Plumbing industry FAQs about unsolicited sales
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The Commissioner for Consumer Protection has issued a warning and advice to WA's plumbing industry.
- Commissioner’s Blog: Upselling could land plumbers in hot water
- Video and FAQs: https://youtu.be/4VUu0Dl2ytk
It comes after a large number of complaints and enquiries over the last six months, which indicate some plumbers / plumbing service providers are attending properties to carry out small jobs and then upselling expensive extra services, which may not be required.
- The Commissioner for Consumer Protection looks at non-compliance with the Australian Consumer Law (ACL) when it is in the public interest to do so, for example to prevent consumer detriment or keep the community safe.
- When looking at the requirements of the ACL, it can be overlaid with other legislation. The Commissioner is not inclined to pursue a trader for non-compliance with the ACL if:
- there were any industry regulations that outline a tradesperson’s duty of care to carry out emergency repairs at a property for health and safety reasons; or
- the work was being carried out to meet a landlord’s requirements under WA tenancy law to fix urgent repairs or restore essential services within 24 hours.
- There is a distinct difference between upselling and carrying out emergency or urgent repair work, which is wanted and needed.
- If a consumer calls a service provider out to “fix” an issue, such as a broken hot water system, this is not an unsolicited agreement as the plumber was called out to do the job, not to quote.
- If while at a home, a tradesperson upsells or finds an extra problem and quotes to fix that, this may be an unsolicited consumer agreement where the upsell or extra work is initiated by the tradesperson.
- If a consumer asks a tradesperson to quote for work while at their home to carry out an unrelated job, this is an unsolicited agreement and a 10 business day cooling-off period applies.
Frequently Asked Questions (FAQs)
Why is Consumer Protection reminding plumbers of their ACL obligations?
The aim of the recent warning is to prevent consumers, particularly those who are vulnerable, from being taken advantage of by potentially unscrupulous traders.
If you are doing the right thing by your customers and providing services with due care and skill for a fair price you should not be worried.
However, it is clear that there are some people within the WA plumbing industry offering to attend a home to quote, offering incentives like no call-out fee or free quotes, only to use the interaction as an opportunity to convince a consumer to spend large amounts of money on products or services, with a big question mark hanging over whether this level of work is actually needed.
Consumers in their home environment tend to be more susceptible to high pressure tactics and can make a potentially wrong decision about a purchase as a result. The Australian Consumer Law (ACL) aims to protect consumers by providing a cooling off period for unsolicited sales.
What if I am called out to a simple job but it relates to something else, such as a faulty hot water system or a blocked drain?
When a consumer contacts you, it is recommended that you ascertain what they are calling you out for. This should help to prevent uncertainty around what the job is and allow you to operate in a way that meets your legal obligations to your customer.
Just because a simple job turns out to be more complex and costly does not mean that the job becomes an unsolicited consumer agreement. However, if you are called out to carry out one job and diagnose or notice a separate and different issue while there, you should provide a quote for the additional services and allow the consumer to make an informed decision about whether to proceed. Under the Australian Consumer Law the consumer has the right to a 10 business day cooling-off period for an unsolicited sale where the total cost of the agreement is more than $100. (Goods up to the value of $500 may be supplied, however associated services cannot be carried out and payment cannot be taken during the 10 business days).
If after you provide a quote, the consumer subsequently makes a request for you to return to carry out a job you quoted on, this would likely be classed as a separate interaction that is a solicited agreement.
What if the repairs are urgent for health and safety reasons, such as a major water leak or sewage overflow issue?
Consumer Protection understands there may times when plumbers (and other tradespeople such as electricians) need to carry out work, which is required to ensure a property is safe or to prevent health issues.
There is a distinct difference between upselling and urgent necessary repair work for health and safety reasons. A common sense approach is applied when assessing the latter type of consumer and trader interaction. The Commissioner recognises the need for a plumber or a gas fitter who discovers a gas leak during the course of their plumbing work to deal with that issue. This would be an absolute defence for not complying with the unsolicited consumer agreement provisions of the Australian Consumer Law (ACL).
