Legal
The FCAI’s Legal Committee has pursued an active agenda over the past year on a range of issues, including regulation of advertising claims; intellectual property; consumer affairs; and franchising issues.
The FCAI has made extensive representations to the Australian Government expressing industry’s concerns about aspects of the proposed introduction of component pricing legislation and the potential impact of this on cooperative advertising whereby dealers jointly undertake advertising campaigns.
The Chamber has maintained its vigilance on the advertising practices of non franchised automotive service providers. In a number of instances, advertisements and websites making claims that are potentially misleading to consumers, especially in respect to the impact on new car warranties, have been vigorously and successfully challenged.
Advice has been circulated by the Australian Competition and Consumer Commission (ACCC) to the FCAI and other parties partially clarifying the Commission’s position on advertising by alternative service providers. This advice conveyed the need for alternative service providers to ensure that they comply with any conditions stipulated in an express warranty and not imply that any damage caused by their workmanship or parts is covered by an express vehicle warranty.
Counterfeit and copyright issues have also been raised with entities such as eBay. In some instances, the FCAI members have been concerned with goods available for sale on the eBay website with potential for copyright, intellectual property and counterfeit infringements. This includes service books and technical information on CDs.
In response to the Issues Paper on the proposed introduction of so called ‘lemon laws’ which was released by the Victorian Government in September 2007, the FCAI has argued that there is no demonstrated need for the introduction of these laws in Victoria. Such laws would limit the number of repairs tolerated before the purchaser would be entitled to the right of replacement of motor vehicles or refund and their introduction may result in an overlay of additional cost and complexity for both industry and consumers. The preferred position is to address consumer awareness and to raise the standard of the existing tribunal and court systems to that of best practice.
The West Australian Government is conducting an inquiry into the operations of franchise businesses in that State. The terms of reference cover the review of the adequacy of both state and federal legislation and identifying existing practices and emerging trends with a particular focus on unconscionable conduct and the adequacies of remedies.
Similarly South Australia is also conducting a review into franchising. The terms of reference are open to any matter considered relevant to the committee however the disclosure of information to prospective franchisees, dispute resolution processes and the formalities required of a franchisor wishing to conduct a franchise have been identified as key issues.
Currently there is uniform law on which to construct franchise arrangements and members are concerned with the trend towards State based legislation developing additional and inconsistent requirements for franchisors that extend beyond the requirements of the Franchise Code of Conduct.
The FCAI maintains active involvement on the ACCC Consultative Committee on Franchising.
A range of compliance programs continue to be made available to members and their dealer networks. The trade practices program has been updated to incorporate the ‘Dawson’ amendments and the privacy program includes recent amendments including the Do Not Call Register Act, Workplace Surveillance legislation, Anti Spam legislation and health privacy developments.