Removalists provide an essential service for people moving house, offices and even interstate or overseas. Moving locations can often be a chaotic time for individuals and business owners, so as a removalist, managing expectations with your customers is important. For this reason, you must set clear terms and conditions with your customers that sets out the: 

services you will provide; and
rights and obligations of each party. 

This article unpacks the key considerations that you should include in your terms and conditions.
What Are Terms and Conditions?
Terms and conditions set out the rights and responsibilities of the parties to a contract. If you are running a removalist business, it is a good idea to prepare a terms and conditions document to minimise any risk you have in running your business. 
Before starting on the terms and conditions, it is important to think about how you want your customers to engage you.

For example, some removalists have their customers book their services through a website, in which case they need their terms and conditions to be accepted online with a checkbox. In contrast, other removalists prefer a hard copy document that can be signed by customers with a pen. This will impact how your terms and conditions are laid out.

4 Key Terms to Include in Your Removalist Terms and Conditions
1. The Services
The services provided by removalists can vary significantly, so you need to: 

clarify what you will offer your customers; and 
specify the services that you will not provide.

For example, some customers will want you to pack and unpack their goods, while others will just want you to transport pre-packaged boxes. 

Therefore, your terms and conditions should set out what services you have actually agreed to provide to your customer so that everyone is on the same page. This will also avoid any disputes about fees.
Some of the details you should clearly agree on are:

what services you will be providing, including if there is a limit on how much work you will do or how many workers you engage;
where the collection and delivery locations are;
the date you will provide the services; and
the time you will provide the services, including whether this is an estimate only.

2. Bookings, Cancellations and Rescheduling
Once someone has booked in your services for a particular time and you have organised your workers for that day, it can be very frustrating and costly when a customer: 

cancels at the last minute; or 
does not think they ever actually made a booking with you. 

Providing clarity on when your customer has created a booking is helpful to mitigate this risk. 
Your terms and conditions should outline: 

what information you need from a customer to make a booking; 
the process for making a booking; and 
the exact point when your customer makes a booking. 

It can be helpful to send through a booking confirmation email once your customer makes a booking.
You should also have a cancellation policy. Many businesses will allow cancellations or rescheduling up until a certain time frame before the booking. 

For example, you may permit a customer to reschedule your removalist service with 48 hours notice without any penalty. 

3. Fees
Your terms and conditions should set out how you will charge customers. Generally, there are two ways this is done, including charging:

an hourly rate; or
a fixed fee.

Hourly rates are popular for removalists because it means you will get paid for all of the time you spend providing services. If you charge an hourly rate, you should be clear on what time you commence charging and what time it will finish. Some removalists will use a timesheet and ask the customer to sign it on completion of the provision of services.
If you charge a fixed-fee for your services, it is important that you clearly set out what you will include in your package. This way, if a customer asks you to do work outside of the agreed services, you can show that it falls outside your agreement. Your terms and conditions should contain a variation clause that sets out a way for you and your customer to agree to a new fee if they ask to change the scope of your services.
4. Liability
Removalists often find themselves dealing with expensive goods. This means you take on lots of risk to handle those goods carefully. For this reason, it is important to limit your liability. A good set of terms and conditions will exclude your liability for certain things. In particular, they should exclude your liability for any issues that may arise due to situations outside of your control. These include where: 

goods were damaged due to the way they were packed and the customer themselves packed the goods; and
situations where loss or damage arises as a result of the customer’s acts or omissions.

Importantly, you should seek adequate insurance cover to protect yourself against any insurable risks.
Beware: Look Out for Unfair Contract Terms
You should be careful to ensure that your terms and conditions do not have any unfair terms in them. Unfair terms are clauses in a contract that:

cause significant imbalance in the parties’ rights and obligations;
are not reasonably necessary to protect the legitimate interests of the benefited party; and
cause detriment (both financial and non-financial) to the other party.

For example, suppose that you include a clause in your contract that gives you total discretion as to when you will deliver the goods. This would be considered unfair, as you should perform the contract within a reasonable time. 

The effect of including an unfair contract term is that a court may declare it to be void when hearing a dispute. This means that the term will be removed from the contract and cease to have effect, although, the remainder of the contract will continue to be binding.
While there are currently no financial penalties for including unfair contract terms in your terms and conditions, Parliament may introduce such penalties in the future.
Key Takeaways
Terms and conditions are helpful documents to ensure that everyone is on the same page. A clear set of removalist terms and conditions can help you minimise the chance of a dispute arising. When drafting your terms and conditions, you should consider:

how you will set out what services you are providing;
how your customer can make a booking;
what risks your business faces and how can you use your terms and conditions to minimise these risks;
how you will charge fees and what will happen if a customer does not pay; and
whether you are including any unfair contract terms in your terms and conditions.

If you would like assistance preparing terms and conditions for your removalist business, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.

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Each time we speak with clients, we hear about the sources of friction between the marketing team and the in-house legal team. The marketing team is motivated to create and execute engaging campaigns that will attract and retain new business. The marketing team may need to be responsive to developments as they arise once campaigns launch, especially in social media. In order to be competitive, marketing teams need fast turnaround times. Often they can provide very little, if any, warning to in-house legal team when they require same day turnarounds. This article sets out LegalVision’s five key lessons if you decide to outsource your marketing collateral review work.
1. Identify Areas of Friction
The in-house legal team wants the marketing function to be compliant and to support the business’ reputation. Reviewing marketing collateral is just one of many tasks the in-house team must complete on any day. Not knowing what marketing work is coming down the pipeline can be very challenging for in-house legal teams. The first step to resolve these areas of friction is to identify:

what is causing the problem; and 
at which stage of the process the problem occurs. 

This is best achieved by including the marketing and in-house team in a design workshop. Our clients have previously described this process as “cathartic” because it: 

encourages open conversation;
increases transparency; and 
builds relationships. 

“LegalVision facilitated the design workshop really well. Everyone felt safe to put forward their views. We delved into areas and uncovered challenges that we might not have otherwise had the opportunity to explore.” Daphne Koffel, Domain Senior Legal Counsel 

2. Work Together to Design the Future State
Once you have identified the sources of friction and pain points in the current state, you will need to work together to design the future state. The question you should aim to answer is, ‘How can we work together to improve the way we manage our marketing collateral review work?’ with a focus on reducing the likelihood of friction between teams. For instance, consider whether:

you could develop a triage system for instructing legal;
there are any missing touchpoints where Legal should be consulted, such as to assist with scoping a new campaign;
you can develop a marketing checklist to ensure the legal team has all the information required to complete their review;
you can align on the period of advance notice Legal needs to meet Marketing’s turnaround requirements;
Marketing always needs Legal’s review to be completed within a certain time frame (for example, consider whether particular asset types or campaigns are more urgent than others); and
there is a better way to capture approved collateral and claims to improve efficiency. 

The end result should be a sound understanding between teams of how you can:

change the workflow to remove friction; and
improve efficiencies in the marketing collateral review workstream. 

“One of the most important outcomes was confirming that the Marketing team wants to work closely with the Legal team and it is important to them that the Legal team is accessible and responsive. We also all agreed that we needed a better way of capturing the back and forth of emails so that we had all past approved claims and positions available in one place.” Daphne Koffel, Domain Senior Legal Counsel 

3. Find a Partner, Not Just a Provider
If you are looking for a provider to outsource your marketing collateral review work, ensure you find a provider who:

actively addresses and resolves the identified pain points and tensions; and
is capable of working with you as an extension of your in-house team. 

In our experience, it is important for the in-house team to stay across the marketing campaigns and messaging developed by the marketing team. The in-house team should have easy access to:

the volume of marketing collateral sent to the outsourced provider, and the status of each (e.g. in progress or complete);
any advice provided and any discussion relevant to a particular piece of marketing collateral; and
previously approved claims and disclaimers. 

Previously, clients have told us they looked for a partner who:

they can build a rapport with and who will work collaboratively with the Legal team; 
does not take the workload away and cut them out entirely; the Legal team stays across the work from a strategic perspective; and
does not provide a black and white legal review without considering the commercial strategy or context behind the messaging or campaign.

“I have found that now I can oversee our advertising activities from a more strategic level, which means I can deliver so much more value to the business. I also know that at any time I can access all past reviews, approved claims and positions in one centralised and auditable bank.” Daphne Koffel, Domain Senior Legal Counsel 

4. Start Small 
When getting started with a new outsourced provider, it is wise to start small.
In our experience, the best way to get started is to select a particular area of work to get started with on a trial or pilot basis. 
The two main features we look for when selecting a suitable area for a trial are:

reasonable volumes over the trial period; and
collateral which mostly relates to the same area of the business (e.g. a particular business unit, set of campaigns or product line). 

The reason we recommend getting started with a particular area of work is that it has proven to be a good way to demonstrate the approach and features of the service with minimal upfront work for you. Once you see how the service works, it is easy to expand the project by introducing new areas.
5. Ongoing Feedback and Education
Marketing teams are dynamic and constantly adjust their messaging and campaign strategy to suit market conditions. Similarly, the regulatory environment is subject to change and development which the Legal team must stay abreast of. In our experience, it is critical for the Legal team to meet regularly with the Marketing team to: 

receive feedback;
provide guidance and advice; and
discuss upcoming campaigns. 

These meetings also help resolve another potential friction point: that in-house legal often does not offer to get involved early in a campaign’s development (or is not invited to do so). This leads to changes needing to be made late in the marketing process, once a lot of work has already gone into the collateral. This can be particularly challenging for the likes of television commercials or videos.
In addition to monthly meetings, we also suggest holding regular workshops for the Marketing team to educate them on issues such as:

key industry or marketing-related regulations that impact their decisions;
examples of words and images that cannot be used and why; and
the process Legal undertakes when reviewing collateral and the information they need Marketing to provide in order to complete the review.

Similarly, Marketing may hold workshops to educate Legal on issues such as:

the business’ target market; and 
why certain phrases and images might appeal to that demographic. 

The idea is that the more each team educates the other on their objectives, the easier it will be to work effectively and efficiently together. 

“From the Marketing team’s perspective, I think they have built a strong relationship with LegalVision. LegalVision is very accessible, on the phone and in person. LegalVision has also been very amenable to working within the Business and adopting our working style. The LegalVision team go out of their way to service the Marketing team in the way that our in-house team does.” Daphne Koffel, Domain Senior Legal Counsel 

Key Takeaways
If there is friction between the marketing team and the in-house legal team in your business, you may wish to outsource marketing collateral review work. If you decide to do so, you will need to identify key pain points and work together to identify a future state. It is important to start small when trialling a new outsourced provider so you can test how the service works. If you have decided to outsource marketing collateral review work and need help, contact LegalVision on 1300 544 755 or fill out the form on this page. 

