In the March issue of BucketOrange Magazine, we chat with Nicola Martin and Chiara Rawlins from McCabe Curwood Lawyers in Sydney to answer some of the internet’s most frequently asked questions for small business owners and employers in the midst of the COVID-19 crisis.

What general obligations do business owners have to staff during the crisis? 

“At all times, employers owe an overarching obligation to ensure, so far as is reasonably practicable, the health and safety of all its workers, including volunteers, and a duty to ensure the health and safety of other persons is not put at risk from work carried out.  This requirement arises from section 19 of the Work Health and Safety Act 2011 (WHS Act), and includes an obligation for employers to identify risks at the workplace, and take whatever reasonably practicable steps to eliminate those risks.  In circumstances where it is not practicable to eliminate a risk, employers must take steps to minimise the risk.

Despite the unprecedented circumstances arising from the current coronavirus pandemic, it is important to remember that an employer continues to owe these general work health and safety obligations to its workers.”

Does an employer have a specific obligation to protect staff from coronavirus?

“As set out above, section 19 of the WHS Act imposes a general obligation upon employers to ensure the health and safety of its workers, so far as reasonably practicable.

To meet these obligations during the coronavirus pandemic, it is necessary for employers to adopt strategies to minimise the risk of employees being infected by coronavirus in the course of their work. 

What control measures are implemented will largely depend upon the specific circumstances of your workplace, and what work is being carried out.  However, it is generally recommended that steps such as the following should be taken across all workplaces:

• Actively monitoring news and government sources for updated recommendations and restrictions
• Ensuring employees are aware of the symptoms of coronavirus, as well as how and when to take leave
• Require employees to practice good hygiene, including frequent hand washing and limiting contact with others
• Updating control measures as and when necessary – the situation globally is moving quickly, and employers need to ensure they remain agile in developing and updating control measures

Employers should also ensure that any decisions made in response to the pandemic are not considered discriminatory for a prohibitive reason, with health and safety laws providing offences for engaging in such conduct.”

What are employer obligations to provide a safe workplace for all staff, particularly those who are immunocompromised? Is there a greater obligation owed to vulnerable members of staff?

“If an employer is aware of a medical condition that may place an employee at greater risk of contracting coronavirus or otherwise at risk of severe complications from coronavirus, such as if the employee is immunocompromised or has a chronic medical condition, the employer will have a general obligation to provide a safe workplace to that staff member. 

Once an employer is on notice of any underlying condition, this underlying condition must be taken into consideration when giving directions or instructions to that particular employee. 

For example, if an employee notifies their employer that they are immunocompromised, it may be best practice to allow them to work from home where possible in order to minimise any risk associated with performing work in the office during the pandemic.

In order to ensure that the employer’s expectations and directions to the employee are appropriate in the circumstances, it would be reasonable for an employer to request an employee to provide medical evidence of any underlying condition or medication that may place the employee in the “at risk group”.

Is an employer liable if an employee contracts coronavirus while at work? 

“If the exposure to COVID-19 occurred in the work environment the work exposure was a significant contributing factor to the COVID-19 diagnosis then an employee may be entitled to workers compensation (which is leave, which is paid under a workers compensation insurance policy). 

Given exposure to coronavirus can occur anywhere, and particularly as Australia sees an increase in the number of cases, it may be difficult to, in fact, establish that the exposure occurred in the work environment and that employment was a significant contributing factor. Note that workers compensation laws vary from State to State and Territory to Territory. An employer could potentially be liable under WHS laws if an employee contracted coronavirus in the work environment because the employer did not take reasonably practicable steps to eliminate or reduce the risks over which the employer had control or influence.”

Can an employer force staff to take leave?

“Generally, an employer cannot force an employee to take leave, however, there are some exceptions. Under the Fair Work Act 2009, an employer can direct an employee to take annual leave if it is reasonable in all the circumstances.

Examples of this are when a workplace is having a shutdown (usually over the festive period but it does not have to be just at this time) or when an employee has ‘excessive leave’. Employees who are covered by Modern Award and Enterprise Agreements may have specific provisions relating to these issues. For example, in some Modern Awards there is the requirement for employers to provide employees with a minimum of 4 weeks of notice for any shutdown.  

For long service leave, the ability of an employer to direct employees to take long service leave depends on the relevant State or Territory long service leave jurisdiction. In NSW an employer can direct an employee to take long service leave once the employee has over 10 years of service on the provision of 1 month’s notice.

An employer may also ask employees to take annual or long service leave in an effort to reduce costs as a measure to avoid job losses. In this type of situation it is up to the employee whether they agree to take the leave or not.”

What leave entitlements are employers obligated to pay staff in these circumstances?

“If an employee has contracted the virus, or is caring for a family member who has contracted the virus, the employee will be able to access their paid personal/carer’s leave. If the employee has exhausted all paid personal/carer’s leave, an employer could agree with the employee that they could utilise any other kind of paid accrued leave.

There remains the question of whether employees would be able to access their personal leave if they have exhausted their accrued annual leave and long service leave and are unable to attend work. Typically employees are not entitled to use personal/carer’s leave if they are not unwell or caring for a family member, however, some employers are allowing employees in this situation to access their personal given the unprecedented circumstances.

As noted above, if an employee is in self-isolation because of a government directive, but is not actually unwell, they would be able to access their annual leave during their period of absence from work.

However, if an employee is directed to stay at home by their employer as a precautionary measure, yet they are ready, willing and able to work, the employee should be paid their ordinary wages for their ordinary hours of work.

That being said, employers should explore whether the employee would be able to work from home in the first instance.”

Can employer prevent staff from travelling?

“Employers should be following Government guidelines when determining whether their staff should be permitted to travel. Most employers should be directing their employees to not undertake business-related travel to mitigate the risk of their employees contracting the coronavirus. 

With respect to preventing staff from taking personal travel, this could be considered a lawful, reasonable direction if the employer has concerns about their WHS obligations. In any case, the employee should be notifying the employer of any travel plans (even domestic ones) before taking any leave. 

We are seeing States closing their borders and international travel extremely restricted. On this basis employers issuing a direction that is in-keeping with the guidelines regarding social distancing and non-essential travel would be acting reasonably.”

Can an employer direct staff to work from home?

“Yes, in the circumstances this would likely be considered a lawful reasonable direction and it may well be unreasonable to require employees to attend a workplace if they could otherwise perform their role effectively from home.

However, employers should note that their WHS obligations still apply even when employees are working remotely. Employers should consider sending out working-from-home guidelines to employees (which, in effect, act as a shortened risk-assessment of the home work environment) so employees are aware of their own responsibilities to set up safe work practices at home.”

Can an employer direct staff to come to work? What if that person is immunocompromised, or lives with someone who is vulnerable?

“Potentially, but there is no one-size fits all answer. It very much depends on the circumstances. The situation is changing daily.

Unless there is a Government direction for us to remain away from work, not travel (unless essential) or to isolate or quarantine, it may be a lawful and reasonable direction to attend work.  

It will depend on a range of factors but the overarching duty for the employer is to take all steps reasonably practicable to eliminate, or if the risk cannot be eliminated, to reduce any risk.

Relevant considerations will be:

• Can the employee work from home?
• Why does the employer require the employee to attend the office?
• Does the employee work in essential services?

If the employee is immunocompromised, or lives with someone who is vulnerable, then an employer will likely need to adjust any general directions made to its workforce for these individuals.

As noted above, if an employer is aware of a medical condition that may place an employee at greater risk of contracting coronavirus or otherwise at risk of severe complications from coronavirus, such as if the employee is immunocompromised or lives with someone who is vulnerable, the employer will have a general obligation to provide a safe workplace to that staff member. 

Once an employer is on notice of any underlying condition, this underlying condition must be taken into consideration when giving directions or instructions to that particular employee.  For example, if an employee notifies their employer that they are immunocompromised, it may be best practice to allow them to work from home where possible in order to minimise any risk associated with performing work in the office during the pandemic.

In order to ensure that the employer’s expectations and directions to the employee are appropriate in the circumstances, it would be reasonable for an employer to request an employee to provide medical evidence of any underlying condition or medication that may place the employee in the “at risk group”.

If a staff member is being tested for coronavirus, should that person stay home until they receive their result, even if they feel otherwise well?

“Yes, an employee who has been tested for COVID-19 must self-isolate until the test results are known. Only if the test is negative will an employee be able to return to work.”

If a staff member tests positive for coronavirus, what are the employer obligations?  

“The employee must self-isolate for 14 days and cannot attend work during that period even if they are only displaying mild or even no symptoms.

An employer continues to owe WHS obligations to the employee and should do what they can to support the employee. The employer should allow the employee (if they are a permanent employee) to access their personal (sick) leave, assuming the employee has accrued paid personal leave and has provided appropriate medical evidence substantiating the absence.

If no paid personal leave is available, the employer should offer the employee the ability to use any annual leave or long service leave available. An employer may even consider offering some other type of paid special or isolation leave although not legally obliged to.”

What is ‘force majeure’ and can how can it affect small businesses?

“The expression “force majeure” refers to an event that was not contemplated by the parties when they entered the contract. A force majeure clause in a contract generally excuses “innocent parties” from performing their contractual obligations because a contractually defined event prohibits or thwarts contractual performance. Force majeure events that are commonly included in contracts include “acts of God” (extreme natural occurrences such as floods, tsunamis and earthquakes), strikes, riots, and acts of war.

