Terms and Conditions are an excellent ‘starter’ document which every business should invest in. If you’re starting a new business, it should be the first business document you have in place. If you’ve been in business for a while and have been getting by without a set of Terms and Conditions, you should absolutely still consider them as they become particularly important as your business grows.

A well-drafted set of Terms and Conditions will not only protect your business in the event a customer/client makes a claim for defective products or services, it will also clearly deal with important business policies such as refunds, payment timing and methods, insurance and cancellations.

Of course, because all businesses are run differently, it follows all Terms and Conditions should be different too. Your specific business methods and procedures should be taken into account in preparing a quality set of Terms and Conditions. For example, if a business requires a deposit to be paid, their Terms should sufficiently state in what circumstances (if any) the deposit would be refunded or otherwise.

Whether you’re starting a new business, have been operating for a while without any Terms, or would like a second opinion on your current Terms and Conditions, the expert Business Law Team at Enterprise Legal can help. At Enterprise Legal, we take the time to learn about your business before preparing your Terms and Conditions.

Contact EL's Business Law Team today or book in your Free Business Health Check!

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At Enterprise Legal, we always say that ‘prevention is better than cure’. So when it comes to commercial, industrial or retail lease disputes, the best way to prevent them is to ensure you understand what you are signing up for in the first place and to negotiate some protections at the time of entering into your lease. After all, a lease is typically one of the biggest financial obligations that your business may need to commit to, keeping in mind that you are usually committed to your obligations for a minimum of three or five years!

Whether you’re a Landlord or Tenant, here are our top five tips to keep in mind when entering into your next lease:

1. Heads of Agreement/Letter of Offer Terms

Quite often, before a lease is prepared, the parties will sign a short document or letter outlining the key terms of the deal. This document is usually referred to as a ‘Heads of Agreement’ or ‘Offer to Lease’ and is often prepared by the real estate agent managing the deal.

Although usually an Offer to Lease is not binding on the parties, it forms the basis of the formal lease terms. This stage of lease negotiations is the best time to negotiate key terms, before either party incurs the expense of preparing and negotiating formal lease documents. If either party seeks to amend terms that are agreed in a Letter of Offer after formal lease documents have been prepared, it can create friction between the Landlord and Tenant at a very early stage in their association.

We recommended that you seek legal advice on the terms of an Offer to Lease, to ensure a smoother lease negotiation process and to avoid the potential for a dispute.

2. Permitted Use 

A frequent issue in lease negotiations is whether a Tenant will have the exclusive right to operate their business type (specified as the ‘permitted use’) in the centre/complex. This means that it’s very important for a Landlord to consider whether any Tenant’s proposed use conflicts with any rights the Landlord has already given to existing Tenants in the centre/complex.

A more commonly overlooked issue around permitted use is which party is responsible for ensuring that the intended use can lawfully be conducted from the premises. The widely accepted position in leasing matters is that the Tenant is responsible for all aspects of ensuring their intended use can be carried out from the relevant premises. A Landlord will typically include protections in the Lease under which the Landlord expressly states they do not warrant or guarantee that the premises will be fit for the Tenant’s intended use, and further that the Tenant is obliged to obtain all necessary consents/approvals (i.e. liquor licences, council approval etc) to run their business from the premises.

Landlords should always ensure this protection is included in their Lease and Tenants should understand that it is a matter for them to ensure that the premises will be fit for their specific purpose. To avoid disputes, a Tenant should make enquiries early (prior to signing a lease!) to ensure they can lawfully conduct their business from the premises. Failure to do this can result in having to comply with notices from applicable authorities (eg. Council), which can be extremely expensive!

3. Repairs to Equipment 

Another common area of dispute relates to responsibility for fixing certain equipment (such as air-conditioning equipment) in the premises if they need repairing.  

A lease should cover off on the responsibility of the parties to maintain equipment, and to repair/replace it when it breaks. Typically, a Tenant is responsible for ‘wear and tear’-related repairs, whereas a Landlord will be required to attend to all repairs or replacement that are of a ‘capital nature’ provided that the Tenant has regularly serviced or maintained that equipment during the Term and has not deliberately or wilfully contributed to the damage. However, that will not always be the case and it is important that both parties check the relevant clauses in their Lease to understand their obligations. It is also beneficial (especially for the Tenant) to take steps to understand the condition of any relevant equipment (such as air conditioning) at the time of entry into the Lease.

4. Insurance 

Tenants in particular should always consider the specific wording of any clause in their Lease that deals with insurance obligations, to ensure the Landlord’s requirements will be commercially acceptable to the Tenant, especially in light of their intended business use.

