Contents
On 1 June 2021, a major update to the Franchising Code of Conduct (Code) was passed by parliament. The changes were focused on better balancing the power difference between the franchisor and franchisee by focusing on 3 main areas:
- Dispute resolution
- Pre-entry disclosure
- Termination of the franchise agreement
In addition, there are a number of more minor changes on specific areas of the code.
When Are These Changes Coming Into Force And How Will It Apply To My Franchise?
The changes to the new Code are coming into force on 1 July 2021.
All franchise agreements after 1 July 2021 will need to comply with the new Code.
For any existing franchise agreements, the new Code will automatically apply and override any conflicting provisions so there is no need to update any existing franchise agreements. However, the new Code will apply for anything that happens after 1 July 2021.
As a franchisor, it would be best practise to review and update any Disclosure Document and Franchise Agreements you have in place.
For example, under an existing franchise agreement, mediation is the only alternative way to resolve a dispute. Under the new Code, for any dispute after 1 July 2021, the dispute can also be referred to arbitration, despite there only being a provision for mediation in the franchise agreement.
Dispute Resolution
The primary change made to dispute resolution is the availability of arbitration and conciliation as additional forms of dispute resolution.
Old Code
- Mediation was the only available alternative dispute resolution (ADR) process.
New Code
- Mediation, conciliation and arbitration are now available ADR processes.
- Item 17 of the disclosure document has been amended to reflect this change.
- Clause 40B is a new clause and explicitly allows franchisees with similar disputes to discuss the dispute for the purpose of deciding whether to agree to resolve their dispute in the same way.
Impact
- The Code is more flexible on what form of ADR process may be used to try and resolve a dispute.
- It’s left up to the parties to decide which ADR process to use.
- Franchisors cannot now rely on any confidentiality provision or other argument to prevent franchisees from seeking to resolve a similar dispute collectively.
Pre-Entry Disclosure
There is a new document – the “Key Facts Sheet” – that is now part of the documents that must be given to a franchisee before they enter into a franchise agreement. In addition the changes focus on:
- Providing clarity on when documents must be provided;
- Additional disclosure obligations when the franchisor or its associate has an interest in a lease (whether as a landlord or the tenant); and
- Other additional disclosure obligations about disputes, supplier rebates, what happens at the end of a franchise agreement and earnings information.
Key Facts Sheet
New Code:
- A new document called a “Key Facts Sheet” has been added as a mandatory document that needs to be given to the franchisee before the franchise agreement can be entered into.
- Similar to the disclosure document, clause 9A makes clear that the “Key Facts Sheet” will also be a standard form document and must be updated.
Impact:
- The “Key Facts Sheet” is now an additional document that must be maintained and provided to franchisees.
Information Statement
Old Code:
- There was only an obligation to provide the “Information Statement”
New Code:
- Clause 11(3) now makes it clear the “Information Statement” should be provided before the franchise agreement and disclosure document are provided to a potential franchisee.
- If the franchise premises to be leased from or licenced by the franchisee from the franchisor or its associate, Clause 9(e) now requires a copy of the lease and any associated State or Territory based information statements, be given to the franchisee before the franchise agreement can be entered into.
- Franchisors must also provide a copy of this information within 7 days of any request by a franchisee (clause 13(2A)).
Impact:
- The process for issuing franchise documents will need to be updated.
- The “Information Statement” should be provided to a potential franchisee as soon as possible.
- For clarity, this new disclosure obligation only applies if the premises is leased from or licenced by the franchisee from the franchisor or its associate.
- With this additional disclosure obligation and associated new termination rights (discussed below) it’s less likely franchisors will choose licence premises.
- For franchises where this is unavoidable, it may be worthwhile to finalise leases before the franchise agreement is entered into.
14 Days To Review Documents
Old Code:
- Franchise agreements could be transferred from the seller of a franchised business to the buyer without any additional disclosure required by the franchisor.
- The buyer was reliant on being provided the relevant documents from the seller.
