Copy of franchise agreement on the desk Buying a franchise can be an easy and exciting way to get into business. However, before you commit to a franchise opportunity, it’s essential to beware of some of the pitfalls and understand your rights and obligations.

What is a Franchise Agreement?

When you become part of a franchise business, you will enter a franchise agreement. The agreement is a legally binding document that sets out the rights and responsibilities of both the franchisor and franchisee. The contract will usually stipulate that:

  • One party (the franchisor) grants another party (the franchisee) the right to conduct business in Australia supplying goods or services under a specific system or marketing plan substantially determined, controlled or suggested by the franchisor.
  • The franchise business is associated with a particularly trademark, advertising or commercial symbol owned, used licensed or specified by the franchisor.
  • The franchisee is required to pay or agree to pay an amount to the franchisor commencing or continuing the business.

Even though the business is not referred to as a franchise, if it meets the above definition, it will be covered by the Franchising Code of Conduct.

Important Due Diligence

Before you sign the franchise agreement, you should obtain as much information about the franchise as possible. You should also speak to a law firm with extensive knowledge of commercial law relating to franchises. Ensure it is a genuine business. If possible, speak to current and former franchisees about their experiences.

Ensure you understand what’s included in the sale (e.g. products, advertising, back up assistance). Find out what your health and safety obligations are, operating procedures, employee responsibilities and obligations upon termination of the franchise. What fees do you have to pay? This can include commission, renewal feeds, training fees and payments to a third party.

Signing the Agreement

If you decide to proceed, the franchisor must also provide you with:

  • A disclosure document
  • The franchise agreement in its final form
  • A copy of the Franchising Code of Conduct

You must receive these documents at least 14 days before you sign an agreement or make a non-refundable payment and have had a reasonable opportunity to read and understand each document. You are entitled to terminate the agreement within seven days of entering into it or making a payment.

Common Pitfalls

It’s crucial to carefully consider whether entering into a franchising arrangement is the right choice for you. Many franchisees enter into the business only to regret it down the track. The reason this happens can be due to common errors like:

  • Having unrealistic expectations regarding workload and money
  • Lack of research into franchising as an industry
  • Not seeking expert advice prior to entering a franchise
  • Inadequate research regarding competition and demand for the franchise’s products or services in the area

Need Advice or Assistance with a Franchise Agreement?

If you need advice or assistance going through your franchise agreement and disclosure documents, speak to our experienced lawyers in Brisbane. As members of the Queensland Law Society, our lawyers will examine your individual circumstances and offer timely advice on the best pathway forward.

At Phoenix Law, we specialise in Family Law, Personal Injury Law, Migration Law, Commercial Law, Property Law, Litigation Dispute Resolution, Estate Planning, International Trade Law, Intellectual Property Law and Workplace Relations Law. We speak your language, with a team of multilingual lawyers ensuring our clients get the best possible understanding of Australian law. Call our law firm today on 07 3180 0908 or contact us online.

3D illustration of a folder, focus on a tab with the word infringement

Intellectual property (IP) laws protect intangible assets owned by you or your business including trademarks, designs, photography, patents, secret processes, formulas and more. These laws are designed to protect individuals and organisations, encouraging them to create and innovate.

Along with a number of specific intellectual property laws, Australia is a signatory to a number of international agreements that offer IP protections overseas. Below we look at key examples of IP law and circumstances where knowing your rights can get confusing, such as on social media.

Copyright

Creative works are automatically covered by copyright in Australia, with the protection lasting for 70 years after the death of the creator in most cases. This includes artistic works, photography, music, film, sound recordings, writing, blueprints, computer programs, logos and designs.

When any of the above creations are commissioned, the individual or organisation who commissioned the work will generally take ownership of the copyright. Copyright law does not protect ideas, styles, concepts or techniques except in a few special circumstances. If you’re unsure whether copyright applies to your work, consult a law firm with experience in intellectual property law.

Who Owns the Copyright on Social Media?

You do not forfeit your copyright when you upload an image to Facebook or Instagram. The terms of use on both platforms state that you own all the content and information you publish on them. The caveat is that those platforms have a non-exclusive, fully paid and royalty-free transferable, sub-licence to use any content you upload.