Some practical examples are:

• Where the Lease requires insurance to be taken jointly in the names of the Landlord and Tenant.This seems innocent enough, but the practical reality is that this type of insurance cover can be onerous and expensive for a Tenant to obtain. Realistically, a Landlord generally requires this so that they can receive notice if a Tenant makes a claim on their insurance policy in relation to the Premises. The practical compromise is that the insurance clause should only require the Tenant to note the Landlord as an ‘interested party’, which does not cause extra cost and which requires the insurer to provide notice to the Landlord if any claim is made.

• Where the Lease requires business interruption insurance. This is a ‘big hitter’ as far as the cost of insurance is concerned. A Tenant should consider whether they really require and whether they can afford this type of insurance, before they agree to be bound by a lease to obtain it.

5. Landlord’s Right to Redevelop/Relocate

Landlords of multi-tenant centres or complexes (eg. shopping centres or strip-malls) typically include clauses which give them the right to relocate Tenants to comparable locations within the centre/complex, or to redevelop or demolish part of all of the centre/complex.

Tenants should always carefully consider the specific wording of these clauses and the practical implications. At a minimum, the clause should stipulate that any relocation must be to a comparable location and it should deal with how the rent will be treated in those circumstances, but as a further step, the Tenant should consider whether they want to (where practical) have the right to return to the original location. It is also important to contemplate who will be responsible for the costs of the Tenant’s fit-out in the new location in these circumstances.

A well drafted and well-understood lease will go a long way to avoiding a dispute arising between the Landlord and the Tenant. To avoid a costly dispute, engage the expert Enterprise Legal Business Law team to help you with your next lease negotiation:

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In February 2020, changes were made to the Corporations Act2001 (Cth) which significantly impacted the date on which Company Directors were deemed to have resigned. A 12-month transition period was implemented following these changes, which meant that as of 18 February 2021 these changes now apply in practice.

The timeframe for which a Company must notify ASIC of any resignation of a Director remains at 28 days after the resignation, however the new changes mean that if the Company does not give notice to ASIC (by lodging a Form 484) within that time period, the relevant Director will be deemed to have resigned on the date that ASIC actually receives the Form 484 (which could well be a date that is long after when the practical resignation took effect).

Prior to these changes, a failure to meet this timeframe resulted in the Company being required to pay a fee for the late notification, but didn’t negatively affect the resigning Director. In those circumstances, the task of notifying ASIC was generally left with the Company’s Accountant to carry out and the resigning Director didn’t usually have any cause for concern about whether the timeframe was met. This was because the Company was typically required to pay the late notification fee (not the resigning Director) and the resignation took effect in accordance with whichever date was specified in the notification (which means the resignation could be ‘backdated’ appropriately).

Moving forward, resigning Directors should now carefully consider what steps they can take, to ensure that notification is given to ASIC by the Company within the required timeframe. This will allow the resigning Director to ensure their resignation takes place on the relevant date, importantly ensuring that the Director does not unintentionally remain liable in their role as a Director of the Company.

Some recommended steps that a resigning Director could take, are to take on the onus of lodging the Form 484 (where practical) or to include additional clauses in share sale documentation (or other agreements which deal with the Director’s resignation) to impose a positive obligation on the Company to lodge the form within the required timeframe, with penalties, indemnities and releases to follow until such time as the Form 484 is submitted.

Do you need assistance with company restructuring or officeholder resignations? Contact our expert Business Law team, led by Principal Director & Legal Advisor, Peta Gray. 

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Let’s be honest – legal entities and business structures can sound like a pretty dry and complicated topic. We can’t really sugar coat that, but we can tell you that if it’s not something that is addressed and set up to suit your business, you could be missing out on some very important advantages, and exposing your business and your assets to more risk than is necessary. Stick with us on this topic – it can be the difference between a business that thrives and a business that struggles.

Do You Even Know What Entity You Have?

As a threshold issue, if you don’t know exactly what your current entity structure is, then that’s ok (it’s not easy, and it’s not necessarily a ‘water cooler’ kind of topic), but this article is definitely for you and you should contact our expert Business Law Team so that we can help you identify it.

Common Entity Types 

This three most common entity structures we encounter at EL are:

1. Sole Trader/Individual: 

This is effectively the ‘starting point’ for many businesses. A sole trader is a single person who is carrying on a business under an ABN. An individual is of course capable of suing and being sued. In order to change the business structure, a sole trader must ‘transfer’ the business to another entity, which can be costly and will require payment of transfer duty based on the value of the transfer.

