There are resources available to assist you to understand, manage and prevent disputes.
Alternative Dispute Resolution Glossary
The Alternative Dispute Resolution Glossary includes terms associated with Alternative Dispute Resolution (ADR) – the process in which an impartial person assists those in a dispute to resolve the issues between them.
The Ombudsman maintains a list of the country’s premier dispute resolution specialists who can conduct alternative dispute resolution (ADR) processes under our legislation and work with us to help keep small businesses out of the courts. The specialists sign up to an ADR Agreement. The list compiles affordable ADR providers (clearly outlining price structures to ensure cost transparency) and is shared with small businesses who have come to us seeking assistance.
Independent contractors: a guide to preventing and managing disputes
The Independent contractors – a guide to preventing and managing disputes can help to save you time, money and headaches by showing you how to prevent and resolve disputes that can happen in business. The guide also includes information on how to improve your business practices so you can prevent disputes and maintain business relationships when they look like breaking down.
Small Business and the Competition and Consumer Act
The Small Business and the Competition and Consumer Act publication aims to help small businesses understand their rights and obligations under the Competition and Consumer Act and the Australian Consumer Law. These include such things as providing small businesses with the authority to bargain collectively in some circumstances and protecting small companies from misleading and deceptive conduct and anti-competitive behaviour.
Your Guide to Dispute Resolution
Your Guide to Dispute Resolution contains information to help you understand more about managing and resolving disputes, including information about:
- what ADR (alternative dispute resolution) is and the National Principles for Resolving Disputes
- how to identify when you have a dispute
- what you can do to prevent disputes
- ways you can resolve a dispute on your own
- some of the ADR processes you could use to help you resolve a dispute.
Unfair Contract Terms Law
On November 12 2016, a new law came into place to help better protect small businesses from unfair terms in ‘Standard Form Contracts’.
Under the new Unfair Contract Terms Law – administered by the Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC) – contract terms presented to a small business may be struck out if they’re considered by a court or tribunal to unfairly benefit one party over the other.
The law applies to a standard form contract entered into or renewed on or after 12 November 2016, where:
- it is for the supply of goods or services or the sale or grant of an interest in land;
- at least one of the parties is a small business (employs less than 20 people, including casual employees employed on a regular and systematic basis); and
- the upfront price payable under the contract is no more than $300 000 or $1 million if the contract is for more than 12 months.
If a contract was varied on or after 12 November 2016, the law will apply to the varied terms.
Only a court or tribunal can determine whether a contract is unfair, however there are a range of services available to you if you think a term in a contract is unfair or if you are in a dispute over a contract term. Please view the ‘Dispute Resolution Services’ tab to find the contact details of the relevant service in your state or territory.
Tips to improve contracting and avoid disputes
- Know who you are dealing with. Look behind the business name, check references and meet with them. Ensure the person you are dealing with has the authority to enter into and amend contracts.
- Communicate goals and expectations. Make sure your employees know and understand the goals and values of your business and what is expected of them. Make sure they are aware of the scope of their authority to enter into or amend contracts on your behalf.
- Put agreed work in writing at the start. Your agreement should outline the goods/services to be provided, any quality and quantity specifications, the price or basis for calculating charges, payment terms, timeframes, delivery terms, etc.
- Agree dispute resolution processes. An agreed process, included in your written agreement, will allow for disputes to be dealt with quickly and cost effectively, and you will be more likely to preserve the business relationship.
- Get advice before you sign. Don’t rely on what the other party says, a contract is legally binding and you should get professional advice before you sign. We suggest asking your lawyer to colour-code the rights and responsibilities of each party.
- Estimate the costs. Provide a quote. If you charge for services on a time basis make sure you keep a work sheet detailing the time spent and a description of the work done.
- Document changes. Write down any agreed changes, such as quantity or timeframes, and attach to the original agreement. At a minimum email the agreed changes to the other party.
- Manage the contract. Once signed, don’t put the contract in the bottom draw and forget about it. Check it regularly to make sure you and the other party are meeting the requirements. If you have any concerns, raise them early.
- Get help if you need it. Some jobs are complex or involve large sums of money. Project management for these jobs can be complicated and sometimes risky. If you don’t have strong expertise in project management, consider hiring an expert.
- Communicate early and often. Communication must be clear, transparent and frequent to make sure everyone is on the same page. If issues arise address them straight away, don’t leave it to develop into something more serious.