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Legal design workshops are a very valuable tool for improving the process and outcomes of advertising review work. They are a valuable way of getting all stakeholders in the same room and on the same page. They provide a dedicated space for the Marketing and Legal teams to communicate and collaborate in pursuit of shared objectives and support a cross-functional approach to problem solving. This article sets out the structure and approach to take during an advertising review legal design workshop and the outcomes you can expect to achieve. 
What Are Legal Design Workshops?
Legal design workshops are a tool or method used to establish and implement new ways of tackling legal work in your in-house team. During a legal design workshop, everyone works together to:

define problems; 
develop ideas; and 
test solutions. 

This often includes working through a number of brainstorming and problem-solving exercises, led by a moderator or workshop facilitator. By the end of the legal design workshop, you will have tangible output. The particular type of output depends on the legal challenge you tackle during the workshop but might include: 

designing new legal tools or products; 
improving legal services; or 
setting up better legal systems for delivering legal assistance to your organisation. 

Legal Design Workshops for Advertising Review
We often hear from clients about the frictions that can arise between Marketing and Legal teams throughout the advertising review process. This is often because the Marketing and Legal teams objectives are different. Marketing teams are focused on:

growing brand awareness; and
generating revenue through marketing campaigns.

On the other hand, Legal must:

ensure the business is compliant with regulation; and
mitigate risk.

The outcome everyone is looking for is marketing collateral that is compliant, engaging and turned around in an efficient and timely manner. 
To get to the core of what is causing tension or hold ups in the advertising review process, it is important to understand what is causing the problem and at what stage of the process the problems occur. This is where legal design workshops come in.
In the context of advertising review work, legal design workshops are a very valuable and efficient method for: 

first, understanding and aligning on the pain points; and 
second, designing the future state. 

Legal design workshops for advertising review should always include representatives from both the Legal and Marketing teams. Facilitators should encourage open conversation and foster an environment that will help build relationships between the two teams. Typically, advertising review workshops are structured in the following way. 
1. Map the Current State
Before redesigning the advertising review work process, it is important to understand how work reaches completion. Mapping the current state (i.e. ‘journey mapping’) can help address specific pain points in your current processes and identify any gaps or opportunities in existing systems. This mapping exercise will also allow you to see the points in the collateral’s life cycle that the Marketing and Legal teams interact with. These touchpoints are where friction is most likely to occur. 
2. Identify Pain Points
Once the mapping exercise is complete, consider what you could do to improve the current state and improve the way the Legal and Marketing teams work together. Some common pain points include:

missing touchpoints (where Legal could be consulted earlier in a campaign’s development to save time later on);
matter management (the absence of a central repository of all past approved claims and collateral); and 
turnaround times (consider how much notice Legal needs if Marketing wants assets or collateral reviewed urgently).

Ensure that this stage of the exercise is completed in an open, transparent and constructive manner. The more pain points we discover at this stage, the more we have to improve upon when we map the future state below.
3. Align on the Requirements for the Future State
After we have mapped the current state and aligned on the challenges and pain points, we identify the opportunities or requirements that need to be in place to improve the marketing review process. 
In our experience, some of the common requirements we have seen and implemented for our clients include:

checklists for marketing teams to ensure all relevant information is provided to Legal to enable them to complete the review;
an agreed form and content of instructions and a simple and streamlined way for Marketing to instruct Legal;
a centralised repository of all previously approved collateral and a way to capture email correspondence;
ongoing feedback and education between the Marketing and Legal teams; 
an escalation matrix for when to involve the in-house Legal team; and 
standard turnaround times that the Marketing team can work within. 

What Outcomes to Expect
At the end of the advertising review legal design workshop, you can expect to have achieved a:

better understanding of the tensions between the Marketing and Legal teams;
list of the pain points and challenges relevant to the current advertising review process; and
map of the ‘future state’, all of the requirements that need to be in place to improve the efficiency and outcomes of your advertising review workflow.

Clients have previously described the experience as “cathartic”. 
Key Takeaways 
Legal design workshops are a very useful tool for assessing and enhancing your advertising review workflow. To be successful, you must ensure you involve representatives from both the Marketing and Legal teams and foster an environment of open and transparent communication between teams. These workshops are an ideal way to understand the pain points or tensions that might arise under your current ways of working and establishing new systems and requirements for your future operations. To book a legal design workshop for advertising review, contact LegalVision on 1300 544 755 or fill out the form on this page.

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As an employer, you may not always need to employ staff on a permanent basis. Rather, it may be more appropriate for you to engage employees on a casual basis or until a set a date, upon which the employment will come to an end. For this reason, it is important to understand the different types of employment as an employer. Once you decide this, you need to outline the employment conditions agreed between you and your employee in an employment contract. In this article, we consider which employment contract is most appropriate for you and your employee’s employment arrangement.
Casual Employment
It may be appropriate to engage your employee on a casual basis where you:

require your employee to fill a temporary labour gap; or
are unable to predict their hours due to fluctuating operational requirements.

This will allow you greater flexibility throughout your employee’s employment and minimise your obligations in relation to terminating their employment. As such, a casual employment contract should confirm that:

your employee has no guarantee of ongoing or regular work; and
you do not need to provide notice of termination.

Casual employees are not entitled to paid leave entitlements. However, they are entitled to a casual loading (usually 25%), which can result in higher payroll costs than permanent engagements. In addition, where your casual employees work regular and systematic hours, they may also be entitled to request that their employment be converted to a permanent engagement if they meet the criteria set out in any applicable industrial instrument (such as a modern award or enterprise agreement). As such, it is important that you regularly review your casual workforce to check:

what hours employees are actually working; and
how regularly employees work these hours.

Getting it wrong can cost you. Recent decisions from the courts have ordered that casual employees who were, in substance, permanent employees receive back payment of the entitlements they did not receive.
Permanent Employment
You may wish to engage your employee on a permanent basis (whether that be full-time or part-time) where you:

require an employee to work on an ongoing basis; and
are able to predict in advance the hours that the employee will need to work.

Permanent employees are entitled to paid leave entitlements (such as annual leave and personal leave) when they are absent from work. Also, permanent employees have much more job security. This often results in permanent employees having more motivation to perform and contribute to the future success of your business.
However, permanent employment contracts do not have an end date and will continue to apply until your employee’s employment terminates (whether this be via resignation or dismissal). As such, this type of employment contract will not be suitable if you only require your employees to work on a temporary basis. There are also obligations with regards to notice of termination. As a result, the process towards termination can be more complex.
Fixed-Term Employment
Unlike permanent employment, you only employ a fixed-term employee until a set date. That is, a fixed-term employment contract will contain a commencement date and an end date where the employment will automatically cease. For this reason, you may wish to use fixed-term contracts when you engage an employee to fill a temporary role, such as:

maternity leave cover; or
to help out with a large project for a specified period of time.

At the expiry of the fixed-term, you will also be exempt from unfair dismissal claims if you no longer require the employee’s services. The contract was for a specified period and simply terminates by the passing of time at the end of the fixed-term. Employees under a fixed-term contract will have the same rights as permanent employees in relation to:

leave entitlements; and
benefits under any applicable Industrial Instrument.

However, the main characteristic of a fixed-term contract is that both you and the employee agree to continue the employment arrangement for the entire fixed-term specified in the agreement. As such, if you need to terminate your employee before the expiry of the fixed-term, you can still risk exposure to a potential claim. This could be:

an unfair dismissal claim; or
a claim that you pay the employee the rest of the balance of the term.

Maximum-Term Employment
Similar to a fixed-term employment arrangement, a maximum-term or “outer limit” contract also has a date on which the employment will end. However, unlike a fixed-term contract, a maximum-term contract also gives you and your employee the right to terminate the employment prior to the end date by giving notice to the other. Employers commonly use maximum-term employment contracts because of the flexibility they offer in relation to termination.
Many employers believe that employees on contracts for a specified period of time do not have the ability to make an unfair dismissal claim upon expiry of the contract. The rationale behind this was that the employment had come to an end due to the passing of time, rather than at the initiative of the employer. However, recent case law suggests that if a maximum-term contract gives either you or your employee an unqualified right to terminate the contract on notice (or payment in lieu of notice), it will not be a contract for a specified time. As such, you should always:

exercise caution when employing employees under maximum-term contracts; and
consider limiting early termination clauses to mitigate the risks of a successful claim for unfair dismissal.

Key Takeaways
As an employer, it is important that you understand the different types of employment so that you can choose the arrangement that is most appropriate for you and your employees. The different ways you can engage an employee have implications for how you pay your employees, which benefits they are entitled to and how their employment may come to an end. If you need assistance preparing an appropriate employment contract to reflect these arrangements, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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The Australian Government Department of Health recommends that the general public wear face masks in instances where:
there is risk of community transmission; and it is difficult to maintain social distancing.
A business may set out a condition of entry that requires customers to wear a face mask to enter.
Some businesses are using temperature checks as a preventative measure in managing the COVID-19 outbreak. A high temperature is a symptom of COVID-19. Therefore, a business may choose to turn away people whose temperature is higher than normal. A high temperature is not a diagnosis for COVID-19 and can only identify symptoms of the infection. There could be another reason why a person’s temperature is high. Conversely, an infected person may not exhibit a high temperature, so you should still ensure that other preventative measures, such as frequent hand washing, are taking place. This article will outline the legality of enforcing your customers and employees to wear face masks and carry out temperature checks.
Can I Ask Customers to Wear a Mask and Take Their Temperature?
To keep your staff and customers safe during the COVID-19 outbreak, you may wish to make it compulsory for anyone entering your premises to wear a mask and comply with a temperature check. Stores that have refused service to people not wearing masks have gained a lot of attention. Many business owners and members of the public have questioned whether imposing these rules is lawful.
Refusing service to patrons is relatively common in Australia and can occur for several reasons.

A common example is a restaurant or bar that has a particular dress code. The business has chosen to have the dress code as a condition of entry. A condition of entry is a set of terms and conditions that a patron will accept by entering your premises. If your business has conditions of entry, and it is not practical for each patron to sign a contract, you should display your conditions near the entrance. Consequently, if a patron is not adhering to the conditions of entry, you can reasonably refuse them entry. 

