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The 7 Key Legal Issues in Buying a Business

The 7 Key Legal Issues in Buying a Business

The 7 Key Legal Issues in Buying a Business

The 7 Key Legal Issues in Buying a Business

1. Not Rushing In

You might be incredibly excited about buying a business, and we have come across people who have decided they want to work from home, have a look on Facebook marketplace and agree to spend money they don’t have, all in one day. No consultation with a lawyer or accountant, no real understanding of what is involved in the business. It did not last and it cost them money. 

We’ve also come across people who buy a business with unrealistic expectations of the work involved and an expectation that if the bank is prepared to lend them the money, they would be able to make a success of it. 

A business purchase is a big commitment. It is not just the cost involved, but running the business afterwards. The next three case studies to show why it is important not to rush into a purchase.

Case Study 1 

A young lady came to us with an offer from her employer to purchase the hairdressing business she was working in ‘cheap’, and to take over the lease for the business. She was keen to sign the agreement, as the seller (her boss) wanted to get out of the business before the end of financial year and it was already June. 

A quick review of the deal suggested that our client would be taking on a business that was only still operating because of her work, a lease that had three years remaining and was not cheap, and the need for some refurbishment of the salon. The landlord was offering a $5,000 incentive for fitout, but the likely cost was probably going to be higher. 

Fortunately, we were able to get our client to slow down and get accounting advice on the business, and to identify to our client that the seller would benefit to the tune of $30,000 per annum by being out of the lease. We encouraged our client to get an estimate of fitout renovations, which came in at a little under $70,000. 

Our client decided there was no benefit in the deal to her and other opportunities were out there. 

Case Study 2

A client came to us after having already taken over a beauty spa business. She thought she had a good deal because the replacement cost of the relatively new equipment in the business was significantly higher than the requested purchase price, and the vendor was providing finance. 

By already being in the business and having paid a deposit of $5,000 to the seller, our client was committed, and there was nothing in writing. The client came to us desperate to get a sale agreement documented because the seller had said they would do it and hadn’t. Our client was already paying the rent, COVID restrictions came into effect and the seller was suddenly very cooperative in getting the paperwork complete. The landlord was fortunately agreeable to transferring the lease, but our client did not want us to advise on the lease, which was very basic. 

Two years down the track it became apparent that the appropriate council certifications had not been obtained for the plumbing work on the premises and the premises were non-compliant. The lease and assignment of lease were silent on responsibilities and our client ended up footing the bill. 

Difficulties with the lease could have been resolved before the purchase was completed if the client had not already been in the premises and operating the business before getting advice. 

Case Study 3

Our client was looking to buy his first business at around $200,000 and had found a business through a broker that he was keen to buy. He arranged the finance, did his own due diligence and asked us to become involved at contract stage. The broker had prepared the contract on behalf of the seller. 

When we received the business purchase contract, it was unclear from the contract what exactly our client was buying. On talking to the broker, they had moved from selling residential property into business broking and were inexperienced in the area. They were also quite frustrated that our client hadn’t simply signed the agreement and sent it back. 

Without the business sale contract clearly setting out what was being sold, we couldn’t assure our client about what they would receive. In addition, the landlord wanted the buyer to enter into a new lease at a rent $10,000 per annum more than the seller had disclosed to our client. 

Fortunately, our client did not rush to sign and when answers to our questions were not forthcoming, and his circumstances changed, he decided not to go ahead. In that instance he had invested in getting legal and accounting advice and told us he had a very valuable learning experience.

2. Knowing What you Are Buying

So, what are you buying? If the contract isn’t clear, then you might be handing over money and not getting what you expected. You need to know what is important to the day-to-day operations of the business and how much of that is being transferred to you. You don’t want to purchase a cafe and upon settlement, find out that the seller cleaned out all the cupboards and fridges the day before and you have to restock before you can trade. 

Case Study 4

Our client was looking to buy his first business at around $200,000 and had found what he thought was a printing business and that everything was done onsite. He had no experience in printing and was planning to hire someone to run the business. He arranged the finance, and asked us to become involved at contract stage. 

When we received the business purchase contract, it was unclear from the contract what exactly our client was buying. There was no mention of printing equipment, paper, card, inks or other stock. We also suggested our client carefully go through the accounts with their accountant to ensure there were sufficient profits in the business to be able to hire someone to run it. The seller was an owner/operator. 

Without the business sale contract clearly setting out what was being sold, we couldn’t assure our client about what they would receive, what equipment was in the business, or even if the seller owned the equipment being used and had the right and ability to sell it. 

Without ensuring the contract was clear, it is possible that our client could have only received business branding, a client list and the liability for a lease – expenses without immediate income.  He would then have also had to immediately spend additional money purchasing the necessary equipment to operate the business. 

Fortunately, our client did not rush to sign and when answers to our questions were not clear, and he was offered a role interstate, he decided not to go ahead. That client is looking to purchase a business for income without him having to be involved in the day to day. He hasn’t done that before and said that it had been a very worthwhile investment in getting legal and accounting advice before signing anything. He now feels better prepared to assess potential deals in the future. 

3. Profit is in the Purchase

When you are buying a business, it is very important to get appropriate accounting and financial advice. It is possible to buy a business that needs to be turned around, but only if you can do so at the right price. 

The profit is in the purchase. 

What opportunities do you have to increase revenue immediately or very soon after you buy the business? It is not uncommon that people who are ready to sell are at that point because they have lost real interest in the business and there is lots of room for improvement. If you can see the opportunities, and know how to leverage them, then you might be looking at a good deal. 

A lawyer who had bought a law practice on the Gold Coast once applied to work with Onyx Legal. They claimed they had been misled about the value of the business, paid too much and there was no opportunity to make money because the Gold Coast was a low socioeconomic area! Naturally, they didn’t get the job. You attitude to the business you are buying can influence your ability to make a success of it. 

When you go into business, success or failure is up to you. Know what the business is worth once the owner walks away (are customers attached to the owner and likely to follow them?) and understand what you are willing to pay to secure that opportunity. 

It is not unusual for cafes and restaurants to be sold for nominal amounts (like $1) because the owner is losing money and is better off getting out. Someone who understand the area, likely clientele, available workforce and marketing can potentially come in and make a success of it. There are stories of a Gold Coast restaurateur selling and buying back a restaurant a couple of times because he knew how to make it a success, but the purchasers didn’t. 

One of the early Australian online tipping platforms was bought from the founders by a larger company, and then bought back by the founders 18 months later at a much lower cost because that company didn’t know how to make a success of it.

