Trades

Can My Business Send Any Promotional Emails Without Restriction?

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No, there are restrictions on businesses sending promotional or other emails.  Such emails cannot be sent without complying with the relevant legislation and without your business covering off certain steps.

This is a simple starting summary for the requirements your business must comply with in sending promotional or other emails.

The requirements apply to commercial emails. The Spam Act 2003 (Spam Act) broadly prevents the sending of commercial emails except for emails that contain “consent, identify and unsubscribe”. 

Although the legislation has been in force for quite some time, the issues around commercial emails and consent have become popular and in focus this year, particularly with a refocus on other privacy related laws in 2018.

Is my email a “commercial email”?

It is important that businesses understand the nature of a “commercial email” and the exemption under the Spam Act for “commercial electronic messages” and the practical considerations.

A commercial email is a “commercial electronic message” for the purposes of the Spam Act.  The definition is very broad in section 6 of the Spam Act, including:

(a)         to offer to supply or to advertise or promote goods or services;

(b)         to advertise or promote a supplier or prospective supplier of goods or services;

(c)         offer to supply or advertise or promote land or an interest in land or a supplier or prospective supplier of land or an interest in land;

(d)         To offer to provide or to advertise or promote a business opportunity or investment opportunity.

A commercial email includes promotion, advertisement or offers regarding supply of goods, services, land or business and investment opportunities. 

What are the requirements for “consent, identify and unsubscribe” generally?

Commercial emails must contain “consent, identify and unsubscribe”.  This can be summarised as follows:

(a)         Consent- means that the email recipient has consented to getting the email.  Express consent must come first (you can’t email to get consent, as this email may be a breach of the Spam Act itself).  Consent can be from a form, a box on website, verbal… as long as the person actually consents.  Generally, consent cannot be given on behalf of another. (section 16 of the Spam Act).

(b)         Unsolicited commercial electronic messages must not be sent: Section 16(1) of the Spam Act provides that:

a person must not send, or cause to be sent, a commercial electronic message that:

(i)           has an Australian Link; and

(ii)          is not a designated commercial electronic message.

Relevance of consent- Section 16(1) of the Spam Act does not apply if the email account holder consented to the sending of the message. (If you are saying the email recipient has consented, then you need to prove that the recipient has consented)- section 16(5) of the Spam Act

(c)         Identify- means the email must have accurate information about the person or organisation that authorised sending the email (section 17 of the Spam Act).

(d)         Unsubscribe- means the ability to click “unsubscribe” (section 18 of the Spam Act).  This needs to be functional.

Are there any exemptions from complying with “consent, identify and unsubscribe”?

Yes, there is a (fairly limited) exemption from your business complying with the Spam Act requirements of “consent and unsubscribe”, but generally no exemption from complying with “identify”.  Basically, if your business is sending a “designated commercial electronic message” then the requirements for consent and unsubscribe do not apply.

So what is a “designated commercial electronic message”? This is found in Schedule 1, section 2 of the Spam Act.  “Designated commercial electronic messages” are not considered “commercial emails”.

A designated commercial electronic message is (emphasis added):

The message is ONLY factual information (with or without directly related comment) and any or all of the following additional information:

(i)           the name, logo and contact details of the individual or organisation who authorised the sending of the message;

(ii)          the name and contact details of the author;

(iii)        if the author is an employee – the name, logo and contact details of the author’s employer;

(iv)        if the author is a partner in a partnership – the name, logo and contact details of the partnership;

(v)         if the author is a director or officer of an organisation – the name, logo and contact details of the organisation;

(vi)        if the messages sponsored – the name, logo and contact details of the sponsor;

(vii)       information required to be included by section 17;

(viii)      information that would have been required to be included by section 18 if that section had applied to the message; and

-assuming that none of that additional information had been included in the message, the message would not have been a commercial electronic message; and

-the message complies with such other conditions or condition as specified in the regs.

The “Australian Link”

The Spam Act is intended to have broad application including covering any email sent within Australia, sent on behalf of an Australian organisation or accessed from a computer service or device in Australia.

Generally speaking, the application of the commercial email provisions come back to the notion of an “Australian Link”.

(a)         Australian Link (per section 7 of the Spam Act) includes:

(i)           the message originates in Australia- section 7(a) Spam Act;

(ii)          the individual or organisation who sent the message or who authorised sending the message is physically present in Australia when the message is sent or has central management and control in Australia when the message is sent- section 7(b) Spam Act;

(iii)        the computer, server or device used to access the message is located in Australia-7(c) Spam Act;

(iv)        the relevant electronic account holder is-7(d) Spam Act:

(A)        an individual who is physically present in Australia when the message is accessed; or

(B)        an organisation that carries on business activities in Australia when the message is accessed; or

(v)         if the message cannot be delivered because the relevant electronic address does not exist- assuming that the electronic address existed, it is reasonably likely that the message would have been accessed using a computer, server or device located in Australia- section 7(e) Spam Act.