Similarly, you can also make wearing a mask and having a temperature check a condition of entry. Anyone who decides not to comply with your conditions can be refused service and denied access. You should train your employees on how to handle situations where customers refuse to comply with these rules. 
Each of the states and territories has different guidelines around wearing face masks in public. If you are unsure which rules may apply, you should visit your state or territory government website.
Can I Ask Employees to Wear a Mask and Take Their Temperature?
Masks and temperature checks are not compulsory (at time of writing) in all states and territories in Australia. It is best to check with your local government website as to what rules apply nationally and statewide.
It is currently compulsory for anybody out in public in Victoria to wear a face mask. Therefore, if you are conducting business in Victoria, you should ensure all of your employees are complying with the law.
You can ask your workers to wear a mask or take their temperature on shift if you believe it will be beneficial. Before directing your workers to wear a mask, you should consult with them and discuss the reasoning behind your decision. If you and your employees agree that a face mask will be beneficial for their safety and the safety of others, you may want to update their employment contract to reflect this. 
If you would like your employees to wear a mask, you should ensure that you provide them. You should also give training on how to use them properly. 
Key Takeaways
Although wearing masks and taking temperatures is not a legal requirement in most states and territories, doing so can help prevent transmission of COVID-19. As a business owner, you are well within your rights to set conditions of entry into your premises. It is best practice to consult with your employees before directing them to wear a mask and participate in temperature checks. If you are unsure of your responsibilities as a business owner during the COVID-19 outbreak, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.

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RRP stands for ‘recommended retail price’. It acts as a guide from the manufacturer of a product on what the retail sale price should be. Businesses often display RRP on their items to show customers that they are getting a good deal on the product. The Australian Consumer Law (ACL) has strict guidelines on how to display the price on your products. Failure to comply with these regulations could result in hefty penalties. This article will outline the considerations you need to make when displaying RRP on your products.
Can I Display RRP on My Products?
When displaying the price of a good or service, you must include the total price, including all: 

charges;
taxes;
duties;
levies; or
fees.

For example, it is common when buying tickets to an event that the booking platform will charge a booking fee. The booking platform will need to display the booking fee alongside the price of the ticket, e.g. $150 + $10 booking fee. 

It is also common for businesses to compare the RRP to the resale price. The ACL allows for two price advertising, but you need to avoid doing this in a way that misleads customers. When displaying a sale or RRP price, you need to ensure the:

higher price has been offered previously for a reasonable period prior to the sale;
business must have previously sold the product or service at RRP;
sale price must be temporary; and 
RRP must reflect the current market price.

Even if you did not intend to mislead the customer, you are still in breach of ACL if you violate these principles. This could result in sanctions.
Can the Manufacturer Impose a Minimum or Maximum Resale Price?
Maximum Resale Price
Under ACL, manufacturers can enforce a maximum resale price. You should agree to the maximum resale price during negotiations when entering into a new contract with the supplier. If you are unsure if there is a maximum resale price for a previous arrangement, check the terms of the agreement you signed. 
If you were to sell at a price higher than the maximum resale price, you would be in breach of your contract. Here, the manufacturer may be able to terminate the agreement.     
Minimum Resale Price
Unlike the maximum resale price, a manufacturer cannot impose a minimum resale price. This is known as retail price maintenance which is prohibited by law. The manufacturer cannot enforce retail price maintenance either in the distribution agreement or in practice. Retail price maintenance is commonly seen by: 

pressuring the reseller to sell at a specific price;
refusing to supply the product unless you agree to sell at a minimum resale price;
offering incentives to encourage you to resell the goods for a specific price;
providing a price on the product that does not clearly state ‘recommended’;
only allowing a particular discount to be applied, or not allowing any discount at all; and
refusing supply if you are going to be selling to a third party who will sell below a minimum sale price.

A supplier can undoubtedly provide recommended retail pricing as long as it is a guide only and not a condition of supply.
Predatory Pricing
Despite being within your rights as a reseller to price below RRP, if you price your products too low, you may be committing predatory pricing. This practice is where a business sells its products at a sufficiently low level to damage their competitors. Generally, this occurs when the company is a market leader and can afford to suffer a loss on one product to promote their business or generate traffic towards their other products. This is known as misuse of market power.
Predatory pricing is illegal, and the Competition and Consumer Act 2010 (Cth) prohibits business misusing their commercial advantage. If you commit predatory pricing, manufacturers are within their rights to withhold supply from you.
Predatory pricing does not apply to genuine sales and promotions.

Example 1: A retail store decides to have an end of year financial sale. They reduce the price of their fitness watch by 10% to encourage customers to make a purchase. The store previously sold the watch at a higher price for a reasonable period and the sale will last for one week. This example likely shows a genuine promotion.
Example 2: A well-known retail store reduces the price they sell their fitness watches by a significant amount that is well under the cost of production. They can maintain these prices as they have high market power and can afford to take a loss due to the sales of their other products. Competitors in the fitness watch industry are now unable to compete with the low prices and go out of business, thus causing the original retail store to gain a monopoly. This example likely shows predatory pricing.

Key Takeaways
RRP is a common way to advertise a sale of your product. Business owners should make sure this sale is genuine and not misleading or committing predatory pricing. Suppliers giving RRP to their resellers need to ensure they are not engaging in retail price maintenance. If you are unsure of your responsibilities as a business owner, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.

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The outbreak of COVID-19 has had significant consequences on Australian businesses, forcing many to close for extended periods of time. Now that businesses have started to reopen, it is important to have a COVID safety plan in place. This article will discuss the important considerations for your plan and how to keep your employees and customers safe.
Why Is It Important to Have a COVID Safety Plan?
The purpose of a COVID safety plan is to reduce the likeliness of transmission of COVID-19 between your staff, clients and other third parties that enter your workplace. As an employer, you must ensure your workplace meets health and safety standards, which will include minimising the risk of COVID-19 exposure.
Each state and territory will have its own legislation around how your business must operate due to COVID-19 restrictions. If you are unsure which rules apply to you, visit your state and territory government website for more information.
What Should You Include in Your COVID Safety Plan?
Physical Distancing
Current health advice states that the best way to prevent the spread of the virus is to maintain a physical distance of at least 1.5m or 4sqm of space per person. Maintaining this distance decreases the chances of contracting the virus through an infected person sneezing, coughing or breathing near you.
For businesses in certain industries, government restrictions will limit the number of patrons allowed in your premises. You should check with your state or territory government website to see if any of these restrictions apply to you.
To ensure an adequate physical distance is achieved in your workplace, you should calculate the maximum number of people who are able to fit in the space while maintaining the four square metre rule. You can implement this by:
placing markers for people to stand on to ensure they have enough space;limiting the number of staff and customers allowed in the premises at one time;moving or separating work stations to ensure distance is maintained;allowing staff to work at home when the role allows; andstagger workers shifts to reduce the number of people on shift at one time.
Staff Travel
Your staff may have to travel on public transport to get to work, which can increase their chances of contracting the virus. It is important to consider travel to and from work in your action plan. You may consider encouraging your staff to drive to work or changing their shifts to avoid them having to travel during peak times.
Hygiene and Cleaning
It is now more important than ever that you have a clean and hygienic workplace, you can do this by:
ensuring there are numerous places for both staff and customers to wash or sanitise their hands;providing cleaning supplies for workspaces and encouraging your staff to clean their space regularly;ensuring that all communal spaces are being cleaned frequently keeping stock of bathroom products including hand soap and paper towels;where possible, increasing the frequency of cleaners to your business; andhaving posters around the premises that provide instructions on how to properly wash hands.
The health of Customers and Staff 
It is of the utmost importance that anybody who is sick or showing COVID-19 symptoms should be excluded from the premises. You should:
ensure all staff who are sick remain home and provide staff with thorough training on what to do if they exhibit symptoms;clearly display conditions of entry for customers and visitors to the premises;offer flexible working arrangements to your staff where possible;remind staff of their sick leave entitlements; andkeep records of staff and customers who enter the premises.
It is also important to remember that the COVID-19 outbreak has been a time of heightened stress and anxiety for people. This may be due to:
health scares;financial issues;decreased job security; orsocial isolation.
You should also consider the implications to your employee’s mental health, as well as your own. This may be a good time to explore implementing or updating employee support or counselling programs to benefit your employee’s emotional wellbeing during this time.
COVID-19 Diagnosis or Symptoms
As a business owner, you should be prepared that either a staff member or customer may be diagnosed with COVID-19. Having an action plan in place may reduce further community transmission of the virus.
If you receive notice that an infected person has been in your premises, it is important you follow the correct procedures, including:
contacting your local public health unit on 1300 066 055 to await further instructions;providing information to the public health authorities on the staff and customers who may have been in contact with the infected person. This will allow them to track potential subsequent infections;depending on the circumstance of the infection, a deep clean of the workplace may be required;staff, clients and other people who may have been in contact with the infected person should be informed immediately so they can self-isolate and get tested; andstaff who may have been in contact with an infected person or are showing symptoms of the virus should self-isolate and not return to work unless they have been tested and cleared of infection.
Your business should be able to resume operation within 48 hours after the public health unit has been notified, as long as they are satisfied, there is no on-going risk.
Key Takeaways
The COVID-19 outbreak has been an upsetting and anxious time for individuals and business owners alike. By having a safety plan in place, you can help prevent further spread of the virus and help your employees and customers feel safe. If your business has been affected by COVID-19 or you would like assistance with understanding your obligations as an employer, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.
 
 
 

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Commercial in confidence generally means sensitive information that an individual or business shares with another party in confidence. Therefore, the person receiving this information is obligated to not disclose or use that information without consent. This article will discuss the best ways to protect your businesses confidential information and what to do if there is a breach of confidence.
What is Confidential Information?
Confidential information refers to any information or document that a business wants to keep out of the public domain. The information must be:

easily identifiable;
show originality; and
not be of public knowledge.

Confidential information includes any information that the recipient has acquired or been presented with throughout the commercial relationship.
Types of confidential information include, but is not limited to:

trade secrets;
personal information;
intellectual property; 
financial statements; and
internal processes.

How Do I Protect My Businesses Confidential Information?
Confidentiality Agreement
A confidentiality agreement, also known as a non-disclosure agreement, is an agreement between the owner of confidential information and the party in which they are sharing that information. Confidentiality agreements are suitable for when you are entering into initial discussions with the other party prior to entering into a formal relationship.  

For example, you may wish to hire a developer for your new app. To decide if the developer is going to be suitable for your business, you will need to disclose confidential business information to them. In this instance, it would be appropriate to have the developer sign a confidentiality agreement.

Confidentiality Clauses within a Contract
When you are ready to proceed with a formal relationship that requires you to continuously disclose confidential information to the other party, you should include a confidentiality clause within your contract. Key examples of the types of agreements to contain these clauses are:

employment;
contractor; and 
manufacturing agreements.

For example, once you have decided on the developer you are going to work with, you should enter into a development agreement with them. The agreement will define the terms of the relationship as a whole, including:

costs;
exclusivity; and 
termination.

Still, it should also include confidentiality provisions to protect the confidential information you will need to share with them throughout the relationship.
Typically, a confidentiality agreement or clause will need to include the:

parties to the agreement;
information which is to be kept confidential;
obligation to maintain secrecy and the exceptions, if any, to these obligations;
scope of permitted use of the confidential information; and
consequences of failing to comply with the requirements set out in the agreement.

