Latest franchising review likely to lead to more improvements

Last month the Australian Government publicly released a report detailing the independent review into the franchising sector in Australia.  The background that led to the commissioning of the report, and links to the report itself, can be found here.

 

The report makes 18 recommendations.  The aim being to recommend ways of simplifying and improving the clarity of regulations governing franchising.

 

So, what does the report recommend?  Some recommendations are:

• amending the Code so franchisors when informing a franchisee of its decision to renew or enter a new franchise agreement, the franchisor must also provide a disclosure document at the same time
• modifying parties’ obligations to act in good faith (this also includes during negotiations as well as during the term of the agreement).
• additional and tighter controls on marketing funds, including such funds be held in trust (many franchise agreements require franchisees to make regular financial contributions, additional to other franchise fees, to a central marketing fund controlled by the franchisor that’s meant to be applied for that purpose)
• the Code be amended to require franchisors to provide prospective franchisees with a short summary of the key risks and matters they should be aware of when going into franchising (generally, would seem to be a good idea, providing it doesn’t result in generic and convoluted overly technical disclaimers that is likely to discourage prospects from reading these, rather than to take the time to aware of and consider the usual business risks so an informed decision is made)
• amending the Code so franchisors are prohibited from imposing unreasonable significant unforeseen capital expenditure on franchisees (I’ve seen this happen far too often over the years, even cases where a prospect was “assured” there was no foreseen capital expenditure required, only to be hit with such requirement within weeks, or less, of entering a franchisee agreement)
• amending the Code so that franchisors are prohibited, in the absence of a court order, from making franchisees being responsible for certain legal costs in a dispute resolution process and, interestingly, requiring franchisees to conduct their court case outside the jurisdiction, or State, in which the franchisee’s business operates.
• amending the Code regarding the transfer, renewal or end of a franchise agreement so that a franchisee must provide all information reasonably required by the franchisor when making the request for consent to transfer/sell or renew, but franchisors will not be deemed to have consented until 6 weeks after receiving all such information to enable it to properly evaluate the request (without more clarification I’m unsure here; this could enable a franchisor , intentionally or not, to delay or frustrate a franchisee’s request using the excuse the franchisee hasn’t yet provided all the required info).

The Franchising Code of Conduct and Australian franchising has been reviewed several times since the Code first came into existence in 1998.  Overall, it appears to have resulted in a highly regulated framework in the Australian business format franchising system relative to comparable other counties.

Then again, it’s probably fair to say too, that it’s likely why we have a world leading regulatory but successful and balanced framework for such.  If you’re interested in reading more about previous comments I’ve made on this subject, click here.

 

Meanwhile, let’s see what recommendations from this latest review will be implemented by this or the next Australian government.

Is your franchised business falling behind? You CAN fight back!

Business format franchising in Australia has proven to be a reliable pathway for many, especially those with little or no experience in running a business, to own and successfully run their own small business.

 

Australia has a world leading regulatory framework, policed by the ACCC.  Unscrupulous and unprincipled franchisors do get caught and prosecuted by the ACCC - I’ve written about some such cases from time to time in this blog.

 

Most successful small businesses are such because of hard work.  Running a reputable franchise system business doesn’t guarantee success, however, but it does reduce the chance of failure.



Even in a successful franchised business, sometimes things go astray, or aren’t working as well as they should.  If this sounds like you, here’s a Sydney Morning Herald article by David Wilson with some useful tips that may be just what you need to help you.  Together with help from your willing franchisor, your accountant and your solicitor, you still can get back your mojo!

Buying into a franchise? Here's one bit of essential, and free advice!

According to the Franchising Australia 2012 report, published by Griffith University, in Australia there are currently about 1,180 business format franchisors, and about 73,000 operators of business format franchises.  These are big numbers.
 

For many years I have advised and continue to advise franchisee clients, both long time operators and first timers.
 

With new intending franchisees, there’s much to discuss, advise, explain, check, re-check, and so on.  Particularly for newcomers, usually advice ought to be sought from their solicitor, accountant and business advisor.
 

Are you thinking about, or have decided to buy a franchise business?
 

Here’s what I think is probably the best early advice, and easiest to follow and understand by newcomers:

Before committing, talk to and ask as many questions as you can to as many current franchisee operators and owners in the system as possible.

