Ozsale pays heavy price for breach of Australian consumer law

on Thursday, 28 July 2016. Online retailer and breaches of Australian Consumer Law

Ozsale pays heavy price for breach of Australian consumer law

The ACCC has demonstrated once again that it will focus on breaches of the Australian law by online retailers as much as bricks and mortar stores. Online retailer Ozsale which owns the websites Ozsale.com. OO.com.au, DealsDirect.com.au, amongst others, has this week paid a penalty of almost $11,000 following investigation by the ACCC into claims made on its websites in relation to the consumer rights of its customers.

Ozsale made statements in the websites' terms and conditions which had the potential to mislead customers about their rights under the Australian Consumer law . The Australian Consumer Law is very clear on the rights of consumers in the event of a major failure in a purchased item - Ozsale's terms and conditions , the ACCC claimed, attempted to mislead consumers about what those rights are.

Ozsale stated in its terms " Depending on the fault, you may be offered the choice of refund, repair or replacement of the item (subject to availability) ". The ACCC was concerned that this statement represented that the choice of remedies was always at the discretion of Ozsale , rather than of the consumer , when that is not the case.

The ACCC is particularly concerned about statements of this nature because a consumer would not necessarily know his or her true rights and could be misled into believing that the statement did in fact reflect the law. In addition, as the ACCC has emphasised, businesses can't exclude or modify those rights - through terms and conditions or otherwise.

Ozsale has provided a court enforceable undertaking in which it has accepted that the terms and conditions on its website were likely to give rise to concerns under the Australian Consumer Law.

As well as paying the fine, Ozsales has been required, in the form of a court enforcebale undertaking to take further steps to ensure that such breaches of the Consumer law are avoided in future :-

  • it will publish a single refunds and remedies policy to be used across all online sales platforms which ACCURATELY REFLECTS CONSUMERS' AUSTRALIAN CONSUMER LAW RIGHTS
  • put into place a compliance program, including training and a complaints handling procedure
  • implement a mystery shopper program to provide ongoing monitoring of representations made by customer service staff when dealing with Australian Consumer Law issues.

Had Ozsale taken steps to understand the Australian Consumer Law prior to publishing its terms and conditions on the site , it could have avoided the no doubt significant costs involved in the ACCC investigation . In addition to the fine itself and the cost of the compliance steps outlined above, the publicity associated with an ACCC investigation can not be welcomed by any business looking to build its reputation and establish a loyal customer base.

Counsel on Demand lawyers can help your business understand its legal obligations to its customers whether you trade online, as a bricks and mortar business or as a combination of the two . If you have any questions about your business's obligations to its customers under the Australian Consumer Law, please call Polly Harding for an obligation free confidential chat. She can be reached by mobile on 0401 816290 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

 

 

 

 

 

 

 

 

Pay during stand down caused by severe weather.

on Tuesday, 07 June 2016.

Pay during stand down caused by severe weather.

With the recent horrendous weather conditions, all along Australia's east coast, employers will no doubt be asking what rights they and their employees have if there is no useful work for them to do because of extreme weather conditions.

An employer can send employees home if there is no useful work for them to do because of

  • equipment break down;
  • natural disaster (including floods, bushfires and tropical cyclones);
  • industrial action.

This is known as a stand down but it is only a stand down if the reason for the stand down was out of the employer's control. So if the equipment has broken down because it hasn't been serviced or hasn't been repaired, it would be more difficult for the employer to argue that it was out of his or her hands.

Employees certainly can't be stood down without pay just because there is not enough work.

The employer is not under an obligation to pay an employee during a stand down. However, the employer can be flexible in this situation so that an employee can be paid. For example, the employer may consider letting employees take the time as leave or to work at another location such as from home or at another work site.

Spam Act breach by oneofthebest.com

on Wednesday, 01 June 2016.

ACMA, the regulator responsible for enforcing the Spam Act - the legislation which governs the sending of commercial emails in Australia, has imposed a heavy fine on the owners of the domain oneofthebest.com .

oneofthebest.com's owners, J and L Mainwaring Pty Limited (" J and L" ) received fines of $21,600 for breaching two of the three fundamental requirements of the Spam Act following an investigation by ACMA into its email marketing activities.

There are 3 main pillars set out in the Spam Act for sending commercial emails in Australia - broadly, these are - CONSENT, SENDER ID and UNSUBSCRIBE. These rules are the fundamental building blocks for sending emails in Australia and no business or other entity (small or otherwise) should consider any email marketing campaign (however small) without working out exactly how those rules apply to each and every email which it sends.

In the case of oneofthebest, the emails sent were what is known as third party emails. In other words, oneofthebest was sending emails on behalf of other busineses. Usually, this is done when a business has its own list and 'sells' that list to a third party or when it agrees to send emails to the people on the list on behalf of the third party. It is not clear exactly which route J and L were going down but what is clear is that they were sending emails on the authority of another entity.

Sending a third party email means that the sender of the email (in this case J and L) must include on the email adequate information about the business whose products or services are advertised in the email (what the legislation refers to as the authoriser) so that the email recipient can, if it wishes contact that business. This is usually referred to as SENDER ID. As the ACMA's acting chairman said " Businesses must remember that both parties - the sender and the authoriser of the message - are responsible for ensuring the messages are compliant with the Spam Act ".

In addition to the failure to comply with the sender ID obligations, J and L were also found to have breached another fundamental pillar of the Spam Act, CONSENT. In order to send third party emails, a business must have clear consent from each recipient on its list to receive those third party emails. The obligation is on the sender of the email (in this case J and L) to show that consent (specifically to those third party emails) has been obtained. This obligation doesn't just apply to third party emails (it is a fundamental obligation before sending ANY commercial email) but the requirements in the case of consents to third party emails do contain additional levels of complexity.

It is a while since ACMA has published details of any investigations and associated fines so it is interesting to note that the regulator clearly wishes to make it clear that it has its eye on the ball and is ready to respond to public complaints about potentially infringing emails.

If you have concerns about any email marketing campaign, third party or otherwise, Counsel on Demand has significant experience of the Spam Act and its obligations. Call Polly on 0401 816290.