Peter Abetz MLA is confident the Franchising Bill 2010 still has the numbers in the West Australian Parliament. Here is his summary on the 3 key areas in the terms of reference which was to be the basis of the Committee findings;
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1.Was the Bill legally valid, in the sense that it did not contravene the Trade Practices Act, was it constitutional etc.
The legal opinions of some of the most eminent legal minds in the nation, namely Hon Daryl Williams QC and Leo Tsaknis, Alan Robertson SC (now Federal Court Judge), Malcolm McCusker QC and Peter Quinlan SC convinced the committee that if enacted by the WA Parliament, the Bill would be a valid law. The majority and minority reports agreed on this point.
2.Does the Bill enhance the Franchising Code of Conduct? On this issue the legal opinion of Hon Daryl Williams QC and Leo Tsaknis states: “In our opinion, the Bill fills a gap in the Franchising Code of Conduct by affording a measure of protection to franchisees and thereby addressing the disparity in power between franchisors and franchisees, as well as providing specific forms of relief appropriate to the franchising industry. The bill requires both franchisor and franchisee to deal with each other in good faith.”
The Committee agreed that it does enhance the Code, although the majority report suggests that it may not provide as much benefit as some people suggest.
3.What are the cost implications for the State and the franchising sector if the Bill is implemented? On this point the committee received conflicting evidence. Large franchisors who have a reputation for acting ethically submitted that the Bill would not cost them one cent, because they already adhere to the Franchising Code of Conduct, and act in good faith. Several other franchisors claimed it would increase their risk, as franchisees might take them to court!
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No one disputes that reform of franchising is best done at the Federal level. However, what the majority report failed to recognise is that the quickest way to achieve Federal action is for West Australia to move the Franchising Bill 2010 through the state parliament.Peter Abetz
For those few who would rely on the federal government to act on recommendations from more than 3 Inquiries from 2008/9 that it has already ignored seems far too optimistic no matter what the debate in 2013.
There is history in Australia that suggests we haven’t yet addressed the recommendations from the 1990 Beddall Report. And for all intent and purpose we may as still be operating under a voluntary franchising Code.
If the federal government reviews franchising in 2013 I suspect the process of some level of inquiry will start all over again with similar submissions producing similar recommendations where some more window dressing is applied while the critical elements of all the recommendations from 2008 to 2014 are again ignored in around 2015. What then – do the States start all over again?
'Large franchisors who have a reputation for acting ethically submitted that the Bill would not cost them one cent, because they already adhere to the Franchising Code of Conduct, and act in good faith.'
Of course thay would say that. As even the Franchising Cabal of Australia recognise, it's tough to sell franchises in the current climate. It would serve no purpose at all to let the truth get in the way of progress.
'An important role of the Commissioner would be to monitor and report to the Small Business Minister on any emerging trends in market practices that have an impact on small businesses, and review the legislative and administrative environment in NSW and advocating for the needs of small business to be properly factored in to the practices of Government.' NSW Trade and Investment
The NSW Chamber of Commerce advocated heavily for this appointment prior to the last NSW state election and included in that campaign the need for the Commissioner’s role to address the inequities in the franchising relationship.
Apparently the WA Committee has one or two members that want to believe the misinformation they have been given by FCA and FCA friends claiming problems in franchising are insignificant.
I suspect it’s the same everywhere and I believe that it was either Jo Gash MP or Don Randall MP or it could have been one of the other Franchisee Champions who said in a parliamentary speech that it was doubtful any politician from either side of the House had not had franchisees knocking on their doors with similar disasters to those which have prompted Inquiries.
From my talks with Australian politicians over the last 8 years and from the reports I get from others politicians are well aware of the level of problems in franchising.
Why some politicians choose to use obviously self-interested and misleading propaganda from the FCA or IFA as an excuse to do nothing is beyond me.