That’s how you often get a real-world sense of how the system actually works with real franchisees, how much real or worthwhile support is provided by franchisors, and if the rewards are actually there to be earned. 
 

Unfortunately, sometimes this can reveal that the reality doesn’t quite match the claims in the glossy brochures.  The time to find this out is before committing to buying into a system.
 

A compulsory document that must be provided by franchisors to prospective franchisees before franchise documents are signed, is a Disclosure Document.  One of the may types of information it contains is the names and contact details of other franchisees, at least in your state, if not nationally.

Use it!

Friends in business, should be friends "in deed"...

Mark Bouris, executive chairman of a wealth-management company and small business adviser, but probably more recently widely known as the host of last year's TV’s Celebrity Apprentice Australia also writes articles in the small business section of the Sydney Morning Herald (well, I don’t really know if he actually writes it or whether he instructs another writer to do it for him, but that’s besides the point!).  Today he gives some advice to someone looking at starting a business together with a friend.

Mark gives sound advice about starting or running a business with a friend.  These include the need to (this list isn’t exhaustive):

• separate business from pleasure;
• create a plan and sticking to it;
• not letting personal relationships get in the way of professional goals.

He also makes another important point that I particularly emphasise when I’m advising friends who consult me when they’re starting a business venture: 

 

      put it in writing!

 

As Mark says, Contracts and agreements made between friends can be awkward but they are vital.  It may be awkward but the best time to negotiate and agree on the required documents, normally a deed, is right at the beginning while you’re still friends!  It could apply to partnership agreements, shareholder agreements, and  trust deeds.

People and friends don’t start business on the basis they expect to have a falling out.  If something should go wrong, even if the friendship is stretched or falters, at least there’s a roadmap, or a set of pre-agreed rules on how to best deal with the issue, or even end the business relationship.

A quick example.  If two people enter into a business partnership, if there’s no express agreement stating otherwise, in NSW that business relationship is governed by the Partnership Act.

Under that Act, in the absence of a prior agreement, a partner can dissolve the partnership by just giving formal Notice to the other partner(s) and the dissolution of the partnership is effective from the date that Notice is communicated. 

This is quite serious; think about it.  You’re in a partnership business, you’re handed a Notice and it’s over.  No lead in time, no time to work-out any buyout or secure finance, maybe no time to secure the firm’s bank accounts.  There’s great potential for arguments as who’s to get what plant and equipment, or who gets to “keep” which customers or clients.

I’ve seen this happen far too often.  It creates havoc, stress and ultimately costs that could’ve otherwise been avoided.

A typical formal partnership agreement, on the other hand provides a for minimum notice period, be it 3, 6 or even 12 months.  In other words, there’s a sound exit strategy already in place.

Of course friends can go into business together; they should however treat it as such and remember that business is business.

Business franchising can be good, but is it all good?

As a method of getting a foothold into starting, owning and running a business, business format franchising is a well regarded and popular method.  Indeed, on a per capita basis, Australia is said to be the “franchise capital of the world”, even more so than the USA.

There are plenty of good-news stories and guides about the advantages of business format franchising.  A timely article in today’s Sydney Morning Herald, however, highlights what many consider an often neglected downside, for franchisees, in many franchising systems.  Even after allowing for any rights to renew for additional terms, most franchise agreements have a final end date, be it 5, 10 years or even 20 years from the start date, for example.

 

Once the franchise term is at an end, typically there is no right for the franchisee to obtain a new agreement from the franchisor.  Or as the article puts it, if you’re at the end of your franchising contract, the franchisor can do whatever it wants.

Unlike typical non-franchise businesses, towards the end of the franchise contract, the franchisee can find themselves with no rights, no asset... you have nothing at all; there’s no goodwill, there’s nothing.  You pick up your kit bag and go home. 

Metaphorically, and possibly quite literally, once you lock the doors for the last time, the keys are just simply handed back to the franchisor.  No reward, no payment and no return for the goodwill that was probably built up over years of hard work.

On the other hand, if one has an independant, non-connected and successful small business enterprise, the owner usually has a valuable asset to sell; the years’ worth of built up goodwill adding value and hopefully providing a decent return when the business is sold.

It’s not all bad.  If you’re thinking about starting or buying a franchise business, it's vitally important you just need to be aware of these sort of issues.  As always, make an informed decision after obtaining professional advice, particularly from your accountant and your solicitor.