Compliance & regulatory advice lawyers Sydney

Staying compliant with the latest laws and regulations can be a challenging task, especially for businesses operating in highly regulated industries. But with Heathfield Grosvenor, you can have peace of mind knowing that you have a team of experts on your side.

Our services include but are not limited to:

  • Advising on the latest compliance and regulatory requirements and best practices
  • Reviewing and updating company policies and procedures to ensure compliance
  • Representing clients in investigations and enforcement actions by regulatory bodies
  • Providing training and education on compliance and regulatory matters
  • Assisting with the development and implementation of internal controls and compliance programs

At Heathfield Grosvenor, we understand the importance of being proactive when it comes to compliance and regulatory issues. Our team of experts will work closely with you to understand your unique business needs and provide tailored solutions that meet your specific requirements.

Don’t let compliance and regulatory issues slow down your business. Contact us today to schedule a consultation with one of our experienced lawyers. We are here to help you navigate the complexities of this area of law and ensure that your business stays compliant and protected.

Related insights

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Australian Branch Overseas Business vs Australian Subsidiary Company

This article focuses on two frequently used methods for foreign companies to carry on business in Australia. Frequently, foreign companies do so either by establishing an Australian branch of their existing overseas business (i.e. it is the overseas business which trades in Australia) or, alternatively, the foreign company establishes an Australian company as a subsidiary of the overseas company (i.e. it is the Australian subsidiary company which trades in Australia). Australian branch of your overseas business A “foreign company” for the purposes of the Corporations Act 2001 (Cth) (Corps Act) can be a body corporate that is incorporated outside Australia, or even an unincorporated body that does not have its head office or principal place of business in Australia. Register as a foreign company: If your “foreign company” wants to carry on business in Australia, your foreign company must be registered as a foreign company under the Corps Act with the Australian Securities and Investments Commission (ASIC). Carrying on business in Australia: Whether or not a foreign company is carrying on business is a question of fact and depends on the circumstances. Section 21 (3) of the Corps Act provides that a body corporate does not carry on business in Australia merely because it: (a)       is or becomes a party to a proceeding or effects settlement of a proceeding or of a claim or dispute; or (b)     holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs; or (c)      maintains a bank account; or (d)     effects a sale through an independent contractor; or (e)      solicits or procures an order that becomes a binding contract only if the order is accepted outside Australia, or the State or Territory, as the case may be; or (f)      creates evidence of a debt, or creates a security interest in property, including PPSA retention of title property of the body; or (g)      secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts; or (h)     conducts an isolated transaction that is completed within a period of 31 days, not being one of a number of similar transactions repeated from time to time; or (j)       invests any of its funds or holds any property. Registration requirements: The following documents must be provided to ASIC in order to register as a foreign company: Certified copy of a current certificate of incorporation or registration, or a document of similar effect; Certified copy of constitution; List of directors containing personal details of those directors; A memorandum stating the powers of any directors who are resident in Australia and members of a local board of directors; Certain information and documents relating to registrable charges on property of the foreign company; Notice of the registered office of the foreign company in its place of origin (if it has one) or otherwise its principal place of business; and Notice of the foreign company’s registered office in Australia which complies with s.601CT of the Corps Act[1]. Australian registered office, local agent, and public officer: In addition to an Australian registered office, you will need to appoint an Australian local agent / representative[2]. The local agent is personally liable for anything the foreign company is required by law to do. You must also appoint a public officer for taxation purposes. ARBN: ASIC will issue your foreign company with an Australian Registered Body Number (ARBN). Foreign companies must ensure that their ARBN and their name (as registered with ASIC) and place of origin are shown on their public documents. Reporting: There are ongoing reporting requirements to ASIC. Australian company as a subsidiary of your overseas business Foreign companies often choose as an alternative to register a proprietary company (i.e. one with less than 50 shareholders) as a subsidiary of the foreign company. In this scenario it is the Australian company which carries on business and trades in Australia. The requirements are similar to registration as a foreign company in the sense that registration with ASIC is required, there must be at least one Australian director, there needs to be an Australian registered office, and there are ongoing reporting requirements with ASIC. Australian companies must maintain a company register and unless an exemption applies lodge audited financial statements each year. The company will need to separately apply for an Australian Business Number, Tax File Number, and typically register for Goods and Services Tax (assuming GST turnover exceeds $75,000) as well as Pay As You Go withholding (if the business employs employees or contractors with whom the business has entered into voluntary agreements to withhold or if the business makes payments to other businesses that don’t quote an Australian Business Number). Other key associated considerations (a)       Business name and trade mark search If the foreign company or Australian subsidiary company wishes to trade under a name other than its own name (as registered with ASIC) it must register it as a business name with ASIC. Whether or not the foreign company is trading under its own name or some other new name, it is important that a trade mark search is undertaken by a professional so as to minimise the risk of potential infringement of existing registered or unregistered rights in the proposed name and/or misleading or deceptive conduct under the Competition and Consumer Act 2010 (Cth).  See here for further information. (b)      Trade mark registration Trade mark registration in Australia confers a monopoly right upon the holder of the trade mark to use the mark in respect of the goods or services for which it is registered. You should ensure that your chosen name does not infringe the rights of other by commissioning a trade mark search and protect your brand by registering your trade mark in respect of your goods and services without delay.  See here for further information. (c)       FIRB approval of foreign investment Foreign investment approval may be required depending on the value of the investment, nature of the investment

