FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liquidation) (No 2) [2017] FCA 709
ORDERS
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant | ||
AND: | GET QUALIFIED AUSTRALIA PTY LTD (IN LIQUIDATION) (ACN 144 813 543) First Respondent ADAM MAZEN WADI Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Within 14 days of the date of these orders, the parties file and serve short minutes of orders to give effect to these reasons and for the further conduct of the matter.
2. Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BEACH J:
1 The present reasons should be read with my reasons for judgment dealing with the ACCC’s freezing order application in Federal Court of Australia proceeding VID 896 of 2016 (the freezing order proceeding), Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (2016) 244 FCR 538, and my reasons for judgment on the separate interlocutory injunction application in the present proceeding, Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd [2016] FCA 1560.
2 From 24 June 2010 to around 17 March 2017, the first respondent in this proceeding, Get Qualified Australia Pty Ltd (in liquidation) (GQA), operated a business involved in assisting and advising customers to obtain nationally recognised qualifications from registered training organisations (RTOs). RTOs are regulated, inter alia, by the National Vocational Education and Training Regulator Act 2011 (Cth) and National Vocational Education and Training Regulator Regulations 2011 (Cth). GQA operated various RTOs under its own auspices and had relationships with a broader pool of RTOs.
3 The second respondent in this proceeding, Adam Mazen Wadi, has been at relevant times GQA’s chief executive officer, sole director and the sole shareholder of GQA. For relevant purposes, Mr Wadi was the controlling mind of GQA and responsible for, and directly involved in, the day to day operations of GQA’s business.
4 A central part of GQA’s business involved assisting customers to obtain nationally recognised qualifications by the process of “Recognition of Prior Learning” (RPL). GQA assisted customers to gain formal certification of their skills on the basis of recognising both their prior formal and informal education and experience in the workplace. GQA assisted candidates in advising and assisting them to compile evidence to submit to the appropriate RTO to obtain a formal qualification. In essence, GQA acted as an intermediary between the RTOs and candidates seeking nationally recognised qualifications.
5 In engaging in these activities, the ACCC has alleged that GQA engaged in the following contraventions of the Australian Consumer Law (ACL) being schedule 2 to the Competition and Consumer Act 2010 (Cth) (the CCA):
(a) First, GQA engaged in misleading or deceptive conduct within the meaning of s 18 of the ACL and made false or misleading representations within the meaning of s 29(1)(m) of the ACL, by making statements to the effect that if GQA’s customers were not successful in obtaining qualifications through the RPL process, they would be entitled to a refund of 100% of the money that they paid to GQA (the 100% money back guarantee representation). It is alleged that such conduct and representations were misleading or deceptive or false because GQA applied undisclosed or unclear eligibility criteria to its refund policy and inappropriately relied on these criteria to decline customer refund requests, including when customers did not receive the promised qualification.
(b) Second, GQA engaged in misleading or deceptive conduct within the meaning of s 18 of the ACL and made false or misleading representations within the meaning of s 29(1)(b) of the ACL, by making statements through the online skills review tool (described later as the Free Skills Review) to the effect that customers would be eligible for a qualification from an RTO affiliated with GQA without the need for any further study or assessment (skills review representation). It is alleged that such conduct and representations were misleading or deceptive or false because at the time they were made, GQA had no reasonable grounds for making them. Further, it is alleged that the skills review tool did not enable GQA to properly assess customers’ eligibility for the qualifications, did not give GQA sufficient understanding or knowledge of their circumstances and experience to assess whether they were eligible to obtain qualifications using RPL, and generated the same automated response regardless of the information provided by the customer.
(c) Third, GQA engaged in misleading or deceptive conduct within the meaning of s 18 of the ACL and made false or misleading representations within the meaning of s 29(1)(b) of the ACL, by advising customers that they were eligible for and could obtain a qualification from RTOs affiliated with GQA using the RPL process (the eligibility representation). It is alleged that such representations were misleading or deceptive or false because on each occasion the eligibility representation was made, GQA had no reasonable grounds for making it, including because many GQA employees were not qualified to assess, or capable of assessing, the customers’ eligibility for the qualifications, and did not have sufficient understanding or knowledge of their circumstances and experience to assess whether they were eligible to obtain qualifications using RPL.
(d) Fourth, GQA engaged in misleading or deceptive conduct within the meaning of s 18 of the ACL and made false or misleading representations within the meaning of s 29(1)(m) of the ACL, by representing that any refund was at GQA’s discretion and that GQA could charge a full service fee regardless of whether any service was provided and would not refund fees unless the customer had submitted all evidence to GQA and the RTO had determined that there was insufficient evidence to grant the qualification (the refund ineligibility representation). It is alleged that this representation was misleading or deceptive or false because customers were entitled to a refund and to terminate their relevant contract under s 267 of the ACL given that GQA did not comply with applicable consumer guarantees as to services under ss 60 to 62 of the ACL.
(e) Fifth, GQA imposed an unfair contract term (ie the refund policy that I elaborate on later) on customers in breach of s 24 of the ACL.
(f) Sixth, GQA entered into unsolicited consumer agreements within the meaning of s 69 of the ACL with those consumers contacted by phone after completing a skills review, but failed to comply with s 79 of the ACL (which requires that all terms of the agreement be set out in full) and s 86 of the ACL (which requires that the party who solicited the agreement may not provide services or require any payment within ten business days of providing the agreement to the consumer).
(g) Seventh, GQA engaged in unconscionable conduct towards four individual customers (WJ, GF, JA and AV) in breach of s 21 of the ACL. Moreover, GQA engaged in a system of conduct or pattern of behaviour which, in all the circumstances, constituted unconscionable conduct in breach of s 21 of the ACL.
6 The ACCC has also alleged that Mr Wadi aided, abetted, counselled or procured and was directly and indirectly knowingly concerned in each of GQA’s contraventions of the ACL within the meaning of s 224(1) of the ACL. Accordingly, it is said that Mr Wadi should be held accessorially liable in relation to GQA’s contraventions.
7 For the reasons that follow, in my opinion the ACCC has established the relevant contraventions by GQA and Mr Wadi’s accessorial liability, save and except that in relation to unconscionable conduct, Mr Wadi’s liability extends only to the systemic contraventions and not in relation to specific consumers, contrary to the ACCC’s contentions. I will hear further from the parties as to the necessary orders to give effect to my reasons and for the further conduct of this proceeding.
8 I should also say at this point that I accept that s 140(2) of the Evidence Act 1995 (Cth) applies in the present case such that given the serious nature of the allegations and the fact that pecuniary penalties and disqualification orders are sought, it is necessary for the ACCC to establish its allegations by clear and cogent proof of the necessary elements, which it has done.
PROCEDURAL BACKGROUND
9 It is convenient to set out the procedural background to this proceeding. As I mentioned above, the background to the freezing order proceeding is set out in my reasons in (2016) 244 FCR 538.
10 On 9 September 2016, the ACCC for the purposes of the present proceeding filed an originating application and concise statement. Unlike the freezing order proceeding, only GQA and Mr Wadi were named as respondents. Ms Lama Al-Natour, Mr Wadi’s wife and former Director of Operations of GQA, was the third prospective respondent in the freezing order proceeding but was not named as a respondent in the present proceeding.
11 On 18 October 2016, I ordered that the present matter be listed for trial on liability commencing on 28 March 2017 on an estimate of four days.
12 On 13 December 2016, the ACCC sought an interlocutory injunction to restrain GQA until the determination of this proceeding from:
(a) commencing or progressing (directly or indirectly) any debt collection activities against “affected consumers” (as defined in the application for the interlocutory injunction);
(b) reporting any “affected consumer” to any credit reporting agency; or
(c) threatening to bring, or bringing, legal proceedings against any “affected consumer”.
13 On 19 December 2016, I granted such an injunction but on a narrower basis than that sought by the ACCC. I limited the injunction to the pursuit of debt recovery proceedings against a narrower class of affected consumers being those who had complained to GQA or the ACCC or who had sought refunds from GQA.
14 On 17 March 2017, Mr Blair Pleash of Hall Chadwick and Ms Kathleen Vouris of Hall Chadwick were appointed joint and several liquidators of GQA.
15 On 20 March 2017, the solicitors for the ACCC wrote to the liquidators seeking clarification of their position in respect of a proposed application by the ACCC for leave to proceed against GQA under s 500(2) of the Corporations Act 2001 (Cth). On 21 March 2017, the liquidators of GQA informed the ACCC that they neither consented nor objected to the ACCC being granted leave to proceed.
16 Further, on 21 March 2017, the solicitors then on the record for the respondents (Etienne Lawyers) informed the Court that they had been instructed to cease acting in the matter.
17 On 22 March 2017, the ACCC’s solicitors notified the Court that they sought leave to proceed against GQA. On 23 March 2017, my chambers informed the parties that the Court would deal with the ACCC’s application for leave to proceed on the first day of the trial. My chambers also requested that the ACCC take such steps as were necessary to ensure that the respondents were given proper notice that the case would proceed to trial as scheduled in the absence of any adjournment application. Further, my chambers requested that Etienne Lawyers provide an up-to-date email address for the respondents and the last known residential address of Mr Wadi. In response, Etienne Lawyers informed the Court and the ACCC that they did not have a residential address for Mr Wadi, that the only address they had was the address disclosed on the ASIC company extract for GQA and that the only email address they had for Mr Wadi was his email address at GQA. On 24 March 2017, the ACCC’s solicitors informed the Court that they were taking steps to contact Mr Wadi to notify him that the trial would proceed as scheduled in the absence of any adjournment application.
18 On 27 March 2017, the ACCC filed an affidavit of John William Fogarty of Corrs Chambers Westgarth, in which he deposed as to the various ways Corrs had sought to contact Mr Wadi to notify him that the trial would proceed in the absence of any adjournment application. Mr Fogarty deposed that Corrs:
(a) on 23 March 2017 at 2.52 pm and at 5.57 pm, sent an email to Mr Wadi via his GQA email address;
(b) on 23 March 2017, sent a Facebook message to the Facebook account operated by Mr Wadi;
(c) on 24 March 2017 and 27 March 2017, telephoned Mr Wadi using a mobile telephone numbered obtained from the RTO report for Get Qualified Australia – Canberra Pty Ltd which identified Mr Wadi as its chief executive officer;
(d) on 24 March 2017, telephoned Ms Alexandra Sella, a former employee of GQA, who informed Mr Fogarty that she believed that Mr Wadi was in Dubai and would not return for the trial; and
(e) on 24 March 2017, sent a letter to Mr Wadi’s last known residential address.
19 Further, Mr Fogarty deposed that despite such efforts to contact Mr Wadi, Corrs had not received any response from Mr Wadi.
20 On 28 March 2017, ie the first day of the trial, the respondents did not appear. I granted the ACCC leave to proceed against GQA under s 500(2) of the Corporations Act. Further and to the extent necessary, I also granted to the ACCC leave to proceed with the trial under r 30.21(1)(b)(i) of the Federal Court Rules 2011 (Cth) given that neither of the respondents then appeared, although I expressed the view that such leave may not have been necessary.
UNCONTROVERSIAL LEGAL PRINCIPLES
21 Before proceeding with a detailed analysis of the evidence and my factual findings, it is appropriate to outline some of the applicable legal principles relevant to the present matter concerning:
(a) misleading or deceptive conduct and false or misleading representations;
(b) unfair contract terms;
(c) unsolicited consumer agreements; and
(d) unconscionable conduct.
(a) Misleading or deceptive conduct
22 Section 18 of the ACL provides:
18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in Part 3–1 (which is about unfair practices) limits by implication subsection (1).
23 Sections 29(1)(b) and 29(1)(m) of the ACL provide:
29 False or misleading representations about goods or services
(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:
[…]
(b) make a false or misleading representation that services are of a particular standard, quality, value or grade; or
[…]
(m) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3–2); …
24 It is appropriate to state a number of non-contentious principles applicable to the present case.
25 First, there is no meaningful difference between the words and phrases “misleading or deceptive”, “mislead or deceive” or “false or misleading” (see Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 at [14] per Gordon J and Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited (2014) 317 ALR 73; [2014] FCA 634 at [40] per Allsop CJ).
26 Second, in the present case the relevant class consists of actual and prospective consumers of GQA’s services. Where the issue is the effect of conduct on a class of persons such as consumers (rather than identified individuals to whom a particular misrepresentation has been made or particular conduct directed), the effect of the conduct or representations upon ordinary or reasonable members of that class must be considered (see Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at [102] and [103] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 at [6] to [9] per French CJ, Crennan and Kiefel JJ). This hypothetical construct avoids using the very ignorant (or gullible) or the very knowledgeable (or astute) to assess effect or likely effect; it also avoids using those credited with habitual caution or exceptional carelessness; it also avoids considering the assumptions of persons which are extreme or fanciful. The objective characteristics that one attributes to ordinary or reasonable members of the relevant class may also differ depending on the medium for communication being considered. There is scope for diversity of response both within the same medium and across different media.
27 Third, in considering the hypothetical ordinary and reasonable member of the relevant class, one considers the dominant message conveyed (Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [20], [40] and [45] per French CJ, Crennan, Bell and Keane JJ). The question is whether there is a real rather than a remote possibility of the member of the relevant class being misled or deceived by the relevant conduct or statement. In the present context, does the relevant conduct or statement have a tendency to lead persons of the relevant class into error?
28 Fourth, conduct that exploits the mistaken views of members of the relevant class may be misleading or deceptive or likely to mislead or deceive and may not be corrected by any obscure fine print, whether in content, size or location, that sets out the true position.
29 In ACCC v TPG, French CJ, Crennan, Bell and Keane JJ at [51] analysed TPG’s advertisements in terms:
The tendency of TPG’s advertisements to lead consumers into error arose because the advertisements themselves selected some words for emphasis and relegated the balance to relative obscurity. To acknowledge ... that “many persons will only absorb the general thrust” is to recognise the effectiveness of the selective presentation of information by TPG.
30 Fifth, for the purposes of s 18, one must identify the relevant conduct and then consider whether that conduct, considered as a whole and in context, is misleading or deceptive or likely to mislead or deceive. Such conduct is not to be pigeon-holed into the framework or language of representation (cf the language of s 29).
31 Sixth, conduct is misleading or deceptive or likely to mislead or deceive if it has the tendency to lead into error (ACCC v TPG at [39] per French CJ, Crennan, Bell and Keane JJ). But conduct causing confusion or wonderment is not necessarily co-extensive with misleading or deceptive conduct (Google Inc v Australian Competition and Consumer Commission at [8] per French CJ, Crennan and Kiefel JJ).
32 Seventh, the question is whether there was a real but not remote chance or possibility that the relevant conduct was misleading or deceptive or likely to mislead or deceive. To assess this one looks at the potential practical consequences and effect of the conduct.
33 Eighth, for the purposes of s 18, the words “likely to mislead or deceive” demonstrate that it is not necessary to show actual deception. Relatedly, it is not necessary to adduce evidence from persons to show that they were actually misled or deceived.
34 Ninth, there must be a sufficient nexus between the impugned conduct or apprehended conduct and the consumer’s misconception or deception. As was said in SAP Australia Pty Ltd v Sapient Australia Pty Ltd (1999) 169 ALR 1; [1999] FCA 1821 at [51] by French, Heerey and Lindgren JJ:
The characterisation of conduct as “misleading or deceptive or likely to mislead or deceive” involves a judgment of a notional cause and effect relationship between the conduct and the putative consumer’s state of mind. Implicit in that judgment is a selection process which can reject some causal connections, which, although theoretically open, are too tenuous or impose responsibility otherwise than in accordance with the policy of the legislation.
35 Subject to one qualification, the error or misconception must result from the respondent’s conduct and not from other circumstances for which the respondent was not responsible. But conduct that exploits or feeds into and thereby reinforces the pre-existing mistaken views of members of the relevant class may be misleading or deceptive or likely to mislead or deceive.
36 Tenth, conduct that is merely transitory or ephemeral where any likely misleading impression is likely to be readily or quickly dispelled or corrected does not constitute conduct that would infringe s 18 (Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586; [2007] FCAFC 170 at [58] per French, Tamberlin and Rares JJ).
37 Eleventh, and relatedly, it is one thing to say that the conduct must be more than transitory or ephemeral, but it is another thing to say that the conduct or its effect must endure up to some “point of sale”. There is no such requirement to establish a s 18 contravention.
38 Even if the effect of relevant advertising is, or is likely to be, dispelled prior to any transaction being effected, it may still be misleading or deceptive. In ACCC v TPG at [50] it was noted that a contravention may occur, not only when a contract has been concluded under the influence of a misleading advertisement, but also at the point where members of the relevant class have been enticed into “the marketing web” by an erroneous belief engendered by an advertiser. Such a contravention may be established even if the consumer may later come to appreciate the true position before a transaction is concluded. The tendency of advertisements to mislead is to be determined not by asking whether they were apt to induce consumers to enter into contracts, but by asking whether they were apt to bring them into negotiation (ACCC v TPG at [48]). See also Tec & Tomas (Australia) Pty Ltd v Matsumiya Computer Company Pty Ltd (1984) 1 FCR 28 at 38.
