Real Estate Agents - let us deal with the legal side of things so that you can put all of your energy into your business – focusing on sales, retaining and growing your property management portfolios and building your revenue. Here's a list of the top 5 issues we see Real Estate Agents try to handle themselves, taking precious minutes away from their businesses.

1. Contracts and Agreements

Ever heard the expression ‘A stitch in time saves nine’? Well, the concept applies to contracts or agreements that seem straightforward. You could talk to us about a fixed price contract review - our lawyers can run their eyes over an agreement before you sign it up, so that we can point out things for you to think about. Or, on the flipslide, you can think you are saving money by not having us look at the agreement, sign it up and then end up with a contractual mess that will cost you significant time and money to be cleaned up.

2. Partnership/Shareholder Structures

The same goes for the documentation of agreements with your partners or fellow shareholders. You can’t let friendship be a hindrance to a well-documented relationship. The clearer the paperwork is, the less likely there will be room for disputes.

3. Chasing Debts

Often all you need is a well-drafted letter from a lawyer, or a good recovery strategy, to get payments made. If your current strategy isn’t working, maybe we can help you shake it up – and it is likely that it will cost less than you think.

4. Stolen Intellectual Property

Finding your copy and marketing photos all over the internet, without your approval? We know how to deal with this. Don’t let other agents ride on your coat-tails and profit from your hard work.

5. Disputes

We believe that catching and sorting out disputes early is the best way to approach them. Firing missives and being set in positions will only take you straight down the path to the courts – and let’s face it, that’s the last place that you want to spend your time and money.

Don’t hesitate to give us a call at any time to discuss your real estate business. You might be surprised at the value we can offer.

Further review of the food franchise sector has revealed major shortcomings in the industry once again. The ACCC’s Disclosure Practices in Food Franchising report (August 2019) revealed that many of the issues associated with information sharing can be avoided during the early stages of a franchising partnership.

The report details some simple steps that can be taken to improve franchise outcomes. These guidelines not only help franchisors avoid breaching the Franchising Code and/or Australian Consumer Law but allow franchisees to make more informed business decisions.

It is amazing to see how many franchisees have jumped into what might be one of the biggest decisions of their lives without seeking advice or understanding exactly what they are getting into. Here are some tips and tricks noted in the report that are worth considering before signing up to a food franchise.

Obtain independent advice

Over 40% of prospective franchisees are not obtaining independent legal, accounting, and business advice before entering into an agreement. While not compulsory, seeking advice from a professional with experience is worth its weight in gold. Independent advisers can alert you to the risks and costs involved in running a franchise. Think of is as a very cheap insurance policy. It’s important to then take time to consider that advice before entering into an agreement. Ask questions and don't take franchisor information or advice on face value!

Seek and understand unavoidable costs

Franchisors are obliged to disclose payments a franchisee must make, such as rent, wages and inventory. This information must not be false or misleading (but it still might not be all that clear). If you are looking into a franchise, make sure you work through these details and numbers and properly understand what your business will need to turnover to be profitable. For example, creeping CPI increases over a number of years could chew up any forecast profits in the years ahead.

Know the types of goods subject to restrictions

Think again if you consider you'll be able to cut costs by sourcing produce from a cheaper supplier, or bump up your profit by upping your retail prices - you might not have that luxury. Some franchise deals require franchisees to buy produce or other goods from the franchisor's supplier of choice. Details of supply restrictions need to be outlined in a disclosure document and maximum retail prices need to be defined in the franchise agreement (and they should not be unfair). Again, if you are going to be a franchisee, understand what this will mean for your business.

Contact franchisees and get the low-down

The best way to obtain a realistic perspective on running a franchise is to talk to current and past franchisees. Franchisors should make contact details of former franchisees readily available.

Don’t go into a franchise blind. Do your homework and talk to your advisors before taking a big leap.

Penalty rates will change in the latter part of this year as a result of a 2017 Fair Work Commission decision. The changes affect those covered by the General Retail, Fast Food, Restaurant, Pharmacy, and Hospitality Industry Awards, but don’t impact those employed under an Enterprise Bargaining Agreement.

Under the new changes, Sunday and Public Holiday penalty rates have been reduced by 10-15% with changes expected to continue into 2020. The amendments were designed to encourage retailers to hire more staff.

The extent of the changes differs depending on industry and hours. For specific information regarding a particular industry, visit the Fair Work website or give us a call.

Australian businesses lost over $60 million in 2018 because of cybercrime, according to reports to the ACCC and Australian Cybercrime Online Reporting Network.

