franchising code of conduct

Who is an “officer” in business dealings?

The term “officer” (Officer) is used in various statutory contexts including (but not limited to) the Corporations Act 2001 (Cth) (Act) and also in the Franchising Code of Conduct (Code) located in Schedule 1 of the Competition and Consumer (Industry Codes-Franchising) Regulation 2014 (Cth) (Regulation).   It is also often referred to in the context of liability of “Officers” of corporations.   Given the statutory use of this term, the question is just who is an Officer as defined in the Corporations Act? [Read more…]

Franchising Code changes closer to fruition

In November 2020, the Australian Government Department of Industry, Science, Energy and Resources (Government) released its hotly anticipated Exposure Draft proposing amendments to the Franchising Code of Conduct (Code).  The proposed amendments seek to implement the commitments the Government made in August 2020 in response to the Parliamentary Joint Committee’s March 2019 Fairness in Franchising Report (Franchising Report).  The Franchising Report identified a range of regulatory matters to be addressed in the franchising sector. [Read more…]

Managing pre-contractual representations in franchising

The activities of franchisors and franchisees are strongly regulated by Franchising Code of Conduct.  However, the recent decision in Guirguis Pty Ltd & Ors v Michel’s Patisserie System Pty Ltd & Ors [2016] QDC 117 (Guirguis case) serves as a reminder of why franchisors should also take care in managing their pre-contractual representations to potential franchisees. [Read more…]

2016 Events

18 August 2016 – Franchising demystified – the legals explained

Attendees were introduced to the legal elements of a franchise system including: [Read more…]

What is a Franchise Agreement?

A franchise agreement (Franchise Agreement) is defined in clause 5(1) of the Franchising Code of Conduct (Code), located in Schedule 1 of the Competition and Consumer (Industry Codes–Franchising) Regulation 2014 – as:

  • a written, oral or implied agreement;
  • in which a person (Franchisor) grants to another person (Franchisee) the right to carry on the business of offering, supplying or distributing goods or services in Australia under a system or marketing plan substantially determined, controlled or suggested by the Franchisor; and
  • under which the business will be substantially or materially associated with a trade mark, advertising or a commercial symbol that is owned, used, licensed or specified by the Franchisor or an associate of the franchisor; and
  • under which, before starting or continuing the business, the Franchisee must pay or agree to pay to the Franchisor or their associate an amount; for example, an initial capital investment fee or a payment for goods or services.

[Read more…]

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