39 The question of whether conduct is misleading or deceptive is anterior to whether a person has entered into contractual relations. It is no answer that relevant consumers who signed up for the service or product could have been expected to understand fully the nature of their obligations by the time they actually became customers.
40 Twelfth, terms or conditions of particular offers that have significant advantage for the representor and disadvantage for the representee require due notice; see National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 61 IPR 420; [2004] FCAFC 90 at [55] per Jacobson and Bennett JJ. Further, as their Honours observed at [50] and [51]:
[50] … A document which, when read as a whole, is factually true and accurate may still be capable of being misleading if it contains a potentially misleading primary statement which is corrected elsewhere in the document but without the reader’s attention being adequately drawn to the correction.
[51] The principle which applies to those cases is that the qualifying material must be sufficiently prominent or conspicuous to prevent the primary statement from being misleading …
41 Further on this aspect, in assessing the effect and significance of conduct that diminishes or relegates to obscurity information that is necessary to qualify or correct any dominant message, one looks at the relevant course of conduct as a whole in light of the surrounding facts and circumstances.
42 Thirteenth, in determining whether a contravention of s 18 of the ACL has occurred, the focus of the inquiry is on whether a not insignificant number within the class have been misled or deceived or are likely to have been misled or deceived by the respondent’s conduct. There has been some debate about the meaning of “a not insignificant number”. The Campomar formulation looks at the issue in a normative sense. The reactions of the hypothetical individual within the class are considered. The hypothetical individual is a reasonable or ordinary member of the class. Does satisfying the Campomar formulation satisfy the “not insignificant number” requirement? I am now inclined to the view that if, applying the Campomar test, reasonable members of the class would be likely to be misled, then such a finding does not necessarily carry with it that a significant proportion of the class would be likely to be misled. A finding of a “not insignificant number” of members of the class being likely to be misled is conceptually speaking an additional requirement that needs to be satisfied.
43 In relation to s 29 of the ACL, the following propositions are not in doubt.
44 First, a representation is a statement that can be made orally or in writing, but it can also arise by implication from what is or is not said or written including an implication from conduct.
45 Second, the concept of “false” and cognate expressions may be equated with “contrary to fact”.
46 Third, in relation to the question of falsity, that may be established irrespective of the knowledge of the representor.
47 Fourth, representations that do not reflect a representor’s obligations under applicable consumer guarantee provisions may contravene either or both of s 18 and s 29(1)(m).
(b) Unfair contract terms
48 Section 23 of the ACL provides that a term of a consumer contract is void if the term is unfair and the contract is a standard form contract. Section 24 provides that a term of a consumer contract is unfair if it would cause a significant imbalance in the parties’ rights and obligations arising under the contract, it is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term, and it would cause detriment (financial or otherwise) to a party if it were to be applied or relied on. Section 24(2) provides that in determining whether a term of a contract is unfair, the court must take into account the extent to which the term is transparent (ie expressed in reasonably plain language, legible, presented clearly and readily available to any party affected by it) and the contract as a whole. There is a rebuttable presumption that a term is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by it (s 24(4)).
49 It is presumed that a contract is a standard form contract unless proved otherwise (s 27(1)). In determining whether a contract is a standard form contract, I am required to take into account the factors referred to in s 27(2) being:
(a) whether one party had all or most of the bargaining power relating to the transaction;
(b) whether the contract was prepared by one party before any discussion relating to the transaction occurred with the other party;
(c) whether another party was, in effect, required to accept or reject the terms of the contract, other than the term concerning the subject matter or price of the contract, in the form in which they were presented;
(d) whether the other party was given an effective opportunity to negotiate the terms of the contract other than the term concerning the price of the contract; and
(e) whether the terms of the contract have taken into account the particular characteristics of the party or of the particular transaction.
50 It is appropriate to refer in detail to one case in this context dealing with refunds. In Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 368, salespeople reassured patients that they could get a refund if the treatment being sold did not work. But the salespeople did not say that patients had to try all treatment options in order to qualify for a refund. The respondent had a dominant bargaining position obtained by using high pressure selling techniques, and patients did not have a chance to negotiate the terms of the contract. North J noted that the questions of whether the refund term would cause a significant imbalance in the parties’ rights and obligations arising under the contract and whether the term would cause detriment, whether financial or otherwise, to the patient if it were to be applied or relied upon (at [950]):
… may be considered together and in the light of one of the examples of an unfair term provided by s 25(1)(c). That section provides that a term which has the effect of penalising one party and not the other for terminating the contract may be unfair. As to the nature of a significant imbalance in rights, in Director General of Fair Trading v First National Bank plc [2002] 1 AC 481 at 494; [2001] UKHL 52, Lord Bingham said at [17] of a regulation in similar terms:
The requirement of significant imbalance is met if a term is so weighted in favour of the supplier as to tilt the parties’ rights and obligations under the contract significantly in his favour. This may be by the granting to the supplier of a beneficial option or discretion or power, or by the imposing on the consumer of a disadvantageous burden or risk or duty.
51 The trial judge concluded that the refund term caused detriment to the patient, if relied upon, within the meaning of s 24(1)(c) in circumstances where the refund term required the patient to pay a 15 per cent administration fee, a pro-rata fee for the expired portion of the treatment, a pro-rata fee for the 30-day notice period, and the cost of medication supplied or prepared for the patient, and where the refund term operated whether the reason for the termination was a change of mind very soon after the phone consultation, a severe adverse side effect, or where the medication proved ineffective. The trial judge also held that the refund term caused a significant imbalance in the parties’ rights and obligations because it had the effect of binding patients to continue treatment in disadvantageous circumstances, or alternatively suffer a financial penalty.
52 His Honour also concluded that the relevant refund term lacked transparency to a significant extent, because the basis on which the administration fee was calculated was not disclosed to the patient at all, the method of calculation of the cost of the medication was not disclosed to the patient at all, at the time that the agreement was made, the patient was told about the refund term in a recorded message which was either read out very fast and softly or monotonously at a fast pace, and which was played after the patient had provided bank details, and the patient was not provided with a written copy of the refund term until after the contract was entered into, save in the case of patients who attended clinics.
53 His Honour concluded that when regard was had to the contract as a whole, the unfairness of the term became incontrovertible, because the contract provided for the supply of medications which were not regarded by the medical profession as the usual forms of treatment and there was no cogent evidence that they were effective. In those circumstances it was unfair to hold the patient to the agreement on penalty of payment of fees, the method of calculation of which was unknown, imposed in order to cancel the treatment. This conclusion was upheld by the Full Court in NRM Corporation Pty Ltd v Australian Competition and Consumer Commission [2016] FCAFC 98 at [196] to [205].
(c) Unsolicited consumer agreements
54 Sections 74 to 79 of the ACL impose particular obligations on “dealers” in relation to “unsolicited consumer agreements.” Section 70 of the ACL creates a rebuttable presumption that an agreement is an unsolicited consumer agreement. A “dealer” is defined, relevantly, in s 71 of the ACL to be a person who, in trade or commerce, enters into negotiations with a consumer with a view to making an agreement for the supply of goods or services to the consumer, or calls on a consumer for the purpose of entering into such an agreement.
55 The definition of “unsolicited consumer agreement” is set out in s 69 of the ACL, and has four elements:
(a) first, the agreement is for the supply, in trade or commerce, of goods or services to a consumer;
(b) second, it is made as a result of negotiations that took place either on the telephone or at a place that was not the supplier’s ordinary business premises;
(c) third, the consumer did not invite the dealer to come to that place, or make a telephone call, for the purpose of entering negotiations; and
(d) fourth, the total price paid or payable under the agreement is either not ascertainable at the time the agreement is made, or is more than $100.
56 Section 79 of the ACL sets out requirements for the information and notices which must be set out in, or accompany, an unsolicited consumer agreement. These requirements include that the agreement must, inter alia:
(a) set out in full all the terms of the agreement, including the total consideration (s 79(1)(a));
(b) have on its front page a notice that “conspicuously and prominently” informs the consumer of the right to termination (s 79(1)(b));
(c) be accompanied by a notice the consumer can use to terminate the agreement (s 79(1)(c)), and conspicuously and prominently set out in full all of the supplier’s details (s 79(1)(d)); and
(d) be transparent (s 79(1)(f)).
57 Section 86 of the ACL provides that the supplier under an unsolicited consumer agreement must not supply to the consumer under the agreement the goods or services to be supplied under the agreement, or accept any payment or any other consideration in connection with those goods or services, or require any payment or any other consideration in connection with those goods or services during the period of ten business days starting at the start of the first business day after the day on which the consumer was given the agreement document relating to the agreement (if the agreement was negotiated by telephone).
(d) Unconscionable conduct
58 Section 21(1) of the ACL provides that a person must not, in trade or commerce, in connection with the supply or possible supply of goods or services, “engage in conduct that is, in all the circumstances, unconscionable”.
59 The following propositions are not seriously contestable in relation to ss 21 and 22.
60 First, “unconscionability” means something not done in good conscience or conduct against conscience by reference to the norms of society. But that is to be understood and applied in the context of trade or commerce, but including consumer protection objectives directed at the requirements of honest and fair conduct free of deception (see generally Paciocco v Australia and New Zealand Banking Group Limited (2015) 236 FCR 199 at [259] to [304]). But one must be careful in using the phrase “norms of society” to ensure that the identification thereof is not interlarded with some distorted subjective view of social philosophy. It is fraught with risk to move beyond the explicit and implicit norms enshrined in and bounded by the statutory language of ss 21 and 22 construed in context, being trade or commerce, notwithstanding the apparent breadth of s 21(4) and the non-limiting prefatory words of s 22(1). Moreover, the evaluation of unconscionability must not be decontextualised from the particular case under consideration.
61 Second and relatedly, in order to determine whether conduct is unconscionable, it is necessary to look at all the conduct, by “[s]tanding back and looking at the whole episode” (Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 at [44]).
62 Third, as the norms of society include statutory prohibitions on deceptive conduct and the regulation of unsolicited consumer agreements, deceptive practices and contraventions of provisions concerning unsolicited consumer agreements can form part of the “whole episode”, for the purpose of assessing whether, in all the circumstances, the conduct in question is unconscionable (Lux Distributors at [41] to [44]).
63 Fourth, s 22(1) of the ACL sets out a non-exhaustive list of factors to which the Court may have regard for the purpose of determining whether a person has contravened s 21. The matters enumerated assist in understanding the scope of the meaning of unconscionable conduct, but the presence of one or more matters contained in s 22(1) (or indeed their absence) is not necessarily determinative.
64 Fifth, s 21(4)(b) of the ACL states that it is the intention of Parliament that s 21 is “capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour”.
65 Relatedly, proof of examples of similar unconscionable conduct in respect of individual cases can be used to demonstrate the features of a system of conduct or pattern of behaviour, even though no particular individual need be identified as having been disadvantaged.
66 Finally, the evidence of unconscionable conduct may be quite varied and, in some cases, not even substantial, but still form part of an overall pattern or system of unconscionability. It may be established by a systemic pattern of behaviour involving an accumulation of minor incidents.
GQA – SYSTEMS, PRACTICES AND CONDUCT
67 It is appropriate to begin with some matters of background.
68 RPL is granted when a registered training organisation gives recognition or credit to an enrolled student for units of competency which form part of a qualification, or the whole qualification. This is a form of assessment not based on traditional classroom study. To obtain RPL, the consumer must be able to show that they have already undertaken the learning which is necessary to obtain competence, through previous experience, or have developed the competence in the workplace. RPL assessment is optional and only undertaken when a student applies for it. Formal assessment is conducted by teachers or assessors.
69 Where consumers are enrolled through TAFE institutions, RPL is typically offered as an adjunct to traditional learning. Students can pay to be assessed using RPL for individual units, and then enrol in “gap training” to study any further units necessary so as to provide sufficient evidence to establish competence in using RPL.
70 GQA is not an RTO and therefore cannot provide RPL. It acted as an intermediary between RTOs and consumers. In substance, GQA’s role was largely administrative. It compiled portfolios based on information sent by consumers and forwarded them to third party assessors at RTOs, and then passed feedback which related to the application back to consumers.
71 From at least 1 January 2015, GQA had undertaken extensive marketing, via the internet, social media and radio, in which it represented that it could obtain nationally recognised RPL qualifications for consumers quickly and simply. For example, GQA marketed its services in a Facebook promotional video as follows:
What if I said you could earn more money?
You could, by turning your experience into qualifications and better pay.
Take Get Qualified Australia’s Free Skills Review and in just 3 minutes, discover what qualifications you’re already eligible for and those you can be fast tracked to obtain. With Get Qualified Australia, there’s no classroom study, you save time and money and get nationally recognised qualifications in any industry. Within weeks you could be on your way to a better future, be better qualified, be better paid. Take the free skills review today and turn your experience into qualifications and more pay. Visit Get Qualified Australia at GQAustralia.com.au or call 133 775.
72 It was not apparent from GQA’s marketing campaign or sales process that GQA was in substance acting as an intermediary, rather than a training or assessment facility, and that the only assistance which GQA would provide was of an administrative nature, and from staff who were largely not trained or experienced in the areas in which consumers were seeking to be qualified.
73 It was also unclear from GQA’s advertising that consumers might not be able to obtain an entire qualification solely on the basis of RPL, that consumers might be required to pay for additional gap training for areas where they were unable to establish competence, and that the gap training might involve considerable time and expense for consumers. GQA’s marketing campaign was to the effect that GQA offered a quick, simple and certain process of obtaining qualifications using RPL.
74 It is to be noted that the Standards for Registered Training Organisations (RTOs) 2015 (Cth) (Standards) (it is unnecessary to refer to the predecessor version) provide that RTOs must ensure that information, whether disseminated directly by the RTO or on its behalf, is both accurate and factual, and does not guarantee that a learner will successfully complete a training product on its scope of registration or that a training product can be completed in a manner which does not meet the requirements of some aspects of the Standards or that a learner will obtain a particular employment outcome where this is outside the control of the RTO. GQA’s marketing campaign and sales process, which implied that qualifications could be gained through a simple paperwork based process, did not comply with these requirements and failed to adequately inform consumers of the evidence they would be required to submit in support of their RPL application. Further, GQA’s conduct in marketing and selling its services did not comply with other aspects of the Standards. These deficiencies in GQA’s marketing campaign and sales process meant that GQA’s marketing campaign was misleading or deceptive or false.
75 GQA’s marketing directed consumers to undertake a Free Skills Review (discussed later) on the GQA website, which was located at the two URLs: www.gqaustralia.edu.au and www.gqaustralia.com.au.
(a) GQA’s advertising campaign
76 Some of GQA’s advertisements were entitled “100% Success Guaranteed”, “100% Money Back Guaranteed” and “100% Success or Money Back!”. Some consumers saw these advertisements on Facebook and were attracted to the website. Others saw such advertisements on Facebook and called GQA. In 2015, the GQA website advertised a “100% money back guarantee”, with no apparent qualification.
77 In 2016, the landing page for GQA’s Free Skills Review advertised the same guarantee, with limited qualification, “We also offer a 100% Money Back Guarantee should we be unable to get you your qualification after you’ve supplied all of your valid evidence”. GQA’s website also advertised the “100% money back guarantee” with explanatory text which was only displayed where consumers clicked to expand the view of the website: “Get Qualified Australia has a 100% Money Back Guarantee should we be unable to get you the qualification. This means that after you have provided us with all your mentioned evidence and after exhausting all possible avenues, if the Registered Training Organisation deems you not yet competent, you will be eligible for a 100% refund of your paid fees.”
78 In at least 2015, GQA advertised the 100% money back guarantee, in email communications to customers and potential customers. In an email with the subject “5 reasons to choose Get Qualified” GQA advertised the guarantee as the second of five reasons to choose GQA, “100% Money Back Guarantee – It’s our aim to get our applicants qualified and we’re confident we can, if you’re eligible. If, however, your application is unsuccessful, we’ll give you your money back.” In a further email distributed in 2015, GQA again advertised the guarantee. An email entitled “Concerned about the Cost of RPL?” stated:
Do you have concerns you’ll pay for your application only to have it rejected?
You’re not alone. To make sure this doesn’t happen for any of our applicants, we’ve removed the risk altogether. Here are three reasons you can be confident Get Qualified Australia is the right choice for your Recognition of Prior Learning:
1. 100% Money Back Guarantee – It’s our aim to get our applicants qualified and we will do everything we can to help you once we determine you’re eligible. If, however, your application is unsuccessful, we will give you your money back
2. Lowest Price Guarantee – We think our prices are competitive, but if you find a better price, we’ll beat it.
3. We Won’t Waste Your Time – As the market experts in RPL and Skills Recognition, we’re experienced in assessing candidates and identifying possible skills gaps that need to be closed. We’re also permitted to conduct assessments on behalf of the RTO and we’re familiar with the requirements for achieving qualifications. This means that if we decide you’re eligible, we’re confident we can get you qualified. If you’re still concerned, see point 1!
