Immigration and Migration planning is an incredibly important component of Australia’s economy and post COVID-19 recovery plan. Australia’s Migration Program has always focused on attracting skilled migrants and business investments in the country. 
The release of the 2020/2021 Federal Budget has confirmed Australia’s objectives to prioritise the attraction of the “best and brightest migrants from around the world” through the Global Talent Independent program. It also aims to increase business investments through the Business Innovation and Investment Program (BIIP). This article will outline the key changes from the budget to Australia’s migration.
Population Changes
The 2020/2021 Migration Program predicts net overseas migration will be 71,200 less than the 154,000 persons in 2019-20. But, it will likely gradually increase to around 201,000 in 2023-24.
This new fiscal year will represent the lowest population growth (in over 100 years). Unfortunately, this is unsurprising considering Australia’s travel restrictions and border closures in place in response to the pandemic. The toll the international health crisis has caused to the Australian Migration Program is impactful and devastating. It has resulted in: 
the demise of our tourism and travel industry;reduction of migrants to Australia; disruptions to Australian business (in respect to sponsoring offshore applicants); and thousands of temporary visa holders stranded offshore and unable to return.
However, the silver lining is that with the steady recovery of Australia’s economy, borders will start to re-open and migration numbers increase.
Migration Program Planning Levels 2020-21
The current Migration Program Planning level will remain at 160,000 for the 2020-21 program year. However, the distribution of places will change with an increase from 47,732 to 77,300 for Family stream places for this program year only.
The breakdown of numbers are as follows:

Skilled Stream

2020-21

Family Stream

2020-21

Employer Sponsored (subclass 482 and 186)

22,000

Partner

72,300

Skilled Independent
(subclass 189)

6,500

Parent

4,500

Regional (subclass 494)

11,200

Other Family

500

State/Territory Nominated (subclass 190 and 491)

11,200

Family Total

77,300

Business Innovation & Investment program

13,500
  
Global Talent

15,000
  
Distinguished Talent

200
  
Skill Total

79,600
  
Skilled Stream
Employer Sponsored, Global Talent, Business Innovation and Investment Program visas will be prioritised within the Skilled Stream.
BIIP
The Government is increasing places in this program to 13,500. This is a significant increase from last year’s migration planning of 6862 and actual outcome of 4420.
The Government will introduce changes to improve the quality of investments and applicants. The program will focus on higher-value investors, business owners and entrepreneurs and improve the economic outcomes of the BIIP. 
Visa application charges for BIIP visas will also be increased by an additional 11.3% (above regular CPI indexation) on 1 July 2021.
Global Talent
Places in the GTI program will be tripled to 15,000. The Global Talent category, which was launched on 4 November 2019, delivered 4,109 places against a planning level of 5,000 places in the 2019/2020 year. 
A Global Business and Talent Attraction Task Force will be established to attract international businesses and exceptional talent to Australia. It will aim to support the post- COVID recovery and boost local jobs. 
Family Stream
Partner Visas 
72,300 of the 77,300 places in the family stream will be allocated to partner applicants. However, it is suspected that this increase is to deal with the backlog of partner visa applications lodged in previous years and won’t account for new partner visa applications. Priority will be given to partner visa applicants who are onshore.
Significant amendments will follow that will impact the eligibility criteria for the partner visa. Mandatory family sponsorship provisions will be implemented, requiring character checks and sharing of personal information with the applicant, and enforceable sponsorship obligations. This means that an applicant’s Australian spouse or de facto partner must be approved before they can lodge a partner visa application. 
Another additional requirement will be the introduction of English language competency for Partner visa applicants AND the sponsor.
Permanent Migration for New Zealanders
New Zealand Pathway to permanent residency – the income eligibility requirement for the New Zealand stream of the Skilled Independent (subclass 189) visa. Eligibility for the Pathway will be extended to Special Category (subclass 444) visa holders who have a taxable income at or above the Temporary Skilled Migrant Income Threshold for at least three of the last five income years, including the most recent year.
Visa Refunds and Waivers
Prospective marriage visa (PMV) holders will be able to access a VAC refund. This is in line with information that the Department is not extending the entry date for PMV holders and moving to cancel the visas of those offshore. Pacific Labour Scheme and Seasonal Worker Programme visa holders will be able to access a VAC refund.
Temporary skilled workers and visitor visa holders will be eligible to have the VAC for a subsequent visa application waived, to allow them to return to Australia once travel restrictions are lifted.
Working holidaymakers will be eligible to have the VAC for a subsequent visa application waived. This will allow them to return to Australia once travel restrictions are lifted, or they are otherwise able to access a VAC refund.
VAC refunds and waivers will be available to current visa holders who are unable to travel until the border re-opens.
Humanitarian Stream
The Humanitarian Program ceiling will be set at 13,750 places. This will include a flexible mix of places between offshore and onshore categories in response to COVID-19 travel restrictions.
The Immigration Assessment Authority will receive funding of $7.6 million to enable the fast-tracking of reviewable decisions for those who entered Australia as an unauthorised maritime arrival on or after 13 August 2012 but before 1 January 2014.
The Government will provide $55.6 million dollars at North West Point on Christmas Island to accommodate unlawful non-citizens including those released from prisons, but unable to be deported due to COVID-19 international border restrictions.
Federal Law Circuit Court
Funding of $35.7 million over four years from 2020-21 will be provided to the Federal Circuit Court (FCC) for additional resources and judges will be provided to expedite the resolution of migration matters.
An increase in filing fees for migration litigants will be used to partially offset the cost of this measure.
National Action Plan to Combat Modern Slavery 2020-25
$10.6 million will be provided over five years from 2020-21 for the provision of grants to deliver community-based projects to prevent modern slavery.
Key Takeaways
The focus of Australia’s Migration Program remains consistent with its 2019/2020 planning. However, the new fiscal year will see a significant decrease in migration numbers due to the pandemic and Australia’s post-COVID-19 recovery plan. Priority will be given to employer-sponsored visas, global talent visas and business innovation and investment visas.
The Australian Government will invest a substantial amount to sourcing and attracting talent across the Global Talent Program and BIIP. Given the performance of last year’s migration outcome in both these programs (less than 5000 in each category), it will be interesting to see if migration numbers will increase this fiscal year.
The Partner visa will undergo a major overhaul with the processing of historical applications, the introduction of sponsorship requirements and pre-approval and English language competency requirements. 
If you have any questions about what these changes may mean for you, contact LegalVision’s immigration lawyers on 1300 544 755 or fill out the form on this page.

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When applying for a trade mark, you may encounter situations where you will be asked to present evidence of using your branding. Whether you are launching a new brand or managing multiple existing brands, record-keeping will make your life much easier. This is especially true if you want to protect yourself from competitors or if you are looking to expand your brand overseas. These situations can occur both during the application or after registration of the trade mark. This article will help you identify: 

the kind of documents you should keep; and 
what details are important in keeping an up-to-date intellectual property (IP) Portfolio. 

Evidence of Use
The most important point to remember with record-keeping is clarity. The easier your records are to understand, the more helpful they will be in supporting your case.
The most effective way to secure evidence of use is to record the earliest date the branding was first used. This will assist in determining if you are able to:

overcome an adverse examination; or 
oppose registration of a conflicting application.

Publication Advertising
If you have used your branding in published advertising, you should keep a record of this. You will need to compile copies of the publication’s cover or title that demonstrates the date of advertisement as well as a copy of your advert. Some good examples include newspaper articles, brochures, pamphlets, catalogues and flyers.
Photocopy the original publication for your records and keep a digital copy in your evidence files for extra protection. If the advert does not include a date, keep a copy of a corresponding invoice or receipt that confirms that date of use.
If you use the branding on company materials, such as letterheads or business cards, keep copies of these materials as further evidence. Keep in mind that you should always provide corresponding dates of their first use. You may also need to provide evidence of their continued use in your record-keeping.
Online Advertising
Examples of online advertising are another good way to demonstrate your use of branding. Try to keep records of the: 

organisation (e.g. Business Insider);
website address; and
date of the advertisement. 

This can be of particular importance if the advertisement is no longer available. 
It is best if you can record the advertisement as soon as it is available. If this is not possible, you can use the Wayback Machine to obtain a copy of the website from previous years. The Wayback Machine is a useful tool, but it is not always reliable. Accordingly, it is always best to maintain your record-keeping when advertisements are still available.
Trade Show and Exhibition Advertising
Advertising at Trade Shows or Exhibitions can help you demonstrate use, provided you have evidence. You should keep evidence of written correspondence or agreements that prove your brand was advertised at a particular event. 
Your evidence can also be supported by photographs of the advert as it appeared at the event. If applicable, these can include pictures of the stall, signage or other physical display of the brand.
Radio and Television Advertising
If you have advertised the brand by radio or television, your record-keeping should note the particular channel or station on which your advert appeared. Include the date of the advert and any other supporting evidence. Generally, you should have some sort of receipt that proves you purchased airtime to advertise your brand. This type of written evidence is crucial to demonstrating that your advert actually aired. Remember that you want to show that your brand was published in a manner that was accessible to a broad audience. 
Non-Use
Throughout the lifetime of your brand, you may go through periods where you do not use the brand. No matter why they happen, these periods are important to record as they may be used against you to disprove evidence of continuous use. 
By keeping track of these periods, you protect yourself from IP examiners or third parties from using it against you. You may even determine that the brand is not worth protecting based on these periods of non-use. 
If you are compiling this after the period of non-use, try and determine: 

the first date you stopped using the brand; and 
when you started using the brand again.

Turnover and Advertising Figures
Turnover and advertising figures support all the evidence listed above. Be sure to include the year, the advertising expenditure and turnover. Official documents are preferable, however keeping track in a spreadsheet can help you keep a clear outline of these figures for your records.
IP Portfolio
Creating an IP Portfolio will help you keep track of your intellectual property. It is important to keep internal records of all your IP registrations. A well-kept IP Portfolio clearly outlines:

where you use your brand in a particular location or country;
important deadlines; and 
the status of your IP right. 

This is especially important if you have expanded your brand overseas.
An IP Portfolio not only keeps you organized, but it can be useful when presenting to potential investors or partners. Being able to present a well kept portfolio of your IP can assist in demonstrating your value when pitching your products or brands.
Some important details to note are:

the IP itself;
the application or registration number;
names of the owner(s);
description, if it is a stylized logo or composite mark;
the date of filing; 
the classes claimed;
any upcoming deadlines, including renewal.

To set up your portfolio, use the template below as a guide:

Number
IP
Classes
Status
Next Deadline

12345
Example 1
45
Registered/Protected
10 July 2030

78910
Example 2
32
Published: Under Examination
04 December 2020

Key Takeaways
Accurate record-keeping can help you to apply for a trade mark and keep track of your intellectual property. When collecting evidence of use, you should make sure all evidence has a corresponding date and create a timeline of any periods of non-use. Turnover and Advertising figures should support your evidence of use. You should maintain an IP portfolio to track important deadlines and the status of your intellectual property. A portfolio is even more valuable if your brand operates internationally. If you need help with record-keeping and managing your IP, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

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Every aspiring entrepreneur who is interested in entering into a new business venture or wants to place a value on the brand they have built would benefit from considering the concept of goodwill. Business owners can position themselves to financially benefit from the goodwill of their existing business when it comes to selling. Further, purchasers can position themselves to better understand how goodwill is determined. This article will explore the meaning of goodwill and outline the most common approach to attributing value to it.
What is Goodwill?
Goodwill is an intangible business asset, which means that it does not have a fixed value. The two most common types of intangible assets which are important for business owners to understand are:
intellectual property; andgoodwill.
Intellectual property has quite an arbitrary value and an owner must subjectively determine its value. Goodwill operates in a similar way.

For example, the it may be comprised of a the following aspects: 

reputation with consumers and clients: these are positive or negative associations with the brand or business; 
profitability: the size or ‘calibre’ of client lists can demonstrate the ability for a business to have a steady flow of work from returning clients; 
reputation within the industry: having a widely recognised brand that is positively associated with quality products or services; and
potential for the business to grow or expand based on current success.

