The Australian Franchisee Rights Petition

To the Honourable the President and Members of the Senate in Parliament assembled:
The Petition of the undersigned shows:
A desire to amend and or introduce law to provide a higher and more assured level of protection to Australian franchisees and assure franchisees of reasonable dealing by a franchisor.

Your Petitioners ask/request that the Senate:

Amend The Franchising Code of Conduct to include requirements relating to standards of conduct to be observed by the parties to a franchise agreement by providing that franchisors and franchisees should, at minimum, observe the following commercial standards/ethical conduct whenever possible in their dealings with one another:
(a) avoid conduct which is unreasonable in relation to the risks incurred by one party; and
(b) avoid conduct not reasonably necessary for the protection of the legitimate business interests of the franchisor, franchisee or franchise system.

And
Amend The Franchising Code of Conduct to include a duty to act in good faith. Failing this the Code should be amended to prevent franchisors from excluding the common law duty to act in good faith from the terms of the franchise agreement.

And
Amend The Franchising Code of Conduct to require that parties who enter into mediation under Clause 27 of the Code “act in Good Faith” in that mediation process.

And
Amend The Franchising Code of Conduct in relation to end-of-term arrangements so that a franchisor is required to provide written reasons for non-renewal of the franchise agreement in the same way that it must provide written reasons for termination where there has been no breach of the franchise agreement by the franchisee.

And
Amend The Trade Practices Act 1974 so that a marker of unconscionable conduct in breach of section 51AC is ‘unfairness’. The 1997 Reid Report, in its recommendations to the Federal Government for enhanced small business protection, cautioned against using the term ‘unconscionable’ indicating “…it would be better to use a new word, without the legal entailments of ‘unconscionability’ while avoiding the words ‘harsh’ or ‘oppressive’ in the initial clause establishing the standard.” It was recommended that the word ‘unfair’ be used instead. Unfairness is not a ‘new’ legal test and it has a long history of jurisprudence.

And
Amend The Trade Practices Amendments (Australian Consumer Law Bill) 2009 (the proposed new national unfair contract laws) to apply the unfair contract rules in the Bill to business to business contracts.

And
Commence The Trade Practices Amendments (Australian Consumer Law Bill) 2009 as soon as practical. The Government previously stated that Bill would come into effect on 1 January 2010.