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Australian business structures – choosing the right structure for your business

In this issue we examine the key types of business structures through which business can legally be conducted in Australia as follows: 1.     Sole proprietors: individuals who are liable for the business. 2.     Partnerships / limited partnerships: two or more persons or entities who are jointly and individually liable for the business (unless it is a limited partnership in which case the limited partner can enjoy limited liability). 3.     Joint ventures: contractual arrangements between two or more persons entities usually for a limited time or specific project whereby the rights and obligations are governed primarily by the contract. 4.     Companies: separate legal entities which basically have the same rights as natural persons and which can provide limited liability to their owners (i.e. shareholders). This can also include startups. 5.     Trusts: a person or entity that holds assets or income for the benefit of others. Sole proprietors: Sole proprietors or sole traders conduct business as individuals i.e. in their personal capacity. Sole proprietorship is the simplest business structure, but provides no protection to the sole proprietor from debts or other liabilities. A different trading name for the business is often used (formally referred to as a “business name”). If so, the name must be registered in the name of the individual with the Australian Securities and Investments Commission (ASIC). Please refer to the business names section at the end of this paper which applies to all persons and entities wishing to trade under a different name to their own name for additional information. Aside from the usual laws which regulate all businesses in Australia, there are significantly fewer regulatory requirements imposed upon sole proprietors in comparison with other business structures. There is for example no need to publish financial information. Business income is declared separately to the Australian Taxation Office (ATO) but is taxed at the same rate as individual Australian residents for tax purposes. There is a tax free threshold available for individuals of $18,200. The rates of tax for income above $18,200 are as follows: $18,201 – $37,000 = 19% $37,001 – $87,000 = 32.5% $87,001 – $180,000 = 37% $180,001 + = 45% Tax offsets, levies, and deductions may apply depending on individual circumstances. Specific financial / tax advice should be sought from an accountant. Partnerships: A partnership is a relationship between two or more individuals or companies who carry on business in common with a view to profit. The relationship is primarily governed by a written partnership agreement entered into between the partners, as well as the Partnership Acts in each state and territory. Partners (other than limited partners discussed below) are jointly and severally liable for liabilities of the partnership. They also share the profits. As is the case with sole proprietors, there is no need to publish financial information relating to the partnership. The partnership does not pay tax on its income; it is the individual partners who must declare their individual share of the partnership’s net income or loss. The partnership must however lodge a partnership return with the ATO declaring total income less deductible expenses. Individual partners also account for capital gains tax in proportion to their share of each CGT asset, not the partnership itself. Limited partnerships are a species of partnership which need to be registered involving at least one general partner and one limited partner. Limited partners have different rights and obligations and liability is limited to an extent. Limited Partnerships are generally taxed in the same manner as companies. Joint ventures: Joint ventures are essentially contractual arrangements whereby two or more individuals or companies enter into a negotiated agreement to work together to achieve specific goals, usually for a finite amount of time, or the agreement is otherwise terminated. Joint ventures are typically used for specific projects, and are not usually appropriate for ongoing business commitments. Joint ventures are commonly established where each party has different assets / resources which, when combined, can provide advantages / synergies / efficiencies to all parties. The rights of each party primarily depend on the contractual terms of the relevant joint venture agreement that has been negotiated between them. Joint ventures can be incorporated (e.g. where the parties establish a new company as the vehicle for the joint venture), or unincorporated. The tax implications for joint ventures depend upon the parameters of the arrangement. Australian Companies: A company incorporated under the Corporations Act 2001 (Cth) (Corporations Act) is a separate legal entity and has the same rights as a natural person. The company must be registered with ASIC, and ASIC administers the Corporations Act and regulates companies. Australian companies typically provide limited liability for their owners (i.e. shareholders). The directors are responsible for the day to day management of the company. There are numerous obligations and reporting requirements prescribed under the Corporations Act. Companies can either be private (known as proprietary companies) or public (the capital of which is raised from the public e.g. those listed on the Australian Stock Exchange). The different types of company are as follows: company limited by guarantee: liability is limited to a guaranteed amount. This is often used by entities that do not trade. company limited by shares: liability is limited to the relevant amount which is unpaid for the shares held by the particular shareholder unlimited company: liability is unlimited. no liability company: only available to mining companies.  The unpaid amount for shares cannot be called upon. The most common type of company is a company limited by shares. There are different requirements depending on the size of the company. Small business entities pay tax at a rate of 28.5% otherwise most companies pay tax at a rate of 30%. Foreign Companies: Companies that are incorporated in countries other than Australia must register with ASIC if they wish to carry on business in Australia. Trusts: Trusts can carry on business in Australia. The trustee owns and manages the business for the beneficiaries of the trust. Generally, the beneficiaries pay tax on their share of the