Income Distribution: all income of the business is distributed to the individual, which is to be declared in conjunction with any other income that individual earns. This is typically not an issue in the initial phase of a business while profit is building, but can be problematic if the individual is already paying a high rate of tax, as all profit earned by the business is also taxed at that rate.

Risk Profile: all assets owned by the individual can be at risk in any claim against the business. For example, if a customer/client or employee of the business sues the business and is successful, the individual may be required to sell other personal assets in order to pay out the claim, or risk declaring bankruptcy if the value of those assets are not enough to pay the claim.

2. Company:

A company is a separate legal entity to the people/persons that control it. The company is capable of suing and being sued. The controlling persons can be easily changed from time to time, which allows flexibility for business owners wanting to sell or bring other business partners on board.

Income Distribution: companies have additional flexibility when it comes to distribution of income, as it is ultimately distributed to the ‘shareholders’, which could be the individuals who control the company, another entity controlled by those individuals (for example another company or trust), or another entity controlled by a third party (for example an investor who has contributed funds to the business but does not assist in the day-to-day running of it). However this flexibility is somewhat limited, as the income must be distributed in accordance with the percentage of shares held by the shareholders.

Risk Profile: the company can be sued, and all assets held by the company are at risk in any claim against the business. If the company does not hold enough assets to pay the claim, the company may be required to wind up. Except in limited circumstances, typically the assets of the individuals who control the company are safe from any claim, so at worst the business will fold, but the individuals will maintain any other personally-held assets.

3. Trust:

A trust is again a separate legal entity to those persons/entities who control it. The trust is capable of suing and being sued, and the controlling persons can also be easily changed from time to time by amending the trustee.

Income Distribution: trusts also have greater flexibility to distribute income, as it is distributed to the ‘beneficiaries’ of the trust, which can be individuals, companies, other trusts etc. A trust can be set up as a ‘discretionary’ trust, which allows the trustee flexibility to distribute income to the beneficiaries in any proportion that they determine.

Risk Profile: the risk profile of trusts is similar to that of companies, in that a trust can sue and be sued, and all assets held by the trust are at risk in any claim against the business. If the trust does not hold enough assets to pay the claim, the trust may be required to wind up, but similar to companies the assets of the trustees and beneficiaries are safe from any claim. In this situation, the business would fold but the individuals will maintain any personally-held assets.

There are of course other entities that you might encounter (such as partnership, unit trusts, etc), but they are largely either ‘outdated’ or only used in very specific circumstances. That does change from time to time based on things such as legislation and market preferences, but for now the three structures we have mentioned above are the most common.

Accounting Benefits v Legal Risk 

In any decision around appropriate entity structures, often the accounting and legal advice are the same, which makes a decision easy. However, sometimes that advice can be conflicting, and you might find that trading in a certain entity will give you the greatest tax and accounting advantages, but will expose you to greater legal risk.

The classic example of this is a start-up business – in that example, while income is on the lower end because the business is starting out and growing, you’re often better starting off as a sole trader and minimising your accounting and set-up costs. The trade-off here is that you carry additional risk because your personal assets are exposed in the event of any claim. Depending on the type of business you operate and the personal assets you hold, you might be happy to accept that risk in favour of gaining some tax and accounting advantages.

At Enterprise Legal, we understand the competing accounting and legal benefits and risks, and we like to work with your accountant to discuss the best structure for you, both now and in the future. This way, you are armed with the knowledge from both sides and can make an informed decision.

How Enterprise Legal Can Help

At Enterprise Legal, we offer a free Business Health Check, in which we arrange a time to meet with you in-person or by phone/Zoom to assess your business needs. In addition to assessing other legal needs, this includes an in-depth analysis of your existing entity structure, and a discussion with you around other options, and the steps involved to change your structure.

We work with your accountant and other financial advisors to give you all the information, and discuss the best way to move forward. We can even create your new entity, amend your existing structure, or draft supporting entity documents to support your entity structure (such as company constitutions, association rules, shareholder’s agreements etc). 

If you have any concerns or questions about your existing entity structure for your business, contact our expert Business Law team today: 

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Disclaimer: because we are #lawyers, we have to say that the advice in this article is generic in nature and not intended to apply to everyone’s personal circumstances. Please contact our EL Business Team, as well as your accountant, for customised advice regarding your business structuring.

Whether you refer to them as Governing Rules or a Constitution, you should regularly be considering whether an update is needed. However, knowing when to actually ‘pull the trigger’ on conducting a full review and update (or whether you just need a small internal policy change) is the tricky part, and as is the classic legal response, it ‘will depend’ on a number of factors.