4. Assets vs Entities

When you buy a business, you are either buying shares in a company, in which case you are buying the history, or you are buying assets – which is everything necessary to operate a business. Assets can be tangible (like a desk) or intangible (like a website). 

When you buy shares, everything in the company comes with it, so you must understand what loans or other liabilities are sitting in the company, and how they will be dealt with at settlement. Things like tax debts, overdue superannuation, bad credit ratings, court proceedings, embarrassing media stories and so on are all associated with the entity, and that is what you are buying. 

When you are buying assets, you need to understand what is transferrable and what is not. Not all supply contracts are transferable without the prior approval of the customer. So if the profits in the business are in one or two large contracts and it is not clear if they are transferable, you may be losing money as soon as the purchase is completed. 

These sorts of things need to be checked. 

5. Transferring Intellectual Property

Intellectual property – copyright, trade marks, patents etc, need to be transferred in writing, by the owners. It is important to check who owns what when buying a business. In particular, copyright belongs to the creator unless transferred in writing. Software, graphic design, website copy etc all belong to the creator. If the creator is an employee it is ok, the copyright vests in the company, but if they started as a contractor before becoming an employee, there can be uncertainty about what they company owns and is able to sell. 

Case Study 5

Our client was buying a health business and searches showed that the domain name and the website (separate things) used to advertise the business were not actually owned by the seller. A lot of patients found the business through the website. It was essential to have the sale of business contract adjusted to ensure that transfer of the domain name and website occurred as part of the sale. 

Case Study 6

A client was interested in buying a business which used a particular bespoke software for all of its main operations. The due diligence process disclosed that the software developer had been contracting to the business for years and there was nothing in writing about the ownership of that software, or its ongoing use by the company. The seller was unable to produce anything in writing to show that it owned the software, even though it believed it did. 

The buyer of the business walked away. 

6. Competition by the Seller

Online businesses are a big area where competition is a concern after settlement. Most business sale contracts contain some form of restraint on the seller about what they can do in an area that will compete with the business you are buying after the date of the sale. 

A restraint provision in an employment agreement is more likely to be enforceable when it is structured to protect the interests of the buyer, and not likely to be enforceable if it puts the seller in a position where they cannot earn a living. 

Tougher restraint provisions are likely to be enforceable for commercial agreements than they are in employment situations, because the courts will also expect the parties to have made a commercial decision about what is acceptable to them, or not. This is an issue for sellers who do not carefully consider what they plan to do after completion, and how they may be limited by a restraint. 

Different things that restraint provisions can cover are:

  • Area: Does the business operate locally, nationally, in a region like Oceania, or worldwide? Does the seller plan to expand the area of service, or combine it into an existing business that covers a larger area? Is it fair? 
  • Industry: A bug-bear we have is when a buyer attempts to include ‘a similar business’ without defining what that is, or to include the businesses operated by a group of companies related to the buyer, whether or not those businesses are in the same industry or something completely different. Restraints should focus on the business being sold, not something broader.
  • People: It makes sense to restrain a seller from working with existing or potential customers already known in the business being sold, however, we have assisted sellers in being permitted to retain a client list for the purpose of communicating a new business, where that business does not compete with or adversely affect the buyer. 
  • Key contacts: It can be also worthwhile include a restraint against poaching staff, suppliers or distributors for a period of time after completion. 
  • Time: Periods of restraint can vary significantly, anywhere from months to years. Times and areas of restraint vary depending on the type of business and the reach of that business. It is also common to have cascading provisions, which leave it to a court to decide what is fair if a restraint is breached. We encourage our clients to consider the period of time it would take a knowledgeable competitor to set up a similar business, and to be reasonable in setting the time for restraint. Where a large infrastructure investment is likely to be threated by competition from the seller, then a longer restraint period is likely to be considered fair and reasonable. 

7. The Limits of Each Adviser

It’s tempting to think that your advisers will have all the answers when you are buying a business and be able to tell you what to do if you end up in a situation where you feel a little lost. This can happen for people who have never bought a business before. 

As legal advisers, we can review the contracts and check that the contracts properly describe what you think you are buying and what your obligations, and the obligations of the seller will be, after purchase. We can highlight potential rights and flag decisions you must make – but we cannot make those decisions for you. 

The truth is, it is your responsibility.

Your accountant, lender or financial adviser are all in the same boat. They can highlight information for you, but they cannot make the decision whether or not to buy, and they cannot determine how much importance you place on any piece of information. 

Case Study 7

Many years ago when working in a national firm, a client who had borrowed significantly (millions) to fund a purchase was part way through the due diligence process and wondering whether or not the purchase was going to be worthwhile. It got to a point where the client was saying “we’ve spent too much (around $300k) now not to go ahead.” 

There was an element of wilful blindness on the part of the purchaser in that transaction. They had put their reputation, and their house, on the line to fund a purchase that was looking more and more questionable the more they learnt about the business. Going through with the purchase was more about their ego and being ‘clever’ at getting the deal done. 

About 6 months after settlement, the business failed and was placed into liquidation and the director was forced into bankruptcy.   

It is your money. It could be your reputation, your family and your future that you are staking on this purchase. As much as professional advisers can provide you with advice, advisers cannot tell you what to do and all the important decisions are up to you. This makes it important to be up front with your advisers, whether legal, financial, accounting or otherwise, and ensure they understand your priorities and concerns. 

A binding contract requires offer, acceptance and consideration. Consideration can be the doing of some thing or the payment of money. 

At every point before consideration has passed, you are likely to have the opportunity to exit from a transaction, no matter how much has been spent getting to that point. Sometimes, a small loss can be better than taking a risk that doesn’t feel right.  

When you are buying a business, you will also have a period of time to complete due diligence and should use that time to ensure that your assumptions about the business are correct, and if not, whether you still want to go ahead, negotiate further, or walk away. 

As we said at the start – don’t rush in.

    How can Onyx Legal help you?

    If you are interested in buying a business, whether this is your first time or your tenth, and you know you need help in the process, make an appointment now to talk it through with one of our team.

    Can Doctors Use Testimonials in Australia?

    Can Doctors Use Testimonials in Australia?

    Can Doctors Use Testimonials in Australia?

    Can Doctors Use Testimonials In Australia?

    Doctors and other registered health practitioners can only use testimonials in a very limited fashion. 

    As a general overview and in simple terms, the limits are:

    • star ratings are acceptable, without commentary
    • general commentary like “friendly prompt service” or “nice offices, comfortable waiting chairs” and similar comments that are not about the health service received, are acceptable.

