Update: Unfair contract terms reforms commence

Posted on by influence legal.
The current status

From 9 November 2023, expanded provisions for unfair contract terms (‘UCTs’) found in standard form contracts have taken effect under the Australian Consumer Law and the ASIC Act. These changes will apply to any new contract, and any amended or renewed contract, made from that date.

unfair contracts
To assist understanding of the reforms for both industry and consumers, ASIC has provided new guidance you can find here.

Background

Before the reform, unfair contract terms in standard contracts with small businesses and consumers were void but not illegal. The first key amendment is that unfair contract terms are now illegal and attract significant financial penalties. The criteria for establishing whether a contract term is deemed ‘unfair’ have remained largely unchanged.

Expanded scope

Small business threshold: As part of these reforms, the scope of small businesses eligible for Unfair Contract Terms (UCT) protections has been widened. To fulfill the updated criteria for small businesses, a company must either employ fewer than 100 individuals or generate less than $10 million in annual turnover.

Standard form contracts: The UCT protections continue to apply to standard form contracts. However, a significant change is that even if the other party is provided the opportunity to negotiate minor adjustments to the contract’s terms or to choose from a selection of term options, the contract may still be considered standard form. Also, a contract may still be classed as standard even if another party involved in a different transaction had the ability to negotiate and implement significant modifications to that same form of contract.

Notable legislative changes

The recent amendments have removed the monetary contract threshold formerly stipulated by the ACL, which restricted the upfront price payable in the contract to not exceed $300,000.

Under the ASIC Act, the UCT regime will now only apply to a small business contract if the upfront price payable (excluding interest) for the contract is $5 million or less.

Implications

Under the Australian Consumer Law, the maximum penalty for violations of the UCT regime has been raised.

For companies, the penalty has increase to $50 million from the previous $10 million, or it may calculated as three times the benefit gained by the company if quantifiable. Alternatively, it can amount to 30% of the corporation’s turnover during the period of the offence, as opposed to the previous penalty of 10% based on the annual turnover only within the 12 months before the breach. For individuals, the maximum penalty has been changed from $500,000 to $2.5 million.

These penalties will apply to new contracts, renewals, or modifications of existing contracts that are entered into on or after 9 November 2023.

If you would like us to review your standard templates in light of the new provisions, please contact us.

Author: Zaki Zeini, paralegal.

Beware of new unfair contract rules and higher penalties!

Posted on by influence legal.

Businesses need to take another look at their standard contracts, now that the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 has expanded the unfair contract terms laws and introduced higher penalties for breaches of the Act.

Unfair contract terms status

Until these amendments, unfair contract terms in standard contracts with small businesses and consumers were void, but not illegal. The first key amendment is that unfair contract terms have become illegal and are now subject to significant financial penalties. The ACCC has welcomed this change due to the “adverse consequences of unfair contract terms on consumers and small businesses.”

Extended definition of small business contract

The second key change expands the scope of “small business” contracts to which the regime will apply. Now, a small business contract is a contract where one party to the contract is a business that employs fewer than 100 persons (previously 20 persons) or has a turnover for the last year of less than $10 million.

Unbalanced scales and book
Check whether your standard contracts are balanced. Image by Freepik

Another key point in this change is that where a party permits minor amendments to a standard form contract, it will still be considered as a standard form contract. Previously, it was considered that any negotiated change would be sufficient to avoid the effect of the unfair contracts rules.

The party which drafted the contract is required to prove that it is not a standard form. Remember as well that the rules apply even where the party which drafted the contract is also a small business.

With the extended definition of a small business contract, the new laws empower courts to rewrite commercial standard form contracts, including the power to void, vary, or refuse to enforce unfair contract terms.

Increased penalties for breaches of the Act

The third key change is the very significant increase of the maximum penalties under the Act for engaging in anti-competitive conduct and breaches of the ACL:
• $50 million (currently $10 million)
• Three times the value of the reasonably attributable benefit obtained from the conduct or
• If the courts cannot determine the value of the benefit, 30% of the body corporate’s turnover during the period it engaged in the conduct.

The ACCC hopes these penalties will serve as a “strong deterrent message to companies…to not mislead or act unconscionably towards consumers.” These amendments took effect on 10 November 2023.

Businesses should review their standard form contracts for terms that provide a significant advantage but go beyond what is needed to protect their legitimate interests. If you would like assistance to review your standard contracts, contact us.

Author: Ashna Govil, paralegal.