It is absolutely a case-by-case basis, but to help your organisation make that call, we have identified the following key factors to assist:

1. when the Constitution was last updated;
2. the structure of your organisation;
3. the industry in which your organisation operates; and
4. ‘who’ prepared the latest version of the Constitution.

When Was The Constitution Last Updated?

There is no hard and fast rule as to timing, and there is no time limit on how long a Constitution will be effective for. But, the law is constantly evolving and changing and any legal document (or any part of it) could quickly become ‘outdated’. A Constitution holds such significant bearing on how an organisation operates, so it is a document any organisation should at least consider updating every couple of years, to ensure it remains relevant in the context of changes in the law. There may also have been significant changes in the structure or policies of the organisation during that time, so there may be some practical changes to implement.

What Is The Structure Of Your Organisation?

A corporate entity with a Sole Director and Shareholder probably doesn’t need regular updates to their Constitution, but a non-profit who reports to members and stakeholders should frequently ensure the organisation keeps their Constitution up-to-date, as that ensures good governance measures are followed and any legislation changes are accounted for. For example, if there have been major changes to a Board of Directors then there are likely going to be significant changes to the way the organisation operates, so a great starting point would be updating the Constitution to ensure the new Board is on the same page with the direction the organisation is going to move to.

Specifically for any Incorporated Associations in Queensland, there have been significant changes to the governing legislation (the Incorporated Associations Act 1981 (Qld)) which have been implemented in stages over the last few years. This means that right now is a great time for any Incorporated Association to review their Constitution.

Industry Changes

Depending on the industry in which your organisation operates, there may be more frequent industry changes which ‘force’ an organisation to reconsider various governance measures. For example, an organisation that operates in the technology space is likely going to have more frequent reason to update their Constitution, than an organisation which operates in the retail or hospitality industry, which are much more ‘established’ industries.

Who Prepared the Current Constitution?

If your organisation is using a template-style document that has been ‘borrowed’ or is adopting any legislative model rules, they won’t be drafted in a way that accounts for things such as industry changes, specific organisational policies and procedures, nor recent or incoming legal changes. However if you engaged a lawyer to prepare your Constitution and your organisation took the time to carefully consider the impacts it would have on governance, it won’t need to be updated as regularly.

What’s Next?

Our expert Business & Property Team has extensive experience in corporate governance, structuring matters with a particular expertise in assisting non-profits, charities and sporting organisations.

If your organisation is considering updating their Constitution, get in touch with our team today and we can help you with updating your Constitution and structuring advice:

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What It Is

On 1 November 2021, the Australian Business Registry Services (ABRS) introduced a requirement for directors of relevant companies to obtain a Director Identification Number (Director ID).

A Director ID is a unique, fifteen-digit identifier given to a director of a company who has completed an application and verified their identify with the ABRS.

A director must personally apply for their own Director ID (and it is is free to apply) and will only ever have one Director ID, regardless of how many companies or similar entities they are a director of.

Who It Applies To

Any person who is currently appointed as a director or alternate director of a company, registered Australian body, registered foreign company or Aboriginal and Torres Strait Islander corporation must apply for a Director ID.

You can apply for a Director ID even if you are not currently a director, and it will stay with you for life and can be used if you do ever become a director.

When You Need It

The below table provided by the ABRS succinctly sets out the timeframes for application for a Director ID:

How To Apply 

All Directors must make their own applications – unlike other arrangements for company documents your accountant or registered tax agent is not permitted to do this for you.

In order to apply for your Director ID, you will need to go to the ABRS Website and follow the process to download the myGovID app (this is different to myGov). The direct link is Apply for your director ID | Australian Business Registry Services (ABRS).

As part of the application process, you will need to complete a verification of identity, so before you apply you should gather the following information/documents:

1. your tax file number (TFN);
2. your residential address as held by the ATO; and
3. information from two (2) documents to verify your identity – the relevant documents that ABRS suggest are:
   1. bank account details;
   2. an ATO notice of assessment;
   3. superannuation account details;
   4. a dividend statement;
   5. a Centrelink payment summary; or
   6. a PAYG payment summary.

If you are unable to apply online, you can apply by phone or by paper form, but you will still need the above information / documentation.

How Enterprise Legal Can Help

Although we are unable to complete the application for you, we are available to assist you with any questions or concerns you have regarding the Director ID, including whether it applies to you, when you need to make an application by, and any questions about how the application works or the best application method for you.

