We are seeing more and more high-profile disputes with some of Australia’s leading franchises as franchises work together to challenge the imbalance of power often between the franchisee and the franchisor.
High profile cases like Mortgage Choice, Retail Food Group, Ultra Tune, Nando’s and 7-Eleven have shed light on the fact that all is not well in the franchise world.
As the economy changes and the way business is conducted pressure is often put on franchises and one of the most prevalent sectors is the food, drink and hospitality industry.
The Franchising Code of Conduct is a mandatory industry code across Australia that regulates the conduct of franchising participants towards each other.
It regulates the conduct of franchisees and franchisors, including the obligation to act in good faith and for franchisors to disclose important information before a franchisee enters into a franchise agreement. This means parties must act honestly, and not arbitrarily.
The Australian Competition and Consumer Commission (ACCC) is responsible for the administration and enforcement of the Franchising Code. The new Franchising Code of Conduct commenced on 1 January 2015.
What do you do if you have a dispute with your Franchisor?
The Franchising Code of Conduct requires that franchisors develop internal procedures for handling disputes with franchisees. This procedure must be set out in the franchise agreement and meet minimum standards set by the Code.
The Code also provides a procedure for resolving disputes.
When a dispute arises, either party may initiate the complaint handling procedure under the Code, or under the franchise agreement.
The Code requires you to first try to resolve your dispute with the other party by sending them a notice of dispute which clearly outlines:

the nature of the dispute
what outcome you want
what action will settle the dispute.

If you can’t agree on an outcome within three weeks, either party may refer the matter to mediation, which involves an informal negotiation between the parties facilitated by an independent third party.
Mediators attempt to assist franchisors and franchisees to resolve their dispute without going to court. Mediation is mandatory for both parties to attend and to genuinely try to resolve the dispute.
If Mediation is not successful then the parties can consider court proceedings which is often costly, lengthy and stressful.
It is important to get solid legal advice if a dispute arises with your franchisor and know your legal rights. At FC Lawyers, we have acted successfully for a wide range of franchisees in a variety of industries.
If you are in a dispute with your franchisee or have any other franchising questions, please contact our team today.
The post What can I do if I am in dispute with my franchisee? appeared first on FC Lawyers.

Trade marks are everywhere in our world and any business needs to understand how to protect their intellectual property just as much locally as globally.
It has often been said that a trade mark can be your most important and valuable tool to market your business, your goods or services.
Trade marks can be misunderstood. The perception it is just “a logo” could not be further from the truth. Trade marks are not just ‘a logo’. It can be a letter, number, word, phrase, sound, smell, shape, logo, picture, movement, aspect of packaging, or a combination of any or all of these.
Business owners must also remember that different rules can apply in different countries to determine ownership and associated rights.
In Australia, the “use” of a trade mark play a significant part in determining such things as:

Ownership;
Distinctiveness;
Removal for non-use;
Any infringement.

In Australia we give priority to people who are “first to use” and can demonstrate evidence of that use, even if another party has applied to register that mark as a trade mark in Australia first. The Full Court of the Federal Court considered this matter in the case of Anchorage Capital Partners Pty Limited v ACPA Pty Ltd [2018] FCAFC 6 (2 February 2018).
Other countries have a “first to file” system. This system gives rights to the party who first filed a trade mark application in that country for such mark, even if another party has used that trade mark in that country prior to the filed application.
Protecting your trade mark and intellectual property should not be taken lightly. You can be drawn into lengthy and costly disputes if you don’t get the right advice. At FC Lawyers our team has handled many successful registrations in Australia and throughout the world to protect our clients intellectual property.
Contact our team today to discuss your intellectual property legal needs.
The post Should I file a trade mark if I have been using it for years? appeared first on FC Lawyers.

In most states or territories, if you have been working for an employer for more than 7 years of continuous service you are entitled to Long Service Leave (LSL) paid pro-rata, or full pay after 10 years of continuous service. Entitlements to LSL derives from the relevant laws of each state or territory under the Fair Work system, and they set out the following:

how long an employee must work to be entitled to LSL; and
how much LSL an employee is entitled to.

