ACCC is investigating into a number of businesses after the introduction of the business-to-business (B2B) unfair contract term laws were introduced last November, a move welcomed by the PIAA.
Andrew Macaulay, CEO, PIAA says Printing Industries president Kieran May and senior staff raised this matter with the ACCC in February, acting on expressions of considerable concern from members.
“We are commending the Government for taking the issue of exercise of market power seriously, and the Association will be making a detailed submission to the ACCC enquiry, after consultation with our members,” he says.
The decision was announced at a keynote address at UNSW by ACCC deputy chair Dr Michael Schaper saying, “the regulator would be taking enforcement action in relation to a number of companies over B2B unfair contract terms this year.”
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Last November, the ACCC published a report, unfair terms in small business contracts, examining 46 standard form contracts across seven industries. Some traders removed or amended their terms after being contacted by the ACCC, but some did not.
The ACCC says a number of clauses it identified as being potentially unfair continue to be used in standard form contracts, including terms that allow the contract provider, an unreasonable ability to cancel or end an agreement; potentially broad and unreasonable powers to protect themselves against loss or damage at the expense of small businesses, through the inclusion of broad indemnities or excessive limitations of liability; the ability to unilaterally change the terms of the contract; and an unreasonable ability to limit or prevent small businesses from exiting their contracts.
Macaulay says he knows several printers affected by this issue.
“One of the difficulties is that these matters are most often shrouded in commercial confidentiality. The ACCC will enable an open discussion. Until this point, Printing Industries had been considering seeking leave from ACCC to initiate market representation. The launch of this enquiry frees up the discussion,”
“This issue is of significant impact on any printer who has accepted unfair contract terms, and we have examples of this to share with ACCC. The PIAA offers assistance to members in contract review, and can provide clauses for insertion into commercial contracts for our members to alleviate these problems,” he says.
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Dr Shaper says, “A number of investigations have been commenced, either in response to issues raised in the ACCC’s recent industry review or as a result of complaints made to the ACCC. Our enforcement teams are looking at a variety of contracts across a range of industries.
“The potential for large businesses to unilaterally alter their payment terms and unfairly delay payment times for their suppliers is a significant concern to the ACCC, and may also raise issues of misleading or potentially unconscionable conduct. Ensuring small businesses receive protection under new unfair contract terms law is a priority for the ACCC in 2017,” he says.
Since the laws were introduced in November, the ACCC has received 48 complaints from businesses about unfair contract terms.
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