Whether COVID-19 constitutes a force majeure event, thus entitling a small business to be excused from performing its obligations under a contract, will depend upon the specific wording of the relevant clause. The small business would also need to establish a causal connection between the emergence of COVID-19 and its ability to perform under the contract.”

Can the government force a business to close? 

“Yes, these powers exist at both a state and national government level.

In New South Wales, the Health Minister has powers under the Public Wellbeing Act 2010 (NSW) to put in place an order that businesses either operate in a restricted manner, or close entirely. At the federal level, similar powers exist under the Biosecurity Act 2015 (Cth), allowing the government to restrict all operation of businesses within a defined area (called ‘human health response zones’).”

Can the government force a business to stay open?

“As a matter of general principle yes, however, the relevant government powers are less specific than for business closures.

Under the Biosecurity Act 2015 (Cth) the Federal Health Minister has an extremely broad power, during a human biosecurity emergency period, to determine any requirement that he or she is satisfied is necessary to prevent or control the emergence, establishment or spread of a human disease in Australian territory. This would include a requirement to keep businesses open or ensuring businesses continue to operate “as normal”.

More specifically, for pharmaceutical or medical products businesses, there are provisions in the Therapeutic Goods Act 1989 (Cth) which operate to ensure stock levels and supply of products related to current health emergencies such as COVID-19. These provisions could be used to force businesses to stay open to guarantee this supply.”

What are the penalties for failing to comply with a government direction under the Biosecurity Act 2015? 

“There are various penalties within the Biosecurity Act 2015 (Cth) which depend on what sort of government direction is violated.

If the direction relates to disclosures or restrictions on entering Australia – the fine is currently $6,300.

If the direction relates to a behaviour or practice – such as mandated decontamination – the fine is currently $25,200.

If the direction established a human health response zone and required a businesses to close – the fine is currently $6,300.”

About the authors

Nicola Martin is a Principal at McCabe Curwood lawyers. She is a highly experienced employment lawyer and is experienced in representing clients in the Fair Work Commission, State Industrial Relations Commission, Federal Circuit Court and Federal Court as well as conducting mediations and conciliations. She has a particular interest in anti-discrimination and harassment issues.

Chiara Rawlins is a Principal in McCabe Curwood’s litigation and dispute resolution group. Her expertise covers commercial and general litigation and dispute resolution across a broad range of industries. Chiara has acted for major manufacturers, property developers, financial institutions, engineering companies and medium to large Australian and international businesses across a variety of practice areas. Chiara prides herself on working with her clients to achieve solutions tailored to their business and commercial needs.

A purpose-made CV and cover letter from beyondblue provides Australian businesses with skills to create mentally healthy workplaces!

beyondblue has launched its fourth Heads Up campaign by responding to a series of live job advertisements to give Australian businesses the tools to create mentally healthy workplaces.

More than 12 million people spend one-third of their week at work and 1 in 5 employed Australians experience a mental health issue. The imaginative campaign enlivens the traditional hiring process by engaging managers and professional leaders in a surprising, yet simple way.

This year’s Heads Up campaign ensures HR professionals and business owners have the information and tools to foster a mentally healthy work environment. The information is presented in a handy CV and cover letter application, which outlines the nine attributes of a healthy workplace.

beyondblue delivered the ‘mock’ job applications to companies currently hiring across HR and recruitment, management and telecommunications, health and education, media and publishing, and finance and law.

Heads Up takes an educational approach to workplace health – and this year is no different,” says beyondblue CEO Georgie Harman.

We’re excited to see the recipients’ reactions to our ‘mock’ job applications from beyondblue. It’s an engaging and creative way to bring a serious and hugely important topic into conversation.

Heads Up is for big and small businesses alike, from sole traders to multinational corporations. No matter the business size, the role of leaders is crucial to create and sustain positive mental health.

Through Heads Up, we also have a host of online materials, backed by evidence-based information, tools and resources to help businesses manage mental health and employee wellbeing.”

Heads Up has accessible resources for employers, employees, managers and small business owners.

Further Information

To find out more, visit headsup.org.au

Download your copy of Developing a workplace mental health strategy: A how-to guide for organisations.

To learn more about beyondblue, visit beyondblue.org.au.

If you, or someone you know, needs to speak with a mental health professional contact beyondblue’s free Support Service.

• Phone 24/7 on 1300 224 636 or
• Online chat at beyondblue.org.au/get-support (3PM – 12AM AEST)

This week we caught up with Sam Flynn co-founder of Josef Legal to talk legal innovation, law tech and how his new legal chatbot builder, Josef, is set to increase access to the law for the general community.

What is Josef and how does it work?

“Josef is a digital lawyer backed by a chatbot builder.

On our no-coding-required platform, legal organisations can build and launch their own chatbots without the need for expensive developers. These chatbots can help people resolve a legal problem, including by preparing a personalised document for them (such as a letter or agreement). Because all of these interactions are automated, it allows legal organisations to provide their services at scale.”

How did the idea for the platform first come about?

“Josef was borne out of a meeting in late 2016 with the heads of the major community legal centres in Australia. We were invited to help figure out how technology could be used to deal with access to justice issues.

The answer that we arrived at was a legal chatbot that could provide legal information and assistance to help people resolve their own legal problems.

That soon evolved into a chatbot builder which any legal organisation could use to build their own bot.”

What problem has Josef been developed to help solve?

“Josef was developed to bridge the access to justice gap.

This problem is demonstrated by the fact that of the 8.5 million Australians who face a legal problem every year, only 4 million seek any kind of legal assistance. The problem is worse in the US and the UK, where we are also operating.

For our business clients (such as law firms), this also represents an enormous latent market and an extraordinary opportunity which can be captured by using Josef to automate and scale services, streamline their organisations and connect with clients.”

What is Josef’s potential utility for community legal centres and law firms?

“Josef’s utility is to allow legal organisations to automate and scale legal services, streamline their organisations and connect with potential and current clients.

For community legal centres, this allows them to help as many people as possible, particularly in the face of a disconnect between increasing demand and decreasing funding. For law firms, this allows them to help more people while also letting them access a huge, unaddressed market, which in the US alone is valued at USD$50B.”

How can members of the public use your technology to find legal answers and who ensures the accuracy of legal information supplied?

“The content of the chatbots is developed by the community legal centres and law firms that build them. In this way, Josef brings expert legal knowledge to end users.

At the moment, all chatbots will be launched by the community legal centre or law firm, such as onto their website.

The first chatbot that has been launched on Josef is Health Complaints Assist.

This is a free chatbot which helps users make a complaint about health services, including by automatically drafting a letter for them! This chatbot is improving health services, one experience at a time, and could help thousands of people each year.”

What sort of reception has Josef received among the legal industry? Has the response surprised you? 

“We have had an extraordinary response from the legal industry.

In a few short months, we have signed up clients across Australia, the US and the UK, from CLCs to a large fintech company in New York.

Some people have found this surprising, because the legal industry is renowned as a conservative industry. However, we think it makes perfect sense given the ongoing conversation about the need for the legal industry to technologise and modernise and the fact that it doesn’t make sense that so many people are not getting the legal help they need.

We have the legal expertise, and now we have the technology, so why wouldn’t we help them?”

What are a few long-term goals that you would like to achieve?

“In the long-term, we want to change the way that legal services are provided to ensure that people get help whenever and wherever they need it. We want to get to the stage where people who have a legal problem seek legal assistance, just like people who have a health problem see a doctor.”

What are the cost implications for users?

This June, we caught up with Peter Jidesten, CEO of new tech startup iDefendo, to talk file transfers, blockchain technology, and how his company is helping individuals and businesses to protect their intellectual property rights.

What is iDefendo and how can the platform help individuals or businesses?

“iDefendo is a file transfer service that targets IP intensive and creative businesses.

In addition to just transferring files from sender to recipient, we also create a digital timeline of events that can be used to prove that you really did send a specific file at a specific date and time and that a recipient really did download it at some other specific date and time.

These time stamps are then inserted into a blockchain to make them immutable so that you can use them to prove that what you claim happened really did happen. We call these logged timestamps ‘Digital Witnesses’ because that’s really what they are. They don’t prove anything by themselves, but they corroborate our users’ side of the story, and as an iDefendo user you can access them all in an Evidence Binder that we create automatically for you.

We believe that it’s generally good for business and progress when people dare to share their ideas.

It’s our hope that our system can help generate needed trust by making it transparent to the parties in a transaction that everything is logged and provable, and that our digital witnesses are present as a deterrent for anyone who might otherwise think about behaving badly.”

How to did you come up with the idea for iDefendo and what made you decide to use blockchain technology for file transfers?

“We, the founders of iDefendo, have a background as content creators and buyers and sellers of publishing and usage rights. In that space, creators have a very real fear of getting their music, images or ideas stolen. We also talked to inventors, innovators, and entrepreneurs and found the exact same worries in those spaces.

It became clear to us that the point in time when people feel the most unprotected is when they send out their content without a contract in place, so we designed iDefendo to be the tool that you use at that exact point.

Making use of blockchain technology was really almost unavoidable; trust-between-parties-who-don’t-know-each-other is more or less what blockchains are all about, with their distributed ledgers that can be verified by all parties.”

Blockchain technology has been around for a while. What is iDefendo’s key point of difference?

“Indeed, blockchains are not new anymore, and the hype around them is slowly starting to fade. Personally, I welcome that as I think it will make it easier for people to see where blockchains really are the better solution instead of just the hottest buzzword. I’ve seen more than a few implementations where blockchains were shoehorned into solutions where virtually any other data storage technology would have made more sense.

