THE Australian Small Business and Family Enterprise Ombudsman Kate Carnell has welcomed the Australian Competition and Consumer Commission's (ACCC's)  legal proceedings against printing company Fuji Xerox Australia over allegations of Unfair Contract Terms impacting small business customers.

The ACCC has initiated Federal Court proceedings, alleging that nine types of Fuji’s standard form small business contracts contain 173 unfair contract terms.

The ACCC alleges the unfair terms include automatic renewal terms, excessive exit fees and unilateral prices increases in relation to contracts between Fuji and its small business customers for the supply of printing goods and services and technical assistance since at least October 2018.

“My office has received a number of complaints from small businesses customers of Fuji Xerox and other companies in the printing industry more broadly,” Ms Carnell said.

“The ACCC is currently not able to determine if a clause amounts to an unfair contract term. Instead, the regulator needs to seek a determination from the court.

“My office continues to recommend enhanced capabilities of regulators to determine if terms are unfair and for significant penalties and infringement notices to apply to breaches," she said.

“We maintain that unfair contract terms need to be illegal and the penalties should be large enough to act as an effective deterrent.

“By making unfair contract terms illegal, the Australian Competition and Consumer Commission (ACCC) would be able to penalise big businesses.

“Small businesses has been waiting for changes to level the playing field for too long.”

To date, ASBFEO has recommended:

-          Unfair Contract Terms be made illegal

-          Significant penalties and infringement notices to apply to breaches

-          Enforcement capabilities of regulators enhanced to determine if terms are unfair

-          Legislation extended to cover all contracts valued up to $5 million

-          Definition of a small business be changed to those with less than $10 million turnover.

www.asbfeo.gov.au

ends

THE Australian Small Business and Family Enterprise Ombudsman Kate Carnell has thrown her support behind ACCC chairman Rod Sims’ tough stance on Unfair Contract Terms.

The Ombudsman welcomed Mr Sim’s National Press Club Address, calling on the Federal Government to make Unfair Contract Terms between big and small businesses illegal and subject to harsh penalties.

“It’s hard to believe that in 2020 it is still not illegal for a big business to impose unfair contract terms on a small business,” Ms Carnell said. “Small business has been waiting for changes to level the playing field for too long.

“In November 2016, Treasury legislation amendment (Small Business and Unfair Contract Terms) Act 2015 took effect, that legislation was reviewed in 2018 and here we are, another two years on and small businesses continue to be adversely impacted by big businesses with legal impunity. It’s clear that change is long overdue.  

“I wholeheartedly agree with Mr Sims’ statement that if we want unfair contract terms to stop hurting Australian small businesses, they need to be illegal and the penalties should be large enough to act as an effective deterrent," Ms Carnell said.

“My office has been advocating for unfair contract terms legislation to be strengthened for a considerable time now - most recently in our COVID-19 Recovery Plan and our comprehensive submission to Treasury’s Review of Unfair Contract Term Protections for Small Business, in March this year.”

To date, ASBFEO has recommended:

• Unfair Contract Terms be made illegal
• Significant penalties and infringement notices to apply to breaches
• Enforcement capabilities of regulators enhanced to determine if terms are unfair
• Legislation extended to cover all contracts valued up to $5 million
• Definition of a small business be changed to those with less than $10 million turnover

“Currently where a standard form contract contains an unfair contract term, the only way for a small business to take action is through the court system. And even if the term is proven to be unfair, there is no penalty to the big business,” Ms Carnell said.

“Phase one of our Access to Justice Inquiry found small businesses are unlikely to take action when faced with an unfair contract term in their standard form contract. Understandably, they are reluctant to damage commercial relationships, and lack the resources and time to pursue litigation.

“By making unfair contract terms illegal, the Australian Competition and Consumer Commission (ACCC) would be able to penalise big businesses," Ms Carnell said.

“The sooner Unfair Contract Terms between big businesses and small businesses is made both illegal and subject to big stick penalties, the better.”

ends

WITH Australia’s economy still experiencing the impacts of COVID-19, this Friday the House Economics Committee will gather key financial regulation bodies to discuss consumer protection, responsible lending, and other issues.

Chair Tim Wilson said witnesses from the Australian Competition and Consumer Commission, Australian Prudential Regulation Authority and Australian Securities & Investments Commission would appear at Friday’s hearing.

"The COVID-19 pandemic has created unprecedented disruption and uncertainty in the financial sector," Mr Wilson said.

"Now, more than ever, it is essential to maintain strong prudential regulation; promote competition; and ensure fair and transparent dealings to safeguard financial stability and consumer trust in the financial sector."

The hearing brings together separate inquiries from the committee into each body’s annual reports.

"It has been a year since we saw the ACCC before the committee, and I am looking forward to hearing how the ACCC is protecting the interests of consumers in sectors like tourism and insurance, as well as progress on their media code," Mr Wilson said.

"Of particular interest to the committee is hearing from ASIC regarding its guidance on the responsible lending obligations in light of the RBA Governor’s recent evidence to the committee, as well as whether they are taking action against super funds acting inappropriately," Mr Wilson said.

"The committee is also interested in hearing how APRA is promoting strong prudential regulation and operational resilience amongst financial institutions, including super funds."

Mr Wilson said the committee was keen to scrutinise the ACCC on its response to the pandemic, including enforcement activities, review of hardship policies, its COVID-19 Taskforce, and maintaining and promoting competition.

In addition, the committee would also examine the Australian Energy Regulator. In particular, the committee was interested in the AER’s efforts in protecting energy customers and the energy market during the COVID-19 pandemic.