A more difficult situation arises where an employee’s employment contract is subject to the laws of Queensland (QLD), but the employee works in another state.
Which state or territory laws apply?
The simple answer is that LSL is determined by the relevant state or territory legislation in which the employee performs the work.
For example; if the work is performed in New South Wales (NSW), but the employer’s registered office is located in QLD, the employee’s LSL entitlements will be subject to the NSW Long Service Leave Act 1955. The employer would not be in breach of QLD laws in paying LSL entitlements in accordance with NSW laws.
Furthermore, if an employee works in multiple states or territories over the accrued period relevant to LSL (note that it must be continuous service), case law suggests that the employer should apply the relevant laws of the state or territory in which the employee takes LSL, or when termination of employment occurs.
This is particularly important for employers who have terminated an employee’s employment to take notice of.
Are employees entitled to Long Service Leave if employment terminated by the employer?
In accordance with section 95 of the QLD Industrial Relations Act 2016 (the QIR Act), employees who have completed 10 years of continuous services are entitled to full pay of LSL irrespective of why their employment has been terminated. However, if an employee’s service is terminated after 7 years continuous service but prior to completing 10 years continuous service, they are only entitled to a pro-rata payment under the QIR Act if:

their employment is terminated as a result of their death (s 95(4)(a));
the employee terminates the service because of:

illness or incapacity (s 95(4)(b)(i)); or
a domestic or other pressing necessity (s 95(4)(b)(ii));

the termination is because the employer:

dismisses the employee for a reason other than the employee’s conduct, capacity or performance; or
unfairly dismisses the employee;

the termination is because of the passing of time and:

the employee has a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service (s 95(d)(i)); and
the employee was prepared to continue the employment with the employer (s 95(d)(ii)).

In contrast to QLD laws, other states or territories may have more “lenient” provisions in favour of employees with respect to the reason for termination and LSL entitlements.
For example; in NSW, Australian Capital Territory, South Australia and Tasmania an employee is entitled to pro-rata payment of LSL if the employer terminates the employee’s services for any reason other than serious or wilful misconduct. In Northern Territory and Western Australia, termination of employment by the employer must be for a reason other than serious misconduct. Employees in Victoria (VIC) are entitled to LSL irrespective of the reason for termination.
What does this mean for QLD employers?
Employers located in QLD should be wary that it is an offence to withhold LSL entitlements from an employee whose employment was terminated merely as a result of performance or capacity if the employee accrued LSL in another state or territory.
Furthermore, for states and territories other than VIC, termination by reason of conduct must be at the very least serious misconduct for an employer to withhold LSL entitlements.
It is important that employers and employees access the relevant state laws for each state or territory to address any concerns they have in relation to LSL entitlements.
If you have any questions regarding employment contracts and employee entitlements, please feel free to contact me.
The post Which state or jurisdiction governs Long Service Leave? appeared first on FC Lawyers.