The digital economy now means that it is not just the standing of the business within the local community which contributes to goodwill. It can also comprise the recognition and reviews about the products or services on social media. Most businesses have an online presence simply by being listed on the google business directory. Therefore, businesses can easily amass a bank of reviews from customers, whether positive or negative.
When Is It Not Appropriate to Consider Goodwill?
There are a few situations where it would not be appropriate to attribute value to goodwill. One arises when a purchaser is only acquiring stock or equipment required in carrying out a business, without also acquiring the registered business name. This means the business is not being sold ‘as a going concern.’
Before you decide not to sell your business as a ‘going concern,’ you should consider whether you are more likely to have a higher valuation from selling the business in its entirety. This can help ensure you do not undersell yourself by parting with only a component of your business. Commercialising the element of ‘goodwill’ to your business name can be profitable.
Who Determines its Value?
Goodwill has no financial value until the business owner (or a business valuation professional) attributes one to it. The business owner who is best placed to weigh up the factors that contribute to the business’ goodwill. You may also rely on your accountant or financial advisor to help you determine a reasonable and appropriate value.
You may want to speak with a professional valuer who can provide a valuation after they have inspected your business records to assess the profitability of the business against the levels of risk associated with the business. However, it is worth noting that valuations may vary between service providers, as there are several methods to value a business.
When Does Goodwill Matter Most?
There are two points in the lifetime of a business where goodwill matters most, and the reason it matters will vary depending on your relationship with the business:
the time a business is listed for sale; andon settlement.
Why Does Goodwill Matter for the Business Owner?
From the perspective of the business owner, goodwill matters because you want to ensure you are not undervaluing any aspects of your business. If you are selling your business in its entirety, you should consider the market value for each component of the business, including: 
fixtures and fittings;stock or inventory;equipment; andgoodwill.
When a business owner lists the business for sale, it is commonplace to consider the value of tangible and intangible assets as a guide for a suitable listing price. 
Why Does Goodwill Matter When Purchasing a Business?
From the perspective of a prospective purchaser, the value of goodwill or its absence in valuation is noteworthy. If a business valuation does not include goodwill, you should ask for a clear breakdown of the value attributed to each asset. This will help you to assess whether the: 
sale price was undervalued;business is not profitable; orother assets of the business have been inflated.
Conversely, if you are only buying tangible assets, the concept of goodwill is irrelevant regardless of how reputable the business may be, or how the above factors are weighted.
What Is the Most Common Way to Determine Goodwill?
Although the value of goodwill is arbitrary and subjective, the Australian Tax Office suggests business owners should use the ‘residual value’ method. After identifying all business assets which will be included in the sale, you should group the assets by category in the following order:
cash and cash equivalents;actively traded assets;stock or inventories;all other tangible assets (such as equipment); andidentifiable intangible assets other than goodwill (such as intellectual property)
Key Takeaways
Business owners stand to benefit greatly from spending time to determine a reasonable value for the goodwill they have generated for the business brand or name. Before it comes time to negotiate a price with a purchaser, you should consider using the ‘residual value’ method as it is one of the most systematic ways to attribute value to goodwill. Alternatively, if you are buying a business, you should seek legal advice before you sign the sale of business agreement and commit to the purchase price. Contact LegalVision’s sale of business lawyers on 1300 544 755 or fill out the form on this page.

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Running a business online has made it simpler than ever to serve an international market. However, selling products and services internationally online comes with a host of considerations related to:

where your business is set-up;
what your agreements set out; and 
how disputes get resolved. 

What you will have to consider when selling internationally will ultimately be determined by:

where your business is legally set up;
where your customers and clients are located; and
your business’ terms and conditions.

Where Is Your Business Legally Set Up?
Having companies incorporated in several countries (known as dual structures) can affect your rights and responsibilities. Legally, this means that you are subject to the regulations applicable in your business’ host country. Having an Australian company structure:

helps you plan for growth; and
mitigates your risk of personal liability from creditors.

If your business is based in Australia, all transactions between you and a buyer will imply that you are subject to Australian laws. This may change your rights and obligations with regard to selling certain products abroad for a range of reasons. 

For example, the diplomatic and business relationship between Australia and the country in which you are selling may affect how you run your business.

In an online business, your website and digital presence will be the international face of your business. Therefore, it is important to ensure that your website:

is effective at marketing your products;
complies with local data privacy laws; and 
uses branding and content which is protected by trade marks and copyright.

Where Are Your Customers and Clients?
The legal considerations of selling internationally will also depend on where your customers are based. Where your targeted customers are based will affect:

what you can sell; 
the regulations with which you will need to comply; and 
your sales channel and dispute resolution mechanisms.

Foreign Regulatory Regimes
Where you plan to sell will affect the regulations your business will face. If you intentionally target a market segment in Europe, for example, you will likely need to comply with the European Union’s GDPR laws. Similarly, targeting an international market may also subject you to that market’s regulatory frameworks. 

For example, in the United States (US), your products may not pass the scrutiny of its federal agencies, such as:

US Customs and Border Protection; 
the Environmental Protection Agency; or 
the Consumer Products Safety Commission, among others. 

Conversely, if you do not intentionally target a particular country’s market, it is sometimes possible for customers in that market to purchase your products internationally without you having to consider the regulatory regime of their country. In order to determine whether and to what extent you might be able to sell your products in a given country, it is important to seek legal advice for each respective jurisdiction you wish to operate in.
Who Are Your Customers and Clients?
Whether you are subject to certain foreign countries’ regulations may also depend on who your customers and clients are. 

For example, it is only possible to import Australian wine into the US through a licensed importer. Wine distribution is further limited in the US at a state level. Therefore, if you run an online wine business, you cannot sell directly to individuals. 

Consider if your category of product or service could be differently regulated depending on whom you are selling to.
Intellectual Property
If you are selling abroad at scale, it may be wise to consider protecting your brand name and logo in all the countries you wish to operate in. Your logo and name are among the most crucial components of your brand, as they help customers associate their buying experience with your business. Even if you have an Australian trade mark, it is best to consider registering trade marks in the countries you intend to operate in.
Australian copyright protection is automatic. However, this is not the case in some foreign countries, such as the United States. If you have ambitious growth plans, it is best to be on the safe side and protect all aspects of your intellectual property.
Practical Considerations
When selling online, you will need to consider how you will process payments. Selling online in Australia is relatively straightforward. You can use a third-party payment service provider, such as Stripe, to process payments in Australian dollars and deposit them into an Australian (usually business) bank account.
However, when selling internationally, you will be processing payments in foreign currencies, and will need to consider how and if you will ultimately convert them into Australian dollars. Some banks run foreign currency accounts which can hold payments received in US Dollars, for example. Similarly, payment service providers like Stripe can also manage currency conversion. It is necessary to research a payment processing solution that works best for you, especially if you intend to process payments in foreign currencies.
What Do Your Terms and Conditions Say?
All online businesses should have business terms and conditions. This document will set out your business policies on terms such as returns, shipping, and dispute resolution. The right type of business terms and conditions take your business’ unique circumstances into consideration, including: 

who your customers are; 
where they are based; and 
what product or service you will provide.

When selling online internationally, you should consider whether a return and shipping policy that is suitable for Australian customers would be commercially viable for your international customers as well. 

For example, it may be affordable for you to accept local returns and pay for shipping Australia-wide, but you would not want to be stuck with an international shipping bill for a product being shipped to or from the US.

Your terms and conditions should dictate how you will resolve disputes between your business and the other party to the contract. Different countries have different laws and regulations. You will want dispute resolution to take place where resolution is most convenient for you. You will also want to ensure that your business’ rights are enforceable within the regulatory framework that you will be operating under. Since you and your business are based in Australia, it would be best for you to resolve any disputes with your business in Australian courts and according to Australian laws. This prevents the possibility that you will have to engage with foreign courts or understand complicated foreign regulation.
Taxes
Among the other considerations when selling internationally, your products or services may be subject to taxes, tariffs, customs and other fees. These considerations depend on the particular markets you serve and the distribution channels you use. It is important to plan how you will serve a foreign market with a tax professional in order to understand the true commercial implications of selling internationally.
Key Takeaways
Starting an online business is an excellent way to get exposure to broad international markets. It also requires significantly less upfront investment than setting up a foreign subsidiary or branch. Remember that just because your intellectual property is protected in Australia, it may not be protected abroad. When targeting an international market online, be aware that your product or service is subject to foreign regulations. You will want to ensure that the terms and conditions of your international transactions work for your business. If you need help understanding the legal implications of selling internationally from your Australian online business, contact LegalVision’s e-commerce lawyers on 1300 544 755 or fill out the form on this page.

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You may wish to take your Australian business to the United States (US) in order to gain exposure to the US’ larger market of investors and customers. US venture capital firms consistently rank among the best in the world. They also rank first in total venture capital invested by country. Additionally, the US market remains the largest consumer market per capita in the world. This means that it offers excellent prospects for startup growth.
To seek exposure to the US market, you may decide to: 

set up a foreign subsidiary;
operate abroad as a foreign business branch;
run a flip-up; or 
consider a different arrangement. 

This article will discuss one of the most common options: physically setting up shop in the US with a foreign subsidiary.
Structuring
The Subsidiary
When an Australian company intends to physically set up in the US, it will need to open up a US-based company. Put simply, a US subsidiary is a company incorporated in the US that is controlled by a foreign entity (known as a holding company). To set up a US subsidiary for your Australian company, you would likely incorporate a US company and hold its shares as assets in your Australian holding company. This allows whatever value your US subsidiary generates to pass through to your Australian holding company, which is ideal for those who own shares in your Australian holding company. It is common for most of the value your US subsidiary creates to pass through to your Australian holding company. Therefore, investors are most likely to want to invest in the shares of your Australian holding company. This includes US investors. 
Two of the most popular options for incorporating a subsidiary in the US are incorporating as a: 

Limited Liability Corporation (LLC); or 
C-Corporation (C-Corp). 

Both options have their advantages and disadvantages. LLCs are generally the less complex option. They also provide personal liability protection and pass-through taxation. C-Corps are generally more complex. They come with greater upfront costs and are subject to greater government regulation. One of the main benefits of the C-Corp, however, is that it provides the greatest growth potential: the C-Corp has no limit on the number of shareholders. The Delaware C-Corp is perhaps the most familiar corporate structure to investors.
Choosing a State
Unlike in Australia, you will need to establish a US-based company at a state rather than federal level. This has significant consequences for your business. Incorporating your US company in the US state of Delaware is a common option, due to: 

its generally simpler compliance requirements; and 
the tax planning flexibility that it provides. 

Even if your company is domiciled in Delaware, it is not necessary for you to live or even base your business operations there. Figuring out in which US state to incorporate your US company will, like everything, depend on your business’ specific needs. This includes acknowledging tax obligations. 
Operating Your US Subsidiary
Controlling Your Subsidiary
Successful operation of your US subsidiary requires a number of considerations. First and foremost is how your Australian holding company will control its subsidiary. If a holding company owns all of the shares in a subsidiary, it is entitled to influence the subsidiary’s decision-making processes. One way to do so is by appointing directors of the subsidiary that understand the subsidiary’s broader responsibility to your company’s growth as a whole. There are no restrictions on foreign ownership of US companies. You can be an owner and director of a US corporation without having a US visa. To work for the entity, however, you will need the applicable US visa.
Intellectual Property
To protect your investment in growing your business’ brand, you will at least need to register a trade mark in the US for your business name and logo. Trade marks registered in Australia are not registered in the US. Moreover, copyright is a type of intellectual property that is automatic in Australia. This is not so in the US, however, and you will need to apply to register copyright in the US.
You will need to license any intellectual property from your Australian holding company, such as software you have developed, to your US subsidiary. This allows your subsidiary to commercially exploit your idea in the US. One way that a subsidiary can pass value to a holding company is through a licensing agreement. This agreement might charge the US subsidiary for its use of the holding company’s intellectual property. It is crucial to get this contract right, as it is a primary means of making your Australian company’s investment in expanding to the US profitable.
Contracts in the US
You will use your US subsidiary to engage in most contracts related to the operation of the US side of your business. 