That said, in the right place a blockchain database that can be verified by all stakeholders can create the trust that acts as the grease that makes business run smoother.

But blockchains are highly technical and not necessarily easy to wrap one’s head around. That’s what we hope iDefendo will change by making blockchains useful to all and greasing the wheels of whatever business they are in.”

Being able to prove authorship of documents, when documents were sent and downloaded (and by who) can be critical to a favourable outcome in litigation, particularly in an intellectual property dispute. Has iDefendo experienced much traction in the legal sector and was this something you anticipated before launching?

“When we set out to build iDefendo, our primary target was people in our own backyard – freelancers of all kinds, photographers, songwriters, designers and software developers among others. But when, in preparation for the launch, we spoke to several different lawyers, it soon became clear that legal professionals not only very quickly grasped what we were trying to achieve, they also saw the use for it within their own areas of expertise. Because it’s exactly as you say: being able to prove something is often key. Sure, as a creator of something you generally own the copyright to that something, but how do you prove that? If the something happens to be sensitive or secret, you can’t really register it anywhere. And it’s not always clear from the outset what will be valuable in the future, so even if you could register it you might not be aware that you should until it’s too late.

iDefendo addresses both these problems. First, our digital witnesses are based on cryptographic hashes of whatever content they represent. That means that we don’t have to know anything about the content, or even see the file itself. All we need is the hash – the fingerprint – of the content. And secondly, we automatically log everything so that our users don’t have to worry about forgetting to log something that later will prove to be important.”

In the light of the recent Facebook privacy scandals involving Huawei and Cambridge Analytica, many users are concerned about sending information, particularly commercially sensitive information, using online services. How does iDefendo address these concerns?

“Information security is extremely important to us, for obvious reasons. We’ve built the system using best practices in all areas, with industrial strength end-to-end encryption both while files are in transit and when they are ‘at rest’ within our system. As soon as we don’t need the files anymore because the share has expired, they are securely wiped from our system.

We keep only the files we must keep in order to fulfill the file transfers. And as I mentioned earlier, for highly sensitive information that should never leave the security of the computer or local network, our digital witnesses can still be used without our servers ever seeing the content at all. All we need is a cryptographic hash, and that hash can be created locally within the user’s browser. Cryptographic hashes are the result of one-way hash functions, meaning that they can’t be ‘decrypted’ or leak any information about the content they represent.”

How much does it cost to use iDefendo?

“We have a subscription-based fixed per-seat-per-month pricing that allows virtually unlimited use of the service.

So there are no per-instance fees, once you’re a subscriber you’re free to use the system as much as you want. A subscription costs $120 per user and year, or $12 per month and also includes all necessary storage of the files you send. There is a free tier as well, where we offer much of the same service but that doesn’t include the blockchain-based Digital Witnesses that are automatically created for our paying customers.”

You mention that iDefendo logs everything. How is this compatible with companies’ data retention policies?

“Blockchain records are, as you probably know, immutable. That’s a core feature of the technology, and it’s the primary reason why we use them in iDefendo.

But the immutability might be a problem when you need to clean out something, for compliance or any other reason. To counter that, we’ve built technology that lets users invalidate records that should no longer point back to their owner. By doing so the records are effectively rendered unreadable, and only the owner can re-validate them later as long as they retain the key.

So basically, to remove a record, the user only needs to throw away the validation key in a manner that is consistent with their retention policies. iDefendo does not store these keys in our system at all, so we cannot be called upon to divulge them even if we are subpoenaed.”

Further Information

To learn more, visit iDefendo.

T ability to hyperlink and embed content in websites is the cornerstone of rapid and global information sharing. It is also essential in the startup world. Since the internet is built on the foundation of free accessibility, most of us assume that it is possible to link to any given website without obtaining express permission.

However, several recent international court decisions indicate that linking to certain content online may actually infringe copyright laws.

So how are you potentially exposing your startup to legal risk online?

Balancing access to creative works vs intellectual property rights of creators

Ongoing public policy debate attempts to balance the need to provide community access to creative material and artistic works while also protecting the intellectual property rights of content creators.

One of the primary objectives of copyright law is to incentivise the creation and dissemination of knowledge and creative works by providing a creator with exclusive rights in their work. Due to hyper-interconnectivity and the widespread dissemination of content online, the internet presents a big challenge to content creators when it comes to protecting their creative works and intellectual property rights online.

A recent decision of the Court of Justice of the European Union, however, has the potential to change underlying assumptions about the way information is shared by websites through hyperlinks.

The missing, and possibly infringing, link

In GS Media BV v Sanoma Media, the Court of Justice of the European Union considered whether a publication that linked to private images of a female model through File Factory and ImageShack constituted a copyright infringement.

While visitors to GS Media’s website could access the images by clicking on a hyperlink in its article, the photos were also freely and publicly available online. Internet users were able to download the photos by visiting ImageShack directly.

Sanoma operated an ‘adult entertainment’ business that owned the rights to the images. Sanoma had requested that GS Media stop linking its users to the images, however, GS Media repeatedly ignored these requests. The court ruled that GS Media was in breach of Sanoma’s copyright since
GS Media had profited from inserting the hyperlink to the images on its own website. The issue was that GS Media had made these pictures publicly available through a communication to the public and had profited from that link, while Sanoma had not authorised publication of the images.

The court found that GS Media had knowingly provided a gateway for internet users to acquire files that they could otherwise access free of charge with no barriers.

Elsewhere, in the factually similar United States case of Intellectual Reserve v Utah Lighthouse Ministry, linking and contributory infringement of copyright were at issue. In that case, one party had linked internet users to material that the other party did not wish to be viewed. The court found that there had been a copyright infringement.

Linking this to an Australian context

In 2006, the Federal Court ruled on the interaction between hyperlinks and copyright in the case ‘MP3s4FREE.’ The website’s content almost exclusively provided visitors with links to external websites that stored music files.

Users were able to scroll through the MP3s4FREE website, select and download music for free in spite of protests from record companies and copyright holders. Mr Cooper, the owner of MP3s4FREE, was found to have infringed the Copyright Act 1968 (Cth), as he had considerable power to prevent the download and copy of copyrighted sound recordings as well as the communication of this copyrighted material to the public. While the Federal Court reached a similar conclusion to international decisions, judicial reasoning, in this case, focused largely on Mr Cooper’s ability to prevent the copyright infringement.

You are the weakest link, goodbye

While this area of copyright law has not been thoroughly tested in court in Australia, there are other aspects to hyperlinking that may infringe Australian copyright.

Hyperlinks that contain logos or symbols of the linked website that are sufficiently substantial parts of a copyrighted document may, for example, infringe copyright legislation.

The most obvious example is linking to copyrighted music or a video where the hyperlink contains a ‘preview’ of the audio or video file. Similarly, there may be ramifications for infringing trademark law with this practice.

O, link twice

The above cases are just a few recent examples of the courts wading further into the murky waters of the internet.

If you own a website, whether privately or for your startup, hyperlinking to illegal and copyright-infringing content is a risky practice. Courts around the world are ready to attribute liability to linking websites, even if you are not actually hosting the copyright-infringing content. Merely acting as an online gateway that refers your site visitors to copyright protected material can be sufficient so be cautious when it comes to inserting external links to your pages.

The main point to take away from the cases is that even though judicial reasoning across various jurisdictions has certainly varied, courts are attributing a significant amount of responsibility to websites that provide a gateway to copyright-infringing content.

So, before you create links to all and sundry on your website, think twice and ensure that you connect your customers or visitors to authorised content in an authorised way, or you may be found to have a rather heavy linking problem.

What do you think about copyright infringement and hyperlinking? Let us know in the comments!

“Becoming a leader is synonymous with becoming yourself. It is precisely that simple, and it is also that difficult.” – Warren G Bennis.

Effective leadership can take many forms.

Many of us associate strong leadership with giants like Nelson Mandela and Barack Obama, CEOs, politicians, thought leaders or people who make important scientific breakthroughs. But great leaders are also people who have the capacity to create ripples of positive change – and they can be found anywhere. These people make conscious choices – whether in their personal or business lives – to do the right thing when making small and seemingly insignificant decisions every day.

Leadership everyday

Leaders don’t think less of themselves, they think of themselves less.

Rather than remaining silent, for example, everyday leaders choose to speak up to support a female colleague whose opinions or projects might be overlooked by management in team meetings; rather than stand by and watch a potentially dangerous incident unfold (which could escalate to endanger others), leaders step up to diffuse the situation; rather than look on in passive silence, leaders take action and run to the aid of someone being attacked or abused in the street; rather than follow the social ridicule of another, leaders break the cycle and stop situations where others are suffering public humiliation.

Choosing to do the right thing is the hard thing. It is also the hallmark of someone with integrity and the potential to become a respected and powerful leader in their personal and professional lives.

How to be an industry leader

Leaders in their professional fields are often described as ‘key persons of influence.’

These people have an intimate understanding of their strengths and weaknesses and are unafraid to take calculated business risks when the right opportunities present themselves.

In his best-selling book, “Become A Key Person of Influence (KPI)”, Daniel Priestley writes:

Whether you are chasing a promotion in your current role or looking to establish yourself or your business with a strong personal brand over the next 12-months, effective leadership skills are about being flexible, adaptable, bucking the norm and being able to influence those around you.

