Ombudsman welcomes ‘norms’ of acceptable commercial conduct test for unconscionable conduct

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Ombudsman welcomes ‘norms’ of acceptable commercial conduct test for unconscionable conduct admin Fri, 12/10/2021 - 15:08

22 March 2021

The Australian �Թ�� and Family Enterprise Ombudsman Bruce Billson has welcomed the landmark decision of the Full Federal Court to make ‘a sufficient departure from the norms of acceptable commercial behaviour’ a test of whether conduct is ‘unconscionable’ under the Australian law.

“This is a great day for Australian small businesses seeking protection from unconscionable conduct that can harm enterprises and livelihoods,’ Mr Billson says.

“The decision ensures egregious commercial conduct can be captured by the unconscionable conduct provisions under the Australian Consumer Law without having to prove that the harmed small business or consumer has a special disadvantage or vulnerability that was exploited.

“I welcome the Full Court confirmation that conduct may be found to be unconscionable as a result of deviations from the norms of acceptable commercial behaviour, even where there has not been a special disadvantage or vulnerability that was exploited.

“This should reassure smaller businesses that remedies are available for the harm caused by the unconscionable conduct of a counterparty are available and that fair and reasonable commercial dealings support Australian commerce, even where a larger, more powerful corporation is involved.

Mr Billson congratulated the ACCC and its chair, Rod Sims, for appealing an earlier Federal Court decision that required that a business could only be found to have acted ‘unconscionably’ under the Australian Consumer Law and other similar laws, if it had exploited some disadvantage or vulnerability on the part of the consumers or small businesses affected.

“While the exploitation of a disadvantage or vulnerability is an important criteria for establishing if a business has acted ‘unconscionably’, egregious conduct that causes harm to another business cannot be acceptable purely by the absence of this specific form of exploitation,” says Mr Billson.

“We look forward to seeing further protections for small businesses through changes to the unfair contract terms legislation in the near future.”

Ombudsman to monitor impact of Woolworths food distribution move

admin — Fri, 10 Dec 2021 03:08:59 +0000

Ombudsman to monitor impact of Woolworths food distribution move admin Fri, 12/10/2021 - 14:08

10 June 2021

The Australian �Թ�� and Family Enterprise Ombudsman Bruce Billson says his office will closely monitor Woolworths’ planned acquisition of a controlling stake in PFD Food services (PFD), in regards to the impact it has on small businesses in the sector.

Following the Australian Competition and Consumer Commission’s (ACCC) decision not to oppose Woolworths’ acquisition of 65% of shares in PFD, Mr Billson says small businesses in the food distribution space are understandably concerned.

“The ACCC’s decision not to intervene or impose any conditions on Woolworths’ proposed acquisition of a majority stake in PFD is disappointing,” Mr Billson says.

“The deal is an example of another creeping acquisition by an already dominant player in the food and grocery sector, eating away at the competitive landscape and the footprint of independent businesses.

“In this case it’s the wholesale food distribution channel, which has been one of the few genuinely competitive areas of the food and grocery sector

“Food and grocery suppliers are concerned about the likely further narrowing of alternatives to supermarkets for their products with the transaction expected to result in Woolworths significantly increasing its presence and influence in wholesale food distribution channels.

“Small and family business food and grocery suppliers will understandably feel one of the truly open doors for their products closed a little today.

“My office has made our concerns about this transaction clear to the ACCC and we note the evidence was not sufficient to support ACCC intervention as it has concluded the deal will not substantially lessen competition.

“Given that much of the concern about this acquisition relates to Woolworths’ influence on the wholesale distribution channel and the impact on food and grocery producers who are already concerned about having too few customer options, I hope the ACCC will join me in keeping a close eye on how this plays out.

“In the meantime, my office welcomes ongoing feedback from small and family business owners and operators in food distribution.”

Unfair Business Practices

Ombudsman welcomes ‘norms’ of acceptable commercial conduct test for unconscionable conduct

Ombudsman to monitor impact of Woolworths food distribution move