For example, it will usually make sense to use your US subsidiary when:

engaging in contracts related to renting US offices;
hiring US employees;
engaging US suppliers; and 
interacting with the US market. 

Your US subsidiary will be better positioned than your Australian holding company to interpret and comply with US contract law, including managing dispute resolution in US courts. 
US Consumers and the US Market
Explicitly targeting US consumers usually subjects your entity to the US’ complex regulatory regime. Your US subsidiary will be best positioned to navigate US consumer law. Furthermore, targeting any market segment requires a deep understanding of your customers. A US-based company – especially with US employees – is usually better placed to target US customers and navigate US business customs than a foreign entity would be.
Visas
It is wise for some of your company’s original team to be involved in your business’ growth in the US market. Often, founders themselves move to the US to physically oversee their business’ growth. Of course, moving to the US requires a visa. Getting one is not necessarily easy. There are a number of different visa options available to startups seeking to expand their business operations to the US. You should contact a corporate immigration lawyer in order to figure out which option makes the most sense in your circumstances.
Key Takeaways
Expanding to the US market is an important part of many startup founders’ growth plans. To ensure that expansion proceeds smoothly, take the time to consider your structuring options and the tax implications of how and in which state your business will operate. You will need to consider the legal implications of your US operations from a US legal perspective. To do so, it will be necessary to find US business lawyers. Ultimately, a US entity is better positioned than a foreign entity to operate a business in the US, especially given the country’s complex legal and commercial requirements. When you are ready to take this next step, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.

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The Australian goods and services tax (GST) is a value-added tax of ten percent on most goods, services and other items sold or consumed in Australia. Usually, businesses registered for GST include GST in the price they charge for their goods and services and claim tax credits for GST included in the price of goods and services they purchase for their business. It is important to have a general understanding of GST and the steps for registering your business for GST, because it is relevant to:

how your business prices its products and services; and 
how much your business pays in taxes. 

Why Register for GST
Registering your business for GST is required by law if your business has a GST turnover of $75,000 or more (calculated as gross income minus GST). Providing taxi or limousine services (including ride-sourcing) is an exception to this rule, and requires GST registration regardless of GST turnover. If you do not register your business for GST when you are supposed to, you may also have to pay penalties and interest on your business revenue. 
Tax Credits 
Furthermore, registering your business for GST enables you to claim GST credits (also called input tax credits), which allow you to claim a credit for any GST included in the price you pay on purchases for your business. These credits can be used to offset the amount of GST you are liable to pay to the government, effectively reducing your business tax obligations. When your GST credits are greater than the amount of GST owed to the government, this may entitle you to a refund. They also can be used to claim income tax deductions where applicable.
Eligibility for GST
You must register your business for GST:

within 21 days of your business GST turnover exceeding $75,000 ($150,000 for non-profit organisations); 
when you start a new business and expect your turnover to reach that GST threshold in the first year of operation; or
when you provide taxi or limousine travel for passengers (including ride-sourcing), regardless of your GST turnover.

Registering for GST is optional if your business does not fit into one of these categories. 
When Should I Register My Business for GST?
There are several commercial considerations which are relevant to whether you should register your business for GST before you reach that limit. Even though it might seem like avoiding GST registration before your turnover exceeds $75,000 would be beneficial, since not being registered means you would not have to charge GST, you may be missing out on GST credits.
Depending on your circumstances, this could make registration more commercially beneficial. It is also possible that your product or service is GST-free, meaning that you could benefit from credits without needing to charge GST on what you sell. Furthermore, registering for GST when purchasing a business enables you to purchase it as a going concern, which has significant tax benefits. It is best to consult a business lawyer or tax advisor on when it is commercially beneficial to register your business for GST. 
How Do I Register My Business for GST?
In order to register your business for GST, you need to have an Australian Business Number (ABN). You can get your ABN when you first register your business name or at a later time.
After registering your ABN, you can register for GST. You can register:

through the ATO’s Business Portal;
by phone;
through your registered tax agent or BAS agent; or
by completing the “add a new business account (NAT 2954)” form.

You must report on and pay GST to the ATO. To do so, and to claim GST credits, you must lodge: 

a business activity statement (BAS); or
annual GST return.

Canceling GST Registration
If you sell your business or shut it down, you must cancel your GST registration within 21 days of doing so. If you change your business structure, (e.g. from a partnership to a company), you may also need to cancel your GST registration. You can cancel your GST registration:

through the ATO Business Portal; or
by phone.

Key Takeaways
The Australian goods and services tax (GST) is a value-added tax of 10% on most goods, services and other items sold or consumed in Australia. Besides complying with the law in situations in which you must register for GST, the main benefit of registering is that you will be eligible to claim GST tax credits for any GST included in the price of goods and services you purchase for your business. You can register your business for GST online through the ATO website’s Business Portal. It is helpful to ensure that you have structured your business the way you would like it to operate before registering for GST, since changing your business structure may require you to cancel and then register again. If you need help registering your business for GST, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.

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If you find yourself in a position where you cannot pay your personal debts, and you have creditors chasing you, your legal options may be limited.
The Bankruptcy Act 1966 (Cth) is the law which governs this type of situation. It provides three main pathways for insolvent individuals to address their debts. They are: 
entering into a Part IX debt agreement;entering into a Part X personal insolvency agreement; orvoluntarily declaring, or being forced into, bankruptcy.
These processes are all regulated and in some instances, directly administered by the Australian Financial Security Authority (AFSA). This article will discuss the role that AFSA plays in managing personal insolvency processes in Australia.
Alternatives to Bankruptcy
In some instances, you may be able to avoid bankruptcy by entering into special types of agreement with your creditors. These are a:
Part IX debt agreement; orPart X personal insolvency agreement with your creditor(s).
Both of these are legally binding agreements which specific rules and processes govern.
Part IX Debt Agreement
A Part IX Debt Agreement is a legally binding agreement to repay your creditors a reduced amount, via an administrator, over a set period of time. After you complete the payments and the agreement ends, your creditors cannot recover the rest of the money you owe.
If your debts, assets and income are all below a set amount, you will be eligible to lodge a Part IX Debt Agreement proposal to AFSA. The steps will be to:
meet with an insolvency professional determine whether you are eligible;make a proposal to your creditors to pay a reduced percentage of your combined debt that you can afford over a period of time;if your creditors accept the proposal, you can then lodge the debt agreement with AFSA; andif AFSA accepts the debt agreement, you will then make repayments to a debt agreement administrator, rather than individual payments to your creditors.
The benefit to creditors is that they may receive more money than if you were to file for bankruptcy.
A debt agreement can assist you in relation to unsecured debts. However, it may not prevent secured credits from seizing and selling any assets over which they have security. 
Entering into a Part IX Debt Agreement can impact on your future credit rating. For a period of time, your name will appear on the National Personal Insolvency Index. However, it may still be a preferable option to bankruptcy. 
Part X Personal Insolvency Agreements
A Part X Personal Insolvency Agreement is a legally binding agreement between you and your creditors that sets out a process on how to discharge your debts. Like bankruptcy, it involves appointing a trustee to take control of your property. A Personal Involvement Agreement is a flexible option that can assist you in discharging debts without becoming bankrupt. This is because it involves putting forward a specific proposal to your creditors to pay part or all of your debts by instalments or a lump sum.
A Personal Insolvency Agreement can suit debtors with a high income but few limited assets, or a substantial asset but with only a limited income. The steps include:
putting forward a formal payment proposal to creditors;authorising a trustee and calling a meeting of creditors; andif the creditors accept your proposal through a special resolution at the meeting of creditors, then the appointed trustee takes control of your property and financial affairs and carries out the terms and objectives of the agreement.
Creditors may prefer this pathway because it means they can avoid paying the court fees associated with bankruptcy proceedings.
It is important to understand that there are consequences of entering into a Personal Insolvency Agreement, including that:
if you fail to meet the requirements of the Personal Insolvency Agreement, the creditor can apply to the court to make you bankrupt;your credit rating will be impacted for a period of time;you will not be able to deal with your property without the consent of the trustee; andyou cannot manage a corporation until the you have finalised the terms of the agreement.
Bankruptcy
Bankruptcy is the last resort option if you cannot pay your personal debts. It is a legal process where a ‘trustee in bankruptcy’ sells your assets and property. It is a lengthy and sometimes complex process, which ultimately releases you from your debts and enables you to have a fresh start with your finances.
If you are insolvent and cannot negotiate a compromise with your creditors, you can opt to declare bankruptcy yourself. Alternatively, you can be forced into bankruptcy by a creditor which has a court judgment for a sum of money that you are unable to pay.
When you go bankrupt, a trustee will be appointed to you. This trustee will:
take control over most of your assets and property (including, in some cases, your house);take control of your financial affairs, including potentially taking a cut of your income;arrange for the sale of your assets and property; andissue dividends to all identified creditors in an attempt to pay down their debts as much as possible. Here, the dividend that creditors get will typically be lower than the debt amount itself.
The trustee will also tax your assets to cover their own professional fees. 
Consequences of Bankruptcy
The bankruptcy process usually lasts a minimum of three years. During this time, you cannot be a company director, and your ability to travel internationally may be restricted at your trustee’s discretion. While you are bankrupt, your ability to sue and be sued for existing debts is also limited. It is important to understand the consequences for you before filing for bankruptcy.
At the end of this process, your debts will be formally discharged (with some exceptions, such as student loans). From a financial point of view, you have the opportunity to start over. However, the long term consequences of bankruptcy include:
permanently being listed in a publicly accessible insolvency register; andnegatively impacting your credit.
AFSAs Role 
Bankruptcy and other insolvency arrangements all have the potential to be complex and time-consuming processes. Trustees and administrators are in positions of power, and their decisions have a significant impact on people’s lives. A specialist government agency, AFSA, therefore regulates their conduct. 
AFSA manages both the appointment and regulation of trustees and the administration of the broader personal insolvency system. If you have issues or complaints with a trustees conduct, you can seek assistance from AFSA.
Appointment and Regulation of Trustees and Administrators
AFSA has an office called the ‘Official Trustee in Bankruptcy’ which contains staff and resources to administer:
bankruptcy arrangements;debt agreements; and personal insolvency agreements.
AFSA also regulates any private trustees which it does not employ. All trustees and administrators are only entitled to practice in the first place if they meet AFSA’s qualification requirements.
When they are practising, trustees and administrators are required by law to maintain a standard of:
professionalism;independence;honesty; andethical conduct.
In the event that you have complaints about your trustees or administrators conduct (whether Official Trustee or private) you have the option to complain to AFSA and AFSA will investigate the matter. You can also complain to AFSA you are dissatisfied with your trustees claim for remuneration from your pool of assets and finances.
Official Receiver
AFSA also functions as the ‘Official Receiver’, which is the official public registry of all bankrupt individuals. This register means that anyone can find out if you are bankrupt or party to a Part IX or Part X agreement, including potential employers or financial lenders. 
Key Takeaways
AFSA plays a significant role in ensuring that personal insolvency processes are administered consistently and fairly. If you are in a position where you risk entering bankruptcy, it is important to understand that you may have a range of options available to you. If you have any questions about the bankruptcy process in Australia, contact LegalVision’s bankruptcy lawyers on 1300 544 755 or fill out the form on this page.

Note: LegalVision is not AFSA; we are a private law firm with expertise in disputes, litigations and insolvency processes. Please reach out if you have any questions about recovering debt in the context of personal insolvency.

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As a business, developing a strong social media presence is essential to help you connect with your audience and stay top of mind. You may use Instagram and Facebook to engage with your existing customers and attract new ones, and LinkedIn to drive traffic to your website. However, to create meaningful connections with your customers and followers on social media, you need to do more than promote your business once in a while. Your posts should provide an authentic representation of your brand and engage your audience in a way that shows that you understand them and their needs. In this article, we outline five elements of a great social media post to help make yours more successful.
Anatomy of a Great Social Media Post
While not all social media posts should follow the same format (this depends on the channel), you should follow these best practices when posting: 

set a clear objective; 
use a powerful on-brand image;
write brief and compelling copy, in your audience words;
use a link to direct your audience to your website, landing page or blog; and
keep them relevant. 