“Terms and conditions apply”

Posted on by influence legal.
Photo: CHOICE

CHOICE has made a compelling case for readability of contract terms and conditions, having hired Sydney actor Laurence Rosier Staines to read the 73,198 words of the Amazon Kindle terms and conditions – aloud.

Laurence starts out with enthusiastic professionalism …


Eight hours and 59 minutes later, he’s lost the will to live.

CHOICE head of media, Tom Godfrey, said, “Right now, the law protects us from unfair legal terms. But we think the practice of expecting a customer to spend hours of their lives reading a contract for a simple product is unfair. Companies need to do better and they should be explaining any conditions in a way that’s simple and easy to read.”

It’s not just a question of overly lengthy terms being unattractive for consumers to read. Unreadably long terms and conditions:

  • are often based on an approach of throwing in everything the drafter can think of, without working through what’s applicable for your individual business and tailoring accordingly.
  • can be less effective than clear, readable terms – for example, if disclaimers are not reasonably prominent, courts may decide that your terms are misleading or deceptive.
  • can be inconsistent with the Australian Consumer Law if they purport to limit consumers’ rights in a way that is not permitted, for example if you exclude refund rights for faulty goods.
  • can actually create more potential for complaints and disputes, if consumers have found them so difficult to read, they don’t end up understanding your product or service offering – wasting your time and money to resolve.

If you would like a review of your terms and conditions to check whether they work for your business and Australian law, contact us.

Highlights of 2016 and areas to watch in 2017

Posted on by influence legal.

Influence Legal ParliamentHere is a round-up of some key developments in 2016:

  • The Telecommunications Sector Security Reforms went through 2 rounds of public consultation and have now been referred to the Parliamentary Joint Committee for Intelligence and Security. These reforms will impose obligations on carriers and carriage service providers to take steps to ensure the security of networks and notify breaches, and provide powers to the Attorney-General to issue directions relating to security risks.
  • The Masters Bendigo case saw developments in relation to agreements to agree and good faith.
  • There were several key cases in the credit reporting area, including the Veda trade mark and SEO case, and the OAIC determination requiring Veda to improve accessibility of free credit reporting.
  • The Productivity Commission released its report on IP arrangements, prompting public debate in relation to fair use and the rights of copyright holders.
  • The OAIC consulted on its draft Big Data guide.
  • An exposure draft of the Harper review bill was released.
  • The unfair contracts rules for small business came into effect from 12 November.
  • The ACCC took landmark consent proceedings relating to attempted cartel conduct in the financial services industry.
  • The Federal Court found that Woolworths’ “Mind the Gap” payments were not unconscionable.

Areas to watch this year:

  • Data protection remains a key focus area with significant developments continuing in Australia (including the Notifiable Data Breaches Bill), the EU (the European Union General Data Protection Regulation will take effect in May 2018 and will significantly affect data relating to employees) and across the globe.
  • Trade secrets have become another focus area.  In 2016 the European Council approved the Trade Secrets Directive to harmonise European trade secrets protection. Member states will need to implement the directive by mid 2018. The US Defend Trade Secrets Act 2016 has created a federal jurisdiction for misappropriation of trade secrets including significant whistleblower protection which will need to be reflected in US employment and confidentiality agreements.
  • Ahead of the release of its 2017 priorities, we can anticipate that the ACCC will continue to focus on unfair contracts in business, cartel conduct (following the significant financial services case) and optional extra preselection in the airline industry. The ACCC is seeking submissions on a proposed FIFO airline alliance (due on 27 January) and on its draft decision for the declared superfast broadband access service (SBAS) and the local bitstream access service (LBAS) (due on 17 February).
  • CAANZ will report on the first Australian Consumer Law review by March.
  • Further legal and regulatory attention is likely in the problematic commercial VET sector, with reforms promised to address the significant consumer protection issues that were highlighted during 2016.
  • On the IP front, submissions are due by 22 January on the proposed IP Laws Amendment Bill.

Franchisors – are you ready for the new unfair contracts rules?

Posted on by influence legal.

NotebookThe new unfair contracts rules will apply to protect small businesses in standard contracts that are made or varied from 12 November 2016.

Franchisors should already have amended their agreements and disclosure documents, and included the new information statement in their document packages, following the earlier amendments to the Franchising Code of Conduct that took effect last year.

Franchisors also need to remember to keep their disclosure documents up to date.

The unfair contract rules protect small business by prohibiting standard contract provisions which: Continue reading Franchisors – are you ready for the new unfair contracts rules?