LAG - Civil Law

Civil Law

Protects the rights and responsibilities of individuals in their behaviour and interactions with others.

Burden of Proof

who has the obligation of having to prove or disprove disputed facts

Standard of Proof

The degree to which a party must convince or satisfy the judge or a jury that an alleged fact, or series of facts necessary to prove a claim did actually occur

Types of Civil Law

Torts and Contracts

Types of Torts

defamation, negligence, family, nuisances, trespass

Types of Contracts

Employment, consumer, property, tax, bankruptcy

Defamation

The publication of unsubstantiated ‘facts’ that seriously harms the reputation of an individual

Negligence

Occurs when a person (the actor) is reckless or careless, or acts without the degree of skill usually expected of someone in those circumstances which causes some kind of damage or injury to someone else (the victim). It can arise as a result of an act or failure to act. Only arises where the actor owed a duty of care to the victim

Property

Governs the ownership, use, transfer, and disposition of real and personal property, including land, buildings, and other assets.

Employment

Gives employees right to a safe workplace and relevant enforceable terms and conditions through:

o   National Employment Standards

o   Modern Awards

o   National Minimum Wage

Alternative Dispute Resolution (ADR)

The potential for a dispute begins with (the aggrieved party) believing that he or she has been wronged in some way by another person (the wrongdoer).

The feeling of being wronged grows into a dispute once there is communication of the perceived wrong to the other party either personally or through a third party (usually a mediator or a solicitor) and a disagreement or conflict arises.

Court

Decides legal disputes and criminal cases, authority typically derived from legislation

Tribunal

Less formal body of court set up under a specific legislation, resolves particular types of disputes

Contracts

An agreement made between two or more parties that creates legal rights and obligations which will be enforced by the law

Offer

A proposal by one party to enter a legally binding contract with another

Invitation to Treat

An invitation for one party to make an offer

Acceptance

Occurs when the party whom the offer is made to agrees to the proposal of the person making the offer

Consideration

For an agreement to be binding, some gain or benefit must pass the person making the promise.

Scope of Civil Law

Torts, contracts, property, family, business, and consumer

Role of Employment Contracts

An employment contract is an agreement between an employer and employees that sets out terms and conditions of employment. It can be written or verbal.

Enterprise Agreements

Enterprise Agreements outline the minimum terms and conditions for employees and are made collectively between employees and employer(s).

All common law employment contracts must meet the NES/Modern Awards/Enterprise Agreements terms and conditions, or the employer will face legal exposure if they do not comply.

Fair Work Act 2009 (Cth)

Common law employment contracts

-              Pay

-              Leave

-              Hours

-              Notice of termination

-              Public holidays

-              Migrant worker rights

National Employment Standard (NES)

Provides minimum employment standards for all employees within Australia regarding terms such as leave, notice or termination and redundancy

Defamation

It is defined as an act of communication that injures another person’s reputation without good reason or justification, causing them to be shamed, ridiculed, held in contempt and to lose their standing in the community or their place of work

Freedom of Opinion

In Australia, freedom of opinion refers to the right to hold your own opinions without interference from authorities or other parties. This right is considered absolute

Freedom of Expression

 Freedom of expression means you have the right to freely seek out, receive, and impart information and ideas of all kinds, including speaking, writing, art, broadcasting, protesting, and more, however, this right is not considered absolute.

Tort

A tort is where some harm or wrong is done to a person, but this attracts liability under civil law rather than a criminal penalty

Torts are every case held in civil law where there is not a contract dispute.