If your business charges customers a surcharge on transactions, be aware that from 1 September 2017, all businesses that impose payment surcharges on card transactions need to comply with the the Competition and Consumer Amendment (Payment Surcharges) Act 2016 which bans ‘excessive’ payment surcharges.
The new laws cover surcharges on typical card payment methods:
- EFTPOS (debit and prepaid);
- MasterCard (credit, debit and prepaid);
- Visa (credit, debit and prepaid); and
- American Express companion cards (issued through an Australian financial service provider, rather than directly through American Express*).
*Note that the benchmarks will not apply to foreign-issued cards. American Express proprietary cards (issued by American Express directly) are not covered by the ban, nor are BPAY, PayPal, Diners Club cards, UnionPay, cash or cheques.
The purpose of the legislative ban is to stop excessive surcharges – those charged at a price more than the actual cost of accepting that payment method. The cost to a business of accepting each payment method known as the ‘cost of acceptance’ for that method and is determined according to the Reserve Bank of Australia (RBA)’s standards set by the RBA Payments Systems Board.
A payment surcharge is generally considered excessive if it exceeds the ‘cost of acceptance’.
If your cost of acceptance for Visa credit cards is 1%, then you can only charge a maximum of 1%, not 2% or 3%.
The cost of acceptance can include merchant service fees, fees paid for the rental and maintenance of payment card terminals, any other fees incurred in processing card transactions, fraud prevention services, insurance etc but these must be able to be verified by contracts, statements or invoices.
Businesses cannot include any of their own internal costs when calculating their surcharges (for example, labour or electricity costs).
The Australian Competition & Consumer Commission (ACCC) is responsible for enforcing the ban and can:
- issue an infringement notice with penalties of up to $2,160 (individuals, partnerships), $10,800 (body corporate) or $108,000 (listed corporation
- take court action seeking pecuniary penalties of up to $1,164,780, injunctions and other orders.
Receiving such a penalty would be a disastrous hit to small business, so make sure you comply with the payment surcharge changes. Ask your financial institution to let your know what the average cost of accepting cards is and review it annually so you don’t get caught out.
You may also need to update your business’s Terms of Trade.
Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to business law, litigation and dispute resolution or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email firstname.lastname@example.org.
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.