Legal Health Checklist

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Table of Contents

• Business Structure
• Employees and Contractors   
• Intellectual Property
• Commercial Contracts
• Data and Privacy
• Dealing with Customers and Clients
• Key Takeaways

To give your business every opportunity to grow and thrive, it is essential to have the right structure, contracts, policies and procedures in place. Not only will this reduce your risk of legal disputes, but it will also increase your business’ chances of success. This legal health checklist will help you to identify areas in your business that may need further protection or assistance to ensure that you are legally compliant. Simply review the list below in each category and identify any gaps that need addressing.

Business Structure

• Business structure (e.g. company, partnership or sole trader) is appropriate for growth, liability and tax
• Business has a dual company (holding company and operating company) to reduce risk and offer a flexible structure for growth
• Shareholders agreement (if operating as a company and more than one shareholder)
• All business licences are correct and up to date.

Employees and Contractors   

• Workers are correctly classified as employees or contractors (and the business has considered any sham contracting risks)
• Employees and contractors have current contracts in place
• Business is complying with its record keeping obligations under the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth)
• Business has core policies on Anti-Bullying, Discrimination and Harassment, WHS and Information Technology
• Employee wages are compliant with the national minimum wage and/or modern award rates as applicable.

Intellectual Property

• Business holds a trade mark to protect the business’ name and logo
• New innovations unique to your business have been identified and you have considered whether a patent is appropriate to protect your intellectual property
• Any brands or product line names used by the business have been cleared for use (to avoid infringement of third party marks) and registered as trade marks
• Business has considered whether it requires overseas IP protection for goods being exported or manufactured overseas
• Regularly check whether any other business is encroaching on your trade marks and if so, action has been taken to protect your trade mark
• Regularly check that the IP portfolio (any trade marks, designs, patents) remains up to date to identify any gaps or changes in ownership, etc.

Commercial Contracts

• Distribution agreements are in place with individuals or businesses who distribute your goods or services
• Service agreements are in place with individuals or businesses who supply goods or services to your business
• Client agreements are in place with clients you supply goods or services to. If you have clients in NSW, your agreements do not disadvantage NSW consumers
• Agreements and licences are in place for software being used by your business.

Data and Privacy

• Business is compliant with privacy legislation related to the collection, use, holding and disclosure of personal information (and has considered its obligations in Australia and overseas, such as in Europe)
• Business understands its obligations related to using personal information for marketing purposes
• Privacy policy is current and reflects Australian privacy law
• Business has a collection notice in place and uses it to notify individuals when it is collecting their personal information
• Business has processes in place to ensure data that sits on third-party systems or is disclosed to third parties, including overseas, is protected
• Physical assets that hold personal information (such as servers) are in a secure location with appropriate security safeguards in place
• Business has appropriate systems in place in relation to the retention, storage and disposal of personal information and company documents.

Dealing with Customers and Clients

Online Business

The online business has:

• terms and conditions that comply with Australian Consumer Law;
• for an online store, a clearly defined delivery and refunds policy;
• if a marketplace, terms which articulate the marketplace’s responsibilities, including how it facilitates the connection and, if applicable, payments between buyers and sellers;
• for software as a service, a ‘SaaS’ agreement setting out the software being licensed to customers, and, where there are end users of the software, an end user licence agreement; and
• all policies are easily accessible by the customer.

Physical Business

A business operating from a physical shopfront has a:

• signed lease; 
• health and safety policy; and
• COVID-safe policy.

Additionally, the business owns the licence for its website or mobile application. 

Key Takeaways

If your business needs assistance with legal compliance, our experienced commercial lawyers can assist with reviewing or drafting agreements as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.