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ACL Personal Services Personal services An industry guide to the Australian Consumer Law This guide was developed by: – Australian Capital Territory Office of Regulatory Services – Australian Competition and Consumer Commission – Australian Securities and Investments Commission Introduction – Consumer Affairs and Fair Trading Tasmania – Consumer Affairs Victoria – New South Wales Fair Trading – Northern Territory Consumer Affairs – Office of Consumer and Business Affairs South Australia – Queensland Office of Fair Trading The Australian Consumer Law (ACL) is Australia’s State and territory consumer – Western Australia Department of Commerce, Consumer Protection national consumer law, replacing previous consumer protection agencies protection laws in the Commonwealth, state and territories. The ACL applies at the Commonwealth level Australian Capital Territory: Office of Regulatory Services and in each state and territory. ors.act.gov.au This guide provides information on the ACL for New South Wales: Fair Trading businesses that provide personal services; for example, fairtrading.nsw.gov.au hairdressing and beauty services, furniture removal, photography, or carpet and curtain cleaning. Northern Territory: Consumer Affairs consumeraffairs.nt.gov.au It covers key aspects of the law such as sales tactics, deposits and refunds, focusing on issues where: Queensland: Office of Fair Trading fairtrading.qld.gov.au > industry bodies have requested more detailed guidance for business South Australia: Consumer and B usiness Services ocba.sa.gov.au > consumers frequently report problems to national, state and territory consumer protection agencies. Tasmania: Consumer Affairs and Fair Trading Guides to unfair contract terms for specific industries consumer.tas.gov.au can also be found at consumerlaw.gov.au. Victoria: Consumer Affairs Victoria This guide gives general information and examples – not consumer.vic.gov.au legal advice or a definitive list of situations where the ACL applies. You should not rely on this guide for Western Australia: Department of Commerce complete information on all your obligations under commerce.wa.gov.au the ACL. © Commonwealth of Australia 2013 Other ACL guides and information ISBN 978-0-642-74917-8 This guide supplements the ACL guides for business and This publication is available for your use under a Creative Commons By Attribution legal practitioners, available from consumerlaw.gov.au: 3.0 Australia licence, with the exception of the Australian Consumer Law logo, > Consumer guarantees photographs, images, signatures and where otherwise stated. The full licence terms are available from http://creativecommons.org/licenses/by/3.0/au/legalcode. > Sales practices Use of Commonwealth material under a Creative Commons By Attribution 3.0 Australia > Avoiding unfair business practices licence requires you to attribute the work (but not in any way that suggests that the Commonwealth endorses you or your use of the work). > A guide to unfair contract terms law Material used ‘as supplied’ > Compliance and enforcement: how regulators enforce the Australian Consumer Law Provided you have not modified or transformed the material in any way, then the Commonwealth prefers the following attribution: > Product safety. Source: Commonwealth of Australia For more information, view: Derivative material Australian Consumer Law website If you have modified or transformed the material, or derived new material in any way, consumerlaw.gov.au then the Commonwealth prefers the following attribution: Australian Competition & Consumer Commission Based on the Commonwealth of Australia material (ACCC) Inquiries regarding this licence and any other use of this document are welcome at: accc.gov.au Manager Communications The Treasury Langton Crescent Parkes ACT 2600 Email: [email protected] Personal services Page 1 Consumer guarantees on services Terminology Under the ACL, you must meet the consumer Services not covered by consumer guarantees include: guarantees of providing services: For the purposes of this guide: > services bought before 1 January 2011. These A supplier is anyone – including a trader, a retailer or > with due care and skill are covered by statutory implied conditions and a service provider – who, in trade or commerce, sells You guarantee to use an acceptable level of skill or warranties under the Trade Practices Act 1974 products or services to a consumer. technical knowledge when providing the services, and state and territory legislation in force before 1 and take all necessary care to avoid loss or damage January 2011 Trade or commerce means in the course of a supplier’s or manufacturer’s business or professional activity, > which are fit for any specified purpose > services costing more than $40,000, which are including a not-for-profit business or activity. You guarantee that services will be reasonably fit usually for commercial use – for example, fit-out of for any purpose specified by the consumer; and any a beauty salon A consumer is a person who buys any of the following: product resulting from the services (for example, spectacles, hair extensions or photographs) are > transportation or storage of goods for the > any type of products or services costing up to also fit for that purpose. You also guarantee that consumer’s business, trade, profession $40,000 (or any other amount set by the ACL services, and any resulting products, are of a or occupation. in future) – for example, a haircut or wedding standard expected to achieve the desired results photography that the consumer made known to you Consumer guarantees cannot be excluded, even by agreement. > a vehicle or trailer used mainly to transport goods > within a reasonable time (when no time is set) on public roads. The cost of the vehicle or trailer is You guarantee to supply the service within a irrelevant reasonable time. What is ‘reasonable’ will depend > products or services costing more than $40,000, on the nature of the services. which are normally used for personal, domestic or household purposes. The consumer guarantees apply to services sold in trade or commerce, that: A person is not a consumer if they buy products to: > were purchased on or after 1 January 2011 > on-sell or resupply > cost up to $40,000 (or any other amount set by the > use, as part of a business, to: ACL in future), regardless of purpose or use » manufacture or produce something else > cost more than $40,000, and are normally acquired (for example, as an ingredient) for personal, domestic or household purposes – for example, dental veneers or furniture restoration. » repair or otherwise use on other goods or fixtures. Major failure and minor failure refer to failures to comply with consumer guarantees. The ACL does not use the term ‘minor’; it only makes reference to a failure that is ‘major’ and ‘not major’. However, throughout this guide the term ‘minor failure’ is used for simplicity and will apply to circumstances where a failure will not be major. A representation is a statement or claim. Page 2 Personal services Page 3 Common issues Major vs minor failures When there is a major failure, the consumer can: Group buying and daily deals High-pressure sales tactics When a service fails to meet a consumer guarantee, > cancel the services and get a refund for any Group buying websites – also referred to by some Complaints and disputes often arise after salespeople your obligations depend on whether the failure is major unconsumed services, or people as ‘daily deals’ or ‘deal of the day’ – sell use high-pressure tactics to induce a consumer to enter or minor. vouchers or coupons for products and services with big into a sales agreement they do not want or do not > keep the contract and get compensation for the discounts. In some cases, the vouchers are offered on fully understand. A major failure with services is when: difference in value between the service delivered and the condition that a minimum number of buyers take Conduct such as pressuring a consumer to sign a what they paid for. up the deal. > a reasonable consumer would not have acquired the contract, or taking advantage of a vulnerable person, services if they had known the nature and extent of The consumer gets to choose, not the supplier. Common issues encountered by consumers include can amount to unconscionable conduct by a business. the problem. For example, a reasonable consumer non-supply and incomplete supply of services, and You must not act unconscionably when selling or would not pay to have acrylic nails attached if they When the problem is minor, the consumer cannot cancel difficulty in booking services and redeeming vouchers. knew the nails would fall off within an hour and demand a refund immediately. They must give you supplying products and services to a consumer. If you offer these deals you need to be aware of the an opportunity to fix the problem: Generally, ‘unconscionable conduct’ is conduct so > the services are substantially unfit for their normal potential demands and risks. You should consider the unreasonable it goes against good conscience. What purpose and cannot easily be made fit, within a > free of charge, and potential demand created by advertising your services is considered unconscionable conduct depends on the reasonable time. For example, a carpet-cleaning through group buying websites and whether your > within a reasonable time. circumstances, which can include: service changes the colour of the consumer’s carpet business can deliver those services on time and in a in some places reasonable manner. For example, you may want to limit If you refuse or take too long to fix the problem, the > the relative strengths of the bargaining positions of the deal offered so it doesn’t restrict your ability to > the consumer told the supplier they wanted the consumer can get someone else to fix the problem and the supplier and the consumer service for a specific purpose but the services, and serve both regular and new customers. ask you to pay reasonable costs, or cancel the service and > whether, as a result of conduct engaged in by the any resulting product, do not achieve that purpose get a refund.
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