With persistence, passion for your industry and a clear strategy, becoming a key person of influence is something that you can achieve this year. According to Priestley:

Want the book? It’s yours – FREE!

To help you achieve your professional and business goals this year, in collaboration with Dent Global, we’re giving away Daniel Priestley’s book “Become A Key Person Of Influence” for FREE.

Receive your free hard copy by clicking here and filling out your details.

About Dent Global:

Dent Global is an international world-leading business accelerator for small, entrepreneurial, service-based businesses, with offices in the UK, USA, Singapore and Australia.

Founded in 2010, Dent is powering the entrepreneur revolution in Australia. Dent specialises in accelerator programs and events, facilitated through their partnerships with celebrated entrepreneurs and leaders who mentor the participants. Dent has helped more than 2000 companies of all shapes and sizes grow and achieve their goals through their accelerator programs: Threshold, Key Person of influence, Campaign Driven Enterprise and 24 Assets. They have also launched three best-selling books on business, won major awards and raised more than $500,000 to charities around the globe.

With Australia’s small business sector buoyant and healthy, Dent Global’s message is fine-tuned for the current climate where there’s no better time to be an entrepreneur than now.

They say that sex sells but in today’s market, it is data that can really land you the big bucks. Whether you are simply collecting email addresses to build a database of loyal customers or on-selling the information you accumulate, data plays a huge role in the lifecycle of nearly all startups.

The sheer volume of data collected from consumers on a day-to-day basis has exploded over recent decades. It is unsurprising, then, that privacy concerns have grown almost as fast.

As a startup owner, what should you be doing about it? We’ve put together a back-to-basics guide to assessing your business’s data use.

1. Define The Data

Like many aspects of your business, taking a big first step sometimes requires a few steps step backwards. Take a moment to consider the bigger picture.

At which points along your startup’s customer experience chain might you find yourself in possession of customer data?

Most businesses these days will find themselves doing one or more of the following:

• Requiring a name and an email address for customers to access a website
• Collecting credit card details for purchases; or
• Collecting home addresses for deliveries.

Examples like this may seem obvious but the more complicated your business model, the more unusual your data collection may be. You may find that you are retrieving and storing a customer’s location, accessing other data stored on their phone, such as photos and notes, or even tracking what they buy at the grocery store each week.

It is important to work out exactly what data you might find in your hands – or indeed, what data you would like to find in your hands – before you can work out how best to handle it.

2. Make The Big Decisions

Once you know what customer data you are likely to need, it is time to decide how you are going to handle it.

You might, for example, find that you want to use the data to create a dynamic and customised consumer experience. This could involve making a decision about whether the data stays with your business or is passed on to third parties.

Alternatively (or additionally), you may wish to use the data to secure a loyal fan base and market new products and services. In this case, you may consider:

• Do you want to be able to directly contact your customers?
• What sorts of things would you like to contact them about? Just your own goods and services, or those of other businesses or causes too?
• How would you like to contact them? Call, text, and/or email?

Perhaps you are particularly savvy and looking to sell the information you collect for the purposes of targeted third party advertising.

It is important to remember that the issue is not only to decide how you plan to use this data but also how you plan to store it. How will you secure it? Will you anonymize it? Will you be making multiple copies of the data? Will owners of the data be able to erase it from your system? If so, how?

Of course, these are only a few suggestions to get you thinking. The only limitation on how you might use customer data for your business is your imagination … or is it?

3. Work Out The Details

Here comes the bad news: now that you have decided how you would like to use and store the data you collect, it is time to work out whether you are allowed to or whether legal restrictions apply.

This is a two-step process.

STEP ONE

The first step is to work out if any laws prevent you from handling customer data in the way you would like.

Two key pieces of legislation will likely apply to you and your business: the Privacy Act 1988 and the Spam Act 2003. Now, there is no need to spend days trawling through these laws but it is important to do some research to find out what you can and cannot do with the data you collect.

Spam Act: To give you a general idea, the Spam Act prevents businesses from sending unsolicited commercial electronic messages – do not assume that you can get around it!

The law determines if a message is ‘commercial’ from the content of the message generally as well as the way the message is presented. In other words, even though you are not advertising your goods or services explicitly, the email you just sent to your list of subscribers (for example, with the aim of testing the market or gauging a prospective customer’s interest) may be considered spam if they were not aware that you would use their email address for that purpose.

These kinds of messages are considered commercial because they seek to establish a commercial relationship. You need to gain consent through other means, such as a letter, a phone call or a face-to-face conversation.

Take home point: Never send an electronic message to a group or an individual if they have not consented to receive it.

Privacy Act 1988: The Privacy Act will govern most of your data activities, particularly, the Australian Privacy Principles (APPs). Although these principles will only govern businesses of an annual turnover of over $3 million, it is best practice to make sure your venture complies regardless.

The APPs cover:

• What to include in your privacy policy (see step 4)
• What to do with data you receive that you asked for … and data you receive that you did not ask for!
• Management systems that must be in place to deal with data-related complaints
• How you can use and disclose data in Australia and overseas
• Expectations around keeping data secure

STEP TWO

Once you know the legal do’s and don’t’s, the next step is to decide whether you have the resources to comply with relevant laws.

If you do not think your business model will cope with the pressure of these restrictions, it is better to reassess now before you go any further.

It is also a good idea to think about whether your data collection is really the best way to foster a positive relationship with your customers, even if you are complying with all your legal obligations.

Take, for example, the recent media frenzy over the alleged privacy invasion by Niantic in their PokemonGO app. It was widely reported that an error in the app required users to give full access to their Google accounts in order to use the app, a permission that it seemed went far beyond the scope of what was reasonably required for the purposes of the app. Though Niantic has now indicated that no data of this kind was collected despite initial reports, the case provides a perfect instance of the potentially damaging effects of dubious data collection on your relationship with your customers.

Ultimately, the more complicated your business, the harder it will be to navigate the rules and restrictions that surround data protection and the more likely it is that you will need to get these details from a lawyer to avoid getting into hot water down the track.

4. Disclose, Disclose, Disclose

After you have sorted through the details, work out what your customers need to know in order for you to store, use or sell their data as planned, and how you are going to tell them.

Enter the Privacy Policy.

Usually tucked neatly away in the “legals” section of a website, the Privacy Policy is your opportunity to tell your customers everything you have worked out in steps 1 and 2 (above), and will be guided by the rules and restrictions you have uncovered in step 3 (above).

In more technical terms, the privacy policy it is a contract between you and your customers. They can either agree to your policy and continue to engage with the business, or they can walk away before their data is captured. The contents of a Privacy Policy will often vary widely in order to accommodate different business models and concepts.

The APPs provide some guidance in Part 1.4, noting that a Privacy Policy must contain the following:

• how you collect and hold personal information
• the kinds of personal information that you collect and hold

• the purposes for which you collect, hold, use and disclose personal information
• how an individual may access personal information about the individual that is held by you and seek the correction of such information
• how an individual may complain about a breach of the APPs, or a registered APP code (if any) that binds you, and how you will deal with such a complaint
• whether you are likely to disclose personal information to overseas recipients
• if you are 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.

In this context, ‘personal information’ means data about an identified individual or a person who is reasonably identifiable.

As a general rule, personal information should not be collected unless it is reasonably necessary for one or more of your business’s functions or activities. The APPs may seem overwhelming at first, but give them a go – there is no better way to learn about how to correctly handle your business’s data collection than to go straight to the source.

A word of warning: It can be tempting to find a similar business and copy their Privacy Policy for your own use.

This is a breach of copyright law, and you may find yourself jumping out of the frying-pan and into the fire if you do it. If you are struggling to put together your own policy, consult a lawyer. Alternatively, if you do not have the funds to seek professional advice and you’re not sure what to do, the best policy is often to disclose, disclose, disclose!

If nothing else, this fosters a positive relationship between you and your customers, indirectly building consumer confidence in your brand and business.

5. Do

It is easy to throw together your Privacy Policy and to sketch out the various data storage and usage procedures, and then to think your job is over. While we might wish this were the case, unfortunately, the reality is a little more complicated.

Buckle up, because here comes one of the toughest parts in handling customer data: making sure you comply with any restrictions you have discovered in the detailing stage and making sure you actually do what you promise in your Privacy Policy.

Don’t be too disheartened. Data collection can offer you infinite opportunities to better market, sell, expand, and diversify your business – just make sure you do it right!

At the end of the day, remember that data collection is as easy as define, decide, detail, disclose, do!

Further Information

For more information and resources to help you understand what rules and restrictions may apply to your business:

• Australian Privacy Principles
• Guide to developing an APP Privacy Policy
• ACMA: Ensuring you don’t spam
• ACMA: Overview of the Spam Act 200 for business 

When was the last time you considered the potential legal and privacy implications of customer data retention for your startup? Let us know in the comments!

There are multiple factors that impact the success or failure of a startup.

In Australia, entrepreneurs are being put out of business by more than just underdeveloped planning and poor sales. The grim reality is that over 95% of new startups are destined to fail. Many of these are sunk by preventable legal pitfalls that new business owners did not foresee or did nothing to protect themselves against. When you have solid foundations in place to protect yourself and your business against unnecessary risk, you can devote your energy full time towards making your startup dream a success.

Below are some strategies to deal with avoidable legal issues in business early and effectively.

Have A Clear Ownership Structure

The common legal structures for businesses include sole trader, company, partnership and trust.

