain obliged with the guidelines for redundancy pay for the concerned employee. Important to mention, that the entitlement is calculated on a sliding scale and with reference to the employment tenure. If the employee has served the organization for more than 1 year but less than 2 years he is entitled for a four week or 28 days pay while if the employee has served the company on continuous basis for a period of more than 9 years but less than 10 years, he is entitled for 16 weeks redundancy pay. In this case, as it is mentioned that don has served Millennium Pty Ltd for a considerable number of years, it can be assumed that he shall get a 16 week redundancy pay. However referring to the case scenario, incidents of serious misconduct, dishonesty, assaulting behaviour from both the side is not evident ("Australia: Terminating Employees", 2013).
Although don has proceeded with legal action, he is not legally permitted to do so as it is already within the contract that disputes should be first brought in arbitration. Furthermore according to the Fair Work Act, the Millennium Pty Ltd is prohibited to take ‘Adverse step against don as the employee has exercised a ‘workplace right.’ However Millennium Pty Ltd is legally at a favourable position ("Australia: Terminating Employees", 2013).
Learning from the above performed analytical review of the case situations it can be strongly inferred that significant effort has been given to address the task questions.
- Australia: Terminating Employees. (2013). SHRM. Retrieved 7 October 2016, from https://www.shrm.org/resourcesandtools/hr-topics/global-hr/pages/australia-terminating-employees.aspx
- FISHERIES MANAGEMENT (GENERAL) REGULATION 1995 - REG 15Bag limits-scallops taken by means of a dredge. (2016). Austlii.edu.au. Retrieved 7 October 2016, from http://www.austlii.edu.au/au/legis/nsw/repealed_reg/fmr1995339/s15.html
- FISHERIES MANAGEMENT ACT 1994. (2014). Retrieved from http://www.dpi.nsw.gov.au/__data/assets/pdf_file/0015/200850/Abalone-viscera-as-bait-Gazette-No-116.pdf