Since mid 2020 businesses in NSW have been required to “take reasonable steps to make customers aware of the substance and effect of terms or conditions that may substantially prejudice the interests of consumers”.
Based on my recent dealings with a courier firm Sendle, it would seem that these regulatory obligations are being ignored and businesses are not changing their behaviour.
Has anyone observed any changes in business behaviour and or any attempts to comply?
Is anyone aware of any steps taken by NSW Department of Fair trading to ensure businesses meet these new obligations?
The legislation is a welcome reform as it requires businesses to be upfront about limitations of liability and other contractual terms which are prejudicial to consumers and are often buried in the fine print - hopefully the Department of Fair Trading will start to enforce it actively
It is interesting to know if the requirements apply to Sendle, which website appears to be based in US that uses local couriers (fastway and couriersplease) to do their deliveries. It appears they are a courier/package delivery platform like foods delivery platforms to the catering industry or booking platforms to the accommodation industry.
Most of these multinationals often claim that they sit outside the jurisdictions they operate…for labour, taxes etc…and expect they Sendle would argue that they don’t have a presence in NSW even though they market local deliveries.
might have difficulties getting such platforms to meet their legislative obligations.
It would be great of they did, then consumer would know how much these platforms charge for the service they provide…and a consumer can then determine if it is in the best interests of all to have dealings with them.
An interesting question about Sendle - there is an Aust site and an Aust entity which is the local service provider - so my understanding is that Sendle Aust would be subject to the legislation.
I did a quick check of some other couriers and none of them seemed to be compliant with the enhanced disclosure obligations required by Fair Trading in NSW.
Hopefully Fair Trading takes steps to ensure the industry complies as consumers are highly dependent on couriers during the pandemic so failure to comply with these standards is particularly egregious.
The site runs from their US website. The telltale is the /en-au/ in the URL.
They are a US company. It appears that they are registered for GST (as they have an ABN) and use a NSW address for GST purposes. It is no different to many other platforms which are based offshore but don’t ‘technically’ have an Australian business for tax or liability purposes.
A sad part of our ‘regulatory’ environment is that it seems to start with a litmus test of ‘what damages have been incurred as a result of a business not adhering to applicable laws or codes?’ An expected response is no damages, no problem so it can be ignored, possibly forever. Proactivity is not in the game.
Each complaint requires specifics, and complaints are often rejected by under-resourced ‘regulatory agencies’ by their scope that is sometimes so narrowly defined it omits any but the most egregious violations affecting masses.
While the companies may or may not be complying, would you inform what the impact was on yourself?
I trust you have already made or are penning a well documented complaint to them, and are just seeking corroboration from others similarly affected?
Thinking a bit more in bed last night, Sendle might not have an obligation to report under these regulatory obligations.
The example being that if it buys courier services in bulk and then onsells these services, it would in effect not be getting any commission or referral arrangements where the business receives a financial incentive from another supplier. It is a little like someone buying a product and then onselling it with their own margins on top of their purchase price (this is used for REPs onselling the NBN and some Telcos who utilise other’s networks). This is a standard model for traditional retailers.
They also need to satisfy the definition of being an intermediary…
who, under an arrangement that provides for a financial incentive, arranges contracts for the supply of goods or services as an agent or refers consumers to another supplier of goods or services,
If they have a contractual arrangement of another courier to provide their services (which appears to be the case from information online), they may not be classed as an intermediary but as the principal which uses contractors for delivery of its own work (the Telcos are an example of this type of model).
Reading the legislation and supporting information, it appears that the fees and commission has been established to potentially address the increasing number of comparison based websites (and drop box websites) that compare products from a range of companies…and redirect consumers to make purchased through their website with these companies. These comparison websites in the past haven’t been transparent in relation to fees/commissions which consumer may be charged directly or indirectly by their website referrals.
If when ordering a service through them, if you have the option to say select Fastway or CouriersPlease at checkout, then they would be an intermediary as they are onselling these courier services and would be potentially acting as an agent. This doesn’t seem to be the case as you have indicated that your tax invoice was issued by Sendle and not from the couriers themselves.
Edit: You can ask NSW Fair trading the question, but they possibly won’t know the business structure and relationship Sendle has with its contracted couriers. They possibly wil ask you to ask Sendle the question. Sendle possibly won’t give detailed information as it could be commercially sensitive information…which may be of interest to Sendle’s competitors or to the courier industry.
Which raises a question, you seem to have a fascination for Sendle. Are you a courier or in the freight industry?