Duty of Confidence
When there is no written agreement in place, there may still be an equitable duty of confidence. A duty of confidence does not necessarily have to be written in a contract if it can be satisfied that there was an obligation to keep the information confidential.

For example, you have hired a developer for your app, and you need to provide them with your business plan. You do not sign a formal contract with the developer and later find they have shared your strategy with another business. Due to the nature of the relationship, a court may decide that you shared the business plan in confidence. Therefore, by sharing the information with competitors or the general public, the developer was in breach of confidence.

Despite this, it is best practice not to rely solely on the equitable duty of confidence and to protect your confidential information with a written contract. Other steps you can take to protect your interest include:

marking the document as confidential; and
limiting access to the confidential information to only the people who need to see it. 

How Do I Determine if There Has Been a Breach of Confidence?
If you believe there has been a breach of confidence and you wish to take action against the other party, you will need to be able to prove the breach. For a court to determine there has been a breach, they will assess the following:
Was the Information Confidential?
Even if you have labelled information as ‘confidential’, it still may be determined that the information is well known. If the information is public knowledge or other businesses possess the same content, then it is likely that this does not satisfy the requirements of being confidential. Alternatively, a document may not be marked ‘confidential’, but due to the nature of its contents, it is most likely confidential. 

For example, your business has a database of client information. You have not marked the database as ‘confidential’, but this is likely to meet the requirement of confidential information. 

Was There an Obligation of Confidence?
Determining whether there was an obligation of confidence will depend on the nature of the relationship between the parties. If there was a written contract or you implied to the recipient that they should keep the information confidential, then you can be satisfied that there was an obligation of confidence. 

For example, you share your client list with your employee for them to complete their employment duties. Your employee will typically be under an obligation not to share this list without consent.

Was the Breach Unauthorised?
If you have consented to share the information that you disclosed to the other party, this will not constitute a breach. However, if the other party has shared confidential information without your knowledge or consent, then this breach would be considered unauthorised.

For example, your employee resigns from your business to work for a competitor and has shared your client list with their new employer.

Did Your Business Suffer Significant Loss From the Breach?
The information that the recipient has shared without your consent may be of high commercial value and cause loss or damage to your business.

For example, as a result of your competitor getting access to your client list, they have managed to take over one of your key accounts leading to significant financial loss.

What Do I Do if There Has Been a Breach of Confidence?
When you have determined there has been a breach of confidence, you may wish to take legal action against the other party.
Going to court can be a costly and lengthy process, and therefore it is best to try and resolve the matter outside of court. Typically, the first step in this process is to send a cease and desist letter to the offending party. The letter should communicate to the other party that they have breached their contract and that you are taking the matter seriously. You should ensure the letter covers:

the nature of the breach; 
the damages suffered as a consequence;
your demands; and
potential consequences if the demands are not met.

Your demands can be simply for the other party to ‘cease and desist’ using your confidential information. Or, they may take the form of compensation. Potential consequences usually state that you will take further legal action if the recipient does not comply with the letter. 
If negotiating outside of court is unsuccessful, you may wish to commence formal legal proceedings. If proceedings are successful, there are two possible outcomes available:

an injunction: this will prevent the parties from being able to keep using or disclosing the confidential information; and 
damages: this is monetary compensation for any losses caused by the breach of confidence.

Key Takeaways
Confidential information takes many forms, and as a business owner, you should always take the necessary steps to protect this information. Contractual obligations can help protect your confidential information and deter the person receiving the information from disclosing it without consent. If the other party breaches their contractual obligations, then you may have a legal right to receive compensation for damages. If you would like assistance with ensuring your businesses confidential information is protected, contact LegalVision’s business lawyers by calling 1300 544 755 or fill out the form on this page.

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A contract is formed when certain legal elements are met, two of those being, “offer” and “acceptance”. Unilateral contracts are a specific type of contract where a person can make an offer, and another person can only accept the offer if they perform certain actions. You may use unilateral contracts in a range of circumstances. This article will provide examples as well as some important considerations about unilateral contracts.
How Is a Unilateral Contract Made?
A unilateral contract is made in the way the contract is drafted. This means that if a person wishes for a contract to be a unilateral contract, it should be clear in the contract that acceptance of an offer can only occur once the other person has performed a certain act. 
The contract should detail what:
a person is offering under the contract; andthe other person needs to do to accept the offer.
Of course, people can also form a contract without having a contract in writing. If this were the case, it would nevertheless need to be clear that an offer and acceptance has occurred. For unilateral contracts, that acceptance of the offer can only occur once certain acts have been performed.
What Are Examples of a Unilateral Contract?
There are many common business scenarios where unilateral contracts exist. For example:
an online platform offers a 15% member discount on a person’s membership fee if the person refers a friend to the online platform and the online friend joins the platform. The offer here is a 15% member discount on a person’s membership fee. The acceptance of the offer can only occur if a person refers a friend to the online platform and that friend joins the online platform;a cafe offers a free coffee if a person purchases nine coffees. The offer here is a free coffee. The acceptance of the offer can only occur if a person purchases nine coffees;a pub offers a cheese platter to the team who wins a trivia game. The offer here is a cheese platter. The acceptance of the offer can only occur if a team wins the trivia game; andan insurance business offers to pay a person an amount if a certain event were to arise. The offer here is the payment of the insurer of an amount. The acceptance of the offer can only occur if the event actually arises. Here, it would also be important to note that the insurer may have other additional terms and conditions that they need to meet in order for the insured party to be able to claim on its insurance. For example, some insurers will not pay an amount if the event arose due to a person’s negligent acts or omissions.
What Are Legal Considerations Relevant to Unilateral Contracts?
Businesses that intend to use unilateral contracts should be aware of other legal considerations that may impact on the operation of the contract. A few considerations include the following:
Revoking the Contract
A party may revoke a unilateral contract at any time prior to acceptance taking place. This is because until acceptance occurs, the parties have not yet created a binding contract.
Nevertheless, if you incorporate unilateral contracts into your business, it should be clear as to how long an offer will be available for. It should also be clear on the circumstances when a business can revoke an offer. This is to avoid falling foul of Australian Consumer Laws related to misleading or deceptive conduct. 

For example, if a business were to offer a “Buy nine Coffees and get the 10th Coffee Free” arrangement, it may wish to specify that a purchaser would need to buy nine coffees within six months. 

Elements of a Contract
Offer and acceptance are not the only two elements which create a contract. Businesses should also be mindful of the other elements that create a contract, including:
consideration – the reason behind a party entering a contract. Most commonly, this takes the form of monetary value;intention to create legal relations – this means that both parties to a contract understand that they intend for their arrangement to be legally enforceable. Although this may be obvious in written contracts, this will need to be clear in verbal or implied contracts; andcapacity – all parties of a contract will need to be legally competent to enter a contract. This means that they will need to have the mental capacity to enter a contract.
Without fulfilling all the above elements, a legal contract will not exist, despite there being offer and acceptance.
Terms and Conditions
Any other terms and conditions that may apply under the contract should also be communicated.

For example, a retail business sets up an Easter egg competition awarding prizes for a person who finds all the toy easter eggs in the store. Here, it may wish to state that the prize will only be awarded to the first 10 people who find all the toy easter eggs.

Bilateral Contracts
Unilateral contracts differ from bilateral contracts. The main reason they differ is that a unilateral contract will not be formed until the required action is performed. This differs from bilateral contracts as a contract may be formed by other ways of acceptance, e.g. signing a contract.
In a bilateral contract, the parties will form a contract, and there will be certain obligations that each party has to fulfil under the contract. In a unilateral contract, a party will only need to fulfil its side of the contract if the other party has performed the specific action required under the contract.
Key Takeaways
Unilateral contracts are widespread in business contracts, even if a business is unaware of the legal mechanisms that allow a unilateral contract to arise. If you run a business and are thinking of offering rewards or discounts, you could be offering these benefits under a unilateral contract arrangement. It’s important to be aware that unilateral contracts do not operate in isolation, and other legal considerations should be front of mind, including to avoid your offers being misleading or deceptive. If you would like to discuss unilateral drafting contracts, contact LegalVision’s contract lawyers on 1300 544 755 or fill out the form on this page.

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Employee engagement has been a hot topic in business since the 1990s. Now, with teams more geographically distributed than ever, and employees facing increased uncertainty in their roles, employee engagement is again in the spotlight.
In LegalVision’s experience, engaged team members are willing to go the extra mile for their clients and teammates. They proactively think of ways to improve our systems and processes and share their ideas with the right people. They are culture champions internally and advocates of LegalVision as an employer externally. For these reasons, and many more, high employee engagement is a business imperative for LegalVision.
But creating and fostering an engaged team does not happen by chance. There is a lot more to it than allowing your team to bring their dogs to work, or putting on Friday night drinks. It requires consideration, action, commitment, reflection and investment. In this article, we explore:
the four key pillars of employee engagement;how to measure engagement in your business; and what leaders can do to enhance employee engagement in their businesses.
4 Pillars of Engagement
Start by looking holistically at the overall employee experience at your business, addressing the following four key pillars of engagement:
strong foundations of employment;meaningful and challenging work; effective management and leadership; and connectivity and belonging.
1. Strong Foundations of Employment
Think of the foundations of employment as hygiene factors for your employees. These are:
a safe workplace; fair compensation;job security; and clear expectations.
If you fail to provide these foundations, you have not met your employees’ basic needs, and they will be disengaged from Day One. As such, getting the foundations of employment right in your business is critical to giving yourself the best chance of establishing an engaged workforce.
2. Meaningful and Challenging Work
Providing meaningful and challenging work to your employees starts with your business’ mission, vision and values.

Do your employees know and understand your mission and vision?
Are they motivated and inspired by them?
Can they see the values of the business being lived on a day to day basis?

Team and business alignment is an important element of employee engagement, so ensuring everyone is on the same page should be a priority. Review the tasks people are performing along with their level of responsibility.
Consider these questions:
Are tasks and responsibilities well defined, and suited to the skills and experience of people employed to perform them? Are employees given a reasonable level of autonomy to perform their duties? Is there scope to increase the level of complexity within a role, to provide new and challenging work for employees to aid their development? 
Closely monitoring the performance and capabilities of your team members will allow you to structure their roles and responsibilities in the most engaging way possible, enabling growth and unlocking opportunities for career progression.
3. Effective Management and Leadership
As a manager and leader, you can set the tone for what is acceptable in terms of performance, behaviour and contribution in your business. Inspiring managers and leaders, who truly care about the success of the team, and are willing to put in the time and effort to support those around them, will help engagement levels soar.
Further, effective managers and leaders instill confidence in team members, as they know that the business is in safe hands. For these reasons and more, hiring, nurturing and retaining effective managers and leaders should be a key focus in every business.
4. Connectivity and Belonging 
The final pillar of employee engagement is connectivity and belonging. This pillar involves much more than providing fun events or cool perks to your employees. At the crux of it, this pillar emphasises the importance of creating opportunities for your team members to:

meaningfully connect, to feel like they are valued members of your business, and like they truly belong. 