    Registered health practitioners in Australia are required to comply with AHPRA (Australian Health Practitioner Regulation Agency) advertising guidelines, which are set out in section 133 of the National Law (short for the Health Practitioner Regulation National Law).

    Due to the complexity of what is, and what is not allowed in advertising of health services, AHPRA has created an advertising hub on its website to assist practitioners.  

    Since the National Law commenced in 2010 testimonials have been specifically prohibited under section 133(1)(c) as follows:

    1. A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that—

    (c) uses testimonials or purported testimonials about the service or business; …

    In May 2022 hope appeared in the form of proposed amendments to the National Law which were tabled to remove the prohibition on testimonials. It was proposed that section 133(1)(c) would be deleted and that testimonials would be treated in the same way as other forms of advertising. 

    The explanatory notes to the draft legislation acknowledged that the prohibition on testimonials was “…out of step with consumer expectations and current marketing and advertising practices. Testimonials and reviews are common online, and new forms of advertising, particularly on social media, have blurred the lines between information and advertising. Consumers increasingly expect to have access to reviews and testimonials when purchasing health services and expect to be able to share their views about health services and practitioners.

    The removal of that prohibition would have meant that doctors and other health practitioners could have started using testimonials, provided that the testimonials continued to comply with the other rules around advertising, such as not being misleading or deceptive. 

    Note that a testimonial saying “Dr Yu cured me of diabetes with acupuncture” is still likely to be prohibited, because the practitioner who uses that testimonials would be required to produce evidence-based research showing a cure was possible through acupuncture treatment. The practitioner in that instance, if testimonials were permitted, would be wise to ask their patient to amend the comment to say something like – “After three months of treatment with acupuncture by Dr Yu I no longer experience any symptoms of diabetes.” 

    Any use of the word “cure” raises red flags with regulators. 

    However, we are getting ahead of ourselves. 

    Although testimonials are still prohibited, penalties were increased significantly under the new legislation to $60,000 for an advertising offence by an individual and $120,000 for a company.

    Some concerns were raised about removing the prohibition on using testimonials. One report that surveyed consumers on their beliefs about testimonials found “Testimonials were reported to be lacking in reliability (67.7%) and that they should not be used in healthcare in the same manner as they are used in other industries. Only 44.8% of participants reported that they felt confident to spot a review that was not written by a genuine user of a service.

    The straw that broke the camel’s back and reversed the proposal to remove the prohibition on testimonials, which was removed from the draft legislation before it was passed in October 2022 – is the fault of cosmetic surgeons. 

    Cosmetic surgery is not an identified area of specialty governed by AHPRA and the title “cosmetic surgeon” is not a protected title. What that means is that a person can call themselves a cosmetic surgeon even if they have no special training or qualifications to carry out cosmetic procedures. 

    In late 2021 an investigation into the cosmetic surgery industry by AHPRA and the Medical Board of Australia (also part of AHPRA) was announced in the wake of media published by Four Corners and Nine newspapers based upon their investigations into a string of clinics owned by an identified plastic surgeon. 

    The media reports alleged hygiene and safety breaches, and patients suffering ongoing pain, physical and psychological issues. 

    The report from the AHPRA investigation was published on 1 September 2022 and a number of recommendations were made around managing advertising of cosmetic procedures. 

    Whilst no specific recommendation was made about the use of testimonials, it was noted that the use of testimonials would not be helpful in avoiding a lack of reliable information for consumers because “Testimonials, when selectively used by practitioners, are more likely to be the opposite; subjective and biased (even when they may not be false, misleading or deceptive). In these circumstances, the review is concerned that testimonials have the potential to further contribute to misunderstanding and confusion among consumers.” [page 87]

    Due to the findings made in the report and the limited resources available to AHPRA to implement and monitor changes in its policies, procedures and guidelines, reforms for cosmetic surgeons have taken priority over the removal of the prohibition on testimonials. 

    The explanatory notes to the legislation as passed note that the issue of patient testimonials needed to be consistent with actions and reforms for cosmetic surgery.  

    There is no timeframe for AHPRAs work in reforming how cosmetic surgery is regulated, so doctors and other health practitioners should not anticipate a lift in the prohibition on using testimonials any time in the near future, and should keep in mind the significant increase in penalties. 

    How can Onyx Legal help you?

    If you are a health practitioner and worried about the risks in your advertising contact us to have it reviewed.

    Save Money with Business Name Registration, Australia

    Save Money with Business Name Registration, Australia

    Save Money with Business Name Registration, Australia

    Save Money with Business Name Registration

    You may be using a third party provider to keep your business name registrations up to date, but registering your business name directly through ASIC yourself may be the cheapest option and provide you with more certainty and control.

    You can register for an ASIC Connect account, or you can use the ASIC business registration system.

    If the website you are using to register a business name doesn’t include .gov.au in the domain name, then you will be paying extra to use the service. In 2022, you can register a business name directly with ASIC for just $39 per year, or $92 for 3 years. 

    Once registered, provided you keep your contact details up to date, you will receive notice of renewal from ASIC before your registration expires. If you discover that your registration has expired, then you will still have 30 days after the registration date to apply to re-register that name before it becomes available to the public.   

    If you receive letters from third party registration providers, they will usually be looking for annual fees that are more than what you would pay ASIC. Their additional fees cover the cost of their operations and their profits. ASIC publishes a list of what third party providers can and cannot do and you can complain to the provider if you have any concerns. 

    You should definitely NOT be paying more than one third party provider for registration services of the same name, and NOT for registration of your own name. 

    Do I Need An ABN To Register A Business Name?

    Yes, you need an ABN to register a business name. 

    An ABN is an Australian Business Number, and it is attached to whatever entity you use to conduct your business, whether that is as a sole trader, through a trust, or as a company or incorporated association. 

    For people setting up private foundations who think they don’t need an ABN – check here

    Do I Need To Register My Company Name As A Business Name?

    No. 

    If your company name is the same as the name of your business, then you don’t need to register them separately. 

    If you register a business name, no one will be able to register a company with the exact same name, and when you register your company name, no one will be able to register exactly the same name as a business name. 

    On the other hand, if you want to have separate business divisions with different names under the same company, then you can register multiple business names and, through your company ABN, they will be linked to your company, even though the company and the businesses have different names. 

    Sole traders can register multiple business names consistent with the different areas of business they are involved in. Those business names will be linked to their sole trader ABN.

    Be aware that some third party providers will write to you encouraging you to register your business name without checking to see if you have changed your business structure and set up a company with the same name. Their interest is in receiving your payment for registration, whether or not it is required. 

    Do All Business Names Need To Be Registered?

    Yes, and No. 

