Annotated franchising code of conduct

236 Pages·2015·1.218 MB·English

by  Stephen Giles

Annotated Franchising Code of
Conduct
Stephen Giles
BEcLLB (Hons), LLM (Monash)
Partner
Norton Rose Fulbright Australia
LexisNexis Butterworths
Australia
2015
LexisNexis
AUSTRALIA LexisNexis Butterworths
475–495 Victoria Avenue, Chatswood NSW
2067
On the internet at: www.lexisnexis.com.au
ARGENTINA LexisNexis Argentina, Buenos Aires
AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG,
VIENNA
BRAZIL LexisNexis Latin America, SAO PAULO
CANADA LexisNexis Canada, Markham, ONTARIO
CHILE LexisNexis Chile, SANTIAGO
CHINA LexisNexis China, BEIJING, SHANGHAI
CZECH REPUBLIC Nakladatelství Orac sro, PRAGUE
FRANCE LexisNexis SA, PARIS
GERMANY LexisNexis Germany, FRANKFURT
HONG KONG LexisNexis Hong Kong, HONG KONG
HUNGARY HVG-Orac, BUDAPEST
INDIA LexisNexis, NEW DELHI
ITALY Dott A Giuffrè Editore SpA, MILAN
JAPAN LexisNexis Japan KK, TOKYO
KOREA LexisNexis, SEOUL
MALAYSIA LexisNexis Malaysia Sdn Bhd, PETALING JAYA,
SELANGOR
NEW ZEALAND LexisNexis, WELLINGTON
POLAND Wydawnictwo Prawnicze LexisNexis, WARSAW
SINGAPORE LexisNexis, SINGAPORE
SOUTH AFRICA LexisNexis Butterworths, DURBAN
SWITZERLAND Staempfli Verlag AG, BERNE
TAIWAN LexisNexis, TAIWAN
UNITED KINGDOM LexisNexis UK, LONDON, EDINBURGH
USA LexisNexis Group, New York, NEW YORK
LexisNexis, Miamisburg, OHIO
National Library of Australia Cataloguing-in-Publication entry
Author: Giles, Stephen.
Title: Annotated franchising code of conduct.
Edition: 1st edition.
ISBN: 9780409342260 (pbk).
9780409342277 (ebk).
Notes: Includes index.
CIP entry pending with National Library at time of
publication.
© 2015 Reed International Books Australia Pty Limited trading as
LexisNexis.
This book is copyright. Except as permitted under the Copyright Act 1968
(Cth), no part of this publication may be reproduced by any process,
electronic or otherwise, without the specific written permission of the
copyright owner. Neither may information be stored electronically in any
form whatsoever without such permission.
Inquiries should be addressed to the publishers.
Typeset in Myriad Pro and Minion Pro.
Printed in Australia.
Visit LexisNexis Butterworths at www.lexisnexis.com.au.
Foreword
The franchise sector makes an outstanding contribution to the Australian
economy, directly employing over 460,000 people in 1160 franchise systems
and 79,000 franchise units, with an annual turnover of $144 billion, according
to the Griffith University Franchising Australia Survey.
The Franchising Code of Conduct underpins Australian franchising, and has
provided a framework for Australian franchising to grow and develop over
the past 20 years. It helps ensure franchisees can invest into franchised
businesses with confidence. The Code regulates how franchises are marketed,
sold, commenced, established, operated, managed, transferred, extended and
ended. The Code contains quite extensive compliance obligations, with
penalties and other sanctions applying to companies and individuals involved
in any breach of the law. As a consequence it is essential for everyone
involved in franchising to have a good working knowledge of the Code.
Franchising is a way of doing business that cuts across all industry sectors,
and applies to large and small businesses alike. The Code applies in the same
manner whether the franchise is for a lawn mowing or courier franchise, a
bedding retailer, a fast-food restaurant, a supermarket or convenience store, a
motor vehicle repair business, a car dealership or a clothing retailer. There are
no distinctions between investments of $10,000 and $2,000,000, or between
experienced business owners and first time franchisees.
The Code attempts to cope with the challenge of covering all industry sectors
and all investment levels, but invariably some of the provisions require
practical interpretation to ensure the Code’s stated purpose is achieved. The
Annotated Franchising Code of Conduct is a detailed guide to the
development, drafting and interpretation of the Franchising Code of
Conduct, and the regulation of Australian franchising in a broader context. It
explains the operation of the Code, assists in interpreting the various Code
requirements, and includes case references and helpful commentary. It will be
useful to lawyers and non-lawyers alike.
The author, Stephen Giles, has been at the forefront of the development of the
Code, having assisted the Franchise Council of Australia in all dealings with
government since the Code was first enacted in 1998. He is recognised by the
International Who’s Who of Franchise Lawyers, Chambers Legal Guide and
Best Lawyers as Australia’s leading franchising lawyer, and is the former
chairman and current director of the FCA. In 2009 he was inducted into the
Australian Franchising Hall of Fame in recognition of his outstanding
contribution to Australian franchising.
The Franchise Council of Australia is pleased to endorse the Annotated
Franchising Code of Conduct. The FCA believes it will be a valuable resource
for all those involved in franchising, as it is a simple and practical guide to the
interpretation of the Code that will be relevant to everyone from franchising
lawyers to business executives, bankers, consultants and students alike.
Michael Paul
CEO and Founder — Pack & Send
Chairman — Franchise Council of Australia
Publisher’s Note
Legislation
The publisher, author and endorsers of this publication each excludes liability
for loss suffered by any person resulting in any way from the use of, or
reliance of this publication.
© LexisNexis. The legislation reproduced in this work does not purport to be
an official or authorised version.
Contents
Foreword
Publisher’s Note
Detailed Table of Contents
Acknowledgments
Table of Cases
Part 1 Introduction
Part 2 Competition and Consumer (Industry Codes—Franchising)
Regulation 2014
Part 3 Case Summaries
Index
Detailed Table of Contents
Foreword
Publisher’s Note
Contents
Acknowledgments
Table of Cases
Part 1 Introduction
Introduction
The Regulation of Franchising in Australia
Part 2 Competition and Consumer (Industry Codes—Franchising)
Regulation 2014
Competition and Consumer (Industry Codes—Franchising)
Regulation 2014
Commentary on Regulation 3
Commentary on Regulation 4
Commentary on Regulation 5
Commentary on Clause 2
Commentary on Clause 3
Commentary on Clause 4
Commentary on Clause 5
Commentary on Clause 6
Commentary on Clause 7
Commentary on Clause 8
Commentary on Clause 9
Commentary on Clause 10
Commentary on Clause 11
Commentary on Clause 12
Commentary on Clause 13
Commentary on Clause 15
Commentary on Clause 16
Commentary on Clause 17
Commentary on Clause 18
Commentary on Subdivision C and Clause 19
Commentary on Division 3 and Clause 20
Commentary on Clause 21
Commentary on Clause 22
Commentary on Clause 23
Commentary on Clause 24
Commentary on Clause 25
Commentary on Division 5
Commentary on Clause 26
Commentary on Clause 27
Commentary on Clause 28
Commentary on Clause 29
Commentary on Clause 31
Commentary on Clause 32
Commentary on Clause 33