On 1 September 2019, the Palaszczuk Governments new ‘lemon laws’ take effect with aim of specifically targeting defective cars that can’t be repaired to a customer’s satisfaction and to re-introduce a 30-day/1000km warranties for people buying a vehicle that is more than 10 years old, or which has 160,000km or more on the odometer. The new legislation also applies to motorbikes, caravans and motorhomes. This new legislation is in addition to the current statutory warranty, which provides a three months or 5000 km warranty for second-hand vehicles bought from a motor dealer that are no more than 10 years old and have travelled less than 160,000 km.
The warranty on vehicles over 160,000km or 10 years old was abolished by the Campbell Newman Government when in power resulting in consumers who purchased defective vehicles in that category faced excessive repair bills that they had the foot the bill for due to there being no warranty.
With no warranty it meant even though the large majority of motor dealers who do the right thing and ensure vehicles were not defective when sold or if a major problem was to arise would attempt to resolve it, scrupulous motor dealers knew they could have no recall against them if the vehicle was defective.
Attorney-General and Minister for Justice The Honourable Yvette D’Ath stated “The Palaszczuk Government’s Lemon Laws ensure Queensland motorists get a fair go when buying a new or used vehicle”, and went on to state further that the law changes meant buyers could make their vehicle purchases with greater confidence and peace of mind.
“These measures will build levels of trust in the industry and benefit the majority of motor dealers who are doing the right thing by offering best practice in terms of refunds, replacements and repairs at no cost when a vehicle is faulty.”
Queensland remains the only state in Australia to have introduced a lemon law – a form of legislated consumer protection enacted by the federal government of the United States of America as long ago as 1975. The term ‘lemon’ is a colloquial term used in America to describe a vehicle that is particularly unreliable and due to continually needing repairs or failure, ultimately becomes unfit for purpose. The Queensland Civil and Administrative Tribunal (QCAT) defines a lemon as ‘having numerous defects that reoccur despite multiple repair attempts or where defects have caused a motor vehicle to be out of service for a prolonged period of time’.
Under the new law a major change is that rather then a person having to go through the Courts based on their rights under the Australian Consumer Law (ACL)  that contained guarantees which protected consumers and required suppliers, among other things, to guarantee that motor vehicles were of acceptable quality and fit for purpose if the vehicle was valued at more than $25,000, QCAT’s jurisdictional limit has been raised from $25,000 up to $100,000. The effect of this is that consumers no longer have that sometimes extremely expensive legal battle in the Courts but can pursue a fair hearing without excessive costs to obtain a decision. The Honourable Yvette D’Ath said “Consumers are entitled to a refund if a product has a major failure of the consumer guarantees. It is important that consumers are able to have their matter heard through a court or tribunal.”
If you would like to discuss the introduction of lemon laws, or any legal issues, please contact me today.
The post New ‘lemon laws’ to protect buyers take effect from 1 September appeared first on FC Lawyers.

Is your lot in arrears and therefore “un-financial” at the time of a general meeting, and did your body corporate manager disclose this information to other members? If you believe your body corporate manager has defamed you by disclosing your lot’s financial position during a general meeting, there are a few factors to take into consideration before proceeding with a defamation action. This will help determine whether it is worth the cost of litigation.
What is defamation?
Defamation is the publication of materials, by words or by any other means which lowers a person’s reputation in their community. Before you commence a defamation action, consider the following:

Was the material published;
Were you identified by the publication; and
Would an ordinary person reasonably understand the words to be defamatory?

It is important to note that defamation will not provide a remedy for hurt feelings, but for damage caused to your reputation.
Liability of Bodies Corporate and Committee Members at general meetings
The conduct of the meetings of bodies corporate are governed by the Body Corporate and Community Management Act 1997 (Qld) (“BCCM Act”) or the applicable regulation module with Body Corporate and Community Management (The Standard Module) Regulation 2008 (“Standard Module”). These place some significant qualifications on the limitation of liability for Bodies Corporate and Committee Members.
Bodies Corporate and Committees are only protected from liability for defamation where:

Defamatory comments are included in the required material for a general meeting of the body corporate under the regulation module applying to the community titles scheme
(s 111A (1)(a)-(b) of the BCCMA); and
The publication was made by the body corporate or the committee, or a member of the committee, other than a member who submitted the motion or explanatory note containing the defamatory matter (s 111A (2)(a)-(b)).

Given the large amount of correspondence circulated within Bodies Corporate, the risk of potential defamation claims are significant, particularly where publications fall outside of the exception above.
How is the financial status of my lot considered “required material”?
Section 111A (3) of the BCCMA provides that required material for a general meeting of the body corporate includes:

A motion submitted other than by or for the committee for a general meeting;
The substance of a motion required under the regulation module applying to the community titles scheme; and
An explanatory note prepared by the submitter of the motion.