Achieving high levels of connectivity and belonging requires focus and commitment. It is not something that should only occur during difficult or uncertain times.
There are many actions businesses can take to achieve high levels of connectivity and belonging. You can:
foster open communication and transparency among all levels and in all circumstances; facilitate frequent opportunities to connect, either formally or informally; ensure your team represents diversity of culture, thought, professional and lived experience; and provide genuine support and guidance to team members in the good times and bad as part of cultural norm, not something that happens once a year on a national day of celebration or commemoration. 
These are just a few examples of how you can build employee engagement through connectivity and belonging and allow your team members to thrive.
Measuring Engagement
Now that you understand the four key pillars of engagement, it is important to know how to measure engagement in your business. The most effective way to do this is to conduct an employee engagement survey. Employee engagement surveys ask questions that get to the crux of how employees are thinking and feeling about their jobs, managers and leaders, the business, and their career goals. 
Several providers in the market offer different solutions. For example, formal surveys to be completed on a biannual basis, or weekly pulse checks that are sent to employees’ mobile phones.
Questions to Consider
Regardless of the employee survey solution you opt for, ask yourself the following questions first:
What are we measuring? Every survey does not have to cover every pillar of employee engagement. This is especially true if you survey your team one a regular basis.Who are we inviting to participate? Generally, new starters will have little to add to an engagement survey, so it might not make sense to invite them to participate. The same applies to employees who work very infrequently. When is the right time to run the survey? Launching your survey during a busy time, such as the end of the financial year, will likely have an impact on your completion rate. Plan ahead to give your employees the best opportunity to provide their feedback in the given time frame.What will we do with the feedback? Asking for feedback and doing nothing about it is a surefire way to decrease engagement levels in your business. Once you have digested the feedback, prepare an action plan, share it with your team, then execute. 
Many survey providers offer industry benchmarks that you can use to compare your results. This is a fantastic way to see how your business is tracking compared to others in a similar situation. If a benchmark is not available, use your own results as a benchmark, and aim to improve your scores each time you survey your team.
Key Takeaways
While we have outlined the four key pillars of employee engagement in this article, it is important to note that employee engagement is not a one size fits all approach. What is important to one employee will likely be very different from the next. Managers should get to know their team members, including their career goals, how they like to communicate, and how they like to be recognised. 
By understanding what makes their team members tick, managers can provide tailored employee experiences and give the business the best chance to achieve high employee engagement across the board.
For assistance with employment law matters, LegalVision’s experienced employment lawyers can help. Call us today on 1300 544 755 or complete the form on this page.

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If you are a removalist and you engage subcontractors to help you with jobs, you should have a contract with them. This is a good way to govern the relationship between you and the subcontractor so that you can appropriately manage disputes. Although it is tempting to have an informal arrangement with a subcontractor and avoid the paperwork, a well-drafted subcontractor agreement is important. It ensures that each party clearly understands their rights and obligations, including how payment will work and what services you will provide. This helps you to manage the risk of hiring someone to help you out. This article unpacks the key terms you should include in your removalist subcontractor agreement.
Subcontractor or Employee 
The first step when you look to engage someone to assist your work is to consider whether they will be considered an employee or a subcontractor. This will affect the legal entitlements of the worker.
For example, an employee is entitled to sick leave and annual leave, whereas a contractor is not. 
There are many tools and tests to help you understand what the arrangement with your worker is. Two of the key factors to consider are:

how much control the person has, given an employee usually has little control over the hours and place of their work whereas a subcontractor has the discretion to choose these arrangements; and
integration of the worker into your business processes.

Integration essentially looks at whether the worker: 

provides their own equipment, such as their own truck;
has their own insurance; and
bears the risk of the work that they undertake.

This is because subcontractors are conducting their own business, distinct from employees who are participating in your business. Importantly, it does not matter whether you call them a subcontractor or your contract refers to them as a subcontractor. The law is more concerned with the actual relationship between you and the worker.
You need to take the distinction between an employee and a subcontractor very seriously. If you incorrectly classify a worker as a subcontractor when they are in fact an employee, the Fair Work Commission or Federal Court may order you to pay:

fines; and
superannuation, plus other entitlements on top of what you have already paid.

4 Key Terms to Include in Your Subcontractor Agreement
Once you have determined that your worker is a subcontractor, you should consider how your arrangement will work with them. Below, we run through some key considerations and terms you should include in your subcontractor agreement.
1. Services
Your removalist subcontractor agreement should outline what services you expect the subcontractor to provide.
For example, will they only be responsible for driving a delivery truck, or will they also be responsible for packing and unpacking customer’s belongings?
Throughout the term of the arrangement, you will want to ask them to help out on different jobs. Your subcontractor agreement should set out how you will offer jobs to them. This could be as simple as a text message or a phone call. Alternatively, it could be through a more formal platform. In any case, it should be clear: 
how the subcontractor will accept the job; and 
at what point they enter into a binding contract with you to perform the services for that particular job.
When you offer them a job, you should clearly let them know the:

date and time of the job;
services required;
location; and
the fees you will pay them.

2. Fees
Your subcontractor will want payment for the services they provide to you. Typically, a subcontractor will invoice you either: 

on completion of a job; or 
at a pre-agreed interval, for example every fortnight, for the fees for any services they have provided.

Your subcontractor agreement may set out how you will pay them, which could be:
an agreed hourly rate; or 
a set fee for each new job that you offer the subcontractor. 
Either way, you should decide these fees in advance. If you are paying your subcontractor at an hourly rate, it should be clear when the job starts and finishes. It is also a good idea to ask them to complete a timesheet. Your subcontractor agreement should make it very clear that you will only pay the subcontractor for work actually performed. 
If there are any expenses that the subcontractor may incur, such as fuel or travel, you should decide in advance who will cover these costs.
3. Equipment
Your removalist subcontractor agreement should set out who will be responsible for providing equipment. 
For example, if a subcontractor is responsible for providing their own truck, you will want to make it very clear that you have no responsibility for any damage that the truck incurs. 
If you are providing equipment for the subcontractor to use, then it should be clear that the subcontractor is responsible for: 

keeping them in good condition; 
ensuring that they do not get sold, lost or stolen; and 
using the equipment only for the purpose which you provided it for.

4. Liability
A key risk for any business when engaging a subcontractor is the liability that you could incur for their actions. As a removalist business, your subcontractor could cause a large amount of damage to your customers’ property and belongings. You will want to make sure that they are accountable and responsible for this potential damage. Your contract should seek to limit your liability so that you are not out of pocket if things go wrong. An important part of this is ensuring that your subcontractor has their own insurance to cover them.
Key Takeaways
If you engage a worker to help with your removal business, you should work out how you will engage them. If you are engaging them as a subcontractor, it is a good idea to use a subcontractor agreement to set out the relationship between the parties. A well-drafted subcontractor agreement will: 

seek to limit your liability; and 
provide a clear understanding of what services the subcontractor will provide and how you will pay them. 

If you would like assistance preparing you removalist subcontractor agreement, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.

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A shareholders agreement governs the relationship between a company’s directors and shareholders. It is an agreement made between two or more shareholders and it applies in addition to (or overrides) the company’s constitution. Every shareholders agreement should be individually tailored, because every company is different.
The Purpose of Shareholders Agreements
For most companies, especially startups, a shareholders agreement is its most important document. It governs the relationship between a company’s directors and shareholders. It will cover matters such as:

issuing new shares;
sale of existing shares;
directors duties;
conduct of board and shareholder meetings; and
dispute resolution.

 A well drafted shareholders agreement should take into account the:

number of shareholders; 
objectives of the shareholders;
funding arrangements; and 
nature of the business or industry in which the company operates.

Your shareholders agreement will apply in addition to the rules contained in the Corporations Act and company constitution regarding management of your company.
Where Are the Rules for Managing My Company? 
Management of your company will be governed by a combination of:

the Corporations Act;
your company’s constitution (if you have one); and
your company’s shareholders agreement (if you have one).

Generally, the shareholders agreement will override the company’s constitution.
The Corporations Act provides some basic safeguards for shareholders in the form of the “replaceable rules”. The replaceable rules apply to all companies registered after 1 July 1998. These rules may be displaced or modified by a company constitution. However, there are some mandatory replaceable rules that you cannot displace. These rules are generally concerned with protecting minority shareholders. 
Aside from these rules, however, the Corporations Act does not adequately deal with the rights of shareholders. As well as this, a standard company constitution will not always protect you and your shareholders in the event of a dispute between shareholders and members. While the Corporations Act does not require companies to have a Shareholders Agreement, having one can therefore be beneficial for setting ground rules about issues that affect shareholders.
Key Clauses
Every shareholders agreement is different. However, there are several key clauses every agreement should have.
Directors and the Board
A shareholders agreement can set out the minimum and maximum number of directors. It can also set out how directors are appointed.

For example, you may decide that:

only shareholders holding a certain percentage of shares can appoint directors; or
as founder, you should always have a right to appoint a director.

A shareholders agreement should also set out when and how a director can be removed.

For example, this may be if the director:

commits fraud; or
becomes incapable of managing their affairs due to a medical condition.

Board Meetings
The frequency of board meetings, as well as who can call for a directors meeting, are essential. These meetings should be quarterly and more frequently as agreed. 
Duties of Directors
The Corporations Act and general law sets out a range of directors’ duties. The shareholders agreement can set out the key duties and additional duties, including to:

represent the interests of the shareholders;
avoid conflicts of interest;
discharge all duties with due care and diligence;
not use their position, or information obtained from their position, to gain advantage for themselves; and
not cause detriment to the company.

Shareholders Meetings
A general meeting is a meeting of the shareholders of the company. A shareholders agreement should set out what issues the shareholders decide, rather than the directors. 
Deadlocks and Disputes
Where shareholders cannot agree on the management of the company, a deadlock provision resolves this. A shareholders agreement should set out how to resolve disputes, including how to resolve a deadlock between the directors or the shareholders. This may include a direct meeting and mediation.
New Shares and Dividends
An issue of new shares requires either unanimous approval or majority approval of shareholders. The shareholders will often require that new shares are first offered to existing shareholders on a pro rata basis.
Regarding dividends, a shareholders agreement will include how the directors of the company will determine that a dividend is payable. They also fix the amount, time and method for payment. 
Transferring and Selling Shares and Takeover Offers
A shareholders agreement should outline how a shareholder can sell his or her shares. This will require notice in writing to other shareholders and the option of purchasing the shares pro rata in proportion to their existing shareholding. The method of valuing the shares needs to be set out.

For example, the agreement may set out:

a valuation formula; or
that the company will be valued by an independent accountant.

