Bywaters Timms is a leading commercial law firm with lawyers practicing in commercial law, business law, franchising law and wills and estate planning. We provide our clients with legal results throughout Australia, no matter where they are. We have clients from Cairns in the north, Tasmania in the South and in Western Australia.
Our lawyers see beyond legal issues, providing practical, coordinated and "results driven" commercial solutions.
At Bywaters Timms we have the experience to make our clients feel comfortable in placing their legal issues in our hands. We take time to understand our clients businesses and their particular issues. We genuinely care for our clients, their businesses and the outcomes achieved. We strive to achieve good commercial results for our clients and develop close, long term relationships.
Our reputation is based on proven depth of experience and expertise. We have a strong established client base with whom we work closely. We really do become an essential part of our client's team.
Our mission is to be an essential part of our clients business by providing timely, up to date commercial legal advice.
Bywaters Timms and Rouse Lawyers are pleased to announce the merger of the two firms from 1 December 2015.
The alignment of core values was seen as critical to the partners of both firms. The merger will benefit the clients of both firms as the core values of excellent service, practical advice with top tier results and true value for clients will continue to be the cornerstones of the merged practice moving forward.
The merger is a strategic alliance between the two firms who have synergy of key practice areas such as commercial, franchising, property and estate planning.
Read the full Merger Announcement.
Be Alert for Scams
People should always be on the alert for scams and use caution when receiving unsolicited telephone calls and emails. Dishonest scammers are continually developing new techniques in order to trick people into handing over money or personal details.
The Queensland Law Society recently issued a warning over a scam involving a caller requesting details of whether the recipient had been involved in a motor vehicle accident within the past two years. If the recipient answers 'yes', then the caller claims to work for a New South Wales law firm which can offer legal representation. These 'law firms' do not in fact exist. The full report can be accessed here.
Although the Law Society did not speculate on the purpose behind this particular scam, it could be to obtain personal details or even to elicit payment of funds to a nonexistent lawyer's trust account.
The Australian government has an entire website dedicated to keeping people informed of the latest scams which are trending. The Scam Watch website provides helpful advice on identifying and protecting yourself against potential scams, as well as a means to report scams. The Scam Watch website can be accessed here.
Proposed Unfair Contracts Legislation for Small Businesses
The Small Business Minister has introduced legislation into parliament proposing to regulate unfair contracts. If the legislation passes in its current form, then from early 2016 small businesses, including many franchises, who enter into contracts after the legislation takes effect will be covered by its scope.
The legislation will apply when:
There are many different contracts the legislation may cover, for example franchise agreements, retail leases and supply agreements.
A term of a contract may be unfair if it provides one party a significant imbalance of rights, causes detriment to a party if relied upon and is not reasonably necessary to protect a party's legitimate business interests. An example could be a term allowing one party to unilaterally change a price at any time, or to terminate a contract without a reason. A Court may also consider the bargaining power of the parties and whether a party was given the opportunity to negotiate the terms of the contract, such as a contract offered on a 'take it or leave it' basis.
If a Court determines that a contract contains an unfair term then the contract may continue to operate, but the unfair term will be struck out. Infringing businesses may also be liable for compensation to the other party.
We will follow the progress of this legislation and provide further updates in due course.
Authorities Set Sights On Underpayment of Employees And Interns
Some recent cases demonstrate that employers must ensure that employees are employed under the right award and paid the correct wage.
A Melbourne Gloria Jeans franchisee was fined a total of $110,500 by the federal Circuit Court for underpaying 22 casual foreign students $83,566 over 2 years. The students were paid as little as $8 an hour. The employees were back-paid the monies owed, and the Court noted the underpayments were deliberate and "a conscious decision was made to reduce wages when the business was not producing a sufficient income". The Court also observed that the restaurant and hospitality industry had been recognised as "notorious for non-compliance".
Dave's Noodles in Tasmania which was a fledgling franchisor was fined $100,000 for underpaying their Chinese chef $88,857 over a 3 year period. The franchisor also allegedly created false time and wage records which they directed the chef, who spoke little English, to sign. The Fair Work Ombudsman is currently seeking an order for full back-pay.
Fair Work Australia has found that a New South Wales Bakers Delight franchisee underpaid 26 employees by a combined total of almost $40,000. The employees were unpaid their minimum hours of pay, casual loadings, weekend and holiday pay. The franchisee reimbursed the underpayments to the apprentice bakers, baker's assistants and shop assistants, and also signed an enforceable undertaking to conduct future self-auditing to ensure that employees receive their lawful entitlements.
Businesses should also ensure that they understand their obligations regarding interns and work experience placements. Following an investigation by the Fair Work Ombudsman, Crocmedia Pty Ltd was recently fined $24,000 by the Federal Circuit Court for failing to pay wages to two interns of the media and entertainment company. The interns initially completed 3 week work experience placements, and proceeded to perform casual work for 6 months and 12 months respectively.
Although the employer paid the interns between $75 and $120 per shift for 'expenses', the nature of the work carried out by the interns meant that they should have been paid at least the federal minimum wage. In addition to the fine, the employer was also required to back pay the interns almost $23,000.
This decision does not mean that all interns are entitled to a wage, however employers should take into account the length of the placement, productivity expectations and the commercial gain to the business when assessing remuneration. In a work experience placement the main benefit should be to the intern, and not the employer.
These decisions should act as a reminder for businesses to be vigilant in understanding and complying with workplace laws, as well as keeping on top of superannuation and group and payroll tax payments. While it can be easy for employers to confuse awards, the Fair Work Commission is just a phone call away and can help with your enquiries.
Employment law is not our area of expertise, but we are reminding you of the consequences and large fines which could be imposed if a mistake is made.
Federal Court Declares Unconscionable Conduct by Cleaning Franchisor
Victorian franchisor South East Melbourne Cleaning Pty Ltd (in liquidation), formerly Coverall Cleaning Concepts South East Melbourne Pty Ltd, has been found to have:
If a franchisor makes a representation about a future matter, the onus is on the franchisor to establish that they had a reasonable basis for making that representation.
The franchisor was found to have taken advantage of the franchisees' significantly weaker bargaining power and the franchise agreements were therefore void from the date of order. The former director of the franchisor was found to be knowingly involved in the franchisor's contraventions and was:
The Court will determine a pecuniary penalty for the franchisor at a later date.