Protecting your brand & trade mark registration
Before choosing your brand: We have previously discussed important considerations when choosing the name of your business. Before you decide upon your brand (which may consist of a letter, word, name, number, logo, aspect of packaging, shape, colour, sound or scent) and launch it (including before you register your domain name) a trade mark availability search should be conducted by a professional to determine whether there are any existing registered or unregistered rights which may exist in similar brands. Benefits of trade mark registration: The mere registration of your company name or business name with the Australian Securities and Investments Commission (ASIC) does not protect your brand identity, or provide registered trade mark rights in your brand. Registration with ASIC is a legal obligation. However, registration as a trade mark with the Australian Trade Marks Office can provide your business with: an exclusive statutory monopoly to use your registered brand identity in respect of the goods and/or services for which it is registered in Australia; an easy way to prevent cybersquatting (the registration of a domain name which incorporates your brand by others); much easier and cheaper enforcement of your rights in your brand if someone else infringes your rights, for example, by using a brand which is either substantially identical or deceptively similar to your brand in respect of the same or similar goods and/or services; and a registered “asset” which can be licensed, assigned, and monetised. Only registered trade marks can apply the ® symbol. This puts others on notice that your brand is registered, and that you are likely to prosecute infringement. Costs: Your brand is your identity. It is valuable property to which your goodwill and reputation are attached. People who infringe your brand may derive benefits from your hard work or diminish your brand’s value through their actions (e.g. by selling inferior goods or services). Registration as a trade mark is typically a fairly inexpensive exercise if your brand does not currently infringe the rights of others (please refer to our earlier article here for further information). Goods and services are divided into “classes”. It is possible to obtain protection with IP Australia in one class for $330. This is a drop in the ocean when compared to the potential costs to your business of non-registration. Registration lasts for 10 years and is renewable. We provide trade mark registration advice and assistance at cost effective fixed fee rates.
Do I Need a Privacy Policy on My Website in Australia?
The answer is mostly likely “yes”, even if you are a small business with annual turnover of less than $3,000,000. Under the Privacy Act 1988 (Cth) (Privacy Act), various types of entities are, in summary, required to comply with a prescribed set of 13 “Australian Privacy Principles”. The first principle requires a clearly expressed and up to date privacy policy, so that personal information is managed in an open and transparent manner. Government agencies, private and not for profit organisations including individuals (e.g. sole traders), companies, partnerships, unincorporated associations, and trusts are all required to comply. There are exemptions. For example, small businesses (i.e. those with annual turnover of less than $3,000,000 and which are not for example related to a larger company that is subject to the Privacy Act) might be exempt in limited circumstances. However, the practical reality is that as soon as small businesses handle any personal information and trade in personal information, they will be caught under the Privacy Act. Various other scenarios may also render small businesses liable to compliance with the Australian Privacy Principles (for example, small businesses who provide services to or on behalf of government agencies, those who are “reporting entities” (a broad category) under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), or those who operate residential tenancy databases etc). Furthermore, as soon as a business receives Tax File Number information about an individual (for example in a Tax File Number declaration upon the commencement of employment), certain obligations arise under the Privacy (Tax File Number) Rule 2015 (issued under s.17 of the Privacy Act). Employers for example would be best advised to ensure that they have a privacy policy (and consent covering purpose of collection, use, disclosure, storage etc) in place, compliant contractual clauses, and provide collection notices where appropriate. Non compliance with the Privacy Act can lead to significant fines. As a bare minimum, a privacy policy needs to cover the following: (a) the kinds of personal information that the entity collects and holds; (b) how the entity collects and holds personal information; (c) the purposes for which the entity collects, holds, uses and discloses personal information; (d) how an individual may access personal information about the individual that is held by the entity and seek the correction of such information; (e) how an individual may complain about a breach of the Australian Privacy Principles, or a registered APP code (if any) that binds the entity, and how the entity will deal with such a complaint; (f) whether the entity is likely to disclose personal information to overseas recipients; (g) if the entity is likely to disclose personal information to overseas recipients, the countries in which such recipients are likely to be located if it is practicable to specify those countries in the policy.
