200 CFE points
Legal Symposium
Sunday 19 May, 2024
7.00 am - 4.00 pm
Located in the Foyer
9.00 am - 9.15 am
Opening and Welcome
Tanya Robertson, Interim Chief Executive Officer, Franchise Council of Australia
Location: Plenary
9.15 am - 9.55 am
Keynote Speaker
Mick Keogh, Deputy Chair, Australian Competition & Consumer Commission
Location: Plenary
9.55 am - 11.00 am
The Mercedes-Benz litigation – unconscionable conduct, good faith and managing major changes in a franchise system
Greg Hipwell, Partner, Maddocks | Gina Wilson, Partner, Maddocks | Tamasin Jonker, Barrister, Alinea Chambers | Christopher Marsh, Special Council, Maddocks

The Mercedes-Benz decision handed down last year was highly anticipated within the franchising sector and automotive industry. In this session, 4 lawyers who were heavily involved in developing and implementing Mercedes Benz’s change to an agency model and managing the resulting legal proceedings on behalf of Mercedes-Benz Australia/Pacific and its global parent, will discuss the Federal Court’s key findings and lessons learned in implementing a major change in a franchise network.

Location: Plenary

11.00 - 11.25 am
Morning Tea
Served in the Mezzanine Exhibition Foyer
11.25 am - 12.05 pm
Concurrent 1: Managing Corporate Risk in a Changing World
Bronwyn Furse, Partner, Thomson Geer Lawyers | Alexandra Coleman, Non-Executive Director, T Matters

Location: Plenary

In-house lawyers face challenges in assisting their Boards and Executives to manage risks in their corporate environment.

The panel will present on managing the corporate risks in this changing world by addressing and navigating rapidly developing technology, understanding social license, managing vendor risk and responding to climate change challenges, with regard to regulator areas of focus.

11.25 am - 12.05 pm
Concurrent 1: Exploring Franchisor Financing & Franchise Offer Design Options for Franchisee Recruitment
Simone Pentis, Founder, Advantage Partners Lawyers | Raynia Theodore, Principal, MST Lawyers | Darryn McAuliffe, Chief Executive Officer, FRANdata & The Australian Franchise Registry | Karan Saxena, Franchise Manager, ANZ Bank

Location: Meeting Room M1

This session is dedicated to a exploration of Franchisor and Bank financing options, manage-to-buy arrangements, and the structuring of franchise models and offers to assist in franchise recruitment. Our panel of experienced franchising specialist lawyers and financing advisors will provide a nuanced understanding of these avenues, offering insights drawn from practical experience. We'll delve into the merits and considerations associated with each option, providing you with a balanced perspective. Gain practical strategies to navigate this critical aspect of franchising.

11.25 am - 12.05 pm
Concurrent 1: Leasing Update
Seva Surmei, Principal, DMAW Lawyers | Evelyn Marcou, Principal, MST Lawyers

Location: Meeting Room M3

This session will consider practical issues related to leasing and licensing and the interplay with franchising such as:
• practical issues arising from the Code requirements relating to leasing, such as the requirement to disclose head lease documents with the disclosure document and how this becomes a problem if the head lease is not finalised at the time of disclosure;
• issues related to disclosure under retail and commercial leasing legislation across each state and territory.
• issues with Step in Rights/Rights of Entry Deeds;
• aligning the renewal of leases with the renewal of franchise agreements and how to deal with timing issues when a franchisee may have not given notice of renewal before the landlord must renew the head lease.
• practical issues related to security arrangements (such as franchisees providing bank guarantees to a head-lessor).

12.10 pm - 12.50 pm
Concurrent 2: Franchisor WHS Obligations in Franchised Businesses
Ceri Clark, General Counsel & Company Secretary, Retail Zoo | Joe Murphy, Director, Cowell Clarke

Location: Plenary

It is well known that franchisees must manage health and safety risks within their own business, however it may be a surprise to some franchisors that they also owe a duty to workers in franchised businesses which can lead to penalties (including against franchisor directors) if not met.

This presentation will summarise current WHS laws in the context of franchise networks, and those cases where a franchisor has been held liable for a health and safety incident in a franchisee business, before providing practical suggestions franchisors can take to manage this risk in their own system. Attendees will be provided an example clause which may be included in franchise agreements or policy documents.

12.10 pm - 12.50 pm
Concurrent 2: Personal Property Securities and Insolvency
Sean O’Donnell, Partner, HWL Ebsworth Lawyers | Moria Carter, Principal, BRI Ferrier | Matt Mullen, Principal, Grant Thornton

Location: Meeting Room M1

PPSA Update - What’s changed or is changing? Cases, Proposed legislative amendments and tips on PPSA
This session will cover:
• Recent case determinations about what constitutes a security interest, how to determine priorities and how to correct late lodgements that vest under section 267.

• The Commonwealth governments proposed amendments adopting the Whittaker report recommendations and the impact for parties seeking to secure interests; and
• Practical tips on types of PPSA clauses to insert, how to avoid problems with registration and dealing with enforcement or vesting claims.

Comments re insolvency aspect:
steps to take, claw backs, things to put into franchise agreements – practical things franchisors can do before and after a franchisee goes into liquidation.