New Code:
- Under Clause 9(2A) franchisors cannot give consent to a sale of a franchise unless it gives the buyer 14 days to review all documents required to be signed by the buyer to become a franchisee.
- For clarity, this new disclosure obligation only applies if the franchise agreement is being transferred. If a new franchise agreement is being entered into, then the buyer will be considered a “new” franchisee and the normal disclosure process will apply.
Impact:
- A person that buys a franchised business now always has the benefit of the same disclosure requirements as a “new” franchise.
- Also now makes it clear that a grant of a new franchise even in a sale will require the franchisee be given the 14 day disclosure period. Franchisors should ensure the internal franchise sale process takes this into account.
- See also cooling off rights in the termination section below.
Printed Or Electronic Documents
New Code:
- Clause 9(2C) gives potential franchisees the right to require the franchisor to give them mandatory franchise documents in printed or electronic form or both.
Impact:
- As part of the process of issuing franchise documents, franchisors should give franchisees the option to choose how to receive the franchise documents.
Disclosure Of Percentage Engaged In Proceedings
Old Code:
- Requirement to disclose information about disputes was limited to those that were in litigation.
New Code:
- Inclusion of new item 4.4 in the disclosure document.
- Franchisors must now disclose the percentage of franchisees engaged in any mediation, arbitration or conciliation proceedings.
Impact:
- Gives franchisees a clearer picture of the level of franchisee satisfaction across the network compared to the old disclosure requirements as not all disputes go to court.
Disclosure Of Details
Old Code:
- The Franchisor was only required to disclose basic details of any rebate or financial benefit received from a supplier.
New Code:
- Update to item 10.1 of the disclosure document.
- Franchisors must now provide greater detail including:
- the nature of any rebate or financial benefit;
- the amount of rebate or financial benefit received as a percentage; and
- if the rebate or financial benefit is shared with franchisees what percentage is shared and a description of each shared rebate or financial benefit.
Impact:
- Gives franchisees a clearer picture of any potential conflicts of interest between the franchisee, the franchisor and a supplier.
- Franchisors will need to ensure there are precise methods in places for calculating any supplier rebates and the sharing of any supplier rebates.
Disclosure Of Interest
New Code:
- Item 13.3 of the disclosure document now requires disclosure of any interest by the franchisor or its associate in any lease.
Impact:
- Similar to the update to item 10.1, the new item 13.3 gives franchisees a clearer picture of any potential conflicts of interest between the franchisee and the franchisor in relation to a premises.
Details On End Of Franchise Agreement
New Code:
- Updates to Item 18 of the disclosure document requires franchisors to provide more substantive details of what happens at the end of a franchise agreement.
- Addition of specific new items about goodwill and restraint of trades.
Impact:
- Item 18 should now provide more information on what happens at the end of a franchise agreement.
Earnings Information
Old Code:
- Although arguably not the intention of the old code, it was possible to provide earnings information separately from the disclosure document.
New Code:
- Earnings information can now only be given if:
- It’s given at the same times as the disclosure document; or
- Any earnings information given is then afterwards included in the disclosure document.
- Note that when earnings information is provided, clause 9(4) now resets the 14 day disclosure requirement.
Impact:
- Earnings information should always be included with the disclosure document.
Termination
The primary changes are:
- the increase in the cooling off period from 7 days to 14 days;
- giving franchisees an explicit right to start negotiations for terminating a franchise agreement; and
- immediate termination now requires 7 days notice.
Cooling Off Period
Old Code:
- Cooling off period of 7 days.
New Code:
- The new code now has a cooling off period of 14 days.
- The cooling off period now also resets when the franchisee gets a copy of the lease and the premises is leased from or licenced by the franchisee from the franchisor or its associate (clause 26(1)).
- Note any termination via this new cooling off provisions only applies to the franchise agreement – it does not terminate the lease.
- It has also been extended to include sales of the business when the existing franchise agreement is transferred (clause 26A).
- Clause 26B now gives franchisees the right to propose termination at any time.
- The franchisor must then respond to the proposal within 28 days.
Impact:
- The cooling off period has been extended to apply to the new disclosure obligations for licenced premises and transfers of franchise agreements.