This situation means franchisees are left with only legal option as a method of pursuing their grievances with franchisors, and this is too expensive for most. Many therefore walk away, or never initiate dispute resolution proceedings.My Business
Abetz confident on WA bipartisan support
Peter Abetz MLA is confident the Franchising Bill 2010 still has the numbers in the West Australian Parliament. Here is his summary on the 3 key areas in the terms of reference which was to be the basis of the Committee findings;
- - - - - - - - - -
1. Was the Bill legally valid, in the sense that it did not contravene the Trade Practices Act, was it constitutional etc.
The legal opinions of some of the most eminent legal minds in the nation, namely Hon Daryl Williams QC and Leo Tsaknis, Alan Robertson SC (now Federal Court Judge), Malcolm McCusker QC and Peter Quinlan SC convinced the committee that if enacted by the WA Parliament, the Bill would be a valid law. The majority and minority reports agreed on this point.
2. Does the Bill enhance the Franchising Code of Conduct?
On this issue the legal opinion of Hon Daryl Williams QC and Leo Tsaknis states:
“In our opinion, the Bill fills a gap in the Franchising Code of Conduct by affording a measure of protection to franchisees and thereby addressing the disparity in power between franchisors and franchisees, as well as providing specific forms of relief appropriate to the franchising industry. The bill requires both franchisor and franchisee to deal with each other in good faith.”
The Committee agreed that it does enhance the Code, although the majority report suggests that it may not provide as much benefit as some people suggest.
3. What are the cost implications for the State and the franchising sector if the Bill is implemented?
On this point the committee received conflicting evidence. Large franchisors who have a reputation for acting ethically submitted that the Bill would not cost them one cent, because they already adhere to the Franchising Code of Conduct, and act in good faith. Several other franchisors claimed it would increase their risk, as franchisees might take them to court!
- - - - - - - - - -
For those few who would rely on the federal government to act on recommendations from more than 3 Inquiries from 2008/9 that it has already ignored seems far too optimistic no matter what the debate in 2013.
There is history in Australia that suggests we haven’t yet addressed the recommendations from the 1990 Beddall Report. And for all intent and purpose we may as still be operating under a voluntary franchising Code.
If the federal government reviews franchising in 2013 I suspect the process of some level of inquiry will start all over again with similar submissions producing similar recommendations where some more window dressing is applied while the critical elements of all the recommendations from 2008 to 2014 are again ignored in around 2015. What then – do the States start all over again?
Surprise surprise
'Large franchisors who have a reputation for acting ethically submitted that the Bill would not cost them one cent, because they already adhere to the Franchising Code of Conduct, and act in good faith.'
Of course thay would say that. As even the Franchising Cabal of Australia recognise, it's tough to sell franchises in the current climate. It would serve no purpose at all to let the truth get in the way of progress.
NSW Small Business Commissioner Appointment
'An important role of the Commissioner would be to monitor and report to the Small Business Minister on any emerging trends in market practices that have an impact on small businesses, and review the legislative and administrative environment in NSW and advocating for the needs of small business to be properly factored in to the practices of Government.' NSW Trade and Investment
The NSW Chamber of Commerce advocated heavily for this appointment prior to the last NSW state election and included in that campaign the need for the Commissioner’s role to address the inequities in the franchising relationship.
I suspect the North American experience is similar
Apparently the WA Committee has one or two members that want to believe the misinformation they have been given by FCA and FCA friends claiming problems in franchising are insignificant.
I suspect it’s the same everywhere and I believe that it was either Jo Gash MP or Don Randall MP or it could have been one of the other Franchisee Champions who said in a parliamentary speech that it was doubtful any politician from either side of the House had not had franchisees knocking on their doors with similar disasters to those which have prompted Inquiries.
From my talks with Australian politicians over the last 8 years and from the reports I get from others politicians are well aware of the level of problems in franchising.
Why some politicians choose to use obviously self-interested and misleading propaganda from the FCA or IFA as an excuse to do nothing is beyond me.