1. How to Set Clear Goals for Your Social Media Posts
Before you start posting, it is crucial to think about what you are trying to achieve with your social posts. Is it to connect with your existing customers and drive engagement? Or to find new customers? 
 
A social media strategy is a useful tool to guide your social media efforts. The guide does not have to be a complex document; all you need is a table that outlines: 

your audience demographics (group them into buyer personas);
the social channels you post on (focus your efforts on the ones your audience engages with the most);
the content formats that you will use for each channel (define two to three content pillars and how often you will post about each. For example, you may choose to share topical content like interviews with industry experts 20% of the time);
a calendar that summarises what, where and how often you will post; and
an analysis of your results. 

Your posts should have a clear goal (drive traffic to your website, encourage your audience to comment or share) and a single call to action (read more, follow our group, share this with your network). Each element of your post (headline, image, copy, call to action) should clearly reflect your goal. 
 
For example, the objective of the LinkedIn post below is to drive traffic to the company’s blog post that answers their audience’s questions about content marketing. It uses an enticing headline to convince the reader to click through and read the post, and both the image and the copy are clear and relevant to the topic. 
 

2. Use Powerful Images That Align With Your Brand Guidelines 
Your image is a crucial element of your social media post because it is often the first thing that the reader notices. Therefore, it should align with the headline and copy of your post, and it needs to be on-brand to ensure its cohesiveness with other marketing comms. 

The images you choose for your social media posts should be:

easily consumable;
have an emotional impact on your audience; and 
convey a simple message quickly.

From a technical perspective, they should be well lit and make use of white space. You should avoid adding too much text to your images, and your choice of colours will depend on your brand guidelines, the type of content that you are sharing and the channel. For example:

low saturation images, with relatively grey, faded, or pastel colours tend to perform well on Instagram; while 
data visualisation posts should use colour to separate categories or to draw attention to a point.

You can subscribe to stock images websites. However, use these with caution to ensure you stay on-brand. If your overall goal is to grow your following quickly, you should consider working with a freelancer photographer to ensure each of your images has a clear purpose and sticks to your brand guidelines. 
3. Write Brief and Compelling Copy 
Another essential element of a great social media post is the copy. You should be compelling but concise. Make sure that you address the reader and use their language, and avoid vague, misleading and sensationalist phrases such as “Read these shocking facts…”. Otherwise, the platform may penalise you. 

You should also include relevant tags and hashtags to help you increase your reach organically (how many people see your post). If you refer back to the LinkedIn post example we shared earlier, the author: 

addresses his audience by saying: “I am often asked how LegalVision Australia has sustained such a rapid pace of growth”;
gets straight to the point: “There are, of course, many pillars supporting our growth strategy – but a core one is content marketing”; and
uses an accurate statement to engage his readers and drive traffic to the post: “In this article, I share some tips on how to use content marketing to grow your business.”

4. Add a Link To Your Website, Landing Page or Blog Post
Depending on the goal of your social media post, you should include a link to a relevant destination that explains your message further. This can be a page on your website, a blog article or landing page. You can do this by pasting the link into the post and waiting until the platform automatically generates the content, or by adding all elements (image, copy and link) manually. 

Avoid using link shorteners if possible as these are sometimes used for malicious purposes like hacking social media users’ accounts or downloading viruses into their devices. 
5. Keep Your Post Relevant
Keep your audience in mind when you are creating or choosing content for your social media posts. You can promote your business, and use offers occasionally. Still, you need to balance this with sharing relevant information that your audience would find useful (or interesting) or develop the community. Aim for a 30:70 ratio of promotional and non-promotional content. 
Key Takeaways
From finding the time to create content, to deciding what to post on social media, it is easy to get slowed down by brainstorming, or to rush the planning stage and end up posting ineffective posts that do not get much engagement. Before posting on your social media channels, you should do some planning to ensure that you:

have a clear objective in mind;
use compelling images and copy to communicate your message;
write for your audience – use their voice and offer value to them; 
are truthful (avoid misleading headlines) and relevant (use promotions and offers sparingly); and
every element of your post is cohesive with your goal and brand guidelines. 

Getting started or growing your social following can seem daunting. However, even the smallest of teams can develop a strong social media presence to drive growth for their business. If you need help to craft a social media marketing strategy or to talk about how a partnership with LegalVision could help grow your business, get in touch on 1300 544 755 or fill out the form on this page.

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As a business, LinkedIn is a powerful tool to establish credibility. You can use it to create a meaningful network, get access to trends and insights from established experts in your industry, or even become an expert yourself! But many businesses struggle to use LinkedIn effectively because they are following approaches that work for bigger companies with large marketing budgets, extensive brand awareness and social media systems.
In this article, we provide some essential tips to manage your online presence on LinkedIn and drive organic growth. You will learn how to: 
setup your business page;grow your following; and post the right content. 
1. Set Up Your LinkedIn Business Page 
Unlike other platforms, you need to have a personal LinkedIn profile in order to create a business page. If you have plans to position yourself as an expert in your industry, it pays to optimise your personal profile before you create your business page. You can do this by: 
setting your visibility settings to private;customising your LinkedIn URL using your name and last name;using appropriate images in the profile and background sections;writing a keyword-rich, professional headline; andincluding keywords in your summary. 
To create your business page you will need some essential information about your business, including: 
your logo, sized at 300×300 and a cover image, sized at 1536×768 (you can create these for free using canva.com);an overview that describes your business’ mission, core value proposition and product or service offering (use relevant terms as LinkedIn members can search by keywords);your website URL, business location, industry and company size (this increases your searchability on the platform); anda custom button that aligns with your goals.
Before you publish your page, make sure that you view it as a visitor and that you are happy with its overall look and appearance. Take a look at some of your competitors’ pages to identify any other best practices that may apply to your industry. 
2. Grow Your Following on LinkedIn
Once you set up your page, your next goal is to get to the 150 followers mark as quickly as possible. This benchmark increases your opportunity for growth exponentially. Gaining new followers is relatively easy on LinkedIn, as long as you follow some best practices: 
link your page to your website, email signature and all other marketing collateral;post content at least once every day or two and re-share your best @mentions;cross-promote your page on other social platforms to reach different audiences and join topical conversations with hashtags;edit your hashtags as your goals change – consider broad (location, etc.), niche (product, etc.), and talent branding hashtags;ask top customers to recommend your business to their network (and @mention of your page) and don’t forget to thank them and re-share these on your page;review your analytics dashboard monthly to find out what your audience prefers and identify any opportunity gaps; @mention influencers or other Pages you admire;at least once a quarter, invite your personal connections to follow your page using the “Invite to Follow” feature; andkeep an eye on your competitors’ activity to identify any tactics that you could replicate.
3. Share Engaging Content With Your Audience Regularly  
Sharing high-quality and well thought out content at least one to three times a week is crucial if you want to drive engagement. A good place to start is to research topics and articles that are trending with your target audience. You can use LinkedIn’s content suggestions tool to get some ideas. 
You should also review your analytics dashboard periodically to check which content types and formats your audience prefers, and incorporate these insights into your monthly content calendar. When planning your posts, use the 3-2-1 model. For example every week you should aim to post: 
three pieces of industry-related content;two pieces of ‘feel-good’ content; and one piece of product or service-related content.
Visually rich content formats are a great way to drive engagement, especially video. Some examples you could try include: 
custom images; short videos; PowerPoints; and visually rich PDFs.
You can schedule your posts using tools like Hootsuite, Buffer, or Sprinklr. This allows you to automate the posting process for the whole month. 
Another way to drive engagement is to start a conversation with your audience. You can do this in your posts by: 
asking a thought-provoking question;running a contest; or hosting a raffle. 
Key Takeaways
Posting consistent, compelling updates on your LinkedIn business page is essential to acquire and retain followers. Here are some best practices to optimise the overall appearance of your page and your content production workflow:
use a professional looking logo and cover image and add your company information;cross-promote your page on other social platforms to reach different audiences and join topical conversations with hashtags;review your analytics dashboard monthly to find out what your audience prefers and identify any opportunity gaps; incorporate these insights into your monthly content calendar; post engaging visual content frequently using the 3-2-1 model; and automate your posting process by scheduling your posts using a tool like Hootsuite. 
If you need help to craft a LinkedIn marketing strategy or to talk about how a partnership with LegalVision could help grow your business, get in touch on 1300 544 755 or fill out the form on this page.

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Employers sponsoring foreign workers under subclass visas 482 and 494 have new labour market testing (LMT) requirements to comply with. These requirements commence from 1 October 2020, due to recently introduced legislation. This article outlines:
the LMT requirements;exemptions to these requirements; andalternative arrangements.
What Evidence is Required?
Essentially, all 482 and 494 nominations must include evidence of three job advertisements, including:
one advertisement posted on JobActive; andtwo advertisements posted on either:

a national recruitment website (such as Seek, Indeed, JORA, Glassdoor, LinkedIn); 
the accredited sponsor’s business website; 
in print media with national reach; or
on radio with national reach. 

(Note: prior to the legislative change, only two job advertisements were required)
 Despite the above changes, all other LMT requirements remain the same:
Advertise jobs for at least 28 days/four weeks;Commence and complete advertising within the four months immediately prior to lodging the 482 or 494 nomination application; The job ads must include the following details: job/position title;description of the skills, experience and qualification of the role;name of the sponsor (your organisation) or the name of the recruitment agency your business has engaged; andsalary or salary range (unless the salary is above AUD$96,400). 

LMT exemptions and alternative arrangements still apply to 482 nomination applications. However, there are no LMT exemptions for 494 nominations. All 494 nominations must satisfy LMT criteria. 

Exemptions to Labour Market Testing for 482 Nominations
LMT is not required where an International Trade Obligation (ITO) applies. This occurs where the person you are nominating is:
a citizen/national of China, Japan, Mexico, Thailand or Vietnam, or is a citizen/national/permanent resident of Canada, Chile, South Korea, New Zealand or Singapore; or
currently employed by an associated entity of your business that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand or Vietnam), Canada, Chile, China, Japan, Mexico, South Korea or New Zealand; or
currently employed by an associated entity of your business that operates in a country that is a member of the World Trade Organisation (WTO). The person must be nominated in an executive or senior manager occupation for the purposes of international trade obligations, and must be responsible for the entirety (or a substantial part) of your company’s operations in Australia; or
nominated as an executive or senior manager occupation for the purposes of international trade obligations, and your business currently operates in a WTO member country or territory, and is seeking to establish a business in Australia; or
the nominee is a citizen of a WTO member country and is being nominated by an employer for whom the nominee has worked in Australia on a continuous, full-time basis for two years immediately before the nomination is lodged.
The following occupations are considered to be Executives or Senior Managers for the purpose of ITO labour market testing exemptions:
Advertising ManagerChief Executive or Managing Director  Chief Information Officer    Corporate General ManagerCorporate Services ManagerFinance ManagerHuman Resource ManagerSales & Marketing ManagerSupply and Distribution Manager
Alternative Arrangements to LMT for 482 Nominations
LMT is not mandatory where:
the position requires someone with an internationally recognised record of exceptional and outstanding achievement in a profession or field (e.g. sport, academia or research, or as a top-talent chef); orthe nomination is lodged for an existing subclass 482 or 457 visa holder solely due to a change in earnings or business structure; orthe nomination relates to an intra-corporate transfer; orthe annual earnings for the position are at least AU$250,000; orthe position nominated is a key medical occupation: i.e. most medical practitioners (excluding GPs), as well as ambulance officers and paramedics

In such circumstances, the employer must prepare a written submission explaining why a suitably qualified Australian worker could not be identified. The submission should also include information on why one of the above scenarios is applicable. 

