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Latest Case

Providing strategic advice on expansion structures November 16, 2018

Founded in Bondi Beach in 2012, Bailey Nelson has rapidly grown into a global eyewear retailer and service provider with boutiques in Australia, London, Canada and New Zealand. The strong demand for their products and … Continued

Latest News

Maddocks appoints next CEO March 31, 2020

Tuesday 31 March 2020  Maddocks has appointed David Newman as the firm’s next Chief Executive Officer. David is a partner in the firm’s Restructuring & Insolvency team and is based in Melbourne. David brings significant … Continued

Latest Article

COVID-19 – The impact on commercial and retail tenancies April 6, 2020

COVID-19 has, and will continue to have, significant impacts on commercial and retail leases for both landlords and tenants. Proposed Government Mandatory Code The Prime Minister has announced that the National Cabinet will this week … Continued

COVID-19 and premises and forced business closures – how to deal with the process and the aftermath?

Franchising and Consumer Markets Update 2

Earlier this week we provided a list of things franchisors might usefully factor into their COVID-19 planning.

In light of developments in the last few days, a critical and pressing issue for those businesses with a ‘bricks-and-mortar’ presence is:

How do I prepare for, survive and implement a forced shutdown?

and

What if I need to shut down my network in advance of a government directive to do so?

 

1. Understand your legal rights as tenant under leases

Government intervention in the commercial leasing space, to enhance tenant’s rights during the COVID-19 crisis, is being discussed at the moment.

In the meantime, consider the following fundamental issues. Overall, you need to be informed as to your legal rights, but use the commercial leverage at your disposal.

  • What if the landlord closes the premises in the absence of a government directive?

This may comprise a breach of the lease (eg rights to quiet enjoyment). You should check the position under your leases. In any correspondence you should maintain your right to claim damages as a result of any breach (including abatement for the period of the closure).

  • What if the premises are required to close as a matter of law?

Such an action would be outside the control of the landlord and tenant.

Unlike other contracts, leases do not typically contain a force majeure clause that would cover this circumstance. Read further detail on force majeure here.

The forced closure of premises may trigger an express provision in some leases for rent and outgoings abatement if a tenant cannot use or access the premises. However, the rent abatement provision in most leases is only triggered where there is damage or destruction of the premises or centre.

  • Can a tenant terminate a lease and ‘walk away’ on the grounds of frustration?

Typically the answer to this question will be no, but it depends on the circumstances and the terms of the lease.

In the absence of a force majeure provision it is sometime possible to rely on common law frustration. Frustration occurs when, without fault of either party, a contractual obligation becomes incapable of performance because of an unforeseen event that makes it radically different to a degree not contemplated by the parties. If frustrated, the contract is terminated automatically and future obligations are discharged.

Establishing frustration is difficult. It requires more than a change in temporary circumstances making performance more difficult or less profitable. During the SARS epidemic, Hong Kong courts determined that frustration was not justified where the duration of the epidemic was not expected to last for the unexpired term of the lease or, at least, for a long period of that unexpired term.[1] This is likely to be instructive for Australian courts.

 

2. Can you force franchisees to close their businesses in the absence of a Government directive?

Franchisees are independent business owners. A franchisors only rights are as set out in the terms of the franchise agreement or at law. A franchisor may consider that a closure of the network, the absence of a government directive, is justified, necessary and essential on the grounds of public health and safety for example. If a franchisor wishes to explore this option for this reason, or to avoid critical solvency issues, we suggest:

  • Engaging with the network

Franchisors and franchisees must work through these issues together. As all good franchisors will, we recommend engaging with the network and franchisee advisory committees to determine and agree on the best way forward.

Any decision of this nature would only be made if there were no other viable options remaining and after taking into account the implications of the decision on franchisees, individuals and their livelihoods.

  • Understanding your legal rights under the franchise agreement

You should obtain a clear understanding of your rights as franchisor under force majeure clauses or to provide directions to franchisees regarding opening hours and working conditions.

