Mable Technologies Pty Ltd

The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from Mable Technologies Pty Ltd ACN 162 890 379 (Mable) in relation to terms in its standard form Terms of Use that are likely to be unfair contract terms within the meaning of sections 23 and 24 of the Australian Consumer Law (ACL), Schedule 2 of the Competition and Consumer Act 2010 (Cth) (CCA).

Mable provides an online platform that connects people looking for care support (Clients) with independent support workers (Support Workers) (together, Members). Support services provided through Mable include social support, domestic support, nursing services and allied health services. Approximately half of Mable’s Clients are participants of the National Disability Insurance Scheme (NDIS).

From 9 November 2023 to 22 August 2024 Mable entered into standard form Terms of Use with Members, which contained terms that provided for:

(a) deemed acceptance of service logs of the support services provided by Support Workers to Clients, when Clients do not review and accept the service log within 24 hours of its submission by the Support Worker, with no contractual right to opt-out or dispute the invoice following deemed acceptance of the service log. This triggered the processing of payments without the express approval by the Client of what services were provided to them,

(b) unilateral variation of fees by Mable at any time as notified on Mable’s platform, without also providing a reasonable period of notice to Members prior to the change of fees taking effect,

(c) unilateral amendments to the Terms of Use by Mable, without also providing a reasonable period of notice to Members prior to the amendments taking effect,

(d) Mable to receive a minimum penalty fee of $5,000 from Clients and Support Workers for avoiding fees that would otherwise be payable to Mable. Support Workers are liable to pay the fee if they provide, or seek to provide, support services to a Client outside the Mable platform within 12 months of the Support Worker's introduction to that Client or within 12 months of the Support Worker providing services to that Client through the Mable platform (the specified avoidance conduct),

(e) Mable to receive a minimum penalty fee of $5,000 from Members for encouraging or soliciting the specified avoidance conduct or failing to immediately notify Mable of attempts to engage in the specified avoidance conduct,

(f) Mable's liability to be excluded for any claim or loss incurred by a Member related to the Member’s use of, access to, or transactions involving Mable’s platform (regardless of the basis of the claim or loss) and Mable’s liability to be otherwise limited to a refund of the amounts paid by the Member in the 12 months preceding when the liability arose, without also providing an equivalent limitation of liability for Members,

(g) Members to indemnify Mable against all third-party claims and liabilities incurred by Mable in any way in connection with the Member’s use of Mable’s platform and services and the provision of support services (regardless of the basis of the claim or loss),

(h) Mable to rely on the Terms of Use to refuse any claim brought by a Member against Mable in breach of Mable’s liability exclusion and limitation and indemnity clauses at (f) and (g) above, and

(i) Mable to require Members to pay costs reasonably incurred by Mable in enforcing its rights under the Terms of Use,

(collectively, the Terms of Concern).

The Terms of Concern were in effect from 9 November 2023 until 22 August 2024.

Mable admits that the Terms of Concern are unfair within the meaning of sections 23 and 24 of the ACL. 

To address the ACCC’s concerns, Mable provided the ACCC with a section 87B undertaking that:

(a) it will not enter into Terms of Use with Members that contain any of the Terms of Concern or terms to that effect, or enforce or rely on any of the Terms of Concern,

(b) it will clearly and prominently communicate the material terms of its Terms of Use to Clients and Support Workers prior to and during the sign up process on its website, and

(c) it will establish and maintain for three years an ACL compliance program.

The ACCC considers Mable’s conduct potentially resulted in disadvantage to Clients, many of whom are NDIS participants, elderly persons and/or persons with disabilities, as well as to Support Workers, many of whom are sole traders or small businesses.

Mable has cooperated with and responded to the ACCC’s enquiries regarding the conduct. As a result of the ACCC’s investigation, Mable has amended its website and Terms of Use to amend or remove the Terms of Concern.

Mable’s conduct falls under ACCC enforcement priorities relating to unfair contract terms in consumer and small business contracts and improving ACL compliance by NDIS providers.