- The requirement that a franchised business sale be terminated if a franchise agreement is transferred means franchisors are more likely to grant a new franchise agreement.
Right To Termination At Any Time
Old Code:
- Franchise agreement could be immediately terminated in some special circumstances.
New Code:
- Termination cannot now be immediate. The franchisor must give a 7 day notice period to the franchisee.
- The franchisee can then contest the proposed immediate termination and refer the matter to ADR.
- The franchisor may however also require the franchisee to stop operating the franchised business during the 7 day period and (if applicable) 28 days from when the matter was referred to ADR.
Impact:
- Gives franchisees a way to contest any proposed immediate termination.
- It’s not clear from this amendment what happens if ADR takes longer than 28 days, however the obligation of good faith likely means ADR must be concluded before the franchise agreement may be terminated.
- Franchisors will need to ensure there is a right in the franchise agreement to require franchisees to stop operating.
Significant Capital Expenditure
Old Code:
- Significant capital expenditure was allowed if the franchisor considered it necessary and it was justified by a written statement.
New Code:
- This exception has been removed.
- In addition, there are additional disclosure obligations (including an express obligation to discuss) if there are any potential significant capital expenditures set out in the disclosure document.
Impact:
- Franchisors will need to review disclosure documents to ensure any potential significant capital expenditure is set out. In particular item 14 of the disclosure document will need to be reviewed.
Marketing Funds And Other Cooperative Funds
New Code:
- Clarifies advertising is considered part of marketing.
- Extends the obligation to comply with the code to any party that controls a marketing or cooperative fund and not just the franchisor.
- Inclusion of civil penalty for misuse of funds.
Impact:
- Provides clarity on reporting obligations for marketing and cooperative funds.
- Franchisors should review how funds from marketing funds are used and ensure they are properly set out in the disclosure document.
- Makes it clear that compliance with the code on the collecting and using of funds form a marketing fund is an important part of the code.
Franchisors’ Legal Costs
Old Code:
- Costs associated with issuing breach notices and renewal notices could be passed on to the franchisee.
New Code:
- Only the cost associated with preparing the franchise agreement and other associated documents can be passed on to the franchisee. Note these costs must also be disclosed and set out as a fixed amount.
Impact:
- Franchisors will need to ensure legal costs for preparing the franchise agreement and other associated documents are clearly set out.
Retrospective Changes To Franchise Agreements
New Code:
- Makes it clear any changes to a franchise agreement cannot apply retrospectively.
Restraint Of Trade
Old Code:
- Clause 23 sets out conditions when a restraint of trade would not apply. One of the conditions required to be satisfied was for the franchisee to not be in breach of the franchise agreement.
New Code:
- The new code now requires the breach to be serious and recent.
Impact:
- Removes potential for franchisors to breach a franchisee for a trivial reason in order to enforce the restraint of trade.
Franchising Resources
Laws around franchising can be quite dense, and it is an area of law that requires expert legal help. We have a number of resources to guide you in various stages of the franchising process, such as:
- Selling A Franchise
- What To Do At The End Of A Franchise
- Legal Documents You Need For Franchising
- Franchise Agreements
- What Fees The Franchisee Has To Pay
- Terminating A Franchise Agreement
- What To Do With A Bad Franchisee
- Franchisees’ Legal Obligations
- What Are Franchising Royalties?
- Franchise Grant Process
Need Help?
All these changes can seem daunting, but we’re here to help!
If you are a franchisor or franchisee with questions about your business, we’ve got a team of lawyers ready to answer questions like:
- What do I need to change in my existing documents?
- What terms do I need to add in my future franchise agreements?
- What rights do I have regarding my franchise agreement?
- Can I end my franchise agreement early?
- What legal costs are associated with my franchise agreement?
It’s best practice to update your franchise agreements and disclosure documents so it complies with the updated Franchising Code of Conduct.
Get in touch with us at team@sprintlaw.com.au or on 1800 730 617 for more information or for help updating your documents. We’re available any time for a free, no-obligation chat.
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