    Under the Business Names Registration Act 2011 (Federal), it is an offence to carry on a business under a name that is not registered. The penalty is 30 penalty units, which in 2022 equates to about $6,660. Doesn’t seem worth risking when its only $39 per year to register, does it?

    Did you know you can be fined $6,660 for carrying on business without registering your business name?

    If you use your personal name as a business name with a description of what you do – eg. “Emma Lee Accounting”, or “Sanjay Singh Consultants”, then you don’t need to register it, as using your own personal name for your business is not an offence. The same goes for a company that uses the company name to operate a business.

    How Do You Check If A Name Is Taken For A Business?

    Business name availability is easy to check, and a quick check can save you lots of money in the future.

    The first thing you should do is complete a quick Google or other browser search on your chosen name. If you find a competitor in the same country with the same or a very similar name – go back to the drawing board. It’s not worth the hassle and you create the risk of having someone send you nasty legal letters telling you to stop using that name. 

    Secondly, complete a trade mark search. In Australia, you complete a trade mark search through IP Australia. If someone has a registered trade mark in broadly the same area of business as you, you risk getting a nasty legal letter telling you to stop using that name. The Onyx Legal team can help you assess whether or not you have any concerns about a registered trade mark, or would like to register your business name as a trade mark. Simply send us an email to advice@onyx.legal with “Trade Mark Registration enquiry” in the subject line and we will respond to your promptly. 

    Thirdly, and now that you are reasonably certain no one else has a name the same or very similar to what you want to use, then do a name availability check on ASIC. Select “Organisation and Business Names” then complete some or all of the words you want to use in the “Name or Number” field and select “Go”. 

    A list of Organisation and Business Names should appear. If there are more than 10 names, there will be multiple pages. You can change the settings to display up to 50 names at a time. When looking at names, anything that says “Registered” next to it in the “Status” column is not available to you. 

    For example, we searched “forthright”, which produced 20 results. 10 of those results are registered. In the “type” column, you can identify whether they are business names or company names.

     

    You won’t be able to register a business name if it is already being used by a company, and vice versa. Names that are identical or nearly identical to an existing registered business name are not allowed.

    You can, however, add an additional word to the name – in this example some additions are “consulting”, “international” or “enterprises”, to register the same name.

    Do I Have To Register My Business Name With ASIC?

    Yes. 

    Until 2012 business name registration was state based, but it has now moved to one national register managed through ASIC. 

    Because your business name is linked to an ABN, your business name contact details will also be searchable through the ABN register. 

    What Is The Difference Between A Trading Name And A Business Name?

    A trading name refers to a name a business might use that is not currently registered. If you are using a trading name, or have used a trading name in the past and you want to continue using that name, then you should now register than name as your business name. 

    ABN Lookup will continue to display trading names until 31 October 2023. From 1 November 2023, ABN Lookup will not display trading names and will only display registered business names. What this means for your business is that anyone who checks ABN Lookup to ensure your business is legitimate is unlikely to find you unless you have a registered business name. 

    Business Name Registration Renewal

    You don’t have to renew your business name registration every year. If you register through ASIC, you can register the business name for three years. 

    Provided you keep your contact details up to date, you will receive notice of renewal from ASIC before your registration expires. If you discover that your registration has expired, then you will still have 30 days after the registration date to apply to re-register that name before it becomes available to the public.

    Business Name Registration Qld, NSW, Vic etc

    Business name registration moved from a state based system to a national system back in 2012. If you had previously registered under the state system, your registration should have been migrated to the national ASIC register. Some registrations were lost in that process because people did not keep their details up to date. 

    If you lost your registration and someone else is now using that name, you may need to adjust your business name in order to get it registered again. 

    You don’t have any ownership rights in a business name. The purpose of registration is to identify who is behind a business and demonstrate the credibility of a business. 

    What Happens If My Business Name Is Not Registered?

    Failing to register your business name, or to keep your registration up to date, can mean that someone else can register that business name and use it instead of you. If you allow your registration to lapse and someone else registers the same name, you have lost it and don’t have any automatic legal right to demand it back from the new business. 

    There may be a legal argument as to why they should hand it over, but to prove that right and get the order for them to handover the name, you would have to go through a court process. Court is costly, time consuming, stressful and provides no guarantee of success.

    Can Someone Else Use My Business Name?

    There are various legal arguments why someone else cannot use your business name without your permission. Whether you have an argument depends on all the circumstances, and we would need to have a discussion with you about your situation before advising. 

    Do I Own My Business Name?

    Business name registration does not give you ownership rights. If you want the right to stop other people from using your business name, or something similar to your business name, then you may be better to register that name as a trade mark. Be aware that not all names are capable of achieving trade mark registration.

    How can Onyx Legal help you?

    Need help understanding your business name situation, or want to register your business name as a trade mark? Make an appointment with one of our team

    What Happens When Business Founders Want to Split Up?

    What Happens When Business Founders Want to Split Up?

    What Happens When Business Founders Want to Split Up?

    Business Break-ups Can Be Messy!

    Unless the founders had something clear in writing beforehand, there is no end to the variety of things that can happen when founders want to go separate ways.

    If there is nothing in writing and the split is not amicable, all sorts of time consuming, distracting and stressful things can happen. 

    Here are some of the worst-case scenarios we have seen in practice, all where there was nothing in writing to start:

    1. A Founder Dies Unexpectedly  

    Whilst tragic at a personal level, it can also be very difficult for a business where one of the founders passes unexpectedly. Sometimes the family is aware of their business involvement, and sometimes they are not. In this case the family wanted the company to buy out the deceased founder’s interest in the business immediately and had some unrealistic expectations of what that interest was worth. 

    Animosity was growing between the parties due poor communications. We were able to present a strategy which allowed for the progressive buy out of the deceased founder over a two year period, without interference by the family in the business, and at an amount set by a ‘desk top’ valuation completed by the company’s accountant. The family of the deceased founder were offered the opportunity to get an independent valuation, but at their cost, and the $11,000 price tag put them off.

    2. One Founder Is Stealing Money From The Business, And Another Finds Out

    Unfortunately, this is not an uncommon scenario. 

    We’ve seen this occur in a variety of businesses from software to building and construction, and it is rarely pretty, and usually a long and slow process of separation if nothing was agreed in writing when the business was founded. 

    Too many people think “we don’t need a shareholder agreement, we will be fine” when they are all excited about getting started, and then when things go wrong, they have no protection.  

