Small Business and The Competition and Consumer Act - July 2021

Small business and
the Competition and

Consumer Act
Your rights and responsibilities
July 2021
accc.gov.au
ISBN 978 1 920702 05 2
Australian Competition and Consumer Commission
23 Marcus Clarke Street, Canberra, Australian Capital Territory, 2601
© Commonwealth of Australia 2021
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on as a statement of the law in any jurisdiction. Because it is intended only as a general guide, it may contain generalisations. You should obtain
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ACCC 03/21_1329
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Contents
About this guide..............................................................................................................................................................................................5
Key rights and responsibilities.................................................................................................................................................................6
Pricing and promoting your business.................................................................................................................................................7
Working with other businesses and competing fairly........................................................................................................... 11
Unfair contract terms................................................................................................................................................................................. 17
Guarantees and warranties: consumers and businesses..................................................................................................... 19
Treating customers fairly......................................................................................................................................................................... 23
Selling safe products.................................................................................................................................................................................. 27
Country of origin claims........................................................................................................................................................................... 29
Resolving disputes with customers or other businesses..................................................................................................... 31
Penalties for non-compliance............................................................................................................................................................... 32
Relevant government agencies and resources.......................................................................................................................... 33
Small business and the Competition and Consumer Act: Your rights and responsibilities 3
4 Small business and the Competition and Consumer Act: Your rights and responsibilities
About this guide
This guide will help small business operators to understand their key rights and responsibilities under
Australia’s competition and consumer laws.
It doesn’t matter whether you’re a sole trader working from home or a business with 2, 20 or 200
employees; if you’re engaging in some type of regular business-like conduct (e.g. buying or selling goods
or services) you must comply with the Competition and Consumer Act 2010 (CCA).
The CCA is a national law that governs how all businesses in Australia must deal with their customers,
competitors and suppliers. The law is designed to enable all businesses to compete on their merits in a
fair and open market, while also ensuring consumers are treated fairly.
Some of these rights and obligations are set out in the Australian Consumer Law (ACL), which you can
find in Schedule 2 of the CCA. The ACL is the primary consumer protection law in Australia and applies
the same way in each state and territory. These laws not only regulate your behaviour but also offer you
certain protections in your dealings with other businesses.
If you fail to comply with your obligations under the CCA or ACL, you are breaking the law.
Key rights and responsibilities
Under the CCA and ACL, you have obligations as a supplier, as well as rights in your capacity as a
purchaser of goods and services. Some of these are outlined below:
You can seek to have an unfair contract term in a small business standard form contract declared void
by the Courts.
You can collectively bargain with other small businesses against a larger firm, provided you get ACCC
approval to do so in advance.
You are free to set your prices and discount your goods and services as you see fit. Suppliers can’t
force you to charge their recommended retail price.
You must not engage in unconscionable conduct and other businesses must not engage in
unconscionable conduct in their dealings with you.
There are circumstances where it may be illegal for another business to refuse to supply to you.
You must not collude with your competitors. This means that you must not enter into, or attempt to
enter into contracts, arrangements or understandings with competitors about things such as:
– prices
– goods or services that will be supplied
– where goods or services will be sold or who they’ll be sold to.
You must identify and remove unsafe products and product-related services from the market.
A series of automatic guarantees apply to consumers when they buy goods or services. You must
honour these guarantees and not mislead consumers about the existence, exclusion or effect of them.
You may also be protected by these guarantees when buying goods or services as a consumer.
If you provide a remedy to a consumer for a problem caused by a manufacturing defect, you are
entitled to a reimbursement of your costs from the manufacturer.
You don’t have to provide a refund if a consumer has simply changed their mind.
Your advertising material, and any statements (including country of origin statements) made by your
business must be clear, accurate and truthful. You can’t mislead people and other businesses can’t
mislead you.
You must provide a receipt if a consumer requests one or the transaction is over $75.
Pricing and promoting your business
Promotional activities are an important part of building a brand and attracting new customers. When
advertising and selling your goods or services, you must:
✓ ensure any claims or statements are truthful and not misleading
✓ always disclose the full price of goods or services
✗ not engage in conduct that’s likely to mislead or deceive.
False or misleading claims

It’s illegal for a business to make representations about a good or service that is incorrect or likely to
create a false impression. For example, adding fake ‘reviews’ to your website encouraging consumers to
purchase your goods.
Representations are essentially words and/or images that suggest something about a good or service to
the consumer.
It doesn’t matter whether a false or misleading statement was intentional or not. A business that misleads
its customers is breaking the law.
Representations can be made through advertisements or statements in any media (print, radio,
television, social media and online), on product packaging, or in statements made by a person
representing your business.
u Example: An online store promotes its pillows and bedding as hypoallergenic, and having been
endorsed by an asthma association. However, no such endorsement has been given and no testing
has been undertaken to verify that the material used is unlikely to cause an allergic response. Such
claims are likely to be false or misleading and in breach of the ACL.
An exception to this rule is ‘puffery’ (i.e. wildly exaggerated or vague claims that no one could possibly
treat seriously). For example, a claim by a café that they have ‘the best coffee in Sydney’.
When trying to determine whether something is misleading, you should consider what impression
the representation will create in the mind of your customers. If the use of particular words or images
reasonably leads to a conclusion that’s something other than the truth, you risk breaching the law.
Failing to pass on relevant information may also be misleading if the customer has the wrong idea about
your product or service and is relying on your advice.
u Tip: If you’re worried about the impression created by your packaging or advertising, show the
designs to family, friends or other people who aren’t involved in your business. Ask them what they
think is being implied.
You should go back to the drawing board if they think it means something other than the truth.
Fine print qualifications

Businesses can’t rely on small print and disclaimers as an excuse for a misleading overall message.
Providing additional information in the ‘fine print’ or at a later stage won’t excuse misleading omissions
or misleading claims in the initial material. If your business needs to qualify its advertisements, make sure
the qualifying statements are clear and prominent so consumers know what the real offer is.
Any qualification shouldn’t directly contradict prominent features of the advertisement, such as
promoting a product as ‘free’ when the fine print indicates a payment is required.
u Example: A residential gardener offers every fifth lawn mowing at half-price. The offer is made
through a series of radio ads, with a quick mention that ‘terms and conditions apply’. The terms and
conditions are onerous: the deal only applies to lawn mowing on Monday mornings, the customer
must be a pensioner and live within a 2 km radius of the business.
The failure to clarify or explain important elements of the offer is likely to mislead customers and
breach the ACL.
Offering rebates, gifts, prizes and other free items

