Business
Understanding Phantom Share Option Plans
Phantom Share Plans (PSS), also known as shadow equity plans or phantom stock plans, are designed to replicate the benefits of share ownership without granting actual equity to employees. it
If you’re all set to dive into the world of startups in Australia, you’re in for an exciting journey. But there are a few important things you should know first. Whether you’re from Australia or coming from afar, these tips will guide you through the process.
When it comes to structuring your startup in Australia, you’ve got a few options on the table. You can go solo as a sole trader, form a partnership, incorporate a company or opt for a trust.
Each structure has its own advantages and disadvantages, so do a little research and choose the one that suits you best.
Let’s understand all the options available.
This is the simplest and most straightforward startup structure in Australia.
As a sole trader, you’re the sole owner and operator of the business. You can use your own name for your startup. It’s also easy to set up because there are only a few registrations required. It’s a smooth and effortless process.
As the sole operator, you have full control, but you’re also personally liable for the debts of your company.
Whilst it’s suitable for small businesses, if you’re planning to set up your startup business in Australia and involve other owners or investors, this startup structure may not be the best choice.
A partnership is a relationship between two or more persons who operate a business for profit.
Forming a partnership is also fairly simple. There’s not a lot of paperwork to do. But as with a sole trader, there is no legal separation between the business and the owners in a partnership. This means that the owners are personally responsible for all debts of the business.
The partners also share responsibility for their obligations with each other. This is known as ‘joint and several liability’. This means that all partners are jointly and severally responsible for the same obligations. So if a creditor claims unpaid debts, each partner – or all partners – can be held legally responsible.
If you plan to expand your startup or obtain serious financing, a partnership may not be the best choice. In these cases, you should think about setting up a company – this could offer more advantages. I’ll talk about setting up a company in the next section.
So there you have it. Partnerships are a way to make profits together, but remember, that they come with responsibilities. Always keep your long-term goals in mind.
Now let’s talk about companies – a structure that is ideal for startups in Australia aiming for big growth.
A company is like a separate person in the eyes of the law. It can borrow money, get involved in legal matters, and even be part of lawsuits, just like an individual. A key feature of a company is the separation of ownership and control. This means that while the shareholders own the company, the day-to-day decision-making and management are usually done by a separate group called the board of directors.
As a shareholder in a company, your liability is limited. This means your personal assets are usually safe from most of the company’s debts and responsibilities. There are a few exceptions, but in general, you’re protected. Companies can also raise capital, making them a popular choice for Australian startups looking to expand and grow.
But running a company usually means more rules to follow. This can lead to higher startup and running costs. You also have certain duties and responsibilities to fulfil as a director.
If you’re serious about building and growing your business, a company structure is often the way to go. You just need to be aware of the extra responsibilities that come with it.
A trust is a setup where a trustee manages the business on behalf of the owners, called beneficiaries. Operating a business through a trust is a solid option. It’s often chosen for tax benefits in income distribution and asset protection. With this structure, profits can be divided among the beneficiaries, which can lead to tax advantages.
Regardless of whether it’s a company or an individual, the trustee assumes responsibility for the debts and obligations of the trust. A trust doesn’t have its own legal personality. This means that the trustee personally assumes the legal obligations and responsibilities of the trust.
Setting up and winding down trusts can be very costly and complex. This step needs to be carefully considered before committing to it. While trusts offer benefits in terms of income distribution and asset protection, they can also require careful planning and legal assistance to manage them effectively.
If you’re looking for an extra layer of liability protection, it might be a smart move to use a corporate trustee instead of an individual. Moreover, trusts are often used for estate planning to facilitate a smooth transfer of assets to beneficiaries in accordance with the terms of the trust.
Deciding how to set up your startup in Australia is an important step. It depends on what you want to do in the long run.
Here are some factors you should consider before deciding which startup structure you should choose:
If you dream of making your business really big, getting help from others, or even selling it one day, then it’s a good idea to turn it into a company. This way, you can grow and get support from outside investors.