    In one example with a tech company, there were four sets of lawyers involved and the end result was a comprehensive deed of release covering the transfer of shares, forgiveness of debts, payment of money, and indemnities from the exiting partner. There were no admissions of liability in the deed. The deed took more than 15 months to negotiate and some shareholders meetings to approve decisions. 

    As long as the negotiations remain between the parties and their lawyers, law enforcement need not be involved. There is nothing that legally requires you to incriminate yourself or anyone else in the business. When fraud or theft is discovered and reported, it is usually through a third party.

    3. A Founder Walks Away Without Notice, Making Demands

    Things happen in people’s lives (like death, illness, an amazing job offer etc), and they can suddenly want out. This can be very hard on the people who want to continue with the business and a shock if not contemplated before one partner leaves. Business break ups are often referred to as like going through a divorce by the people affected. 

    Sometimes people want out, and they want their money, whether or not there is any owed to them at the time. Many people exiting a business think in terms of the future value of the business, rather than where it is as they exit, and vastly overestimate both what it is worth and the capacity of the other parties, or the business to pay for the exit. 

    If shares are to be transferred to existing business partners, then those individuals need to have the money to purchase the shares at the agreed value. In a start up phase, this is likely to be $1 a share and not onerous, but if the business has been running for a while and has some value, the remaining shareholders might not have thousands of dollars required to purchase those shares.

    If the shareholder is exiting and the company is making a distribution or buying back the shares (not a simple process) then there needs to be sufficient funds in the company to pay out the exiting party. 

    As long as you have clarity around ownership of assets, intellectual property and a realistic value of the business, then its just a process to be undertaken when someone leaves suddenly. If there is nothing in place, then it is a process of negotiation and often heartache before a resolution can be agreed. 

    4. A Shareholder Stops Contributing

     In situations where you have people with different skills coming together to build a business, not everyone necessarily has the same energy to keep the business on track. We’ve come across several businesses where a lot of effort was required of one party in the initial set up (for example someone building an App or a Website) and then their contribution become maintenance only. Another person in the business might be responsible for promotion, and there work is constant, requires review and reinvention, and never lets up. 

    An example we have is a digital business where the person responsible for service delivery got fed up with the lack of interest of the developer who originally built the website for the business. Their ongoing contribution was minimal and yet their deductions from the business stayed the same and the service deliver person felt like they were working to support two families, without any recognition.  

    Differing levels of effort over time could have been written into a shareholder agreement and appropriately dealt with, with the service delivery person gaining a greater interest in the distributions over time. Unfortunately, they had nothing documented. Fortunately, the exiting party, being the person who initially built the site, was prepared to accept an independent valuation of the business and to be paid out over six months rather than an immediate exit. 

    In another tech company, the exiting person was someone who thought that they were indispensable to the business, but kept upsetting customers to the extent they left. Again, and independent valuation was agreed and they accepted payment over time, but the process of getting to that point took 4 months and was disruptive to the business.  

    5. A Founding Partner No Longer Gets On with Anyone Else In The Business

    This was a strange scenario and there was no shareholder agreement. One of the founders had moved into the position of CEO of the business but was no longer on speaking terms with anyone in the business, whether other founders or staff. There were six founders, four of whom no longer had any involvement in the day-to-day operations of the business, but all were looking for a financial exit. 

    The company did have prospects, but a sale was not going to be possible whilst the CEO still had voting power to stop it.  There was not enough cash in the business to buy out the CEO without adversely affecting cashflow. 

    Through a succession of negotiations including an independent business advisor, we were able to get the CEO’s agreement to retire and stop being involved in the day-to-day operations, as well as converting his shares to a preference share which would be paid first in the event of any declaration of dividends or sale. The preference share had no voting rights. Tax consequences for the business and the individual were also examined before the transaction went through. 

    Business operations were a lot smoother without the former CEO’s involvement and a sale was achieved within 12 months, with all founders getting paid. 

    It is always easier to think through future scenarios and what is fair when everyone is excited about the business and getting started, and still friends. It is significantly harder, and more costly, to attempt to resolve an acrimonious split a couple of years down the track. 

    We provide clients with questionnaires to help identify potential needs in the business, and how people might exit to get you thinking about what might become important when you get started, whether setting up a joint venture or a shareholder or unitholder situation. There a lots of options available.

    How can Onyx Legal help you?

    If you are or plan to go into business with someone else and you’d like to secure the future of your business, make an appointment with us to talk through your options. 

    What To Think About Before Signing A Standard Commercial Lease Or Retail Lease

    What To Think About Before Signing A Standard Commercial Lease Or Retail Lease

    What To Think About Before Signing A Standard Commercial Lease Or Retail Lease

    We work with both landlords and tenants in Retail Shop Leases (RSL) and Commercial Tenancy agreements. This article is focused more on tenants.

     

    What are some of the most important considerations that people should keep in mind before going into a lease?

    Firstly, know the transaction that you’re entering into. 

    It’s really important to know whether your documentation matches your intention. If this is a commercial lease, then typically you will be using a standard REI template contract, but if you’re entering into a retail shop lease, the format and content of the lease will be quite different. 

    The reason this is important is that if it is a retail shop lease, then the tenant is afforded greater protection by law.

    It is fundamentally important to get it right from the start. Your lease will last for years and has the potential to affect your business. 

    Don’t be tempted by somebody saying to you, “Look, it’s quicker. This will save us money. We’ll just use a standard REI form.” It’s false economy because you could miss out on those really important protections, which can make the world of difference, particularly three, four, five years down the track.

    “As you know, I work with retail and commercial shop leases from the outset in drafting and negotiating, but also when the parties are in dispute, as a mediator. I sit and I listen to both sides of the fence, arguing parts of the lease that was prepared five or seven years ago. I see things like someone trying to argue that QCAT, which is what’s meant to be a low cost, efficient and fast access to justice, with a specialization in retail shop leases. What I see is landlords perhaps trying to frustrate that process by saying, “Well, there’s no jurisdiction here because these documents are for a commercial lease, not a retail shop lease.” That in itself can cause stress, delay, expense for everyone. 

    To circle back, know the transaction you’re entering into!”

    Once You Know What Kind Of Lease You’re Entering Into, What Comes Next?

    Tenants are often really excited by this stage – you’ve been doing some negotiations, you’ve found the premises. It seems ideal. 

    Now is the time to slow down. Please slow down. 

    You’re not on anyone else’s timeframe, but your own and your business. As a business owner, that is incredibly important to understand, and to stick to that, especially when you’re getting pressured.

    You can be told there’s no flexibility on the other side, this must be done by a certain date. Slow down. 

