Laws On Running A Business From Home

Contents

Working from home is now a familiar feeling for workers in this day and age. But, what if you want to run your business from home entirely?

If you’re thinking of running a business from home, there are a number of legal aspects you need to be ready to consider. We’ve compiled a list of the basics of starting a business from home, which aren’t too different from considerations when working in an office.

These include:

Structuring and registering your business
Applying for relevant tax concessions
Insurance
Intellectual property
Privacy
Contracts
Shipping

Running a business from home has some extra considerations, such as:

How can I maintain my Work Health and Safety obligations at home?
Do I need a Working From Home policy?
Can I monitor my employees while they work remotely?
Do I need additional policies for privacy?

In this article, we’ll break down these aspects and how you can remain compliant with employment and privacy laws from home.

I Want To Run A Business From Home – Where Do I Start?

Business Structure

When you start a business, your first step is to decide on which business structure will work for you. This is important because it will affect the way your business operates and should complement your long-term goals.

The most common business structures include the following:

Sole Trader: A sole trader is where an individual operates a business under their own name and ABN. The business is not separate from its owner, so you may be liable for the business’ debts.
Partnership: This is where two or more people run a business together as partners. It is also not a separate legal entity, but it requires an ABN and TFN for tax purposes.
Company: A company is a separate legal entity and is protected by limited liability. It can either be public or private and requires an ACN.

Your choice of business structure should be based on your financial capacity as well as your plan. For example, the intended size of your team and how much you’d like to grow in the future.

If you want to keep things small, a sole trader structure is most suitable for you. Otherwise, if you have big plans for your business and you have the money to spend, then a company structure might be a better option.

Register Your Business Name

Next, you will need to Register Your Business Name. This will involve going into the Business Names Register and selecting one that isn’t already in use.

Once you have chosen a name, it can be registered online. If you are a partnership structure or a sole trader and use your own name(s) for the business name, then there is no need to register it.

Registering a business name does not mean you own that name. If you believe your business name is unique and would like to consider ownership of it, then you may wish to look into trademarking – we’ll discuss this below.

Apply For Relevant Taxes

Home businesses are eligible to claim tax deductions for expenses. Claims for occupancy, running expenses and motor vehicle trips are all applicable, so ensure you are aware of which ones can apply to your business.

As a business owner, you will also need to apply for a Tax File Number (TFN). In addition to this, you will also require an Australian Business Number (ABN). If your business is a company, then you will also need to apply for an additional, Australian Company Number (ACN).

Insurance

Certain types of insurance are mandatory for some businesses:

Third party personal injury insurance (if you own a vehicle)
Workers compensation insurance (if you have hired employees)
Public liability insurance (in case of injury or death)

The type of insurance you are required to have will depend on your business operations.

What Are My Obligations As An Employer?

Hiring people to help run your business comes with additional obligations. These include fair pay, leave and entitlements under the Fair Work Act (2009).

The Fair Work website allows you to calculate appropriate wages for potential employees. Additionally, they have provided a Best Practice Guide that goes through all the legal considerations a small business owner will need to think about when hiring employees.Taking the time to ensure you are meeting all of your employer regulations will keep your employees happy, avoid any disputes and attract more people who want to work for you.

You’ll also want to check the relevant award that applies to your employees, otherwise the National Employment Standards (NES) the apply.

It’s also worth checking whether your staff are considered employees or contractors, as your obligations to them will differ.

Consumer Guarantees

Australian businesses must follow a number of consumer guarantees under Australian Consumer Law (ACL). A business must ensure that the goods purchased:

Are fit for the purpose it is known for
Are not misleading about the quality or functionality
Come with full possession for the purchaser
Have a reasonable warranty
Match any sample products
Have a clear title
Do not have any surprise charges

If your business intends to sell goods or supply services, it must be compliant with Australian consumer laws.

Supply Agreements

Supply Agreements are important in ensuring business operations run smoothly. If your business requires a supplier to provide any materials or products, having a Supply Agreement in place is a proactive way of protecting your venture.

A Supply Agreement will typically include important information such as:

The length of the agreement
Times and dates
Delivery
Warranties
Dispute resolution
Costs

This agreement is crucial for your business as it will set out the key responsibilities of each party and ensure you are both clear on how the process will work. So, if something goes wrong, there is a process to follow to sort it out.

It’s advisable to have a legal professional draft a Supply Agreement for you. At Sprintlaw, we can tailor a Supply Agreement that is catered to the needs of your business with our Supply Agreement Package.

Intellectual Property

Intellectual Property (IP) is one of the most valuable assets of a business. Fortunately, the law offers multiple ways to protect your IP. These include:

As a business owner, you are likely to be interested in trademarks or copyright. Trademarking a particular logo, name or symbol is a way for a business to carve out a place for itself in the market by distinguishing its brand. For example, you may want to register a colour, logo, name or even a smell.

Trademarks and other forms of intellectual property are handled by IP Australia. The process of registering a trademark can take up to seven months and is rather complex, so we recommend seeking the help of a legal professional.