Minimum Employment Terms and Conditions in Australia
Employers who wish to sponsor skilled employees from overseas are, in summary, required under the subclass 457 scheme to provide terms and conditions which are at least equivalent to those which an Australian citizen or permanent resident would achieve performing the same work at the same location. This is an ongoing requirement not least because it is a 457 sponsorship condition, and severe sanctions can result in non-compliance. Its primary purpose is to prevent the undercutting of the local Australian labour market, protect overseas employees from exploitation, and maintain integrity in the scheme. In Australia, the employment relationship is governed or affected by a number of different parameters, all of which are variable depending upon the circumstances: Applicable Federal, State and/or Territory legislation: These include the Fair Work Act 2009 (Cth). The Fair Work Act establishes the National Employment Standards. Industrial instruments: There are various awards and statutory agreements / enterprise agreements which may impact upon the minimum terms and conditions with which an employee must be provided (for example by amending or adding to the National Employment Standards, and setting minimum wages for particular occupations). Contract of employment: This is agreed between the employer and the employee. Terms are both express and implied into the contract: Express terms: These are usually the written terms and conditions of the employment contract but may include terms and conditions which have been agreed verbally and also provisions of internal employment policies and any other terms (if they have been incorporated into the contract by reference for example). Implied terms: Terms can be implied into the employment relationship through custom, and the common law also implies terms into every employment relationship. Importantly, the contractual terms cannot override or detract from legislation and so the contract needs to provide terms and conditions which are at least equivalent to the terms and conditions required by applicable law (referred to under points 1 and 2 above). It is therefore important to be mindful of the tasks and functions of the occupation in question (and any changes from time to time which may alter the nature of the role), and the minimum requirements which are prescribed by the law for that particular occupation. In addition, the obligation upon 457 visa employer sponsors is broader in the sense that market salary rate conditions (not merely the requirement to pay a minimum wage) are also relevant, and market salary rates may fluctuate from time to time.
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
Legal Considerations When Choosing A Business Name in Australia
When it comes to choosing the name of your business, there are various key legal factors that you should consider. Existing registered and unregistered rights may already exist in similar names. The mere registration of a business or company name with the Australian Securities & Investments Commission (ASIC) does not avoid any of the following issues, and you should consider these key points before registration of any business, company, or domain name: 1. Existing registered trade marks under the Trade Marks Act 1995 (Cth) A trade mark is, in summary, a sign (e.g. a letter, word, name, number, brand, logo, aspect of packaging, shape, colour, sound or scent) that is used to distinguish the goods or services of a trader from those of others. Words that describe the goods or services (e.g. lawyers in relation to a law firm) are difficult to protect because they are words which various traders in the ordinary course of their business would use in connection with their goods or services. As such they are not therefore distinctive. Make sure your name / sign is distinctive if you want more protection. Trade marks can be registered with the Australian Trade Marks Office (ATMO). Registration of the trade mark gives the trader a monopoly right over that trade mark in relation to the goods or services, or similar goods or services, in respect of which the trade mark is registered. Importantly, this protection extends to trade marks which are substantially identical or deceptively similar to the registered trade mark. Therefore, if your chosen name / logo / sign is substantially identical or deceptively similar to an existing trade mark, and you use your sign in relation to the same or similar goods or services, you run the risk of infringement and a claim for damages (unless a defence applies). A search of the Australian Trade Marks Office Online Search System should be conducted by a professional. 2. Passing off In addition, even if a trade mark has not been registered with the ATMO, business reputation is protected under the common law tort of passing off. Passing off involves the misappropriation by deception of a trader’s reputation and goodwill. Any deceptive conduct (for example a representation or name that falsely suggests some connection with another person’s product or business) where there is at least the threat of damage to a trader’s reputation and goodwill could constitute passing off. A trader’s reputation may attach to various means by which the public recognise their product or services from those of others such as their name, get-up / packaging, colour schemes, etc. You may be required to account for your profits in an action for passing off. Again, words that describe the product or service or other indicia such as packaging which are purely functional are much harder to protect. You should conduct a search of the marketplace to ascertain whether any existing businesses have reputation in your proposed name or sign. 3. Misleading and deceptive conduct under the Australian Consumer Law The Australian Consumer Law is found in Schedule 2 of the Competition and Consumer Act 2010 (Cth). Most relevantly, a person (which includes a corporation) must not engage in conduct that is misleading or deceptive or which is likely to mislead or deceive. Once you have decided upon a name that is available and which will not offend any of the above principles, you should register it as a trade mark with the ATMO in respect of your goods and services and also with ASIC without delay.