As an option of absolute last resort, franchisors would need to have formed a view as to whether the COVID-19 pandemic triggers a right to immediate termination on the grounds of endangerment of public health and safety.

 

3. If sites are closed, what happens to employees?

Engaged and skilled employees are critical to the long term success of the business once we ‘come out the other side’. How is it appropriate to manage your workforce, or to provide guidance to franchisees as to how to manage their workforces, if there is a voluntary or forced shutdown?

  • Can you stand down employees because of COVID, rather than make them redundant?

The answer is possibly, depending on the circumstances. This is a difficult issue given that the Government’s position is, at least today, that only some businesses present an unacceptable risk to the community if they continue to operate.

Employers can use the stand down provisions in their enterprise agreements (if they have one), in employees’ contracts (if they deal with the issue) or failing that, in the Fair Work Act 2009 (Cth). But doing so might expose you to proceedings in the Fair Work Commission if you stand employees down without considering the key requirements imposed under the Act. They are covered in the Stand Down Questions in our practical guide – here.

If premises are closed, and a business has absolutely no work for employees, the options are relatively limited.

If Government directs closure, that is a stoppage of work for which the employer cannot be held responsible and stand down without pay is likely to be an option.

But an employer deciding to close when not required by Government to do so is a voluntary decision of the employer, no matter how well-founded. Redundancies are more likely then.

Stand down is directed at external causes stopping work, over which the employer has no choice.

  • Do you want to stand down employees or are other options available?

Stand down, along with redundancy, is an option of last resort.

However, if you are not there yet, are there viable alternatives? For example, would employees voluntarily agree to take accrued holidays or move to a part time arrangement? Taking accrued annual leave reduces your liabilities but requires cashflow to pay for it. It does however give employees some income.

If you need guidance on other absence and leave issues please see our frequently updated guide.

The circumstances are changing quickly, unpredictably and often significantly. If we can assist you in this period, please get in touch. In circumstances such as these, a collaborative and commercial approach is vital – we can draw upon experts in various fields to assist you and your business as we move through the changing conditions.

If you have further questions please contact a member of our Consumer Markets and Franchising Team.

Maddocks has produced guides to a range of legal issues raised by the coronavirus (COVID-19). You can access these guides here.

AUTHORS
Jessica Reid | Partner
T
+61 3 9258 3539
E
jessica.reid@maddocks.com.au
Greg Hipwell | Partner
T
+61 3 9258 3354
greg.hipwell@maddocks.com.au

[1] Li Ching Wing v Xuan Yi Xiong [2004] 1 HKLRD 754.

Franchising and Consumer Markets Update 2

Earlier this week we provided a list of things franchisors might usefully factor into their COVID-19 planning.

In light of developments in the last few days, a critical and pressing issue for those businesses with a ‘bricks-and-mortar’ presence is:

How do I prepare for, survive and implement a forced shutdown?

and

What if I need to shut down my network in advance of a government directive to do so?

 

1. Understand your legal rights as tenant under leases

Government intervention in the commercial leasing space, to enhance tenant’s rights during the COVID-19 crisis, is being discussed at the moment.

In the meantime, consider the following fundamental issues. Overall, you need to be informed as to your legal rights, but use the commercial leverage at your disposal.

  • What if the landlord closes the premises in the absence of a government directive?

This may comprise a breach of the lease (eg rights to quiet enjoyment). You should check the position under your leases. In any correspondence you should maintain your right to claim damages as a result of any breach (including abatement for the period of the closure).

  • What if the premises are required to close as a matter of law?

Such an action would be outside the control of the landlord and tenant.

Unlike other contracts, leases do not typically contain a force majeure clause that would cover this circumstance. Read further detail on force majeure here.

The forced closure of premises may trigger an express provision in some leases for rent and outgoings abatement if a tenant cannot use or access the premises. However, the rent abatement provision in most leases is only triggered where there is damage or destruction of the premises or centre.

  • Can a tenant terminate a lease and ‘walk away’ on the grounds of frustration?

Typically the answer to this question will be no, but it depends on the circumstances and the terms of the lease.