The licence continues for as long as you have an account or until you delete that content from the platform. Granting a licence does not prevent you exercising your rights; it just means you are also allowing those platforms to use your IP.

Trademarks

A trademark isn’t just a logo, nor is it a business or domain name. It’s any way of identifying a unique product or service. It can be a letter, number, word, phrase, sound, shape, picture, movement, aspect of packaging or a combination of these.

Unlike copyright, trademark protections are not automatic. You have to register them to gain exclusive rights to use, licence and sell that mark. Doing so is essential for maximising its value as a marketing tool for your business.

Can You Trademark a Hashtag?

Hashtag trademark registrations have to follow the same rules as other trademarks. This means they have to meet the definition of a trademark under section 17 of the Trade Marks Act 1995 which is “a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person.”

Patents

Patents legally protect you from third parties manufacturing, using and/or selling an invention you’ve created in Australia. It can also be used to license someone to manufacture an invention on agreed terms.

Patents can be complex to apply for. Your invention must be new, able to be made or used in an industry and involve either an inventive step (standard patent) or innovative step (innovation patent). If you want to obtain patent protection for your invention you should avoid sharing any details of it with anyone until you’ve filed your patent application.

If you have any concerns about copyright, trademarks or patents, consult our experienced IP lawyers in Brisbane. As members of the Queensland Law Society, our lawyers will examine your individual circumstances and offer timely advice on the best pathway forward.

At Phoenix Law, we specialise in Family Law, Personal Injury Law, Migration Law, Commercial Law, Property Law, Litigation Dispute Resolution, Estate Planning, International Trade Law, Intellectual Property Law and Workplace Relations Law. We speak your language, with a team of multilingual lawyers ensuring our clients get the best possible understanding of Australian law. Call our law firm today on 07 3180 0908 or contact us online.

Are you Googling “what does no win no fee mean”?

 

If you’ve been hurt on the road, at work or in a public place and are considering making a compensation claim, you probably have more than a few questions about how the “no win no fee” system works, and what, if anything, you’ll end up paying for legal fees.

 

Don’t worry, we’ve got you covered. Here’s what you need to know about lodging a claim, without the legal jargon.

 

What is “no win no fee”?

Basically, if you sign up to a “no win no fee” agreement with a lawyer, then that lawyer will work on your case without the “certainty” of payment until a “win”.

In one way, this takes a significant risk away from the injured party when deciding whether to make a claim.  It also means the lawyer will be motivated to do everything possible to get that “win” so that they can get paid!

As your lawyers, we will share your risk by putting our time and right to payment on the line until we get that “win”.  

 

What is a “win”?

In legal terms we call it a “successful outcome” or “successful conclusion”.

A claim is considered to be successful once someone makes a reasonable offer of payment, which will lead to the ultimate resolution of the claim.  At that time you become liable for the legal fees incurred, however they are not payable until the conclusion of the matter, when the money hits the bank.

 

Will I have to pay anything upfront?

No. There are two different types of legal fees:

1. Professional fees: the fees charged for our time spent working on your matter.  

2. Disbursements: things your lawyers have to pay to others to get you a result, for example: getting evidence from police, medical records and paying for specialist medico-legal reports.  

We will cover the expense of the outlays as your claim progresses, then these are repaid to us from the settlement monies when the matter is finalised.  

All clients have the choice whether or not to fund their own disbursements. Most clients choose not to, either because they can’t afford to, or they simply prefer that the lawyers bear that risk, which we offer to do.

 

How do lawyers calculate their professional fees?

Professional fees are sometimes charged by the hour.  We have a full team of people – from admin assistants to senior lawyers –  who will work on your case. They spend time on things like, preparing the arguments, reading and understanding the evidence, attending meetings with you and the insurer etc. Normal service stuff.

Professional fees are also sometimes charged by the job.  For example, compiling a brief to a doctor depends on the size and volume of the brief, rather than the time it takes to put it all together (it’s more cost effective this way for you!).  Also, if we went to court to lodge a document, we just charge for item, and not the time it takes, so you avoid paying for waiting at the registry because another clerk from another firm is clogging up the queue.