State/Territory Fair Trading bodies are largely window dressing now for ACL matters. They conduct a light approach to problems and if stronger action is required it falls to the ACCC to take the action or it requires the affected consumer to take the monetary risk of action in Civil and Administrative Tribunals or Courts that fill that role eg Magistrate Courts in some Jurisdictions.
As we know here the ACCC largely ignores single complaints and is opaque as to when a threshold is reached for them to seriously consider further steps. A consumer unless there is substantial monetary merit to a claim is left to consider what may have been rather than front the cost of starting a Tribunal action. So any business if it fails in the small cost matters to provide adequate service is pretty much immune from any consequence other than losing a customer (if retained as a business by another business this may not even be an effect).
“…I trust you have already made or are penning a well documented complaint to them, and are just seeking corroboration from others similarly affected?..”
Yes - letter being prepared for Fair Trading. I am interested in the perspectives of others as i am surprised at non compliance and i am curious about how a regulator might deal with it.
Thanks - interesting point about ACCC v State Fair Trading bodies.
In this case the reform is state based so NSW Fair Trading would hopefully be proactive.
I think it is a great reform which is long overdue so hopefully it leads to some better outcomes for consumers in the long term.
As outlined above, you assume Sendle is what is defined as an intermediary type business under the legislation. Whether it is or not (information indicates it is possibly not) isn’t substantiated and their requirements to report under the regulatory reforms is based on opinion.
Since you are if an opinion they are an intermediary and thus are mandated to provide the required information, you have a right to lodge a complaint with the NSW authority which administers the laws. The authority may chose to investigate. They may determine if Sendle needs to comply with the reporting requirements as you think is the case. It is possible they determine the contrary view that Sendle isn’t an intermediary as defined by the legislation and therefore aren’t obliged to report such information.
If you do lodge a complaint and get a response, please update this thread.
“,…you assume Sendle is what is defined as an intermediary type business under the legislation…”
For clarification, this business would be subject to the reform as a supplier of services to a NSW consumer (s47A). Nothing too controversial about that. .
The point of interest for me is how Fair Trading (FT) deals with non compliance - does FT reach out to industry groups to educate and publicise the reforms? does FT stay stumm because it is underresourced? does FT wait for cases to filter through the courts? Does FT identify a few non compliant businesses and launch an action?
As i mentioned in one of the other posts, this is a great reform which is quite far reaching and will hopefully lead to better outcomes for consumers.
You keep stating you beliefe there is non-compliance, but do not state what the non-compliance is.
All businesses are required to meet the reporting requirements. There are two components. The first being a business is to spell out terms and conditions which affect (prejudice) the consumer (4 categories need to be covered are listed). Sendle has done this clearly in the T&Cs and from a layperson’s perspective, appear to meet the reporting requirements.
The second component is clear information on fees and commissions for intermediaries. There is no information on the Sendle website or T&Cs on this. This is the only part of the reporting requirements which Sendle may or may not comply, as outlined above, but one wouod need to establish Sendle is an intermediary as defined by legislation.
If you have had a dispute with Sendle and it wasn’t resolved in your favour, this doesn’t mean there is non-compliance with the reporting requirements. It may however mean they could be in breach of the ACL or their own T&Cs.
Thanks for your comments on legal interpretation - i have access to legal advice on the scope of the laws.
Just to clarify i am seeking feedback from the forum on non legal matters namely: "…Has anyone observed any changes in business behaviour and or any attempts to comply? Is anyone aware of any steps taken by NSW Department of Fair trading to ensure businesses meet these new obligations?.."
Understandably these are NSW matters only which wont be relevant to most of the country.
It sounds like your feedback on those matters is No and No?
Yet I noted that the Legislation pins some of it’s penalties on the ACL. Thus the oversight body would seem to be the ACCC. To give effect to national ACL laws each State and Territory made the ACCC the lead body and in each State the FT bodies became somewhat like an extension of the ACCC.
I’m not sure how that has changed the operation when it comes to a State matter, but this seems to be a matter more about unfair Contract terms and again this largely has been a power referred to the ACCC to take action on. As a State body this would then seem to me to be FT relying on Federal Law and acting as a ACCC intermediary.
It is also worth noting that in the legislation hierarchy that exists in Australia (Commonwealth, State and Local Governments having the power to make laws), where there is an inconsistency between a state and commonwealth law, the later prevails. It is hoped that during drafting, comparison between laws is checked such that inconsistencies don’t exist.