With emergency plumbing work*, the plumber would also submit a certificate of compliance to the Plumbers Licensing Board after completing the job and this would support any challenge by Consumer Protection, which as previously stated would be unlikely in these circumstances.
While service-providers are not exempt from the provisions of the ACL, if responsibility is placed on a plumber or electrician by any other law, regulation or standard to make a property safe or deal with a health hazard before leaving, this would of course be taken into consideration.
*emergency plumbing work means plumbing work that must be carried out without delay — (a) to prevent the waste or contamination of water supplied by a water supply system; or (b) to prevent the entry into a sewer or apparatus for the treatment of sewerage of any matter that is likely to hinder or prevent the proper functioning of the system or unit; or (c) to prevent the escape of foul air or offensive or infectious matter from a sewer or apparatus for the treatment of sewerage; or (d) to avert or rectify a dangerous situation; or (e) to ensure that a dwelling is supplied with water, including hot water. Source: Plumbers Licensing and Plumbing Standards Regulations 2000 (www.legislation.wa.gov.au).
No more same-day hot water changeovers?
If a consumer calls you out to fix their hot water system because their shower is running cold, this is a solicited agreement to carry out a job.
However, if a consumer calls you out to quote only, you should not convince them to let you carry out the job immediately. They have the right to a cooling-off period to think over the quote you have proposed and cancel any written agreement, if they choose, within 10 business-days.
If after getting quotes a consumer contacts you to ask you to come and carry out a job, this is a solicited agreement.
What if a consumer doesn’t want to wait for 10 business days?
A consumer cannot sign any waiver to give up their Australian Consumer Law rights.
If you have been asked to carry out a job and you do so with due care and skill for a fair price, it is highly unlikely the consumer would lodge a complaint with Consumer Protection.
Issues arise when a consumer is convinced to sign a contract for something they didn’t intend to buy, without being given the opportunity to get some additional information or quotes to compare price and value and to confirm that the diagnosis of the plumbing problem is correct.
What if I want to supply a hot water system and take payment at the end of the 10 business day cooling-off period?
If you were invited to quote ONLY you cannot supply goods with a total value of more than $500 and no services can be carried out within the 10 business day cooling-off period.
If a customer invited you to install a new hot water system, for example because their old one is broken, this is a solicited agreement and no cooling-off period is required.
Do quotes have to contain details of cooling-off periods?
The short answer is no. But if a quote is going to be signed at the time it is provided and become a sales negotiation and further to that a binding contract, then the consumer’s cancellation rights need to be outlined. The customer must also get a written copy of the agreement after signing.
You can find further information in our unsolicited selling fact sheet.
Example of what’s NOT OK (and has been happening)
A vulnerable consumer calls a plumber out to look at a problem with something, such as dripping taps in their bathroom.
While at the house, the plumber, who the consumer respects as an expert, convinces the consumer to have a significant amount of extra work carried out, such as major pipework or installation of a replacement hot water system.
The consumer is not without hot water, does not have burst pipes and only wanted the dripping taps fixed. Products were installed and work was carried without the consumer having the opportunity to think over the price and value of what has been offered or to seek diagnosis or quotes from other plumbers.
Later a family member of the consumer gets another plumber in for an opinion, only to discover the work was not necessarily required. The second plumber advises that the amount charged is not competitive and that if the work was genuinely needed it could have been carried out at a much lower price.
This is the type of scenario where Consumer Protection would look at potential breaches of the Australian Consumer Law (ACL) and the overall conduct of the plumber.
It is important to recognise that plumbers are respected professionals and consumers place a strong trust in your expertise and advice. You should never take advantage of that trust.
Further information can be found in the ACL ‘Sales Practices Guide’.
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