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Goodyear Tyres Pty Ltd (Goodyear Tyres) is an importer, manufacturer and distributor of tyres.
During 2007 and 2008, Goodyear Tyres made a number of representations regarding the environmental benefits of its new Eagle LS2000 range of tyres, to the effect that:
the Eagle LS2000 is a revolutionary environmentally-friendly tyre;
the Eagle LS2000 is designed for minimal environmental impact;
the production process for the Eagle LS2000 results in reduced carbon dioxide emissions;
the Eagle LS2000 aims to have a major environmental impact by reducing carbon dioxide emissions during its production process; and
Goodyear’s BioTRED technology, as used in the Eagle LS2000, increases the life of the Eagle LS2000, improves fuel economy and reduces the impact on the environment.
The ACCC was concerned that by making the representations, Goodyear Tyres was misleading consumers about the environmental benefits of the Eagle LS2000 tyre in breach of sections 52 and 53(c) of the Trade Practices Act 1974.
Goodyear Tyres has acknowledged the environmental benefits claimed could not be substantiated.
Goodyear Tyres has co-operated with the ACCC and has withdrawn all material containing the representations. The ACCC has accepted a court enforceable undertaking from Goodyear Tyres that it will:
refrain from making the representations in relation to the Eagle LS2000 tyre;
at its own expense, cause a corrective notice to be published in a major metropolitan newspaper in each capital city, on its Australian website, and in each Goodyear Autocare Centre;
provide a partial refund to customers who purchased the Eagle LS2000 tyre between 1 February 2007 and 31 March 2008 and who relied on the unsubstantiated representations; and
implement a Trade Practice Compliance Program.
Gotalk Ltd, owner of Gotalk Communications Pty Ltd, an Australian telecommunications carrier, admits that telemarketers operating on its behalf were likely to have engaged in conduct between 2004 and November 2007 which, in the view of the ACCC, misled and harassed consumers.
Gotalk has undertaken to compensate any consumers who transferred their services to it as a result of the conduct and suffered loss as a result of that transfer.
It will write to all of its current customers who were obtained through telemarketing, and advertise in a number of newspapers to reach former customers. It will also display a copy of the advertisement on its website, www.gotalk.com.au.
As part of Gotalk’s normal terms and conditions, customers obtained through telemarketing are able to terminate their contracts without penalty.
Examples of the misrepresentations that were made to consumers include:
they were being contacted on behalf of their current telecommunications carrier;
Gotalk Communications was an owner, subsidiary, agent or reseller of their current carrier;
they were required to change their carrier to Gotalk Communications;
incorrect statements as to the price and/or effect of the terms and conditions of Gotalk Communications' services; and
changing to Gotalk Communications would not compromise any benefit for bundling multiple services with one carrier.
The telemarketers also contacted some consumers with great frequency, despite the consumers making it known that they did not wish to acquire the services nor receive further calls from Gotalk Communications, and continued to contact some consumers until they agreed to change their carrier to Gotalk Communications.
Gotalk admits that, if proven, these incidents would constitute contraventions of the Trade Practices Act 1974 for which it would be liable.
Gotalk has terminated its contracts with the telemarketing companies involved in the conduct, and has undertaken to monitor carefully the behaviour of any telemarketers it uses in future.
It will implement a compliance program which will include training in TPA matters for all staff involved in customer contact, protection for whistleblowers, and a complaints handling program that meets the Australian Standard.
It will keep complete recordings of all calls that result in a transfer to Gotalk, and record an equal number of conversations per month which do not result in a transfer. Gotalk staff will audit a significant number of randomly selected calls and report their findings to Gotalk’s General Counsel.
All relevant documents will be made available to the ACCC on request.
As part of the settlement of proceedings NSD 314 of 2009 ACCC v Cardcall Pty Limited gotalk Limited provided a Variation to the s87B Undertaking given by it on 18 June 2008.
Undertaking to be extended by 12 months, Cardcall to undertaking live monitoring of calls to its call centre number 1300 663 570 number.
Cardcall to provide a report each month to the Chief Executive of gotalk on conduct of call centre operators in terms of compliance with Part V of the Act, accuracy and clarity of product information provided to consumers and action taken on complaints received.
Advertising templates to be reviewed by legal practitioner and any material changes proposed to receive advice on compliance of advertising material with the TPA.
Training of staff involved in preparation of Cardcall advertising material to impart specific awareness of the TPA and the orders made by the Federal Court on 22 May 2009.
On 10 June 2008, the ACCC accepted the undertaking of Kamthon Wangudom, a director of Toll Holdings Ltd ('Toll') and/or its related bodies corporate.
Under the undertaking, Kamthon Wangudom agrees to sell down any interest he has in Asciano Limited and thereafter maintain his independence from Asciano.
In addition, Kamthon Wangudom must immediately resign from all positions within Toll, and take no further part in the company if he ceases to meet the requisite standards of independence.
The undertaking is associated with the fifth variation, accepted by the ACCC on 18 April 2007, to the undertaking given by Toll to the ACCC on 11 March 2006.
The fifth variation relates to Toll's restructure of its group businesses by way of scheme of arrangement to create a new listed entity and trust, Asciano.
The ACCC's decision to consent to the fifth variation is given effect through the following documents:
a variation to Toll's undertakings
a new undertaking from Asciano Ltd, and
new undertakings from the directors of Toll and Asciano.
A copy of those documents can be viewed on the ACCC's website.