The Competition and Consumer Act 2010 (CCA) and the Australian Consumer Law (ACL) provide a number of obligations on businesses, including not-for-profit businesses, when selling goods and services to consumers with disability or to participants in the National Disability Insurance Scheme. These laws help businesses protect their reputation, as well as protect vulnerable consumers.
It is important that you treat consumers fairly and take particular care when dealing with consumers who may be disadvantaged or vulnerable. It is also important that you understand your competition obligations.
Here are some tips to help you do the right thing:
- Be clear about what products or services you are selling and what you are charging. A service agreement is a contract that protects your business from misunderstandings so make sure you include all the important details, and make sure that consumers understand the contract before they sign it.
- Contracts can be verbal too – so if you promise something you need to deliver it. That applies to anyone you employ making promises about your products and services.
- Any advertising material or statements made by you must be truthful and accurate. This includes any impressions created by what is said or displayed. You cannot rely on small print or disclaimers to justify a misleading overall message.
- Be aware of your obligations when using direct marketing like door-to-door or telemarketing. There are certain days and times when you must not contact consumers and consumers have a 10-day cooling-off period on direct marketing sales.
- You must not demand payment for goods or services the consumer did not request or that you did not supply.
- You must not engage in conduct that is unconscionable. Conduct may be unconscionable if it is particularly harsh or oppressive, and more than just hard commercial bargaining.
- You must not unduly harass or coerce consumers. This includes repetitive unnecessary or excessive contact or communication or by using force (actual or threatened) that restricts another person’s choice or freedom to act. Think about whether a sale to someone who doesn’t fully understand the product or service or feels that they were pushed into buying it is going to enhance your reputation.
- The law creates a number of automatic guarantees when you supply goods or services to a consumer. This includes that products are safe, work correctly and meet promises made about the condition, performance and quality. As a business you must honour these guarantees. There are different remedy obligations, depending on whether a failure to comply with a guarantee is major or minor. Generally, it is illegal for you to say that you do not provide refunds, if the good or service is faulty. As a business you can refuse to provide a refund if the consumer has changed their mind.
- You must sell safe goods and services.
- People delivering services must have the appropriate skills/experience/qualifications.
- Businesses must not collude. This means that you must not enter into contracts, arrangements or understandings with competitors about things such as the price they will charge, the goods or services they will supply, where they will sell or who they will sell to. It is illegal for a business to only offer to supply a good or service (to another business or a consumer) on the condition that the customer also buys goods or services from another specified business.
- Businesses must not misuse their market power. If you have a substantial degree of power in a market you are not allowed to use this power for the purpose of eliminating or substantially damaging a competitor, or to prevent a business from entering into a market.
The ACCC, National Disability Insurance Agency (NDIA) and the NDIS Quality and Safeguards Commission (NDIS Commission) have become aware that there are a number of emerging consumer issues within the disability sector, with some NDIS providers not meeting their consumer protection obligations.
On 22 January 2021, the ACCC, NDIA and the NDIS Commission jointly issued an open co-signed letter to NDIS providers. The letter was issued to remind NDIS providers (both registered and unregistered) of their obligations to consumers under both the ACL and the National Disability Insurance Scheme Code of Conduct (NDIS Code of Conduct).
It is important that you treat consumers fairly and take particular care when dealing with consumers that may be disadvantaged or vulnerable. If you do not comply with the consumer law then you risk serious financial penalties, court ordered corrective actions and reputational costs. Some conduct that is in breach of the consumer law may also lead to action being taken by the NDIS Commission against a provider under the NDIS Code of Conduct.
A contravention of the NDIS Code of Conduct can result in financial penalties or having your registration revoked. If you are an unregistered NDIS provider you also risk these same penalties and being banned from providing disability supports and services to NDIS participants.
You can find further information and guidance on about meeting your obligations under the NDIS Code of Conduct on the NDIS Commission website.