    Slow the process down and take advantage of the fact that you’re not in a rush to do this, or you shouldn’t be in a rush to do it, but this is your opportunity to design the best lease for your business. You don’t really get that opportunity at any other stage. Slowing down, making sure the documents are right is really important.

    There are three stages to this leasing process. 

    Negotiation, lease offer, and lease. 

    In each of those stages there is some crossover. But with your lease offer, a lot of people, particularly landlords, come to their solicitor once the lease offer is signed. Tenants tend to think they should do the same. In fact that is not the best case for either party. You can come at any time to your lawyer to ask about the lease offer.

    Part of that slowing down for a tenant is really important, because if you bring that lease offer to a lawyer to look at for you (and even your accountant as well for the accounting and financial taxation advice, because lawyers aren’t accountants) you have that opportunity to design a really perfect fit for your business before the lease offer is signed.

    When you think about the length of time that you’re entering into this lease for, the more thought and time you can take at the beginning to really consider where your business is going to be in a few years’ time, also what’s in the market, the first property that you find may not be in fact the best one for you. 

    If you properly consider these things before you sign a lease offer, you’re at least not committing yourself to potentially lose a deposit amount or binding yourself to some terms that in three years’ time are going to look not nearly as good as you thought they were when you signed the lease.

    Due Diligence

    Before entering into a lease, do your due diligence. What does due diligence mean? 

    It’s things like comparing like premises in other suburbs or other centers. Finding out what incentives landlords are offering. Finding out whether there have been any security issues or flooding at that premises.

    Start from the start, do it all right. Get as much knowledge and information you can in the process. In fact, we tend to observe that your negotiation skills mature as you do this. Then you feel more confident to push back when you see an unfavorable term say in a lease offer, or a request for a personal guarantee that you don’t want to provide. 

    Lease Offers And Deposits

    Nine times out of 10 we see that the landlord is only bound when the final lease is signed by both parties. That doesn’t seem unusual, but there are problems with that. The tenant on the other side of things is bound when the lease offer is signed. So as a tenant you are committed well before the landlord.

    The implication of all of that is that you’ve paid a deposit, generally one month’s deposit, but it can be more, and that can be a sizeable amount of money and that’s put at risk. When you think about this logically, if you are bound from the lease offer and the negotiations go astray along the way, the landlord can get out without any financial implication, you can’t because your deposit will most likely go to the landlord’s solicitors.

    Provided the lease offer hasn’t been signed, getting that wording right at the start in the lease offer is really simple. We just amend the lease offer, send it back with the wording that both parties are going to bear their own costs, and enabling you to have the deposit returned to you in certain circumstances.

    Landlord Incentives

    Firstly, if you’re not getting any, why not? 

    Definitely be asking the question. 

    Landlord incentives are generally a contribution to the fit-out cost or the first few months of rent. Remember, it is a contribution towards either fit out or rent. It’s not an entitlement to a lump sum in your pocket. That’s not how it works. When it comes to fit out it is about paying the actual cost of your fit-out, substantiated with invoices and receipts for payment. If it is to cover a rent-free period, then you will get a period of rent abatement, where your invoiced and the rent amount is already credited so that you don’t have to pay anything, or only have to pay half rent for a period of time.

    There are also a couple of things to look out for. Firstly, in almost every draft lease there are what we call incentive repayment triggers. Those triggers effectively mean that if a certain series of events occur, such as falling way behind in the rent, assignment of lease, selling your business, changing your business name and so on, you are at risk of repaying these incentives. 

    Now consider that if you received an incentive of $80,000, what happens if you decide that you need to get out, are you going to have $80,000 to pay back? The answer is generally no.

    In a lease, it might be called a clawback. It might be called a repayment trigger, or it won’t even have a name, so it’s hard to find. 

    For one of our clients we found reference to repayment of the incentive in six to eight different spots in the draft lease, in what appeared to be randomly inserted clauses where you wouldn’t normally expect to see those clauses. The same net effect without giving it a label. A trained eye can see it, which is why you as us to review your lease.

    Make sure you understand what the triggers are to repayment, and whether they suit you? Generally speaking, our advice to our clients is don’t agree to any repayments. Push back on them.

    The other important part is you need to know the taxation implications of your incentives. A really important question around that is, should you own the fit-out or not? 

    We have a particular client who always wants to own the fit-out and is aware of any taxation implications and asks the right questions. Others don’t mind. Either way, you do need to speak to an accountant to understand the tax and accounting implications for your business.

    Again, we’re designing something for you at the start of a lease. Work out with your contractor when it’s best to receive payment, marry that up so your cash flow is freed up. Often the landlord will agree to pay the incentive in two lots, for example, 50% upon commencement of the fit-out, and 50% on commencement of trade. That’s a nice clause and can help you manage cashflow.

    If negotiated before the lease offer is signed, it is possible to manage the cashflow. If not, you may have to outlay the full amount of the incentive before you get it back from the landlord. Be smart, talk to someone about how to break it down and make those contributions work for you.

    What’s Going To Happen At The End Of The Lease?

    It’s really important to understand that when a lease expires, firstly, unless you’ve got options to renew, then you don’t have the right to stay on. If you do stay on, you’re in a period called holding over. There is no problem being in a holding over, as long as you understand it’s a month to month tenancy, meaning the landlord only has to give you one month notice to move out. It’s not that easy for a whole business to move premises.

    But the most important part about designing and understanding and really being clear at the start what your end is going to be, is what are your obligations to “make good” when you hand back the premises? 

    Case Study

    The client is negotiating an “as is, where is”. They’re walking in to an existing and operating business and the fit-out is already there and the tenant is entering on that basis. At the end of the lease in this draft document, it has a “bare shell” requirement. A bare shell means that you have to de-fit. Which is stripping the premises back to bare walls and floors. The previous tenant is handing over as is, where is and they are not paying a de-fit.

    The landlord is getting a speedy transition from one tenant to a new tenant and rent coming in, but at the end of the lease, the landlord will still require a bare shell because it creates greater flexibility for the landlord in finding a tenant.  

    That’s a big “no” for us in this scenario. We’ve said to the client, “you take it as is, where is, you leave it as is, where is, subject to making good any damage along the way that you might have caused. You clearly have to repair any damages, that’s your obligation.”

    It is also important to remember that a fit-out can be incredibly expensive, particularly in a climate where there is problem getting materials and high demand for trades. Some first time tenants don’t really conceive of that. One of our clients told us they were estimating costs of $5,000 for fit out. They are not even in the ballpark. Their quote actually came back at $70,000 plus.

    A de-fit can be just as expensive. We have a client with a series of pharmacies, and their de-fit is $250,000 for one pharmacy. The cost of de-fit can be the same or more than the fit-out. 

