Agency agreements

Please Note: The new fact sheet Agency agreements and the ACMA labelling arrangements explains how the new labelling arrangements will work post the implementation of the new single compliance mark-RCM.

• Background
• Current practice
  • What is an agency agreement?
  • Form of an agreement
  • Where is the agreement held?
  • Which compliance label?
  • Which member of an agency agreement has responsibility for compliance documentation?
  • What happens if there are changes to an item?
  • Who signs a supplier's declaration of conformity?
  • Liabilities of the Australian parties to an agency agreement
• Conclusion

Background

The Australian Communications and Media Authority (the ACMA) has in place compliance arrangements for telecommunications, radiocommunications, electrical and electronic equipment manufactured in, or imported into, Australia. Under these compliance arrangements, requirements are placed on Australian manufacturers or importers to:

• demonstrate the item complies with mandatory standards by holding appropriate compliance documentation; and
• place a label on the item to indicate compliance and to identify the person responsible for the supply of the item to the Australian market.

The compliance arrangements allow Australian manufacturers and importers to delegate or share the compliance responsibilities with an Australian based agent (referred to as local agent). Where a supplier engages the services of a local agent, a written agency agreement should exist between the two parties. The ACMA requires that the compliance arrangements be met by the supplier in the first instance, or by the local agent acting on behalf of the supplier as identified in an agency agreement. Agency agreements aid in establishing a legal operational framework and outline the rights and responsibilities of all parties involved.

As the ACMA has no jurisdiction overseas, all compliance arrangements and the obligation to meet these arrangements apply solely to the supplier - that is:

• the Australian manufacturer;
• the importer; or
• the local agent of the Australian manufacturer or importer.

For this reason the ACMA does not have any interest in any agreement that may exist between a supplier and an overseas manufacturer or overseas product source.

What is an agency agreement?

For the purposes of this information paper, an agency agreement is a written legal agreement between persons or organisations, where one party is acting on behalf of the other as the representative for compliance matters with regards to the ACMA regulatory arrangements.

The following are examples of the relationships that require a written agreement to ensure certainty about who is responsible for compliance matters:

Example 1:

Example 2:

Note: As the ACMA has no jurisdiction overseas, all compliance arrangements and the obligation to meet these arragements apply solely to the supplier.

Suppliers take on considerable responsibility. They are responsible for the compliance of all items bearing their SCN and must ensure that their overseas product source it not inadvertantly using their SCN in an unauthorised manner.

Where an item bears a regulatory compliance label, the party identified on the compliance label must ensure they are aware of all items being imported that are bearing their compliance label.

Form of an agreement

The ACMA does not prescribe the form of an agency agreement. Agency agreements can be stand alone documents of a form agreed to by the parties involved or incorporated into other legal agreements between those parties. Persons signing agency agreements should ensure that the issues addressed in this document have been covered during consideration of the content of the agreement.

Agency agreements can be broad in scope and address some or all of the issues set out below.

Where is the agreement held?

Each party mentioned in an agency agreement should hold a copy of that agreement. Compliance documentation for an item should always contain a copy of any agency agreements that apply to that item.

Whose compliance label?

The compliance label on an item has a unique identifier which identifies the supplier, typically through identification by the SCN, although the respective labelling notices allow for other options. The supplier identified on the compliance label must be the Australian manufacturer, the importer or their agent.

Which member of an agency agreement has responsibility for compliance documentation?

In general practice, the maintenance of compliance records is the responsibility of the party whose unique identifier appears on the compliance label for the item.

For example:

• Where an item is labelled with the agent's unique identifier, and unless the agency agreement arranges otherwise, the agent is responsible for ensuring that the compliance records are accurate, complete and current.
• The case may occur where an Australian manufacturer or importer uses the services of an agent to establish the compliance of items and the Australian manufacturer or importer's unique identifier appears on the label. The Australian manufacturer or importer is likely to be responsible for the contents of the compliance records unless this agency agreement has assigned this responsibility to the agent. In this case agency agreements serve to protect the interests of the Australian manufacturer or importer and also the agent.

In any event, if the location of compliance documentation changes from that location originally notified to the ACMA, the supplier should ensure that the new location for compliance documentation is advised to the ACMA.

What happens if there are changes to an item?

Modifications, alterations, variations and upgrades to an item should all be assessed relative to their applicable compliance arrangements. Suppliers should note that even cosmetic changes that have no effect on the performance of products against requirements of the compliance arrangements should be noted in compliance documentation. The accurate and detailed description of an item is fundamental to the compliance record for that item.

Suppliers are generally dependent upon the overseas manufacturer or overseas product source with regard to the technical specifications of the item imported. Variations to the item are often invisible to a cursory examination yet may make significant impact on the compliance of the item. Agency agreements should address issues such as configuration management and change notification between parties to the agreement.

Who signs the supplier's declaration of conformity?

The Declaration of Conformity (DoC) is a legal document. It is a statement by the signatory that the item meets the requirements of the applicable technical standards. The DoC can only be signed by a responsible person who has been given the authority to sign on behalf of the manufacturer or importer.

Where an agent signs the DoC on behalf of the manufacturer or importer, the agency agreement must provide for such authority. The commitment made by the agent on behalf of the manufacturer or importer should be based on a sound understanding by all parties, of the requirements of the compliance arrangements and consequences of failing to meet those requirements.

Note: In some circumstances, the compliance arrangements allow for the DoC to be signed by an overseas manufacturer.

Liabilities of the Australian parties to an agency agreement

Agency agreements may vary in size and scope but should address the fundamental rights and responsibilities of all parties concerned.

Although agency agreements may address issues associated with responsibility and liabilities the importer, for whom an agent is acting, may not be able to divest all liability to the agent and may be legally responsible for the actions of the agent. This responsibility does not extend to the actions of an agent that are outside the scope of specified authority detailed in an agency agreement. As an example an agency agreement would not make a manufacturer or importer liable for any illegal acts performed by the agent.

Conclusion

An agency agreement should clearly outline the responsibilities for all parties.

The relationship between an agent and an Australian manufacturer, or an agent and an importer, requires confidence in the knowledge, skills and abilities of both parties.

A poorly developed agency agreement could significantly increase the liabilities of all parties. All parties would be well served in seeking independent legal advice when entering into an agency agreement.

Agents should be aware of the responsibilities they take on when becoming a representative of an Australian manufacturer or importer under an agency agreement.

Further information regarding compliance obligations can be found on the ACMA website.