In the absence of a force majeure provision it is sometime possible to rely on common law frustration. Frustration occurs when, without fault of either party, a contractual obligation becomes incapable of performance because of an unforeseen event that makes it radically different to a degree not contemplated by the parties. If frustrated, the contract is terminated automatically and future obligations are discharged.

Establishing frustration is difficult. It requires more than a change in temporary circumstances making performance more difficult or less profitable. During the SARS epidemic, Hong Kong courts determined that frustration was not justified where the duration of the epidemic was not expected to last for the unexpired term of the lease or, at least, for a long period of that unexpired term.[1] This is likely to be instructive for Australian courts.

 

2. Can you force franchisees to close their businesses in the absence of a Government directive?

Franchisees are independent business owners. A franchisors only rights are as set out in the terms of the franchise agreement or at law. A franchisor may consider that a closure of the network, the absence of a government directive, is justified, necessary and essential on the grounds of public health and safety for example. If a franchisor wishes to explore this option for this reason, or to avoid critical solvency issues, we suggest:

  • Engaging with the network

Franchisors and franchisees must work through these issues together. As all good franchisors will, we recommend engaging with the network and franchisee advisory committees to determine and agree on the best way forward.

Any decision of this nature would only be made if there were no other viable options remaining and after taking into account the implications of the decision on franchisees, individuals and their livelihoods.

  • Understanding your legal rights under the franchise agreement

You should obtain a clear understanding of your rights as franchisor under force majeure clauses or to provide directions to franchisees regarding opening hours and working conditions.

As an option of absolute last resort, franchisors would need to have formed a view as to whether the COVID-19 pandemic triggers a right to immediate termination on the grounds of endangerment of public health and safety.

 

3. If sites are closed, what happens to employees?

Engaged and skilled employees are critical to the long term success of the business once we ‘come out the other side’. How is it appropriate to manage your workforce, or to provide guidance to franchisees as to how to manage their workforces, if there is a voluntary or forced shutdown?

  • Can you stand down employees because of COVID, rather than make them redundant?

The answer is possibly, depending on the circumstances. This is a difficult issue given that the Government’s position is, at least today, that only some businesses present an unacceptable risk to the community if they continue to operate.

Employers can use the stand down provisions in their enterprise agreements (if they have one), in employees’ contracts (if they deal with the issue) or failing that, in the Fair Work Act 2009 (Cth). But doing so might expose you to proceedings in the Fair Work Commission if you stand employees down without considering the key requirements imposed under the Act. They are covered in the Stand Down Questions in our practical guide – here.

If premises are closed, and a business has absolutely no work for employees, the options are relatively limited.

If Government directs closure, that is a stoppage of work for which the employer cannot be held responsible and stand down without pay is likely to be an option.

But an employer deciding to close when not required by Government to do so is a voluntary decision of the employer, no matter how well-founded. Redundancies are more likely then.

Stand down is directed at external causes stopping work, over which the employer has no choice.

  • Do you want to stand down employees or are other options available?

Stand down, along with redundancy, is an option of last resort.

However, if you are not there yet, are there viable alternatives? For example, would employees voluntarily agree to take accrued holidays or move to a part time arrangement? Taking accrued annual leave reduces your liabilities but requires cashflow to pay for it. It does however give employees some income.

If you need guidance on other absence and leave issues please see our frequently updated guide.

The circumstances are changing quickly, unpredictably and often significantly. If we can assist you in this period, please get in touch. In circumstances such as these, a collaborative and commercial approach is vital – we can draw upon experts in various fields to assist you and your business as we move through the changing conditions.

If you have further questions please contact a member of our Consumer Markets and Franchising Team.

Maddocks has produced guides to a range of legal issues raised by the coronavirus (COVID-19). You can access these guides here.

AUTHORS
Jessica Reid | Partner
T
+61 3 9258 3539
E
jessica.reid@maddocks.com.au
Greg Hipwell | Partner
T
+61 3 9258 3354
greg.hipwell@maddocks.com.au

[1] Li Ching Wing v Xuan Yi Xiong [2004] 1 HKLRD 754.