Bowra & O’Dea Pty Ltd

The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from Bowra & O’Dea Pty Ltd (Bowra & O’Dea) in relation to:

• representations made about the price of its funeral and/or cremation services that likely contravened section 48(1) of the Australian Consumer Law (ACL); and

• its use of unfair contract terms within the meaning of section 23 and 24 of the ACL.

Bowra & O’Dea operates 12 funeral homes in and around Perth, providing cremation and funeral services, and sells caskets, urns and coffins.

Between at least 10 September 2020 to 14 December 2021, Bowra & O’Dea advertised funeral and cremation services on its website. In particular, Bowra & O'Dea made the following statements on its website:

• for its ‘Premium Single Service’: ‘Our Professional Service Fee* is $5,280’, and in smaller text below, ‘Excludes additional costs*’;

• for its ‘Premium Dual Service’: ‘Our Professional Service Fee* is $5,940’, and in smaller text below, ‘Excludes additional costs*’;

• for its ‘Essential Service’: ‘Our Essential Service fee* is $3,950…’, and in smaller text below, ‘Excludes additional costs*’; and

• for its ‘Essential Goodbye Service’: ‘Our Essential Goodbye Service fee* is $3,840…’, and in smaller text below, ‘Excludes additional costs*’,

       (together, the Price Representations).

Each of the Price Representations referred to above with respect to the amount, being the price for the supply of the service, if paid, constituted only a part of the price payable for the supply of the respective service as it did not include certain costs which were unavoidable, including cremation permit fees, cemetery fees and the price for a coffin or casket. Further, Bowra & O’Dea did not specify, in a prominent way and as a single figure, or at all, the single price for each of those services which included all unavoidable costs.

In addition, from at least 19 October 2020 to 27 October 2021, Bowra & O’Dea entered into standard form contracts with consumers containing terms that permitted Bowra & O’Dea to vary the price payable under the contract without seeking the consumer’s consent (and with no right for the consumer to terminate the contract in light of any variation to the price payable), and to charge consumers who did not pay invoices on time an interest rate of 10% per annum on the unpaid amount as well as a late payment fee of $352 (the Terms of Concern).

Bowra & O’Dea has admitted by making the Price Representations it contravened section 48(1) of the ACL. Bowra & O’Dea also acknowledges the Terms of Concern are unfair within the meaning of section 23 and 24 of the ACL.

To address the ACCC’s concerns, Bowra & O’Dea has paid two infringement notices and provided the ACCC with a section 87B undertaking that for a period of 3 years it will:

• on its website and in any other media, including brochures and invoices, specify, in a prominent way and as a single figure, the price for the supply of each of its funeral and cremation services, being a price which includes all of the quantifiable amounts that it will charge for those services, including, where applicable:
  • taxes and other statutory charges, such as GST:
  • unavoidable costs that Bowra & O'Dea will pass on to consumers, such as cremation fees: and
  • the price for goods to be supplied as part of a package of goods and services, such as a coffin or urn.

• where charges are not quantifiable because they depend on consumer choice, Bowra & O’Dea will clearly inform consumers of that fact;

• not enforce or rely on any of the Terms of Concern for any current contracts and not include the Terms of Concern, or any term that has the same effect as the Terms of Concern (including charging consumers who did not pay invoices on time an interest rate on the unpaid amount in addition to a late payment fee) in future contracts with consumers;
• establish, implement and maintain an Australian Consumer Law compliance program, including a requirement to provide to the ACCC documents constituting the compliance program upon request; and

• provide the ACCC with an annual report of its compliance with the undertaking.