South Australia Fair Trading (Franchising Industry Dispute Resolution Code) Regulations 2015 under the Fair Trading Act 1987 Contents 1 Short title 2 Commencement 3 Interpretation 4 Prescription of franchising industry and franchising industry participants 5 Prescription of code 6 Contravention of code subject to civil penalty 7 Fee for mediation under code Schedule 1—Franchising Industry Dispute Resolution Code 1 Short title 2 Interpretation 3 Application of code 4 Dispute resolution Legislative history 1—Short title These regulations may be cited as the Fair Trading (Franchising Industry Dispute Resolution Code) Regulations 2015. 2—Commencement These regulations come into operation on the day on which they are made. 3—Interpretation In these regulations— Act means the Fair Trading Act 1987; associate, for a franchisor, franchise agreement, franchisee and franchisor have the same respective meanings as in the Competition and Consumer (Industry Codes—Franchising) Regulation 2014 of the Commonwealth; civil penalty contravention has the same meaning as in Part 7 Division 3A of the Act; code means the Franchising Industry Dispute Resolution Code 2015 set out in Schedule 1; Commissioner means the Small Business Commissioner. 4—Prescription of franchising industry and franchising industry participants For the purposes of Part 3A of the Act— (a) franchising is taken to be an industry; and (b) the following are taken to be participants in the franchising industry: (i) a franchisor; (ii) a franchisee; (iii) an associate of a franchisor; (iv) a person carrying on a business having a connection to a franchisor for a purpose relating to a franchise agreement; (v) a person carrying on a business having a connection to a franchisee; (vi) a person who in the course of a business supplies goods or services to a franchisee or to a franchisor in connection with a franchise agreement. 5—Prescription of code (1) The code is prescribed as an industry code for the purposes of Part 3A of the Act. (2) The Small Business Commissioner is responsible for the administration of the code and for the administration of Part 3A of the Act in relation to the code. 6—Contravention of code subject to civil penalty (1) A contravention of section 28E of the Act constituted of a contravention of the code is to be subject to a civil penalty under Part 7 Division 3A of the Act. (2) The expiation fee for an alleged civil penalty contravention involving an alleged contravention or attempted contravention of the code is— (a) in the case of a body corporate—$4 000; and (b) in the case of a natural person—$500. 7—Fee for mediation under code (1) If an authorised officer arranges for mediation of a dispute under the code with the agreement of the parties to the dispute, each of the parties must pay a fee of $195 for each day, or part of a day, on which the mediation occurs. (2) A fee payable by a person under subregulation (1) is recoverable as a debt due to the Crown. (3) The Commissioner may waive a fee payable by a person under subregulation (1) if satisfied that it is appropriate to do so in a particular case. Schedule 1—Franchising Industry Dispute Resolution Code 1—Short title This code may be cited as the Franchising Industry Dispute Resolution Code 2015. 2—Interpretation In this code— alternative dispute resolution procedure does not include arbitration; participant in the franchising industry means a person taken to be a participant in the franchising industry for the purposes of Part 3A of the Act. Note— See regulation 4(b). 3—Application of code This code applies to— (a) a dispute between a franchisor, or an associate of a franchisor, and a franchisee in relation to a matter arising under a franchising agreement to which the franchisor and franchisee are parties; or (b) a dispute between a participant in the franchising industry and— (i) another participant in the franchising industry; or (ii) a person to whom goods or services are or may be supplied by the participant, in connection with the acquisition or supply, or the potential acquisition or supply, of goods or services for a purpose relating to a business carried on under a franchise agreement. 4—Dispute resolution (1) If the Commissioner is satisfied, on written application by a party to a dispute to which this code applies— (a) that the party has made a reasonable attempt to resolve the dispute; and (b) that the subject matter of the dispute is not frivolous or vexatious, an authorised officer may notify the parties to the dispute in writing that he or she is commencing an alternative dispute resolution procedure in relation to the dispute in accordance with this code. (2) If an alternative dispute resolution procedure is commenced under this code, a party to the dispute, or another person authorised in writing to attend or participate in the procedure on his or her behalf, must attend or otherwise participate in the procedure, as required by the authorised officer. (3) A person participating in an alternative dispute resolution procedure— (a) must act reasonably, fairly, honestly and cooperatively; and (b) must not mislead, harass, intimidate or oppress another party to the dispute. (4) A person participating in an alternative dispute resolution procedure must comply with any reasonable request made by the authorised officer in connection with the officer's attempt to assist the parties in the resolution of the dispute, including, without limitation, a request to do 1 or more of the following: (a) exchange information relevant to the dispute with the other party; (b) answer questions in respect of matters relevant to the dispute; (c) attend meetings; (d) participate in mediation or another form of alternative dispute resolution. (5) An authorised officer conducting an alternative dispute resolution procedure may request that a person participating in the procedure be a person who is authorised to resolve the dispute. (6) A request made by an authorised officer under subclause (4) or (5) must be complied with as soon as reasonably practicable, and, in any event, in the case of a written request, within 14 days of the date of the request or such longer period as is allowed by the authorised officer. (7) The authorised officer conducting an alternative dispute resolution procedure may, for the purposes of attempting to resolve the dispute— (a) refer the dispute to mediation; or (b) after consultation with the parties—appoint a person able to provide expert advice on matters relevant to the dispute to assist the officer. (8) The parties to a dispute are equally liable for the costs of expert advice provided under subclause (7)(b) unless they agree to a different apportionment of the costs. (9) An authorised officer may suspend (for a specified time or until further notice) or terminate an alternative dispute resolution procedure if the dispute is the subject of— (a) proceedings before a court or tribunal; or (b) arbitration; or (c) another alternative dispute resolution procedure. (10) An authorised officer may terminate an alternative dispute resolution procedure if the officer forms the view that— (a) there is no reasonable prospect of resolving the dispute; or (b) the subject matter of the dispute is frivolous or vexatious. (11) Following the completion of an alternative dispute resolution procedure, the authorised officer who conducted the procedure must provide the parties with a certificate stating— (a) the names of the parties; and (b) the nature of the matters in dispute; and (c) if the procedure has been terminated under subclause (9) or (10)—that the procedure has been terminated without resolution; and (d) if the dispute has been resolved—the terms of the resolution. (12) Unless the authorised officer and the parties otherwise agree in writing, any communication made, or document prepared (including a certificate provided under subclause (11)), in connection with an alternative dispute resolution procedure under this code must be treated as confidential. (13) However, a certificate provided under subclause (11) may be produced before a court or tribunal. Legislative history Notes • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au. Principal regulations Year|No|Reference|Commencement| 2015|216|Gazette 8.10.2015 p4575 |8.10.2015: r 2|