Where a general meeting engages the rules and laws governing voting entitlements, the financial status of a member’s lot may fall under the definition of “required material”. If a motion is submitted under section 111A of the BCCMA, a bodies corporate will be protected from a defamation action if the defamatory material identifies any members who are considered “un-financial”, thereby falling under section 84 of the Standard Module, which provides:
“A person does not have the right to exercise a vote for a particular lot on a motion (other than a motion for which a resolution without dissent is required), or for choosing a member of the committee, if the owner of the lot owes a body corporate dent in relation to the lot at the time of the meeting.”
If you have not paid your levies or owe a debt to the body corporate at the time of a general meeting, your body corporate may be protected under the BCCMA or Standard Module for disclosure of your lot’s financial status.
The mere assertion that a member owes a debt to the body corporate, without more, is not capable of constituting a defamatory remark. It is possible that some people could jump to wild theories with respect to imputations arising from the publication of defamatory material, but the preferred interpretation by courts is whether the hypothetical right-thinking person would not have (Trkulja v Google LLC [2018] HCA 25 at [31]).
Caution: other defences to defamation
Other defences to defamation actions may include, but are not limited to:

Triviality (Hurt feelings rather than reputational harm)
Qualified privilege
Absolute privilege
Contextual truth

Committee members should be cautious not to respond immediately out of offence or anger to publications made during general meetings. We suggest that you consult with others who do not have a vested interest in your situation.
As highlighted above, the exemptions to defamatory publications made by bodies corporate is limited and committee members may have other causes of actions arising out of the publication of defamatory material.
Bodies Corporate Defamation – the next steps
If you feel that you have been defamed or someone is alleging that you have defamed them, our legal team will help you through what can be a very difficult and complex area.
If you need any more information or if you wish to speak with our defamation team today, please contact us.
The post Defamation and Bodies Corporate – Can I sue for disclosure of my lot’s financial position? appeared first on FC Lawyers.

One of the most important documents that a company should have is a shareholders agreement. It will outline in detail how the company should be operated and outlines all shareholders’ rights and obligations.
Whilst the Corporations Act 2001 and a company constitution provide a range of safeguards, obligations and procedural matters relating to how shareholders must act and must be treated, having a shareholder’s agreement in place will clearly define those matters. It ensures that all shareholders are treated equally and equitably.
What are shareholders agreements?
A shareholders agreement supplements a company’s constitution by providing greater detail regarding the company’s activities and decision making. Typically, a shareholders agreement will contain a clause providing that, to the extent of any inconsistency with the company’s constitution, the shareholders agreement prevails.
Some of the most important matters that shareholders agreements address are such things as the raising of funds, who can be invited to become a shareholder and what happens in the event a shareholder wants to sell or becomes incapacitated or passes away.
It also allows shareholders to make decisions about what outside parties may become future shareholders.
Many start-up companies do not consider putting in place a shareholders agreement and this can be detrimental in the future, particularly where a company has significant growth.
In our opinion, a shareholders agreement should fit each companies individual and unique requirements. Whilst at a minimum a shareholders agreement will have clauses addressing the following matters:

Rights to appoint and remove directors
Terms to protect minority shareholders so that, for example, unanimous shareholder approval is required for certain company decisions
Restrictions on freedom to dispose of shares and, if other shareholders have pre-emption rights, at what valuation such transactions should take place
Restrictions on changing the nature of the business
Terms regulating the raising of capital to avoid diluting existing shareholdings.
Dividend policy
Limitations on directors to do certain things such as investing in a new capital project or charge the company’s assets
The requirement for a business plan
How disputes should be resolved

This list is just an indication of what needs to be considered and not exhaustive.
Do you have further questions on a shareholders agreement?
At FC Lawyers we have an expert team who have assisted in the drafting of shareholder agreements for companies and businesses both large and small across an in the profit and non for profit sector including agriculture, construction, education, entertainment, finance, healthcare, insurance, hospitality, manufacturing, media, real estate, service related, start-ups, technology, trade, transport and tourism.
Contact our team today to discuss your shareholders agreements needs, or if you have any other legal issues.
The post Shareholders Agreements – What are they? appeared first on FC Lawyers.

