Act defines breach
21 July, 2017, 12:00 am
What is a breach?
A BREACH is considered the act of failing to perform one’s duty to others as required under a contract or a statute.
Under the Commerce Commission Act 2010 (CCA2010), businesses and other entities are required to comply to certain obligations individually or as a group to avoid being in violation or breach.
Breaches under CCA2010
In discussing breaches under CCA2010, disclosed below are some common ones for noting:
1. Failure to notify the commission of the proposal to enter, amend or vary an access agreement at least 30 days before entering, amending or varying the agreement.
This is in relation to an access agreement on the use of infrastructure or services in a regulated industry.
For example, if company X wants to engage in an agreement with company Y, the owner of an infrastructure in an industry declared to be regulated under the CCA2010, company X must notify the commission in writing at least 30 days before entering into the agreement.
2. Failure to supply goods or services in accordance with an authorisation by the commission.
All goods and services declared to be under price control by the CCA2010 must only be supplied once the costs are approved by the commission and the selling prices declared by an authorisation of the commission.
For example, supplier D cannot supply LPG gas 12kg for $35/cylinder in Nasinu as it exceeds the authorised price of $33.78/cylinder.
3. Overcharging on price controlled goods and services
No person or body corporate shall:
a. sell or buy or agree or offer to sell or buy goods at a greater price than the maximum price fixed and declared by an order made under the provisions of subsection (1) of section 44.
For example, the price of Brunswick Tuna Flakes in N/Oil 142g should not exceed $1.50 in Raiwaqa.
If a seller and a buyer agree on a price higher than $1.50, both would be liable for legal action.
This includes the actual sale of the item.
b. provide or agree to provide or obtain or agree to obtain services at a greater price than such maximum price;
c. in the course of business apply different methods of fixing or ascertaining the prices of goods or services with intent to evade the provisions of this Act.
For example, if a trader in Raiwaqa applied an extra $0.10 per 142g tin of Brunswick Tuna Flakes in N/Oil, he would be deemed to be in breach of this particular provision.
d. except with the written permission of the commission sell or agree to sell any goods or provide or offer to provide any service subject to a condition requiring the buying of any other goods or the provisions of any other services.
4. Failure to mark and display the maximum prices of goods and services declared to be under price control for the information of the public. For example, a trader selling Brunswick Tuna Flakes 142g must display and mark the maximum price on either individual tins or on the shelf. Failure to do so is a breach of the Act.
5. Failure to keep records of costing including stock of goods and services (tenancy agreements and receipts) declared to be under price control.
For example, a trader can be liable for prosecution if he fails to keep a tax invoice of a price control item for a period up to three years from the date it was generated.
6. Overcharging on rent: Any landlord within Fiji should not increase the rent of his residential property to an amount applicable on the same as at 2nd March, 2007.
7. Offences against consumers: These are offences under Part 7 of the CCA2010 such as: misleading and deceptive conduct, unconscionable conduct, false or misleading representation, false or misleading advertisement, bait advertising, accepting payment and failing to supply as ordered, hoarding, not putting pull dates, collective tendering, referral selling, adulteration of products etc.
These are breaches where the intention to offend will have to be proven to the court.
For example, a trader intending to mislead consumers on the performance of a product he is offering to sell may be deemed to be in breach of unconscionable conduct if the product does not meet the level of performance being portrayed.
8. Failure to furnish information or documents required in a notice issued in writing under Section 119 of the CCA2019.
For example, if a trader was issued a notice in writing to furnish to the commission two tax invoices required by such a notice, within a time frame but failure to provide such information then he can be liable for prosecution.
9. Obstructing an officer of the Commission would be deemed to be a breach of Section 128 of the Act if a person obstructs the officer from performing his or her duties.
The commission does not only intend to correct traders who fail to comply but it also ensures to educate the public and traders on the requirements of CCA2010.
This is done through presentations in workshops, pamphlets, brochures, media talk-backs, weekly articles, periodicals -etc. The commission also has a Facebook page which complaints and concerns can be raised.
The commission conducts routine price surveillance, investigations, complaints processing, search and seizure operations, market monitoring and daily trade observations.
Action against offenders
The commission in penalising offenders of the CCA2010, adopts various means such as:
* Warning in writing (including infringement notices and letters);
* Spot fines; or
Advice from the commission
The commission urges people intending to engage in trade to seek awareness from it on matters relating to the CCA2010.
Also members of the public must be informed on goods and services, legal trade practices in order to readily detect possible breaches.
Remember, you are all participants in the effort to curb non-compliance.
* Next Week: The ‘Dos’ and ‘Don’ts’
For more information/details on Fijian Commerce Commission and Commerce Commission Decree 2010, visit our website on http://www.commcomm.gov.fj or join us on our Facebook page at https://www.facebook.com/commcomm.gov.fj