Choosing the right legal structure for your business from the outset is important as some structures provide protection against personal liability for debts and legal disputes. It also impacts your tax obligations and expenses and makes it easier to sell your business in the future, if you wish.

A Shareholders’ Agreement

Even if your partners are your parents or your best mates, a shareholders’ agreement is an important and necessary document that clearly sets out the rights and responsibilities of each shareholder in your company.

Without such an agreement in place, in the case of a legal dispute, it will be up to a court to decide the outcome.

There is no ‘one size fits all’ shareholders’ agreement. Each agreement must be drafted according to your unique set of circumstances and the outcome the shareholders wish to achieve in relation to shareholder funding or contributions, director appointments, how the company should be managed, dividends and financing, transfers of shares or an exit strategy.

Depending on how much of the company certain shareholders own, for example, the agreement may also stipulate that minority shareholders cannot be forced out of decision-making by majority shareholders.

You can start by downloading a basic shareholders’ agreement template and supplement basic clauses according to your needs by speaking with a legal professional.

A Commercial Lease You Understand

Commercial leases can be complex documents which spell out the rights and responsibilities of both landlord and tenant.

If you don’t understand the lease document, you could end up being liable for costs you didn’t anticipate such as utilities, repairs, taxes and the cost of documentation regarding the lease.

You may also have difficulty renewing the lease. Fighting a lease dispute can be expensive and losing such a dispute could mean that your company loses its space.

Make sure you fully understand the legal implications of your commercial lease agreement before signing.

Have Proper Warehouse Safety Equipment

If your business has warehouse space for storage, it is critical to have proper equipment and procedures in place that comply with Work Health and Safety legislation to protect your staff from preventable injuries.

Loads falling onto forklift operators and other workers account for a high percentage of Australian workplace injuries and fatalities. Forklift safety cages and large goods cages, for example, protect operators and everyone else working in the immediate area from physical injuries and protect your startup from potential workers compensation claims.

Mandatory Sexual Harassment & Bullying Education

No doubt you agree that this behaviour has no place in your workplace, but do your employees understand exactly what is defined as sexual harassment or bullying?

As a business owner, if you don’t dedicate the time and resources to train your employees in appropriate workplace conduct, you could leave yourself open to large fines for breaching workplace health and safety legislation. The resulting financial drain on your startup could quickly put you out of business.

Understand relevant legislation surrounding workplace health and safety, bullying and sexual harassment and have each employee complete the necessary compliance training.

Maintain Detailed Record Keeping

A commitment to detailed record keeping is necessary for many reasons including invoicing and accounts receivable, tax compliance and payroll.

If your company is not large enough to hire a full-time accountant or business manager, record keeping is a task that you can adequately perform yourself by using accounting and online bookkeeping software like Xero. If you don’t have time to maintain your own records, it is worthwhile contacting an accounting firm in your area.

Yes, outsourcing this work is an ongoing overhead expense, however, failure to keep accurate records can lead to serious problems for your business, the consequences of which can doom your startup before it starts.

Compliance With The Privacy Act

Depending on the nature of your business, you may be collecting data about current customers and potential customers.

As a business owner, it is critical that you comply with your obligations under the Australian Privacy Principles to avoid breaching the Privacy Act in the way that you collect, store, use and disclose private information about your customers.

Mishandling or misusing private information can lead to serious fines and penalties.

Conclusion

These are some of the main legal risks faced by Australian startup owners.

Understanding your rights and obligations, and building your business on a rock-solid platform, places you in a strong position to avoid any unforeseen obstacles that may impede your startup success.

What unanticipated difficulties have you encountered on your startup journey? Let us know in the comments below!

Starting a business is a calculated risk.

It involves weighing relative costs and benefits, assessing known financial risks, seeking advice from trusted sources, accepting uncertainty and pushing ahead anyway.

Most startup owners are big advocates of ‘when you need it’ learning. This usually involves learning something ‘on the run’ and finding out what you need to know about a specific subject area right before you need that information.

However, when it comes to the legal obligations involved in setting up and running a safe business, ‘when you need it’ learning doesn’t really cut it. This is largely because you need to be aware of your legal duties towards your business and your staff in order to actively comply with them.

It’s a lesson that was hard won by RM Williams earlier this year when the chain was fined $90,000 for breaching the Work Health and Safety Act after a worker was seriously injured, partly due to a lack of appropriate training.

This lack of formal workplace safety training can have a significant financial and human cost for businesses. In most states, businesses can face up to $3 million in fines for breaching workplace health and safety legislation.

CourseGenius And Compliance Training

Launching today, CourseGenius aims to fill a gap in the market by providing accessible and affordable online safety and compliance training courses to small to medium-sized businesses (SMEs) in Australia.

The WA-based company offers a platform for SMEs to create and deliver custom online training programs.

With additional topics to follow, the suite of compliance courses provides training in three core areas:

1. Workplace Health and Safety Fundamentals;
2. Workplace Bullying and Harassment; and
3. Social Media and Electronic Communication.

Developed by Australian law firm People + Culture Strategies, the courses are legally compliant and tailored for Australian workplaces.

Co-founder and lawyer, Sarah Mateljan, was able to see the significant risk and potential cost to SMEs who fail to run formal compliance training:

We’ve listened to our customers and we know it’s hard for them to find engaging and legally compliant training content on a budget. Our new suite of compliance courses solves this problem by providing interactive, legally authored online training on-demand. Our customers, such as ECOYA are well placed to make this move as they are more agile than larger enterprises, and can more easily adopt new technologies to solve problems.”

The CourseGenius compliance courses were exactly what I was after. I oversee manufacturing where compliance and training is of critical importance. Being a medium sized business, we are good at implementing practical training elements however this not always reflected on paper. If I had to create the program myself, not only would it take me two or three days to prepare the material but I couldn’t be entirely sure that the content is correct and current.” 

Further Information

To sign up for a demonstration visit CourseGenius.

Whether you are developing the next Facebook, creating a small family business, or setting up a small to medium business, choosing the right legal structure for your business is integral to your success. There are a number of structures you can choose from when starting (or expanding) your business.

Remember, you can change your structure as your business develops but take care when you decide on a particular structure because there are costs and obligations that might affect the choice you make.

Getting your startup’s legal structure right from the beginning is critical as it can impact your expenses, tax consequences, extent of ownership and your overall legal liability. Confused? Let’s go back to basics. In Australia, there are four common legal structures to consider: sole trader, partnership, company and a trust. Each structure has its pros and cons, so let’s go through each one to help you decide which option may be best for you.

Going Solo – Sole Trader Structure

A sole trader is the most common and the simplest legal structure. If you are setting up a low cost small business with limited expected growth, then this may be the structure for you.

Although a sole trader may employ staff, you trade on your own and the business is owned and operated exclusively by you. This means you can make your own decisions, you have no one to answer to and, most importantly, everything belongs to you.

Setting yourself up as a sole trader involves minimal cost, few tax formalities and any assets and profits of the business are included in your personal tax return.

Sole traders are not a separate legal entity so while you reap all profits and benefits, you also personally take on all liabilities and business risks. This means that you personally owe any outstanding amounts to employees, contractors or suppliers. It also means that if someone decides to sue you, legal action is initiated against you personally.

Most importantly, if the business fails it falls solely on you.

Partners In Crime – Partnership Structure

A partnership can be formed when two or more people decide to run a business together with a view to making a profit. It involves an agreement between two or more people to enter a legally binding relationship.

To avoid disputes, a formal partnership agreement should be made setting out, for example, each partner’s responsibilities and share in the profits as well as what is to happen if the partnership is dissolved.

There are different requirements for various types of partnership, depending on which Australian jurisdiction you are setting up your business. In NSW, there are three types of partnership: a normal partnership, a limited partnership and an incorporated limited partnership.

1. A normal partnership is one where all partners are equally responsible and involved in the day-to-day management of the business, and each partner has unlimited liability for both the profits and losses. This type of partnership does not need to be registered under the Partnership Act, but the two other types of partnership must be registered.

2. A limited partnership must be registered through the Australian Business Licence and Information Service (ABLIS),but this type of partnership is more flexible than a normal partnership.

It must consist of at least one general partner, whose liability is unlimited, and at least one limited partner, whose liability is limited to the extent they have invested in the business. A limited partner is more like a passive partner who usually does not contribute to the management of the business. Raising funds in a limited partnership is less complicated. This type of partnership is ideal for a prospective partner who simply wants to invest in the business without being involved in the day to day management and and without accepting liability for the risks associated with general partners.

This type of structure may be suitable for a small to medium business seeking to raise funds in an uncomplicated way without the formalities and requirements of a registered company.

3. An incorporated limited partnership may be the right fit for you if you intend to be engaged in a partnership for venture capital investment purposes. You will need to register as an incorporated limited partnership (ILP).

Partnerships share many of the same advantages as sole traders in their simplicity and inexpensive nature. However, the downside is that a partnership is not a separate legal entity and, consequently, normal partners are jointly responsible for debts and liabilities owed by the business, regardless of who actually incurred the loss.

In Good Company – Company Structure

This structure is better suited to medium to large business enterprises. Unlike a sole trader or partnership structure, a company is a separate legal entity.

A company has the same rights as a person, meaning that it can incur debt, sue and be sued. A company’s owners (shareholders) can limit their personal liability and are generally not liable for company debts.

A company structure is a more expensive and complex legal structure to set up and has higher administrative costs. It must be registered with the Australian Securities and Investments Commission (ASIC) and comply with reporting requirements, including initial establishment, regulatory and compliance costs. Company officers and directors must comply with legal obligations under the Corporations Act 2001.