Our Trademark Headstart Package will have one of our lP experts take care of the application for a fixed fee.

If I’m An Ecommerce Business, What Else Should I Know?

If you’re an eCommerce business, there are a number of additional legal considerations. Since you’re primarily online, you’ll need to think about the best way to protect your business from online risks, data breaches and the way you engage with users across the globe.

Terms & Conditions

Every eCommerce website is required to have Terms and Conditions. . These terms should be easy to understand, not too complicated and easily accessible. Put simply, you want users to be able to read them and quickly understand what their role and responsibility is when they engage with your business.

Having terms and conditions in place will not only protect your businesses should any relevant complaints arise, but it is also a great way of being transparent with your customers.

Privacy Policies

If your business has an annual turnover of $3 million or more, the Privacy Act (1988) applies to you. This means, amongst other requirements, you will need to have a Privacy Policy in place that discloses to users how you manage and store their personal information.

What Is Considered ‘Personal Information’?

Personal information could include details like users’ names, phone numbers or email addresses. Even if your business earns below the threshold, the Privacy Act may still apply to you (for example, if you handle health information).

Personal information falls under the umbrella term of ‘sensitive information’. Sensitive information requires a higher level of protection. Under the Privacy Act, this could include racial or ethnic origin, political opinions or even philosophical beliefs.

The Australian Law Reform Commission has written more about sensitive information and how your business needs to comply with the Act.

So, it’s always worth considering a Privacy Policy regardless. It’s a great way to show customers that you’re serious about their privacy, and is a good starting point for an open and transparent relationship with online users.

Cyber Security

No matter what kind of business you are, you cannot rule out the possibility of a cyber security breach. Thus, a strong cyber security system will not only protect your business, but also your customers.

As you are processing and storing private information, a data leak could jeopardise the reputation of your business. Preparing an appropriate Data Breach Response Plan is an effective way to combat this. This essentially sets out a process to follow if such a breach occurs, and will let staff know the relevant steps to take to prevent any further damage or loss.

We’ve written more about how your business can best prepare for any cyber security threats.

International Considerations

Selling internationally requires different considerations. These can include:

Export and import regulations
Having an internationally registered trademark
Different or additional shipping costs
Website security policies for different regions
Social or cultural sensitivity
Employee obligations

When you do business overseas, you’ll also need to draft your contracts a little differently. For example, if something goes wrong, whose jurisdiction will it fall under? Which country’s laws apply to your dispute?

Depending on your business and its goals, it’s always best to consult a legal professional in that local jurisdiction and have them advise you through some of these potential concerns.

Dropshipping

Most eCommerce businesses will consider a dropshipping model. This basically means that instead of keeping stock in your inventory, you have an arrangement in place that allows your suppliers to send products directly to customers when they order from you.

This saves you the time and resources required to hold inventory and worry about selling it all. Instead, you only ship the products that have actually been ordered.

However, it’s important to understand how dropshipping works and comply with your legal obligations under the arrangement. For example, it’s crucial that you have a strong Supply Agreement in case your customers aren’t happy with certain products from your suppliers.as you are likely to be liable for it.

Example
In the case of Australian Competition and Consumer Commission v Ozdirect Online Brands Pty Ltd (2009) Ozdirect was determined to have engaged in misleading and deceptive conduct.

Ozdirect had been using the method of dropshipping to provide goods for their customers, however, they breached their service agreement with their supplier resulting in many unhappy customers who did not receive their products after paying for it.

How Will I Fulfil My Obligations To Employees Remotely?

It is important to ensure you are still fulfilling obligations to employees even if they are not physically present. Being proactive regarding potential issues and having systems in place can combat any obstacles that are created from a virtual workplace. This can look like:

Clearly communicating internal policies and professionalism in conduct
Using communication mediums that can be tracked
A dispute resolution process
Work from home policies

Additionally, Work Health and Safety obligations are still applicable for remote workers. As an employer, you are still responsible for ensuring your employees are reasonably safe. Identify any hazards and take reasonable steps to minimise those hazards.

For example, you may have a process in place where you call employees on Zoom and ask them to scan their Work From Home space, and you can assess whether it is a safe environment with minimal hazards or risks.

Example
A business owner hires an IT expert for their software company. It’s a remote job that requires sitting in front of a screen for extended periods of time. To minimise the health hazards, the employer sends their employee a standing desk to use from time to time and schedules appropriate breaks throughout the day so they can stretch.

Next Steps

Setting up a business from home requires a multitude of legal considerations, such as:

Registering the right kind of business structure
Ownership of Intellectual Property
Applying for insurance and tax deductions
Ensuring all online policies are compliant
Having strong Contracts in place
Providing the right reimbursements for any employees

Getting these matters in order is important for the success of your business. A legal professional can ensure everything is done correctly so you can focus on maximising your business’ performance.

If you would like to discuss the legalities of setting up a business from home, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat with our friendly consultants.

Sapna Goundan

Sapna has completed a Bachelor of Arts/Laws. Since graduating, she's worked primarily in the field of legal research and writing, and she now writes for Sprintlaw.

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