How to Manage an Employee’s Performance & Associated Disciplinary Action
1 ISSUE You have an employee who is under-performing in their work or behaviour and you wish to manage their performance and monitor it moving forwards. You may consider that a failure to improve in accordance with set guidelines should result in some form of disciplinary action[1]. In doing so it is important to consider various factors. This article does not cover situations where immediate dismissal as a result of serious / gross misconduct is appropriate. 2 CONSIDERATIONS 2.1 The terms of the employment contract and any relevant industrial award You need to consider the terms of the relevant employment contract and any other relevant provisions which may apply as a result of an applicable award. These may dictate part of the process which must be undertaken and/or the available disciplinary actions the breach of which may result in an unfair dismissal claim. 2.2 Policy and procedure for dismissal & adherence to policy Ensure that you have in place a policy which covers performance management procedures and adhere to them. Contact us for assistance in this regard. 2.3 Unfair dismissal – Part 3-2 of the Fair Work Act 2009 (Cth) (Act) Protected employees: National system employees are protected against “unfair” dismissal if they have completed at least 6 months of employment and a modern award or enterprise agreement applies to them. Alternatively if they have worked for more than 6 months for the employer and their income is less than the high income threshold then they will also be protected[2]. Unfairness: A person has been unfairly dismissed if: the person has been dismissed[3]; the dismissal was harsh, unjust, or unreasonable[4]; the dismissal was not consistent with the Small Business Fair Dismissal Code; and the dismissal was not a case of genuine redundancy[5]. Harsh, unjust or unreasonable: The Fair Work Commission can take into account any matter that it considers relevant but “must” take into account the following in deciding whether or not the dismissal was harsh, unjust, or unreasonable: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); (b) whether the person was notified of that reason; (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; (e) if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal; (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal. Therefore, be upfront (don’t ambush), reasonable, clear, give warning(s), and allow the employee to have a support person present during discussion(s). Listen to the employee before making a decision. Small businesses & unfair dismissal: Importantly, employers who employ fewer than 15 employees are covered by unique provisions contained in the Small Business Fair Dismissal Code. Furthermore, employees who have worked for less than 12 months for small business employers are not eligible to make a claim for unfair dismissal. Otherwise, small business dismissals which comply with the Small Business Fair Dismissal Code are deemed to be fair. 2.4 General protections provisions – Part 3-1 of the Act – adverse action and workplace rights Briefly, a person must not take adverse action against another person in relation to the exercise of a workplace right by that other person. The term “workplace right” is very broad in scope and includes, without limitation any process under a workplace law e.g. cashing out leave, making flexibility arrangements, taking parental leave, taking industrial action, temporary absences etc etc. The term “adverse action” is also similarly broad, and includes, without limitation, dismissal or the alteration of the employees position to the employees prejudice. Employees are also protected from coercion and undue influence as well as misrepresentation about workplace rights. So, seek advice, and make sure your reasons for disciplining are only performance related. 2.5 Bullying – Part 6-4B of the Act Behaving unreasonably towards the employee where that behaviour creates a risk to health and safety could also constitute bullying. However, reasonable management action carried out in a reasonable manner does not constitute bullying. 2.6 Discrimination legislation – protected attributes Ensure that you do not implement your performance management program in an inappropriate manner where the employee has a protected attribute[6] to minimise the risk of falling foul of anti-discrimination legislation. 2.7 Proportionality of the disciplinary action Any performance management program should be closely monitored. The disciplinary action taken should be proportionate to the conduct of the employee. Record and confirm everything in writing. ……………………………… [1] For example in the form of a warning or dismissal [2] s.382 of the Act. See also ss383 and 384. [3] Either terminated by the employer or because the employee was forced to resign because of the employers conduct. See s.386 of the Act for further details. [4] See s.387 of the Act [5] See s.389 of the Act [6] Race, colour, sex, sexual preference, age, physicial or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion or national extraction or social origin.
Online copyright infringement of movies and website blocking by CSPs: Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503 (15 December 2016)
The Federal Court of Australia has made the first reported orders under the new s.115A of the Copyright Act 1958 (Cth) by requiring numerous Australian carriage service providers to disable access[1], for up to 3 years[2], to various websites whose “primary purpose” is the infringement or facilitation of infringement of copyright. The Copyright Amendment (Online Infringement) Act 2015 (Cth) amended the Copyright Act 1958 (Cth) by introducing s.115A. s.115A provides that the Federal Court of Australia may, on application by the owner of a copyright, grant an injunction to require a carriage service provider to take reasonable steps to disable access to an online location if: a carriage service provider provides access to an online location outside Australia; the online location infringes, or facilitates the infringement of, the copyright; and the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia). The purpose of the scheme under the new s.115A is to allow a specific and targeted remedy to prevent online locations which flagrantly disregard the rights of copyright owners from facilitating access to infringing copyright content. Knowledge or intention on the part of the carriage service provider is not required; the specific and targeted remedy exists simply to bring an end to access to such online locations without the need for lengthy factual enquiries associated with copyright infringement actions of the kind seen in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16. There is a high threshold test to be satisfied, namely, that the “primary purpose” of the online location must be to infringe. The case[3] provides guidance on the evidence that will satisfy a Court in this regard. The time at which the Court must be satisfied of the elements in s.115A