Business Owners Help Kit

KEY LEGAL CONSIDERATIONS FOR BUSINESS OWNERS AFFECTED BY COVID-19

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The full and varied effects that COVID-19 will have on businesses and indeed life in general remain to be seen, but below are the most common issues that we have seen arising out of the pandemic and some of the main issues that owners and managers should consider for their own businesses. These are:

LEASING

Along with wages, rent is commonly one of the largest expenses for a business. With the ability to effectively use those premises severely hampered by COVID-19, it makes sense to try and reduce these costs.

The keys points to consider here are:    

• The first step is to have someone look at your lease thoroughly to see if you have any clauses that can reduce your rent already such as rent abatement clauses;

• Even if this is not the case, provided that a business meets the eligibility criteria for the JobKeeper programme, they should be able to benefit from the new Code of Conduct for commercial tenancies (Code), when it becomes law.

• If you qualify for the Code, you should sit down and talk with your landlord to negotiate a rent reduction waiver and/or deferral to assist you though any financial hardship. The Code also has protections around evictions and limiting landlords’ rights to access security. But this should not be seen as a reason to “duck” your landlord as the Code also requires tenants to use their best endeavours to comply with leases or they may lose the protection of the code.

• Once a deal is reached with a landlord, it should be properly documented to prevent the potential for later dispute.

The key is for both parties to talk early on and document it. Through open conversations you may find that both parties (remember landlords are also hurting now as well) are open and willing to work together to ensure it’s a working relationship. Just ensure you document the changes. We’ve been doing a lot of work in this space recently and have created a tailored COVID-19 Variation Deed which helps make these conversations easier. Happy to help or make sure your call your lawyer to help with this process. 

EMPLOYEES

There are far too many issues to consider all of them in this brief rundown, but the best advice on employee issues is to take external advice as employment law can be complicated even during the normal course of business, let alone in a pandemic.

Two important things to consider which are relatively unique to this situation are the following:

1. When your employees are working from home, you still owe your employees the normal duty of care as an employer. This means that you should:

• Consult with the employees, including sharing relevant information, giving employees a reasonable opportunity to express their views and advise employees of outcomes.
• Provide and maintain a safe working environment without risks.
• Provide and maintain safe plant, structure and systems of work without risks.
• Ensure the employees’ health and conditions are monitored to prevent injury or illness arising out of the conduct of the business.

2. If your business has been drastically, but temporarily affected, you may have the ability to stand down employees. Subject to any employment agreement, under section 524 of the Fair Work Act an employer can stand down an employee due to a stoppage of work for any cause which you, as the employer, cannot reasonably be held responsible. If you do stand employees down under that section, then you are not required to make payment to your employees for that period. This right should be exercised carefully though as if you use it when you are not entitled to do so, your employees may be able to recover unpaid wages.

The JobKeeper allowance is also available to many businesses, so before you take any drastic action on the employment front, you should determine your eligibility for that payment and determine how it affects your position and then take advice before you act.

CONTRACTS, FORCE MAJEURE AND FRUSTRATION

In many instances, as a result of COVID-19, businesses will find themselves in a position where they simply cannot comply with their contractual obligations. In these circumstances, there are two legal principles which may apply:

1. Force Majeure allows for the suspension of a party’s rights and obligations under a contract if certain specified events occur, beyond the control of the party claiming Force Majeure; and

2. The doctrine of Frustration allows a party to terminate a contract when a frustrating event that is unavoidable and unforeseen occurs, so that the parties are no longer bound to perform their obligations under the contract while that event continues to occur.

Both force majeure and the doctrine of frustration have very specific requirements, which will depend on the contract and your individual circumstances, but if either apply, it can provide very powerful ability to suspend or avoid contractual rights.

With these it is very important that you obtain good advice before you discuss it with the other party to the contract as things you say or do in the meantime can change your contractual position and rights.

CHANGES TO BANKRUPTCY AND INSOLVENCY LAWS

The Federal Government has announced some changes, including its intention to make temporary amendments to bankruptcy and insolvency laws because of the challenges COVID-19 now poses for many otherwise profitable and viable businesses.

