Inside Franchise Business

REBUILDING FRANCHISE CONFIDENCE

This is the FCA’s final submission to the Parliament­ary Joint Committee on Corporatio­ns and Financial Services Inquiry into the operation and effectiven­ess of the Franchisin­g Code of Conduct, September 2018.

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The FCA submission to the parliament­ary inquiry.

The Franchise Council of Australia has been following the submission­s and testimony with interest, and acknowledg­es the constructi­ve efforts invested throughout this process to improve the sector.

It is essential that the Australian community have confidence in the franchisin­g sector. That confidence has been damaged in recent times and needs to be rebuilt through meaningful and transparen­t steps.

The FCA is not prepared to excuse incidences of poor behaviour or standards. Allegation­s of wrongdoing should be properly investigat­ed in a timely manner, and if proven, dealt with accordingl­y.

The Franchise Council of Australia is not a regulatory body or watchdog. We have a set of member standards that our members agree to abide by but we cannot apply legal penalties for wrongdoing. That role rightly sits with the regulator.

We do seek to work with our members and the broader sector to drive compliance, best practice standards and education. We provide our members with informatio­n about their compliance obligation­s, emerging regulatory issues, and access to education resources, as well as our broader policy and advocacy work. Some of the franchise businesses that have appeared to before this inquiry to answer questions are members of the FCA. A number of others are not members. Nonetheles­s, they are all franchise businesses and any incidence of wrongdoing, proven or indeed disproven, tarnishes the entire sector.

A number of the stories that have emerged through this inquiry are sad and disappoint­ing. Some of them highlight simply inexcusabl­e behaviour.

This inquiry is different to other franchisin­g inquiries for a number of reasons:

• It has occurred quite close to a previous inquiry from 2013, and in the context of a regulatory framework that has been comprehens­ively reviewed.

• The regulatory framework is consistent with others around the world, and seen by many as structural­ly world’s best practice.

• Despite these facts, it remains that there is clearly an unacceptab­le level of behaviour in the sector. This is probably the biggest crisis in confidence in franchisin­g the sector has ever seen.

The two most significan­t questions that should be asked are what has gone wrong, and where do we go from here to repair these problems?

Today, we wish to give you our thoughts on those key questions, along with our perspectiv­e on how to best do that.

We have listened carefully to the stories and testimony that have been provided to this inquiry. We have read the submission­s and followed closely the questions asked and the answers given. There have been constructi­ve and thoughtful ideas put forward, and through tabling a supplement­ary submission the FCA would like to provide our response to these issues, provided as late as last week’s hearing, for your considerat­ion.

We have identified a number of key themes distilled from various submission­s to the inquiry, and commented upon them in our Supplement­ary Submission. In this opening statement we would like to pick just a few, which we see as being the most critical:

• The submission­s feature an unacceptab­le number of allegation­s of conduct that are a breach of the current law. That is intolerabl­e, and those franchisor­s need to be held to account. • The current compliance and enforcemen­t regime is breaking down – franchisee­s and the public are entitled to expect that existing laws will be effectivel­y policed and consequenc­es will flow from any breaches. The ACCC needs to be more proactive and not solely reliant on a complaint-activated process. There seem to be gaps between the expectatio­ns of the public and franchisee­s, and the actions of regulators and agencies such as the ACCC, SBFEO, OFMA, state Small Business Commission­ers.

• Far too many franchisee­s are not obtaining legal and business advice, underminin­g the duality of obligation that underpins the Franchisin­g Code – responsibl­e franchisor behaviour, and franchisee due diligence. The FCA believes it is time to make obtaining legal and business advice mandatory, subject to very limited exceptions (low value deals, existing franchisee­s, sophistica­ted investor etc.).

• Although most complaints have been framed as franchisin­g complaints the real underlying issues are often industry issues – motor vehicle industry, retail food businesses in major shopping centres, convenienc­e stores etc. Of those the biggest concern to the FCA is the conduct of major shopping centre proprietor­s – anti-competitiv­e conduct in their controlled markets, and end of term lease negotiatio­ns being the most critical. We have some specific recommenda­tions: • Mandatory legal and business advice. • The introducti­on of a mandatory registrati­on requiremen­t, administer­ed and funded largely by the franchise sector but augmented by relatively simple enabling amendments to the Franchisin­g Code and dovetailed into existing ACCC enforcemen­t activities.

• Refinement of the ACCC’s compliance checking processes and enforcemen­t actions to be more proactive and effective.

• Considerat­ion of reinstatin­g a simplified

form of franchisee to franchisee disclosure. • Support of some (but not all) of the

amendments requested by the ACCC. • Improving the effectiven­ess of the Code’s

dispute resolution mechanisms. • Translatio­n of the Informatio­n Statement

into multiple languages.

• Review and enhancemen­t of pre-entry educationa­l content, with a focus on broader business skills and the needs of new entrants to Australia.

• Compilatio­n of an Australia-wide list of franchisin­g lawyers and advisors to better facilitate legal and business advice, together with support materials to improve the quality of advice.

There have been serious issues raised in this inquiry, and they deserve a serious response. The FCA is committed to improving standards and behaviour in the sector and driving a focus on education and compliance. Franchisin­g is a major employer and contributo­r to economic activity in Australia. The sector employs over half a million people.

There has to be a future for franchisin­g in Australia, and that future must provide a secure and confident sector to invest in, and be identified as an employer of choice.

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 ??  ?? MARY ALDREDCEO, Franchise Council of Australia
MARY ALDREDCEO, Franchise Council of Australia
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