Contact Enterprise Legal's expert Business Law team today:

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If your business provides services, then the answer is YES!

A Services Agreement is an essential document for every service-based business! If you’re just starting out, you should put a Services Agreement at the top of your ‘legal document priority list’ (which is definitely a list everyone has). For existing business owners, whether you’ve been going ok without one or rolling out some stock-standard agreement you found from a Google search, you should put it back on your legal document priority list, as it only becomes more important as your business grows.

A tailored, well-drafted Services Agreement both protects your business (for example, in the event that a customer or client makes a claim for defective services) and clearly deals with important business policies such as cancellations, payment timing and methods, insurance etc.

A Services Agreement should also be customised for your specific business and the services you provide, because one size does not fit all when it comes to these kinds of agreements. From matters such as specific legislation that might apply to the industry (eg. NDIS, medical services, specific privacy law requirements), how much notice must be given for a cancellation, to the basic style and tone of the document, different businesses will have different requirements, so it is important that your Services Agreement reflects what your business needs. This is where you can get unstuck if you ‘take inspiration from’ (eg. copy) another business’ Services Agreement (you might be copying something that isn’t actually very good) or buy a generic online document! For example, if you provide support services for NDIS participants, then grabbing a Services Agreement from the website of your local gym is probably not going to be suitable for your business.

Whether you’re starting a new business or have been operating for a while and either don’t have a Services Agreement or you would like a second opinion on your current Services Agreement, the expert Business Law Team at Enterprise Legal can help. At Enterprise Legal, we take the time to learn about your business before preparing your Services Agreement.

Contact the Business Law Team today or book in for your Free Business Health Check:

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If you have recently been dismissed from your employment and you believe your dismissal was unfair, unjust, or there was a lack of consultation from your Employer, you might have a claim. However, there are a number of eligibility criteria which can prevent you from legally bringing an unfair dismissal claim. It can feel a bit like a marathon that starts with a 100m hurdle event – if you jump over all the hurdles and make it to the end, then you can start the marathon. This article briefly sets out the hurdles that you need to jump over in order to be eligible to bring an unfair dismissal claim.

Hurdle 1 - Timeframe

Much like not making it to the starting line on time for the race, if you don’t file an unfair dismissal claim on time then you have very little chance of even getting out of the blocks. Employees have 21 days from the date they are dismissed (or the event leading to them resigning, in the case of a constructive dismissal) to bring an Unfair Dismissal claim. If your claim isn’t filed with the Fair Work Commission by that date, then no matter how good your claim is it will be ruled ineligible and you’ll lose any rights you might have had. In exceptional circumstances, the Fair Work Commission can grant an exception to that rule, but that would be the equivalent of starting the race late and hoping everyone else fell over before the finish line, so unless you’re the modern-day Steven Bradbury, you wouldn’t rely on it.

Hurdle 2 – Have you been ‘dismissed’?

This might seem simple, but some things that may not be a dismissal are a resignation (unless it is ‘forced’), a redundancy (provided it is genuine), you’ve been demoted or your fixed term has expired. You’re in the wrong race altogether, and an unfair dismissal claim will not be applicable.

Hurdle 3 – Has the dismissal been effected?

In this case, you’ve timed your jump too early, hit your front leg on the bar and come crashing to the ground. Unless you have actually been dismissed from your employment, you cannot bring a claim for Unfair Dismissal. This will usually be specified in your termination letter, and in some cases a resignation can still be a dismissal if it is considered to be a ‘forced’ resignation. There are some technicalities around what constitutes a ‘dismissal’ and whether it has been effective, so if it is unclear then you should seek legal advice before bringing a claim.

Hurdle 4 – High Income Threshold

If you earn more than the high income threshold (which at the time of writing, is $162,000 per annum, and subject to review on 1 July each year) then you will be ineligible to bring an Unfair Dismissal claim. Bonuses and other payments can be included in this part of the criteria. You may still be eligible for other claims though (breach of contract, general protections) so you should still seek legal advice, but if you earn more than the threshold you will simply be ineligible for an unfair dismissal claim.

Summary

Sometimes, no matter how unfair or unjust the circumstances might be, an unfair dismissal claim simply won’t be available to you. This doesn’t mean you won’t still have an action against an Employer, as there are other claims you could potentially bring, including a claim for general protections, breach of contract and misrepresentation.

If you have been dismissed but you think one or more of the above hurdles will prevent you from bringing a claim, you should still seek legal advice as there may be other options available. Contact our Employment Law team today for a free consultation.

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