Key Takeaways
A Shareholders Agreement governs the relationship between a company’s directors and shareholders. It is often a company’s most important document. Together with the Corporations Act and your company constitution, it governs how you should run your company. If you need help with drafting a shareholders agreement, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.
Frequently Asked Questions
What is sweat equity? Sweat equity is the time and effort that people contribute to a project, with no financial input from the contributors. What is vesting? Share vesting occurs when a shareholder acquires full ownership of shares. A share is considered vested when the employee may leave the job, yet maintain ownership of the share with no consequences. What is drag along? Drag along is where the majority shareholder(s) can require the minority shareholder(s) to sell, so that the bidder can buy the whole company. What is tag along? The agreement can include that if there is a takeover offer, and the majority shareholder(s) want to sell, the minority shareholder(s) can ‘tag along’ and sell their shares to the bidder at the same price. What are preference shares? Preference shares are shared that entitle the shareholder to a fixed dividend, whose payment of the dividend takes priority over that of ordinary share dividends. In the event of a company bankruptcy, preferred stock shareholders have a right to be paid from company assets first.

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A loan agreement is an agreement where one person (the lender) agrees to provide a loan to the other person (borrower). Loan agreements can be secured or unsecured. Each type of loan has different obligations and protections for borrowers and lenders. 
Loan Agreements in Australia
A loan agreement (or facility agreement) sets out the terms on which somebody has lent money. It is an essential legal document to:

enforce the terms of the loan; and
show that the money was a loan and not a gift.

Unsecured and Secured Loan Agreements
A loan agreement might be secured or unsecured. Unsecured loan agreements mean lenders do not have any claim to borrowers’ assets in priority against other creditors of the borrower if the borrower defaults (i.e. does not pay back the money). 
If a loan is secured, the borrower has granted security to the lender over all or some of the borrower’s assets. If the borrower defaults, the lender can try to recover its money by selling those assets and using the sales proceeds to repay the debt. 
Usually the borrower will grant security under a different agreement to the loan agreement, for example, a general security agreement or a specific security agreement. Merely describing a loan as secured does not make it a secured loan. You need to have an express provision in an agreement stating that the borrower grants security to the lender over the relevant assets.
Loan Agreement Clauses
While each loan contract is different, each contract will usually the following types of clauses.
Loan Clause
The operative loan clause sets out when and how money you are lending.

For example, the lender may not have to lend until certain conditions are satisfied (e.g. the delivery of certain information by the borrower).

The clause might state the account that you will need to pay the money into. Most importantly, it will also tell you how much money you are lending. You may be:

borrowing all the money upfront; or
only borrowing some money upfront and the rest at a later stage in time. 

Interest
Your lender might require you to pay interest on money you borrow. There will be a clause in your agreement telling you:

the interest rate; and
how interest is calculated.

You might be required to either pay interest at fixed or floating rate. A fixed fee interest rate is set at specific rate. This rate will not adjust during the term of the agreement unless agreed by both parties (for example, 7% per annum). A floating fee will be based on a set margin (for example, 2%) added to a benchmark rate that may change every day. In Australia, this usually be the bank bill swap rate (BBSW), which adjusts with the Reserve Bank of Australia’s cash rate target. 
Default Interest
You might be required to pay default interest under your agreement. This is an interest rate that will apply if you do not pay money on the due date. The default rate is usually higher than your interest rate. This rate should accurately reflect the cost to the lender of the amount not being paid when due. 
You might agree with your lender that they can capitalise any part of the interest which becomes due and payable and you fail to pay on its due date. This means the lender will add the interest to the outstanding principal amount, for the purposes of calculating interest (including default interest).
Repayment Clause
A repayment clause tells you when you must repay the loan. The lender might require you to:

make regular payments during the term of the loan; or
repay at the end of the term. 

Key Takeaways
If you are borrowing from a bank, you might first be asked to sign a letter of offer which will summarise the key terms of the loan you are entering into. If your company is borrowing money, the lender may require the directors to sign personal guarantees. This is a significant obligation and you should always get legal advice before signing any guarantee. If you are borrowing money under a loan agreement and you breach the agreement (for example, by giving the lender false financial information), the lender might sue you. If this occurs, they may try to claim for an amount greater than the amount of money you have borrowed. 
Frequently Asked Questions
What is a bilateral loan or syndicated loan? A bilateral loan is where there are only two parties. It is used in simpler, more basic transactions. A syndicated loan will be used in more sophisticated loan transactions, where there are several lenders (usually banks and other financial institutions). Does the National Credit Code (NCC) apply to my Loan Agreement? The NCC will only apply if the lender provides credit in the course of a business of providing credit or as part of, or incidental to, any other business. What is a lump-sum payment? In a lump-sum payment, the borrower repays the lender with a single one-time payment at the end of the loan term. What is a principal and interest payment? The borrower will make regular payments that count towards both the principal amount and the interest as it is compounded. At the end of the term, there will be no outstanding balance. For this reason, you can only choose a principal and interest payment plan when the loan agreement has a fixed term length. Are representations and warranties important in loan agreements? Yes. You should ensure you have a lawyer read these clauses before entering into them. If you make a representation which is not true, the lender might sue you for an amount greater than the amount you have borrowed. You must ensure prior to entering into a loan agreement that all representations and warranties in the agreement are true.

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If you take court action against a party for infringement of your intellectual property (IP) and you are successful, a court may make orders awarding you a range of remedies. It is important to know what remedies may be available for IP infringement before commencing litigation. The different remedies could include:

damages; 
an account of profits;
delivery up;
injunctions; or 
payment of your legal costs. 

This article will explain what each of these mean.
Damages
If you suffer a loss as a result of an infringement of your intellectual property, the court may award you damages in compensation for that loss. This means that a court orders the party who has acted unlawfully to compensate you for losses you suffered which their conduct caused. The purpose of damages is to return you to the position you would have been in had the other party not committed the infringement. Accordingly, in order to determine this sum, the court will consider: 

any presumed licence fee the infringer could have paid to legally use the intellectual property;
any loss of profit suffered by you, the owner; or 
any reputational harm suffered. 

In special circumstances, the court can award additional damages if it believes additional damages are reasonable in the circumstances. 
In considering an award of additional damages, the court will look to see whether the wrongdoer has derived some benefit from the wrongdoing. This does not necessarily mean a financial benefit. They will also consider the: 

flagrancy of the infringement; 
need to deter similar infringements; 
conduct of the party that infringed after being informed of the infringement; and
other relevant considerations the court sees fit. 

Account of Profits
As an alternative to damages, you can seek an account of profits. This may be desirable where you are unable to prove that you have suffered losses as a result of the infringing conduct, but you become aware that the infringer has made considerable sums themselves as a result of misusing your intellectual property. 
An account of profits focuses on the profits the person who has infringed your IP has made, rather than the losses you have suffered. When seeking an account of profits, the rightful owner of the intellectual property claims the profits the infringer has made.
Damages and account of profits are mutually exclusive. This means that an intellectual property owner cannot claim both damages and an account of profits and must decide what remedy to seek from the court. It is worth noting that additional damages can only be awarded where damages are awarded, even in a nominal amount, and are not available where the intellectual property owner claims an account of profits.
Delivery Up or Destruction
An order can be sought requiring the infringing party to: 

deliver the infringing goods to the intellectual property owner; or
destroy all infringing products. 

Injunctions and Other Court Orders
While monetary orders are helpful, often the most important action is to simply get the infringer to stop misusing your IP. An injunction is an order of a court: 

compelling a person to do something; or 
restraining a person from doing something. 

An injunction can be sought on an interlocutory basis and a permanent basis. An interlocutory injunction is an order made by the court preventing one party from committing, repeating or continuing a wrongful act prior to final hearing or trial. The court will then decide after the hearing whether the order should be made permanently, thereby restraining the infringer from committing any further infringing conduct.
In special circumstances, parties may also obtain an Anton Piller order, which is a search order. This enables the intellectual property to search the infringer’s premises and seize items relating to the infringement. Also, in special circumstances, the court may award a Mareva order, which prevents the infringer from removing their assets. 
Costs
A costs order is where the court orders that one party pay some or all of the other party’s legal costs.
Legal costs generally include: 

the solicitor’s professional fees; and 
any other relevant expenses, such as barrister’s fees and other disbursements. 

The court will usually order the unsuccessful party to pay the successful party’s legal costs. This means that if you bring infringement proceedings against someone and you lose, you may have to pay the other party’s legal costs. However, if you are successful, that party may have to pay your legal costs. 
Obtaining a costs order does not necessarily mean that you will recoup 100% of your costs. You may only obtain 50% to 75% of the actual legal costs incurred. Each court has a set ‘scale of costs’, which limits what can be reimbursed.
In certain circumstances, a court can order a party to pay ‘indemnity costs’. Indemnity costs will usually be 85% to 100% of all legal costs. However, an order for indemnity costs is reserved for particularly unreasonable conduct and the court has discretion to decide what type of costs orders it will make in each case. 
Key Takeaways
There are a number of different types of relief available in litigation for IP infringement. However, whether you will obtain such relief will depend on the prospects of success of your case. If your case is unsuccessful, you could be stuck paying both your legal fees and the legal fees of the defendant. Court litigation is expensive, time consuming and emotional. As such, it is important to weigh up whether it is in your commercial and personal interests to proceed with litigation. If you need help dealing with litigation related to IP infringement, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

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Businesses invest a lot into building their brand and protecting their intellectual property (IP) assets. The downside to becoming a successful and popular brand is that this can lead to the production of cheap knock-offs and counterfeit items from copycat businesses. Counterfeit products can be significantly damaging to a brand in two ways. First, they can take business and profits away from the IP owner when consumers purchase the counterfeits rather than their items. Second, poor quality counterfeits can cheapen the brand and affect the brand’s reputation. 
It is the responsibility of IP rights owners to take action to stop the production and sale of counterfeits. It is important to have a strategy in place to prevent brand dilution and losses of revenue that arise from counterfeiting. Below, we set out some steps you can take to prevent counterfeits.
Monitor Infringement 
Registering your IP the first step in protecting your assets from counterfeits. However, once you have registered it, it is up to you to regularly monitor infringement and take action if necessary. You should ensure you have a policy in place for conducting regular searches online and in the market. This will allow you to keep track of any counterfeit goods that may become available. 
Seize Counterfeit Goods
If an imported product infringes on your copyright or trade mark rights, you can lodge a notice of objection with the Australian Department of Immigration and Border Protection. If the Department approves your notice of objection, customs temporarily seizes the goods, stopping their importation and distribution.
The importer of the goods is notified. They then have ten business days to make a claim for the release of the seized goods. If the importer makes no claim for the goods, the goods are disposed of. However, if the importer makes a claim for the release of the goods within those ten business days, you (the objector) will then have ten days to commence court proceedings to block the importation of goods permanently. Otherwise, the goods will be released to the importer.
There is no cost to lodge a notice of objection, but the party who lodges the notice must undertake to bear any costs they subsequently incur. Accordingly, a notice of objection is a simple and cost-effective step you can take to help protect your brand. It gives customs the power to identify and seize counterfeit goods and notify you, thereafter putting the onus on the importer to prove that they have the right to sell the goods. 
This can also be an effective pre-emptive measure, which stops the sale of counterfeit goods before they hit the market.
Send a Letter of Demand or Cease and Desist Letter
In the event that counterfeits are already being produced and sold in the Australian market, you should send the person infringing your IP a formal letter setting out your rights to the intellectual property and advising them of their infringing conduct. The letter should:

identify the infringement; 
outline your intellectual property rights;
provide an opportunity to rectify the infringement (for example, by requiring them to take certain action); and 
inform them of the next steps in the event that they do not comply with your demands (typically, legal action). 