The most prevalent and damaging scams are being run by cybercriminals impersonating businesses and directing customers to pay into a rogue bank account. The scam involves hacking into email accounts and sending false invoices to customers or change of bank account information, all the while directing funds be paid into the scammer’s bank account instead of the business. Both small and large businesses have been targeted, and so have local sporting clubs and community groups. The consequences can be devastating.

The figures are frightening, but there are some simple ways to protect your business and reduce the likelihood that cybercrime will impact your bottom line.

Ensure staff are informed.

Ensure all staff are made aware of potential scams that may target your business. Communicate with staff about current scams and ensure they know who to contact if they receive suspicious emails or are unsure as to whether any correspondence they have received is legitimate.

Have strict protocols in place

It is important to ensure all staff are trained to cross check all emails or phone calls directing payments to

specific accounts. Ensure that you have processes in place that outline how money transfers and requests will be handled to avoid your profits ending up in the hands of scammers.

Send a message to your customers

Ensure customers are aware that all change of bank detail requests should be confirmed via a phone call to your business. Having a disclaimer on your invoices or even email footers for customer facing employees instructing customers to call and confirm any correspondence regarding bank details is a great start.

You take pride in the quality of products and services you provide, and you know that the customer is king. These days, customer experience in your store is just as important as the quality, price and attractiveness of your products. It is all about how your customers feel when in your store. There are so many online and social media platforms for people to quickly and easily voice their opinions these days and so bad news can travel fast! As a retail business owner, you know it is best to make sure you’re not on the wrong side of a customer review.

So how do your customers feel when they walk into your store and how do you make sure your staff are as invested in the customer experience as you?

Setting presentation standards, expectations and outlining the general rules and values of your business can be done simply and easily by providing your staff with a code of conduct policy. It doesn’t need to be wordy and overcomplicated, but it can make managing performance and any non-compliance much easier when you have a set of guidelines to refer to.

It can be a short, sharp and to the point document that is easy to read and covers all bases including employee behaviour, break times and the general expectations of your retail staff.

How?

There is no need to reinvent the wheel. GoldDocs has a Code of Conduct template especially for retailers that you can customise once downloaded. It is short and sweet, and straight to the point. Best of all, it only takes a few minutes to put together and employees can read it without losing interest. Let GoldDocs take care of the paperwork so that you can get back to the business of providing your customers the kind of quality service they’ve come to expect. Check it out here.

They say money makes the world go around and no one understands that better than a business owner. Having someone owe you money can put your business in a difficult position affecting cash flow, wages and supplier payments. No one enjoys making debtor calls and particularly those that are not returned.

After repeated attempts to contact debtors who have put their head in the sand, you may be tempted to engage debt collection agencies or even initiate formal court proceedings. However, these processes are not only expensive, they can be prolonged for months or even years with no guarantee of a successful outcome.

So you have tried calls and emails – what next?

A Letter of Demand is a formal escalation of the matter, requesting payment when invoices, statements and phone calls have fallen on deaf ears. It formalises the matter, acts as a final warning and allows you to officially notify the debtor that you intend to commence legal proceedings if payment isn’t made.

Not sure how to write a Letter of Demand?

Our online policy and legal document store, GoldDocs, can help. We have a short questionnaire that populates a standard Letter of Demand ready to send to your elusive debtor in minutes. Send a strong message without having to get a lawyer involved. Check out our Letter of Demand page here.

Of course, if this formal demand letter still doesn’t elicit a response or payment, feel free to get in touch with us and we’ll help you take the matter further.

Seems like a fairly ridiculous question, right? It would be fair to say that you could assume that your staff know what is expected of them in terms of presentation.

However - have you ever received an invitation to a party with a dress code like smart casual, cocktail, morning suit or informal and sat scratching your head? Interpreting your office dress code can be just as tricky when there are no guidelines in place.

The days of suits, ties and stockings are giving way to more casual attire but that doesn’t mean we are quite ready for ripped jeans and midriff tops to become the norm. As a business owner, spending time on HR can seem like a necessary evil. Addressing staff dress and hygiene standards when they become an issue can not only be awkward and uncomfortable but can lead to calls of discrimination if standards aren’t clear and fair for all.

But how can staff members know what is expected unless that is properly communicated to them?

We suggest putting a presentation policy in place and distributing it to all staff. This is a great first step to ensuring everyone is clear about what is expected of them in the workplace. It is not just for customer facing roles either. The right presentation can set the tone for your office standards and provide a working environment that reflects the values of your business. It is also great to provide to new starters so they don’t wear their best suit on the first day when the rest of your employees are in jeans and a button down shirt. A well set out and easy to read presentation policy not only guides staff but is also handy when an issue arises and gives you something to point to when having a conversation with staff.