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Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017

The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (Bill) was introduced by the House of Representatives on 1 March 2017.  A report of the Senate Education and Employment Legislation Committee is presently due by 9 May 2017.  It is anticipated that the Bill (in its current form or otherwise with amendments) will receive Royal Assent later this year. The Bill addresses the findings of various well publicised reports regarding the exploitation of workers (including migrant workers under temporary work visas).  Briefly, the measures to be introduced include: Higher penalties[1] for “serious contraventions[2]” of various workplace laws[3] (to act as a deterrent); Prohibitions against employers unreasonably requiring their employees to make payments (e.g. requiring their wages to be paid back in cash); Making franchisors and holding companies[4] potentially liable for underpayments by their franchisees or subsidiaries where they “knew or could reasonably be expected to have known” that the contraventions, or similar contraventions, would at least be likely to occur and failed to take reasonable steps[5] to prevent them; Higher penalties for record keeping failures; and Increased evidence gathering / investigatory powers of the Fair Work Ombudsman. The following activities are examples of some reasonable steps which could be taken by franchisors and holding companies (who have a significant degree of influence or control over their franchisees or subsidiaries) to try to avoid a contravention of the Bill (if and when enacted), depending on the size and influence of the relevant franchisor or holding company: ensuring that the franchise agreement or other business arrangements require franchisees to comply with workplace laws. Consider appropriate amendments to your franchise manual for example; providing franchisees or subsidiaries with a copy of the FWO’s free Fair Work Handbook and information notices / circulars; encouraging franchisees or subsidiaries to cooperate with any audits by the FWO; establishing a contact or phone number for employees to report any potential underpayment to the business; and auditing of companies in the network. ……………………… [1] Up to $108,000 for individuals and $540,000 for corporations [2] Where the conduct constituting the contravention was deliberate (i.e. expressly, tacitly, or impliedly authorised) and part of a systematic pattern of conduct bearing in mind the number of contraventions, the period of time during which the contraventions occurred, the effect of the contraventions, and any other relevant considerations [3] e.g. contravening the National Employment Standards, a modern award, enterprise agreement, workplace determination, national minimum wage order, equal remuneration order, certain payment related provisions and record provisions [4] Who have a significant degree of influence or control over the affairs of their franchisee or subsidiary [5] The court will take into account factors such as the size and resources of the franchisor or holding company, their ability to influence or control, any action taken to ensure that the franchisee or subsidiary knew about their obligations under the specific workplace laws, any arrangements in place for assessing compliance with the specific workplace laws, whether there are any complaints related arrangements in place, and the extent to which compliance with the specific workplace laws is encouraged or required by the franchisor or holding company