It is usually a legal requirement to take genuine steps to resolve a legal dispute before commencing litigation. Therefore, unless you require urgent relief, it is important to send a formal letter of this nature. Often, you can resolve the matter by exchanging letters, which saves you the significant cost of trying to resolve a matter in court. However, where you require urgent intervention, for example where there is a risk that evidence may be destroyed or there is an urgent deadline involved, you may need to take action with the court at a sooner date. 
Commence Litigation
Litigation may be required to enforce your rights where you cannot reach a resolution with the other side. However, court proceedings can be time consuming and expensive. That said, if you are successful, the court has broad powers in granting relief.

For example, the court may award you:

damages;
a share of the infringer’s wrongful profit;
an order for the destruction of all infringing material; or
an injunction restraining the infringer from selling and producing the infringing goods.

Whether you will obtain the above relief will depend on the strengths of your case. Accordingly, it is always important to weigh up whether it is in your commercial and personal interests to proceed with litigation before going ahead. 
Key Takeaways
All of your options to prevent counterfeit goods depend on you taking pre-emptive action and vigilantly identifying when someone is selling counterfeit versions of your goods. This requires you to monitor and enforce your rights effectively. It is your responsibility to notify customs of your rights when you become aware of counterfeit goods by lodging a notice of objection. Further, it is your responsibility  to notify infringers of your rights and demand that they cease their infringing conduct, failing which you will need to decide whether it is in your interests to proceed to litigation. If you need help with protecting your IP, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

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If you discover that your intellectual property has been infringed, it is important that you consider your options and devise a strategy to respond to that infringement in the best way to suit your commercial circumstances. While proceeding with court action may seem attractive, litigation can be expensive, tiresome and unpredictable. Therefore, it is always advisable to consider and explore the other channels available to you. Typically, court action should be the last resort. This article sets out some alternative actions you may wish to consider if you face infringement.
Customs Seizures
If the infringement involves the sale of counterfeit or infringing goods, you may wish to take preventive action with the Australian Department of Immigration and Border Protection (the Department). The Department can keep the goods off the market. In these circumstances, you may be able to lodge a notice of objection with customs. This allows you to request that customs seize any goods being imported into Australia which have infringed your intellectual property. This is a great way of tackling infringement early on. It will help:

stop the goods from being sold in the Australian market altogether; and
prevent any damage to your brand.

While this could still lead to litigation in the long run, it may not depending on how the infringer reacts to the notice of objection. Once customs seizes the goods, the importer has 10 days to submit grounds for releasing the goods. If they fail to do so, the goods are automatically forfeited to customs and destroyed. However, if the importer makes a claim for the release of the goods within those 10 business days, the objector (i.e. you) will have 10 days to commence court proceedings to block the importation of goods permanently. If you fail to do so, the goods will be released to the importer. Accordingly, depending on the circumstances, this can be an effective way of stopping infringing goods from being sold. However, the success of the process will depend on the actions taken by the importer. 
Third Party Platforms 
Often infringement will come to your attention as a result of seeing infringing goods on a third party platform. 

For example, you may find infringing goods on eBay, the Apple store or Facebook. 

A good strategy to stop infringement in a cost effective manner can be to deal with the third party platforms directly. Most third party platforms of this kind have policies in place to make intellectual property infringement complaints. 

Amazon, for example, allows trade mark owners to enrol their brands in the Amazon Brand Registry to locate and remove infringing content. 

In the US, the Digital Millennium Copyright Act of 1998 (DMCA) provides online platforms with a safe harbour to incentivise them to implement notice-and-takedown policies. While we do not have the same protection in Australia, a lot of these large third party platforms are established in the US. Accordingly, these platforms have a model based around this safe harbour. By following the process for infringement set out by these large companies, you may be able to quickly and efficiently deal with the infringement matter. 
Domain Name Disputes 
Often you will notice a party using a domain name which includes your trade mark. This can directly draw business away from your website, as consumers may be confused as to what address they are  accessing. Accordingly, this can cause your business significant damage. If a party has registered an infringing domain name, you can apply for the cancellation or transfer of the domain name through the Uniform Domain Name Dispute-Resolution Policy (UDRP) (or auDA where ‘.au’ addresses are concerned). You do not need to know the infringer’s precise identity and location to do so. UDRP proceedings can be very cost-efficient and fast, with proceedings often finalised in a couple of months.
However, your concerns may be broader than just obtaining transfer or cancellation of the domain name.

For example, you may:

have suffered considerable damage as a result of the conduct; or
need to obtain some relief to restrict the infringer’s conduct going forward.

In this case, this may not be a suitable solution as remedies are limited to the transfer or cancellation of an infringing domain name.
Making a Complaint to the ACCC 
Often where an infringement of intellectual property such as trade mark or copyright infringement has taken place, the infringer will also have breached the Australian Consumer Law (ACL). The ACL prohibits businesses from engaging in conduct that is likely to mislead or deceive consumers, which can often result from using a similar trade mark or copying another person’s copyright protected material. The regulatory body responsible for enforcing the Australian Consumer law, the Australian Competition and Consumer Commission (ACCC), has broad enforcement powers including: 

issuing infringement notices;
seeking court enforceable undertakings; or 
commencing legal proceedings. 

It is possible to make a complaint to the ACCC about a business’s misleading and deceptive conduct. If the ACCC wishes to investigate the matter, they may choose to exercise their broad powers in this respect. Whilst it is a much more unclear pathway, this is a cost-effective alternative to formal proceedings. It may be appropriate in circumstances where you do not wish to invest any costs in dealing with infringement.
Key Takeaways
Litigation can be financially and emotionally exhausting, as well as very unpredictable. Therefore, you should only proceed with this option when absolutely necessary. If your intellectual property has been infringed, it is important to explore all of your options and assess what is commercially important to your business. You may wish to take a more flexible and preventive approach. These alternatives can be useful options to consider, especially when you wish to proceed in a cost-effective manner. However, it is important to note that sometimes stronger action is necessary. If you need help dealing with intellectual property infringement, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page. 

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A company is a legal entity. It is distinct from its shareholders, directors and employees. A company constitution is a document that contains the rules governing the relationship between (and activities of) the company, its directors and shareholders. You may adopt a constitution for your company when you register it, or at a later stage.
What Is a Company?
A company is a legal entity. A company can:

sue and be sued;
enter into contracts; and
acquire, hold and sell property.

Companies have perpetual succession, meaning that they continue to exist even if their shareholders or directors leave or die. Companies are managed centrally under a board of directors. Generally, companies have shared ownership by contributions of capital (i.e. shares). It is possible to have a one person company. However, a private company cannot have more than 50 members under the law. If a company has more than 50 members, it must convert to a public company. 
Companies Limited by Shares
The most common type of company is a private company limited by shares. A company limited by shares must be formed with a capital in the form of shares (known as ‘share capital’). A company’s share capital is the total amount contributed or promised to be contributed by its members. The company can use the share capital as the directors and shareholders see fit.
Managing a Company
A company’s internal management is governed by:

the replaceable rules contained in the Corporations Act;  
a constitution (plus the mandatory replaceable rules); or 
a combination of both. 

If your company does not have a constitution, it will be governed by the replaceable rules.
Company Constitutions
A company constitution is a document that specifies the rules governing the company, its directors and shareholders. A constitution usually allows you more flexibility in managing your company. The replaceable rules generally contain more onerous obligations, which will apply unless a constitution overrides them. However, there are some replaceable rules which will always apply, even if the company has a constitution.
Adoption of a Constitution
A company can adopt a constitution on incorporation (ie registration with ASIC). 
If a company wants to adopt a constitution on incorporation, all the initial members must agree in writing. 
A company can also adopt a constitution after incorporation. The company must:

Issue a notice. A company has to give notice of a special resolution and general meeting. A publicly listed company must give at least 28 days notice of the meeting. All other companies must give at least 21 days notice. The notice should include the time, date and place of the meeting, the general business that you will discuss and the intention to pass the resolution;
Hold a general meeting. To adopt a new constitution, the company must pass a special resolution at a general meeting. At least 75% of the voting members of the company must vote in favour of the resolution for it to pass. However, you will also need to follow any other requirements for passing resolutions that are set out in the original constitution.

Replaceable Rules
Replaceable rules are provisions in the Corporations Act that apply to companies. 
A company can displace or modify the replaceable rules with the company’s constitution. However, some of the replaceable rules are mandatory for all companies. A company’s constitution cannot displace these mandatory rules.

The replaceable rules do not apply to a single shareholder or single director company. There are a seperate rules for these types of companies in the Corporations Act.  

Altering the Constitution
If a company has adopted a constitution it can later modify or repeal it, in whole or part, by passing a special resolution at a general meeting of the company’s members.
Key Takeaways
Before registering a company, you should decide whether the internal management will operate under replaceable rules, a constitution or a combination of both. If you do not put in place a constitution, your company will be governed by the replaceable rules. If you need help drafting a company constitution, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.
Frequently Asked Questions
What is the point of setting up a company? The primary reason people set up companies is to protect themselves personally from incurring liabilities. A company has a separate legal existence, distinct from its owners (its shareholders), directors and employees. Only in limited circumstances can the directors of a company be held liable for any debts it incurs. Do I need a constitution? You do not need a constitution if you want to incorporate (or already have incorporated) a company. However, we usually recommend that you put one in place. If your company does not have a constitution it will be governed by the replaceable rules from the Corporations Act. These rules can be very onerous to comply with. Putting in place a simple constitution can make life much easier and give you a lot more flexibility which it comes to making decisions on behalf of company. My company has a constitution, but I don’t know what it says, and we have not been referring to it when making decisions. Even if you had an advisor (e.g. a lawyer or accountant) put in place a constitution when your company was first registered, you may not have looked at it since. It is important to review your constitution and understand the processes for making decisions and dealing with shareholders. If you do not comply with your constitution, those decisions will not have been validly made. If your constitution appears overly complicated, you should consider putting a new constitution in place that reflects how you are actually making decisions.

