The Australian Competition & Consumer Commission (ACCC) says its only at the ‘tip of the iceberg’ in terms of its efforts to ensure small businesses are not subject to unfair contract terms.
Since 12 November last year, when unfair contract terms laws were extended to small business contracts, the ACCC has taken successful court action against a major waste management company, JJ Richards & Sons Pty Ltd, for unfair contract terms including an automatic five-year rollover clause, a unilateral price variation term and a broad indemnity provision.
The ACCC has also commenced proceedings against serviced office space provider, Servcorp Ltd, alleging that 19 terms in its Service Agreement used with small business clients are unfair. The matter is currently before the court.
“These cases show the ACCC is serious about enforcing the new laws, and we will continue to take action where appropriate to ensure that small businesses are protected,” ACCC Deputy Chair Dr Michael Schaper said.
“ACCC engagement has seen tens of thousands of new or existing contracts improved, but this is the tip of the iceberg as Australia’s two million small businesses sign an average of eight standard form contracts a year.”
Earlier this year, a number of major traders such as Uber, Fairfax Media, Jetts Fitness, Lendlease Property Management and Sensis amended their standard small business contracts in response to unfair contract terms concerns raised by the ACCC. These changes have an effect upon thousands of small business contracts across Australia.
More recently, Australia Post proposed some amendments to its Licensed Post Office Agreement to address certain unfair contract terms concerns raised by the ACCC, and now plans to consult with its licensees on the proposed changes.
“We’re pleased with the level of engagement and cooperation we have seen from some traders over the past year, but we are also continuing to receive a steady flow of complaints from small businesses indicating there’s still a good deal of work left to do,” Dr Schaper said.
“Where small businesses think they are being asked to sign a contract that puts them in a greatly disadvantaged position to the company offering the contract, they should ask that the contract be changed. If the company won’t change the contract terms, they should make a report to the ACCC.”
Dr Schaper said small businesses should look out for common types of terms which may be unfair:
- automatic renewal terms binding customers to subsequent contracts unless they cancel the contract within a certain timeframe
- terms allowing a trader to unilaterally increase its prices or alter the terms and conditions of the contract
- terms that broadly limit a trader’s liability towards a small business, or which require a small business to indemnify a trader in an unreasonably broad range of circumstances
- terms that allow traders to cancel or terminate an agreement without cause.
“If small business thinks a contract term is unfair, it should ask the provider to amend or remove the unfair term,” Dr Schaper said. “If this is unsuccessful, a small business can contact the ACCC (or otherwise ASIC if it relates to a financial service or product) [or] seek the assistance of the State’s Small Business Commissioner or ASBFEO.”
In November 2016, the ACCC published a report Unfair terms in small business contracts, examining 46 standard form contracts across seven industries. Some traders removed or amended their terms after being contacted by the ACCC.
The ACCC has also published a guide to help small business: Unfair terms in small business contracts