    Remember, design it how you need things to happen at the end of the lease. If you are going to need to budget for an $80,000 de-fit at the end, make sure that your accountant has sat down with you and worked out how that’s going to happen, because if it is due to happens in three year, you’re going to have earned enough money to have that money set aside.

    It does not matter if the landlord contributed to, or covered the cost of the fit out and owns the fit out if you are required to de-fit back to bare shell at the end of the lease. You cannot just assume that because the landlord owns the fit out they will be prepared to keep it. We have seen leases where the fit-out is stated as owned by the landlord, but it’s almost like a discretionary ownership. So they can own it if they want to at the end for a dollar, but they don’t need to. It depends on what is written in the lease.

    Tip

    Please read every word of these documents. As any other human being will do, you will probably be tired by page three of 47. So that’s why you need to get someone to read it for you as well. It doesn’t take away or mitigate your obligation to read the whole document, but that trained eye is really important.

    As humans, when we look at the same document over and over, you tend to want to say, “Oh, well, okay, that’s about this.” You don’t look at the detail as much as you should. Well, you actually have to with leases.

    Take Aways

    • Get legal advice 
    • Get accounting and taxation advice 
    • Plan for success at the start
    • Do all of your due diligence, and if you’re not sure what that means, ask 
    • Push back on terms that are not favorable to you. You don’t have to agree to them
    • Slow down
    • Incentives can have red flags with them
    • Negotiate it with vigor
    • Invest in the process from the start

    Fundamentally, it’s about knowing that your lease document is the most important document for the transaction. It’s your go-to guide for whenever there’s any sort of issue that arises. You need to design it, you need to know what’s in it. You need to know your rights and responsibilities. Respect that document. Treat it with respect, and invest in the process from the start.

    From the dispute perspective, hindsight is a good thing. You don’t want to end up in a dispute thinking that if you had your time again, that clause probably wouldn’t be there. Take it out now.

    How can Onyx Legal help you?

    If you are looking to lease premises, or you are having problems with the premises you are already in and need help, make an appointment to have a chat with Andrea.

    Employers’ Obligation to Protect Employee Mental Health 

    Employers’ Obligation to Protect Employee Mental Health 

    Employers’ Obligation to Protect Employee Mental Health 

    What Obligations Do Employers Have For Employee Mental Health?

     

    We’ve all taken a ‘doona day’ off work because we just can’t face it on that day. Or we know someone who has. It doesn’t matter whether the stress is arising from work or not, some days, you just want the world to stop, so you can get off.

    But what about your obligations as a small business employer?

    Employers have a duty to provide a safe system of work, which includes a duty to take reasonable care to avoid psychiatric injury to employees.

    In the 2022 decision of Kozarov v Victoria, the High Court has stated that “the circumstances of a particular type of employment may be such that the work to be performed by the employee is inherently and obviously dangerous to the psychiatric health of the employee (just as other kinds of work are inherently and obviously dangerous to the physical health of the employee). In any such case, the employer is duty-bound to be proactive in the provision of measures to enable the work to be performed safely by the employee.

    So, it is clear that if you have a business where the work is known to create a risk of PTSD (such as
    emergency services), then you have an obligation to take steps to protect your workers. In the Kozarov case, the Court found that as a result of the type of work done (by a solicitor working constantly with young victims of sexual assault), the duty of care arose at the time the employee started work, and that no later event was required to raise a duty of care.

    But what if you run a business which has no obvious inherent risk, like retail? There may not be an
    immediately obvious duty of care, beyond the general duty to provide a safe work environment.

    There is an earlier 2005 case (Koehler v Cerebos) in which the High Court states that an employer “is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job.”

    What Is An Evident Sign? 

    As a small business employer your employment contracts may include a request that employees disclose any pre-existing condition or injury which might affect their ability to fulfil their role. Increasingly, and with less stigma being attached to mental health conditions, employees are disclosing existing conditions such as anxiety and depression in those declarations.

    If you haven’t closely reviewed your employee acceptances of employment, perhaps now is a good time to do so.

    There are also instances where employers engage people from employment agencies known to support individuals who have been out of the workforce for an extended period, or who experience a form of disability which impacts their ability to gain work. Some of those services are proud to state that they support people with mental health conditions. For example, EPIC shares that “Among EPIC’s cohort of job seekers, 38% have a diagnosed mental health condition.”

    If you are engaging people you know have a mental health condition, or whom you should reasonably suspect may have a mental health condition, then a finding that there were “evident signs” of risk of psychiatric injury may well be made out. In those instances, as a small business employer, you should have in place a policy or process to ensure that someone in the workplace has the ability to identify and assist people with a mental health condition in order to provide a safe work environment.

    As someone who has a lived experience of a suicidal crisis, MHFA Instructor, Donna Thistlethwaite, is passionate about creating safer workplaces.

    “Often people spend more time with colleagues than they do with family and friends which may result in others miss the signs of poor mental health. 

     

    Having the support of a MHFA trained colleague can facilitate someone accessing treatment and can speed up their recovery, allowing them to return to strong performance and reducing the impacts of poor mental health which can include absence, conflict and poor performance. The skills a MHFAider learns improves their communication skills in other areas of business.

     

    Mental Health First Aid helps to break down stigma and educates participants to recognise the signs that they, or someone else, is experiencing a mental health problem. Early intervention results in faster recovery which is great for both the individual and the business.”

    Donna Thistlethwaite Mentally Wealthy

    You Have A First Aid officer. Why Don’t You Have A Mental Health First Aid Officer?

    You might be in a position where you suspect there are people in the workplace with mental health issues, but don’t have the first clue about how to identify who they are and, in another instance, you might know you have people with mental health problems, but not how to get the best out of them.

    So Where Do You Start?

    Take responsibility for the mental health of your workforce at work. If you sometimes wonder why it’s your problem and why employees can’t just ‘leave those issues at home’ and get on with their work, then someone with mental health first aid training could be a real asset in your workplace.

    Once you realise you have the ability to make an impact, you empower yourself and your workforce and gain the potential to decrease the impact of mental health problems in the workplace.

    Consider that almost 45% of people of working age are likely to experience mental health problems at some stage in their lifetime (ABS 2007), whether at home or at work, and if they are affected, their productivity will be too.

    There are a large variety of support programs available for free to employees and small business employers, including the following:

    Mental Health Resources for You and Your Workforce

     

    Heads Up – https://www.headsup.org.au/ 
    Mental wellbeing support for small businesses and individuals, including resources for employers, employees, managers and small business owners.