[…]
79 In each instance, GQA made the 100% money back guarantee representation.
(b) The Free Skills Review
80 GQA’s marketing and advertising directed consumers to the GQA website and to complete a Free Skills Review. Some of GQA’s advertisements through Google AdWords directed consumers to the Free Skills Review including: “Start Your Free Skills Review In under 3 minutes, find out if you’re eligible to achieve a fast qualification” and “Start Your Free Skills Review Find out if you’re eligible to achieve a Cert IV within weeks, and without study”.
81 GQA’s Facebook advertising also directed consumers to complete a Free Skills Review.
82 One such advertisement posted on 17 August 2015 stated:
All you need is experience.
Start a FREE Skills Review with Australia’s leading Skills Recognition – Get Qualified Australia!
Have Years In Construction? Need a Qualification?
With your work experience, you deserve a qualification! Start a free skills review today, and see if you’re eligible to convert your skills into a qualification within weeks!
83 The advertisement reached 41,931 people.
84 Another advertisement posted on 6 November 2015 stated:
Get your Trade Skills Recognised today!
Have plenty of work experience, but are missing the qualification you deserve? Get those skills recognised now!
Qualifications available in Automotive, Building & Construction, Engineering, Carpentry, Plumbing and many more industries!
√ NO Classroom Study
√ Get a Qualification in Just a Few Weeks
√ Over 25 Industries Supported
√ 300+ Qualifications to Choose From
Click one of the links below to learn how, and start a FREE Skills Review to see if you’re eligible.
85 The advertisement reached 1,134,756 people.
86 GQA’s Facebook advertising was prolific, and there are numerous examples. In the 2015/2016 financial year, GQA paid $534,208.49 to Facebook and $782,990.69 to Google AdWords in respect of this advertising.
87 The GQA website offered consumers the ability to complete a Free Skills Review to “find out how many qualifications you are eligible for via Skills Recognition” and represented that consumers could have their eligibility determined “without spending a dollar”. Customers were required to enter a number of variables, including:
(a) their industry (from a range of choices including “Automotive”, “Australian Meat Industry”, “Agriculture, Horticulture and Land Management”, “Aviation”, “Beauty”, “Building & Construction”, “Business & Management”, “Community Services”, “Electrotechnology”, “Engineering”, “Financial Services”, “Food Processing”, “Glass & Glazing”, “Hairdressing”, “Health & Massage”, “Hospitality, Events, Tourism and Travel”, “Information Technology”, “Manufacturing”, “Mining & Civil Engineering”, “Property & Security”, “Retail”, “Sports, Fitness & Recreation”, “Sustainability”, “Vocational Education & Training”, “Transport & Logistics” and “Am Not Sure”);
(b) their number of years of experience (1-3 years, 3-5 years, 5-10 years and 10+ years);
(c) whether the experience was in Australia, overseas or both;
(d) their postcode;
(e) whether there was a specific qualification the consumer was looking for;
(f) whether the consumer had any formal qualifications; and
(g) whether the consumer wished to upload a resume.
88 Irrespective of the information which was submitted by consumers, the Free Skills Review function produced an automated response, which said:
Good news!
Based on your answers, it looks like you might be eligible to achieve a qualification without the need for study.
In order to receive your personalised eligibility assessment, please enter your contact details and we’ll email you an information package and conduct your FREE eligibility assessment with a Skills Recognition Specialist.
89 This message conveyed the skills review representation. The representation was misleading because the representation was a representation of a future matter (that consumers could obtain a qualification through RPL) and GQA did not have a reasonable basis to make an assessment of the consumer’s eligibility when it made the representation, given the very basic information which was provided by consumers. Indeed, the same response was given to every consumer.
90 Although it purported to be an assessment tool, it is apparent from GQA’s own internal documents that the Free Skills Review was a very crude marketing device. In their training, GQA sales representatives were told that “the intent of the Skills Review is get the phone number of the client so that GQ (YOU) can contact them”. It is also apparent that the marketing device was remarkably effective. 95% of GQA’s leads came through the website.
91 Further, consumers who completed the Free Skills Review and provided their contact details would have expected that these details would have been used for the provision of an information package and to conduct a free eligibility assessment. They would not have expected that their details would be provided to sales representatives, given the substance of the response which appeared upon the completion of the Free Skills Review. For that reason, each contract entered into on a phone call following a Free Skills Review was an unsolicited consumer agreement. Moreover, none of these contracts complied with the ACL, since the terms of the agreement were not set out in full (s 79) and since GQA purported to provide services or and to require payment within ten business days of providing the agreement to the consumer (s 86).
(c) The Sales Call
The skills recognition specialists
92 Consumers’ first point of contact with GQA was generally through a “skills recognition specialist”. But although these GQA employees were directed to identify themselves as skills recognition specialists, they were not in fact specialised in skills recognition. Their role appeared to be more of a sales agent. For this role, GQA did not recruit for specialists in skills recognition or RPL. Its advertised requirements were as follows:
Skills & Requirements:
• MUST HAVE minimum 3-5 years inbound and/or outbound contact centre experience both warm and cold
• MUST HAVE excellent communication skills
• MUST HAVE the drive to over achieve and be extremely money hungry
• Experience working towards KPI’s and targets and proven results in achieving these
• Self-motivated, confident and a positive attitude
• The drive to meet and exceed customer’s expectations with a high degree of expertise, integrity and professionalism.
93 In communications with recruitment agents, Mr Wadi expressed the preference to recruit sales managers who were not from the education industry but who had a solid sales record.
94 Although a considerable portion of the five day training GQA provided to skills recognition specialists was spent explaining the vocational education training sector and the role of RPL, this training was rudimentary if at all. Moreover, even if the training had been more substantive, it was inappropriate for unskilled salespeople to attempt to engage in “skills assessment”, given the complexities of the qualifications offered and their lack of technical background. At the least, salespeople should have explained the RPL process and assessment method, the role of the facilitator, the nature of the service offered by GQA and the fee structure.
95 As GQA’s conversation guide discussed later makes clear, skills recognition specialists were trained to access an Australian government website, training.gov.au to identify for clients possible qualifications and the associated units of competence. Apparently, according to Mr Wadi, “they read out those units of competence to the customer on the phone”. GQA did not provide scripts for each of the more than 500 qualifications offered by RTO’s associated with it. There were too many variables. Moreover, consumers who called GQA for advice on eligibility could have obtained the same or very similar information by reviewing publicly available government resources. If anything, consumers would have received more detailed information about their desired qualifications from publicly available sources as skills recognition specialists typically omitted or passed on brief details of these qualifications.
96 In keeping with the recruitment advertisements, skills recognition specialists had high sales targets. Sales staff selling trade qualifications had a sales target of $80,000 per month, while sales staff selling non-trade qualifications had a sales target of $50,000 per month. Sales staff also had key performance indicators: 2.5 to 3 hours of talk time per day, or 100 calls a day; if a sales representative made a hundred calls continuously in an eight hour day, each call would average less than five minutes in duration. Skills recognition specialists were also provided with significant incentives to make sales. GQA offered commission: 1% of sales for sales representatives who made 95% to 99% of their target sales, 2% of sales for sales representatives who made 100% to 109% of their target sales, and 3% of sales for sales representatives who made 110% of their target sales or more. Other ad hoc incentives were also offered, including Plasma TVs, iPhones, MacBook Airs, and significant cash bonuses (initially up to $300). By the end of 2015, GQA was offering skills recognition specialists $25 per sale, $500 for meeting their monthly targets and $500 for topping the sales league.
97 By recruiting sales people rather than vocational educational specialists, providing very little training on RPL or the specific qualifications offered by GQA, imposing sales targets and key performance indicators which required a high volume of sales and a number of telephone calls which inevitably meant that each customer interaction was abbreviated, and providing significant sales incentives, in substance GQA’s business model emphasised sales and required unqualified sales representatives to undertake “eligibility assessments” to reassure customers of their ability to obtain certain qualifications. None of this was satisfactory, to say the least.
98 An ex-employee’s evidence (LR) was to the effect that in practice the skills recognition specialists in terms of their dealings with customers:
(a) under-represented the length of time that RPL took;
(b) under-represented the work involved;
(c) suggested that RPL would always result in a qualification;
(d) placed a very strong emphasis on the 100% money back guarantee;
(e) suggested that there were limited enrolments through GQA, when there were no such limitations; and
(f) failed to ascertain the particular customer’s suitability.
99 That evidence is consistent with the consumer experiences detailed later in my reasons and with the oral evidence given before me from another former GQA employee, Mark Allen West.
The conversation guide
100 GQA provided its skills recognition specialists with “leads”, being the information obtained from consumers who completed the Free Skills Review or otherwise provided their contact details to GQA through the GQA website, and instructed these sales representatives to contact these consumers by telephone and email.
101 Once GQA sales representatives had the phone number of a consumer, they pursued the lead relentlessly, to use the ACCC’s description put to me. Training materials indicated that “new leads” would be called twice and sent an SMS and an email on the first day; called once on the second day; called once, emailed and sent an SMS on the fourth day; called once and sent an SMS on the sixth day; called once, emailed and sent an SMS during the second week; called once, emailed and sent an SMS during the third week; and called once during the fourth week.
102 When skills recognition specialists managed to speak to consumers, they were given a script to follow (conversation guide). Its content is revealing. It read:
Hi [Callers name if known] this is [Agent name] calling from Get Qualified Australia, how are you? Important to listen to response and acknowledge.
I’m getting back to you with regards to your [online or via phone or other means] enquiry into gaining a qualification for yourself through Recognition of Prior Learning (RPL).
That’s great, so just a little bit about myself and GQ Australia. I am the Skills Recognition and RPL Specialist here at Get Qualified Australia.
GQ Australia specialise in recognising the work experience you HAVE ALREADY UNDERTAKEN and assisting you get a Nationally Recognised Qualification.
Essentially, if you have ENOUGH of this experience and you are ABLE TO PROVIDE CURRENT evidence to back this up, you MAY be able to gain a Nationally Recognised Qualification, without having to do any classroom work, wasting time and effort or study. Does that make sense? Great!
• is there any particular area/qualification you had in mind that you would like to apply for RPL? (Note: they could advise you of industry or specific qualification, take this into consideration when discussing the below.)
• what is the main reason you are looking at RPL? (licence, Visa)
• are you currently working in the industry?
• tell me a bit about what job(s) you have been doing in the last 5 years. (Get them to expand on day to day tasks - this is so you can start thinking about suitable units)
• do you have any previous qualifications?
• do you manage any staff?
Based on what you have told me, there are a few options I can suggest for you (discuss the qualifications you had in mind – qualification name, descriptor). How does that sound? (see if you can agree on a qualification) Great!
The qualification we have agreed on requires you to submit evidence for [insert the qualification total of units required] subjects. Let’s talk about some types of evidence you can supply:
• Do you have a Resume (don’t ask if they have already submitted this). If not, don't worry I can send you a template to fill in
• Can you get a minimum of two reference letters from current and previous employers?
• Do you have access to copies of any previous qualifications you have obtained?
• Do you have access to your Job Description, Employment contract?
• Do you have access to work samples (Note: if you have an Evidence guide discuss ALL core evidence requirements and some suitable elective requirements If no Evidence Guide then you will need to flick over to training.gov.au looking at ALL core units and suitable electives under the Qualification you are recommending and discuss suitable evidence requirements)
Great, it looks like you'll have no problem providing ALL the evidence required. Let me tell you how it works.
Once you are enrolled, you will be assigned with one of our Customer Service Agents (previously known as facilitators) who will:
• call you within 48 hrs to introduce themselves
• discuss the RPL process
• Guide you on the types and quantity of evidence to collect for each subject to build your Portfolio of evidence for the qualification
• answer any questions
• run through the types of evidence you can supply and
• send you an RPL Kit to complete.
You have 90 days to collect ALL the evidence.
The Customer Service Agent will then send your Portfolio to our qualified Assessors who will review the evidence and advice of any gaps with the evidence supplied. The assessor may phone you to discuss your experience and may request additional evidence or information from you.
Once the Assessor is satisfied that ALL evidence has been supplied, they will sign off on your Portfolio and you will receive your Qualification within 2-4 weeks from this point.
How does that sound [Callers name if known]?
Excellent, now in terms of pricing, the total cost is [$Qual.Price].
If the client asks for a discount you could say
We are running a promotion until the end of the month whereby if you pay in FULL, you can get 20% off; or you can pay by payment plan and get 10% off. All you have to do is put down a deposit and pay the remaining balance over weekly, fortnightly or monthly payments over 90 days. You can also claim some money back as a tax deduction.
To get you started, all I need know from you is to take payment. Would you like to pay in full or via payment plan? We accept Visa, Mastercard or American Express. (If they still object look at Objections Handling Process)
If paying by card following below:
Can I get the long number?
Expiry Date?
Confirm course cost and amount taken
The total cost of RPL for [qualification name] is [$Qual.Price]. I have taken a deposit of [$Dpt] and schedule the remaining to be paid, interest free, over [weekly fortnightly or monthly] payments. Is that correct?
You will shortly receive via email a receipt and can view our Terms and Conditions on our website gqaustralia.com.au
Areas covered by our Terms & Conditions include:
• All documents stored safely
• Recognising other qualifications giving Credit Transfer
• Plagarism
• 90 days
• 100% Money Back Guarantee
Congratulations on your enrolment! Your Customer Service Agent will be in contact with you within the next 48 hrs. You will shortly receive an email from me with an attachment. Have a look at this ready to ask any questions when your Customer Service Agent calls.
103 The focus in this conversation guide was on documentary evidence: résumés, reference letters, formal qualifications, job descriptions and employment contracts. Although work samples were mentioned, the topic was not dealt with in detail. Further, there was no real explanation of what a work sample might be. This emphasis meant that after speaking with a GQA skills recognition specialist, and after agreeing to use GQA’s services and making substantial payments to GQA, many consumers had very little understanding of what the RPL process entailed.
104 Moreover, as I have said, GQA did not provide scripts for each of the more than 500 qualifications offered by it as there were too many variables. Accordingly, even if the skills recognition specialists had attempted to explain the particular evidence that might be required, they only had the information from training.gov.au. In the absence of industry knowledge which might inform an understanding of the specific units of competence, it was unlikely that this explanation would provide real assistance.
GQA’s approach to objections handling
105 Conversations with customers did not always go according to the conversation guide. Accordingly, skills recognition specialists were provided with an objection handling guide to assist in overcoming objections from consumers.
106 GQA instructed its skills recognition specialists to tell customers who wanted to have “a think”:
I completely understand, this is something that’s going to change your future, for the better. However, there are limited places allocated to each assessor, meaning that once those places are gone we can’t be sure of when an assessor will next become available.
They are only able to take on so many clients at one time, for your specific qualification we do have assessors available now that is, but I can’t guarantee that would be this case next week or next month, meaning you may have to wait longer to be assessed if you chose to put this on hold.
107 This was not true. Places were not limited.
108 The objection handling guide also provided a response for the query: “What if I can’t supply all the evidence”:
That won’t be a problem. We are able to help you every step of the way. Our aim is to get you the qualification, we don't benefit from you not achieving it. So if you aren’t able to supply some of the evidence required, then there are options such as e-learning or gap training available which may come at an additional cost however we are still up to 50% cheaper than some other colleges.
109 GQA’s approach to consumers who found themselves unable to provide evidence in support of the qualification was less benevolent than the objection handling guide would suggest. Further, in most cases, GQA benefited whether or not consumers received a qualification, given the restricted operation of the 100% money back guarantee. GQA retained the contract price even when consumers had changed their mind immediately and had not received any services.
110 Further, in response to complaints about price, the objection handling guide recommended the following responses:
After speaking with my Manager they’re willing to offer you a X% or $X off the qualification. However, this only applies for today, meaning that it can’t be honored if you call back in a week’s time and want to enroll then.
OR
The reason our fee’s are what they are, is because we use only the best RTO’s that are available. Meaning you receive the qualification a lot quicker than you would with another company. Our assessor’s are able to provide one-on-one customer contact with you throughout the whole process, again something I don’t think other companies can say they offer. We pride ourselves on delivering, meaning if we say you qualify for X qualification that is what you will receive. That’s the beauty of us being able to offer the ‘money back guarantee’ I think we are the only company in Australia that actually offer that.
[sic]
111 The time limited discounts were a way of pressuring consumers into sales. As the case of consumer MK has demonstrated, they were effective in achieving that aim.
112 In relation to the second of these responses, the reference to the 100% money back guarantee is not qualified in any way. The effect of the suggested response is that any consumer who was told by GQA that they were eligible for a qualification and did not receive it would be eligible for the 100% money back guarantee. It is also apparent that GQA was holding itself out as being able to assess consumers’ eligibility (“if we say you qualify … that is what you will receive”).
GQA’s sales tactics
113 It is apparent that GQA’s staff used the scripts GQA provided to them and adopted consistent sales tactics to pressure uncertain or wavering consumers into sales.
GQA did not undertake a thorough review of eligibility
114 GQA’s most notable sales tactic was to enrol consumers without confirming that they had the required documents or adequately explaining the RPL process. It was Mr Wadi’s evidence that before about May 2014, consumers’ eligibility for RPL assessment was assessed by qualified assessors, rather than skills recognition specialists. That is, the same person who would assess an applicant’s portfolio of evidence to see if the evidence was sufficient, current and authentic would speak to the consumer before enrolling them.
