Small Business Regulation (Retail Sector) Review

The Small Business Regulation Review was announced in 2016 by the Victorian Government to examine how regulation is impacting the State’s small businesses across a number of sectors of the Victorian economy.

In July 2016, a review of the Retail Sector commenced with four reform areas being identified for further examination.  The VSBC provided resources to a cross-department team focussing on making retail leases fairer and easier to understand.

In May 2017, following initial co-design work, the Government released the Retail Sector Draft Action Statement for further consultation.

The VSBC contributed to the development of the three proposed reform areas identified in the Draft Action Statement, being:

  • Timely information for tenants
  • Introduce a time limit for returning bonds and bank guarantees
  • Develop and distribute a free standard retail lease.

The VSBC also contributed to a rapid policy design workshop on seeking to improve access to information for small businesses.

Review of the Australian Small Business and Family Enterprise Ombudsman

The VSBC prepared a submission for the review of the Australian Small Business and Family Enterprise Ombudsman (ASBFEO).  The submission supported the role of the ASBFEO and pointed out examples of the VSBC working cooperatively with it to assist small business through it advocacy and assistance functions. The recommendations of the review are expected to be released in 2017-18.

Review of the Farm Debt Mediation Act 1994 (NSW)

In March 2017, the Rural Assistance Authority (RAA) in New South Wales released a Consultation Paper concerning a review of the Farm Debt Mediation Act 1994 (NSW).  According to the paper, the purpose of the review is to ensure the NSW legislation “…continues to deliver on its original intent and contributes to the development of a nationally consistent approach to (farm debt mediation).”

The review is of relevance to the VSBC as the Victorian Farm Debt Mediation Act 2011 is based on the NSW legislation.  Under the Victorian legislation, the VSBC has a mediation and certificate function.

The RAA liaised with the VSBC, and Agriculture Victoria, as part of its review of the NSW legislation. The VSBC provided its input and will continue to monitor this NSW review.

Review of the Owner Drivers and Forestry Contractors Act 2005

In November 2016, the Victorian Minister for Industrial Relations announced a review of the Owner Drivers and Forestry Contractors Act 2005 (ODFC Act) (LINK).  Under the ODFC Act and Regulations, the VSBC has an alternative dispute resolution (ADR) function.

Formal Terms of Reference were announced for the review, which was managed by Industrial Relations Victoria.  The purpose of the review is to consider changes that have occurred within the Victorian transport and forestry industries and at the national level since the introduction of the ODFC Act and Regulations in 2005. The Review was to explore whether any changes could be made to the ODFC Act and Regulations to improve the position of owner drivers and forestry contractors, while ensuring a competitive and fair operating environment for small businesses in Victoria.

The VSBC provided input into the review. The VSBC will continue to monitor the review, as it has an ADR role under the legislation.

Tip Truck Industry

The review of the Owner Drivers and Forestry Contractors Act 2005 (ODFC Act) announced by the Minister for Industrial Relations referred to the Victorian Inquiry into Labour Hire Industry and Insecure Work. This Inquiry heard evidence on a range of issues regarding rates of pay, certainty of working hours, and occupational health and safety for tip truck owner drivers. The review of the ODFC Act was to look at the Inquiry’s recommendations, including a code of practice for the tip truck industry and the requirement on hirers to provide an applicable rates and costs schedule for the industry.

Consistent with the review, the Transport Industry Council (TIC) under the ODFC Act requested the assistance of the VSBC to develop a code of practice and model rate and cost schedule for the tip truck industry. For this purpose, the TIC requested the VSBC appoint a mediator to assist in the development of these respective instruments. This role will continue in 2017-18.

Essential Safety Measures

On 1 May 2015, the Victorian Civil and Administrative Tribunal handed down an advisory opinion in the matter of Small Business Commissioner: reference for advisory opinion (Building and Property) [2015] VCAT 478.

The Advisory Opinion found that:

  • A landlord must bear the cost of compliance with essential safety measure obligations, and cannot pass these costs on to the tenant.
  • For some obligations, the landlord may agree with the tenant for the tenant to meet the requirements, but at the landlord’s expense.
  • More generally, the landlord cannot pass on to the tenant as outgoings the cost of complying with certain repair and maintenance obligations under the Retail Leases Act 2003.

During 2016-17, the VSBC commenced monitoring the number of enquiries relating to the effect and applicability of the Advisory Opinion, and received 16 enquiries.  Most of these were handled at the preliminary assistance stage by referring parties to the Advisory Opinion and information on the VSBC website.  Four dispute applications were received which related to Essential Safety Measures.

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