What if my business is just offering or promoting land?

Generally, your business needs to comply with the requirements of the Spam Act if the email is offering to “supply or advertise or promote land or an interest in land” or offering to “supply or advertise a supplier or prospective supplier of land or an interest in land”.

What if my business is just offering or promoting a business or investment opportunity?

Again, generally your business needs to comply with the requirements of the Spam Act if the email is offering to provide or advertising or promoting a “business opportunity or investment opportunity.”

Steps for businesses to tick off for each email

(a)         Consider whether your email is a commercial email.

(b)         If your email is a commercial email, or you will err on the side of caution, have you:

(i)           obtained (prior) consent from the email recipient to send the email?

(ii)          accurately and properly identified your organisation?

(iii)        Included a functional unsubscribe feature in the email?

Exemptions for Government bodies

Government bodies have an exemption from compliance with this Spam Act in some cases (see Schedule 1, section 3). There are number of limbs that Government bodies should ensure are satisfied to obtain coverage of the exemption.   Each of the limbs below must be “ticked off” for each particular email sent without the requirements of “consent, identify or unsubscribe”:

(a)         authorisation: the sending of the message must be authorised by a Government body; and

(b)         goods or services: the message must relate to goods or services; and

(c)         supplier or prospective supplier: the Government body (must be the supplier or prospective supplier of the relevant goods or services.

If each of the three limbs set out above are satisfied by the Government body, then the relevant email will be considered a “designated commercial electronic message” and will not have to comply with the “commercial electronic message” provisions in the Spam Act section 16 (consent) and section 18 (unsubscribe).

As noted above, the Government body will still have to comply with section 17 (identification of accurate sender information).

Contact

At Coutts, we can provide legal advice regarding whether or not your proposed emails are commercial emails, as well as tailored advice for your business regarding complying with the Spam Act.  On a related note, we also draft privacy policies, website terms and conditions and disclaimers and privacy statements.

For further information, please contact:

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Liability for Company Directors & Officers: Work Health & Safety

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The case of SafeWork NSW v Harris Holdings NSW P/L; SafeWork NSW v Harry Zizikas [2017] NSWDC 299 is interesting for a number of reasons.  This case in highlights the important responsibilities of directors and officers in terms of ensuring the work, health and safety of employees.  The case also highlights the importance of putting even simple, straightforward and reasonably practical safety measures in place in the workplace.

 

The relevant workplace in this case was that of Harris Holdings, being a business processing domestic and commercial weight including disposal and recycling of waste product and demolition and building site waste. 

 

At the workplace, Mr Mohammad was responsible for sorting and processing commercial and domestic waste.  Tragically, Mr Mohammad was hit by and caught his foot in the excavator tracks when that excavator moved.  Mr Mohammad was wearing his high visibility clothing at the time of the incident. Mr Mohammad was not responsible for operating the excavator but worked nearby the excavator.  The operator of the excavator was initially unaware of the actual incident because he was facing forward and could not hear the commotion surrounding the incident.  Mr Mohammad was dragged about a metre forward.  After Mr Mohammad was freed from the tracks he unfortunately suffered cardiac arrest and tragically and avoidably died on the site.

 

To note

There was no documented system of work in place for the tasks undertaken at the site.

Manuals had not been provided to the site workers on the actual site.  The manuals provided to SafeWork NSW did not specifically address the excavator.  (Generally speaking, the content of the manuals was generic in many respects).

No formal work health and safety procedures were developed for the site or implemented.

The four (key) site workers were unaware or unclear as to what a risk assessment, safe work method statement and tool box talk were.

There was no documented risk assessment for the excavator.

The relevant Australian Standard regarding Powered Industrial Trucks had not been implemented, including failure to create a safe zone around the excavator.

The actual manual for the particular excavator had not been followed.

The procedures on the warning sticker within the cabin of the excavator will also not followed.

There was no traffic management plan in place.

Order against the Company

Harris Holdings was convicted.  SafeWork NSW ordered the company, Harris Holdings to pay a $300,000 fine, 50% of which was paid to the prosecutor.  Prosecutor’s costs were also required to be paid.

 

Order against the Sole Director

The sole director was convicted.