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General Counsel who are proactively seeking to reduce costs and increase their team’s efficiency now have an industry-first practical toolkit to help them.
The General Counsel Toolkit, developed by LegalVision, helps in-house legal teams introduce innovation into their legal function, allowing them to streamline their operations so they can focus on strategic priorities.
The free toolkit consists of 35 cards organised into the five phases of an in-house counsel’s transformation journey, including know-how, practical activities and case studies on teams that have transformed their legal function. It also features rare insights from IAG, InCounsel, Astrid Kohlmeier Legal Design and Gilbert + Tobin.
“In-house teams are under pressure to improve processes, resource allocation and cost management,” said Anna Golovsky, Executive Manager, Agility and Legal Operations for IAG.
“These pressures have coincided with the legal and regulatory environment becoming increasingly complex, along with technological advancement. 
“It is now critical for you to be able to demonstrate your team’s value and to ensure that finite resources are strategically allocated. This is where tools like LegalVision’s General Counsel Toolkit come in – they guide you through the innovation process.”
The Toolkit also draws on LegalVision’s experience working with a number of clients over the past 12 months to design, deliver and launch a unique managed service offering dedicated to marketing compliance.
“We often hear from in-house teams about how difficult it is to free themselves up from business-as-usual to focus on strategic legal work,” said George Turnbull, Legal Transformation Manager at LegalVision.
“This toolkit is the first of its kind and addresses that problem with a practical, hands-on solution. While the idea of undertaking transformation – especially when you’re under the pump – may seem daunting, it’s not as hard or as time-consuming as you might think, especially with the help of the toolkit,” said Turnbull.

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You may find yourself at a point where you no longer want to continue with your business. Maybe you and your founder no longer share the same long term view for the business. Or, perhaps you have another business idea that you want to pursue. If this is the case, how do you get out of the business? This article will explain how to leave your business if you are a director or shareholder in your company.
How Are You Connected With the Company?
Your connection to the company may be that you are a:

director;
shareholder;
unitholder; or
all of the above.

How you can exit your business will depend on the ways you are involved in the business. The first step is to identify all the different roles you hold within the company. Then, you need to break down how to extricate yourself from each role.
Leaving Your Business as a Director
If you want to leave as a director, you need to resign. It is the same process like any other job. You need to send a signed and dated letter stating the date on which you want to resign to your company’s registered address. The company will need to update ASIC within 28 days of your resignation.
If you are the sole director, you cannot resign. Another director must be appointed before you can resign.
If you are also a shareholder, it is a good idea to time your resignation with the sale of your shares. That way you still retain control over the business, until you can exit both roles at once.  
Leaving Your Business as a Shareholder
If you hold shares in the company, you might want to sell them as part of your exit. 
You should first look at your shareholders agreement. This will tell you if there are any restrictions on selling your shares. If you do not have a shareholders agreement, your company constitution is the best starting point for confirming the sale process. Usually, you need to offer your shares to all shareholders, before you can sell them to any third party. 
If your business is not going well, you might struggle to find a third party who wants to buy your shares. The only potential buyers might be your existing shareholders. You will have to negotiate with the other shareholders until you can agree on a sale price. Unfortunately, the other shareholders may have the upper hand here. It may be worthwhile obtaining an independent valuation of the company to justify the price you are asking for. 
Once you have decided on a price, you need to execute the share sale documents. It may not be necessary to have a formal share sale agreement in place. You will need to:

sign a share transfer form; and 
notify ASIC of the transfer.

What if We Cannot Agree on a Price?
If you cannot agree on a price, you cannot force the other shareholders to buy your shares. Therefore, you have to continue to negotiate or find a third party to purchase your shares. 
What if I Want to Keep My Shares?
You might be able to keep your shares, even if you resign as director. It will depend on:

your shareholders agreement; and
whether or not your shares are subject to vesting.

If you have unvested shares, you will likely have to sell them to the other shareholders when you resign. Sometimes, for a pre-agreed price. Worst case scenario, you might have to surrender them for no value. If you have vested shares you might be able to keep them. Read your shareholders agreement and your vesting agreement (if you have one).
Leaving Your Business as a Unitholder
Some businesses are run through a trust or through companies stapled with a unit trust. If this is your structure, you will own both shares and units. Importantly, this is distinct from owning the shares in your company through a discretionary trust (which is a common way people hold shares).
If your business is run through a trust or stapled structure, you will need to review your trust deed to confirm the process for selling your units. Hopefully, you have a shareholder and unitholders deed so the entire sale process is documented in one place. If this is the case, the sale process is likely to mirror the process for the sale of your shares.
Are You Leaving Because of Cash Flow Problems?
If you are seeking to exit your business because of cash flow issues, you should get legal and accounting advice as soon as possible. If you are a director, you will be in breach of your directors’ duties if you let your company continue to trade while insolvent. 
You should consider getting a registered liquidator to review your business and provide you with some options.
If your company is already in liquidation and you want to leave, you should be aware that you will still be required to assist the liquidator. You will also be part of any investigation into the company’s solvency, including whether any breach of director duties took place. 
What Happens After I Leave?
After you leave, you should be careful about starting up any new businesses. Often, shareholders agreements have restraints on shareholders starting competing businesses. Read your shareholders agreement carefully.
If you are leaving an insolvent company to start another company which is essentially the same business, this is illegal. You will face serious penalties for this kind of activity, including:

large fines; and
imprisonment.

Key Takeaways
If you want to leave your business, you need to get across all your different roles in the business. The way you can exit will be different for each of them. You may need to resign as director. You may need to sell back any shares you have in the business (unless you want to keep them). Be careful about leaving if you know your company is experiencing cash flow issues. If you want to leave your business, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.

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COVID-19 has created a range of new privacy challenges for businesses. One challenge stems from the obligation for venues to collect COVID-19 contact tracing information. Despite the unusual circumstances businesses find themselves in, the Australian Privacy Commissioner is committed to ensuring the privacy of personal information is a top priority. Therefore, if your business has obligations under the Australian Privacy Act 1988 (Cth), collecting contact tracing information comes with a suite of privacy requirements. This article will outline the steps you must take to ensure you are informed and complying with these privacy obligations.
Do I Have to Collect Contact Tracing Information?
The collection of contact tracing information is controlled by the states and territories in Australia. You need to check the COVID-19 website for your state or territory to confirm whether it has issued a direction order requiring you to collect contact tracing information.
A direction may be included within an order on:

businesses;
gatherings;
premises; or 
movement of people.

It may also only apply to certain businesses. 

For example, at the time of writing, New South Wales has an order for contact tracing, which applies to businesses like pubs, cafes and restaurants, but does not apply to grocery shops.

If there is no order to collect contact details for your state or territory, then this will not form a function or activity of your business. You should, therefore, not collect such details.
However, you may continue to collect personal information to carry out your usual functions and activities.

For example, if you need to collect a name and phone number for a dinner booking, then that is permitted.

What Information Should I Collect for Contact Tracing?
If your state or territory has issued an order for contact tracing then in that order you will find a list of the personal information you must capture. This is typically:

the person’s name;
the person’s telephone number and/or email address; and 
when that person was at the venue.

If you are using a third-party digital check-in provider, you will need to check that the provider’s form is not collecting additional details.
What Do I Need to Tell My Customers About Contact Tracing?
Before or at the time that you collect the contact tracing information, the Privacy Act requires that you make the person aware of:

who you are;
that you are collecting their personal information as required by law (and outline which law);
the purposes for which you are collecting their information (i.e. for contact tracing);
who you will disclose it to, including whether you are likely to disclose it overseas;
the consequences if you do not collect their information (i.e. that they won’t be able to enter your venue); and
a statement that they can find more information about how to access or correct their personal information and your complaints process in your privacy policy.

You can tell the person about the above points by having a written notice on:

your website;
your mobile app; or 
the form where you collect their details.

Alternatively, or in addition to a written notice, you can tell them this information over the phone or in person. If it is not practical to tell them before or at the time of collecting their details, for example, if it is too much to say on the phone, then you may flag that you are collecting their personal information for contact tracing and will send the full notice to them via email.
How Can I Use the Information I Collect?
You can only use contact tracing information as permitted by the relevant order. Essentially, this means you should keep that information separate from your usual databases and do nothing other than holding it until the retention period expires. Once you are no longer required to keep the contact information, you should securely destroy it. If the order does not specify how long you must store it for, then you should assess when a reasonable period of time has passed and destroy it after that period.
You can only disclose the information to the relevant contact tracing health authorities, and you should not give it to them unless they request it. It is prudent to confirm that it is a health authority contacting you before disclosing the contact details. This is because COVID-19 has encouraged opportunistic scammers to prey on unsuspecting businesses.
While it is tempting to use the collected information for marketing purposes, the person providing their information is legally obligated to provide it and is under the impression it is being collected for COVID-19 contact tracing. It is unlikely to be reasonably expected by that person that you would use their details for marketing. It is also not fair to use this information for marketing and in some states and territories specifically prohibit it.
How Should I Store Contact Tracing Information?
Secure storage of contact tracing information is crucial. This is because there is an obligation under the Privacy Act to take reasonable steps to protect personal information from:

misuse;
interference;
loss;
unauthorised access;
modification; or 
disclosure.

This means that you need to carefully choose where you store the data.

For example, if you use a third party, you should consider whether they are trustworthy. You can do this by:

checking their privacy and security policies;
looking at their data breach history; and 
reviewing the contract you enter into with them.

Ideally, the contract should require that the third party:

protects the personal information;
complies with relevant privacy laws;
only uses the information to provide the specified services;
promptly notifies you of any security incidents; and 
agrees to cover you for loss or damage as a result of the breach of their obligations. 

Other measures you should take include:

storing the contact tracing information separately to your other data such as booking data or marketing lists;
avoiding the use of notebooks or hard copy lists where customers can see, copy down or photograph other customer details;
applying technological controls to secure the information such as encryption of the information;
limiting staff access to contact tracing data on a ‘need to know’ basis; and
implementing your own internal documentation for protecting the privacy and security of the information, including a data breach response plan for responding to suspected data breaches.

Key Takeaways
If your business has obligations under the Privacy Act, these obligations will also apply to contact tracing information. It is important that you understand your responsibilities when collecting, using and disclosing personal information and how these responsibilities impact the handling of contact tracing details. The key obligations include a requirement to notify the person of the circumstances of the collection, to limit the use of the information to contact tracing (as described in the relevant order) and to keep the information secure. If you need any assistance with understanding your privacy obligations and ensuring you are compliant, contact LegalVision’s privacy lawyers on 1300 544 755 or fill out the form on this page.

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minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

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The post How to Comply With Privacy Obligations When Collecting Contact Tracing Information appeared first on LegalVision.