115 There were advantages for GQA in the process which was adopted after May 2014, especially given the approach taken by GQA to refunds. Enrolling candidates without confirming that they had all of the required documents or experience increased the number of enrolments and thereby, GQA’s revenue.
116 It was also useful for GQA to be able to offer the 100% money back guarantee in these circumstances. Customers were more likely to enrol with GQA on the basis that they would not lose out if they did not obtain a qualification.
117 GQA and Mr Wadi appreciated those advantages, as can be seen from a January 2016 email from the Contact Sales Manager, Tamsin Leigh, to other members of the GQA team regarding the enrolment of electrotechnology applicants:
After a discussion with Adam, effective immediately we are able to enrol Electrotechnology applicants without all there [sic] required documents. Make sure you are asking the questions and if they verbally communicate that they can provide what is required we don’t necessary [sic] need this before they enrol.
We are going to try this out and if it works then it will increase your sales massively.
We can verbally say to them on the recorded line, that they could be eligible for a refund if they don’t qualify. This will come off your stats and you obviously won’t get paid the commission for it.
This will help get a few over the line that maybe struggling to get the documents prior to enrolling.
GQA kept in constant contact with prospective consumers
118 In addition to the phone calls made by skills recognition specialists to individual customers and the text messages and emails the skills recognition specialists sent to them, GQA would also send ad hoc bulk text messages to consumers who had expressed initial interest but had not taken up its services. These text messages frequently offered time limited discounts. Sometimes, GQA would send multiple text messages in a week to promote a particular discount.
GQA suggested that there were limited spaces
119 In its conversations with consumers, GQA frequently suggested that enrolments were limited where consumers were wavering. In the words of GQA’s sales manager:
… The assessor availability is to encourage the customers to enrol on the phone call as they always want to view information first or are dubious about paying $XXX after one or two phone calls, we have a great product that sells itself however so do other RPL companies at a cheaper price. Creating urgency in our sales pitches is needed to close the sale, otherwise we will never be close to the targets that have been set. If we can create “urgency” with a reduced price if enrolled today that may help however I fear you may still suffer the same complaints. These issues are always arising so I think we need to decide whether we are sales or customer service.
120 The technique of suggesting that enrolments were limited was calculated and deliberate, and was intended to persuade customers who wanted more information or were uncertain about the price to commit to GQA. The technique was an integral part of GQA’s business model.
121 This can be seen in an exchange between a skills recognition specialist and DH:
DH: It’s a – it’s a lot of coin to come across with, you know.
GEMMA: Yeah. Yeah, sure. No. We understand that. That’s why we offer the payment plan and – as well, but I’ll just look and see how many spaces are left with the facilitators, because we can offer discounts on trade qualifications dependent on space. I mean, with regard to – have you got deposits available to yourself at the moment, or would it depend, obviously, how much it is, first?
[… ]
GEMMA: Yep, perfect. Sorry to keep you. So I’ve got the best option that we would be able – so the maximum discount we’d be able to offer. There are spaces, by the way. There’s three left for the Certificate III level with the facilitators we’ve got for that trade industry, so that’s the good news, first of all…
[…]
DH: Okay. Well, when does your course – I mean, I suppose, it doesn’t really start, does it ... does it start. I mean, I’m – I can’t give you a decision right now. I do need to speak to my – my wife, and but … I understand…
[...]
GEMMA: Well, as I said, at the moment, there’s three spaces left, so we could ---
DH: I ---
GEMMA: --- have them three spaces fill up today.
DH: I know.
GEMMA: They could fill up by the end of the week. We could still have one left next week, but it depends on ---
DH: Sure.
122 Similarly, in exchanges between VM and skills recognition specialists, VM was told that spaces were limited:
ARRAN: Well, look, mate, what I can do is I can send you out the details if you like ---
VM: Let me …
ARRAN: --- for the qualification. Okay. So you can – what I will do is I will send you out our process of how it works, okay, and I will send you the details for the Certificate III in Plumbing. Okay. So you can just have a read through it and speak to your partner if it is something that you’re looking to go ahead with. Then we can, you know, get the ball rolling because last time I checked with the assessor I think there was around four or five spaces available and that will probably be gone by Monday. So, look, I can send you through the details, anyway. Just have a look through and then, you know, I can catch up with you ---
VM: Okay.
ARRAN: --- on Monday. Is that all right? Okay, mate.
123 And, in a subsequent discussion, the issue arose again:
MR DAVIS: So what I could do for you now is secure the place for you. With your deposit, how did you want to pay that? By Visa or MasterCard.
VM: ..... speak to ..... tonight and you can call me by Friday or next Friday.
MR DAVIS: Okay. Is she paying for it for you, is she? Is your ---
VM: That’s too early.
MR DAVIS: All right. Next Friday it won’t be available.
VM: .....
MR DAVIS: I can give you a call tomorrow. We’re very low on spaces. That’s all. So the ---
VM: Sorry?
MR DAVIS: How – do you mind me asking why? Unfortunately, it won’t be available then. Do you mind me asking why it would take you that long to speak to your wife?
VM: Yeah. It should be okay. Just give me – Wednesday or Thursday. Just give me enough – at least a week.
MR DAVIS: Yeah. No problem. Yeah. As I said it won’t be available next week. We have … here which is we partner with 26 RTOs in Australia, okay. Each RTO will take on certain applicants for plumbing. This plumbing qualification was meant to close yesterday, okay, due to an overload of applicants. It will re-open in six months’ time again. Okay. But it is due to close tomorrow evening. Okay. If you feel that you can’t afford it yourself, we do have a third payment option where we have a partner company called zipMoney. Okay. They would pay in full for you and you would be able to pay them back completely interest free.
VM: Well, I think if you call me tomorrow afternoon ---
124 In fact, there were not limited places allocated to each assessor. Mr Wadi’s evidence was that there was no limit set by the RTOs and no limit set by GQA on the number of customers it would take on for a given qualification.
GQA offered discounts which were said to be limited by time or enrolments
125 GQA also offered consumers discounts which were apparently limited by time, or related to the number of enrolments, or both. As I mentioned before, GQA’s sales manager acknowledged in an internal email that these discounts were intended to create a sense of urgency. She also acknowledged that the strategy of pressuring consumers to enrol by offering time limited discounts was likely to lead to complaints. Again, it is apparent that time limited discounts were an integral and systemic part of GQA’s sales tactics.
126 For example, DH’s facilitator offered a time limited discount that was said to be available because of the number of spaces left:
GEMMA: …. So I’ve got the best option that we would be able – so the maximum discount we’d be able to offer. There are spaces, by the way. There’s three left for the Certificate III level with the facilitators we’ve got for that trade industry, so that’s the good news, first of all. Second good news – the manager can do a discount off it. Again, this is because of how much space within the facilitation team, so the most we’d be able to go down to is a $500 discount, so that would bring the qualification down to 3200. Normally we only do 50 per cent deposits when they’re on a payment plan; however, we can also reduce that down to 25 per cent.
[…]
GEMMA: --- but I’ll just put somewhere in the email, obviously, what we’ve offered you. Obviously, any discounts that we offer can only last until the end of that week, so at least you’ve got until ---
DH: Yes.
GEMMA: --- Friday. You’ve got to talk to wife – the – obviously, what they want to do. If it’s a lot of information ---
127 Further, JR was told:
BRUCE: Yeah. Okay. Because what we aim to get you – we basically aim to get you the qualification within two to four weeks then. Now, obviously the course is $3000, however for the rest of this week we are able to 10 per cent off so for any enrolments made this week, between today and tomorrow, we can offer $300 of that … qualification. So $2700 for yourself, sir. You can – it doesn’t need to be paid in full. Obviously if you’re able to pay it in full that is the easiest option but if you would prefer we can offer an interest free payment plan to allow you to spread the cost. So you place a deposit to secure your spot, the cheaper rate, and then the rest we’ve done on an interest free payment plan.
[…]
BRUCE: No worries. I will send you the email now, sir, and hope I catch up with you. Actually we’ve got that offer running today or tomorrow so if you are, you know, interested in getting the discount rate ---
JR: Yeah, no worries. Sounds good.
BRUCE: --- maybe speak tomorrow. Okay.
128 The time limited nature of the discount was emphasised in a subsequent conversation:
BRUCE: No, I wouldn’t be able to offer the discount on Monday morning.
JR: Yeah.
BRUCE: So, as I say, the promotion ends today. That’s why I was calling you again this morning was to see if you wanted to take advantage of the offer.
JR: The offer is not available on Monday? Yeah, right.
BRUCE: As I said the offer ends today. Yeah. So ---
JR: Yeah, I could if I ---
BRUCE: --- are you in a position today to put a deposit down today and we could secure you a spot or I can go – yeah, as I say, sir, if you want to leave to Monday we can do but I just wouldn’t be able to, unfortunately, offer ---
129 Further, MK was told:
CHRIS: So them, with that – with that then, you know, you will be – you will be issued a nationally recognised qualification by the college. Now, you came to us the very last day of the month which is – you know, we’re doing offers all this month in September. So it will be 20 per cent discount for full payment on it and 10 per cent discount for a payment plan. So you won’t pay the full price if you enrol today at all.
130 MK signed up because he did not want to miss the discount, although he felt unprepared and rushed.
131 Further, AS was also offered a time limited discount:
GARY: … after speaking to you last week, I wanted to follow up regarding those trade certificates that we spoke about, okay. You probably noticed already, but you would have gotten a text message there on Wednesday regarding a $500 discount, okay.
AS: Yes, yeah.
GARY: You’ve received that message, yeah?
AS: Yes, I have received that message. Yeah.
GARY: Good. Okay. Now, today is the last day, so as of Monday and next week, prices go back up to full price.
AS: Yeah.
GARY: So if you wanted to enrol and secure that discount, you would be required to make a deposit and then we can actually get the ball rolling for you.
132 JA was also offered a time limited discount:
PAT: Yeah, so ... the only reason why I’m really, like, going through all this here with you is purely because we can’t offer taking off a discount for more than a day. That’s the sort of thing, so it’s really down to you when you want to get started, but we can’t honour, like, having administration costs if – if you’re not going to actually take it up in the same day.
GQA emphasised the 100% money back guarantee and consumers’ eligibility, and provided very little detail about the requirements of each course
133 The skills recognition specialists adhered closely to the overarching message articulated in the conversation guide and the objection handling guide during telephone and email communications with consumers. They repeated the 100% money back guarantee representation and advised consumers that they were eligible for and could obtain a qualification from RTOs affiliated with GQA using the RPL process, thereby making the eligibility representations.
134 In the course of discussions with consumers, skills recognition specialists also provided simplistic or incomplete information to the consumer about the RPL process, the evidence required to support a RPL application and the units of competency for particular qualifications. Skills recognition specialists also failed to make proper inquiries of the consumers as to their individual background and experience and failed to inform consumers about key terms and conditions of GQA’s standard form consumer agreement.
135 This pattern of behaviour was an inevitable outcome of the fact that GQA advertised its services in a misleading way. Skills recognition specialists were not experienced in RPL and had very little training in RPL, so that they were effectively relying on the same material which was available to consumers as the source of their so-called “expertise”. Further, the pattern of behaviour was manifested by the fact that skills recognition specialists were trained in the use of the conversation guide and the objection handling guide, and they had significant incentives to make as many sales as quickly as possible.
136 Consumers who agreed to use GQA’s services were usually required by GQA to make full payment of GQA’s fees (or in some cases, to make a partial payment with a payment plan) before GQA would assist them to compile a portfolio of evidence and to make their RPL application. GQA provided credit facilities to assist consumers.
137 Further, GQA imposed a strict requirement on its customers to make the payment of fees in full before any application for a qualification based on RPL was submitted to the relevant RTO.
138 Further, it was only after the consumer made a payment to GQA that GQA provided the customer with an information pack, including details of the relevant competency requirements and the enrolment form. GQA did not provide the customer with a document containing the terms and conditions which applied to GQA’s services. But this document could be accessed from GQA’s website.
GQA’s representations about eligibility
139 The conversation guide emphasised the eligibility of the consumer, as can be seen by the prompt: “Great, it looks like you’ll have no problem providing ALL the evidence required.” It did not contemplate the possibility that either the consumer was not eligible or that there would be any difficulty in proving eligibility.
140 In discussions with consumers, skills recognition specialists adopted an approach to eligibility which was consistent with the conversation guide in that they assumed and did not confirm that consumers were eligible, based on very superficial enquiries. This can be seen from the exchange between DH and his skills recognition specialist:
DH: Okay. Well, what – what is your fail rate on people gaining these qualifications?
GEMMA: We don’t have a fail rate, because we don’t enrol you if you’re not eligible.
DH: Right. Okay. No, it’s just that, I mean, I – I’d hate to shell out that money. I mean, I know I’m competent and – but – but you don’t know I ---
GEMMA: Yeah.
DH: You don’t know me from a bar of soap, so that ---
GEMMA: Exactly.
DH: That – that’s why I ask that.
GEMMA: Yeah. No, absolutely. No, you have to ask, anyway. It’s your money and your qualification, at the end of the day, but if I wasn’t quietly confident that you – first of all, you didn’t have enough years of experience, because bearing in mind as well, for worst-case scenario, just to sort of put all the cards out on the table, if, for example, if you were unable to get these videos, you were unable to get your written references, for example, as a worst case, because you’ve got 18 years behind you, with you giving us that information, obviously, we can also do what we call a competency-based conversation. That ---
141 Further, MK sought a qualification in formwork. His skills recognition specialist told him that the qualification was based on years of experience, and could be covered largely by references, with some photos and short videos:
CHRIS: Right. So the – the qualification itself in formwork, you would be eligible for it because the minimum requirement for formwork is three years of experience.
MK: Okay. Yes.
CHRIS: You nearly have double that so – yes, so ---
MK: Yes.
CHRIS: The – the qualification then, it only has 25 units in it so it’s not many units at all.
MK: Yes.
CHRIS: The way we put it together is we would need you – it’s an assessment, okay. So basically what we do is ---
MK: Yes.
CHRIS: There’s no training or study or anything. You’ve got five years’ experience. There’s no point in us trying to teach you anything.
MK: Yes.
CHRIS: So it’s not a course. It’s a trade recognition assessment, it’s – it’s more commonly known as.
MK: Yes.
CHRIS: So what you do, you basically prove to us that you’ve got the background experience. The only way to do that obviously is a summary of your career and then references to back that up. So a minimum of two references from any qualified tradespeople.
MK: Yes.
CHRIS: Okay. Preferably form workers, or carpenters or – or builders or anything ---
MK: Yes.
CHRIS: --- like that …
MK: Yes.
CHRIS: So would that be something that would be manageable for you?
MK: Yes. That – that sounds all right.
[…]
CHRIS: So the way you prove that to us, obviously because it’s a practical trade we need to see some visual evidence so photographs ---
MK: Yes.
CHRIS: --- or videos. Photographs of before, during and after kind of thing. And try to incorporate ---
MK: Okay. Yes.
CHRIS: Try to incorporate all of the other units, you know, using different tools, carrying out measurements.
MK: Yes.
CHRIS: So basically you’re just holding the measurement and measuring out bits of wood and that. You know, levelling it out and all that sort of stuff. You can – you can actually, with one short video, cover five or six units.
142 PP’s skills recognition specialist summarised the requirements of the course in a manner which emphasised the ease of completion, despite acknowledging that PP did not do many of the things which were covered in the units:
MARK: All right. And you’ve just got the two core units which is Develop Keyboarding Speed and Accuracy, which you obviously – you type very quickly. I see it in your resume, you’ve got that down. And then you’ve got Contribute to the Health and Safety of Others. So that’s just how you work safely in the workplace. Really simple. Your resume will sign you off for that. And yeah. Then just the elective units that you can pick, okay? So the only ones that we have problems with was the Interpret and Apply Medical Terminology Appropriately. But obviously you can interpret it. And then you’ve got Prepare and Process Medical Accounts, Maintain Patient Records, Assist in Controlling Stocks and Supplies.
Obviously you don’t do that one, but that’s fine. You then have Apply the Principles of Confidentiality, which you use. And you manage the record patient system, okay? Then it will be other elective units that you can just pick that are relevant to yourself. So things like Writing Simple Documents, Producing Spreadsheets, which you know how to do. Organising Schedules. Even though you don’t do that, you would know how to do it. Or Design and Produce Business Documents. Even though you don’t do that, you would know how to do it. You can make a business document up on your computer and just send that through as proof, okay?
[…]
MARK: Okay? So it’s nice and quick. It’s going to be nice and simple for you. As I said, the Certificate III is very simple to go through. Very simple. So I would be happy to put you forward for that one.
143 VM’s skills recognition specialist also correlated eligibility to years of experience, and suggested that the assessment for a plumbing qualification would largely be on the basis of references:
MR DAVIS: … Obviously it’s done through recognition of prior learning to it’s solely based on your work experience. So how many years’ experience in plumbing do you have – the water and all that?
VM: Yeah, about six years.
MR DAVIS: Six years. How much in Australia?
VM: All of it.
MR DAVIS: All of it. So you’re more than qualified in years for it, okay. What I need to do is make sure you can provide evidence so you would need to provide things like your resume, okay, your job description which is easy. You could do them two yourself, okay. You will need two references off anyone that you’ve done work with in the trade that can vouch for you. Will you be able to do that?
VM: People that have worked for me or worked with?
MR DAVIS: No. Anyone that can vouch for you; someone that’s licensed or qualified. Someone that you’ve worked for.
VM: Yep.
MR DAVIS: Failing that they would need to be of clients or colleagues. Will you be able to get two of them?
VM: Yes.
MR DAVIS: Brilliant.
MR DAVIS: A copy of your white card to show you’re allowed on sites, okay, if you do have one.
VM: Yeah.
MR DAVIS: Any – if you have any projects that you’ve worked on that would be a great piece of evidence and if you did have any pictures, again, that would be great as well. Okay. But your main thing is your references.
144 GD’s skills recognition specialist was very vague about some units of the carpentry qualification, and did not highlight a major component (roofing). The skills recognition specialist told GD that he would not have to worry about that unit and did not go through the practical requirements for evidence, except to say GD could supply photos. The skills recognition specialist suggested that GD could obtain a qualification in two to three weeks.
The 100% money back guarantee
145 In training materials for sales representatives, GQA emphasised the 100% money back guarantee as its first selling point. Skills recognition specialists relied heavily on the guarantee when dealing with consumers, in terms which clearly implied that it could be used by consumers who had been wrongly enrolled.
146 So, AS was told:
GARY: If it’s the case that – if you send us through your mentioned evidence and we exhaust all possible assessment methods – okay – through competency conversations ---
AS: Yeah, yeah.
GARY: --- and trying to provide further information and further documents – okay – if we can’t get you your qualification you can apply for a full refund of your paid fees. Okay. Now, if you simply change your mind and just think I don’t want to do this anymore ---
AS: Yes.
GARY: --- you won’t get a refund. But if you’re trying your very best to achieve this and we can’t – we can’t get it for you then that’s when you can get your refund because
AS: Okay.
GARY: --- I’ve made a mistake by actually enrolling you ---
[…]
GARY: So that would be my fault.
147 LM’s skills recognition specialist used the guarantee to assuage LM’s concerns:
LM: Yes. It sounds pretty good. Do you think I would be in for a good chance for getting it or what ---
BRUCE: Yes. I mean, with the experience you’ve got, sir, I wouldn’t be putting you forward for it unless I thought you can get it. We also have 100 per cent money-back guarantee.
LM: Yes.
BRUCE: So, you know, if you provide all your evidence and we exhaust all possible assessment methods and we can’t get you the qualification or the RTO deem you not yet competent, you would get 100 per cent of your money back anyway, sir.
LM: Okay. Cool.
BRUCE: So with that process, I’m quite happy to say that you would be eligible, sir.
148 LM tested the guarantee with his skills recognition specialist, in the following exchange:
LM: You were saying there’s definitely 100 per cent money back?
BRUCE: Yes. We offer 100 per cent money-back guarantee, sir. So as long as you provide all your evidence and we exhaust all possible assessment methods, if the RTO deem you not competent, sir, it’s only fair that you would get your money back.
LM: Yes.
BRUCE: Yes.
LM: I just read a couple reviews and I was a bit worried.
BRUCE: Yes. But with the reviews, so there’s people that have told us that they can categorically get a piece of evidence, and then when it comes to it, they don’t have any evidence and have just lied – they’ve lied to us because they didn’t think we would do the check-ups, you know. People telling us they can get evidence and then when it comes to it, they say, “Oh, I can’t get any evidence for you.” We can’t be held accountable for that. If you tell us that you can get ---
LM: Okay.
BRUCE: --- some kinds of evidence and then you don’t show up with it, then we have to, obviously, take your word for it. Yes?
LM: So as long as you have some kind of evidence like photos of your work and ---
BRUCE: Yes. So long as you provide all the evidence we require, if they are to then deem you not competent, you would get a money back.
LM: Okay.
BRUCE: All your money back there.
LM: So ---
BRUCE: Now ... ---
LM: --- what if you don’t have the right evidence that you require though?
BRUCE: … that’s what your assessor is there to help you with, so as to make sure we do have the right evidence. So they will point you in the direction if they need any piece of evidence from yourself.
149 PP had raised some concerns about her eligibility in her initial call. Her skills recognition specialist said:
MARK: … So yeah, definitely you will be eligible to get that qualification, okay? Now, you’re obviously covered by our money back guarantee … so if for any reason we put you forward for this and then they say you’re not eligible, you will be covered by the 100 per cent money back refund, okay? So you get all your money back.
150 JR’s skills recognition specialist also raised the guarantee in response to JR’s concern that he would not be able to get evidence:
JR: Yeah. Yeah. Yeah, I understand. So just say there’s one module which I can’t get evidence for or whatever what happens then?
BRUCE: Yeah, well, so the assessor will, you know, exhaust all possible assessing methods. They can do, like, a competency based conversation with yourself ---
JR: Okay.
BRUCE: --- you know, just to get around the unit if it’s just one or two units but we also have that 100 per cent money back guarantee ---
JR: Yeah.
BRUCE: --- because my job could basically deem me eligible which I’m now confident I’ve done, however if you were to submit all your evidence and we exhaust all possible ---
JR: Yeah.
BRUCE: -- assessment methods and the RTO deem you not competent ---
JR: Yeah, no worries.
BRUCE: --- you would get all your money back.
151 VM’s skills recognition specialist also relied upon the guarantee:
VM: Is there any guarantee you get the certification?
ARRAN: What did you say? Well, look, mate, with that once you are enrolled, okay, and if we can’t get you the qualification based on the evidence provided ---
VM: What’s the closing date? Is ....
ARRAN: --- then you are guaranteed 100 per cent of your money back.
VM: Any clause – any clause to say for any reason …
ARRAN: Is there any what sorry?
VM: ... Even if I did ---
ARRAN: Well, no. Like, we’ve got the 100 per cent money back guarantee, sir. That’s your, you know, secure there.
VM: ... I won’t get my money back. You should get the money back....
ARRAN: You – it depends on the evidence that you provide. Like, if you, you know, if you go ahead with the qualification and then you don’t want to do it and you want your money back then we won’t be able to get you the refund but, look, it’s my job here to put you forward for that and if I didn’t think you was capable of getting it then I wouldn’t be putting you forward for it because it’s just going to be a waste of both of our time. Even with that if, you know, if you did supply everything that you could and you still couldn’t get it then you would get 100 per cent of your money back.
152 JA’s skills recognition specialist raised the 100% money back guarantee in response to an enquiry about the expense of GQA:
JA: --- find all the organisation, they, they can charge me less than that price. Yep. Do you think it’s a – it’s a – I can find other organisations that can charge me less?
PAT: So less than that price? So really with the pricing for actually getting it through RPL, it is all, like, pretty much getting it signed off to be nationally recognised, so it’s a standard cost that you would get across the board. We actually are a lot cheaper than all of, like – most of the RPL companies, so you would see that there is a lot of places that actually charge about $1000 more for the actual same service, but – but they are, obviously, smaller companies. We’re actually the top in RPL at the moment, and so they aren’t going to offer you a facilitator to work with to actually be there step by step with you. They don’t offer that sort of service there. So really, in that case, like, the smaller companies, what they do is they actually just send out things to you and then tell you to just put it in what you can, and then they’re not going to make sure that it’s a 100 per cent that you’re going to get it all covered out and you’re never covered with, like, a money back guarantee kind of thing with those places as well …
[…]
PAT: It – it’s giving – basically, we have a – like – like I said, because we have that 100 per cent money back guarantee, we’re going to exhaust every option that we can to actually get you that qualification at the end of the day unlike a lot of other RPLs where you’ll pay for their service but they’re not going to give you that sort of support.
Skills recognition specialists suggested that the hard work would be done by facilitators
153 Skills recognition specialists also suggested that facilitators would do much of the hard work, ensuring the consumer’s success:
154 Gemma said to DH:
GEMMA: … Once we’ve [determined] your eligibility, you’d be aligned with an in-house facilitator, so they’d your sole point of contact from you enrolling with us to you being fully qualified. The reason you don’t need to take any time off work or do any classroom assessment is that the facilitator ---
DH: Right.
GEMMA: --- emails you your enrolment kit. Okay. To that email address – we’ll go into more detail in a second, but that’s where you’ll be attaching your evidence, so, for example, videos of yourself at work, written references just to back up your experience, any work samples, maybe a white card, if you’ve got any invoices where you’ve ordered materials or completed jobs, third-party testimonials, etcetera, so it’s that sort of type of evidence that we’re looking for you to send through. Once you’re sending us this evidence, your facilitator basically uses the evidence you’ve sent in to map that off against the units, so they’ll do the hard work for you. They’ll be ones that, you know, put in the evidence to the units themselves, and they’ll be making sure that each unit is covered ---
155 MA was told:
CHRIS: … Then, as soon as you get an email from them, you’ll have a direct contact with your facilitator and you’ll be working with them on a one-to-one basis from start to finish until you’re completed your – your assessment with ourselves, and then your – your Certificate will be posted out to you by the college itself.
156 MK was advised:
CHRIS: …Once you enrol you will be – you will be assigned a facilitator in – in our trades department down there. Their job, you know, as a team would be to gather the evidence. So you would be signed one facilitator who’s going to advice you through the process from start to finish and you will be working with them, you know, hand in hand through the process from start to finish. So you will be – you will have direct contact with them over the phone and via email and you obviously send your evidence to them via email. …
157 VM was told:
MR DAVIS: …We provide you with an in-house facilitator who works with you via phone and email throughout the whole process. They are there to help and guide you through it and they provide you with templates for your evidence. Okay.
158 WJ was told:
DEMI: What happens, once you’re enrolled, is we assign you over to one of our facilitators. You’ll work with him on a day to day basis, in order – in terms of all the gathering together of your evidence. You’ll send it all through to him and, because he works for the registered training organisation on a day to day basis, he knows exactly what they look for. So then he’ll do all the work, in terms of all the mapping and compiling of your evidence. And then he’ll lodge it to the registered training organisation, who would then produce your qualification within two to four weeks.
159 In fact, facilitators were no more qualified than the skills recognition specialists in vocational education. They were also overloaded with portfolios. In some cases (like GF), facilitators went for months without responding to a consumer’s enquiries. In others (like AV), facilitators misinformed consumers about course requirements, or did not download evidence.
There was insufficient disclosure of the terms and conditions on the sales call
160 It is apparent from the conversation guide that the terms and conditions (including the full version of the 100% money back guarantee) was only referred to after payment had been made.
161 This was deliberate, as can be seen by the “GQA Verbal CCP [Credit Card Payment] Script”, which provided that the terms and conditions should only be provided after taking the card details and confirming the upfront payment.
162 Terms and conditions were also referred to in a vague and cursory fashion even after payment. There was no reference to the refund policy, the fact that consumers were fully liable for fees if they cancelled immediately, or the fact that there was no cooling off period.
(d) The Facilitation Process
The welcome call
163 GQA appreciated that customers might not have a clear understanding of the RPL process or the evidence requirements before the welcome call, which was made by facilitators (who were responsible for assembling customer’s RPL applications), and after customers had been enrolled by skills recognition specialists and had paid for the qualification. The script for the welcome call was as follows:
FACILITATOR WELCOME CALL
An initial welcome call in required within 24 hours of enrolment. A voicemail message can be left, but you must attempt to speak to the client on at least 2 occasions. This is an introduction of the facilitation process, the RPL Kit and evidence gathering process and also a chance to make a ‘personal connection’ with the candidate.
THE WELCOME CALL IS COMPULSORY, the following points must be covered:
• Introduce yourself & explain your role as a facilitator.
• Discuss RPL concept (if they don’t already have full understanding).
• Discuss RPL Kit, explaining the kit is a valuable tool and should be filled out in detail with career experience and knowledge of the client in each unit, explaining that the units evidence is provided for, will be on their transcripts.
• Discuss any specialisations within qualifications and the units required to gain the specialisation (Engineering).
• Evidence requirements explained (Using list of evidence values on the requirements of the qualification).
• […]
• Discuss 90-day completion period and discuss any possible extension charges if the qualification is not finished in the 90-day allotted time.
• Advice the client, that emails & SMS’s will be sent to the client on a fortnightly basis from 30 days onwards to prompt the evidence sending process and remind the client of the 90 day completion period.
• Finish by asking client do they have any questions in regards to any of the units, evidence, paperwork or general queries.
The service provided by GQA after the welcome call
164 GQA’s facilitators (later referred to by GQA as “customer service agents”) were overworked, and in any event, were not experts in RPL. They did not have experience in the vocational education industry. Further, GQA had not provided them with any meaningful training. They did not have sufficient knowledge, skills or experience of the units of competency or the evidence requirements. By March 2015, they were overwhelmed with work, and some had stopped attending to their portfolios. Attempts to provide training to the facilitators or provide them with resources were rebuffed by senior members of GQA’s management. The service provided by these facilitators did not live up to consumers’ expectations.
165 The evidence of a former GQA employee, LR, is that in her time at GQA overseeing the facilitators, on an average day, she spent at least half of her time dealing with customer complaints, and she responded to at least 100 customer complaints during her time (about two months) at GQA. Most of the customer complaints that she received involved customer frustration about delays in the progress of their RPL applications and concerns about the level of service and support they received from GQA.
166 For example, in the case of AV:
(a) AV’s first facilitator provided him with a list of units which did not reflect the course requirements;
(b) AV’s first facilitator told him that his evidence looked good to cover core and elective units, although he was subsequently told he had apparently not read the units of competency.
(c) AV had four facilitators.
(d) AV sometimes did not receive responses to his emails from his facilitators for weeks or months, or received holding responses.
(e) Materials AV uploaded were not downloaded by his facilitators.
(f) AV was advised by his fourth facilitator to follow the units of performance criteria on the Federal Government website, training.gov.au.
167 In the case of DH:
(a) In response to a request for guidance, his facilitator told DH that he would be able to tell whether the evidence was on the right track once it was uploaded.
(b) DH’s facilitator subsequently told DH that his evidence was “bang on”, “perfect mate” and “great” and that he just required more videos.
(c) Almost three months after enrolling, DH was told by his facilitator for the first time that he required a reference from a supervisor, although DH had previously told his skills recognition specialist that he was a sole trader.
(d) On about 16 April 2016, DH requested a copy of the call recording of his call with the skills recognition specialist from his facilitator. He did not receive a response to this request until 3 May 2016. The response on 3 May 2016 was a holding response.
168 In the case of GD:
(a) He had two facilitators.
(b) One of his facilitators gave incorrect advice about the requirements of a “working at heights” unit.
(c) Further, that facilitator also told GD there was no time limit for the completion of his qualification, which was contradicted by a different facilitator.
169 GF had two facilitators and dealt with a number of other individuals in relation to the completion of his portfolio. GF was first emailed by his first facilitator on 13 August 2015, and responded on 17 August 2015 asking his facilitator to contact him. GF did not hear again from his facilitator until 17 September 2015, when he received an email from her saying she had left GQA. His second facilitator did not contact him, and GF tried to complete the application on his own. After numerous emails and calls to GQA, GF received an email from his second facilitator on 8 October 2015. It was not until 28 October 2015 that GF received a telephone call from his facilitator (although they could not speak on that occasion). His facilitator sent an email requesting documents on 28 October 2015, many of which he had already provided to GQA. It was not until GF spoke to the Skills Recognition Manager on 2 November 2015 that GF had a better understanding of the RPL requirements. GF continued to provide evidence and sent emails to his facilitator, but received no response until he complained to GQA on 26 November 2015, when his facilitator contacted him to tell him his application would be submitted. After hearing nothing from his facilitator about the outcome of his application, GF called and emailed GQA, only to find out on 21 December 2015 that his application had been rejected on the grounds that he had not filed sufficient evidence. On 23 December 2015, after trying to contact his facilitator and his skills recognition specialist, GF spoke to Aine O’Malley, the Customer Service Manager at GQA, who asked him to send further evidence. He did so throughout January 2016, but received no response. His attempts to contact Ms O’Malley were unsuccessful.
170 JR’s facilitator did not make any contact with him after the first email she sent him, until he sent her a completed self-assessment kit six weeks later. She told JR his evidence was “quite good”, and he understood that she was satisfied with the evidence. JR’s application was rejected on the basis that he needed third party references and more technical evidence, at which point he formed the view that he would have needed a traineeship to obtain a qualification based on the units of competency. JR’s facilitator undertook to raise the issue with the assessor, but JR did not hear back from his facilitator.
(e) GQA’s treatment of refund requests
The refund policy
171 The GQA Payment and Refund Policy Document (refund policy) explained the approach which was generally taken by GQA to refunds:
Refunds
GQA may refund fees in limited circumstances. This policy outlines where a refund may apply and the process for requesting a refund. To request a refund of fees paid to GQA for the following programs, applicants must complete the relevant refund request form and send it to the organisation as set out in this refund policy and procedure.