Don't panic - we have done all of the hard work for you

Save yourself the trouble of difficult conversations in the future by implementing a simple presentation policy now.There’s no need to spend hours researching and writing your own policy or spending thousands consulting HR companies to create a document that’s simple, to the point and covers all bases. Our GoldDocs Employee Presentation Policy is a straightforward (and fun!) read and a cost-effective solution to a possibly uncomfortable problem. It is fully customisable once downloaded. Check it out here.

“If you don’t care, your customer never will”.

Your restaurant or cafe prides itself on the quality of your team's service.

The infiltration of social media into our lives has meant word of mouth is one of the fastest ways to turn customers on to or off your business. Having your staff deliver amazing service has never been more important.

How do you ensure your staff are on the same page as you when it comes to presentation standards, expectations and the general rules of your business?

We think it is vital that hospitability businesses put codes of conduct in place because they make managing expectations, performance and your team easier because they create a set of guidelines for your staff to work with. The code is also something to point to when staff are not performing at the level you expect.

Are you thinking policies like these are always so complicated?

Don't panic - a code of conduct policy needn’t be a wordy novel. It can be short, sharp, to the point and as digestible as the delicious meals you serve on the daily. A good policy covers all bases from employee behaviour, meal and break times and the rules of the kitchen.

Time-poor? Don't worry, we have done the hard work for you

There’s also no need to reinvent the wheel. Our online legal and policy store, GoldDocs, can provide your hospitality business with a Code of Conduct template specifically for cafe and restaurant employees that you can customise once downloaded. Best of all, it only takes a few minutes to put together and employees can read it in the time it takes to make the perfect latte.

Let GoldDocs take care of the paperwork so that you can get back to the business of providing your customers the kind of quality service they’ve come to expect. Check out our Employee Code of Conduct for Cafes and Restaurants here.

What better way to start the week than with the magnificent Denny Crane. Check out this linkto start your week right.

Scrutiny of the franchise sector is heating up as a parliamentary inquiry into the franchises and the Franchising Code of Conduct is expected to deliver its findings at the end of this year. Over 100 submissions have been made by franchisees claiming unfair remuneration agreements, exploitation of workers and a general lack of transparency.

The industry has been rife with scandal in recent times with many well-publicised cases of misconduct, including the recent Fair Work investigation into 7-Eleven, which found franchisees across the network had been deliberately and systematically underpaying its employees.

Franchising as a whole could even be under threat with Caltex announcing that it is abandoning the business model. Many other corporations may follow suit with investors of pizza chain Dominos calling for similar action after recent weak financial results.

Australia Post is expected to be at the centre of the inquiry with allegations they have misled franchisees about the growth ability of the business. Mortgage Choice is also expected to be a focus with franchisees publicly protesting against unfair remuneration agreements.

However, the enquiry may be too little, too late, for the thousands of franchisees that have collapsed in the last few years as well as those on the brink. It seems a significant imbalance of power between franchisors and franchisees has lead to the bankruptcy of many ordinary Australians who aimed to live out their business ownership dreams through the franchise model.

The full report is due to be handed down at the end of this year, but it remains to be seen whether the inquiry will lead to systemic change in industry.

Businesses have a strong incentive to get their houses in order regarding the payment of superannuation to their employees as new laws came into operation on 1 July 2018 that bring the prospect of jail time for repeat offenders.

Currently, employers that fail to pay their employees’ superannuation on time are required to pay penalties in addition to their existing obligations – this is known as the superannuation guarantee charge.

The new laws are directed towards employers with a track record of intentionally and repeatedly failing to meet their superannuation liabilities. The Commissioner of Taxation will be empowered to issue repeat offender employers with a final notice to pay the superannuation guarantee charge.

Employers that ignore these directions will be liable for criminal penalties, including, most significantly, 12 months’ imprisonment.

The Commissioner can also issue directions to employers who do not understand their superannuation obligations to attend an approved course to address knowledge gaps and improve future compliance.

As a further incentive, on 24 May 2018 the government announced that it will offer, effective immediately, a 12 month amnesty. The amnesty is a one-off opportunity for employers to self-correct past super-guarantee non-compliance without penalty. Of course, terms and conditions apply to any employers seeking to take advantage of the amnesty.

An Aussie individual has recently been successful in the latest battle in a long running war against monolith, Google. The High Court has allowed an action for defamation to continue against Google, despite Google fighting to keep this out of the courts.

