Business & Commercial
Commercial and business law covers a range of issues that arise during the course of conducting business in Australia. Whether you are starting a new venture, managing an existing business, or involved in a commercial dispute, it is important to have the guidance of an experienced lawyer who can help you navigate the legal landscape and achieve your goals. We support start-ups and small businesses of all types operating across various industries. We can assist with:
- Business structure advice – sole traders, partnerships, trusts and corporations
- Company and business registration
- ABN, GST, TFN, PAYG application
- Trusts, partnerships, joint venture agreements
- Shareholder agreements and company secretarial documents
- Guarantees and security documents
- Buying and selling businesses
- Retail and commercial lease agreements
- Employment contracts, employee option plans, and confidentiality agreements
- E-commerce, website terms of use and privacy policy agreements
Business Structures
One of the key aspects of commercial and business law is structuring. This involves determining the most appropriate legal structure for your business, whether it be a sole trader, partnership, company, or trust. We can provide guidance so you can form the right strategy to start your venture.
Operating as a sole trader with an Australian Business Number (ABN) is a simple option for a small-scale enterprise. Under this structure, however, you will be solely responsible for all debts and liabilities of the business.
If you are starting a venture with business partners, a partnership may suit your needs. Having a written partnership agreement can help steer the direction and management of the business and set out processes to navigate various issues and resolve disputes. In a partnership, it is important to understand that all debts and liabilities are shared by the partners even if not all of the partners are responsible for those debts and liabilities. For this reason, some prefer the protection of a limited liability company.
A company, registered with the Australian Securities and Investments Commission (ASIC), operates as a separate legal entity, and may provide a better solution when it comes to the tax payable on your profits.
To maximise the protections provided by a company, a lawyer may suggest that you form a trust. A trust may offer tax benefits and asset protection; however, they are complex and must be correctly structured and managed to ensure they are compliant and achieve their objectives.
A well-drafted shareholder agreement sets out the rights, responsibilities, and liabilities of each co-owner, putting them on the ‘same page’. The agreement can help minimise business interruption and potential disputes by setting out clear processes on how certain events or contingencies will be managed before they actually occur.
Commercial and Retail Leasing
Most businesses require physical space to operate their business venture, whether this is a retail shop, commercial office, or a storage space to house excess stock. A commercial lease governs the relationship between a lessor and lessee regarding the lessee’s right to occupy premises to carry out their business operations.
A commercial lease is not only a serious financial undertaking, but the terms of a lease may restrict how you run your business. As such, you should never sign a commercial lease without having it reviewed by your lawyer who can identify areas where the lease may be too restrictive or punitive and may be able to negotiate fairer terms with the landlord.
If the leased premises are defined as ‘retail’ under the relevant retail leasing legislation in your jurisdiction, the arrangements will be governed by that legislation and the lessor will need to comply with specific disclosure requirements.
Leasing disputes can arise if a lease agreement is unclear or does not have clauses to deal with the many contingencies that may occur during the term of the lease. Sometimes, the parties simply do not fully understand their rights and responsibilities under the agreement. A lawyer can help minimise potential disputes by preparing, reviewing, and negotiating lease terms, and explaining key provisions so that you understand your legal position from the outset.
Employment Contracts
Employment contracts are essential for managing the employer/employee relationship and setting out expectations from the beginning of the employment journey.
As a minimum, an employment agreement should include details of the employee’s duties, hours of work, pay, and leave entitlements, as well as information about termination. Ideally, it should also include any specific terms or conditions that are important to your business, such as confidentiality agreements, non-compete clauses, or intellectual property rights.
It is vital that the pay, conditions, and entitlements contained in the employment agreement comply with the National Employment Standards (NES). This includes provisions for annual leave, sick leave, parental leave, and other types of leave. You cannot contract out of the NES. If your agreement offers less than the minimum entitlements set out in the NES, your agreement will not be enforceable in relation to those parts.