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Guide to Statutory Demands – What to Do When Served

Intro If a company owes one or more debts which are due and payable to a creditor and which remain outstanding, it is possible that the creditor may decide to serve a statutory demand on the debtor company. The statutory demand may require the debtor company to either pay the debt(s) in full or provide security for the debt(s) to the creditor’s reasonable satisfaction within 21 days after the demand is served on the company[1]. Requirements for a valid demand In summary the requirements for a valid statutory demand on a company are as follows: If the demand relates to a single debt the demand must specify the debt and its amount. If the demand relates to 2 or more debts then the demand must specify the total; The total debt(s) owed must be more than $2,000; The demand must require payment of the debt or the debtor company to secure or compound the debt to the creditors reasonable satisfaction within 21 days of service of the demand on the debtor company; The demand must be in writing, in the prescribed form, and signed by or on behalf of the creditor; and If there is no judgement in respect of the debt then the demand must be accompanied by an affidavit which clearly verifies that the debt is due and payable in full and the affidavit must comply with the rules. Bear in mind the available grounds to have the demand set aside, and the likely costs outcome if it is set aside (discussed below).  All of the circumstances should be considered before deciding to proceed with service of a demand. Time is of the essence If you are on the receiving end of a statutory demand, legal advice should immediately be sought. If the debtor company does not take any action (i.e. comply with the demand, ensure that the demand is no longer in effect, or apply to the relevant Court) within 21 days of service of the demand, and the demand is still in effect, the creditor[2] can immediately apply for the debtor company to be wound up and the Court “must” presume that the debtor company is insolvent[3]. Extensions of time are not possible. Aside from the very harsh effects of winding up proceedings on the debtor company, the onus will be on the debtor company to then prove that it is in fact solvent. In such circumstances the debtor company will not, without the leave of the Court[4], be able to oppose the application on a ground that it might otherwise be able to do so in an application to set aside the statutory demand. Application to set aside a statutory demand If however an application is made to set aside the statutory demand within 21 days of service, supported by an affidavit, and the application to set aside the statutory demand along with the supporting affidavit is served on the person who served the demand on the debtor company within the 21 day period[5], then the application to set aside the demand would be validly issued[6]. Grounds for setting aside the statutory demand The Court must be satisfied either: that there is a “genuine dispute” between the company and the creditor about the existence or amount of the debt; that the debtor company has an offsetting claim[7]; that there is a defect in the demand “and substantial injustice will be caused unless the demand is set aside”; or that some other reason exists why the demand should be set aside[8]. If the demand is set aside then there will be no automatic presumption of insolvency and it is likely that the creditor would have to pay the debtors costs of the application to set aside[9] unless the debtor has behaved unreasonably. ……………………… [1] S.459E of the Corporations Act 2001 (Cth) (Corps Act) [2] being one of the class of persons under s.459P of the Corps Act [3] s.459C (2) (a) of the Corps Act [4] the Court can only grant leave if it is satisfied that the ground is “material” to proving that the company is solvent under s.459S of the Corps Act. [5] Sufficient time must be allowed for service in compliance with s.109X of the Corps Act. Any person receiving a statutory demand must take action immediately. [6] s.459G of the Corps Act [7] s.459H of the Corps Act [8] s.459J of the Corps Act [9] s.459N of the Corps Act

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