What About Employer Nominated Permanent Residency Visas (subclass 186)?
LMT is not a legislative requirement for the subclass 186 in either the direct entry or temporary residence transition streams. However, an employer’s efforts to recruit an Australian worker can be considered in relation to whether the position is in fact genuine. 
Key Takeaways
LMT is a critical requirement for all 482 and 494 nominations. As an employer, you need to provide sufficient evidence of efforts to recruit an Australian worker, or your nomination may be refused and you may lose government fees and the SAF levy. 
From 1 October 2020, all 482 and 494 nominations must include three job advertisements and one of them must be advertised on JobActive. There are no exceptions for 494 nominations. However, in relation to 482 nominations, if eligible, LMT exemptions and alternative arrangements can apply. 
Satisfying labour market testing requirements can be an incredibly complex and time consuming process. It is important to seek legal immigration advice and assistance if you are unsure of the criteria, process and how/when to claim an exemption. LegalVision’s experienced immigration lawyers can help. Call 1300 544 755 or complete the form on this page.

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When the COVID-19 pandemic hit, the Australian Government introduced a national travel ban from 20 March 2020. This ban significantly limited migration and travel into Australia. While some individuals qualify for entry, the list of who qualifies is restricted. If you an employer seeking to bring an employee into the country, you may be able to request a travel exemption. 
This article outlines:
who qualifies for entry into Australia;how to apply for a travel exemption for an employee; andthe new Priority Migration Skilled Occupation List (PMSOL)
Who Qualifies For Entry Into Australia?
The travel ban prohibited foreign nationals from travelling into Australia unless they are an individual described below. Such individuals are automatically exempt and can enter the country, provided they demonstrate proof of their circumstances.

These include:

an Australian citizen;
a permanent resident of Australia;
an immediate family member of an Australian citizen or permanent resident;
a New Zealand citizen usually resident in Australia and their immediate family members;
a diplomat accredited to Australia (holding a subclass 995 visa);
a traveller transiting in Australia for 72 hours or less;
airline crew;
a maritime crew including marine pilots;
people recruited under the Government approved Seasonal Worker Program or Pacific Labour Scheme; and
holders of a Business Innovation and Investment (subclass 188) visa. 

Are Travel Exemptions Permitted?
In some instances, the Australian Government permits an exemption from the travel ban. This exemption may apply if your sponsored employee or foreign worker can establish that they have a critical skill, or can provide services in critical sectors in Australia.
To apply for the exemption, your sponsored employee or foreign worker must be able to demonstrate that they:
are travelling at the invitation of the Australian Government or a state or territory government authority for the purpose of assisting in the COVID-19 response;are providing critical or specialist medical services, including air ambulance, medical evacuations and delivering critical medical supplies;has critical skills to maintain the supply of essential goods and services (such as in medical technology, critical infrastructure, telecommunications, engineering and mining, supply chain logistics, aged care, agriculture, primary industry, food production, and the maritime industry);deliver services in sectors critical to Australia’s economic recovery (such as financial technology, large scale manufacturing, film, media and television production and emerging technology), where no Australian worker is available;are providing critical skills in religious or theology fields;are sponsored to work in Australia in an occupation on the Priority Migration Skilled Occupation List (PMSOL); orwhose entry would otherwise be in Australia’s national interest, supported by the Australian Government or a state or territory government authority.

As an employer, you can either request a travel exemption on behalf of your sponsored employee or foreign worker, or provide supporting documentation for your employee’s individual travel exemption request. All travel exemption requests must be submitted to the Commissioner of the Australian Border Force. 

How Do You Establish Critical Skills?
Most sponsored employees and foreign workers may fall into either the below categories. They:
have critical skills to maintain the supply of essential goods and services (such as in medical technology, critical infrastructure, telecommunications, engineering and mining, supply chain logistics, aged care, agriculture, primary industry, food production, and the maritime industry); or
deliver services in sectors critical to Australia’s economic recovery (such as financial technology, large scale manufacturing, film, media and television production and emerging technology), where no Australian worker is available;
You must provide extensive evidence to satisfy the above categories. 
For example, if the sponsored employee or foreign worker has critical skills to maintain the supply of essential goods and services, then you may want to provide: 
a copy of their work visa;evidence of their critical skills;what critical industry/sectors they will lend their skills to;how their skills will benefit that industry/sector; andevidence of the lack of such skills in Australia and attempts by the Australian employer to recruit a suitably qualified Australian worker. 
It is important to explain the nexus between your sponsored employee’s or foreign worker’s critical skills to your business (which may be a business in a critical sector in Australia) or to your clients (which may be business in critical sectors in Australia). 
My Sponsored Employee’s Occupation is On The PMSOL
On 2 September 2020, the Acting Minister for Immigration Alan Tudge introduced the Priority Migration Skilled Occupation List (PMSOL) which identifies 17 key occupations in targeted sectors of health care, construction and IT. The full announcement is available here. 

The 17 occupations (ANZSCO code) are:
 

Chief Executive or Managing Director (111111)
Construction Project Manager (133111)
Mechanical Engineer (233512)
General Practitioner (253111)
Resident Medical Officer (253112)
Psychiatrist (253411)
Medical Practitioner nec (253999)
Midwife (254111)
Registered Nurse (Aged Care) (254412)
Registered Nurse (Critical Care and Emergency) (254415)
Registered Nurse (Medical) (254418)
Registered Nurse (Mental Health) (254422)
Registered Nurse (Perioperative) (254423)
Registered Nurses nec (254499)
Developer Programmer (261312)
Software Engineer (261313)
Maintenance Planner (312911)

The National Skills Commission helped to design the PMSOL. It addresses two key needs:
to allow sponsored skilled workers to return to Australia to fill urgent skills needs in critical sectors; andto create Australian jobs and rebuild Australia’s economy during and post COVID-19. 
This is positive news for Australian businesses who employ individuals in the above occupations. It offers more confidence and certainty to Australian employers operating in the construction, health and IT sectors. 
Priority Processing For Some Nominations
Furthermore, nominations for PMSOL-listed occupations, and visa applications submitted for sponsored workers under a subclass 482, 494, 186 and 187, will be priority processed. 
This is very important, as processing times for employer-sponsored visas have extended dramatically. In many instances, employers and applicants have been waiting for at least three to four months for a decision on their applications. 
However, employer-sponsored visas submitted for an occupation on the PMSOL will receive a decision within a matter of weeks (if not days). The applicant (sponsored employee) can be offshore or onshore.
If the applicant is offshore, employers can submit a travel exemption request on their behalf to enter Australia. This is because PMSOL-listed occupations are considered critical skills. Travel exemption requests are usually finalised within a matter of days. 
This has brought a great deal of relief to Australian businesses and employers, who (due to the nature of their business) require skills and experience that are not readily available across the Australian labour market. 
Key Takeaways
It is important to note that a travel exemption request based on your sponsored employee’s or foreign worker’s critical skills is not a straightforward process. The onus is on the Australian employer or the individual, requesting a travel exemption, to demonstrate that they meet the relevant travel exemption criteria. 
If you are uncertain of the process, or what evidence is needed to establish your employee’s critical skills, LegalVision’s experienced immigration lawyers can assist you. Call 1300 544 755 or complete the form on this page.

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Domain’s in-house Legal team often reviews high volumes of advertising review work in short timeframes. To address volume issues, they looked externally to find a legal tech solution that would allow the team to focus instead on high-value, strategic work.
 Here, Daphne Koffel, in-house counsel for Domain, explains the challenges the business was facing and how the solution transformed the way they work.
Improving Management of High-Volume Work
 We were experiencing several challenges in our advertising review workstream. These were brought about by:
unpredictable volumes of advertising review work; anddifficulty juggling competing timelines and priorities.
Because the volume of advertising review work was so high, we prioritised requests from the business by using a spreadsheet process. We committed to a five-day turnaround on all review requests, but only if:
the request had been added to the spreadsheet;it had been confirmed by a manager that the collateral was ready for review.
This was a very manual and time-consuming process for both the Legal and Marketing teams.
The volume of advertising review requests also created some practical challenges. There was a lot of back and forth of emails required to finalise the review. It was a huge challenge to save and organise these email threads at such high volumes.
Finding The Right Fit
We realised that we needed an extra pair of hands to help us manage the volume of advertising review work. We knew we wanted to work with an external law firm who would have a dedicated team, as well as innovative technology to help streamline the review process.
However, we knew we didn’t want just any external law firm. Domain needed a provider that could give us a dedicated team of people who would be available to support, collaborate and work seamlessly with the Marketing team, as well as the in-house Domain Legal team.
We wanted a provider who:
we could build a rapport with, who would work collaboratively with our Legal team;didn’t just take the workload away and cut us out entirely – we wanted to stay across it; andwho wouldn’t just do the black and white legal review without considering the commercial strategy or context behind it.
We knew early on we were looking for a partner, not just a provider. So we turned to LegalVision.
Designing An Innovative Solution
The experience was quite cathartic!
The design workshop was an opportunity to get all the stakeholders together in one room. It opened a dialogue that would not have otherwise been prioritised.
The workshop gave me an understanding of how the Marketing team had been finding the process and the opportunity to hear their ideas on how we could improve it. It was a really useful exercise to step back from the day-to-day and have a big picture discussion as a group.
The design workshop provided plenty of ‘lightbulb’ moments. We learnt about what was working well in our current process and what we could improve on. One of the most important outcomes was confirming that the Marketing team wants to work closely with the Legal team and that 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.
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.
Freeing Up Time
Today, our day-to-day advertising review work is completed through LegalVision’s Advertising Review product. I have visibility over the advertising collateral and LegalVision’s advice to the extent that I need to. We also have weekly catch-ups with LegalVision to discuss future campaigns, commercial strategy and claims.
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.
From the Marketing teams’ 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.
I believe the Marketing team regards LegalVision as an extension of their in-house Legal team.
A Final Word
 My key piece of advice is don’t fear change and don’t fear letting go!
We invested in LegalVision upfront and it has repaid so much, many times over! LegalVision is invested in Domain and understands our business objectives and risk appetite.

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Never underestimate your sphere of influence. That is one of the key lessons that Pacific National General Counsel Andrew Beck has learned during his career. It is also reflected in the way his in-house team of eight permeate the business, seeking to act as a true partner and to make a real difference to their colleagues. Their efforts were recognised when the team won the ACC’s 2019 Small Legal Team of the Year award.
Pacific National is one of Australia’s largest rail freight companies, with over 3500 employees. The company’s key values are Safety, Accountability, Integrity and Teamwork; all four are reflected in the activities for which the in-house team was recognised.
In this interview, Beck shares insights into:

the team’s award-winning projects;
his views on in-house counsel strengths and what the profession could be doing better; and
his lessons learned.

Staying Safe Physically And Mentally
Given Pacific National is moving thousands of items across the country by rail, safety is a huge priority for the business. Not just physical safety, but mental wellbeing, too. The Pacific National legal team conducts safety training for the leaders responsible for workforce safety, helping them to understand their responsibilities and find solutions for their obstacles. This includes training the company’s Board. The team also champions RUOK Day and their Chief Corporate Services Officer is on the board of TrackSAFE, which focuses on reducing traumatic rail incidents such as suicide.
When the COVID-19 pandemic hit, the in-house team was well-placed to deal with some of the safety issues that arose. They had already established remote working systems and ‘inclusivity catchups’; these are 1×1 coffee breaks sponsored by the company to encourage relationship building and inclusivity. Nonetheless, when the pandemic hit, the challenge was to ensure connectivity and wellbeing was maintained. Regular, if not daily, virtual team meetings quickly became par for the course and the inclusivity catchups are now conducted remotely.
On the logistics front, when all domestic borders closed, Pacific National was potentially unable to transport freight from one state to another, ensuring valuable food and other supplies were reaching destinations like supermarkets. The legal team joined senior business managers in working closely with the government to find a solution. Needless to say, rail freight was soon deemed an essential service.
Streamlining Operations and Efficiency
Beck’s team works hard to deliver on and exceed the business’ expectations, and each lawyer is aligned with and integrated into the business’ operational teams. “We really work on relationships and creating a grassroots level of interaction with the business,” he said.
In line with the business’ ‘accountability’ value, the team has undertaken significant improvements to contract processes in the business. These include:

simplifying and reducing the number of legal templates the business needs to use down to five;
reducing legal team involvement in low-risk activities, such as procurement valued under $250,000;
updating commercial and HR templates so the business can self-service, speeding up the overall process and reducing the legal team’s workload;
implementing a new billing system to ensure billing is accurate and in line with tender agreements. This also saves having to negotiate with new legal vendors for each matter; and
establishing a legal toolbox, which includes workflows and guidance notes and coaching to non-lawyers. For instance, on how to use certain documents, and what issues to look out for when using them (e.g. when setting up a non-disclosure agreement).