is the time of granting of the injunction. The making of the application for an injunction must be notified to both the carriage service provider and the person operating the alleged infringing online location (unless their identity cannot be ascertained despite reasonable efforts). The rights owners were required to pay the arguably nominal compliance costs of the carriage service providers in complying with the orders (calculated as a sum per domain name), in addition to the carriage service providers’ legal costs. The carriage service providers were not awarded / not all of them sought their costs of setting up and configuring the necessary systems (i.e. website blocking systems) in order to comply with s.115A. s.115A (9) provides that the carriage service provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings. It would seem that such costs should be quantifiable by reference to “the proceedings”, if considered commercial to spend time undertaking that exercise. ………………………… [1] By implementing DNS blocking, IP address blocking, URL blocking or any other alternative technical means of disabling access to the online locations (outside Australia) of various websites whose primary purpose is the infringement or facilitation of the infringement of copyright [2] Capable of extension for another 3 years in the case of continued infringement [3] As does the revised explanatory memorandum to the Copyright Amendment (Online Infringement) Bill 2015
Unfair Contract Term Protections for Small Businesses
BACKGROUND Following public consultation processes, new laws[1] came into force on 12 November 2016 which extended existing consumer protection laws against unfair contract terms to “small business contracts” (e.g. business to business contracts). Under these laws, small businesses can also have an “unfair” term in a “standard form contract” declared as void in specified circumstances. In doing so they would not have to comply with the term. Findings identified in the Explanatory Memorandum to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015 suggest that, like consumers, small businesses are vulnerable to the inclusion of unfair terms in standard form contracts as they often lack: the resources to identify unfair terms, appreciate their significance and determine whether they can manage the associated risks; the resources to engage in negotiations over the terms of a contract; the bargaining power to successfully negotiate the terms of a contract; and/or the resources and bargaining power to resist the enforcement of unfair contract terms. The stated objective of this reform[2] is to promote fairness in contractual dealings with small businesses with regard to standard form contracts. This will reduce small business detriment and have positive impacts on the broader economy by increasing small business certainty and confidence, and providing for a more efficient allocation of risk. WHEN DOES PROTECTION TO CONSUMERS / SMALL BUSINESSES APPLY The unfair contract terms protection provisions are contained in ss23 – 28 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law). Section 23 provides that a term of a “consumer contract” and “small business contract” is void if the term is “unfair” and the contract is a “standard form contract”. We do not examine consumer contracts which were protected prior to the amendments but examine the concepts of “small business contracts”, “standard form contracts” and when terms will be considered to be “unfair”. Small business contract In summary, in order for the contract to be a small business contract, each of the following must apply: The contract must be for the supply of goods or services or a sale or grant of an interest in land; At least one of the parties to the contract is a business that employs less than 20 people[3]; and The upfront price[4] payable under the contract is $300,000 or less, or the contract is for a duration of more than 12 months and the upfront price is $1,000,000 or less. Standard form contracts Standard form contracts are everywhere for example IT services contracts, advertising services contracts, mobile phone contracts, licences of office space, gym memberships etc. They are an efficient and effective way for businesses to contract. The Court will take into account any facts that it considers to be relevant however at the time of writing it “must” take into account the following in determining whether a contract is a standard form contract: whether one of the parties has all or most of the bargaining power relating to the transaction; whether the contract was prepared by one party before any discussion relating to the transaction occurred between the parties; whether another party was, in effect, required either to accept or reject the terms of the contract (other than certain excluded terms discussed below)in the form in which they were presented; whether another party was given an effective opportunity to negotiate the terms (other than certain excluded terms discussed below); and whether the terms of the contract (other than certain excluded terms discussed below) take into account the specific characteristics of another party or the particular transaction. Excluded terms: the protection does not extend to terms to the extent that they define the main subject matter of the contract, set the upfront price payable under the contract, or are terms required by law. Excluded contracts: the protection does not extend to contracts which are individually negotiated, or to certain types of contracts such as contracts of marine salvage or towage, a charterparty of a ship, and contracts for the carriage of goods by ship, constitutions of companies or managed investment schemes or other kinds of bodies. After 12 November 2016: The contract needs to have been entered into, renewed or rolled over after 12 November 2016. The law also applies to amendments to contracts after 12 November 2016 but not to the terms which have not been amended. Unfair terms There is a three limb test to unfairness. A term will be “unfair” if: it would cause a significant imbalance to the parties’ rights and obligations arising under the contract; it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by them; and it would cause detriment to a party if it were to be applied or relied on. The Court “must” take into account the extent to which the term was transparent[5] and the contract as a whole. Make sure your print is not too fine! Some prescribed examples of the types of terms which may be unfair are as follows: a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract; a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract; a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract; a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract; a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract; a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract; a term that permits, or has the effect of permitting, one party unilaterally to vary the characteristics of
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