 

Will I get a breakdown of costs?

Of course!

All work completed on your matter is logged and recorded.  It will say who did the activity and how long it took.

As your claim nears the final stages an assessment, an assessment will be done on your file to calculate our total legal fees based on the hourly rates of the various persons who did the work.  

This assessment is sometimes performed internally, but often we use an independent cost assessor to provide an accurate and independent assessment of the legal fees payable.  

 

What is the 50/50 cap?

A lot of people have questions about how much of their final settlement amount will be taken up by legal fees.  What if I settle for less than what the lawyers will charge?!

Well, that can never happen.

Queensland laws don’t allow lawyers to charge the client any more in legal fees than the client gets in their hand.  This is called the 50/50 rule and it trumps any assessments or calculation of legal fees.  

The bottom line is: If your claim is successful, you can not be left with nothing or owing any monies.  

The settlement award will:

  • Cover any repayments to relevant government bodies
  • Repay your outlays
  • Pay your legal professional fees and;
  • Produce an in-hand amount for you.  

 

What are “relevant government bodies”, and why do I have to repay them?

When a claim settles, the insurer must notify government bodies such as Centrelink, Medicare etc for a charge/clearance.  They are required to do this. If there is any monies owed for payments or services related to your injury, the insurer will repay that money to the relevant organisation on your behalf.

For example, if you attend a GP and are bulk billed for a consultation related to the compensable injury, then Medicare is entitled to be paid back the amount of the consultation that they covered in the first instance.  

Don’t worry, these don’t eat into your settlement because we add these amounts into the claim from the insurer as part of your overall settlement. It’s kind of like, the insurer pays you to pay back Medicare.

Centrelink operates a little bit differently though, and its best to speak to us about how it works.  

 

Who pays me my final cash-in-hand settlement amount, and how much will it be?

After the relevant government bodies have been repaid, the rest of the settlement monies are forwarded to our trust account under your name.  

From there, we will repay the outlays that have been incurred to progress your matter.  

The amount left over after statutory refunds and outlays is called the net settlement. The most a lawyer can charge for professional legal fees is half of the net settlement.  

 

How do I sign up for a no win no fee claim?

If you have more questions about whether you are eligible to lodge a claim, call (07) 3180 0908 or email info@phoenix-law.com.au for a confidential, obligation-free consultation.

We’re here to help YOU!

You can also get help in your  preferred language, if you’re not a native English speaker.

We have a multinational team including:

  • Mandarin speaking lawyers
  • Cantonese speaking lawyers
  • Japanese speaking lawyers
  • Farsi speaking lawyers
  • Dari speaking lawyers
  • Hindi speaking lawyers
  • Urdu speaking lawyers
  • Kurdish speaking lawyers
  • Bosnian speaking lawyers
  • Croatian speaking lawyers
  • Serbian speaking lawyers
  • Slovenian speaking lawyers
  • Macedonian speaking lawyers
  • Montenegrian speaking lawyers

Are you looking for a way to stay in Australia?

 

This month, the Australian government announced two new special visa agreements that can help skilled and semi-skilled overseas workers with lower english fluency to attain permanent residency… provided they are willing to live and work in designated regional Australian towns.

 

These special work visas  are sponsored by employers through labour agreements officially known as the Designation Area Migration Agreements (DAMA)s under one or both of the existing visa programs [(Temporary Skill Shortage (TSS) visa (subclass 482) and Employer Nomination Scheme visa (subclass 186)].

 

They will allow migrants who have hospitality or farming skills to get jobs in areas that have severe labour and population shortages. Currently these areas include south-west Victoria’s Warrnambool region and certain parts of the Northern Territory (where the DAMA is not new, but the offer of permanent residency is).

 

Those who take the government up their offer will need to commit to spending three to four years in the same isolated region before they can access a pathway to permanent residency – a promise that may prove challenging to keep in the Northern Territory’s intense tropical weather!

 

The announcement of the new visa agreements comes as welcome news to many migrants who are facing an uphill battle to stay in the country.

 

In recent years, the requirements for other work visas have become much stricter than they have been in the past. In particular, changes to jobs on the skilled occupation lists have left many migrants no longer eligible to apply for or extend their work visas.

 

A full list of the 117 jobs on the Northern Territory DAMA occupation list can be found here. The list includes lesser-skilled roles such as baristas, delivery drivers, and landscapers – all of which are also eligible for low-english concessions.

 

The Warrnambool DAMA is designed to attract workers to the area’s meat-processing, dairy and agricultural industries – making it a good fit for those who can’t stand the Northern Territory heat, but not ideal for vegans or office workers. The detailed requirements for this region’s new visa will be finalised next year.

 

 

To chat to a migration solicitor about how you can stay in Australia, get in touch with us! We specialise in helping people who don’t speak English as their first language apply for visas.

 

Our team includes:

  • Mandarin speaking lawyers
  • Cantonese speaking lawyers
  • Japanese speaking lawyers
  • Farsi speaking lawyers
  • Dari speaking lawyers
  • Hindi speaking lawyers
  • Urdu speaking lawyers
  • Kurdish speaking lawyers
  • Bosnian speaking lawyers
  • Croatian speaking lawyers
  • Serbian speaking lawyers
  • Slovenian speaking lawyers
  • Macedonian speaking lawyers
  • Montenegrian speaking lawyers

Call (07) 3180 0908 or email info@phoenix-law.com.au for an friendly, obligation-free consultation. We’re here to help YOU!

partner visa application

 

Have you fallen in love with an Aussie?

 

If your partner is an Australian citizen or permanent resident, and you plan to submit a partner visa application so you can remain together, this article is for you.

Here are three easy ways to increase your likelihood of a successful application:

 

1. Join the queue ASAP

Trying to navigate the deadlines and documents the Department of Home Affairs requires can be a nightmare. Sure, all the information is online, but it’s usually sprinkled across so many different web pages and forms that it’s hard to put all the pieces together.

Once you know you want to stay in Australia, the first thing you should do is ask a migration agent which documents you need, how to submit them, and when they’re due.

Make sure you do this well before your current visa expires because partner visa processing is notoriously slow, usually taking 13-18 months per application.

There’s rarely a way to fast track this process: The sooner you pay your visa fee, the sooner you join the queue. So, find out what you need to do to and take action ASAP.


2. Find out which rules are more flexible than others

If you’re concerned that you or your partner don’t meet the visa requirements listed online, there can still be a way to make that visa happen.

Here are two common situations that, at first glance, don’t meet the visa criteria, but can be worked to your favour by a smart solicitor:

  • Short relationships: To obtain a partner visa you generally must have been in a relationship and cohabiting with your Aussie partner for at least 12 months prior to lodging your application. However, if the duration of your relationship/cohabitation is less than 12 months, it’s still possible to obtain a partnership visa. This can be done by registering your defacto partner status with an Australian state or territory, obtaining a relationship certificate, then making a successful submission to waive the 12 months relationship requirement. 
  • Criminal records: You may be disappointed to discover your partner is unlikely to pass the Australian government’s character checks. The Department of Home Affairs has a specific requirement that the visa applicant’s partner doesn’t have a significant criminal record (a term of imprisonment up to 12 months or more). What you might not know, however, is that there are some exemptions which can be granted (such as compelling circumstances), but this takes time and needs to be dealt with early in the process.

With the right advice, you can overcome potential roadblocks that would otherwise delay, or sink or visa approval.  

 

3. Don’t assume the Department of Home Affairs will chase you

When it comes to providing supporting documentation and evidence, the onus is on you to do everything.

Don’t assume that if you’ve left something important out, the Department of Home Affairs will chase you down to ask for additional paperwork. If you don’t have enough evidence, chances are they will just reject your application, leaving you out of pocket for your application fee, and at the back of the queue again.

 

If you need help applying for your partnership visa…

Consider getting in touch with Phoenix Law.

We have solicitors that speak your language, including:

  • Mandarin speaking lawyers
  • Cantonese speaking lawyers
  • Japanese speaking lawyers
  • Farsi speaking lawyers
  • Dari speaking lawyers
  • Hindi speaking lawyers
  • Urdu speaking lawyers
  • Kurdish speaking lawyers
  • Bosnian speaking lawyers
  • Croatian speaking lawyers
  • Serbian speaking lawyers
  • French speaking lawyers
  • Italian speaking lawyers
  • Polish speaking lawyers
  • Russian speaking lawyers
  • Slovenian speaking lawyers
  • Macedonian speaking lawyers
  • Montenegrian speaking lawyers

Call (07) 3180 0908 or email info@phoenix-law.com.au for an obligation-free consultation. We’ll help you any way we can!

 

underpaid migrant worker lawyer

 

damning new report has shown over 50% of Australia’s international students, temporary migrant workers and backpackers are paid as little as half the minimum wage and only 10% ever attempt to recover their unpaid wages.

 
The study, which examined responses from 4322 participants originating from 107 countries, who worked in all Australian states and territories, also revealed only 3% of underpaid migrant workers went to the Fair Work Ombudsman and more than half of those who did recovered nothing.
 

Contrary to popular belief that migrants are content with lower wages, 54% of migrant workers were indeed open to trying to claim their unpaid wages. Yet, they did not do so for a variety of reasons:

 

  • 25% feared they would lose their visa 
  • 22% feared they would lose their job 
  • 42% said they did not know what to do 
  • 15% said their “English was not good enough” 
  • 35% said it was “too much work” did not know how much effort was involved 
  • 28% said they had agreed to the wage, so they had no legitimate reason to complain
  • 26% said that others around them had the same wage and weren’t taking action 
  • 20% were pessimistic about getting a positive outcome 
Australia’s underpayment epidemic is clearly fuelled by unscrupulous employers who rely on migrant workers’ silence.

 

What can underpaid migrant workers do?

 

While most naturalised Australians will tell migrant workers to seek help from the Fair Work Ombudsman (FWO), the reality is that the FWO rarely assists individuals in a meaningful way.
 
First, the FWO has a directive to ensure that ‘at least 90% of requests for assistance involving a workplace dispute are finalised through education and dispute resolution services’. This means that most underpaid workers who contact the FWO will be directed to their website or other service providers.
 
Second, even when a formal Request for Assistance is submitted, the FWO may address the matter directly with the employer or attempt to mediate over the phone – although they have no power to compel the employer to participate. This could jeopardise a worker’s visa and employment.
 
Third, according to the report, “In only a small fraction of cases, an individual Request for Assistance will trigger a formal investigation… while remedies for individual workers may flow from [subsequent] enforcement activities or be a means to achieving their goals, they are not a primary objective in their own right.”
 
In short, the role of the FWO is not to advocate for individual workers, but to ensure general compliance within businesses, and the majority of workers who contact FWO will not get their unpaid wages.

 

How a solicitor can assist underpaid migrant workers

 

Wherever financially possible, it seems the best recourse for migrant workers who are owed money from their employers is to seek legal advice.
 
A solicitor can help migrant workers:
  • Directly negotiate with their employer from a position of legal standing, ensuring their visa and job are not threatened.
  • Gather the required evidence and documentationwhich can be difficult for workers who aren’t issued payslips or are paid in cash.
  • File a claim in court (most often small claims court, but in some cases, a class action may be appropriate). Often, success may hinge upon something as simple as correctly identifying who a worker’s legal employers are and the legal instrument they have breached.
While it is true that some cases may not be worth pursuing, wage theft can quickly add up.
 
An employee who has been underpaid by $10 an hour for 20 hours a week would be entitled to $10,400 a year.

 

What to do when you’re a migrant worker who has been underpaid

 

If you’ve been underpaid, don’t just call the Fair Work Ombudsman. Seek legal advice. Call (07) 3180 0908 or email info@phoenix-law.com.au for a confidential discussion about your circumstances.
 
Our solicitors speak:
 
  • Japanese 
  • Chinese (Mandarin) 
  • Farsi (Persian) 
  • Dari 
  • Hindi 
  • Urdu 
  • Kurdish