In-house Counsel Strengths and Weaknesses
Aside from the obvious skills that a lawyer should have, such as attention to detail and strong communication skills, Beck identifies three strengths he believes any in-house counsel should possess.

Adapt your style to who your audience is. “You need to be able to adapt your style easily and quickly,” he said. “This is most valuable and effective when providing advice in a way that the businesses will best accept.”
Understand the business’ priorities and decide how you can best honour these priorities; and
Recognise the importance of people and wellbeing. “We don’t do it enough as lawyers, generally,” Beck said. While working in-house is supposed to provide more flexibility and work-life balance than private practice, this isn’t always the case. “There’s much more to ensure you have the right level of connectedness, engagement, satisfaction and keeping people motivated. When it comes to wellbeing, you can never take your foot off the accelerator.”

Beck suggests that lawyers who become managers would do well to have people management training. He would like to see people management essentials incorporated into law degrees as an elective subject, and for businesses to offer management training and coaching to lawyers as they might other operational managers.
“When you manage people, at some point you need to stop being a lawyer and spend more time being a people manager,” Beck said.

Focus on Compliance
Another area Beck believes more in-house counsel should focus on is compliance. He feels it is easy for legal teams to fall into the habit of managing business-as-usual work. But, given Rio Tinto, AMP, and the various Royal Commissions, legal teams must share their understanding of compliance matters and ensure that the business receives this message.
“It’s about focusing less on commercial outcomes and ensuring compliance is being maintained,” Beck said.
Andrew Beck’s Lessons Learned
Beck is proud of his team and how they have come together, especially during the COVID-19 crisis. He said they are working better than ever using the tools they have available to them. He shares these two key lessons learned with his team and other in-house lawyers:

Never underestimate your sphere of influence. “Don’t not do something because you think you can’t or because you believe you don’t have the kudos or the authority,” Beck said. “People are responsive to new ideas, no matter where they come from.”
Play the long game with your career. “Everyone has ebbs and flows in their career, but a career is a marathon, not a sprint. We can get caught up in our setbacks and they can get you down,” Beck said. “So find what gives you energy and really focus on it.”

This year’s ACC Australia Corporate Lawyer Awards will be announced at the 2020 In-House Legal Virtual Conference, November 16 – 20. Click here to learn more and to register for the conference.

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Trusts are a fairly common structure that you can use to operate a business, own assets and distribute income. Although trusts can serve similar purposes as companies, they are very different structures and are therefore regulated differently. This article looks at how Australian company numbers (ACN)s, Australian business numbers (ABN)s and tax file numbers (TFNs) relate to a trust.
Does a Trust have an Australian Company Number (ACN)?
An ACN is a unique nine digit number that identifies an Australian company, much like a licence plate identifies a car. A company’s ACN is always used alongside a company’s name in any legal documents in order to clearly identify the company. 

For example, the documents could state ‘Endeavour Sailing Pty Ltd ACN 123 456 789’.

Unlike an ABN and TFN, you do not have to register an ACN for your company. Instead, an ACN is automatically assigned to your company when it is incorporated with the Australian Securities & Investments Commission (ASIC). 
Trusts are an entirely different type of business structure to a company and therefore cannot have an ACN. However, an ACN may still be relevant to a trust if it has a corporate trustee. A corporate trustee is where you incorporate a company to act as the trustee of your trust, instead of an individual person. 

Example:
Philip Burke inherits a large sum of money from his grandmother and plans to use the money to buy a number of investment properties. His accountant advises him to set up a discretionary trust to purchase the properties, so he can distribute the rental income to different family members. His accountant also recommends having a corporate trustee.
Philip’s accountant incorporates Burke Investments Pty Ltd with ASIC. ASIC automatically assigns the company an ACN of 123 456 789. Philip’s lawyer then sets up The Burke Family Trust for him and appoints Burke Investments Pty Ltd as the trustee.
When signing the contracts to purchase the properties, the purchaser will be identified as follows:
‘Burke Investments Pty Ltd ACN 123 456 789 ATF The Burke Family Trust’

Does a Trust have an Australian Business Number (ABN)?
Your trust only needs an ABN if you are using it to operate a business, in the same way that a company only requires an ABN for the same purpose. However, rather than the trust itself having the ABN, the ABN is actually attached to the trustee of the trust in their capacity as trustee.

Example: 
Andrew Ellis operates a jewellery business in Terrigal called Central Coast Carats as a sole trader, with a registered ABN of 98 765 432 101 that he uses when invoicing clients. Separate from his jewellery business, Andrew decides to start a new lawn mowing business called Terrigal Lawns, which after consulting his accountant he plans to operate through a trust. Andrew gets his lawyers to set up a trust called The Ellis Family Trust and appoints himself as trustee for the trust.
Because the trust will be operating a business, it will require an ABN. However, it is not the trust itself that has the ABN but the trustee, which in this case is Andrew. Andrew does not use his existing ABN from his jewellery business, as this is for him personally. Instead, he registers a new ABN of 12 345 678 910 for himself as trustee for the trust.
Whenever Andrew signs any legal documents for the lawn mowing business, the business will be identified as follows:
‘Andrew Ellis ATF The Ellis Family Trust t/as Terrigal Lawns ABN 12 345 678 910’
Whenever Andrew signs any legal documents for his jewellery business, the business will be identified as follows
‘Andrew Ellis t/as Central Coast Carats ABN 98 765 432 101’

Does a Trust have a Tax File Number (TFN)?
A trust should have its own TFN, which like an ABN is registered by the trustee of the trust in their capacity as trustee. If an individual is a trustee of a trust, they do not use their own personal TFN as trustee. Instead, they use the separate TFN that was registered for them as trustee for the trust. If the trustee changes to another person in the future, that person would continue to use the same TFN for the trust.
If you have a corporate trustee for a trust, that company should register a TFN for the trust in its capacity as trustee. The company then uses that TFN when submitting any tax returns for the trust or having any other tax dealings on behalf of the trust. Again, if the trustee changes to another company in the future, that new company will continue using the same TFN for the trust.

Example:
Sarah Wilde is employed as a nurse and receives pay slips from her employer that cite her own personal TFN. Together with her husband James, Sarah decides to set up a family trust with which to own their share portfolio and distribute dividend income between them and their three children. Sarah is appointed as trustee of the trust.
Sarah registers a new TFN in her capacity as trustee for The Wilde Family Trust, and cites this TFN when lodging income tax returns for the trust. 
10 years later, Sarah and James decide to appoint one of their children, Thomas, to replace Sarah as trustee for the trust. Thomas continues to use the same TFN that Sarah registered for the trust when lodging income tax returns for the trust.

Key Takeaways
Trusts can be used to run a business, own assets and distribute income. A trust does not have an ACN. If it has a corporate trustee, however, the corporate trustee will have its own ACN. A trust only needs an ABN if it is conducting business. If it does, then the trustee registers an ABN in their capacity as trustee. A trust should have its own TFN. The trustee registers the TFN in their capacity as trustee. If you have questions about trusts, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.

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You have built a successful business but the time has come to sell and move on to a new venture. You know the operating side of your business well, but you may not be as confident when you need to prepare the business for sale. This article sets out some legal and practical considerations to assist you with that journey, including:
understanding your business and presenting it in the best light;ensuring that your documentation and records are in order;structuring your business and the sale;protecting your confidential information when speaking with potential buyers; andnavigating the sale process.
Understanding and Presenting Your Business
A potential buyer’s main focus at the outset will be whether your business is profitable. When you prepare your business for sale, being knowledgeable about how your business makes and spends money is key. This includes being aware of any items which affect this, such as: 
non-recurring expenditure; and any personal assets which have been purchased by your business. 
In addition, you should be aware of your business’ position in the market and what the business’ strategy is to ensure it stays profitable. 
No buyer will expect a business to be perfect. If there are any issues with the business, do not shy away from them. Instead, you should be proactive and fix them. If you are unable to fix them, make sure you understand the risks.          
Documentation and Records
Potential buyers will have questions about your business and will want to see key documentation to support the financials. You can prepare for this part of the sale by ensuring that your contracts and business records have been maintained and are up to date and accessible. This is called ‘vendor due diligence’.
The key aspects to consider are set out in the table below.

Accounts and accounting records
You should keep these for at least the previous three years, or for as long as your business has existed. You should prepare them on a consistent basis each year, and the more formal the better.
Key contracts
Preferably, agreements with your key customers and suppliers should be in writing, properly signed by all parties, dated and still within the agreement’s term.
Registers and ASIC filings
If you operate your business through a corporate entity, you should at a minimum maintain a register of shareholders, option holders and directors. Share certificates should be issued each time shares in your company are issued or transferred. Your ASIC filings should reflect your registers and be up-to-date.
Leases
Any rental properties should be accompanied by a fully signed and dated copy of your lease which is still in force.
Intellectual property
If your business uses a trade mark, it will have greater protection if it is registered and that registration is maintained. All IP your business uses, including domain names, should be registered to the entity or person that is selling the business.
Employees
You will need to consider any employees, including whether: each of your employees has entered into a written, signed and dated employment agreement; any changes to the terms of their employment have been recorded in writing; your payroll records show that you have paid all employees correctly; and you are accruing all employee entitlements correctly in your accounts
Licences
You will need to find out whether you hold all licences and permits required to operate your business, and what the process for transferring these to a buyer is.
Structuring Your Business and the Sale
Your business may be more attractive to buyers if it is operated under a corporate structure. This is because: 
it will be clear who the seller needs to be; and all the assets and liabilities are more likely to be contained in the same entity or group. 
A corporate structure can also be used to protect your business’ core assets against trading losses by hiving off such assets (usually intellectual property rights) into a holding company or IP company separate to the operating entity. 
If you own and operate your business as a sole trader or under a partnership arrangement, you will have to personally transfer each individual asset and liability that makes up the business to a buyer in order to sell them your business. 
If you own and operate your business through a corporate structure (usually a proprietary limited company), either: 
the corporate entity can sell the assets comprising your business to a buyer; or you and any other shareholders can sell your shareholdings to a buyer. 
In a business sale, each asset comprising the business needs to be transferred to the buyer. It is possible for a buyer to pick and choose which assets and liabilities they want to take on. In a share sale, the buyer acquires the entire company and business as a package. 
Protecting Your Confidential Information 
Before commencing detailed discussions about the sale with potential buyers or sharing confidential information about your business, you should prepare and enter into a confidentiality agreement (or “non-disclosure agreement”) with the potential buyer. 
A confidentiality agreement can be: 
‘one-way’, which means that only the information that you share with the potential buyer is protected;  or ‘mutual’, which means that both parties’ information is protected. 
Under the agreement, the recipient of the information agrees to:
keep it confidential (except in prescribed circumstances, such as where the information is required to be disclosed by law); only use it for a specified purpose (e.g. evaluating their proposed purchase of the business); protect the information from unauthorised disclosure; andbe held responsible for all actions of its representatives (e.g. employees and agents) in relation to the disclosure and use of the confidential information. 
Navigating the Sale Process
Once you have decided to sell your business and you have chosen a buyer, you may be wondering how to prepare for the next stage of the sale.
Heads of Agreement
It is often a good idea to document the key terms that you have agreed for the sale in a heads of agreement. This is not a legally binding document (unless otherwise stated), but is a useful tool to assist with negotiating the key terms upfront and acts as a point of reference when moving on to drafting the transaction documentation. 
Exclusivity Period
A buyer may ask to include an exclusivity provision in the heads of agreement (which is a legally binding provision). Such a provision would prevent you from having or continuing discussions with other potential purchasers in relation to the sale of your business for a certain period of time on the basis that the buyer has started to incur costs in relation to the purchase. 
Due Diligence
Generally, while the heads of agreement are being negotiated or once they have been signed, a buyer will undertake a due diligence process. They may instruct advisors to carry out different due diligence workstreams, including financial, legal and operational. You will need to provide answers to the buyer’s questions and documentation to support those answers. This will be a much smoother process if you already have your documentation and records in order. 
Sale Agreement
Whilst the due diligence process is taking place, drafts of the transaction documents will be circulated. The buyer’s lawyers will often prepare the first draft, but this varies on a deal-by-deal basis. Which type of agreement you need will depend on whether you are selling the shares in your company or the assets which make up your business. The sale agreement will set out the parameters of your liability in relation to the business going forward. You may require other documents in addition to the sale agreement, such as a disclosure letter and employment or consultancy agreements if you are continuing your involvement with the business once you have sold it.
Conditions Precedent 
You should consider what approvals you will need to transfer your business. If there are actions which you need to complete before your business can be sold and which are outside your immediate control (such as obtaining the consent of a landlord to assign a lease or getting a regulatory body to approve the transfer of a permit), these are often included as ‘conditions precedent’ in the sale agreement. This means that the sale will not complete until these conditions are satisfied. 
If you are selling your business by way of a share sale and there are minority shareholders who are not willing to sell their shares, the majority owners may be able to force a sale of the entire company if there are ‘drag-along rights’ included in the company’s shareholders’ deed. There will be a prescribed process set out in the shareholders’ deed which will need to be followed by the majority shareholders in order to get the benefit of this right.
Exchange
In terms of process, once due diligence is complete and you’ve agreed all the terms of the sale, you will sign (often called ‘exchange’) a conditional sale agreement. Completion of the sale will then take place at a later date once all the conditions are satisfied and you will be responsible for running the business in the ordinary course during this interim period.
Completion 
On the completion date (whether this is the date that you sign the sale agreement or a later date if conditions are required to first be satisfied), the main action items are that the buyer pays the purchase price and the seller hands over ownership of the business. 
Timeline
It is difficult to predict how quickly you can complete the sale of your business. The timeline will depend on the: 
size of your business;structure of the sale;extent of the due diligence process being undertaken; and number of conditions precedent. 
The timings may also be tax-driven. The liquidity of the business or the availability of finance for the buyer can also affect the timeline. 
Key Takeaways
When the time comes to prepare your business for sale, you will need to:
be familiar with your business’ processes and documents; and decide how you wish to sell your business.
If you need assistance with drafting or reviewing transaction documents or any stage in the sale process, please contact LegalVision’s sale of business lawyers on 1300 544 755 or fill out the form on this page.