What is the case about?

In 2004, an individual (Plaintiff) was shot in a Melbourne restaurant during an infamous period (Melbourne’s gangland war). Although this incident was unrelated to Melbourne’s criminal underworld, Google search results for the Plaintiff’s name began returning images of him along with underworld figures such as Carl Williams, ‘Chopper Reid’, Mario Condello and Jason Moran. Google’s autocomplete function also began suggesting words such as ‘criminal’, ‘underworld’ and ‘Melbourne criminal underworld’ after his name.

Although Google granted the Plaintiff’s request to alter the autocomplete results, they refused to alter the image search results. The Plaintiff then commenced an action for defamation against the multinational technology giant.

This case has been running for many years, and the latest stoush was heard by the High Court last month.

What happened in the High Court in June?

The High Court found that Google’s search results were capable of being held as defamatory. The Court concluded that the relevant test for whether published material is capable of being defamatory is measured against what an ordinary reasonable person would understand of the complained material and whether that would caused them to think less of that person. The Court agreed with the trial judge that Google was a likely a ‘publisher’ of the alleged defamatory material despite the use of computer algorithms.

The High Court has now sent the matter back to the Victorian Supreme Court for a final hearing.

How is this case relevant for your business?

Internet search engine results that put an individual or business in a false context and result in incorrect connections being made may lead to a claim of defamation against the relevant search engine provider.

There could be legal ramifications for businesses that use search engine optimisation tools to increase their online presence.

The eagerly awaited final hearing before Victorian Supreme Court may prove crucial to the future law in relation defamation and Internet search engines.

Watch this space.

In the recent case of Patron Spirits International AG v Fernbrew Pty Ltd [2018] ATMO 87, two companies disagreed over whether their ‘pirate’ rum trade marks for alcoholic beverages were too similar and possibly misleading for consumers.

What happened?

In April 2016, Fernbrew Pty Ltd lodged a trade mark application for “The Pirate Bay Rum Company”. Patron Pty Ltd then contested the application, arguing that Pirate Bay Rum was deceptively similar to its own trademark “PYRAT” rum. Patron asserted that the Fernbrew’s trademark was likely to mislead consumers and breach Australian Consumer Law.

Patron claimed that Fernbrew’s use of the word “pirate” and the concept of “pirates and rum” made their two trade marks substantially the same. They pointed out that the affiliation between pirates and rum is found throughout pop culture and history as far back as Shakespeare’s 1604 version of Hamlet where “pyrat” appears as an older spelling of the word “pirate”. Patron mentioned the Pirates of the Caribbean franchise and Robert Louis Stevenson’s Treasure Island as further evidence of the link between pirates and rum. Patron argued this concept was also the basis for its reputation.

What did IP Australia decide?

IP Australia decided that while the words “pyrat” and “pirate” may be verbally similar, the Pirate Bay Rum trade mark was unlikely to mislead or deceive consumers as it was sufficiently different from the PYRAT mark both visually and with its phrasing. The hearing officer Adrian Richards stated that a visual comparison of the two trade marks showed that there was little, if any, resemblance between them. Richards also indicated that Patron’s PYRAT rum lacked a prominent brand image or “reputation” in the public eye as evidenced by a lack of advertising and limited sales. This made it unlikely consumers would be deceived or misled as to the difference between the two.

What does this mean for your business and registering trade marks?

This means that trade marks can plausibly have some similarities in wording or spelling. However, a key consideration is whether that similarity will be likely to mislead or deceive consumers. A range of factors is considered including the idea or the concept of the trade mark as a whole.

You can visit IP Australia’s website for information and useful tools about trade marks for your business.

In what is shaping up to be a test case for the business model of the gig economy, the Fair Work Ombudsman is taking food delivery service Foodora to the Federal Court over alleged sham contracting arrangements.

What is the case about?

The Ombudsman is arguing that despite individuals holding an ABN and signing ‘independent contractor’ agreements, the true nature of their relationship with Foodora is as employees.

Whilst there is nothing unlawful about a business organising its workforce to facilitate the provision of labour in the most cost effective way, the Fair Work Act 2009 (Cth) guarantees minimum employment conditions to employees. For example, if the relationship that the hirer has engaged in with the worker is legally one of employment, section 357 makes it unlawful for the hirer to misrepresent this relationship as an independent contracting arrangement.

In this instance, the Fair Work Ombudsman is alleging that the ‘independent contractor’ agreements between Foodora and its workers amount to a misrepresentation, because in reality, Foodora acted in the capacity of ‘employer’. Some factors that are being pointed to include the fact that Foodora exercised control over the manner of work that was completed, provided Foodora-branded clothing and equipment for its workers to use, and paid its workers fixed hourly rates.