Tax requirements for a company are very different to sole trader and partnership structures. A company pays income tax on its profits at the company tax rate and there is no tax-free threshold.

It may sound like a lot of work but if you need a flexible legal structure which allows you to grow, attract investors, and limit personal liability for company debts, a company can be the most attractive option.

Ready To Commit – Trust

A trust is an entity that holds property or income for the benefit of others. A trustee can be an individual or a company who is obliged to hold and deal with property and assets (business assets) for the benefit of beneficiaries. These can be business partners or family members, for example.

A trust can be expensive to establish and maintain. You will need to create a formal trust deed that sets out the terms of the trust and how the trust is to operate.  There are annual administrative tasks that must be undertaken and, if you operate your business as a trust, the trustee is responsible for its operations. A trust does not need to be registered with ASIC.

Some asset protection is available to the trust if the trustee is a company.

Final Remarks:

• Know your business – Consider how much control you want to have, the future growth of your business, the possibility of needing investors and employees, the amount of risk involved and any assets you may want to protect.
• Uncertain about the future? – Don’t fret. You can change your legal structure throughout the life of your business. As your business grows or changes, you can change its structure.
• Don’t be afraid to ask for help – Setting up a business can be a very complex and confusing process, especially if you decide to set up a company or a trust. Consulting with a professional lawyer or accountant gives you peace of mind knowing that your new venture has been set up correctly from the outset.

Further Information

For more information on starting your own business and choosing the right legal structure for your startup visit:

• Business.gov.au
• Australian Securities and Investments Commission (ASIC)
• Fair Trading (NSW)
• Australian Tax Office

To get in touch with a legal professional specialising in startup law, contact:

• General Standards

The core principles of most mutually enjoyable human interactions are pretty simple:

1. Be nice
2. Practise respect
3. Be genuinely interested in the other person
4. Show gratitude

Generally, extending basic courtesies to others will result in those same decencies being mirrored back two fold. In other words, the type of energy you project in your interactions (positive or negative) tends to attract like energy to you.

Engaging in unethical business practices, being unkind to your competitors, disrespecting business partners, stakeholders, colleagues and staff or even failing to be considerate of the needs and interests of others is the fastest way to permanently damage your business relationships and compromise the success of your organisation.

Have you recently launched your startup, and find that you are scratching your head daily about why you cannot seem to make any headway with certain stakeholders? Maybe you are finding it difficult to form strong and lasting relationships with partners, colleagues or staff.

The answer could lie in taking a good hard look in the mirror and reflecting on your interpersonal skills.

Don’t Be That Guy  

What many business owners do not place enough emphasis on is the principle in life that kindness often gets you further than force.

Many CEOs, managing directors, founders, startup owners and leaders of industry spend years labouring under the misapprehension that their degree of brusqueness is directly correlated with their level of success. They are quick to temper, pace around the office frenetically, type franticly, voice views loudly and aggressively, express themselves at meetings with impatience and frustration, fail to respond to emails and do not set aside time to listen to colleagues or employee concerns.

The idea is that by cultivating a discourteous business culture, others will assume these leaders are wildly successful and avoid disturbing their workflow unless absolutely necessary. But this strategy exposes more about the personalities of individuals than anyone would like to think, as the root cause of bad behaviour always reveals its true nature:

Behavioural inflation in the form of rude or aggressive mannerisms, putting others down, having unrealistic expectations of business partners, staff or colleagues and being ‘too busy to be polite’ are all symptoms of poorly-developed interpersonal skills, low emotional intelligence and deep-seated insecurities. These traits are often the hallmarks of people who are not coping in their business or personal life. 

Unfortunately, many new entrepreneurs and startup owners believe that imitating the bad habits of successful leaders, through hostile behaviour, manipulation and tough business negotiation, will garner automatic respect among their peers and professional networks. In reality, this is an instant formula for failure.

Given their vastly different leadership and interpersonal styles, for example, would you rather collaborate with Richard Branson or Donald Trump?

Rather than solidifying your status as a negotiation ninja, your reputation for being abrasive and disingenuous will solidify the resolve of key stakeholders never to deal with you. Being quietly convincing,  genuinely respectful, polite and adding real value, on the other hand, wins lasting and mutually beneficial business relationships.

Some Hard & Fast Rules For Keeping Your Business Bridges Un-Burned 

Successful startups are built on the back of strong networks.

When it comes to establishing good business practice and genuine business relationships – it’s all in the detail. If you recognise any of the above leadership qualities in your current business interactions, the good news is that it is possible to instantly improve the way others respond to you, and your business, with some small behavioural tweaks.

1. Never inconvenience others by imposing a short deadline

Wherever possible, try not to impose tight deadlines.

Instead ask that the action to be completed “at a time that is convenient to” the person you are making the request of. It shows you respect their ability to prioritise your request, your awareness of their existing workload as well as your appreciation of their limited time and resources.

While this approach typically requires less from others, it demands more from you. The onus is on you to exercise leadership by closely managing business timeframes so that more buffer time is factored into project deadlines.

When a looming deadline is genuinely critical, and may require turnaround within the hour or COB, that person will be happy to help you by prioritising your task over their BAU work.

2. Never impose false deadlines

A false deadline occurs when you tell someone that a particular item is extremely urgent, and requires their immediate attention, but in reality that urgency does not exist.

Putting people under pressure to perform, particularly in instances where no real urgency exists, is a surefire way to build resentment and destroy productive working relationships. This is compounded in situations where you may have imposed the tight timeframe deliberately to allow yourself more time to look over the finished product before sending it off.

Always give someone (whether they are a business partner, peer or staff member) as much time as possible to complete a task. If you must impose a deadline, make sure it is a real one.

If priorities change during the day, you should let that person know that the urgency has dropped away from their task. This allows them to take a breath, ease their foot off the accelerator, and do a more thorough job.

3. Look with your eyes and not your mouth

When arranging a meeting, avoid wasting the time of invitees.

Everyone hates being required to exchange dozens of emails to set up a convenient time and date, especially if the date must be re-negotiated several times before being set. This approach is unnecessarily disorganised and frustrating for everyone involved. Importantly, it leaves people external to your organisation with the distinct impression that meeting you is more trouble than it is worth.

A better approach is to look at your calendar and determine when you are, and when you are not, available before sending out the invite. Let the other participant know your availability either via calendar invite, email or over the phone.

If they have all relevant information they are in a better position to fit in with you and, in one or two exchanges, the time and date can be locked in.

4. Never ask someone to repeat themselves

Never ask for information to be repeated, or an email to be re-sent, if you already have that information somewhere where you can readily access it. For example, requesting contact details or a phone number, if that person has already sent it to you in a prior exchange.

Everyone hates repeating themselves. It is an unequivocal waste of time, especially at high-levels. It sends a strong message that you are unreliable, disorganised and do not pay attention to detail – qualities that smart people in business shy away from.

Accept that your time is no more precious than anyone else’s.

If you need to spend 5-10 minutes looking through your emails, or sorting papers on your desk, rather than eating into someone else’s day by requesting that the information be re-sent, then do it! 

5. Hold up your end of the deal!

If you commit to something in a business transaction, stick to your side of the bargain.

Do not assume that the other person will forget what you have agreed. If they have fulfilled their obligations, fulfil yours without an attempt to underhandedly change the goal posts.

Doing anything less than what was agreed leaves a bad taste in everyone’s mouth and people will be reluctant to do business with you in the future.

6. Drop the attitude of expectation and be humble

If someone does you a favour, let them know you appreciate it.

For example, if they have introduced you to an important business contact, agreed to partner with your business, or even agreed to write a guest post for your business blog. Always ensure you recognise the time, effort and value that person has added to your business by showing your appreciation.

If someone’s actions have produced a particularly positive outcome for you, make sure you let them know! This generates feelings of goodwill and mutual support and they will be more likely to collaborate with you again. Failing to do so breeds bitterness and mistrust – they will wonder why you kept them in the dark by not passing on the good news they played an important role in achieving.

One of the quickest and easiest ways to make yourself a likeable person in business is to go above and beyond what people expect of you. It can be as simple as a short but meaningful email saying thank you and mentioning how much you value their input, time and support.

Positive emotions form strong foundations for lasting working relationships.

At The End Of The Day

There is no excuse for being discourteous to others.

A fledgling startup cannot afford to alienate potential business partners with a leader who does not value good business practices and basic professional etiquette. Experienced business owners and entrepreneurs associate these habits with unexperienced leaders who are masking inner vulnerabilities, a lack of subject-matter knowledge and an inability to cope in complex business or social situations.

Rather than moving you forward in your startup journey, poor professional behaviour always has a way of holding you, and your business, back.

So who do you want to be in business? A dealmaker of a dealbreaker?

What personal or professional qualities have you come across in your startup journey that you admire? Which ones do you dislike? Let us know in the comments section below! 

Do you remember what it felt like the first time someone stole one of your ideas?

Like your stomach is yanked through your mouth while all the oxygen is simultaneously sucked from the room. You feel overwhelmed, helpless and foolish for making one of the classic blunders and trusting the wrong person with your information.

It may have happened in the workplace where a colleague passes off one of your ideas as their own to beat you to a promotion. It may have occurred in a confidential environment, such as a job interview, where an original idea shared to establish your credibility, originality and employability, is misused to that employer’s personal benefit. Worst of all, your idea for a new entrepreneurial or business venture may be stolen by a competitor. This can happen either through information you share directly with that person before launching, or through copycat behaviour once your business is established.