Domestic violence is a growing concern in today’s society. Prior to 25 November 2017, a Domestic Violence Order (DVO) was only enforceable in the state or territory in which it was issued or registered.
The resulting problem was that if victims moved interstate or to a territory, they would have to seek a DVO in that state or territory to ensure they were still protected.
On 25 November 2017, the National Domestic Violence Order Scheme was introduced to increase protection for victims and their families. The system now means that all DVO’s issued are automatically recognised nationally and as such local police will enforce the conditions of the DVO, irrespective of what state or territory it was issued.
Depending on which state or territory you reside, protection for victims of domestic violence may be provided by way of court orders, which include:

Protection Orders;
Family Violence Orders;
Apprehended Domestic Violence Orders; or
Intervention Orders;

Additionally, if a DVO existed prior to 25 November 2017, it is now possible to declare the existing DVO enforceable nationwide by applying to any local court in Australia.
It is important to note the following criteria when applying for a DVO:

A relevant relationship exists between the aggrieved and the respondent and
The respondent has committed domestic violence against the aggrieved and
The DVO is necessary or desirable to protect the aggrieved from domestic violence.

For further information on the scheme go to the Attorney-General’s website here or the Queensland Courts guide to completing an application for a protection order here.
If you’re unsure of any of the above relating to domestic violence orders, please contact our team to discuss your legal options.
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From time to time, it happens that you may need to register an easement on someone else’s property. For example – You might have your services (water, sewerage, electricity, telecommunication etc.) running through a neighbouring property to get to your property; or You might not be able to access the road unless you travel over […]

The post What if I need an easement to be registered on somebody else’s property? appeared first on FC Lawyers.

From 1 July 2018, the Farm Business Debt Mediation Act 2017 (Qld) “the Act” will bring about restrictions on mortgagees taking enforcement action under a farm mortgage until parties have conducted mediation. The purpose of the legislation is to provide an efficient and equitable way for farmers and mortgagees to resolve matters relating to farm […]

The post New Protections for Farmers against big Banks appeared first on FC Lawyers.

Your ‘main residence’ (your home) is generally exempt from Capital Gains Tax (CGT). To be entitled, the property must have a dwelling on it and you must have lived in it. Proposed new legislation affecting foreign owners Currently, if you are a foreign resident, you are entitled to the main residence exemption in the same […]

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The only thing certain in life is death and taxes – so what is set to change? Some of the key changes from the 2018-19 budget that may affect our clients are listed below. Tax deductions on vacant land – better start that build From 1 July 2019, taxpayers will not be able to claim […]

The post 2018-19 budget – what tax deductions & concessions are out the door? appeared first on FC Lawyers.

An easement is a legal right that attaches to land or a part of land (the Burdened Land) and allows a benefitting party to use the land in a particular manner. An easement may be granted from the Burdened Land in favour of: Another property, such as allowing a neighbouring property to use part of […]

The post What is an Easement? appeared first on FC Lawyers.

From the day you were born, your personal information is gathered and stored in databases run by both private and government entities, such as hospitals, schools, banks, public registries, and the business enterprises with which you have previous and current dealings and transactions. The use of advanced software programs and applications has considerably made it […]

The post General Data Protection Regulation (GDPR) – What is it? appeared first on FC Lawyers.

Statutory land valuations are the basis for the calculation of: Land tax Council rates State leasehold rents. How are the valuations decided? Generally: All land is valued based on a freehold value, even if it is leasehold. Each legal Lot is valued, although the Valuer-General also has the power to declare particular parts of a […]

The post State Government valuations of your property – not always black and white appeared first on FC Lawyers.

Last week the full Federal Court handed down its decision in Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation [2018] FCAFC 122, a case concerning the in-house asset rule and sole purpose test for SMSFs. Nick Casey has discussed the implications of this below. What is the in-house asset rule and the sole purpose test? […]

The post SMSF news – update on the ‘sole purpose test’ in the Aussiegolfa case appeared first on FC Lawyers.

No matter how small or big your business is, if you intend putting it on the market for sale there are a few rules that will make the process easier and ensure you obtain the maximum sale price. Have a plan and a strategy in place Know your financials and make sure there are strong […]

The post How do i prepare my business for sale? appeared first on FC Lawyers.

The Federal Court in a recent decision found one of Australia’s largest mechanical/automotive franchisees, Ultra Tune, was found to have breached its obligation to act in good faith to one of its Franchisees. Read the article regarding Ultra Tune here. It is the first time the Australian Competition and Consumer Commission (ACCC) has brought proceedings […]

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