12.10 pm - 12.50 pm
Concurrent 2: Franchise Agreement drafting Masterclass
Maija Kerry, Partner, Norton Rose Fulbright | Derek Sutherland, Consulting Principal, Keypoint Law

Location: Meeting Room M3

In this session, we will focus on franchise agreements, looking at some best practice tips for dealing with key issues in the franchise agreement.
We will discuss:
• Best practice drafting for unfair contract terms compliance – how our franchisor clients have approached the updating of their franchise agreements and any further amendments required to reflect ACCC guidance and recent cases

• How to balance the need for flexibility in the future, for example in relation to technology solutions, against compliance with unfair contract terms legislation

• Whether any contractual obligations should be introduced dealing with the recently slated legislation to protect against unfair practices

• Restraint clauses- Do restraint clauses in franchise agreements need to be updated to reflect recent case law? Will the ACCC’s review of non-compete clauses in an employment context impact on franchise agreements?

• The increasing trend towards simplification and transparency in franchise agreements.
This will be a practical session and we will provide detailed example clauses to demonstrate the best practice tips discussed.

12.50 pm - 1.35 pm
Mezzanine Exhibition Foyer
1.35 pm - 2.15 pm
Concurrent 3: Modern Slavery and ESG
Megan Jongebloed, Chair, Cowell Clarke | Emma Peters, Director, Cowell Clarke

Location: Plenary

ESG: current state of play, what is to come and legal pitfalls - greenwashing, greenhushing, whitewashing, how advisors can navigate an increasingly complex state of play.

Navigating ESG is becoming more complex, with drivers from regulation to reputation. Where is the space heading and what should you be doing to evolve in this fast moving space. We will explore key areas for focus and how to take purposeful action.

1.35 pm - 2.15 pm
Concurrent 3: International franchising – The heart of the Deal
Nick Rimington, Partner, Norton Rose Fulbright | Maryclare Cassisi, Legal Counsel, Concept Eight | Larry Weinberg, Partner, Cassels, Brock & Blackwell | Katrina Hammon, Partner, Wynn Williams

Location: Meeting Room M1

An expert panel of local and international lawyers will explore the intricacies of inbound and outbound international franchise deals. We will hear from senior private practice and in-house lawyers on models for international expansion, deal points for master franchise agreements, comparative regulatory considerations, and negotiating techniques.

1.35 pm - 2.15 pm
Concurrent 3: Online sales and Digital
Derek Sutherland, Consulting Principal, Keypoint Law | Bronwyn Furse, Partner, Thomson Geer Lawyers

Location: Metting Room M3

This session will cover:
Some of the key legal issues with controlling online sales and digital marketing
• Some insights from the Auto sector about limiting use of third party websites
• How to properly complete your disclosure document including Item 12
• Controls over websites, centralised booking and ordering platforms
• Practical tips on types of clauses to insert

2.20 pm - 3.00 pm
Concurrent 4: AI regulation / Surveillance laws
Bronwyn Furse, Partner, Thomson Geer Lawyers

Location: Plenary

2.20 pm - 3.00 pm
Concurrent 4: Good Faith Life Cycle of a Franchise
Megan Jongebloed, Chair, Cowell Clarke | Karina McDougall, Associate Director, Cowell Clarke

Location: Meeting Room M1

• Good Faith – a practical application: This session will be a practical look at how the obligation of good faith applies during the lifecycle of a franchise and will focus on:
• Finding the faith - practical compliance during pre-contractual dealings and the contract stage.
• Keeping the faith – ongoing compliance during the franchise relationship.
• Losing the faith – managing disputes and the end of the franchise relationship

2.20 pm - 3.00 pm
Concurrent 4: Restraint Clauses – State of the Law in AU
Greg Hipwell, Partner, Maddocks | Christopher Marsh, Special Counsel, Maddocks | Joshua Green, Lawyer, Maddocks

Location: Meeting Room M3

Franchisors often overlook the importance of restraint clauses for the protection of the franchise network and business, and fail to consider the precise scope and extent of the restrictions that may be required and the ability to enforce the restrictions. In this session, we will provide an update on two recent NSW decisions which consider the operation of restraint clauses in a franchising context, as well as the drafting and enforcing restraint of trade clauses, the application of the Franchise Code to the scope of restraints and disclosure requirements.

3.00 pm - 3.20 pm
Afternoon Tea
Mezzanine Exhibition Foyer
3.20 pm - 4.20 pm
Topic Case Update
Jane Garber-Rosenzweig (Facilitator) | Alicia Hill, Principal, Sladen Legal

Location: Plenary

This session will cover 4 cases determined over the past 12 months relevant for franchising and those in the franchise sector.
It will explain the events that occurred, the relevant issues in respect of franchising operation and the court finding on those issues.
(It will not cover the Mercedes Benz case which is scheduled as a stand alone session in the Legal Symposium programme.)

4.20 pm - 5.20 pm
Franchising Code of Conduct Review
Dr Michael Schaper, Independent reviewer of the Franchising Code | Stephen Giles, Partner, Norton Rose Fulbright | Derek Sutherland, Consulting Principal, Keypoint Law
Location: Plenary