Both scenarios can have a serious negative impact on your personal wellbeing and that of your business.  At the end of the day, nobody enjoys sitting in a reflective mood humming a sad rendition of Sufjan Stevens’ “Should Have Known Better.” 

When someone steals your business idea, you have a few options:

1) take the higher ground and do nothing; or

2) learn from what a lawyer in your position would do and find a mechanism to protect yourself and your business the right way.

A Long History of Idea Thieves 

As human beings, we are hard-wired to share. We love to spread word of our achievements and success.

In the case of an exciting new business or entrepreneurial venture, our propensity to share a new idea can often mean taking a risk and revealing sensitive information.

This split-second decision to exercise trust over caution has defined the careers of many experienced business owners and entrepreneurs. Some of the most famous business ideas in history, for example, were ripped off from someone else. Think Facebook, Twitter, Hulu and Paypal.

These successful enterprises were built on the back of someone else’s idea.

In Australia, a few options are available to you if someone rips off your business idea.

Working Smart: Is It Legally Possible To Protect A Business Idea?

When someone uses your business idea without your permission, your chosen course of action will depend on your specific circumstances and the outcome you seek.

In Australia, protecting an idea under Copyright laws is extremely difficult.

Jamie White, Solicitor Director & Owner of Pod Legal, explains:

It is very difficult to protect a business idea or concept in Australia. Copyright law most certainly won’t protect an idea itself, it will only protect an expression of an idea.

For example, if you have an idea for a new home delivery service, then copyright would only protect your written documents, diagrams or manuals relating to, or describing, the idea.

In some circumstances, a patent may be granted for business methods, processes or products. However, minimum thresholds must be met in terms of inventiveness and innovativeness.”

This means that if someone acts on information that you express to them during a casual conversation, there is very little you can do to protect that original idea, or prevent that person from acting on your information and launching a competing business.

Taking On The Big Bad Fox: What Are Your Legal Rights If Someone Uses Your Business Idea Without Your Permission?

An understanding of your basic rights puts you in a solid position to protect yourself against opportunistic idea thieves.

If you’re not careful, people with their eyes and ears open to fresh opportunities can easily shoot your business out of the water before you even start.

If you have an idea for a business you have not yet launched, or an idea for a new project for your existing venture, plan a watertight strategy to protect yourself and your business from imitators.

When it comes to protecting your business ideas in Australia:

It is very difficult to prevent a person from using or copying your business idea.

Therefore, it is very important to ensure that a good strategy is implemented when launching a new business idea. For example, it may be very useful to keep plans around the new business idea confidential until such time that the idea is launched. This may be achieved via the use of confidentiality agreements and can increase the lead time before any imitators launch their offerings. Also, a strong distinctive brand name for a new offering can be of big benefit, ensuring that consumers are aware of the source of a new product or service and it is not confused with any imitators.

Finally, hitting the ground running with a new idea – this can assist to ensure that you enjoy exclusivity for a longer period of time” explains Jamie White.

Trust No One: What If Your Business Idea Is Communicated In A Confidential Environment? 

In certain situations, it is easy to be lulled into a false sense of security about the level of detail you share about your business ideas.

In environments such as employment interviews, nerves are rife. One targeted question from the selection panel about your past experience, interests or hobbies can easily send you down the path of no return. In this situation, you may unknowingly reveal confidential details about your business venture to impress a potential employer, to demonstrate your ambition and creative vision or to highlight your overall employability.

If someone from your interview panel subsequently makes unauthorised use of this information without your permission:

Action may be taken for breach of confidentiality in these circumstances.

It is always best if the obligation of confidentiality is documented by way of written agreement, as this will assist a court to determine what the confidential information actually comprises of and for what purpose the confidential information was disclosed” says Jamie White.

With Experience Comes Wisdom: What Strategies Are Available To You To Protect Your Business Ideas In The Future?

In the business and startup world, trusting others with information about your business ideas, business model, marketing strategy or business plans, can be a poisoned chalice.

Always be conscious that your competitors may be listening.

If you must share your business ideas with a third party, wherever possible, use a confidentiality agreement (also known as a non-disclosure agreement). This legal contract protects your information and acts as a deterrent against someone disclosing, or acting on, your information without your permission.

In the eyes of the law, confidentiality agreements put matters beyond doubt as to who has breached a legal obligation. This makes it much easier for a court to determine what has been agreed, to what extent someone has breached that agreement and, therefore, what remedies you are entitled to.

O-Rule: Only reveal sensitive information to others, including friends, family and those working within your organisation, on a need to know basis.

What Outcome Or Remedy Can You Expect?

Without written evidence of a breach of confidence, it is difficult to prove that someone has breached an obligation to you.

It would be up to a court to determine whether there has been a breach of an obligation to maintain confidence in relation to your business idea, and whether you should be awarded a remedy. Without documentation to support your claims, litigation can be drawn out, costly and rapidly devolve into a ‘he said she said’ scenario.

If you lose your case, you are responsible not only for paying your own legal fees, but also the legal fees of the person you are bringing an action against.

For small business owners, this option is often unfeasible.

Prepare your business strategy early to avoid nasty surprises.

Always ensure your business ideas are protected with a confidentiality agreement. This way, if someone breaches an obligation to maintain that confidence, you will be in a sound position to prove this in a clearly documented agreement.

Jamie White says:

“In the event that a person threatens or actually breaches an obligation to maintain confidence with respect to a new business idea (or anything else), then remedies may include injunctions and damages.”

Conclusion

While people are biologically pre-programmed to share new ideas and information, we are also predisposed towards opportunistic behaviour, particularly in the business world.

In the right circumstances, everyone (even lawyers) can be drawn in and manipulated into making a decision, or taking action, that is against their better judgement. When it comes to sharing a good idea with others, the best defence is a good offence.

Always exercise hyper-vigilance in your dealings with others and, wherever possible, use confidentiality agreements when you must share sensitive information.

Work smart and take the fight to your competitors the right way by preventing a potential legal conflict before it arises.

Have you had a similar experience in the startup or business world? What did you do about it? Let us know in the comments section below!

Further Information

To get in touch with a legal professional specialising in intellectual property, social media law or technology law, contact:

• Pod Legal (VIC, QLD)
• Phone: 1800 POD LEGAL (1800 763 534)

For more information about patents, contact:

• IP Australia

When you start your own business, reading a lot of information about the necessary legal documents is par for the course.

But after a while, everything you read can seem to be involved in a conspiracy of conflicting advice and excess browser tabs. Leaving you with no clear answers and a serious case of decision-making fatigue.

We heard your pain. We took it hostage. And converted it into a little video on the main legal documents you need to get your startup venture off the ground.

Key Legal Documents:

Although dealing with the legal side of your startup can seem like a daunting task, it doesn’t have to be.

Tackle your legal documents early and they will continue to protect you and your business as it inevitably changes and grows.

Watch us put the squeeze on QuickLaw! Subscribe to BucketOrange Magazine’s Youtube Channel.

Further Information

To contact a legal professional who specialises in small business and startups visit:

• LegalVision; or
• Ph: 1300 544 755

While previous generations have prided themselves on maintaining job security, a stable income and working up to executive-level positions, unlike any generation before them, Millennials place a high value on independence.

We are wary of working in stagnant jobs with little variety or flexibility. After, perhaps, observing family and friends toiling in unfulfilling roles in a fluorescent-lit cubicle (nb: no one looks good in fluorescent light), we want to innovate by breaking the traditional career mould.

We crave the occupational freedom to create something meaningful and unique. In a recent study of Millennials in the workplace undertaken by Bentley University, 67% of surveyed participants described their career goals as starting their own business.

One of the most important criteria for establishing a successful business is to set it up the right way, in accordance with relevant legislation in your state or territory.

Say you have an amazing business idea to open your own boutique cafe! You have found excellent premises to open up shop and all that stands in the way of your thriving new venture is your landlord, and negotiating a favourable commercial lease for the premises.

The following tips will help you prepare for your meeting with your new landlord or leasing agent and put you in a position to confidently negotiate your new lease.

1. Rent

Do your homework. What are the rental costs like in the area of the premises you wish to rent?

It is handy to work on a costs per square metre basis.

Keep in mind that GST will usually be payable on top of rent.

2. Rent Review

A Rent Review is either of the following options (or sometimes a combination of them):

• Consumer Price Index Increase – CPI reviews are usually carried out once per year;
• Fixed percentage increase (for example, 4% each year); or
• Market review – ensures the rent you pay is consistent with current market rates. Market rent reviews are based on the rent paid by tenants in similar properties in the surrounding area and influenced by demand for similar properties. These reviews can be carried out by your landlord, a property valuer or estate agent.

From the perspective of your landlord, the rent review is an integral element of your commercial lease. It means that your rent will be reviewed at specified intervals and makes sure that your rent aligns with current market rates.

Make sure you aren’t paying too much. Over the course of a five-year lease, fixed price increases of 5% a year can see your rent increase 25% over the term of your lease.

3. Term Of The Lease

The length of your lease agreement is something you will need to negotiate with your new landlord. You may wish to sign a long-term lease to secure your premises, however, there are advantages and disadvantages with this approach.

One of the main benefits of a long-term lease is that it provides you with security, the ability to build up your business and to make it a saleable asset.