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As a franchisor, you are required to disclose particular information about the franchise network to new and existing franchisees. This is required under the Franchising Code of Conduct. Such information should be provided in a disclosure document. The purpose of this information is to allow current and prospective franchisees to make informed decisions about the franchise business. Subsequently, the accuracy and currency of this document is critical and failing to update is taken very seriously.
If you are a franchisor, you must update your disclosure documents every year by 31 October. The update should primarily address changes from the previous financial year ending on 30 June. This article will explore some of the main considerations to think about before updating your franchise disclosure document.
Key Sections That Will Require Updating
When the time comes to update your disclosure document, there are specific sections that frequently require updating. A number of these key sections that require attention are as follows:

Item No.

Changes

Item 2 and 3
These sections provide critical information on:
 

the franchisor;
its associated companies; and 
the current company officers.

If there have been changes since the previous financial year, these sections must be updated. This can include changes in company directors and secretaries, or change of registered address.

Item 4
This section details the litigious history of your franchise and the company directors. This must include any criminal convictions or bankruptcy findings. If there have been any proceedings commenced, or are ongoing since the disclosure document was last updated, you need to provide details.
Item 6
This section will outline the number of current franchisees in the network, as well as provide information on any:
 

franchises terminated;
bought back by you; or 
transfers and changes in ownership.

It must include the details of all current franchisees, as well as contact details of previous franchisees.

Items 9 and 13
These sections relate to franchising sites and territories. If there has been a change in how you determine the proposed sites or territories in which your franchisees operate, you will need to provide accurate details in this section. 
Items 10, 11 and 12
These sections provide critical information on your supply of goods and services to the franchisees, and their supply to customers. You must make sure this information remains correct.
Item 14
This section will state the payments and costs of franchisees that are required to start up and run the franchise. It must include fees and payments to third parties. You should review this section and ensure that the estimated costs are in line with the current establishment and operating costs.
Item 15

If there is a marketing fund for the franchise, this section must describe how that money was spent. There are specific disclosure and audit requirements for updating this section.
You are also required to provide an audited financial statement providing details of the funds receipts and expenditures for the last financial year. The financial statement does not need to be audited if 75% of your franchisees have voted that an audit is not required. In this case, you must still provide an unaudited financial statement.

Item 16 
This section will need to be updated if you have changed your policy and procedure in relation to any finance arrangements that you offer to franchisees.
Item 17
This section must be completed if you have made any unilateral variations to existing franchise agreements.
Item 18
This section sets out the processes at the end of the franchise agreement and whether franchisees have made significant expenditures, and should be amended if you have changed your policy and procedure since the disclosure document was last updated.
Item 21
Requirement to provide the franchisor’s financial statements for the previous two financial years, or an auditor’s statement for the most recently completed financial year.
While these key sections may require changes, one of the primary purposes of updating your disclosure document is to ensure that the financial information provided to prospective franchisees is current, based on the previous financial year.
Documents to Provide
When updating your disclosure document, you must also provide the following documents: 
a director’s statement. This statement must be completed by one of your franchising company’s directors and outline reasons that your company is currently solvent; andan updated financial report. You must also provide a financial report for the previous two financial years; oran independent audit report. You may obtain a report from a registered company auditor to show your franchising company is solvent. This option, while more expensive, can be used to ensure the franchises financial information is kept confidential.
If you have been operating as a franchisor for less than two years, you may need to provide a statutory declaration as to your franchising company’s solvency. You will be unable to provide financial reports because you have not traded long enough, and must obtain an independent auditor’s report on your franchising company. Ultimately, the purpose of this information is to demonstrate that your franchise company is solvent and able to pay its debts.
When You Do Not Need to Update Your Disclosure Document
You may not be required to update your disclosure document under certain circumstances. If you did not enter into more than one franchise agreement in the previous financial year, you may not need to update your disclosure document. However, if you transferred, renewed or extended any of your existing franchise agreements, you will need to update your disclosure document.
If one of your franchisees requests a copy of the disclosure document, you need to provide them an updated copy. Franchisees are allowed to request an updated copy of the disclosure document once per year. As a franchisor, you will need to ensure that your disclosure document has been updated. You must also comply with this request in the stipulated time frame.
Penalties for Failing to Update Disclosure Document
Franchisors should be warned that failure to comply with the Franchising Code and update your disclosure document will draw the attention of regulatory authorities, including the Australian Competition and Consumer Commission (ACCC).
These regulatory bodies can bring court proceedings against franchisors and issue penalty notices as punishment for failure to comply with the Franchising Code. Currently, the ACCC can issue fines of $66,600  for failing to update your disclosure document, and there is a proposal to increase this amount to $133,200.
Seek Professional Advice From a Franchising Lawyer
To avoid any errors and the risk of penalties, you should seek professional legal and accounting advice. While you may be able to complete some of the updates yourself without assistance, there are more complex aspects that you should seek guidance on. LegalVision’s franchising team can assist you and streamline the update process by reviewing your existing disclosure document to ensure that it complies with all legal requirements and the Franchising Code of Conduct. 
Key Takeaways
The disclosure document is designed to enable prospective franchisees to make informed decisions based on the franchises financial information. You must update your disclosure document by 31 October each year. The main purpose of updating your disclosure document is to ensure that the information is current and based on the previous financial year.
The Directors Statement and Financial Reports are used to show that your company is solvent and capable of paying its debts. There are penalties for failure to update. If you have any questions about your franchise disclosure document, contact LegalVision’s franchising lawyers on 1300 544 755 or fill out the form on this page.

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Going to court can be a confusing and frustrating experience if you have never been before. It is not what you see on the TV and in movies, where whole court proceedings seem to finish in days with little preparation. In reality, court proceedings take many months, usually at least six months and often up to two years or more. The court sets a timetable to complete many steps requiring hours of work and the preparation of often hundreds of pages of documents, even for simple matters. This article will outline the court process from start to finish, providing clear explanations for each step.
Before Legal Proceedings Start
Claims and Communications
Most commercial disputes start with correspondence between the parties. You may engage a lawyer at this early stage to help you assess your legal position and available options. Once engaged, your lawyer will take over all communications with the other party or their lawyer. This will include sending a formal letter of demand, which is an essential step before a party issues proceedings.
Mediation
Parties will often try to resolve the dispute before issuing court proceedings. This may be informal, between the parties, or more formal, such as using an independent mediator like those offered by the NSW Small Business Commissioner.
Starting Legal Proceedings:
Briefing Counsel
Court hearings are almost always run by a lawyer working with a barrister, known as counsel. This barrister assists with strategy and all stages of court proceedings. This includes appearing in court. 
Your solicitor can brief counsel at any stage before a hearing, but there are benefits to briefing counsel as early as possible so they can provide strategic guidance and expert advice on your legal position. Briefing counsel involves your solicitor providing counsel with a comprehensive summary of your case and copies of all the key documents. 
Pleadings
This is the stage where each party sets out their legal positions in formal legal documents. These include:
statement of claim: proceedings are usually started with the initial claim, referred to in most courts as a statement of claim. The party filing a claim is called the plaintiff or applicant;defence: the other party, called the defendant or respondent, then has a period of time, usually between 21 and 28 days, to file its defence;cross-claim: the defendant may also file a cross-claim or counterclaim with its defence if it has a claim against the plaintiff;defence to cross-claim: if a defendant files a cross-claim, the plaintiff must file a defence to this; andreply: some courts allow the plaintiff to file a reply to respond to matters raised in the defence. 
Court Attendance: Directions
This is the first of several court attendances before the hearing starts. They are administrative attendances only and are sometimes online if there are no contentious issues to deal with. 
Depending on the court, this first hearing may be referred to as a:
directions hearing;call over; or pre-trial review.
The purpose is usually to set the timetable for the remainder of the proceedings. 
Interlocutory Hearings
An interlocutory hearing is a mini hearing to deal with a procedural matter relating to the main proceedings. There may be one or more interlocutory hearings held between the filing of pleadings and the main hearing.
Interlocutory hearings occur when the parties do not consent to a procedural matter, such as whether to:
amend pleadings;make further orders for discovery; or apply for an urgent injunction.
Mediation
Mediation can also occur at any time during the proceedings. In some cases, the parties will request the mediation. In others, the court will order the parties to attend mediation as part of the timetable for the proceedings. 
Evidence
Disclosure
Parties can request documents from each other and third parties to use as evidence to support their position. Common steps in disclosure involve:
discovery, where the parties ask each other to produce certain categories of documents relating to their claim or defence. The court timetable allows time for parties to ‘discover’ documents and review those documents; andsubpoenas, where parties can request that third parties produce documents relevant to the proceedings. 
Preparing Evidence
Parties prepare the written evidence they will rely on to prove their claim or defence. The plaintiff files its evidence first, followed by the defendant some weeks later. This is usually in the form of an affidavit, with documents attached, or annexed, to it. 
If there is a large volume of documents, they are collated in a separate file called an exhibit. Once prepared, affidavits are usually filed with the court and served on the other party.
Expert Evidence
Parties can rely on experts to give evidence on matters that require specific expertise, such as on accounting, construction or web development issues. Expert evidence must comply with certain requirements to prove the expert has the appropriate experience to give the evidence. 
Hearing Preparation
Court Attendance: Pre-Trial Review
There is usually a final ‘administrative’ attendance before the hearing date to ensure the parties are ready for the hearing.
Hearing Preparation
Preparation can be substantial, depending on the number of witnesses and the complexity of the matter. Hearing preparation steps can include:
conferences with counsel to prepare witnesses for cross-examination; preparation of a ‘Court Book’ which the judge and the parties use. It contains copies of all documents all parties will rely on at the hearing; andcounsel preparation of submissions and other documents the court may require, such as a chronology or statement of agreed facts.
The Hearing
Court Attendance: The Hearing
Hearings can last from one day to many weeks, depending on the complexity of the matter. In most cases, barristers represent their parties in court, with instructing solicitors also attending.
In some cases, a party is self-represented. This means they have no lawyer acting for them. Hearing days can be long, usually involving meetings with your legal team before and after court. 
Judgment and Costs
The judge or magistrate will deliver their judgment once hearing all evidence submissions from the parties. Sometimes they deliver their judgment orally and on the spot, called ‘ex tempore’.
Most often, however, their judgments are ‘reserved’. This means they consider the evidence and write a detailed judgment published at a later date, often some months after the hearing. The judgment will include any costs orders.
Appeals
In most courts, a party can appeal the court’s decision. There is usually a time limit in which parties must lodge an appeal, and the appeal then involves a repeat of the first hearing process, with further legal submissions made. 
Key Takeaways
Even the most basic court proceedings involve many steps and months of legal work and court attendances. It can help to know what every step involves and what some of the unfamiliar jargon and legal concepts mean. If you need assistance with a commercial dispute, contact LegalVision’s litigation lawyers 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 an ongoing, permanent basis. It may be more appropriate for you to engage them as a part-time or casual employee. These different categories of employment confer certain entitlements to your employees and consequent obligations to you, which you must be aware of. Failing to comply with these obligations can put you at risk of receiving hefty penalties from bodies such as the Fair Work Ombudsman (FWO). As such, it is important to understand the different ways in which you can engage employees. This article will run through the differences between each type of employment arrangement, identifying employer obligations and employee rights. 
Casual Employment
Casual employees hold no firm commitment in advance for work. This means that they have no guaranteed hours of work.
The termination of a casual employee can occur with one hours notice. This applies both if a casual employee terminates their employment, or you terminate their employment. However, this is not the case if your employee’s contract specifically requires a greater notice period.