    New Access – https://www.beyondblue.org.au/get-support/newaccess/about-newaccess 

    A free coaching program, designed to provide accessible, quality services for anyone finding it hard to manage life stress using Low-intensity Cognitive Behavioural Therapy practices aimed to help people break the cycle of negative or unhelpful thoughts. 

    Ahead for Business – https://aheadforbusiness.org.au/ 

    Personalised resources and tools tailored to the specific needs of you as a small business owner.

    [NSW] Mental Health at Work – https://www.nsw.gov.au/mental-health-at-work

    – Free training and coaching for your workplaces, and other resources.

    [QLD] Your Mental Wellbeing – https://mentalwellbeing.initiatives.qld.gov.au/ 

    – Improving mental wellbeing resources for individuals.

    [TAS] Mental Health and Wellness –
    https://www.business.tas.gov.au/manage_a_business/mental_health_and_wellness

    [VIC] Wellbeing and Mental Health Support for Victorian Small Business –
    https://business.vic.gov.au/grants-and-programs/wellbeing-and-mental-health-support-for-victorian-small-businesses 

    Mental health support for the challenges of running a small business.

    [WA] Managing Stress and Anxiety – https://www.smallbusiness.wa.gov.au/people/managing-stress-anxiety

    Some businesses and professional industry organisations also offer Employee Assistance Programs (EAP), which have been around for a long time and are relatively easy to implement. Unfortunately, some issues with EAPs have been the small amount of use due to lack of knowledge of their existence, the cost to the employer, and employees who may be concerned that their problems will be reported to the employer if they use the service (even though that usually does not occur).

    Just as you train First Aid officers in the workplace, you can now also have trained Mental Health First Aid officers. The training is usually offered in mixed mode or face to face and provides valuable insight into recognising mental health conditions and how to support people with those conditions in the workplace.

    Case Study

    We were recently approached by a client who was concerned about the behaviour of a casual employee who failed to turn up for their shift after a discussion with their supervisor where the supervisor asked them to ‘go home and think about what you have done’.

    Over the following weekend some text messages were exchanged between the supervisor and the employee attempting to clarify whether or not the employee was required for work on the Monday. One of the supervisor’s messages included words along the lines of ‘as long as there is no drama’.

    These exchanges occurred in a context where the employer had engaged the employee from a disability support employment agency and knew that the employee suffered a mental health condition. In fact, the employee had stated “you told the agency you had experience working with people like me”. In the context of the employee’s condition (anxiety and depression), the condescending language expressed by the supervisor was more than unhelpful – it probably increased the employee’s anxiety and precipitated the employee’s failure to show for work on the Monday.

    The employer consulted us about dismissing the employee for abandonment of employment.

    Leaving aside that in a casual employment relationship an employee is entitled to refuse a shift without penalty (although here there was no clear communication to that effect), it is important that employers start considering the training of supervisors in the workplace to recognise and more appropriately respond to mental health conditions than was evidenced in the case study above.

    Any employer that has more than 15 employees (so not a small business) should consider Mental Health First Aid training and having a Mental Health First Aid Officer (similar to a First Aid officer) in their workforce to better manage situations like that described here.

    Clear, specific communication without the frustrated condescension may have completely changed the results of our client’s interaction with their employee.

    Providing A Safe Work Environment

    As a small business owner, you don’t need another job to do that detracts from your revenue generating activities. However, you still need to provide a safe workplace.

    Safety at work is making sure that workers and visitors are not exposed to avoidable risks and hazards. This is usually done by assessing the risks in your workplace and putting in place safeguards to reduce or avoid those risks. People in workplace health and safety can help you with this, otherwise there are a large variety of resources online to help identify and manage usual risks in, say, an office. You then have a policy or procedure or both in place to help employees manage that risk.

    Not every single risk needs to be identified and managed. Every person is expected to have a reasonable measure of common sense; like, don’t stand on a chair with wheels to reach something on a high shelf!

    Assessing risks and managing them has to be reasonable in the context of the workplace and the people working there. If you know you have people in your workplace with mental health conditions, then having something in place to support them is reasonable.

    “Many workplaces are recognising the importance of having Mental Health First Aid, the training can provide participants with the skills to recognise signs of mental health, assist during a mental health crisis, offer initial help, and connect individuals to the appropriate professional, peer, or social services. It is important to recognise that a MHFA is not to provide counselling, their role is to assist and support, but with ongoing professional development training, a Mental Health First Aid Officer can play a vital role in the workplace by implementing wellbeing tools to create a mentally healthy working environment.”

    Jo Stevens from The Zen Zone is an advocate for Mental Health and provides Professional Development Training for Mental Health First Aid Officers.

    Mental Health First Aid training

    Mental Health First Aid Australia offers a variety of training and courses to train mental health first aid officers for your workplace. A first aid officer is not a medical officer and doesn’t provide diagnosis or treatment. It’s about learning the skills necessary to recognise symptoms of mental health conditions and support someone with a mental health condition to identify that support is available and where to find it.

    Mental Health First Aid training with The Thrive Movement

    You will learn. How to assist an adult who may be experiencing a mental health problem or mental health crisis until appropriate professional help is received or the crisis resolves, using a practical, evidence-based action plan. Including Depression and Anxiety, Psychosis, Substance Use Problems, Suicidal Thoughts and Behaviours, Deliberate Self Harm, Severe affects of Drug and Alcohol Abuse.

    This course is based on guidelines developed through the expert consensus of people with lived experience of mental health problems and professionals.

    Why Attend. Evaluations consistently show that MHFA training is associated with improved knowledge of mental illnesses, their treatments and appropriate first aid strategies, and confidence in providing first aid to individuals with mental illness. It is also associated with decreased stigma and an increase in help provided. An added benefit you will know how to look after your mental health better.

    What’s the Format?
    The 12-hour course can be delivered in 1 of 3 ways:

    • Face-to-face: a 2-day course led by an accredited MHFA Instructor.
    • Blended face-to-face: a self-paced e-learning component, followed by a 4-hour face-to-face session led by an accredited MHFA Instructor.
    • Online: a self-paced e-learning component, followed by 2 x 2.5-hour video conferencing sessions led by an accredited MHFA Instructor.

    Course and Instructor. For further information and enquiries for attending this course or a bespoke training for yourself or your team contact- ‘Derek Rogers of The Thrive Movement Australia’

    How can Onyx Legal help you?

    If you need help reviewing a risk assessment, an employment agreement, or preparing employee policies or procedures to support better mental health in your workplace, or simply concerned about managing one of your employees, make an appointment to talk with one of our team.