Regulators have continued their crackdown on unfair contract terms this month, with announcements from both ASIC and the ACCC in relation to concessions by key agribusiness players and the release of the Unfair contract terms and small business loans report, which follows the 2017 commitment by the big four banks to improve the small business loan terms.

Agribusiness

Grain marketing business AWB Harvest Finance Pools Pty Ltd (AWB) has amended its grower contract terms following consultations with the ACCC regarding the business to business unfair contracts regime. The concessions come after the ACCC raised concerns over a number of onerous terms contained in AWB’s standard form grain pool contracts, including rights to:

  • unilaterally increase fees charged to growers
  • charge the growers new fees, after the contract had been signed
  • reject grower grain, on discretionary grounds.

Following consultations with the ACCC, AWB has now taken steps to amend their standard terms to ensure compliance with the consumer law regime, removing the right to increase or introduce new fees, and limiting the circumstances where grain can be rejected. AWB was acquired by Cargill Australia Limited in 2011.

The action is consistent with the ACCC’s ongoing focus on competition and consumer law issues in agricultural supply chains, since the expansion of the unfair contracts regime to business-to-business contracting in November 2016.

The change has been welcomed by growers and enforcement agencies alike, with the ACCC taking the opportunity to reiterate its continued focus on bargaining power imbalances in an industry that often pits small family operators against large multinationals.

Ongoing enforcement

The negotiated outcome reached with AWB follows the 2017 Federal Court case of ACCC v JJ Richards & Sons Pty Ltd, where an ACCC action against waste management company JJ Richards & Sons Pty Ltd was resolved by consent orders. In what was the first case under the expanded regime, eight of JJ Richards’ standard terms were determined to be void, on the basis that they were unnecessary for the protection of the company’s legitimate interests. You can read more about the case in our article here.

Cross-industry focus

The emphasis on consumer protection in business contracting is not limited to the agriculture industry, with ASIC also reporting on contract changes made by the big four banks, following their commitment to improve small business loan terms (up to $1 million). In the Unfair Contract Terms and Small Business Loans Report released on 15 March 2018, ASIC summarised the key changes around adverse indemnity, default and unilateral variation clauses and confirmed that it will continue to monitor the use of these clauses by both the banks and other lenders.

These developments reflect ongoing multi-agency investigations and enforcement efforts targeting providers who rely on unfair or unilateral rights to unreasonably avoid or limit their own personal obligations.

Takeaways

The AWB announcement suggests that early engagement with regulators remains an option for companies whose standard terms are identified as being unfair. That said, rather than waiting for the ACCC’s knock on the door, businesses should take the AWB outcome as a reminder to check their own standard form contracts and ensure they are commercially justifiable. As ACCC enforcement actions ramp up, the consequences of breaching the regime may prove more expensive than reconsidering standard form contracts at an earlier date.