Public hearing details

Date: Friday, 23 October 2020
Time: 9.30am to 5pm
Venue: Committee Room 1R3, Parliament House, Canberra, and via videoconference

The hearing will be broadcast live (audio only) at aph.gov.au/live.

ends

ENTRIES are now open for Shop! ANZ’s 23rd annual Retail Marketing Awards, with the best in Australian retail marketing campaigns to be recognised across 26 categories, covering physical displays and shopper experience.

The prestigious Shop! Awards recognise and reward best practice, innovation, and excellence in retail and shopper marketing. Open to both Shop! ANZ members and non-members, entrants vie for gold, silver and bronze prizes, in addition to the award’s highest honour, the Tom Harris Retail Marketing Award, named after Shop! ANZ founder, Tom Harris.

The 2020 Awards program will boast a number of new features, including a new culturally sensitive trophy, four new categories and an extended eligibility period to take into account the impact of the Covid-19 pandemic on retail marketing.

Shop! ANZ general manager Carla Bridge said despite the setback of Covid-19 restrictions earlier in 2020, this year’s awards were shaping up to be the biggest and best yet.

“Like many, Covid-19 has afforded us the opportunity to reinvent the way things have been done in the past, and as a result we’ve launched a number of new categories to cater to the market where we are at now, as well as overhauling some historic elements that were in need of a modern approach," Ms Bridge said.

“The historic ‘cigar shop Indian’ statuette trophies will be replaced this year for a new and exciting design to be launched on the awards night that we feel is a better reflection of our industry and caters to the range of cultural sensitivities in the multi-faceted world we live in,” Ms Bridge said.

“We’ve also introduced two one-off Covid-19 related categories to recognise the impact that corona virus restrictions have had on the way we market to shoppers in retail environments and beyond. Retail marketing these days has a much broader remit than the store footprint, and corona virus has really cemented that this year.”

Submissions are open to January 18, 2021. Entries must have been in market in the period between July 1, 2019 and December 31, 2020. Australian and New Zealand designers and producers of retail marketing material, brand owners, agencies, suppliers, and retailers are eligible to enter the awards.

New Categories for 2020:

Covid-19-Safe Retail Continuity Product

Awarded to the best product created specifically to help or enable brands and retailers of any type to continue operations 'Covid Safe' for employees and shoppers. May also include interesting/innovative integration of technology and sensory components that work together to create a greater connection with shopper. Must have been infield between March 1 2020 and December 31 2020.

Campaign Response to a Covid-19 Changing Shopper

Awarded to the best campaign or retail transformation project designed specifically to cater to changes in shopper behaviour or challenges arising from the Covid-19 pandemic and social restrictions. Entries must have an insight or address a new shopper behaviour created by Covid-19, taking into consideration changes to shopping environments and behaviours can include one or several elements. This category may also include supporting of a business 'pivot' from their core business due to Covid-19. Must have been instore between March 1 2020 and December 31 2020.

Produced in ANZ

Awarded to the best Australian or New Zealand produced temporary or permanent display in any Australian or NZ retailer. Entries must be 100 percent produced in Australia or NZ (excluding componentry/some materials) by an Australian or New Zealand-based business. All processing of raw materials such as printing, fabrication of metal work and timber etc as well as assembly and packing of the unit must be completed in either Australia or NZ.

Winners will be announced at retail marketing’s night of nights, the Shop! Awards Gala Dinner, on Thursday, March 25, 2021. Tickets can be purchased at www.shopassociation.org.au/events/2020-awards-gala-dinner. Bookings made before December 31 receive a 10 percetn earlybird discount.

Awards criteria, and step by step guides on how to enter the Awards online are available at www.shopassociation.org.au/enter-awards

For more information, or to enter the Awards, visit www.shopassociation.org.au/about-awards

Shop! ANZ 2020 Retail Marketing Awards categories:

Physical Store
- Large or Department Store
- Grocery Store (food) –Temporary Display & Permanent Display
- Grocery Store (non-food)
- Liquor – Temporary Display & Permanent Display
- Petrol, Convenience & Route
- Health & Beauty – Temporary & Permanent
- Consumer Electronics – Temporary & Permanent
- Specialty Retail, Lifestyle & Service Providers  – Temporary Display & Permanent Display
- Category Management
- Window Displays
- Store Design
- POP THIS POP THAT Retail Industrial Design – Temporary & Permanent
- Covid-19-Safe Retail Continuity Product

Shopper experience
- Digital Instore, Mobile, Social & Online
- Experiential
- Sales Promotion
- Occasion-based Shopper Campaign
- Integrated Path to Purchase Campaign
- Campaign Response to a Covid-19 Changing Shopper

Pinnacle and special awards
- People’s Choice Award
- Environmental Stewardship
- Best Design & Innovation
- Best Display
- Best Shopper Experience
- Tom Harris Retail Marketing Award (Best in Show)

About Shop! ANZ

Formerly known as POPAI, Shop! is the only global, not for profit industry association exclusively advocating for excellence in shopper marketing and retail experience. With 20 offices covering 45 countries and over 1700 member companies worldwide, Shop! brings global best practice intelligence, resources, recognition and networks and to our members.  www.popai.com.au or email www.shopassociation.org.au.

About the Shop! Marketing at Retail Awards:
The annual Shop! ANZ Marketing at Retail Awards recognise and reward outstanding retail marketing campaigns across 26 categories, covering physical displays and shopper experience. Open to both Shop! ANZ members and non-members, entrants vie for distinguished Gold, Silver and Bronze prizes. Award winners will be announced at Shop!’s Awards Gala Dinner on March 25 2021, at Doltone House Jones Bay Wharf, Sydney. For more information on the Awards or to view entry case studies, visit www.shopassociation.org.au

ends