Australian Business Law: Registration and Procedures for Existing Business

Business Registration Procedures under Australian Business Law

Question:

Explain about the Australian business law.
 

The given situation is about Kate, who is the owner of a successful business that sells women shoes. Upon the successful completion of the business, she wishes to expand her business and continue to do the business in the new pattern.

While going through the matter of Kate, the primary advice that can forward to her is about the application of the business registration and in particular the procedure for the already existing business.

Under the Australian business law, the business owners or the person willing to start a business shall register with the ASIC or the Australian Security and Investment Commission (Bird et al. 2016). In the recent times, the procedure has become as simple as to apply within the online and that the scope of the various systems of the tax giving policies including the return procedures is also quite accessible (Sackmann et al. 2013).

It is one of the important steps to choose the structure of the business with the help of the useful resources as available with ASIC.

Once the structure is chosen then the steps of the registration follows:

The registration of the company requires the reservation of the company name as well as the plan on how the company will run.

Some factors like the replaceable rules and the constitution must be made so that the structure finds a proper base. After the step of the registration, the consent from the members acting is mandatory because the corporation must have members who have attained the age of 18 years.

Once the company registration gets completed, then the concern with the property law is a matter of importance for a registered business.

Usually, there are two types of property:

1. The real property
2. Personal property

But in some cases, the business stands on the leased property as well. On such cases, the legal rights, as well as the equitable rights, are differentiated while the interest stands on the land of possession (Galloway 2015). While the owner has the power to exercise the legal rights, the person in possession has exclusive control. So, anything belonging to the owner is a liability on the part of the possession holder to return. The facts are observed in the matters of, Armory v Delamirie and Ranger v Giffin.

It is important for the company holder to have knowledge of the personal property securities since so that there is hampering in the ongoing business dealings.

The business holder must have a registration under the intellectual property law and have a copyright protection of the uniqueness wherever necessary so that there shall not be any other reproduction of the work (Reynolds et al. 2012). The protection of one’s work is necessary because the copyright section explains the work as someone’s sole property.

There are tests available under the copyright law to determine how much and whether any work is copied or not, Milpurrurru v Indofurn.

The copyright act and the intellectual property right is an important tool to protect and safeguard of the misuse of the work. Hence, the sale of goods acts. The sale of the good act comes with the compliance of the consumer protection act so that the interests of the consumer are protected (austlii.edu.au 2016).

Intellectual Property Rights and Copyright Protection

The copyright of the business not only concerns the unlawful copying of the works but the necessity to protect the business name (Davis 2012). The act of protection of the business name is necessary so that there is no other business existing can run under the same name, which might spoil the goodwill of the existing business (Stone 2014). The ASIC even restricts the use of the same name for the business and sometimes the registration of the company detained due such circumstances faced by the registering body as observed in the matter of Targets Pty Ltd v Target Australia Pty Ltd.

The law is important for the newly registered business dealing with the product selling so that the good faith of the customers do not get destroyed as stated in the matter of Grant v Australian Knitting Mills. The sale of goods is one of the implied terms in the regulations as per the register board of business declares as well as the consumer laws (legislation.vic.gov.au 2016).

The advice so made to the owner of women shoe selling the business is necessary because the registration of the business under the Australian business law holds some obligations while running the business. 

1. Possible liabilities for the employees to claim entitlements after the change of ownership for Kids Pty. Ltd.
2. Liabilities held by Myra upon the payment of assets and compensation to the existing employees.

The liabilities held by the employees are same as they had in the previous company.

They have a right to continue with the service and are liable to get all the facilities as was prescribed under the previous ownership. The employees are liable to get the holidays, periodical off and severance pay. The continuity of the employment flows through the liability of the purchaser of the business. The new owner is liable to hire all the employees and with same terms and conditions.

In this situation, it is explained that the new company owns thousand dollars to each employee. The clothing for the kids does not have any assets of their own. The new business even holds some superannuation and the long live entitlements. Upon such grounds, it is mandatory for a company to start a business with assets as credentials so that it is easier for the entity to pay off any compensation to the employees liable for such compensation.