Casual employees are usually notified of their hours as needed, so they generally work irregular hours. They can also choose to accept or refuse these hours.

Casual employees are not entitled to many entitlements that apply to full-time employees, such as paid leave or paid days off on public holidays. Instead, they typically receive a casual loading on top of the base hourly rate of pay.
Casual Employment Entitlements
Casual employees receive:
higher hourly pay rates than full-time and part-time employees;two days unpaid carer’s leave and two days unpaid compassionate leave per occasion; andfive days of unpaid family and domestic violence leave (over 12 months).
Regular and Systematic Casual Employees
Suppose one of your casual employees has worked for you for a long period of time and has a reasonable expectation of continuing employment. In that case, they may be considered regular and systematic casual employees. A casual employee may be considered ‘regular and systematic’ if they:
work full-time hours over a long period of time;have a clear pattern or roster for the days or hours they work; oryou regularly offer them work and that work is accepted sufficiently often that the employment relationship itself is regular and systematic.
If a casual employee works on a regular and systematic basis for a prolonged period of time, they may be able to claim that they are, in fact, permanent employees. Therefore, they should be provided with the minimum entitlements contained in the National Employment Standards (NES), including:
personal leave; andannual leave.
Such claims could potentially be very costly, as they result in underpayments and may result in penalties for breaching the NES.
Part-time Employment
Part-time employees work on average less than 38 hours per week. They usually work regular hours each week, which they generally agree to under their award. If this is the case, any variations to these hours usually need to be agreed to in writing.
You can engage part-time employees on a:
permanent;fixed-term; or maximum term basis.
The termination of part-time employment requires a notice period, making the process more complex than terminating casual employment. The duration of the notice period depends on how long the part-time employee has been working for you. It may also depend on any applicable notice period provided for in their contract of employment, whichever is greater.
Entitlements
Part-time employees share the same entitlements to paid leave as full-time employees but on a pro-rata basis. A pro-rata basis means that it is based on how many hours they work weekly. 
These entitlements include:
paid leave, such as annual leave;sick and carers leave; and long-service leave.
Your part-time employees are also entitled to leave and redundancy payouts. The latter depends on the conditions of the termination.
Full-Time Employment
Full-time employees generally work a maximum of 38 hours per week, plus reasonable additional hours. They can be permanent employees or on fixed-term contracts.
Like part-time employment, the termination of full-time employment requires a notice period, making the process more complex than terminating casual employment. The duration of the notice period depends on how long the full-time employee has been working for you.
Entitlements
Full-time employees are entitled to:
four weeks of annual leave for each year of service;ten days of personal or carers leave for each year of service;accumulated leave (annual and long-service); andredundancy payouts (depending on the conditions of the employee’s termination).
Key Takeaways
Misunderstanding your obligations to your employees can put you at risk of receiving hefty penalties from bodies such as the FWO. It can also result in general employee dissatisfaction, which may affect:
overall staff morale;performance; and turnover rates.
As such, it is extremely important to understand what categories of employment are suitable for your business and also what categories of employment your current employees fall under. If you have any questions about employee entitlements, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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As an employer, it is vital that you understand your obligations relating to minimum wage and superannuation entitlements. If you do not meet these minimum obligations, you are at risk of receiving hefty penalties and having to back-pay these entitlements. This article will examine these obligations and entitlements, serving as a useful reference guide for you.
Does Minimum Wage Include Superannuation?
Minimum wage does not include superannuation. Neither the national minimum wage nor award minimum wages include superannuation. As such, it is important to understand your obligations to employees in relation to both super and minimum wages.  
What Is a Minimum Wage?
A minimum wage is the lowest wage that you can pay your employees, as permitted by the law. You cannot pay your employees less than this wage, even if you and your employee agree to it. The minimum wage acts as a safety net for your employees.
Your employees minimum wage is dependent on whether they are covered by an award or enterprise agreement. If they are under an enterprise agreement, their base rate of pay cannot be less than the base rate of pay the employee would have received under the relevant award. You can find the list of awards on the Fair Work Commission’s website. If an award or agreement does not cover your employees, they will be considered Award/Agreement free and must be paid in accordance with the national minimum wage.

For example, the national minimum wage is currently $19.84 per hour or $753.80 per week (before tax). If you hire casual workers covered under the national minimum wage, they receive at least a 25% loading on it.

These rules are governed through a number of different legal instruments. The Fair Work Act 2009 (Cth) (and its regulations) set out a national framework of obligations for businesses. Other standards include the national employment standards (NES). These rules protect your employees from exploitation and ensure fair competition in our business environment.  
What is Superannuation?
Superannuation is the contribution of a percentage of personal income that employers pay into their employees to help them save for retirement. This is called the Superannuation Guarantee. Currently, as an employer in Australia, you must pay 9.5% of an employee’s ordinary time earnings (OTE) in a nominated super fund.
OTE is how much your employee earns from their ordinary hours of work. This can include: 
commissions;loadings; andallowances.

It does not include overtime payments.

If your employee earns at least $450 (before tax) in a calendar month, you must pay them superannuation. However, it is important to always check the relevant award. Additionally, if your employee is under 18 or is a private or domestic worker, they must work at least 30 hours per week to qualify for superannuation payments. You do not need to pay superannuation to non-resident employees that do not work in Australia.
If your employee is eligible, you must make superannuation contributions to their nominated fund at least four times per year. Yo must pay into the fund on these quarterly due dates:
November 28 – Quarter One;February 28 – Quarter Two;May 28 – Quarter Three; andAugust 28 – Quarter Four.
The Superannuation Guarantee (Administration) Act 1992 (Cth) sets out many of the rules relating to superannuation in Australia. This includes the current superannuation rate.
Why Are These Rules Important?

If you do not pay an employee their entitlements, you can be liable for a range of penalties and charges.

If you do not pay superannuation entitlements to your employees, they can report you to the Australian Tax Office (ATO). Upon investigation, if the ATO determines that you have not met your superannuation requirements, the ATO will engage with you to address your debt.
If you do not pay minimum wage entitlements to your employees, they can report you to the Fair Work Ombudsman (FWO) or submit an anonymous complaint on the Fair Work Commission’s website. If the FWO determines that you have not met the minimum wage requirements applicable to your employees, they can commence proceedings against you. Here, they can force you to back pay these wages and also often penalise you heavily.
As an employer in Australia, you must keep correct and accurate records of superannuation and wage payments and also provide your employees with payslips. 
Key Takeaways
The Australian minimum wage does not include superannuation. You are required to pay superannuation on top of minimum wage requirements. If you do not pay the appropriate minimum wage or superannuation requirements, you will have to back pay these entitlements and will often be liable for hefty penalties. If you have any questions about employee entitlements, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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The effects of climate change are becoming increasingly pervasive across the environment, the economy and life in the present era. Businesses must now adjust to new market pressures, and companies have to be responsive to how climate change has affected both shareholder interests and the discharge of directors duties. Environmental factors have become interwoven with good corporate social governance. This article will explain how you can take active steps to becoming a ‘climate-conscious’ business by administering a sustainable supply chain.
What is a Supply Chain?
A supply chain is the system of organisations, individuals and processes that your business uses when supplying its products or services to the end-consumer. Common components of a business’ supply chain include its:

materials;
suppliers;
manufacturers;
distributors; and
employees.

What to Look Out For In Your Supply Chain
When inspecting your business’ supply chain, you might first consider whether your business has to uphold any specific industry regulations.

For example, a building and construction company will have to carry out projects within certain frameworks that have regard for sustainable and safe development. 

However, your business’ response to climate change should not necessarily be entirely determined by particular regulatory obligations. Instead, an increasing number of businesses are taking corporate social responsibility into their own hands, scrutinizing their own supply chain and business methods to make sure their sustainability practices are up to scratch.
When undertaking due diligence on your business model, you might ask whether:

the people and organisations in your supply chain are compliant with their respective regulatory and compliance obligations;
you would be comfortable if your clients and end consumers knew about every aspect of your supply chain;
your business actively contributes to reducing the impacts of climate change;
any of the components in your supply chain are particularly susceptible to the physical risks of climate change (e.g. drought, floods and fires);
any of the components in your supply chain are particularly susceptible to the transitional risks of climate change (e.g. the move away from non-renewable resources). 

Best Practices When Modelling Your Supply Chain
The best way to ensure that your company has an effective climate policy throughout its business model is to take a proactive, rather than reactive, approach. There are a number of common strategies that organisations with effective environmental and social governance principles demonstrate to effectively manage their supply chain and their overall impact as a business. Your organisation should:

have established long-term sustainability goals that underpin your decision making;
require suppliers to also maintain their own long-term sustainability goals;
include sustainability outcomes as performance obligations within key contracts;
appoint key staff within the business to manage and monitor these sustainability goals; and
take guidance and direction from leading organisations both inside and outside your industry.

Supply Chain Sustainability in Action
Consider the below example of supply chain sustainability.
Molly has been running a small furniture manufacturing business. After a year of trading, her business is growing, such that she has the opportunity to expand the volume and type of furniture that she makes.
In re-evaluating her current business model, Molly realises that she has room to improve on the sustainability of her supply chain. She realises that the wood that she uses in most of her manufacturing is not sustainably sourced. It is supplied to her by a large overseas business that is contributing to mass deforestation internationally.
Molly decides to replace this international supplier with a local timber business. Whilst the cost of raw materials is slightly more expensive, this new timber business has an impressive reforestation scheme, and Molly discovers that the wood is far better quality.  Molly increases costs on her products, which she finds that her customers are happy to pay given that she is now producing better quality and locally sourced products. As well as retaining her profit margin, Molly successfully uses her reworked sustainable supply chain as a marketing selling point which further strengthens her growing enterprise.
Key Takeaways
As climate change continues to become one of the key issues of the modern era, all sectors of the economy are facing increased expectations to reduce their environmental impact. In order to respond to these market pressures, businesses are implementing a higher degree of scrutiny when assessing the sustainability of their supply chain. If you would like to discuss the implementation of sustainability outcomes in any of your commercial contracts, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.

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