Agreements you need to run a business

The documents that face your customers

• Terms and conditions of trade. For businesses that supply goods or services on account. Deals with price, payment, interest, title and risk, retention of title, and limitation of liability. The single most valuable document a trading business owns, because it decides whether you get paid.
• A credit application with a director's guarantee. Signed before you extend credit, not after the account goes bad. This is also where your terms are incorporated into the contract.
• Service agreements. For project or engagement work where scope, variations and deliverables matter more than a standing account.
• Quotes and proposals that reference your terms. A quote that does not attach or reference terms is an offer on whatever terms a court later implies.
• Website terms and conditions and terms of sale. Required in practice for anything sold online.

The documents that face the people who work for you

• Written employment contracts. Setting the position, the applicable award or agreement, hours, remuneration, probation, confidentiality, intellectual property and termination. Without one, the National Employment Standards and the relevant award fill the gaps, usually less favourably to you.
• Independent contractor agreements. Necessary, but not sufficient. Since 26 August 2024 the whole of relationship test in section 15AA of the Fair Work Act 2009 (Cth) looks at the practical reality of the arrangement, not just the label on the document.
• Restraint and confidentiality provisions. Within the employment contract, calibrated to the role. A restraint on a junior employee is usually unenforceable and can undermine the ones you actually need.
• Intellectual property assignment. Employees generally assign work made in the course of employment automatically. Contractors do not. Say so expressly.
• Workplace policies. Not contracts, and they should say so, otherwise a breach of policy becomes a breach of contract by you.

The documents that protect what you own

1. A confidentiality agreement before you show anyone your figures, your customer list, your recipe or your code.
2. An owners agreement, being a shareholders agreement or a partnership agreement, before the second owner comes in.
3. A lease, reviewed before signing. If it is a retail shop lease under the Retail Shop Leases Act 1994 (Qld), the lessor must give you a draft lease and a disclosure statement at least 7 days before you enter into it, and if they do not, you may have a right to terminate within 6 months. Leases of shops with a floor area over 1,000 square metres are outside the Act.
4. Licence agreements where you let someone else use your brand, software or system without selling it. If it starts to look like a system plus a trade mark plus a fee, you may have created a franchise. See franchising your business.
5. A privacy policy and collection notice if you handle personal information. Australian Privacy Principle 1 requires a clearly expressed and up to date privacy policy.
6. Deeds of release whenever you settle anything with anyone. A settlement that is not documented is a dispute waiting to restart.

What makes any of them enforceable

A contract that exists on your website is not a contract with your customer. Three things decide whether your terms actually apply.

Incorporation. The terms must be brought to the other party's attention before the contract is made. Signature is best. A clear reference in an accepted quote is usually adequate. Terms printed on the back of an invoice sent after delivery are usually too late, because the contract was formed when the order was accepted.

Fairness. If the contract is standard form and the other party is a consumer or a small business, the unfair contract terms rules apply, and since 9 November 2023 breaching them carries civil penalties rather than merely rendering the clause void.

Consistency. Where your quote, your terms, your website and your purchase order all say different things, you are in an argument about which document governs. Pick one set of terms, reference it everywhere, and keep the version history so you can prove what applied on a given date.