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Trade Practices Compliance Manual

5. Consumer protection

Consumer Protection is covered under Part V of the Trade Practices Act and prohibits various forms of unfair trade practices which are harmful to consumers.

Unfair trade practices are, in general, prohibited even if unintentional.

You must take great care to avoid engaging in these unfair trade practices.

5.1 Misleading or Deceptive Conduct

Misleading or Deceptive Conduct is one of the most litigated provisions of the Trade Practices Act.

Conduct including making statements in trade or commerce, that is misleading or deceptive or is likely to mislead or deceive is prohibited.

Misleading or deceptive statements often arise in promotional or marketing material, which for the University might include advertisements for various courses. They can also be made in discussions or negotiations.

If a representation relates to a future matter or prediction, it is regarded as misleading if there are no reasonable grounds for making the representation.

It is no excuse that the error was unintentional or accidental. Silence can be misleading. If you believe a customer has a misunderstanding it may be misleading if you do not correct that misunderstanding.

Warning Signals of Misleading or Deceptive Conduct

  • Statements made in discussions or contractual negotiations which are not absolutely correct, or, if they relate to future matters, cannot be substantiated.
  • Providing information without ensuring its accuracy.
  • Claiming to have authority you do not or may not have.
  • Providing reports from third parties without appropriate qualification.
  • Failing to provide information knowing that the other party is basing their decisions on an incorrect assumption.

Note

  • If a comparison is made with a competitor's course or product, the comparison must be fair and absolutely accurate in all the circumstances. It is better to invite the customer to make the comparison.
  • Advertising often involves exaggeration but care must be taken to ensure that the average person would not be misled.

DO

  • consider whether by your silence, statements or conduct you may (intentionally or unintentionally) be likely to mislead or deceive.
  • remember intention is irrelevant.
  • ensure all advertisements, marketing or promotional materials are checked before they are used.
  • correct any misunderstanding if you believe the other party has misunderstood.
  • ensure you have the expertise or skills you claim.
  • state clearly any qualifications or assumptions relating to information you provide.
  • remember competitors can use the information you provide to base their action against you.

DO NOT

  • rely on "fine print" to qualify an exaggerated statement or to clarify an ambiguity. The overall impression created by the statement or advertisement is important.
  • use superlatives unless it is self evident exaggeration.
  • provide reports or materials from third parties without an appropriate qualification or disclaimer.

Remedies
There are no fines or penalties imposed for a breach of this provision. However, injunctions to restrain breaches may be sought and damages may be awarded to a person who suffers loss or damage as a result of the breach as well as rectification.

EXAMPLE
"A" University developed a course in international tourism designed to attract students as, after completing the course, they may then be able to obtain subsequent employment in a growth industry. The course brochures stated: "You are sure to get a job after this course!" Not one student who completed the course obtained employment within six months of completion. Industry employers later said the course was poorly designed for its purpose. In this case, unemployed graduates might complain that the University's conduct in preparing the brochures was misleading or deceptive.

5.2 Misleading Conduct in Relation to Employment

The University is prohibited from engaging in misleading conduct in relation to the availability, nature, terms or conditions of employment of staff.

EXAMPLE
The University inserts an advertisement for a vacant position stating that a particular benefit, such as a car, will accrue to the successful applicant. After accepting the position, the successful applicant finds that he or she is given the benefit only if part of his/her salary is sacrificed and not as an additional benefit.