When supplying or promoting goods or services, it’s illegal to offer rebates, gifts, prizes or other free
items without intending to provide them. You will also be in breach of the ACL if you fail to provide
them as promised. A rebate or gift must be provided within the specified time or, if no timeframe was
specified, within a reasonable time.
u Example: A retailer advertises that its customers will go into a draw to win a prize if they spend over
$200 in one transaction. The business adds a fictional person to the draw and announces them as the
winner. The result is that the prize offered isn’t given to any of the business’s actual customers. This
practice is unlawful.
Displaying prices
In general, businesses are free to set their own prices. However, special rules apply under the ACL to
ensure you provide clear and accurate pricing for goods and services to minimise the risk of consumers
being misled.
u Tip: Clearly explain your terms and conditions, including pricing, to your customers before they agree
to make a purchase. Doing this may help to reduce cost disputes down the track.
When you present prices to your customers, you must state the total cost (i.e. the minimum overall
amount to be paid). If you choose to advertise a price that’s only one component of the total cost
(e.g. the monthly fee of a 2-year contract), the total price must also be displayed as a single figure at
least as prominently as the part price.
The total price must include any tax, duty, fee, levy or other additional charges (e.g. GST).1 This rule
generally doesn’t apply in business-to-business transactions.
u Example: A personal trainer advertises his services at $60 per hour. However, the trainer also imposes
an equipment fee of $3 and the service attracts 10% GST.
The correct way to advertise the trainer’s hourly rate is either:
Hourly rate: $69.30 or Hourly rate: $63 + $6.30 GST or Hourly rate: $60 + $3 equipment fee +
= $69.30 $6.30 GST = $69.30
Multiple pricing
Sometimes discrepancies will arise between displayed prices. For example, a shirt that’s advertised in the
store catalogue as $19.95 but the price on the display is $29.95. This is known as ‘multiple pricing’.
When this occurs, the business must either sell the good for the lowest displayed (or advertised) price or
withdraw the goods from sale until the price is corrected.
This rule doesn’t apply if:

the advertisement states that prices vary in different regions
one price is entirely hidden by another price
a unit price is shown
a price is displayed in an overseas currency.
u Example: A customer finds a coffee table for $350 in a furniture retailer’s catalogue. When the
customer visits the retailer’s store, they find the same coffee table marked at $380. The retailer must
either or allow the customer to purchase the table at the $350 advertised price, or withdraw the
coffee table from sale until the price is corrected (this may involve a retraction advertisement to notify
customers who received their catalogue).
Two-price comparison advertising

Businesses often make comparisons between the prices currently charged and:
previous pricing (e.g. ‘was/now’ pricing)
the ‘cost’ or wholesale price
a competitor’s price
the recommended retail price.
This is known as ‘2-price comparison advertising’. If you use this method of advertising, you must ensure
that consumers are not misled about the savings that may be achieved. For example, ‘was/now’ pricing
is likely to be misleading if products haven’t been sold at the specified ‘before’ or ‘strikethrough’ price for
a reasonable period of time immediately before the sale commenced.
u Example: A boutique rug designer sets up a ‘pop-up’ store in a shopping centre for 2 months leading
up to Christmas. The designer receives less interest than hoped for, selling only 4 rugs within the first
week of opening at full price and having sold more rugs at a discount. He than decides to promote
the rugs with a ‘strikethrough’ price to attract customers. In this instance, the designer may be falsely
using 2-price advertising. As the designer had only sold a limited number of items at the full price and
more at a discount leading up to the sale, the use of strikethrough pricing is likely to be a risky choice
for that business.
1 Restaurants, cafés and bistros that charge a surcharge on certain days don’t need to comply with the requirement to provide
a total price in relation to their menus. However, the menu must include the words ‘a surcharge of [percentage] applies on [the
specified day or days]’ and these words must be displayed at least as prominently as the most prominent price on the menu.
Imposing payment surcharges
Businesses don’t have to charge their customers a surcharge. However, if you decide to impose a fee for
using a credit, debit or prepaid card, the surcharge amount must not exceed your costs of accepting that
payment type. You’re not allowed to include any of your own internal costs when calculating surcharges
(e.g. labour, electricity costs).
Your ‘cost of acceptance’ could include:

merchant service fees
rental and maintenance of card terminals
other fees incurred in processing card transactions (e.g. switching fees, fraud-related chargeback
fees, cross-border transaction fees)
Calculating your ‘cost of acceptance’:
Additional permissible costs

(payable to a third party):
Bank fees + Gateway fees = Cost of acceptance
(from merchant statement) Terminal fees
Fraud prevention
Insurance
In order to calculate these costs, your bank or payment facilitator is required to provide you with
statements that clearly set out your average costs of acceptance, as a percentage, for each card scheme.
u Tip: A payment surcharge is considered excessive if it exceeds the ‘cost of acceptance’.
Bait advertising
Bait advertising is the illegal practice of advertising specific prices, usually ‘sale’ prices, on goods that
aren’t available, or are only available in very limited quantities.
You should only offer goods or services at a ‘special price’ if they’re available in reasonable quantities for
a reasonable period, unless you state clearly that the good is in short supply or on sale for a limited time.
u Example: An electronics retailer advertises 50-inch televisions at a special price of $799 for a week-
long sale. The retailer usually sells about 30 televisions of this type every week. The retailer only stocks
10 televisions at the advertised price and refuses to take customer orders.
When customers attempt to buy the television at the advertised price, they’re told it’s out of stock
and are offered a more expensive unit for $999. This is likely to be bait advertising as the retailer
doesn’t have a reasonable supply of the advertised television.
Working with other businesses and
competing fairly
It’s important that you understand your rights and responsibilities when dealing with wholesalers,
suppliers and other businesses that purchase your goods and services.
u Tip: If you’re concerned about conduct you’re proposing to engage in, or about the conduct of others
in the marketplace, you should seek advice from a lawyer and consider making a report to the ACCC.
Misuse of market power

