An agreement is considered to be unsolicited when:
a supplier/salesperson approaches or telephones a consumer without that consumer having invited this contact;
negotiations take place over the phone, or in person at a location other than the supplier’s premises; and
the total value of the agreement is more than $100, or the value was not ascertainable at the time the agreement was made.
In the event of a dispute, the onus is on the business to prove that an agreement is not an unsolicited consumer agreement.
There are a number of requirements in relation to unsolicited consumer agreements. Most notably, there is a cooling-off period of 10 business days to consumers who are offered such an agreement. For more information see the unsolicited selling factsheet.
It should also be noted the Corporations Act 2001 prohibits unsolicited hawking of securities, certain financial products and managed investment products. More information is available from the Australian Securities and Investments Commission (ASIC).
Requirements when approaching consumers (door-to-door sales)
Suppliers who contact a consumer, other than by telephone, must meet the following requirements.
Disclose purpose and show identification
The salesperson must explain upfront the purpose of the visit and provide identification. A salesperson must comply with the identification requirements of the ACL.
Cease to negotiate
A salesperson must explain that they are required to leave upon the consumer’s request.
When a salesperson is told to leave, they must not contact the consumer again for at least 30 days about the particular product or service they were selling during the visit. However, a salesperson can visit the same consumer again about the sale of goods by a different supplier.
An agreement signed by a salesperson on the supplier’s behalf must state:
- that the salesperson is acting on the supplier’s behalf;
- the salesperson’s full name;
- the salesperson’s business address (not a post box) or residential address; and
- the salesperson’s email address (if they have one).
A salesperson can choose to comply with the contact details requirements of the ACL.
Requirements apply to door-to-door sales to telemarketers.
Consumers must be given a written copy of the agreement:
- As soon as it has been signed, for agreements made through face-to-face selling.
- Within five business days (or longer if the consumer agrees), for agreements negotiated over the telephone. The agreement document can be provided in person, by post or electronically (if the consumer agrees).
The agreement document must:
- include the following text on the front page:
"Important Notice to the Consumer:
You have a right to cancel this agreement within 10 business days from and including the day after you signed or received this agreement; and
Details about your additional rights to cancel this agreement are set out in the information attached to this agreement";
- be transparent – expressed in plain language, legible and clear;
- be printed – although any changes may be handwritten (and signed by both parties); and
- be signed and dated by the consumer on the front page.
The agreement document must clearly state:
- the consumer’s cooling-off rights (right of termination);
- the full terms of the agreement;
- the total price payable, or how this will be calculated;
- any postal or delivery charges; and
- the supplier’s name, address, ABN, ACN, email fax, etc.
Salespeople must inform consumers of their cooling-off rights.
The agreement document must be accompanied by a notice that may be used to terminate the contract (cool off). This notice must include the supplier’s details including:
- name and business address (not a post box number)
- Australian Business Number (ABN) or, if they have one, Australian Company Number (ACN)
- fax number and email address, if they have these.
More information is available on the cooling off page.
It is unlawful to include or rely on provisions that exclude, limit, modify or restrict:
- a consumer’s right to terminate the agreement
- the effect or operation of the Australian Consumer Law as it relates to unsolicited consumer agreements.
It is an offence to induce, or attempt to induce, consumers to waive their rights.
What time can I contact a consumer?
Remember there are allocated times which you are allowed to contact consumers.