It is important to note section 27 of the Work Health and Safety Act 2011 (Act) which provides for the duty of officers to exercise due diligence.  In this section of the Act, due diligence is listed as “taking reasonable steps” that include the following as noted in the Act (shown directly from the Act in italics):

a)    To acquire and keep up-to-date knowledge of work health and safety matters,

b)    To gain an understanding of the nature of the operations of the business… Or hazards and risks associated with the operations,

c)    To ensure that the person conducting the business or undertaking has available for use, and uses appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out..,

These are noted to include, specifically:

  • Reporting notifiable incidents

  • consulting with workers

  • ensuring compliance with notices under the Act

  • ensuring the provision of training and instruction to workers about work health and safety

  • ensuring that health and safety are presented either received their entitlements to training.

d)    To ensure the person conducting the business has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, 

e)    To ensure that the person conducting a business undertaking has, and implements, processes for complying with any duty or obligation of the person conducting a business or undertaking under the Act.

 

The sole director (Harry Zizikas), had failed his duty under this section 27 of the Act to ensure that Harris Holdings hard complied with its primary duty of care under section 19 (1) which can be summarised as ensuring, so far as is reasonably practicable, the health and safety of workers.

 

To note, Mr Zizikas was actually responsible for all of Harris Holdings’ training and the development of systems for the site operations

 

Mr Zizikas was required to pay personal fine of $60,000, 50% of which was paid to the prosecutor.  Again, prosecutor’s costs were also required to be paid.

 

Key lessons learned:

Clearly, both companies and their directors and officers should not underestimate the importance of putting even simple, straightforward and practical measures in place to address, work health and safety risks.  Practical measures can be implemented to (at least partially) address, work health and safety risk.  For example, practical measures such as following the warning sticker, reading and understanding and implementing measures from the manual, purchasing the Australian Standard and implementing it.

 

Training and education of staff is very important.

 

Considering and addressing risk upfront, as well as having the right systems and processes in place is paramount to ensure the work health and safety of your employees.

 

At Coutts we provide legal advice in respect of compliance with your obligations under the legislation.  Further, we are here to workshop risk allocation for each of your projects and to ensure that that risk allocation importantly filters through to your contracts in a clear and practical way.  We ensure that your important work, health and safety processes and procedures are adequately dealt with in your contracts and subcontracts.

For further information, please contact:

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Is Alliancing Contracting Back In Vogue?

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I first heard about alliancing contracting way back around 2004 as it was gaining attention then as a new and improved contracting model, back then, allocating risk and responsibility to the party to the contract that was most suited and able to bear that risk, among other things. 

 

Alliancing contracting is largely for the building and construction areas but arguably with application to other projects more generally for its fundamental principles. 

The ideas underpinning alliance contracting including mutual acceptance and sharing of project risks, project issues, project completion and project records and resources was fairly new and forward thinking back in 2004 when I first really took alliancing contracting on board for genuine consideration as a contracting model. 

 

Fast forward to 2018 and it would appear that these forward thinking ideas of alliancing contracting are indeed back in fashion and up for genuine consideration once again. 

 

So what is alliancing contracting and how is it fundamentally different to more traditional contract forms?

Using a risk allocation process to properly allocate risks between the parties, explore likely risks and test them against the contract (and with the other party) and really think about “worst case scenario” and deal with it have all been fundamental steps in contract preparation.

 

Because the above steps are critical for any well prepared contract, it is always essential that parties understand each other’s needs, appetite for risk and skill set. 

 

The alliancing method still encompasses these fundamentals to a degree and rightly so. However, the key difference is that explored risks are typically allocated to all parties. “Worst case scenarios” are explored but allocated to all parties with shared responsibility. The alliancing contract generally provides for mutual risk sharing, pain shared equally, gains shared equally. 

 

The underlying principle under all this sharing is that parties must act in good faith and in line with the also entrenched principle that there are no disputes under the alliancing framework. Problems are solved together, often with “outside the box” thinking. The parties are committed to making things work, once again based on the key principle of shared risk, responsibility, shared pain, shared gain. 

 

There is a further key principle that during the project phase, there is no fault on either party and therefore no single party that has caused any particular liability. For any issues that arise during the actual project, the parties work towards mutually dealing with those issues and reallocating risk and responsibility for those issues based on consensus, agreed decision making.  

 

Parties to the alliancing framework are transparent and open. Record keeping is fundamental for both parties as is mutual access to those records. 

 

Defect responsibility is shared. Defect rectification in terms of time and cost is shared between the parties.  Parties mutually share control of the project, again agreeing on all project aspects. 

 

The National Alliancing Contracting Guidelines template provides a useful framework for an alliance and sample agreement.   It clearly requires all parties are committed to the project, committing people and resources, engaging within the alliance, working through the project, issues, actual and potential disputes, project changes and responsibilities as a shared group comprising different parties. 

 

It will be interesting to see how existing Government projects using alliancing contracting stack up long term. It will also be interesting to reflect back on alliancing contracting and see how alliancing can apply best to the private sector. 

Please contact Alexandra Johnstone if you require legal assistance or have questions pertaining to alliancing contracting. We are here to help!

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.