2020 legal checklist for your business

13 January 2020
Posted by Jennifer Tutty

It’s a new year and a new decade!  With January often being a quieter month, it’s a great time for business owners to set goals for the year ahead and do a health check on their business ‘legals’.  We have created a checklist below to help you get started.  We have also included some helpful links throughout for further reading.

Staff

1. Check whether your contractors should be employees and paid super.

– It is illegal to enter into a contractor agreement with an individual who should be engaged as an employee. This is known as ‘sham-contracting’.
– If in doubt, visit the ATO website and take the employee v contractor test in relation to any staff member you are not sure about.
– A lot of businesses believe that contractors do not have to be paid superannuation. However, this is often incorrect.

2. Make sure you understand whether a Modern Award applies your employees.

– In addition to the National Employment Standards under the Fair Work Act, some employees are also covered by a modern award.
– Awards provide additional entitlements regarding pay rates, hours of work, breaks, penalty rates and overtime pay and must be followed.

3. Consider whether you need to create or update your employment agreement template(s).

– If you are concerned your business might not be doing things ‘quite right’, then it’s best to speak to a professional about updating your employment agreement template or creating one if you don’t have one.

Here are some helpful links for further reading:
Studio Legal blog – Contractors v employees: How to about ‘sham-contracting’
Fair Work Ombudsman – Independent contractors & employees

ATO – Employee/contractor decision tool 
ATO – Superannuation guarantee eligibility tool
Fair Work Ombudsman – Modern awards

Clients & Customers

4. Check whether your customer T&C’s comply with the Australian Consumer Law (ACL).

– If your business provides goods and/or services to consumers, then you must provide you goods and/or services in accordance with Consumer Guarantees set out in the ACL.
– Consumer Guarantees also apply business to business, where the goods/services are under $40k.

5. Check whether your customer T&C’s contain any unenforceable unfair contract terms.

– Your small business contracts cannot contain ‘unfair contract terms’, and these terms may be void, if challenged.
– Examples of unfair terms would include where only one party can vary the terms of the contract or terminate the contract.

6. Consider whether you need to create or update your customer T&C’s template.

– If your contract is super old or may contain unfair contract terms or breach the ACL, then it is probably time to talk to a lawyer about updating or creating your customer T&C’s.

Further reading:
ACCC – Consumers’ rights & obligations

ACCC – Unfair terms in small business contracts

Intellectual Property

7. Check whether you legally own your brand.

– A company name, business name or domain name registration simply lets the public know who has registered the company, business or domain name.
– It does not offer its owner any proprietary rights or ownership in the actual name.

8. Consider whether it is time to register your brand as a trade mark.

– Once registered, the owner will exclusively own the brand; and can prevent other traders from using the trade mark, or one which is similar, in Australia.
– A lot of business owners forget to protect their brand via trade mark registration.

9. Make sure you own all IP content created for your business and get it in writing.

– The default position is that generally the person you commission to create the content will own the copyright in the works.
– Make sure you get ownership of your content transferred to your business in writing.

Further reading:
Studio Legal blog – Protect your brand via trade mark registration
Studio Legal blog – Dealing with IP rights in creative services agreements

Compliance

10. Check you have all necessary business licences and registrations and they are up-to-date.

Further reading:
Business Victoria – Licenses & registrations 

Next steps

If you need help understanding your legal obligations for 2020, we would be happy to assist!  Please contact us on 03 9521 2128, or email us at hello@studiolegal.com.au.

DISCLAIMER

The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.