What does it mean for your business?

The recent action by the Fair Work Ombudsman against Foodora is a reminder for businesses to exercise caution about the way they seek to classify relations with contractors or staff.

Simply labelling a worker as an ‘independent contractor’ does not automatically avoid an employer/employee relationship.

Rather, businesses must consider the work relationship more holistically – looking at all relevant factors. This is often described as a “multi-factor” test. The test is based on consideration of a number of factors with no single factor being determinative of whether a person is an employee or a contractor. Some factors, such as whether the worker is subject to control over how their work is done, or whether the worker truly carries on a trade or business on his or her own behalf, will carry more weight than other factors.

Whilst this test is not new, the nature of freelance work in the gig economy makes correctly classifying the relationship between a company and its workers problematic. The upcoming Foodora case will hopefully provide some clarity to businesses that engage workforces in this space.

We are thrilled to announce that Laura Racky has joined Shebah as Chief Legal and Strategy Officer.

Shebah is an all-female network of drivers and passengers and Laura is looking forward to working with such a meaningful and important company as it continues its story of growth and success.

Although road laws generally apply to drivers and operators, other parties in the transport supply chain are often the cause of breaches, or the breaches are outside of the control of drivers or operators. Australia’s transport Ministers wanted to reform the existing law relating to the use of heavy vehicles to align it with other national safety legislation and tighten up obligations right across the transport supply chain.

So, from October 2018, all parties in the transport supply chain will have a positive duty to ensure safe practices. This does not mean that every party will be liable for every breach – it means that parties will be responsible for any breaches over which they had control to prevent.

Chain of responsibility requirements will also extend to heavy vehicle standards and maintenance, and liability of executive officers will broaden to require due diligence for safety across the entire supply chain.

If your business is part of the transport supply chain, start by taking a look at the National Heavy Vehicle Regulator’s chain of responsibility gap assessment tool available on the NHVR's website.

The Federal Government is set to bring in reforms to assist struggling businesses from going under and closing their doors. The new controls come into effect from 1 July 2018 and could signify the end of ‘ipso facto’ clauses.

What are ‘ipso facto’ clauses?

Commonly found in contracts across all industries, ‘ipso facto’ clauses allow a contracting party to modify, suspend or terminate their contract with another party when a certain event arises, such as insolvency. Unfortunately for businesses, these rights are often exercised despite the company’s ability to continue performing their obligations under the contract. The termination of these contracts can be the death knell for a business that might otherwise be capable of a turnaround.

What is changing?

The proposed reforms, passed in September 2017 under the Treasury Laws Amendment (2017 Enterprise Incentives No 2) Act 2017 (Cth) (Amendment Act), will mean that contracting parties will no longer be able to end or suspend contracts if the right to do so is only triggered as a result of insolvency events. Under the Amendment Act, these types of rights may be deemed temporarily unenforceable or stayed (put on hold) for a period of time. Businesses may also apply for an extension of this period.

Why is this important?

The operation of ‘ipso facto’ clauses have often meant that businesses lose some of their biggest and most lucrative contracts in a time where they become most crucial. The rationale for the changes is that if contracting parties can be restrained from terminating or modifying their contracts prematurely, businesses will be better equipped to meet their obligations and survive a turnaround or restructure.

The Federal Government hopes that the breathing space these new provisions create will mean that more businesses will be able to better weather the storm – but will they be prove to be unfairly restrictive on parties wishing to terminate their agreements? We will just have to wait and see come 1 July 2018.

These restrictions will only apply to contracts entered into after 1 July 2018. Talk to us if you are interested in a more detailed overview of the changes and how they might impact your future contracts.

We knew it!

Have a read about the results of the Global Trends in Hiring Outside Counsel survey here.

It has been a remarkable year for the team at llgold.

We have worked alongside our clients in all sorts of exciting strategic twists and turns, and we are so looking forward to what next year will bring.

We hope that all of our clients, friends and colleagues have a wonderful break over Christmas and New Year with their loved ones.

See you in the New Year!

This week David Koch and Nick Bennett called our Director, Laura Racky, to talk about how businesses can approach legal disputes. Have a listen to their conversation in the podcast here(first guest, 22 June episode).

Louise Hvala of Gatehouse Legal recently came by to our offices to interview Laura Racky on her legal career, why she set up llgold, what lawyers can learn from their clients, and tips for new (and not so new) lawyers.

Watch here: