The Australian Competition and Consumer Commission (ACCC) has advised that EnergyAustralia Pty Ltd has been ordered by the Federal Court of Australia to pay $1 million, and Bright Choice Australia Pty Ltd (EnergyAustralia's former telemarketing company) has been ordered to pay penalties of $100,000, for conduct found to be in contravention of the Australian Consumer Law.

Representatives of Bright Choice, acting as agents of EnergyAustralia, made marketing telephone calls between August 2012 and April 2013 to consumers in Victoria, New South Wales, and Queensland regarding EnergyAustralia's electricity and gas offerings.

Bright Choice stated to those consumers that they were calling as representatives of EnergyAustralia, and made the following representations to those consumers:

  • that the purpose of the call was not to sign up the consumer to an energy agreement;
  • that the consumer would be sent information and could then decide whether or not to sign up to an energy agreement; and
  • that neither Bright Choice nor EnergyAustralia would treat consumers as if they had agreed to enter into a new contract with EnergyAustralia, unless they communicated further with the consumer.

Despite this, consumers were treated as having agreed to switch to EnergyAustralia. Bright Choice's records of the calls noted that those consumers had agreed to enter into a contract with EnergyAustralia, and consumers were then sent a Welcome Pack containing contractual documents.

The Court held that EnergyAustralia and Bright Choice had made false or misleading representations, and engaged in misleading or deceptive conduct when selling EnergyAustralia's electricity and gas plans to consumers.

The Court imposed an injunction on Bright Choice prohibiting them from engaging in similar conduct for five years, and ordered that Bright Choice establish a three year ACL compliance program. Both EnergyAustralia and Bright Choice were ordered to contribute to the ACCC's costs.

EnergyAustralia and Bright Choice consented to the orders made against them by the Court, and cooperated with the ACCC to file joint submissions and a statement of agreed facts.

The ACCC Chairman Rod Sims commented that "this decision demonstrates that companies cannot avoid their obligations under the Australian Consumer Law by engaging sales agents" and that "the Court has now ordered significant penalties against some of Australia's largest energy retailers for misleading sales tactics...[and] the ACCC will take action to ensure compliance with the Australian Consumer Law".

This decision follows several other actions taken by the ACCC in 2012 and 2013, which included taking action against Neighbourhood Energy, Australian Power & Gas Company, AGL, and Origin Energy regarding their door to door marketing conduct, resulting in the ceasing of such marketing activities by many of these energy retail companies.

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