This policy applies to fees paid for the:
• Skills recognition or RPL services
• Online studies
Eligibility for a refund
Fees will only be refunded by GQA where a participant/applicant:
• pays duplicate fees for the one service
• makes an overpayment
• has submitted all evidence to GQA and the portfolio has been submitted to the RTO who has reviewed the application and has determined that there is not enough valid, current, authentic and sufficient evidence to grant competency.
Discretionary refunds
GQA may, at its discretion, refund a fee for reasons other than those described above. GQA will advise the participant/applicant to apply for a refund should this occur.
When GQA will not refund fees
For the avoidance of doubt, GQA does not accept the following circumstances as grounds for the refund of fees and will not refund fees where:
• an applicant merely changes his/her mind
• an applicant is unable to provide documentation to support the claim for a refund
• an applicant provides forged or plagiarised documentation, or the organisation discovers that provided documents are not valid in any way
• an applicant refuses to provide evidence
• an applicant has exceeded the 90 days in which an application is to be completed in, without an extension being granted.
• an applicant refuses theoretical or practical assessment
• an application falsely claims that he/she is able to provide evidence for the portfolio, but neglects to do so.
172 In summary, where consumers realised that they were wholly unqualified for the qualifications in which they were enrolled and could not provide any evidence, GQA would refuse a refund, on the various bases that the consumers had changed their mind, refused to provide evidence, or refused assessment.
173 GQA relied upon the refund policy in refusing refunds to consumers. The refund policy made or constituted the refund ineligibility representation.
174 It is apparent from this material and from the consumer case studies discussed below that the 100% money back guarantee representation was misleading. GQA would refuse to provide a refund to consumers who could not obtain their qualification. GQA would only provide a refund in extraordinary circumstances, such as in the case of AV, where a qualification had been taken “off scope”.
175 The refund ineligibility representation was misleading or deceptive because in each of the consumer case studies summarised below, there had been a failure to provide services with due care and skill, to provide services which were fit for purpose, or to provide services within a reasonable timeframe, and there was therefore an entitlement to a refund under the ACL.
176 The refund policy was also an unfair contract term within the meaning of s 24 of the ACL.
GQA’s way of dealing with refund requests
177 GQA typically refused refund requests, at least until the point that consumers engaged lawyers. In internal meetings, senior representatives of GQA said words to the effect that GQA did not give refunds. Where complaints were escalated to an independent regulator, GQA responded by emphasising the adequacy of its initial disclosure, despite the call recordings and emails which indicated that this disclosure was inadequate.
178 The experience of individual consumers was that it was generally only those consumers who engaged lawyers (such as AV and JA) who obtained a refund. For example:
(a) More than five months after AV had requested a refund, he engaged lawyers to assist him. He received a refund shortly afterwards.
(b) DH requested a refund when it became apparent to him that it would be impossible to fulfil the requirement of providing a supervisor’s reference, since he was a sole trader and his previous supervisors were deceased. GQA told him that he needed to work with GQA to provide remaining evidence, and that an email sent to him before his enrolment had clearly set out all of GQA’s requirements and how the process worked (the email is cursory and refers to “examples” of evidence). GQA also told DH that it would not release call recordings of his calls with the skills recognition specialist without a court order. Although it was plain to DH that he could not complete the qualification, he abandoned the request for a refund after two months, when GQA stopped returning his calls. DH has neither a qualification nor a refund.
(c) GD requested a refund on 17 November 2015, when it became apparent that he would have difficulty completing the roofing component, which had not been highlighted in his initial call. He was told that he would not be entitled to a refund because he had not provided evidence or not wanted to go ahead. He repeated his request in November 2015, and made a formal request on 2 December 2015. He received no response, despite following up three times. After posting a complaint on GQA’s Facebook page on 2 February 2016, GD received a response from GQA promising he would be contacted. He was not. He left a further message on the Facebook page on 10 February 2016, and emailed GQ on 16 February 2016. GD made a complaint to NSW Fair Trading in February 2016. GD has still not received a refund.
(d) GF requested a refund in January 2016, almost six months after enrolling, when he had received no response from Ms O’Malley. Ms O’Malley immediately contacted him and promised an update, but he pressed his request for a refund. Ms O’Malley then requested further evidence, and he responded repeating the refund request. GF received no response, and continued to press his request by email. On 28 January 2016, GF spoke to Renna Markson, Customer Service Manager at GQA, who told him that he had not received a qualification because his evidence had not all been provided. Although GF understood that Ms Markson had agreed to provide a refund by 3 February 2016, it was not paid. GF sent an email demanding his refund on 5 February 2016, and received a telephone call and an email from Ms O’Malley, who told him the request had been refused by management because he had not provided the required evidence. Although he asked to meet with GQA’s management, he received no response. GF wrote to the directors of GQA in February 2016, and received a response from Ms O’Malley stating that he had provided insufficient evidence. He complained to NSW Fair Trading on about 10 March 2016. He still has not received a refund.
(e) WJ requested a refund in September 2015 when it became apparent to him upon receiving his welcome pack that he was not eligible to obtain his desired qualification. Upon making his request, he received a copy of the refund policy, which he had not been made aware of and which was inconsistent with his understanding of GQA’s refund policy, based on his discussion with the skills recognition specialist. Although GQA initially advised WJ that he would be eligible for a full refund, he was subsequently told he needed to have a “competency conversation”, which occurred on 26 November 2015. After receiving no response to his refund request following this conversation, WJ complained to the Western Australian Department of Commerce on 14 December 2015. The Department of Commerce informed WJ that GQA would not settle because he did not possess the necessary skills to complete the course. WJ authorised his father, MJ, to pursue the complaint for him in January 2016. MJ continued to pursue a refund, which GQA refused on the basis that WJ had told his skills recognition facilitator that he had worked in the area of water and sanitary plumbing and could provide evidence to prove it. GQA refused a refund again in February 2016, on the basis WJ was not eligible. GQA referred WJ’s account to a debt recovery firm, and GQA sent a letter reserving its rights against WJ for misrepresentation. WJ has not received a refund and has not received a certificate of plumbing.
(f) MK asked to cancel his enrolment the day he enrolled (30 September 2016), because he was uncomfortable about the services offered. He was told that he could not cancel based on a change of mind. He told GQA that he had not been advised of this policy. GQA responded by asserting that it was sufficient that he was advised that the terms and conditions were on the website. After his request for a refund was refused, MK made a complaint with the Queensland Training Ombudsman. The Ombudsman was unable to resolve the dispute and advised MK he should consider engaging a lawyer. GQA wrote to MK again on 9 November 2016, stating that the standard terms applied. MK cancelled his credit card to prevent further instalments being debited by GQA, and GQA referred his case to a debt collector.
(g) JR requested a refund after his application was rejected by the assessor and his facilitator stopped responding to emails. He received no response to his refund request. JR made a complaint with NSW Fair Trading, who contacted GQA. GQA told NSW Fair Trading that it would not grant a refund, but that it would grant an extension of time. He has not pursued his complaint with NSW Fair Trading or pressed the refund request, because he thought it was pointless. He has not received a refund or a qualification.
(h) MA requested a refund on the day he signed up, after realising that a qualification from GQA would not assist him to obtain a visa. In response, GQA him that there was no cooling off period. MA complained to NSW Fair Trading. GQA responded by saying it fully disclosed its terms and conditions. GQA then referred MA’s case to a debt collector. MA sought legal advice from Legal Aid and a private lawyer, and was advised by the private lawyer to settle, because otherwise he might incur further costs in court proceedings and a bad credit rating. MA paid an additional sum to debt collectors engaged by GQA. He did not receive a qualification.
(i) PP signed up with GQA on 4 April 2016 and from at least 26 April 2016 raised her concerns that GQA had misrepresented its services to her. Having raised these concerns and requested a refund, GQA informed her on 9 May 2016 that her refund had been declined on the basis that GQA “could get you the qualification”. On 20 May 2016, PP informed GQA that if her refund was not processed she would contact NSW Fair Trading, but was again informed that her refund request had been declined. PP complained to NSW Fair Trading who contacted GQA on her behalf. On 10 June 2016, GQA responded to NSW Fair Trading stating that PP was not “eligible for a Refund nor cancellation of her enrolment as Get Qualified Australia do not approve Refund’s [sic] for change of mind, change of circumstances, and/or where a customer falsely claims that he/she is able to provide evidence for the RPL portfolio but neglects to do so”. PP continued to engage with GQA between June and October 2016. PP commenced proceedings against GQA in the NSW Civil and Administrative Tribunal. On 27 October 2016, GQA and PP entered into a settlement deed whereby GQA agreed to refund PP the fees she had paid and PP agreed to consent orders to dismiss her application in NCAT.
(f) GQA management including Wadi were aware of the systemic problems
179 The systemic problems with GQA’s business model concerning complaints and refunds were apparent to GQA’s senior management from at least 2015. In June 2015, Ms Alexandra Sella, Director of Operations at GQA, wrote to Mr Wadi in relation to refunding a customer, and said:
This is definitely going the legal route and I really don’t want people to carry on talking to Fair Trading, the Office of Consumer and Business Services – as one day that will end up with the ACCC.
180 On 12 January 2015, a meeting took place “to brainstorm and determine a procedure and handling policy for requests relating to refunds, extensions, cancellations and applications on hold”. Mr Wadi facilitated the meeting. Although the idea of removing the money back guarantee was mooted, it was rejected by Ms Sella in advance of the meeting, because “this is a unique selling point that sets us aside from other providers”. The idea of a short cooling off period was also vetoed by Ms Sella, on the basis that “This may open a whole new can of worms; I think that opens us up for even more actual refunds. The ones we are getting now are being told they cannot have a refund; it is possible for us to keep them on board. How about we keep this as an internal procedure, that within 24 hours we decide if we want to or not want to refund a candidate”.
181 In August 2015, a representative of zipMoney, an entity which provided credit to GQA customers, wrote to GQA about GQA’s policy of charging 25% for administration when customers cancelled. He observed that “a $675 fee for a customer who cancels 1 day after they enrolled for the course is probably bordering on unreasonable … The time to cancel should be factored in when applying the 25% cancellation fee … We will be monitoring this closely as this category is a significant risk both for GQ Australia and zipMoney”. Mr Wadi responded to this email by saying “I guess we now have a policy in place and we need to stick to it”.
182 In October 2015, Mr Wadi emailed Ms Sella and Ms O’Malley and said “I’m sick of seeing complains [sic] and refunds, what is wrong here. No sales, refunds and complains [sic] is all what I have been hearing in the last three month and I’m extremely frustrated”.
183 By January 2016, negative reviews of GQA were affecting GQA’s ratings on external sites. The marketing director of GQA proposed to provide incentives to consumers to place positive reviews online to offset negative reviews. Mr Wadi sent an email saying:
We need to have full feedback on where we are going wrong in both sales and operations so we can improve on it and reduce unhappy customers.
We need a monthly report on how many refund, on hold, cxld customers we had in one month, this is the way we get CLEAR customer satisfaction, we are not sitting on 4 stars if we are honest with ourselves, we are working on pushing people to positively rate us and our effort is what is getting us the 4 stars. The clear satisfied or unsatisfied customer experience will always be in Renna’s monthly report.
184 Ms Sella also suggested that a request for refund/withdrawal forms should be generated, and processing time for requests should be introduced, on the basis that this “will also possibly deter people from asking for refunds. This should be a long drawn out document to complete, with lots of questions and things to provide.”
185 On 2 February 2016, Ms Markson and Ms O’Malley met with NSW Fair Trading to discuss the 31 complaints which had been received by NSW Fair Trading in the previous six months. The main points identified for discussion were:
• Miscommunication/Misled – 100% Money Back Guarantee
• Debt Collection being harassing and intimidating (check ACCC definition of harassment). Clause 168 of the Act – Harassment & Cohersion
• No response to messages left
• Lack of response to complaints and refund requests
186 The minutes of the meeting included suggestions to improve internal procedures and reduce complaints:
• 100% money back emphasised on calls and the key areas set out in bold on correspondence.
• Attach terms and conditions to welcome email, or send a separate email with them.
• Refund Policy fine-tuned – it’s too ‘wordy’.
• Make customers aware that they are liable for full fees.
• Complaint Management System in place.
• Consider cooling off period – 7 day discretionary
• Use another term instead of ‘deposit’ as this can imply refundable – “first payment”
• Hard Sell??
187 Mr Wadi circulated the minutes of the meeting with NSW Fair Trading to selected staff, with an acknowledgment that “we have never focused on customer satisfaction, and kept our eyes on Leads and Sales, till recently Amine highlighted to me when he joined the company back in October that the money is in the operation side and not the enrolment [sic] stage of the customer journey”. Mr Wadi noted that a continuous improvement committee would be established, which he would head.
188 On 4 February 2016, Ms Markson wrote to Mr Wadi:
I agree that we need to improve the customer journey and experience, so that customers review on their own. Obviously it is good for potential customers to see high levels of satisfaction through the reviews but it would be even better if we are able to provide a great experience to all customers and leave them wanting to write good reviews off their own back.
With the volume of refund requests I have at the moment, it is hard for me to focus on this and to develop a strategy, because I am finding it hard to stay on top of the clients in my name at the moment. I don’t feel that I’m giving good customer service at the moment because of the response times. In instances when I am listening to calls and I notice a call centre agent has said something wrong, I do flag it with Andy, but at this stage it is really only areas directly related to refunds and the 100% Money Back Guarantee.
I would love to be able to give recommendations and work on the strategy but while there are all these refund requests to deal with it doesn’t seem like this is something I will be able to dedicate time for in the next few months.
189 It was not until August 2016, when the ACCC’s proceedings dealing with the freezing order were commenced, that GQA unilaterally abandoned the 100% money back guarantee.
190 I would note at this point, although I will elaborate on this later, that Mr Wadi was intimately involved in devising and implementing the marketing scheme, sales tactics and GQA’s business strategy. Mr Wadi’s close involvement in every aspect of GQA meant that he was an intentional participant in GQA’s contravening conduct and had actual knowledge of the matters constituting the contraventions. For example:
(a) Mr Wadi is GQA’s chief executive officer, sole director and sole shareholder, and the controlling mind of GQA.
(b) Mr Wadi expressed the preference to recruit sales managers who were not from the education industry but who had a solid sales record.
(c) Mr Wadi was aware of and intimately involved in GQA’s decision to move from a model where consumers’ eligibility for RPL assessment was assessed by qualified assessors, to a model in which it was assessed by skills recognition specialists.
(d) Mr Wadi appreciated that by not undertaking a full assessment of eligibility and by offering the 100% money back guarantee, GQA boosted its sales.
(e) Mr Wadi mooted the idea of removing the 100% money back guarantee in early 2015 in light of consumer complaints, but did not do so after being told that it was a unique selling point.
(f) Mr Wadi mooted the idea of offering a cooling-off period in 2015, but did not do so, after being told that it would result in more refunds being claimed.
(g) Mr Wadi was informed in 2015 by his business partners that charging fees to consumers who wished to cancel shortly after enrolling was bordering on unreasonable and a significant risk.
(h) Mr Wadi was aware that GQA’s positive ratings on consumer websites were because GQA pushed consumers to positively rate it, and that these ratings were potentially not an accurate reflection of consumers’ experiences.
(i) Mr Wadi was aware from February 2016 that NSW Fair Trading was concerned about consumers being misled about the 100% money back guarantee, harassed by GQA’s debt collection processes, and affected by GQA’s general non-responsiveness.
(j) Mr Wadi acknowledged internally at GQA that GQA was more concerned with generating leads and sales than it was with customer service and satisfaction.
191 I will elaborate further on Mr Wadi’s personal liability later.
GQA’S CONDUCT IN RELATION TO SPECIFIC CONSUMERS
192 The ACCC’s detailed case studies of individual consumers demonstrate how GQA’s business practices resulted in a system of unconscionable conduct, in which consumers were wrongly enrolled in qualifications that they were not eligible for using RPL assessment alone and consumers received little or no help from GQA in seeking to attain a qualification. The ACCC in its submissions focussed upon the evidence of four individuals being WJ, GF, AV and JA. But there was also evidence before me concerning other individuals being GD, JR, MK, DH and MA which was consistent with the four individuals that the ACCC concentrated upon. I will similarly focus upon WJ, GF, AV and JA although I have also taken the other evidence into account.
(a) WJ
193 WJ is a driller’s offsider. Previously, he worked as a pipe fitter and plumber. In August 2015, WJ contacted GQA to see if GQA could assist him to obtain a plumbing qualification through RPL. On 12 August 2015, WJ was contacted by phone by Demi, a GQA sales representative. WJ was on a construction site when he received Demi’s call, and he had some difficulty in hearing her. WJ explained to Demi that he had about ten years’ experience as a plumber, and that he wanted the qualification because he was getting paid significantly less because he was not registered. She responded:
What with your 10 years experience, I can’t see having no problem getting this qualification whatsoever.
194 In making this statement, GQA made the eligibility representation with respect to a Certificate III in Plumbing.
195 After telling WJ that:
… it’s all based on you providing evidence to back up your previous years of experience that you have … evidence is, like, videos or photos of your work, career summary, references, invoices, any previous qualifications that you may have, just to prove that you’re competent enough within the qualification without you having to go back and re-learn it all over again.
196 Demi then “read through some of the units” for WJ. She said:
For the Certificate III in plumbing to make you a qualified plumber, the mandatory streams are water and sanitary. So you need to be able to cover the water and sanitary streams. And then you can choose two out of the following four. So either drainage, mechanical, roofing or gas.
197 She continued:
So I just ask just so I can read you out the units for each of the streams. So for the water stream, I’ll read you out – it’d be things like welds using oxy-acetylene equipment. Carry out concrete in simple forms. Flash penetration through rooves and walls. Set out and install water services and install water pump sets.
[…]
There are a few in the sanitary streams. Cut and join sheet metal. Locate and clear blockages. Install discharge pipes. And then the drainage, we do, like, locate and clear blockages again. Drain a work site. Plan out a layout of residential sanitary drain system and install trench support. And then for the mechanical, there’s only four in the mechanical. Cut and join sheet metal, which you won’t have to do that again. Assemble mechanical service components. Fabricate and install steel pressure piping and install small bore heating systems.
[…]
So they’re all – most of the core units. Yeah, if – yeah. They’ll all be relevant to what you do on a day to day basis anyway.
198 WJ said: “Yeah. That’s pretty easy I think”.
199 In fact, Demi had made the qualification appear significantly easier than it was, because she had not read out all or even most of the core units.
200 Demi also assured WJ on the call that “you’ll be working with your facilitator the whole way through. And if you’re unsure of how you would cover a certain unit with a piece of evidence, for example, then your facilitator will be able to send you, like, a template or a sample to show you how – how to get it for you….He’ll help you out the whole way through”.
201 WJ was confident on the basis of what he was told by Demi that he could obtain a Certificate III in Plumbing in three to six weeks. He was under the impression that the RPL application would be easy and would not involve much work, and that the facilitator would come to his worksite to see his work as evidence. Demi told WJ that the cost would be $3700, and went through payment options. WJ told Demi that he would need to leave his enrolment until he transferred money, and she replied “It’s up to you. Obviously we’d like to get you enrolled as quickly as possible. You need this quite urgently.” WJ then asked Demi “Can you, like, fail and not get the qualification?” She replied:
So if we’re unable to produce your qualification – so once we’ve gathered together all of your evidence and we’ve lodged it to the registered training organisation, if the requirements are not met by the registered training organisation and they deem you not yet competent ---
[…]
--- you will receive 100 per cent refund of your paid fees. But this just means – yeah. So after you provide us all of your evidence ---
[…]
--- we’ll assess – we’ll exhaust all possible assessment methods. But if the RTO deems you’re not yet competent ---
[…]
--- then we will be able to issue you 100 per cent refund of your paid fees. Yeah.
202 In making this statement, GQA made the 100% money back guarantee representation to WJ.
203 It is WJ’s evidence that based on what Demi had told him, he was confident that even if he didn’t obtain a Certificate III in Plumbing, he would get his money back. He thought he “had nothing to lose by signing up with GQA because of the 100% money back guarantee that Demi had told me about.”
204 On 13 August 2015, Demi called WJ again to press him for payment. She told him that she would secure his spot with the facilitator because there were only a few spots available.
205 Demi called WJ again on 14 August 2015. During that call, she repeated the 100% money back guarantee to WJ, when she took a 25% deposit for the Certificate III in Plumbing. WJ entered into an eight week payment plan for the balance of the fees. Between 14 August and 4 September 2015, WJ paid GQA a total of $1965.65.
206 Later on 14 August 2015, WJ received an email from his skills recognition facilitator, Mr Raper. This email contained detailed information about the RPL process and the requirements for a Certificate III in Plumbing. After considering these documents, WJ realised that he did not have sufficient experience to obtain the qualification. He also realised that the process was much more involved than he had appreciated, since he had thought that he would only need to provide photos and references. For the first time, he appreciated that he would need to send videos.
207 WJ took no further steps in relation to his enrolment until early September 2015, when he decided to seek a refund from GQA under the 100% money back guarantee. WJ called Mr Raper to request a refund.
208 On 23 September 2015, GQA confirmed receipt of the refund request, and Mr Atkinson, GQA’s Facilitation Team Leader (Trades), provided a copy of GQA’s refund policy and a refund request form by email shortly afterwards.
209 Before receiving the refund policy, WJ had believed that he was entitled to a full refund from GQA if he was unable to obtain a Certificate III in Plumbing, based on what Demi had said about the 100% money back guarantee.
210 From 27 September 2015 to December 2015, WJ followed up GQA by phone and email more than ten times regarding his refund request.
211 On about 18 November 2015, WJ spoke to GQA’s Customer Experience Manager, Ms Markson. After reviewing his file, Ms Markson called WJ to advise him that an assessor would call WJ “to work with you just to see if there is evidence you would be able to submit through.” WJ expressed some reservations about that suggestion, because “it’s going back to where I was a month and a half ago.”
212 When the assessor called WJ, WJ was at work and told the assessor he did not have time to speak. Ms Markson called WJ the same day and told him that he needed to speak to the assessor, because GQA’s policy required it to exhaust every avenue. She told WJ she would try to have an assessor call him that day.
213 On 20 November 2015, WJ called Ms Markson, who told him the assessor would call him on 24 November 2015. WJ did not receive a phone call, and on 24 November 2015, he sent an email to Mr Atkinson, summarising his dealings with GQA.
214 On 25 November 2015, Ms Markson called WJ and told him he would need to have a competency conversation with an assessor to progress his refund application. The next day, an assessor called WJ and they discussed his experience.
215 On 27 November 2015, WJ called Ms Markson, who told him she would discuss the matter with the assessor and make a decision.
216 On 1 December 2015, WJ sent a further email to Mr Atkinson asking for an update. He did not receive a response, and on 7 December 2015 he emailed Mr Atkinson to say he intended to make a complaint to the Western Australian Department of Commerce.
217 WJ made a complaint to the Department of Commerce on about 14 December 2015.
218 In early 2016, WJ’s father, MJ, took over WJ’s refund request. MJ sent an email to Mr Wadi and other GQA representatives, and asked them to review WJ’s case. In January 2016, WJ appointed his father (MJ) to liaise with GQA on his behalf and a formal refund request was sent by MJ to Mr Wadi of GQA on 17 January 2016.
219 On 19 January 2016, Ms Markson sent MJ an email which said:
[WJ] has not worked in the Water and Sanitary Plumbing area, which is a key stream for the Certificate III in Plumbing. He had advised Demi that he had and that he could provide evidence to prove this. Demi would not have enrolled him if she knew this, as it is compulsory for this qualification.
220 It is apparent from the transcript of the call between Demi and WJ that Demi did not ask WJ whether he had worked in water and sanitary plumbing, and WJ did not say that he had worked in the area. In any case, it is apparent from the transcript and from the phone call that WJ was not able to hear Demi clearly. WJ did not appreciate that there were many more units that were required to complete the Certificate III in Plumbing. He signed up because he was told he would have “no problem” in completing the units, and because of the 100% money back guarantee.
221 Between 20 January and 22 February 2016, MJ and Ms Markson continued to exchange emails, but on 16 February 2016, Ms Markson told MJ that after reviewing the case, GQA decided WJ was not eligible for a refund. This refusal was given on the basis that Demi had gone over the streams and units, the process and the types of evidence required.
222 On 10 August 2016, a debt collection agency, Australian Debt Recoveries emailed WJ on behalf of GQA demanding overdue payment in the amount of $1,734.36. MJ sent an email to GQA, asking GQA to be reasonable in relation to the refund request. In response, MJ received an email from GQA’s lawyers, which reserved GQA’s rights in relation to an alleged misrepresentation by WJ as to his ability to establish competencies. On 17 November 2016, WJ received another demand from a debt collection agency.
223 It is apparent from WJ’s history set out above that GQA enrolled WJ without making detailed enquiries as to his suitability for the qualification. Had appropriate enquiries been made, it would have been immediately apparent that WJ was not eligible (as a GQA assessor established following a short conversation with WJ on 26 November 2015). In this respect, GQA did not provide service with due care and skill (in contravention of s 60 of the ACL), and GQA’s services were not fit for purpose, since GQA indicated that it could help WJ achieve a Certificate III in Plumbing (in contravention of s 61 of the ACL). GQA engaged in high pressure sales tactics to enrol WJ (including calling him repeatedly, stressing the urgency of his enrolment, and telling him there were limited places available). WJ relied upon GQA’s representations as to his eligibility and as to the 100% money back guarantee in entering into a contract with GQA. GQA never provided WJ with any services. WJ exhausted all avenues for qualification, since an assessor had concluded following a competency conversation that he was not eligible. GQA not only refused to provide WJ with a refund, but it engaged debt collectors to obtain the remainder of the contract price and had written letters to WJ reserving its rights to take action against him.
224 In summary, GQA made misrepresentations to WJ (the eligibility representation, the 100% money back guarantee representation and the refund ineligibility representation) and has engaged in unconscionable conduct in relation to WJ.
(b) GF
225 GF was a volunteer masseuse, who wanted to obtain a formal qualification in massage therapy. In about July 2015, GF filled out the Free Skills Review on the GQA website and input his contact details. He did not upload a CV. Shortly afterwards, he received a telephone call from a GQA representative, and told them that he was interested in finding out further information about obtaining a Certificate IV in Massage Therapy through the RPL process. The GQA representative told him that he would receive a telephone call from someone at GQA.
226 On 29 July 2015, GF received an email from GQA stating that a “Skills Recognition & RPL Specialist” would contact him in order to guide him through the process. The email attached an ebook, and stated: “It’ll provide you with absolutely everything you need to know when it comes to RPL and the assessment process.”
227 Shortly after receiving this email on 29 July 2015, GF received a telephone call from Ms Maher, a Skills Recognition & RPL Specialist. GF told Ms Maher that he was interested in obtaining a Certificate IV in Massage Therapy, that he had been working in massage with over twenty years’ experience, had a knowledge of anatomy, had experience in working with muscular injuries, and had management, client referral and administrative experience. Ms Maher told GF that he had sufficient experience to be eligible to obtain a Certificate IV in Massage Therapy through the RPL process and that he could provide videos and letters of recommendation from colleagues and friends as evidence. Based on what Ms Maher told GF, he was confident that he could obtain a qualification through GQA, and that a GQA facilitator would assist him. On the same day, Ms Maher sent GF an email, advising him that he was eligible for the Certificate IV in Massage Therapy, which cost $2,300. The email explained that suitable evidence included reference letters, job descriptions, work samples and certificates. Ms Maher’s email included a link to the Certificate IV in Massage Therapy requirements. GF did not open this link, because he believed he had a good understanding of the RPL requirements from his conversation with Ms Maher.
228 On 11 August 2015, GF contacted Ms Maher to ask her what to do next. She responded by saying that the next step was to enrol, either over the phone or by email, and that once GF’s enrolment was finalised, an “in-house facilitator” would call him within two working days to discuss the units and his evidence. On 13 August 2015, GF enrolled. He paid $2300 for the qualification. Upon enrolment, GF received an email from GQA confirming his enrolment in the RPL process, and an email from Ms Kane, a skills recognition facilitator at GQA. Ms Kane’s email listed what GF needed to provide to support his RPL application, including the RPL self-assessment kit, work samples, references, a resume, and any qualifications and certificates. Ms Kane did not attach the self-assessment kit to her email.
229 On 17 August 2015, GF emailed Ms Kane to ask her to call him to “clarify requirement as set out in the RPL kit and associated documents”. On 18 August 2015, he sent another email to Ms Kane. He did not receive any response from Ms Kane until 17 September 2015, when he received an email from Ms Kane stating that she had decided to leave GQA and that her colleague, Ms Janklin, would take over her portfolio. GF was not contacted by Ms Janklin.
230 On 28 September 2015, GF sent an email to Ms Janklin, attaching certificates of his existing qualifications. In his email, he said that “I had not had much discussion with [Ms Kane] so I guess I am starting from scratch. I will need help in finishing this off so I may ask you for guidance as to what additional certifications I will need”. He did not receive a response to this email from Ms Janklin.
231 On 2 October 2015, GF emailed Ms Janklin and Ms Kane, asking Ms Janklin to call him. He received no response from Ms Janklin and an out of office message from Ms Kane, saying that she had left GQA. GF left several telephone messages for Ms Janklin over the next few days, but she did not return his calls.
232 GF’s enrolment email had stated that he had 90 days to obtain his qualification, and he was concerned to obtain his qualification as quickly as possible so he could open a massage referral business with other experienced practitioners and earn income.
233 On 7 October 2015, he sent an email to Ms Maher, requesting her assistance and stating that he was concerned about the lack of follow up and guidance from GQA. Ms Maher responded and said that she would ask Ms Janklin to contact GF. On 8 October, GF emailed Ms Maher and Ms Janklin. Ms Janklin replied and sent the RPL self-assessment kit.
234 On 12 October 2015, GF received an email from Ms Janklin, stating:
It’s now been 2 months since you started RPL for the Certificate IV in Massage Therapy Practice qualification and I’m still awaiting some vital documents and evidence.
I wanted to advise that you only have 30 more days to complete the RPL application.
235 GF tried to call Ms Janklin twice. On 22 October 2015, he sent an email to Ms Janklin, asking her to call him. GF did not receive a response, so he tried to complete the application unassisted. On 27 October 2015, GF sent an email to Ms Janklin asking her to contact him about his completed self-assessment kit and supporting documents (some of which had already been sent to GQA). He received no response to that email. GF also wrote to Ms Maher, and asked her to ask Ms Janklin to contact him.
236 GF then received an email from Ms Janklin, which stated that the RPL process allowed three months for completion and this three month period was due to expire on 13 November 2015. The email also stated:
It’s important to know that if you fail to provide suitable evidence before the due date, your enrolment can be cancelled and you may forfeit any payments you have made.
237 After some further correspondence with Ms Maher, GF received a call from Ms Janklin on 28 October 2015, more than two months after his enrolment. He asked her to call him back. Later that day, Ms Janklin sent an email with a list of the evidence that was required.
238 Since GF had already provided some of the documents listed, he was concerned that Ms Janklin had overlooked some of his materials. He was also surprised by the volume of materials requested. Ms Janklin called GF later that day, but he was not free to talk. She agreed to call him back the next day, but did not do so.
239 On 29 October 2015, GF wrote to Ms Janklin, undertaking to prepare a video of his practice and attaching some additional materials. GF also told Ms Janklin that he was obtaining a reference, and asked her to call to discuss the information required. He also called Ms Janklin. Ms Janklin did not respond to his call or email.
240 By this stage, GF felt frustrated and overwhelmed by the RPL process and depressed about the money he had spent on the qualification and his lost earnings. Although he was trying to provide the necessary evidence, he was surprised by the evidence which was required.
241 On 30 October 2015, GF left Ms Janklin a voicemail. Ms Janklin did not return his call.
242 On 2 November 2015, GF called and left Ms Janklin another message to call him. He also called GQA and spoke to a GQA representative called Steven, who undertook to have Ms Janklin or another representative call GF. Later that day, a GQA representative called Mark called GF, and gave him more information about the RPL process.
243 On 17, 18 and 21 November 2015, GF sent Ms Janklin additional documents, including a revised RPL self-assessment kit for Certificate IV in Massage Therapy, a referral letter and client intake assessment forms and videos. Ms Janklin did not respond.
244 On 24 November 2015, GF contacted Ms Maher, asking her whether Ms Janklin still worked at GQA. On 24 November 2015, he received an email from Ms Maher, who said GF should receive a telephone call from GQA that day. GF did not receive a telephone call from anyone at GQA.
245 On 26 November 2015, GF sent another email to Ms Maher. He also received a call from Ms Janklin, who told him she would submit the portfolio to the RTO that day, and an email confirming the portfolio had been submitted.
246 GF did not hear anything further, and on 15 December 2015 he emailed Ms Janklin.
247 On 18 December 2015, he telephoned GQA and spoke to a GQA representative who told him Ms Janklin was not available. He asked for Ms Janklin to call back. She did not.
248 On 21 December 2015, GF received an email from Ms Janklin, in which she set out the feedback from the RTO on his RPL application and stated that he needed to provide further evidence to support his application. GF was frustrated, because he had assumed that the absence of feedback from Ms Janklin meant he had sufficient evidence.
249 GF tried to telephone Ms Janklin about this email but could not contact her.
250 Some of the feedback provided by the RTO included comments that GF had not supplied a resume (which was supplied on 27 October 2015), or third party testimonies (which was supplied on 17 November 2015) or work samples (supplied on 18 November 2015), and GF began to doubt whether Ms Janklin had submitted all his evidence, and whether GQA was working with a certified RTO.
251 On 22 December 2015, GF called GQA again. He asked to speak to Ms Maher, but spoke to a representative called Grace. Although Grace promised a member of the customer service team would call him back, he did not receive a call.