But if you’re happy to run the business by yourself, without getting help or bringing in partners, being a sole trader might be the way to go. It’s a simpler way to do things and suits people who like to work alone. Still, it’s a good idea to think about converting to a company as it can give you extra protection in case of problems.
No matter what you decide to do, it’s really important to think about taxes. Consult a legal advisor who can tell you what’s best for your situation.
If you’re not sure which way is best for your startup, you should consult a startup lawyer. They can give you really helpful advice and help you choose the best option.
In startup world, your unique ideas, cool technologies and creative concepts are the foundation of your business. They make you stand out from the crowd and give you a competitive edge. Protecting your intellectual property (IP) means protecting all those unique ideas, cool technologies and creative ideas. It means legally ensuring others can’t copy, duplicate or profit from your unique creations. It stops others from copying or using it without your say-so. This means others cannot copy or capitalise on what makes your startup special.
Just as it is important to protect your intellectual property, it is equally important not to infringe the intellectual property rights of others. This means you should not use the works or ideas of others without their consent. This is an absolute no-no. And it can have serious consequences.
These serious problems could be like getting caught up in expensive and time-consuming legal disputes. It’s like going down a very costly path. These legal battles can take away resources that could be better used to grow and improve your business.
There is also a risk that your business will be perceived poorly by the public. Imagine becoming known as the startup that doesn’t play by the rules. This could lead to potential friends, investors, and customers not wanting to work with you. Plus, you may also have to pay a lot of money – for example, for legal fees, fines, or giving money to the person who rightfully owns the intellectual property.
Knowledge about various types of intellectual property is key to making wise decisions about safeguarding your IP and avoiding unintentional use of someone else’s work. Let’s focus on 3 important types now:
A trademark is like the special signature of your business. It can be a logo, symbol, word, phrase, or a combination of these that sets your startup apart from others.
In Australia, officially registering your trade mark with IP Australia is a must for legal protection. Once registered, startups have the right to take action against others who use a similar trade mark in a way that could confuse customers. Registering your trade mark early on gives your brand a solid start and helps build trust with your customers.
However, there may be situations where a startup cannot formally register their trade mark immediately. This may be due to a limited budget, other important tasks, or a desire to fine-tune the chosen trade mark before final registration. In these cases, you should at least hire a lawyer to do clearance checks to ensure that there are no clashes with existing trademarks.
Copyright protects original works, including literary, dramatic, musical and intellectual creations. It grants the creator the exclusive right to use and distribute their work.
Copyright also prohibits others from using or reproducing the work without proper authorisation. It’s worth noting that copyright is an automatic right and doesn’t require formal registration. However, registering your work can bring additional legal benefits.
Startups should be careful when using copyrighted material without proper authorisation. This could include copying images, website content, or terms and conditions from other sources. Infringement of copyright in Australia can lead to serious legal consequences.
Instead, startups should prioritise the creation of original content and obtain the appropriate permissions or licences when using content from others. If in doubt, it’s advisable to consult legal experts or intellectual property specialists.
Design rights protect the visual appearance of a product. These rights protect the visual, aesthetic and ornamental aspects of a product that are distinct from its functional features.
For startups, especially those known for unique and eye-catching products, registering design rights is a smart move. It stops others from copying those distinctive looks. When a well-designed product is officially registered, it becomes an important part of a startup’s brand and is remembered by customers.
This registration isn’t just a formality. It’s a strategic move that helps startups in many ways. It protects their creative assets and strengthens their position in the market. It’s an investment in the long-term success of the business.
Keeping sensitive information safe isn’t just a good idea, it’s a must-do. It builds trust between businesses and their customers and keeps them in line with important legal rules like the Privacy Act.
Business Email Compromise is a significant threat to businesses. This sneaky tactic involves cyber tricksters pretending to be someone trustworthy, usually through email, to get employees to reveal sensitive information or make fraudulent payments.
Well, it’s not pretty.
First off, trust takes a hit. In a world where everything’s online, a security slip-up can really damage a startup’s reputation. It takes a lot of time and effort to bounce back.