The changes are:

• The government intends to relieve directors from the risk of personal liability for insolvent trading, where the debts are incurred in the ordinary course of business
• The minimum threshold at which creditors can issue a statutory demand to a company that owes them money will temporarily increase from $2,000 to $20,000 for six months.
• The threshold for a creditor to initiate bankruptcy proceedings against an individual will temporarily increase from $5,000 to $20,000 for six months.

It is important to note that these measures do not relieve businesses from the liability to pay these debts so you will still need to make plans with creditors for how you plan to satisfy these debts. 

If you are in this position you should use this time to negotiate an arrangement or if you know that you still may be unable to make the payments, you may need to obtain further insolvency advice.

The biggest takeaway now is not the time to bury your head in the sand.  Now is the time to have conversations, look at the key items, mentioned above, seek professional advice and document any new arrangements or agreements you reach 

Craig Hong is a director at Hillhouse Legal Partners and leads the corporate and commercial division. He is also a member of the Brisbane Junior Chamber of Commerce.

Written by (Proud BJCC Committee Member):

Craig Hong

What does COVID-19 mean for you and your business?

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Effects of the COVID-19 pandemic are being felt across the globe with new challenges arising daily. For many business owners, focus has now turned to proactive planning in order to stay afloat during these trying times. The coming months will prove to be a juggling act for some as they manage personal and business finances through a blackout of sales, and in some cases unemployment.

Understanding the support available will be critical to surviving, along with the knowledge to apply these measures while making difficult business decisions. 

What support is currently available?

The Federal and State Governments Australian government, have released various measures aimed at supporting those impacted by COVID-19.

These measures are broadly focused on:

• Boosting cash flow through a reduction of employment taxes, deferrals of payments, changes to GST reporting periods and wage subsidies for apprentices
• Support payments – increasing existing job seeker, two one off pension payments for these recipients, and now recently the job keeper measurers
• Early access to super (for yourself or your staff)
• State and federal loans for operating businesses focusing on working capital
• Boosting the economy by offering tax incentives for investment in business assets (for those that have the ability to do so right now)
• Relief around statutory demands, safe harbour rules and insolvent trading

As you enter crisis mode, what do you need to focus on?

The key focus for business owners should now be cash flow. Some helpful tips for cash flow management include:

• Build your cash flow forecast from the bottom up on a weekly basis. Work out what’s coming in and out, and then start negotiating
• Consider your debtors – Who owes you money, what’s their capacity to pay, when are these funds expected to come into your account?
• Know your expected income and sales – What’s the current impact to your income, what are the barriers to your general sales stream and how can you re-invent yourself in this time to continue to provide your product or service? Those that adapt the fastest will have the highest success rate
• Staff costs – your people probably one of your most important assets in business, which will be some of the hardest decisions right now. Who can your business not survive without? CCIQ can assist with some of the HR/legal challenges you’ll face as an employer during this period https://qldchamber.com.au/
• Identify your costs – Speak to your landlord, take into account the electricity and utility rebates offered in Queensland at a business and household. Are there key suppliers that you can negotiate and defer terms with to assist with cash flow?
• Explore tax concessions and relief – Speak to your current adviser about the concessions available here. While not absolving all your responsibilities and commitments, the ATO is working with tax payers to alleviate as much stress as possible on the tax payer
• Start talking to your banks now – Banks have released various measures to support their customers
• Investigate support loans available – There are loans currently available at a state and federal level, with different attributes and application processes. Ultimately, the government is looking to provide viable businesses with access to working capital as soon as possible.

What now?

Government measures and stimulus packages are changing rapidly, and it is great to see the recent support aimed at the household level for those employees stood down. Which may take some of the load off the welfare system and have each employer taking responsibility for their pool of employees.

Please reach out to myself if you would like to have a talk through how the stimulus applies to you.

My wonderful firm BDO, has a team of national experts analysing the announcements, and what they mean for Australian businesses. Our COVID-19 resources are updated daily to assist businesses understand what they need to know in order to take proactive action. 

Written by (Proud BJCC Committee Member):

Isabel Brew