A potential disadvantage is that if the term of your lease is too long, and you expand your business, you may outgrow your premises.

Write a business plan so that you are confident of where you want your business to be in 5 years time. Is the current location temporary until you can find the capital to expand? Or do you have plans to develop the business operations from the same location?

By asking yourself these simple questions you can be sure that the length of your commercial lease is right for your circumstances.

4. Will You Need To Fit-Out The Premises?

Do you need to provide the necessary equipment to run your business from the premises, such as final decorations or fittings? If so, what is it likely to cost?

Sometimes your landlord will either pay for the fit-out or provide a combination of a lease incentive payment and/or rent-free period to assist with the costs of your fit-out. The most common lease incentive is a contribution by a landlord to whole or part of a tenant’s cost of fitting out of the premises or the provision of a rent-free holiday or a rent discount period.

Make sure you consider these hidden costs and ask your landlord for a lease incentive payment and rent-free period.

5. Permitted Use Of The Premises

When negotiating your lease agreement you should be aware of your proposed use of the premises.

Negotiate your permitted use to be as broad as possible to account for the fact that in the future your business may diversify, or you may want to sublease some of your space.

Without a broad permitted use of your premises, this may not be possible unless the lease is varied.

6. Assignment And Subletting

It is important to ensure that your lease allows you to sell your business and assign the lease. Assigning your lease means that all rights you have over your premises may be transferred to another party. This will be important if your business expands or you wish to move premises for other reasons.

You should also make sure that your lease allows you to sublease part of your premises. Subletting allows you to lease all or part or your premises to a third party, rather than your landlord, during a period of the unexpired balance of your term of occupancy in the premises.

Most landlords will allow this, subject to several conditions.

7. What Are The Outgoings/Operating Expenses?

The reference to ‘outgoings’ in a commercial lease usually refers to increases in taxes and rates that may include the running of the physical building where your premises are located. Generally you will not be responsible for paying outgoings, unless this is specified in the lease agreement.

If your landlord is passing on the outgoings (or operating costs) to you, and is charging separately for these services, negotiate a fixed-fee or cap on the amount.

Also, make sure your landlord is transparent and discloses these expenses to you before you enter into the lease.

8. Alterations Or Improvements

Most leases state that a tenant cannot make any changes or improvements to the premises without your landlord’s approval.

While sometimes a landlord’s approval is a formality, the approval is still conditional and subject to your acceptance that:

• all work is undertaken by a licensed and approved contractor
• you must extend your own insurance to cover all improvements
• you agree to make restitution for any damage incurred when removing the improvements (if mutually agreed – to restore the property to its previous condition).

What happens with the improvements at the end of your tenancy should be clearly documented and understood by you and your landlord.

Ask for a clause that gives you permission to complete particular work, for example, if you require a fit-out of the premises with your landlord’s consent.

9. Make Good And Refurbishment

A make good clause is common for commercial lease agreements. It requires you to make sure that the premises are returned to your landlord in the condition you found them.

Some leases only say that you must return the premises in the condition they were in at the start of the lease. Other leases can be onerous and impose redecoration obligations that extend to re-painting and re-carpeting premises.

Make good clauses can have some hidden lurks, so it is important to carefully check the terms of your lease agreement and raise anything you are concerned about with your landlord prior to signing.

10. Costs

When negotiating your lease agreement, make it clear who will pay the lease preparation costs.

Ideally, each party should bear their own costs. In the case of a retail lease, Retail Lease Legislation in each state and territory prohibits your landlord from passing on these costs to you.

There is no such restriction in commercial leases, and all prospective tenants should be aware of this.

Conclusion

Like most things in life, starting your own business is not hard when you know how.

Branching out on your own entrepreneurial venture is less daunting when you understand how to avoid potentially costly pitfalls and where to find professional help.

Renting a commercial property is a business transaction, and you should make the decision to enter a commercial lease agreement carefully and with professional assistance. The cost of your business lease is likely to be one of the biggest overheads you have.

Have you started, or dream of starting, your own business? Tell us about your startup experiences in the comments section below!

Further Information

To get in touch with a legal professional specialising in commercial leases visit:

• LegalVision; or
• Ph: 1300 544 755

When many young entrepreneurs and start-ups turn their minds to business assets, matters such as finances, office accommodation, computers, equipment and staff are among the first things that come to mind.

But protecting your business assets, and the profits that flow from them, also encompasses intellectual property (IP).

Australia’s framework of IP laws are designed to protect everyone – whether you are an entrepreneur, small business owner, designer, artist or inventor – with exclusive rights to use and control your intellectual or creative work.

What Area Of Intellectual Property (IP) Law Protects You?

The first step is to work out what kind of IP you actually own. IP is not registered or protected as a physical ‘thing’, but rather as a set of rights over how certain things such as sounds, images, words or creative works are used.

IP is the umbrella term for ‘property’ that you have developed and devised through your intellect. Nevertheless, not all IP is the same, and not all creations will attract IP protection under the law. Some forms of IP require formal registration through a government body to be protected by the law; while other forms are automatic.

Ideas are not IP and cannot be protected as IP. To protect a form of IP, it must have an aspect of physicality or be in some tangible form.

1. Patents

Patents are devices, substances, processes or methods that are useful, new and inventive.

Quite often, patents are referred to as ‘inventions’. To successfully claim protection and ownership of a patent, patents must have formal registration.

To satisfy the ‘new’ component of a patent, it is very important that you keep your invention somewhat secret. Do not share your invention with the world before it has patent protection.

Patents grant their owners a state-granted monopoly of the commercialisation of the invention, but they do have a maximum life span for you to exploit them as your exclusive property. The number of years you have this monopoly over the invention will depend on the type of patent you obtain.

2. Designs

A registered design covers the look or appearance of a product that is new and distinctive.

It does not, however, cover how something works, i.e. its purpose or function. These aspects are likely to come under the heading of patents.

To achieve the greatest degree of protection under the law, and to ensure your designs are not copied, you will need to have certification of your registered design. Again, as a design must be new, you will need to look into filing any applications prior to publicly disclosing your designs. The maximum lifespan for a design is 10 years, during which time you have exclusive ownership to exploit the design.

3. Trade Marks

As an entrepreneur or business owner, do you use any signs or symbols to distinguish your goods and services from the goods and services of other traders?

A trade mark can be your brand name, logo, slogan, or even more abstract things like sounds, smells and colours.

Formal registration is required for the owner of a trade mark to claim protection and ownership. While patents and designs must be new, trade marks do not have this same requirement, which means applications can be made after publicly disclosing your trade marks. Trade marks, in Australia, can be renewed in 10 year blocks indefinitely.

4. Plant Breeders Rights

If you are able to successfully breed new and distinctive plant varieties, you may be entitled to register IP rights over this breed.

Like trade marks, these rights are not granted automatically. Since the plant variety needs to be new to satisfy the registration requirements, it is important to seek advice to assess your legal position before publicly disclosing your plant breed. If you disclose your discovery too early, the opportunity to gain exclusive ownership may be lost entirely.

5. Copyright

In Australia, copyright protection is an automatic form of IP protection. This means that you do not need to submit any painstaking applications, or pay any government fees.

Copyright protection covers ‘works’ that are creative and original, including literary works, broadcasting works, dramatic works, and works of craftsmanship, to name a few. In other words, if you created or authored the work, then you own the copyright in that work.

If you have outsourced any sort of work, it is important to check that your contractor’s contract stipulates that ownership of copyright in works created in the course of their employment is assigned (transferred) back to you. Failure to check this will mean that, by default, the contractor will own the copyright they create.

Copyright protection lasts for the life of the creator, plus 70 years. In cases where the duration depends on the year of publication of the work, it lasts until 70 years after it was first published.

6. Circuit Layouts

Circuit layouts are automatic rights granted to original layout designs of integrated circuits and computer chips.

Although these laws are based on the laws of copyright, circuit layouts are a distinct form of IP that is protectable in its own right. From the first commercial exploitation of a circuit layout, the owner will have 10 years of exclusive ownership rights.

To be valid, however, the first commercial exploit must take place within 10 years of the date of creation of the circuit layout. This means that the lifespan is, in some cases, more like 20 years.

Important Takeaways

• The subject matter of Designs, Patents and Plant Breeders Rights all must be new. As such, any sale, promotion or public disclosure of your patent, design or plant may forfeit your ability to seek protection. Get legal advice before you share your intellectual property with anyone, and, if disclosure is inescapable, make sure that the other party signs a confidentiality agreement.

• In general, intellectual property rights apply in all states of the country in which you are granted rights. As such, when looking to commercialise your IP in other international jurisdictions, it will be important to look into the filing and registration requirements of those countries.  In certain cases, particularly with Designs and Patents, there are limitations on how much time you have to apply for registration overseas.

Conclusion

To be a successful young entrepreneur or start-up it is critical to understand, and be proactive, in safeguarding your rights and interests.

Obtaining IP protection and registration can be a complex and confusing process. Any mistakes made during the application stages can leave you unprotected, with an invalid protection and/or the need to redo the application, which may lead to further expenses.

The best approach is to seek advice from a legal professional who specialises in IP law early, and especially when lodging your applications and registrations. This way you can rest assured that your IP interests are water tight.

Further Information

For efficient, high-quality and cost-effective advice visit:

• LegalVision website; or
• Ph: 1300 544 755

LegalVision business lawyers primarily work online, meaning you can receive a response to your legal question quickly (often within 48 hours).