Then there’s the money side of things. Dealing with a data breach can cost a pretty penny. There are bills for investigating the mess, telling everyone who’s affected, and fixing things up. Plus, there might be legal fees and fines, depending on how big the breach is.
And speaking of legal stuff, Australia has strict rules about handling personal information, thanks to the Privacy Act. Ignoring these rules can lead to some hefty fines and legal trouble.
Losing customers is another big hit. After a security scare, folks might doubt if a startup can keep their info safe. They might start looking for safer options, which isn’t great for business.
That’s why startups need to go all-in on security. Think firewalls, encryption, and regular check-ups on security. Besides that, startups should train their employees to spot and stop tricky emails.
Startups in Australia that make less than $3 million a year don’t have to worry too much about the Privacy Act. That’s because they’re exempt from the Privacy Act, having previously been considered a low privacy risk. But things are changing fast. With the increasing frequency of cyberattacks and data breaches, startup businesses in Australia may not enjoy this privilege for much longer.
The Australian government plans to include small businesses in the scope of the Privacy Act. This shows how important it is for startups to focus on data security and follow the rules. Adapting to these changes is not only a legal requirement, but also an essential part of running a reliable and trustworthy business in today’s digital world.
Building a team requires a solid understanding of employment and workplace laws.
Employment and workplace laws are an important aspect of building a successful startup team. They ensure fair treatment of employees and provide a solid foundation for a positive work environment.
Here are two areas where startups should specifically focus:
When bringing in new team members, you should do it right. This means you should comply with Australian employment laws. You need to make sure that your recruitment practices are sound and that you draw up clear employment contracts. After all, it’s not just about complying with the law, but also about getting off to the right start in a successful working relationship.
When hiring employees, make sure you treat everyone fairly and equally. Lay out the job roles, responsibilities, and any special requirements from the outset. This will help you create a positive working environment from day one.
And when it comes to employment contracts, you should set out all the details: job descriptions, work hours, pay, and any trial periods. This legal document serves to protect both sides, and gives you a clear framework for the employment relationship.
Make sure you pay your startup team correctly. Fair and accurate compensation is not only an ethical obligation, but also a legal requirement. Pay attention to the minimum wage and consider offering more to get the best people.
And don’t forget about retirement savings – you need to contribute about 10% of your employee’s earnings. Superannuation, or retirement savings, is another important aspect of employee compensation. Failure to do so can result in significant fines.
Compliance with the law is a must for startups in Australia. It’s not something that can be skipped or negotiated. It’s the starting point for any successful business startup.
Compliance with the law is like a roadmap to success. It keeps you on track and helps you avoid unnecessary hurdles.
Here are two areas that startups in Australia should focus on:
The Australian Consumer Law (ACL) is a set of rules for businesses, including startups. It is designed to make sure customers are treated fairly and that businesses play by the rules. It is, therefore, very important for a startup to understand how these rules apply.
Here are some key things to keep an eye on:
Well, it’s a trust thing.
If your startup follows these rules, its customers know they can trust your startup. And trust is like gold for a startup. Also, staying on the right side of the ACL keeps you from legal troubles. You can spend your time and resources on growing your business rather than dealing with legal disputes. Plus, in today’s digital age, word travels fast. If your startup gets a bad reputation, it can really hurt.
So, complying with the ACL is not just about complying with the law, it’s also about building a strong and successful business.
Permits and licences are like your startup’s ID cards – they prove it has been given permission to do what it does. They show that the startup has taken the necessary steps to comply with regulations and can carry out its business activities. Not only does this ensure that the startup is on the right side of the law, but it also provides trust and credibility for regulators and potential customers.
What licence and permit your startup needs depends on the kind of business your startup does. Remember, there’s no one-size-fits-all approach here. For example, a food place needs food-related permits, while a shop may need licences for sales-related permits.
If your startup does not have the right permits and licences, this can lead to serious problems. It may face heavy fines, or, in some cases, even the closure of a startup business. This not only affects financially but also reputationally.