As part of your business, you may deal with firms that have a substantial amount of market power. A firm
with market power is one that’s able to act with a degree of freedom from the actions of competitors,
suppliers and customers.
It’s not illegal for a firm to obtain market power. Nor does the CCA prohibit a firm with a substantial
degree of market power from ‘out competing’ its rivals by using superior skills and efficiency to win
business. However, the CCA does prohibit a firm with a substantial degree of market power from
engaging in conduct that has the purpose, effect or likely effect of substantially lessening competition in
a market.
Some types of conduct have greater potential to involve a misuse of market power. These include
refusals to deal, restricting access to essential inputs, predatory pricing, loyalty rebates, margin squeezes,
tying and bundling.
When assessing whether conduct amounts to a misuse of market power, the ACCC considers the nature
and extent of that conduct, including the firm’s commercial rationale. For example, if a firm is engaging
in conduct to make its products more attractive to customers, the conduct is unlikely to substantially
lessen competition.
Refusal to supply
In most cases, suppliers have the right to decide who they do business with. They’re generally not
required to supply a small business just because the small business has asked them to. The supplier’s
decision may be swayed by factors such as the customer’s reliability, delivery costs, how the goods will
be sold/advertised and adherence to certain standards.
The CCA does not typically force a manufacturer or wholesaler to supply goods or services to small
businesses. However, a supplier’s refusal to supply may break the law where they are:
misusing their market power
involved in a cartel or a boycott
imposing minimum prices on retailers
engaging in exclusive dealing with the purpose or likely effect of substantially lessening competition.
If a refusal to supply is legitimate, you will need to renegotiate terms with that supplier or seek
alternate supply.
u Example: An office supplies retailer buys pencils from 2 separate pencil manufacturers. One of the
manufacturers tells the retailer to stop buying pencils from the other manufacturer. The supplies
company keeps buying pencils from both, so the manufacturer stops supplying to the retailer.
This refusal to supply is unlikely to be illegal as it won’t have a significant impact on competition; there
are many other pencil suppliers that the retailer could purchase from.
Exclusive dealing
Exclusive dealing occurs when one person trading with another imposes some restrictions on the other’s
freedom to choose with whom, in what, or where they deal. Exclusive dealing is unlawful where it
substantially lessens competition.
Generally, the more exclusive the product and the more powerful the purchaser or supplier, the more
likely it is that competition will be affected in a market.
u Example: The owner of an independent electronics store in South Australia finds that many customers
would come to her store for advice and then purchase products from her competitors at lower prices.
The owner decides to only deal with suppliers who agree not to supply their electrical products to
other South Australian retailers.
While this conduct amounts to exclusive dealing, it’s unlikely to be illegal. There are many other
retailers that suppliers can supply to and many other suppliers that her retail competitors can source
supply from. However, if there were only a small number of available retailers or suppliers, it may raise
concerns as limiting access to those retailers or suppliers could significantly impact competition.
Price fixing
It’s illegal for competing businesses to get together and agree to fix their prices. For example, it would be
unlawful for competitors to agree to only charge a set price (e.g. the RRP’).
Price fixing agreements don’t have to be in writing; you don’t even need to have a ‘formal’ agreement, it’s
enough if there is an understanding between businesses.
u Example: A group of local builders decide to meet informally on a regular basis. At their first meeting,
they all decide to increase their hourly rates to a certain amount for a trial period. This would be
price fixing.
Anti-competitive contracts, arrangements, understandings
and concerted practices
If a contract, arrangement, understanding or concerted practice between businesses has the purpose,
effect or likely effect of substantially lessening competition, it will contravene the CCA.
A contract or arrangement arises when one party makes an offer and the other party communicates an
intention to accept it. This could be achieved by signing a document, agreeing to an offer on a web page
or verbally agreeing to something over lunch.
An understanding is usually less formal than a contract or arrangement. For example, Australian Courts
have said that an understanding may arise where there has been ‘meeting of the minds’ between 2
entities and some commitment to act in a particular way.
A concerted practice involves some form of cooperation or communication between businesses

that falls short of a contract, arrangement or understanding. For example, businesses sharing sales
information with each other, without agreeing what they will do with that sales information, may be a
concerted practice.
u Example (concerted practice): An association of electricity meter manufacturers actively assists its
members to plan for the future by producing a quarterly report outlining industry trends. The report
compiles survey data from members on forecast sales, input costs and pricing intentions. Members
say that the pricing forecast charts in the report are helpful to ensure that their proposed prices are
not out of step with the market.
If this conduct results in members reducing a key competitive uncertainty, being competitor’s future
pricing strategies, it could amount to a concerted practice in breach of the CCA.
This doesn’t mean you need to ‘close your eyes and cover your ears’ to what’s going on in your
market. Following industry trends and seeking to understand your competitors’ offers is a normal part
of business.
The key is to determine your price, output, customers and responses to tenders independently rather
than in consultation or cooperation with your competitors.
Market sharing
Market sharing occurs when competitors agree to only do business in specific market segments rather
than allowing competitive market forces to work. This conduct is illegal because competitors are dividing
the market between themselves rather than competing against each other.
Market sharing can occur where businesses:

agree not to produce each other’s goods and services
allocate customers by geographic area (this includes agreeing not to expand into a
competitor’s market)
divide up contracts, customers or products
allocate customers to each competitor, with an understanding not to ‘poach’.
Imposing minimum resale prices
In general, businesses are free to set their own prices and discount their goods or services as they see
fit. However, it’s illegal for suppliers to attempt to set a minimum downstream price for their products.
This behaviour is known as ‘resale price maintenance’. For example, it would be illegal for a wholesaler to
set a minimum retail price for their products by requiring a retail business to charge at least the RRP (or
threatening to withdraw supply if the business doesn’t).
It’s also illegal for a business to supply products on the condition that the downstream business:
sells those products at a certain specified price
sells those products at a price determined by a formula set by the supplier, or
doesn’t discount those products.
There are some exceptions to the prohibition on resale price maintenance. For example, it won’t apply to
agency (or similar) arrangements where the ‘retailer’ is acting on behalf of the ‘supplier’.
In most cases, a supplier can specify a maximum retail price.
f Case study
In 2010 the ACCC took legal action against a wholesaler for not allowing retailers to discount its
Bertini brand baby prams. The wholesaler admitted it had told some retailers it wouldn’t supply them
with Bertini products unless they agreed to sell them above a specified price. The wholesaler also
admitted it had attempted to induce some retailers not to sell the prams below a certain price and
had even entered into a formal agreement with one retailer. The Court imposed a penalty of $80,000
against the company and $20,000 against its managing director.
Collective bargaining
Collective bargaining is where 2 or more competitors come together to negotiate with a supplier or a
customer over terms, conditions and prices. Collective bargaining groups sometimes want to be able to
refuse supply to, or buy from, a particular customer or supplier, unless or until they reach agreement on
terms and conditions. This is called a ‘collective boycott’.
Negotiating as a group enables small businesses to combine their resources and bargaining power to
get a better deal. However, such arrangements can raise concerns under the CCA. For example, where
there’s an agreement about pricing (price fixing), or to restrict dealings with a particular supplier or buyer
(a collective boycott).
If the ACCC is satisfied that the arrangement provides an overall public benefit, it can ‘authorise’ parties
to collectively bargain even if that conduct would otherwise be unlawful under the CCA.The ACCC has
approved collective bargaining arrangements across many industires.
f Case study
In 2016, a group of NSW dairy farmers applied to the ACCC for approval to collectively negotiate
with Woolworths over the terms and conditions of raw milk supply agreements. The ACCC allowed
one of the farmers in the group to collectively negotiate the terms and conditions of the supply
agreements with the retailer and its agent on behalf of the group.
Applying for an exemption to engage in anti-competitive
conduct
The ACCC may permit businesses to engage in various conduct, including making arrangements
between competitors, exclusive dealing and engaging in resale price maintenance, where the public
benefits outweigh the detriments of such an arrangement.
For example, a group of small businesses may wish to get together to collectively bargain as discussed
above. In these circumstances, businesses can seek an exemption from the ACCC to engage in the
conduct by way of an authorisation or notification.
The ACCC can also issue a class exemption, which exempts a category of conduct from having to apply
for authorisation or notification. This means that businesses will not need to make separate, individual
applications for authorisation or notification if their conduct falls within that category.
If the ACCC grants an exemption, whether by way of authorisation, notification or class exemption, the
businesses subject to that exemption will have protection from legal action provided that their conduct
falls within the exemption.
The ACCC maintains a public register on its website of active authorisations and notifications.
u Tip: If you are considering engaging in anti-competitive conduct, you should first:
talk to a lawyer
contact your industry association
visit the ACCC’s website www.accc.gov.au/business/applying-for-exemptions
call the ACCC’s small business helpline on 1300 302 021 or email adjudication@accc.gov.au.
Unconscionable conduct
The ACL prohibits businesses from acting unconscionably towards other businesses (other than a listed
public company) in connection with the supply and acquisition of goods and services to, or from, the
other business.
u Tip: Page 23 contains information about unconscionable conduct in consumer interactions.
Conduct may be unconscionable if it’s particularly harsh or oppressive. However, it needs to be more
than just hard commercial bargaining, or simply unfair treatment; it means doing something which
shouldn’t be done in good conscience.
The law sets out a non-exhaustive list of matters that Courts may consider when deciding whether
conduct is unconscionable. These include, but aren’t limited to:
the relative bargaining strength of the parties
whether the stronger party has imposed conditions that aren’t reasonably necessary to protect their
legitimate interests
whether the weaker party could understand the documents
undue influence, pressure or unfair tactics by the stronger party
the extent to which the parties acted in good faith.
f Case study
In 2015 a franchisor was ordered to pay a $500,000 penalty following action by the ACCC. The Court
found that the franchisor had, among other contraventions, engaged in unconscionable conduct in
its dealings with 2 franchisees by failing to pay them for the work they’d completed and continuing
to demand payment for the initial franchising fee.
Industry Associations
Small business groups and industry associations play an important role in providing a voice for individual
businesses. They not only offer educational support, but can also help their businesses with:
collective bargaining
recommended retail prices
membership restrictions
information sharing guidelines
voluntary codes of conduct
You can find further information about this on our website www.accc.gov.au/business/professional-
services.
However, since this often involves competitors working together, they need to be careful that this doesn’t
breach the competition provisions of the CCA. The ACCC can authorise collective arrangements in some
circumstances. For more information, visit our website www.accc.gov.au/business/anti-competitive.
Franchising
If you operate within a franchise system, or are thinking of joining one, you should be aware of your rights
and obligations under the mandatory national Franchising Code of Conduct.
The Code aims to regulate the conduct of franchising participants towards each other at any stage of a
franchise agreement. It does this by:
requiring franchisors to disclose certain information to prospective or existing franchisees
imposing a good faith obligation on parties
establishing a dispute resolution mechanism
outlining certain minimum standards of conduct.
You can find out more about this on our website www.accc.gov.au/franchising.
Unfair contract terms
As a small business, you may be required to enter into standard form contracts with other, larger
businesses for goods and services (e.g. equipment, property rental, financing or utilities). You may also
use standard form contracts when dealing with your customers.
A standard form contract is an agreement that has been prepared by one party in circumstances where
the other party has had little or no opportunity to negotiate the terms.
Under ACL, a Court may find that a term in a standard form contract is unfair and declare that term void.
u Tip: There’s an automatic assumption that an agreement will be a standard form contract. This means
it will be up to the party that prepared it to prove it isn’t standard form.
Types of terms that may be unfair

A term may be considered unfair if it enables one party (but not the other) to:
vary the terms of the contract (e.g. change its prices or services at any time without prior notice)
automatically renew the contract without the other party’s express consent
avoid or limit their obligations under the contract (e.g. limit the contract provider’s liability where they
have acted negligently)
terminate the contract
penalise the other party for breaching or terminating the contract.
u Example: A small business enters into a standard form contract with a telecommunications company.
The contract allows the provider to disconnect access at any time without notice, to raise prices at its
absolute discretion and charge a large cancellation fee if the customer decides to leave the contract
early. A Court could determine that these contract terms are unfair.
Which contracts are covered?
The unfair contract terms law applies to consumer as well as small business standard form contracts
(e.g. shop leases, advertising, equipment lease or hire purchase).
A small business contract is an agreement:

where at least one of the parties is a small business, and
where the upfront price payable is up to $300,000 (or $1 million if the contract is for more than
12 months), and
for the supply of goods or services or the sale or grant of an interest in land.
A consumer contract is an agreement:

for the supply of goods or services, or the sale or grant of an interest in land, to an individual (not a
company) for personal, domestic or household use.
Determining whether a term is unfair

To be unfair under the ACL, a term must:
cause a significant imbalance in the parties’ rights and obligations, and
not be reasonably necessary to protect the legitimate interests of the party advantaged by the
term, and
cause detriment (financial or otherwise) to a party if it were applied or relied upon.
All 3 elements of the unfairness test must be proved for a term to be deemed unfair. Only a Court or
tribunal (not the ACCC) can make this determination. A Court/tribunal may take into consideration:
transparency of the term: a clause may not be transparent if it’s hidden in the fine print or phrased in
legal, complex or technical language. However, a transparent term can still be unfair.
the overall rights and obligations of each party: the fairness of a term must be assessed in light of
the contract as a whole. For example, a term may be counterbalanced by additional benefits to the
other party such that it’s no longer unfair.
Remember: a declaration that a term is unfair applies only to the specific contract(s) before the
Court/tribunal (i.e. a specific contract between 2 parties or all contracts entered into by that business
which consist of the standard term). You cannot assume that just because a Court/tribunal has found
that a term is unfair in a particular business’s contract that such a term in your contract is unfair, or that
you will have the benefit of that clause being declared unfair.
Effect of having an unfair contract term

If a term is found to be unfair it will be void, meaning it won’t be binding on the parties. However, the rest
of the contract will continue to bind the parties to the extent that it’s capable of operating without the
unfair term.
If a business subsequently tries to apply or rely on a term that has been declared unfair, it may be a
breach of the ACL and the affected party could apply to a Court for a range of remedies. This could
include compensation or an injunction restraining the business from acting upon the term.
u Tips:
Always review contracts before you sign them. If you find a term you think is unfair, ask the other
party to remove it or amend it.
If you think a term in a contract is unfair and you can’t resolve the problem with the other party,
consider engaging a mediator to help you resolve the dispute. You can find further information
about dispute resolution on page 31.
Guarantees and warranties: consumers
and businesses
The ACL provides consumers and businesses with a basic set of rights when they purchase goods and
services. These ‘consumer guarantees’ ensure goods and services meet certain minimum standards.
Failure to comply with any of the consumer guarantees will provide consumers and small businesses with
a legal basis for seeking remedies when the goods or services don’t meet that standard.
Consumer guarantees apply automatically and can’t be excluded, modified or limited by contract.
Importantly, a ‘consumer’ can be a person, sole trader or a business, provided the goods or services
purchased are:
less than $100,000
of a kind normally bought for personal, domestic or household use or consumption, or
a commercial vehicle or trailer used mainly to transport goods on public roads.
However, the consumer guarantees won’t apply to goods intended for re-sale or further processing,
production or manufacture.
u Example: An accountant purchases a multifunction business printer and scanner for $20,000. Six
months later, the printer breaks down without suffering any misuse. Here, the business would be
protected by the consumer guarantees as the printer cost less than $100,000.
The guarantees
Goods must:
be of acceptable quality (i.e. acceptable in appearance and finish, free from defects, safe
and durable)
be fit for any disclosed purpose and do all the things someone would normally expect them to do
match their description, or the sample or demonstration model provided
meet any extra promises made (e.g. about performance, condition or quality)
have spare parts and repair facilities available for a reasonable time after purchase
come with full title, ownership and undisturbed possession
not carry any hidden debts or extra charges.
Services must be:

provided with due care and skill (i.e. services should be carried out with care and skill, and
reasonable steps must be taken to avoid loss or damage)
fit for any specified purpose (i.e. services and any resulting products are suitable for the purpose
specified by the consumer)
provided within a reasonable time (when no time is set).
Failure to meet a guarantee

If you sell a good or service that fails to meet a consumer guarantee, the purchaser is entitled to a
remedy (i.e. a repair, replacement or refund) and compensation for any consequential loss suffered
because of the failure. The supplier (your business) is legally obliged to provide the appropriate remedy.
The type of remedy available to the consumer will depend on the extent of the problem.
Problems with a good

If the problem with a good is minor, the supplier can choose to provide a refund, replacement or a
free repair (within a reasonable time). If the problem with the good is major or can’t be fixed within a
reasonable time, the consumer can choose whether to:
reject the goods and obtain a full refund or replacement, or
keep the goods and seek compensation for the reduction in value of the goods.
A good has a major problem if:

a reasonable person wouldn’t have bought it if they’d known about the problem
it has multiple minor problems that, when taken as a whole, would have stopped a reasonable person
from buying it if they’d known about them
it’s unsafe
it doesn’t match the sample or description
it doesn’t do what the business said it would, or what the consumer asked for, and can’t easily
be fixed.
u Examples:
Major problem with a good: A consumer buys an electric blanket, which stops working after the
first use. This would be a major problem and the customer can choose a replacement or a refund.
Minor problem with a good: A small business buys a fridge and finds that the door has a scratch
on it (this defect doesn’t impact the safety or functioning of the product). This would be a minor
problem and the supplier can choose how to remedy the problem.
Problems with a service
If the problem with a service is major, the consumer can choose whether to:
cancel the service contract and get a refund, or
keep the contract and get compensation for the difference between the service delivered and what
they paid for.
If the problem with a service is only minor, the consumer must give the supplier an opportunity to fix
the problem free of charge and within a reasonable time. The customer can’t automatically cancel
the contract.
There’s a major problem with a service if it:

is a problem that would have stopped a reasonable person from buying the service if they’d known
about it
has multiple minor problems that, when taken as a whole, would have stopped a reasonable person
from buying the service if they’d known about them
creates an unsafe situation
is substantially unfit for its normal purpose, and can’t be easily fixed within a reasonable time
doesn’t meet the specific purpose the consumer asked for and can’t easily be fixed within a
reasonable time.
u Examples:
Major problem with a service: A small business asks a technician to increase their store computer’s
memory capacity within one week. When installing a new drive, the technician damages the
computer. Repairs will take 4 weeks but the small business needs the device within the week. The
small business can choose whether to continue or cancel the contract.
Minor problem with a service: A consumer hires a carpenter to build a carport to cover their
vehicle. The carpenter builds a structure that isn’t long enough to cover the car. Although they
haven’t met the consumer’s request, the carpenter is able to fix the problem within a reasonable
time. The additional work would need to be done free of charge.
Reimbursement for consequential loss

In addition to a repair, replacement or refund, consumers and businesses are entitled to seek
compensation from suppliers for loss or damage associated with a failure to meet a guarantee.
Commonly, losses are financial (e.g. the cost of returning the goods or repairing other goods damaged
as a result of the failure) but they can also include lost time or productivity.
While you’re responsible for loss or damage suffered as a result of a problem with a good or service you
supplied, you don’t have to pay for damages or losses that:
were not caused by your business/the goods you supplied
relate to something independent of your business, after the goods left your control
were not a reasonably foreseeable consequence of the failure of the good or service.
u Example: A consumer takes their curtains to a dry cleaner. The goods are damaged during cleaning.
The consumer would be entitled to a refund of the dry cleaning fee as well as compensation to cover
the cost of replacing the curtains.
Suppliers’ rights against manufacturers

Some products you sell may fail to meet a consumer guarantee due to a manufacturing defect or issue
that would otherwise be the manufacturer’s fault. In this situation, you have additional protections under
the ACL.
If your business provides a remedy for these failures, you can recover the costs incurred from the
manufacturer. A supplier has 3 years to request a reimbursement, taken from when they fixed the goods
or the consumer took legal action against them, whichever is earliest.
Exceptions to consumer guarantees

Consumers’ rights are not limitless. The ACL doesn’t require you to provide a remedy if:
the customer
– simply changes their mind (unless your store has a policy for change of mind)
– discovers they can buy the goods or services cheaper elsewhere
– has damaged the goods by misusing them in an unreasonable way.
the failure to meet the guarantee only occurred because of:
– something someone else said or did (unless that person was an employee or acting as your agent)
– something beyond your control that happened after you sold the product or provided the service.
Refunds and return signs

The following types of signs are not permitted:
‘No refunds’
‘No refunds on sale items’
‘Exchange or credit note only for the return of sale items’.
Such signs are unlawful because they misrepresent the customer’s automatic rights under the ACL. Signs
that state ‘No refunds for change of mind’ are acceptable.
u Tip: Download and display our ‘refunds and returns’ point-of-sale sign, which clearly sets out when
you are and are not required under the ACL to provide a remedy. This sign is available on the ACCC
website at www.accc.gov.au/publications.
Offering warranties
A ‘warranty’ is a type of promise. If you make a warranty to your customers about your goods or
services, you have to honour that warranty, as well as your obligations under the ACL.
There are 3 types of warranties you should be aware of:

1. Explicit warranties such as extra promises about the good’s quality, state, condition, performance or
characteristics, or the availability of servicing, supply of parts or identical goods
2. Warranties against defects/manufacturers’ warranties2 making additional promises to consumers
about what you will do if something goes wrong with a good or service, such as ‘12-month
replacement guarantee’
3. Extended warranties offering lengthened coverage of a manufacturer’s warranty, or extra promises
such as priority consumer treatment or technical support.
Warranties are additional to a consumer’s ACL rights. This means that a consumer may still be entitled to
a remedy under the ACL even if the warranty period has expired, or if no warranty exists at all.
u Example: A retailer states that they will only replace or repair a faulty product if the consumer buys
an extended warranty. This is misleading as a consumer’s ACL rights already entitle them to the same
remedy at no cost.
2 To ensure consumers understand the warranty and know how to make a claim the ACL requires that all documents ‘evidencing’ a
warranty against defects must be in writing and include specific information.
Treating customers fairly
There are rules in place to ensure businesses treat their customers fairly. It’s your responsibility to make
sure you understand these rules and what they mean for your business.
Unconscionable conduct
The ACL prohibits businesses from engaging in unconscionable conduct when dealing with their
customers. The following practical tips may assist you to avoid engaging in unconscionable conduct with
your customers:
don’t exploit customers when negotiating the terms of an agreement or contract
consider the characteristics and vulnerabilities of your customers (e.g. use plain English when dealing
with customers from a non-English speaking background)
make sure your contracts are clear, thorough and easy to understand
if things go wrong, be open to resolving complaints.
f Case study
In 2015, a vacuum cleaner distributor was ordered to pay a penalty of $370,000 for engaging in
unconscionable conduct when selling vacuum cleaners to 3 elderly women.
The sales representative called on the women in their homes under the premise of a free vacuum
cleaner maintenance check, but with the purpose of selling a vacuum cleaner. The women were
subjected to unfair sales tactics, and pressured into purchasing a vacuum cleaner.
Unsolicited supply of goods or services
‘Unsolicited supplies’ refers to goods or services that are provided to someone who hasn’t asked to buy
or receive them.
It’s illegal under the ACL to request payment for unsolicited goods or services unless you reasonably
believe you have a right to be paid. This means that a person who receives unsolicited goods or services
doesn’t have to pay for them, or for any loss or damage resulting from their supply.
u Example: A consumer arranges for a business to wash the outside of her car. The business also cleans
the inside of her car and charges her an extra $50. The consumer doesn’t have to pay the additional
amount as she didn’t ask for the extra service.
A business that has supplied an unsolicited good has 3 months to recover it; otherwise, it becomes
the consumer’s property with no obligation to pay. This recovery period is reduced to one month if the
consumer has written to the business setting out:
their name and address
that the good is unsolicited and they don’t want it, and
where the good can be collected.
Unsolicited consumer agreements

An ‘unsolicited consumer agreement’ takes place when:
it’s for the supply of goods or services to a customer, and
it results from negotiations by phone or at a location other than the seller’s business or trade
premises, and
a seller/sales agent calls/approaches a customer uninvited, and
the total value of the goods or services is more than $100 (or cannot be determined when the
agreement is made).
If your business uses these sales methods, you need to be aware of your additional obligations under the
ACL when you approach your customers, including:
permitted hours for telemarketing and making uninvited house visits
disclosure requirements before making a sales pitch
customers’ cooling-off rights
information requirements for the sales agreement.
u Tip: See Door-to-door and telemarketing sales for further information.
Harassment and coercion

It’s illegal for businesses to physically force, coerce or unduly harass someone, including another
business, about the supply (or possible supply) of, or payment for, goods or services.
Undue harassment means repetitive, unnecessary or excessive contact or communication with a person
to the point where that person feels intimidated or demoralised.
Coercion involves force (actual or threatened) that restricts another person’s choice or freedom to act.
Unlike harassment, coercion doesn’t have to involve repetitive behaviour.
u Tip: Chasing a debt? Download our ‘Debt collection guideline for collectors and creditors’ for direction
on what you can and can’t do when trying to collect money owing to your business.
Proof of transaction
Businesses must provide their customers with a ‘proof of transaction’ for goods or services supplied to
them totalling $75 or more (excluding GST). A proof of transaction may be a tax invoice, a cash register
or handwritten receipt, a lay-by agreement or a receipt number for a telephone or internet transaction.
A proof of transaction must include the supplier’s name and ABN/ACN, date of supply, good or service
supplied, and the price (including GST) per item, as well as the overall total.
For goods or services totalling less than $75 (excluding GST), you’re only required to provide a proof of
transaction if the customer requests one.
Itemised bills
A customer can ask a service provider for an ‘itemised bill’ up to 30 days after the services were supplied,
or the customer receives a bill/account for the services supplied, whichever happens later. If you’re asked
to provide an itemised bill, you have up to 7 days to comply with the request. Itemised bills must be
provided free of charge and show:
how the price was worked out
if relevant, the number of labour hours and hourly rate
if relevant, a list of materials used and the amount charged for them.
Lay-by agreements
If you’re in the business of offering lay-bys, you must ensure the agreement:
is in writing
sets out all relevant terms and conditions, including any termination charge
is expressed in plain language
is legible and clearly presented.
Businesses must give a copy of the agreement to the customer.
Remember: an agreement that doesn’t specifically state it is a lay-by will be considered to be one if the
customer pays for a good in at least 3 instalments (or 2 or more instalments when the agreement does
state it is a ‘lay-by’) and doesn’t receive the good until the total price has been paid. Deposits count as an
instalment payment.
If a customer cancels a lay-by, you must refund the money paid less any termination fee. This fee must be
clearly specified in the agreement and reflect your reasonable costs in relation to the lay-by. It must not
be a ‘penalty’ for cancelling.
You can only cancel a lay-by agreement in limited circumstances (e.g. where the customer has breached
the agreement). You can’t charge a termination fee if you cancel the lay-by.
u Tip: Need to know more? Check out our Advertising and selling guide.
Pyramid schemes and referral selling
Businesses commonly try to incentivise their customers and may even offer benefits if they help the
business find more customers. However, businesses must be careful that such activities are lawful.
The ACL makes it illegal to participate in, or to persuade someone to participate in a ‘pyramid scheme’.
These schemes work by requiring individuals to make a ‘participation payment’ in order to join and
promising payments in return for recruiting other ‘investors’ or new participants (recruitment payments).
Pyramid schemes make money by recruiting people rather than by selling actual goods or services
(although the sale of a good or service may be involved).
u Example: A business sets up a scheme where consumers pay a membership fee of $350 and
receive a ‘travel certificate’ and the opportunity to earn commissions for recruiting other people
into the scheme. The design of the scheme makes it extremely difficult for people to redeem their
travel certificate.
This type of model is likely to raise concerns under the ACL as the only way participants can earn any
income or obtain a benefit is through the introduction of new members.
It’s also illegal for businesses to engage in referral selling. ‘Referral selling’ is where a business persuades a
consumer to buy goods or services by promising them benefits (e.g. a rebate or commission) if they help
the business supply goods or services to other consumers. If the incentive is paid regardless of whether
the sale to other customers is made or not, this would not be ‘referral selling’ under the ACL. However, it
would be illegal if the incentive is contingent upon the sale to other customers.
u Example: A consumer buys a new TV and is offered a free DVD player on the condition that they give
the business the names of 5 friends and that those friends all buy TVs from the business. This is illegal
referral selling because they’ll only receive the DVD player if all 5 friends purchase a new TV.
Selling safe products
The ACL establishes a national consumer product safety system to ensure the safety of goods used in
Australia. This system relies on the cooperation of consumers, suppliers and government agencies. As
a business owner or operator, you must understand the voluntary and mandatory rules that exist to
minimise safety risks for Australian consumers.
Under the ACL, Commonwealth, state and territory ministers can regulate consumer goods and product-
related services by:
implementing mandatory safety standards
issuing a compulsory recall notice to suppliers
banning products
issuing safety warning notices.
u Tip: Check to see if any of the products you buy or sell are subject to a recall, ban or safety
warning notice:
visit www.productsafety.gov.au
download the ‘Recalls Australia’ phone app
‘like’ the ACCC Product Safety Facebook page.
Mandatory standards
Mandatory standards set out design elements or information requirements for a limited number of
products if they are to be sold in Australia (e.g. certain children’s toys, clothing and textiles, and tobacco).
Their purpose is to make particular safety or information features available on a product to prevent or
reduce the risk of injury to a person.
It’s illegal to supply a good that doesn’t meet an applicable mandatory standard. A full list of all national
mandatory standards is available online from www.productsafety.gov.au.
Product recalls
If a product is dangerous, unsafe or harms people, it must be recalled. A recall is the temporary or
permanent removal of a product (or part of a product) from sale or use.
A supplier can voluntarily recall a product or a responsible Minister can initiate a compulsory recall. If you
initiate a voluntary recall, you must notify the ACCC at www.productsafety.gov.au/recalls.
f Case study
In 2016, a retailer was ordered to pay more than $3 million in penalties for failing to remove a number
of house brand products (including a deep fryer and a folding stool) from sale after becoming aware
they had caused serious injuries. The Court found that by not recalling the products and removing
them from sale, the retailer had misled consumers as to the suitability of the goods.
Bans
A temporary or permanent ban can be placed on a product or product-related service if there’s
a risk that it may cause serious injury, illness or death. A temporary ban lasts for 60 days and can
be ordered at the state/territory level or nationally. A permanent ban can only be ordered by the
Commonwealth Minister.
If any of your products are subject to a ban, you must not sell them.
Safety warning notices

A responsible Minister can issue a safety warning notice to inform consumers and suppliers about
consumer goods or product-related services that may cause injury and/or are being investigated.
You don’t have to stop selling the good or service that is the subject of the safety warning notice but it’s
important that you stay informed about its status.
Mandatory reporting of serious injuries or death

If your business becomes aware of any product-related death, serious injury or serious illness related to a
product you supply, you must report the incident to the ACCC. A mandatory report must be made within
2 days of the supplier becoming aware of a reportable incident.
u Example: The supplier of a range of mobility scooters finds out that a consumer has suffered an arm
fracture and required stitches after their scooter lost its front wheel and tipped over. The supplier
is concerned that a batch of its products has defective bolts connecting the front wheels to the
body. These injuries were caused (or may have been caused) by the use of the scooter and must be
reported to the ACCC within 2 days of the company becoming aware of the incident.
Country of origin claims
In general, businesses are free to make any claims they wish to about their products (e.g. ‘local’, ‘home-
made’), provided the claims are truthful, clear and accurate. However, it’s unlawful for businesses to make
false or misleading claims, including about the country of origin of goods.
If the goods are food products offered or suitable for retail sale, there are mandatory labelling
requirements that apply under the Country of Origin Food Labelling Information Standard 2016. These
requirements are outlined in the next section under the heading ‘Food labelling’.
Whether you choose to make a country of origin representation about your products, or are legally
required to do so, you must make sure the claim is clear, accurate and truthful.
Non-food products
In most circumstances, it will be up to businesses to decide whether to promote their non-food products
as having a certain origin.3
Country of origin representations about goods may arise from words, pictures or a combination of both.
For example
by a statement such as ‘Made in Australia’, ‘Product of Thailand’ or ‘Grown in New Zealand’
by words or images (e.g. product packaging with a map of Italy next to the Italian flag) that may
imply the product is from Italy.
If a reasonable consumer is likely to be led into error by the use of certain words or images on a product’s
labelling, then there’s a risk of breaching the ACL. It doesn’t matter whether a business intended to
mislead or deceive consumers.
3 Note that while ACL doesn’t require country of origin labelling on non-food products, other laws may do so e.g. customs
regulations for imported goods.
u Example: A hardware store runs an Australia Day promotion where it attaches cards captioned
‘Do it for Australia, buy Aussie made’ to products that were not made in Australia. This would likely
be misleading, as the signs could reasonably lead consumers to believe that those products were
Australian-made when this was not the case.
Key claims
Generally speaking, businesses that make the following country of origin representations about their
goods are unlikely to contravene the ACL if these requirements are met:
a grown in claim can be made if each significant ingredient or component of a good was grown in
that country (e.g. bananas, flowers) or came from something that grew in that country (e.g. eggs,
wool) and all, or virtually all, of the processes involved in the production and manufacturing of the
good occurred in that country too.
a product of claim can be made if each significant ingredient or component of a good originated
in the country claimed and all, or virtually all, of the processes involved in the production and
manufacturing of the good also occurred in that country.
A made in claim can be made if a good was last substantially transformed in that country. A good
was ‘substantially transformed’ in a country if, as a result of one or more processes undertaken in that
country, the good is fundamentally different in identity, nature or essential character from all of the
ingredients or components that were imported into that country.
These terms also have defined meanings under the Country of Origin Food Labelling Information
Standard 2016. There may be additional requirements that must be satisfied in order to make
these claims.
Food labelling
A number of mandatory information standards regulate the type and amount of information that must
be provided to consumers about particular products and services. The Country of Origin Food Labelling
Information Standard 2016 (‘Standard’) is one of them.
The Standard is intended to provide consumers with clearer, more meaningful and accurate information
about the food they buy. For most foods, the labels will also tell consumers what percentage of the
ingredients come from Australia.
The Standard commenced under the ACL on 1 July 2016 and regulates the country of origin information
that must be provided for most food offered or suitable for retail sale in Australia. It’s important that
producers, manufacturers, processors, and importers, as well as retailers, are aware of the obligations
imposed by the Standard.
From 1 July 2018, businesses must label their products according to the requirements of the Standard.
u Tips:
Visit www.accc.gov.au/cool to access guidance materials that will assist you to understand the
Standard, including a country of origin food labelling guide.
An online tool is available at www.originlabeltool.business.gov.au to assist businesses to determine
their obligations under the Standard.
Made in
Vietnam Made in
Made in
Australia from at Italy
from at least 75% Packed
least 50%
Australian Product of
Australian
ingredients ingredients
in Australia Australia
Resolving disputes with customers or
other businesses
If a dispute arises between your business and a third party (e.g. a supplier), there are 4 basic steps you
may wish to take to help you resolve the matter:
Step 1: inform the other party of the dispute

Tell the other party what the problem is, the outcome you want and what action you think will settle the
dispute. It’s a good idea to put this in writing (letter, email, etc).
Step 2: try to resolve your dispute directly

Try to negotiate a resolution with the other party. If you can’t resolve the matter, you may need to seek
assistance from a third party.
Step 3: contact a third party mediation service

Mediation involves an independent third party stepping in and helping you and the other person to
reach an acceptable resolution. Mediation is a relatively quick and cheap option that can help to keep
relationships intact. The Australian Small Business and Family Enterprise Ombudsman (ASBFEO) or your
local Small Business Commissioner (if available) may be able to provide a mediation service.
u Tip: See page 33 for contact information for the ASBFEO and state Small Business Commissioners.
Step 4: talk to a lawyer

If you are unable to resolve the dispute, you should consider seeking legal advice about your rights. Court
action can be costly and time consuming and should be considered a last resort.
Penalties for non-compliance
The consequences of breaching the CCA or ACL may be significant and could include:
financial penalties
community service orders
adverse publicity orders (i.e. corrective advertising)
disqualification from managing corporations
compensation orders for persons who may have suffered loss or damage as a result of your
misconduct
imprisonment (for individuals who contravene the criminal cartel provisions).
The ACCC operates an Infocentre for the general public to report concerning behaviour or business
practices. We rely on these reports to identify issues and inform compliance and enforcement activities.
The ACCC as well as any of the state/territory ACL regulators can take action for penalties where a
business breaches the ACL. The ACCC is the only agency that can take action for breaches of the
competition provisions of the CCA.
The CCA and ACL also allow individual parties who have suffered loss from a breach of the CCA or ACL
to take their own private action.
u Tips:
To reduce your risk of breaching the CCA or the ACL, you should ensure:
you provide ACL training to your staff
you can substantiate any claims you make about your products or services
effective procedures are in place to deal with customer complaints
you obtain independent legal advice prior to entering into any special arrangements with
your competitors.
Relevant government agencies and
resources
There are a number of government agencies and resources that can assist you or provide important
information that affects the running of your business.
The ACCC
Website: www.accc.gov.au
Small business online education program: This free online program provides a broad overview
of the key provisions of the CCA and the ACL. You can work through all the modules or you
can select the ones most relevant to your business. At the end of each module, there is a short
self-assessment quiz which you can take to test your understanding. The program is available at
www.accc.gov.au/ccaeducation.
Small business publications: We have a range of guides to help you understand your rights and
obligations under the CCA. These materials are available at www.accc.gov.au/publications.
Information networks: Would you like to keep up with the latest news and events relevant to small
business and/or franchising? Subscribe to our free newsletters by visiting www.accc.gov.au/media/
subscriptions.
Small business helpline: 1300 302 021
– Callers with a hearing or speech impairment can contact the ACCC through the National Relay
Service (www.relayservice.com.au).
– TTY or modem users: phone 13 3677 and ask for 1300 302 021
– Voice-only (speak and listen) users: phone 1300 555 727 and ask for 1300 302 021.
– For information in languages other than English, phone 13 1450 and ask for 1300 302 021.
Small business bodies

Australian Small Business and Family Enterprise Ombudsman
The ASBFEO provides information and assistance to small businesses and family enterprises, including
referral to dispute resolution and business advisory services. For further information, contact the
ASBFEO on 1300 650 460 or visit www.asbfeo.gov.au.
Small Business Commissioners

These are independent agencies who can provide information and assistance to small businesses,
including dispute resolution and advisory services.
New South Wales South Australia
Office of the Small Business Commissioner Office of the South Australian Small Business
Commissioner
1300 795 534
1800 072 722
www.smallbusiness.nsw.gov.au
www.sasbc.sa.gov.au
Victoria Western Australia
Victorian Small Business Commission Small Business Development Corporation

(including Small Business Commissioner)
13 8722
13 1249
www.sbc.vic.gov.au
www.smallbusiness.wa.gov.au
Other helpful agencies
Australian Securities and Investments Commission
ASIC is Australia’s corporate, markets and financial services regulator and is responsible for business
name registrations. ASIC is also the regulator of consumer credit in Australia. Contact ASIC on 1300 300
630 or visit www.asic.gov.au.
Australian Taxation Office

The ATO manages and shapes tax, excise and superannuation systems that fund services.
For information about taxation matters relating to your business, contact the ATO on 13 2866 or visit
www.ato.gov.au/businesses.
Fair Work Ombudsman

The FWO is Australia’s employment and workplace relations regulator. For information about your
workplace responsibilities including hiring employees, managing performance and calculating wages and
entitlements. It also oversees some specific employment laws applicable to franchising. Contact FWO on
13 1394 or visit www.fairwork.gov.au.
IP Australia
IP Australia administers Australia’s intellectual property rights system, specifically patents, trademarks,
designs and plant breeder’s rights. Contact IP Australia on 1300 651 010 or visit www.ipaustralia.gov.au.
Business.gov.au
www.business.gov.au provides businesses with a first point of contact to access information and referral
services across government. Visit the website or call 13 2846 for initial advice and referral services on
matters such as obtaining finance, promotion and marketing, and hardship counselling.

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Small Business and The Competition and Consumer Act - July 2021

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Small business and

the Competition and

Key rights and responsibilities.................................................................................................................................................................6

Pricing and promoting your business.................................................................................................................................................7

Working with other businesses and competing fairly........................................................................................................... 11

Unfair contract terms................................................................................................................................................................................. 17

Guarantees and warranties: consumers and businesses..................................................................................................... 19

Treating customers fairly......................................................................................................................................................................... 23

Selling safe products.................................................................................................................................................................................. 27

Country of origin claims........................................................................................................................................................................... 29

Resolving disputes with customers or other businesses..................................................................................................... 31

Penalties for non-compliance............................................................................................................................................................... 32

Relevant government agencies and resources.......................................................................................................................... 33

False or misleading claims

Fine print qualifications

Offering rebates, gifts, prizes and other free items

The correct way to advertise the trainer’s hourly rate is either:

This rule doesn’t apply if:

Two-price comparison advertising

Your ‘cost of acceptance’ could include:

Calculating your ‘cost of acceptance’:

Additional permissible costs

u Tip: A payment surcharge is considered excessive if it exceeds the ‘cost of acceptance’.

Misuse of market power

A concerted practice involves some form of cooperation or communication between businesses

Market sharing can occur where businesses:

In most cases, a supplier can specify a maximum retail price.

u Tip: Page 23 contains information about unconscionable conduct in consumer interactions.

Types of terms that may be unfair

A small business contract is an agreement:

A consumer contract is an agreement:

Determining whether a term is unfair

Effect of having an unfair contract term

Services must be:

Failure to meet a guarantee

Problems with a good

A good has a major problem if:

There’s a major problem with a service if it:

Reimbursement for consequential loss

Suppliers’ rights against manufacturers

Exceptions to consumer guarantees

Refunds and return signs

There are 3 types of warranties you should be aware of:

Unsolicited consumer agreements

u Tip: See Door-to-door and telemarketing sales for further information.

Harassment and coercion

Businesses must give a copy of the agreement to the customer.

Safety warning notices

Mandatory reporting of serious injuries or death

Step 1: inform the other party of the dispute

Step 2: try to resolve your dispute directly

Step 3: contact a third party mediation service

Step 4: talk to a lawyer

Small business bodies

Small Business Commissioners

Victorian Small Business Commission Small Business Development Corporation

Australian Taxation Office

Fair Work Ombudsman

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