MTANSW: Interpretation of Australian Consumer Law (ACL) and Consumer Claims

The Australian Consumer Law (ACL) by definition is:

MTA NSW, via our Divisional Managers, engage with many types of businesses and/or consumers on a daily basis in what seems to be a constant battle and ‘tug of war’ in defining who’s right or wrong.

The ever-present frustration is that consumers presume the fundamental right to seeking compensation, with the reason being access to information available on forums or the internet in general.

Like most people that refer to diagnosis via ‘Dr Google’, we have people making uninformed and misguided decisions of what their entitled to in the event something fails or goes wrong with a product.

The difficulty that the automotive industry finds itself is when the regulators cannot give a common sense approach to what is the interpretation of a very complex law (Australian Consumer Law), commonly referred to as the ACL.

The NSW Civil and Administrative Tribunal (NCAT) Committee representing its Members in the courts of NSW / ACT which MTA NSW had interaction with recently, admit to having difficulty of what, in their opinion, is a complex law and rely not only on the regulator - NSW Fair Trading - but also the interpretation of independent reports from experts in the automotive industry to make most of these decisions. This is an indication that we have a system that is not working correctly and we are enforcing one law across everything that is open to interpretation. Cars, motorcycles, trucks, caravans and/or any mechanical component is definitely not the same as whitegoods, televisions, mobile phones and/or clothing.

In saying this, consumers are not always wrong either as our industry has a lot to answer for in regards to a lack of knowledge or systems and processes in the basics of correct complaints handling and customer service. This surely means we need to look at our industry getting up to speed with other industries of how consumer complaints are handled and resolved.

So how do we handle the ever-growing demand on NCAT and ACAT (in the ACT) which are the consumer claims courts for NSW and ACT that ultimately make the final decisions regarding consumer complaints.  Leaving the business paying for the complaint is not always fair. The issue is the law has many interpretations and breaches can occur, not for what is generally the initial problem, but could be as a result of the handling or lack of systems or understanding. In some cases, both parties can be penalised. If a breach is considered and established it then overrides and can give reason to why the consumer is rewarded for damages.

Essentially, it’s becoming an industry issue as the common complaint we have with the consumer claims courts system is the lack of understanding of some of the complicated issues relating to the automotive industry whether they are vehicles, motorcycles, trucks, tractors etc. by the NCAT or ACAT members with non-industry based knowledge. Those members are there to interpret the law and the breaches of the law - not to diagnose the failure of a vehicle or a technical issue.

‘Grey’ Area
The law is not exactly black or white in most cases and the interpretation can be very grey. n some cases, the vehicle manufacturer or suppliers can get away with these decisions. The retailer is then held to account. Another issue we have observed in our dealings is the attention to detail of information, or lack of, relating to basics of documentation not filled in correctly or in some cases, simply poor training of staff.  Short cuts are costing businesses. Often managers also get it wrong as the product or service provided is not always out of warranty or not covered under warranty – the issue can be broader than that.

Mediation or conciliation is not easy but is part of the complaint handling process. Open communication when there are issues whether consumers are right or wrong is often how the situation is dealt with or handled initially – the key is communication.

Sometimes alternative resolutions can be achieved by simply listening or even offering solutions to assist via goodwill and doesn’t always mean there is an out of pocket cost.  It might be giving the customer a repair or supply of goods at your cost. They are still paying for it and agree not to escalate the issue but it’s not costing you to resolve it either. Goodwill can often be an amicable solution and is always looked upon favorably by the courts if it is shown that a business wants to resolve and assist their customer.

MTA NSW have worked closely with Members on many different consumer complaints and with NSW Fair Trading and/or NCAT or ACAT consumer claims over the years for our Members.   We need to get a lot of businesses to start looking at their processes from a compliance viewpoint and then to their customer service practices and how consumers are handled when things go wrong. This may also involve basic staff training in how to handle difficult situations.

The ACL is here to stay and it is a case of better understanding your rights and the consumers’ rights in these situations first. Your Association will look at how we can support the industry to make changes and adjust to these laws in order to reduce the burden and in some cases, an unnecessary expense applied on your business. It might be a case that consumers need to pay more for products or services to sustain your business but the best advice is to ensure that any complaints are handled professionally, in a timely manner and resolved where possible. Advice can be sourced from the NSW Fair Trading, Access Canberra or MTA NSW.

Where can I get guidance on the ACL?

National guidance on aspects of the ACL has been developed and is updated by the Australian Competition and Consumer Commission (ACCC), the State and Territory consumer protection agencies, and, in relation to financial services, the Australian Securities and Investments Commission (ASIC).

Visit: http://consumerlaw.gov.au/business-and-the-acl/

For advice in your State or Territory please contact the following bodies:

NSW - NSW Fair Trading - P: 13 32 20 or W: www.fairtrading.nsw.gov.au

ACT - Access Canberra - P: 02 6207 3000 or W: www.ors.act.gov.au

FOR FURTHER INFORMATION
Please contact MTA NSW via P: 02 9016 9000 or E: mail@mtansw.com.au

Source: 1.Australian Consumer Law 2019, Resources and Guides, Australian Consumer Law, viewed 23 July 2019, http://consumerlaw.gov.au/business-and-the-acl/