Here are a few of the permits and licenses that startups often need to think about:
It can be difficult to obtain the necessary government licences and permits. It takes time and can be complicated. That is where a startup lawyer can really help. They know what you need and how to get it. They have guided others through this process before. When you hire a lawyer to handle your permits, you’re less likely to miss something important. They’ll make sure your startup is doing everything it legally needs to do.
Managing taxes is a must for Australian startups. From registering for Goods and Services Tax (GST) to preparing Business Activity Statements (BAS) and filing tax returns – it’s all part of doing business in Australia.
If your startup has a turnover of more than $75,000 a year, you must register for the Goods and Services Tax (GST). This means you need to collect GST on your sales and pass it on to the Australian Taxation Office (ATO) through your Business Activity Statements (BAS).
The BAS is a summary of all your tax obligations and includes GST, PAYG withholding, and other taxes. It’s a complete picture of what your startup owes. Depending on the size and nature of your business, you submit this statement monthly, quarterly, or annually.
And finally, filing the income tax return. Every year, your startup must submit an income tax return. This statement shows your taxable income, which is used to calculate the amount of income tax payable. You must provide all the details accurately to avoid legal problems.
Insurance is a safety net against various risks and uncertainties that startups are often confronted with. It is no longer a luxury, but a necessity for startups.
While there are various insurance options for startups in Australia, three important ones that every startup should prioritise are:
Startups, the pioneers in their respective fields, offer their customers invaluable expertise. However, even the most cautious startups can sometimes make unintentional mistakes or give the wrong advice. This is especially true for professions such as law, accounting, marketing, IT and consulting. Whether it’s a consultant giving strategic advice or a legal expert providing crucial guidance, the possibility of unintentional errors exists. This is where professional indemnity insurance comes into play – a guardian angel for startups in these sectors.
Let’s take a look at what it typically covers:
Proof of professional indemnity insurance is often a requirement in certain industries or when dealing with cautious clients. It gives clients peace of mind that they’re working with a startup that is committed to providing accurate, reliable, and trustworthy professional services.
Accidents can happen, especially when engaging with the public. Public Liability Insurance stands as a crucial safety net, providing startups with protection against potential liabilities stemming from engagements with customers or visitors. This insurance covers various scenarios, from bodily injury claims to damage caused by your business activities.
It encompasses incidents occurring both on your business premises and as a direct result of your operations. Public Liability Insurance further extends its protection to include third-party property, ensuring coverage for damages from your business’s activities or products.
Importantly, this insurance goes beyond covering legal defence costs; it also includes provisions for settlements or judgments that may be awarded. It serves as a comprehensive shield, not only safeguarding your startup’s financial stability but also providing peace of mind in the face of unexpected events.
Workers’ compensation insurance is an important requirement for startups that have employees. It provides financial protection for both the company and its employees in case of work-related injuries or illnesses. For this reason, startups with employees are required by law to have Workers’ Compensation Insurance.
A Workers’ compensation insurance typically covers:
A startup lawyer provides critical legal advice and helps navigate complex regulations, contracts, and compliance issues. They provide strategic advice, protect intellectual property and help with important negotiations to ensure the legal stability of the business.
Yes, a trademark is important for startups because it protects the identity of your brand and prevents unauthorised use. It can also help to avoid legal disputes, increase brand awareness and increase business value.
Some benefits of trademark registration for startups include:
Starting a startup in Australia requires legal steps such as business registration, choosing a suitable structure, obtaining the necessary licences, complying with tax regulations, and understanding employment laws. A startup lawyer can guide you through these requirements.
The right business structure has a profound impact on the legal, financial, and operational aspects of the business. The structure will determine issues such as personal liability, tax obligations and the ability to raise capital. Whether opting for sole trader, partnership, company or trust, the decision influences the flexibility, governance, and long-term growth potential of the startup.
Costs vary depending on experience, services needed, and complexity. Some startup lawyers charge hourly rates, while others offer fixed fees. At Prosper Law, we operate as an online law firm and specialise in providing transparent and fixed-fee legal services.
We provide legal advice to business and individuals across Australia, no matter which State or Territory you are located. Our easy-to-access, online legal services mean that you can talk to our lawyers wherever you are, at a time that suits you.
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