Like individual consumers, many small businesses lack the time, resources, legal or technical expertise and bargaining power to negotiate changes to terms specified in standard form contracts.
In November 2016, the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 (the Act) took effect to:
For the protections to apply, the following criteria must be met:
During the passage of the Act through Parliament in late 2015, the Government agreed to undertake a review of the extension to small business within two years after its commencement. The legislation commenced on 12 November 2016.
The Treasury released on 21 November 2018 a discussion paper seeking feedback from stakeholders on the impact of the extension of UCT protections to small business and whether the objective set for the original reform has been met. It is also seeking views about whether any changes are required to improve the current framework.
The consultation period ends on 21 December 2018 and the Treasury will issue a report by 1 February 2019.
Consultation paper issues for discussion
The criteria for the UCT protections to apply, effectively sets two thresholds – the number of employees of the business and the monetary value of the contract. The Treasury is asking:
The UCT protections are currently only applicable to standard form contracts. Standard form contracts are normally pre‑prepared by one party and are typically offered on a ‘take it or leave it’ basis to the counterparty. The Treasury is asking:
The UCT protections do not apply to terms that define the main subject matter of the contract, set the upfront price payable under the contract or are required, or expressly permitted, by a law of the Commonwealth, a state or territory.
There is also an exemption mechanism that allows certain contracts to be excluded from the protections, where those contracts are subject to equivalent and enforceable protections under a law that is prescribed by regulation. In addition, the UCT provisions do not apply to contracts of marine salvage or towage, ship charter parties, contracts for the carriage of goods by ship, or provisions in the constitution of a company, managed investment schemes or other similar bodies.
The Treasury is asking:
Since the UCT protections were extended to small business two years ago, there has been a range of enforcement and compliance activities by the ACCC and ASIC. Litigated cases in particular have helped to broaden business understanding of UCTs. The Treasury is asking:
How we can help?
We will keep you updated with any developments in the UCT arising from this consultation and review process. In the meantime, if you require any advice on the application of the UCT to your business’ contracts or would like a general review of your standard contracts, please do not hesitate to contact us.
Author: Darren Pereira & Olivia Pasternak
Darren Pereira, Partner
T: +61 2 8083 0487
Dan Pearce, Partner
T: +61 3 9321 9841
Trent Taylor, Partner
T: +61 7 3135 0668
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by Darren Pereira, Olivia Pasternak