LEGALESE a LEGAL HANDBOOK FOR COMMUNITY ORGANISATIONS LEGALESE: A legal handbook for community organisations Published by the Law Society of Singapore (‘Law Society’). DISCLAIMER This handbook contains general information on the law and legal matters, which is provided by volunteer lawyers who are members of the Law Society of Singapore (the Law Society). The information is provided as a public service by the Law Society. While the information is derived from sources believed to be reliable and accurate as at November 2015, the Law Society does not make any representation or warranty as to the accuracy of the information. The Law Society and its representatives also do not accept any responsibility for errors or omissions in the information provided. The information provided is not legal advice and should not be treated as an alternative to seeking legal advice from your lawyer. The information provided in this handbook is not a definitive analysis of the subject and professional legal advice should always be taken before any course of action is pursued. The Law Society regrets that it cannot provide any legal advice. Views expressed by the contributors are strictly the personal views of the respective contributors and are not necessarily those of the Law Society. Whilst every effort has been made to ensure that the information contained in this handbook is correct, the contributors, editorial team, and the Law Society disclaim all liability and responsibility for any error or omission in this publication, and in respect of anything, or the consequences of anything, done or omitted to be done by any person in reliance, whether wholly or partially, upon the whole or any part of the contents of this publication. Statutory instruments of the laws of Singapore referred to in this handbook can be found at http://statutes.agc.gov.sg/. COPYRIGHT © 2016 The Law Society of Singapore All rights reserved. No part of this publication may be reproduced, stored in any retrieval system, or transmitted, in any form or by any means, whether electronic or mechanical, including photocopying and recording, without the written permission of the copyright holder. ISBN: E-book: 978-981-09-9267-5 Paperback/Softcover: 978-981-09-9266-8 Content Foreword 5 Messages 7 Preface 8 About PBSO 10 Overview of For-profit Legal Structures 12 Overview of Non-profit Legal Structures 18 Starting Up 1. What are Social Enterprises and Non-profit Organisations? 26 2. Legal Structures for Social Enterprises and Non-profit Organisations 35 3. Setting Up a Legal Structure for the Social Enterprise or Non-profit Organisation 50 4. Business Vehicles and Corporate Governance 68 5. Regulatory Requirements 77 6. Singapore’s Personal Data Protection Act 86 7. Taxation in Singapore 99 8. Funding 112 Operations 9. Written Agreements 128 10. Employment Contracts 139 11. Protecting Your Business’ Intellectual Property 160 12. Restraint of Trade 178 13. Product Liability 186 14. Insurance 196 Expansion 15. E-Commerce 206 16. Advertising 217 17. Franchising 225 18. Cross-border Opportunities 243 Winding Up 19. Winding Up 258 Legal Assistance 20. Seeking Legal Assistance 272 21. Pro Bono Legal Aid for the Community 279 Endnotes 284 Welcome to LEGALESE 2016! In 2013, we published the Legalese handbook, a legal toolkit specifically tailored for youth social entrepreneurs to help them not only to start up, but also to empower them to run their businesses. We are delighted to be issuing a reprinted and updated edition of the Legalese handbook, the content of which has been expanded beyond social enterprises to cover non-profit organisations as well. This handbook will help social enterprises and other non-profit organisations in three main ways. First, we deal with the legal issues of start-ups, e-commerce and internet related issues. Second, we address the typical legal concerns that social enterprises and other non-profit organisations face, such as protection of assets. The final chapter considers legal obligations that arise in the event of winding up a social enterprise or other non-profit organisation. The Legalese handbook was enthusiastically received by the social enterprise community. We ran out of copies. We are confident that this new edition, Legalese, will be equally well received by its expanded target audience. No one likes legal jargon more than lawyers, but we have, by popular demand, taken the lawyer out of the Legalese handbook 2016. We have repackaged the key legal aspects to make it easier to read, but without diminishing the legal concepts presented in it. We believe that the idea of good corporate citizenship will galvanise businesses into expanding beyond profit maximisation, to focus on being values driven – finding, and filling, gaps in social needs. Over the past year or two this has proven to be the case. Social entrepreneurship has gone from strength to strength and social entrepreneurs are zealously contributing to the “social impact” by setting up organisations that address social needs within