It is the right of the employee to ask for what is their right to deserve as an employee of a company.

1. For the given situation, the rules under the sole trader and the company law will be applicable here. Usually, in the proprietary business, there is a sole trader or the director who decides the ongoing business procedure. There is no constitution mandatory for the ongoing of the organization, and the liabilities of the sole traders are not limited. But in the case of the proprietary company, the owners hold a limited liability (Hoffman et al., 2014). Usually, in the proprietary form of the business, there are some acting members and directors. But in the given matter, there was no such acting body in the company. Myra is the only shareholder and director of the kids clothes Pty. Ltd. A limited liability holder is expected to keep some assets during the time of necessity. The assets are used for the following purposes:

The loans provided to the company can be secured only the property that the company owns. In certain cases especially for the limited liability company, the directors are asked to pay some personal guarantees.

Companies must be competent to procure the investment from the outside parties for the offering of the loans (Farrar and Hiscock 2015). There is an exception with the sole traders in this factor as the sole trader cannot be able to offer the shares. Hence, when the sole trader requires loans they have to apply and ask from the lenders or the banks.

In a proprietary form of the company, the owner is having some specified rules governed by the corporate regulations. But if the business has any sole owner then there are no such rules governing the business (Sadiq and Governatori 2015). Again upon such cases there are some exceptions to the rules which explain that if the company have employees, then they are liable to some rights as in the favour of them.

The company is liable to pay the taxes as imposed upon periodically and must apply for the registration before the existing period gets over. The sole owner of the proprietary company has the right of creditors to the bank during the time of insolvency as described under the bankruptcy act of the company. The bankrupted situation of the company can contact with the Insolvency and Trustee Service Australia (ITSA) (afsa.gov.au 2016).

On a successive ownership of the company, it is mandatory for the company to run under specific rules as mentioned under the Corporation Act. The replaceable rules are highly recommended to keep awareness and to give scope to better amendments (legislation.gov.au 2016).

It is not valid to take any action against Myra personally since, while transferring the business she gave enough credits to the new company so that there is a possibility of the employees to go with the facilities and liabilities they owned while in the kids cloth company.

Myra handed over the business to clothing for kids after determination of the entitlements has been valid from the part of the legal obligations. It is the duty of the new employer to look at the employee in such manner and period from when they are working under the previous ownership. The phase of the employment is known as the length of employment.  

References:

Afsa.gov.au. 2016. AFSA — Australian Financial Security Authority. 

Austlii.edu.au. 2016. COPYRIGHT ACT 1968. 

Betke, H., Kittel, K. and Sackmann, S., 2013, March. Modeling Controls for Compliance--An Analysis of Business Process Modeling Languages. InAdvanced Information Networking and Applications Workshops (WAINA), 2013 27th International Conference on (pp. 866-871). IEEE.

Bird, H.L., Gilligan, G., Godwin, A., Hedges, J. and Ramsay, I., 2016. An Empirical Analysis of the Use of Enforceable Undertakings by the Australian Securities and Investments Commission between 1 July 1998 and 31 December 2015. CIFR Paper, (106).

Bouchoux, D., 2012. Intellectual property: The law of trademarks, copyrights, patents, and trade secrets. Cengage Learning.

Davison, M., Monotti, A. and Wiseman, L., 2016. Australian intellectual property law. Cambridge University Press.

Farrar, J. and Hiscock, M., 2015. Australia's Trade, Investment and Security in the Asian Century. In V.I. Lo ed.,, Australia's Trade, Investment and Security in the Asian Century (pp. xxiii-xxiv).

Galloway, K., 2015. Sustainability in the Real Property Law Curriculum: Why and how. Journal of Learning Design, 8(2), pp.31-42.

Hoffman, W.M., Frederick, R.E. and Schwartz, M.S. eds., 2014. Business ethics: Readings and cases in corporate morality. John Wiley & Sons.