our community and yet deliver acceptable financial returns. Social entrepreneurship is well on its way to becoming entrenched in the business eco-system. In May 2015, President Tan launched the Singapore Centre for Social Enterprise, also known as raiSE, a dedicated facility to nurture the growth of social enterprises in Singapore. In November 2015, President LEGALESE • 5 Tan presented President’s Challenge Social Enterprise Awards in three categories to winners from a field of 42 social enterprises nominated for the award. It was intended to recognise outstanding social enterprises that play an integral role in our community. This ecosystem is also supported through grants to budding social entrepreneurs by raiSE, the National Youth Council and the Nation Volunteer & Philanthropy Centre. For example, the VentureForGood grant, administered by raiSE, provides funding for new and existing social enterprises up to a maximum of SGD$300,000. At the same time, let us not forget the significant efforts contributed to the broader non-profit sector in Singapore, whether in social and welfare services, education, health care, sports or the arts. The sector is evolving and moving away from reliance on public funds. Civil society bridges this gap, supported by the growth in charitable donations and volunteerism. The Law Society of Singapore hopes to make a modest contribution to this vibrant growth by enabling both entrepreneurs’ and other non- profit organisations easy access to basic legal knowledge to progress and develop in their visions The success of the original Legalese handbook would not have been possible without our volunteer lawyers, who invested much time and demonstrated exemplary skill in crafting the original edition. My heartfelt thanks goes out to them and to the editorial team for our new edition of Legalese. They were drawn from the Project Law Help committee members as well as all the volunteers listed in the acknowledgements. We acknowledge with gratitude the social enterprises and other non-profit organisations who have continued to provide crucial feedback and pro bono opportunities for our corporate and transactional lawyers. Moving forward, we plan to take the Legalese online, and transform it into an open and interactive “e-format” that will make it more accessible to a wider audience. Mr Thio Shen Yi, SC President The Law Society of Singapore 6 • LEGALESE Messages The Charity Council is pleased to support the Law Society’s latest publication of Legalese. First published in 2013, this revised version has expanded its scope from social enterprises to include charities as well. Legalese is a useful legal toolkit for anyone who is keen to set up a charity. It will help many more to understand through its clear and simple writing on some of the key legal information covering the operations of a charity, from setting up to winding down. The Charity Council would like to encourage all charities to read Legalese in conjunction with the Charities Act and Regulations. This will help charities gain a better understanding of their legal obligations, as they strive for good governance, transparency and accountability. Mr Gerard Ee Chairman Charity Council The first edition ofLegalese was very well received by the sector. The Singapore Centre for Social Enterprise (raiSE) is happy to hear of the launch of this 2nd Edition. We congratulate and thank The Law Society for their initiative to educate social enterprises on some of the fundamental issues of their structure and operations. We are heartened by the continued support of The Law Society as we work towards the common goal of a strong and sustainable social enterprise ecosystem in Singapore. Mr Alfie Othman Executive Director Singapore Centre for Social Enterprise (raiSE) LEGALESE • 7 Preface Volunteerism and the spirit of enterprise – these two elements drive both the non-profit and not-for-profit sectors in our society. But it takes more than gumption and good intentions to achieve results. It takes wise counsel, and careful preparation. A key step is to understand how best to comply with the law, and to use it to help safeguard one’s interests. This is why Legalese exists. Legalese is a toolkit which equips organisations with essential legal information with which they can better structure and expand their activities. The first edition ofLegalese , published in 2013, focused solely on social enterprises. In this revised edition, we expanded the scope to include, not only social enterprises (businesses with a social mission), but also non-profit organisations, in order to better support all the key players that serve the community. Legalese is the culmination of the hard work of dedicated volunteers who have drafted, reviewed and updated the content. Each of these individuals (together with legal volunteers who work with Project Law Help tie-ups and its community clinics) stand as Exhibit A in the evidence for the case that the law is not merely a business or a profession, but a vocation of higher calling.