252 On 23 December 2015, GF called GQA again and spoke to a representative called Lucy, who undertook to speak to Ms Janklin’s manager.
253 On about 23 December 2015, GF received a call and an email from Ms O’Malley, who told him he needed additional evidence and said she would aim to get his application finalised in January 2016. GF responded to Ms O’Malley on 24 December 2015. GF provided further information to Ms O’Malley in early January 2016.
254 GF did not receive any response from Ms O’Malley, and emailed her on 12 January 2016 asking if she required further information. On 14 January 2016, he left a voice mail for Ms O’Malley, who did not return his call. On 18 January 2016, GF tried to call Ms O’Malley twice.
255 On 20 January 2016, GF spoke to a GQA representative called Hannah and asked about a refund. Hannah told him Ms O’Malley would respond to his email. Later that day, Ms O’Malley wrote to him promising a response on his RPL application. GF wrote back and asked for a refund.
256 On 21 January 2016, Ms O’Malley wrote asking for more evidence. By this stage, GF thought it was impossible to obtain the Certificate IV in Massage Therapy from GQA, and on 21 January 2016, he requested a refund again. GF made this request again on 22 January 2016 and on 28 January 2016 by email to Ms O’Malley.
257 GF also called GQA and spoke to Ms Markson, Ms Markson told him he had not submitted enough evidence. GF reiterated his request for a refund. He understood that Ms Markson had agreed to provide either a qualification or a refund by 3 February.
258 GF sent an email to Ms O’Malley in relation to his call with Ms Markson, but received no response. He did not receive a refund by 3 February 2016.
259 On 5 February 2016, GF emailed Ms Maher and Ms O’Malley and asked them to call him, and he subsequently spoke to Ms O’Malley. Ms O’Malley told him the CFO needed to approve the refund. Later that day, Ms O’Malley called GF and told him his refund was not approved, because he had not provided the evidence required.
260 After further correspondence with Ms O’Malley, GF sent a letter of complaint to the directors. No response was received.
261 After further correspondence with GQA, in which GF unsuccessfully sought a refund, GF contacted NSW Fair Trading.
262 GF continued to seek his refund of $2300. He has not obtained a Certificate IV in Massage Therapy.
263 GF completed the Free Skills Review, and was told by Ms Maher that he was eligible. GQA made the skills review representation and the eligibility representation to him, in circumstances where GQA had no basis for making either representation. To do so was misleading or deceptive.
(a) made the eligibility representation to GF;
(b) provided simplistic and incomplete information to GF about the RPL process;
(c) failed to provide GF with basic information about his qualification for a considerable period of time after his enrolment;
(d) failed to provide services with due care and skill (given the persistent failure of GQA representatives to respond to GF, and the absence of assistance with GF’s RPL application);
(e) failed to provide services in a reasonable period (or at all); and
(f) refused a refund, and thereby made the refund ineligibility representation (which was false or misleading or deceptive, since GQA’s failure to render services with due care or in a reasonable period of time meant that GF was entitled to a refund under the ACL).
265 In the circumstances, GQA’s conduct to GF is unconscionable.
(c) AV
266 AV became aware of GQA through their online advertisements. He was attracted to the 100% money back guarantee. On 10 September 2015, AV was contacted by a skills recognition specialist from GQA, Ms Provan. Ms Provan asked AV to send a copy of his resume to her so that GQA “can conduct a detailed review of your career history and make suitable recommendations to match your experience and future plans”. Ms Provan also asked AV what qualification he was looking to obtain and he sent an email to Ms Provan in response identifying the graduate certificate. Ms Provan asked AV to tell her about his experience, and he did so in considerable detail. She responded by suggesting that he enrol in the Advanced Diploma of Engineering. AV asked about the graduate certificate in engineering, and she said he was not eligible. AV indicated he would need to think about it, and she responded by providing payment plans. AV responded by indicating that payment was not an issue but that an Advanced Diploma, “would be a waste of time and money”. Ms Provan wrote back and said that she had spoken with the head facilitator and was informed that the RTO’s requirements had recently changed, and that AV’s current qualification and work experience would be “enough” to get him enrolled for a Graduate Diploma of Engineering. Ms Provan offered AV a discount of $500 from the total cost of the Graduate Diploma (being, $6500) as an “apology” for making the error. AV asked Ms Provan to clarify the 100% money back guarantee, and received a response from Ms Provan by email quoting the 100% money back guarantee and indicating that AV should not be concerned, given his experience in the industry.
267 AV understood the 100% money back guarantee to mean that if he submitted all his evidence and still couldn’t obtain the qualification he would be able to receive 100% of his money back. The 100% money back guarantee was the deciding factor in his decision to sign up for the Graduate Diploma in Engineering with GQA, because he was not familiar with GQA and the guarantee provided him with reassurance.
268 On 22 September 2015, AV and Ms Provan spoke on the telephone. During the call, AV asked Ms Provan to confirm the 100% money back guarantee. After receiving these assurances, he paid a deposit.
269 Later that day, AV received a self-assessment kit from Ms Rifai, a skills recognition facilitator at GQA. Between 22 September 2015 and 14 October 2015, AV engaged in lengthy correspondence with Ms Rifai about the self-assessment kit, the provision of evidence, the assessment of evidence and unit selection.
270 On 14 October 2015, Ms Rifai sent an email which stated that she could not submit the portfolio until the account was finalised. Ms Rifai clarified that she would not submit the application until the account was paid in full. AV asked if he had sent enough information, and Ms Rifai responded that she believed, “it [was] acceptable documents. However the final review will be from the assessor who will deem your competency”. Also on 14 October 2015, the Customer Service Manager, Heather Turner, contacted AV and asked whether he would consider taking a loan with zipMoney in order to pay off the account with GQA, because GQA could not submit his portfolio for assessment until GQA received the full payment for the course. AV declined the offer. AV noted in his response that he was not aware before receiving Ms Rifai’s emails that the account had to be paid in full before the assessment could begin.
271 Between 22 October 2015 and 9 November 2015, AV provided Ms Rifai with further evidence for use in his assessment, and on 10 November 2015, Ms Rifai indicated that the “portfolio is looking great at the moment and I am happy to submit”.
272 On 11 November 2015, Ms Rifai told AV that he had a balance of $3000, due in 2 monthly instalments scheduled for 20 November and 20 December 2015, and that she could not submit the portfolio until the balance was finalised.
273 On 21 November 2015, AV received an email from Ms Rifai in which she stated that he only had 30 more days to complete the RPL application. He sent a response which stated:
I thouht (sic) we had all the evidence and just waiting for the last payment before submission.
What else do we need?
Also what does it mean 1 month left?
274 He also sent a further email asking Ms Rifai to call him to identify the missing information.
275 On 23 November 2015, Mr Ismail, another skills recognition facilitator, confirmed that the email was an automated prompt and that AV’s portfolio was ready to submit. AV asked him to confirm that once the final payment was made, there was nothing more to do.
276 On 24 November 2015, Ms Rifai confirmed by email that when the payment was made, the portfolio would be submitted, and that she was leaving GQA and Mr Ismail was taking over AV’s portfolio. Mr Ismail also sent an email about his responsibility for the portfolio.
277 On 1 and 6 December 2015, AV received more automated reminders. Mr Ismail confirmed that once the balance was cleared AV’s portfolio would be submitted.
278 On 23 December 2015, AV paid GQA the remaining instalment of $1,500 via direct debit.
279 On 4 January 2016 and 12 January 2016, AV sent three emails to Mr Ismail asking whether his portfolio had been submitted. On 12 January 2016, AV received two emails from Mr Ismail advising that his compiled portfolio had been submitted to the RTO for final review, and that the process could take between 2 to 4 weeks.
280 On 15 February 2016, AV sent an email to Mr Ismail asking for an update regarding his submission. On 18 February 2016, AV received an email from Mr Ismail in which he stated that he had followed up with the RTO and would receive the feedback the following week, after which “I will be in contact with you straight away”. On 10 March 2016, AV sent a further email and did not receive a response.
281 On 10 March 2016, AV emailed Ms Turner asking to be put in contact with someone who could update him regarding his application. Ms Turner responded and informed him that Ms Curwen, a skills recognition facilitator, had taken over his portfolio. Later that day, AV received an email from Ms Curwen in which she stated that she had taken over Mr Ismail’s client portfolios.
282 Ms Curwen told AV that the remote assessor had advised her that his portfolio was incomplete, that 4 out of the 8 units were imported from a different training package and that he needed to select 4 new units and provide evidence for them and the prerequisites.
283 AV was frustrated by this, because he had selected units based on Ms Rifai’s recommendation. Between 14 and 22 March 2016, he exchanged seven emails with Ms Curwen concerning the evidence he had to submit for his application. He sought specific guidance regarding the correct units. On 31 March 2016, AV wrote to Ms Curwen to say that he was struggling to find units he could show competency for, and asking Ms Curwen to identify options. AV sent follow up emails asking Ms Curwen to respond to his request on 11, 25 and 29 April.
284 AV felt that he had wasted his time, and been given the wrong advice and information by GQA. Nonetheless, he thought that persevering was the only way he would end up with something for his money, since he had already paid GQA.
285 On 29 April 2016, Ms Curwen sent AV a word document listing all elective units. AV responded by saying, “[s]ince the 4 units I selected are not part of the program as mentioned by the assessor – I don’t think I can find another 4 which I can qualify for”. He received an email in reply from Ms Curwen in which she stated the following:
At this level of qualification, there should be multiple units you can select from based on your working history and experience. You need to actually look through the units I have just sent you to determine if you can complete them or not.
The 4 units that were deemed not eligible, are basic units that do not belong to this qualification, at a graduate diploma level you should have a much more broad experience that you can refer to in order to be deemed competent.
286 AV sent a further email to Ms Curwen in which he asked for an update of what units had been accepted in the initial assessment and whether he would need more evidence for any units. He noted that he would go through the units again. He also stated that he would need some feedback. In reply, Ms Curwen stated that if AV could not supply the required evidence for the relevant units, then he would need to look at downgrading to a lower level qualification. Ms Curwen also attached a “mapping document”.
287 As AV had explained to Ms Provan before he enrolled, he was not interested in a lower qualification.
288 AV replied to Ms Curwen and asked which units he did qualify for or have proven competence in. He received a response from Ms Curwen in which she stated that so far he was not competent in any of the units.
289 AV considered asking for a refund, but decided it would be pointless in light of online reviews. He thought his only hope to salvage something was to continue with the RPL process.
290 On 19 May 2016, AV sent an email to Ms Curwen in which he stated that he had uploaded six folders to a shared drive enclosing additional evidence for his portfolio. He also stated that he had resigned from his current position and would finish work on 14 June 2015, and asked Ms Curwen to let him know if she required anything else, because once he left his job obtaining any documents would be impossible.
291 On 24 May 2016, AV received a further automated email, telling him that the RPL process was due to expire on 10 June 2016. He responded to this email requesting an extension. AV sent further emails to Ms Curwen on 24 and 26 May 2016 seeking an update.
292 AV submitted a complaint form to the ACCC on 25 May 2016. On 26 May 2016 he visited the government website training.gov.au to see if there was another RTO that might be able to assess all of the evidence.
293 On 3 June 2016, AV sent an email to Ms Provan. He explained that he was not receiving any responses regarding his application despite emailing multiple times. On 6 June 2016, Ms Provan told him she had escalated his email to her manager.
294 On 7 June 2016, AV received an email from Ms Curwen which stated that if suitable evidence was not provided by the due date (8 June 2016), his enrolment would be cancelled and payments forfeited. AV emailed Ms Curwen and Ms Provan, and Ms Provan wrote back and said that she had spoken to her manager to demand someone call AV. Later that day, Ms Curwen sent an email stating that she had received the additional qualification and was speaking with the RTO. AV responded saying that Ms Curwen did not appear to have downloaded the additional evidence, and reminding Ms Curwen that when he left his job, getting further evidence would be difficult. On 23 and 30 June 2016, AV asked Ms Curwen for updates.
295 On 8 July 2016, Mr Tinga, a Customer Service Agent at GQA, sent AV an email saying that he had taken over Ms Curwen’s portfolios and would contact AV once he had reviewed the assessor’s feedback of his portfolio. Later that day, AV sent an email to Mr Tinga stating that Mr Tinga was the fourth person to whom his matter had been transferred, GQA had not provided the service he paid for within a reasonable time and that he wanted a full refund.
296 On 14 July 2016, Mr Tinga called AV. They discussed the options and Mr Tinga expressed the view that AV was not entitled to a refund because the change was a circumstantial change. He indicated that AV’s options might be attending training (although that might be difficult) or going for a lower certificate or transferring the certificate. AV asked if there was any feedback from the assessor and Mr Tinga said he would map the new evidence. Mr Tinga also gave AV feedback on his application (that he didn’t read the units of competency).
297 Later that day, AV emailed Mr Tinga and asked for a copy of the refund policy.
298 Between 4 and 15 August 2016, AV submitted further information by email.
299 On 29 August 2016 and 13 September 2016, AV asked for updates, and Mr Tinga responded that he had no feedback.
300 On 28 September 2016, Mr Tinga informed AV that the only RTO issuing Graduate Diplomas in Engineering had removed the qualification from their scope, but that AV should let Mr Tinga know if AV wanted the advanced diploma.
301 AV asked for a refund, and attached his original correspondence with Ms Provan.
302 After continuing to unsuccessfully seek a refund between September and November 2016, AV engaged lawyers in November 2016 and obtained a refund.
(a) AV relied on GQA’s 100% money back guarantee representation in entering into a contract with GQA;
(b) GQA provided simplistic and incomplete information to AV about the RPL process;
(c) GQA provided AV with incorrect information about his qualification;
(d) GQA failed to provide services with due care and skill (given the failure of GQA representatives to respond to AV, and GQA’s failure to assist AV);
(e) GQA failed to provide services in a reasonable period (or at all).
(f) GQA denied a refund in circumstances where the consumer law guarantees plainly applied.
304 In all the circumstances, GQA’s conduct to AV was unconscionable.
(d) JA
305 On or about 1 August 2015, JA completed the Free Skills Review on the GQA website. GQA then emailed JA every few days with marketing material for GQA. Some of the marketing materials made the 100% money back guarantee representation. The marketing materials requested JA provide his phone number to GQA. On 9 September 2015, a GQA sales representative called JA on two separate occasions. The GQA sales representative made the eligibility representation about JA’s eligibility to obtain a Certificate IV in Drilling Operations despite GQA concluding that “he seemed sceptical” about his eligibility. The GQA sales representative confirmed it would cost $4,500 to obtain that qualification and offered JA a limited “today only” discount of $300 off the full price. GQA took a deposit of $420 from JA and set up monthly instalments of $1260 for three months for the remaining amount.
306 On 10 September 2015, a GQA facilitator provided JA a RPL kit.
307 From mid-September to October 2015, JA provided GQA with his evidence. During this period, JA followed up GQA by phone and email repeatedly to enquire about the progress of his portfolio but did not receive an adequate response or a response at all.
308 Due to the lack of service provided, JA requested a refund on 22 October 2015. JA lodged a grievance form requesting a refund but received no response from GQA. On 11 December 2015, JA sent his grievance form again to GQA. GQA emailed JA advising him he was not eligible for a refund on the basis of the refund policy. As such, in this email GQA made the refund ineligibility representation.
309 On 15 January 2016, JA received a letter from Australian Debt Recoveries (acting on behalf of GQA) advising that JA was required to pay the remaining amount of $3,780.
310 JA sought assistance from the Consumer Action Law Centre and filed proceedings in VCAT. Subsequently, JA settled his dispute with GQA.
311 In summary, GQA:
(a) made the 100% money back guarantee representation and eligibility representation to induce JA to enter into a contract with GQA;
(b) provided simplistic and incomplete information to JA about the RPL process;
(c) failed to provide services with due care and skill (given the failure of GQA representatives to respond to JA, and GQA’s failure to assist JA);
(d) failed to provide services in a reasonable period (or at all); and
(e) denied a refund in circumstances where the consumer law guarantees plainly applied.
312 In all the circumstances, GQA’s conduct to JA was unconscionable.
SUMMARY OF PRINCIPAL FINDINGS
313 At this point, it is convenient to summarise my principal findings from the above evidence.
(a) 100% money back guarantee representation
314 From at least 1 January 2015, GQA’s website included the following statements:
(a) “100% Money Back Guarantee”; and
(b) “100% MONEY BACK GUARANTEE Read More”.
315 From at least 1 January 2015, GQA’s terms and conditions, which were available on its website, included words to the following effect under the heading “REFUND AND GUARANTEES”:
Our aim is to assist applicants to successfully achieve competency so they are issued with the Qualification from our RTO partners. We want you to feel confident in choosing GQ Australia, so we offer a “100% money back guarantee” if your RPL application is unsuccessful.
Our Partnerships Agreement with the RTO issuing the qualification permits GQ to conduct assessment on their behalf — we are the RTO’s contracted assessors and comply with all their requirements. We are familiar with the competency requirements to achieve the qualification with the RTO, so rejection of RPL applications rarely happens. Our assessors compile detailed evidence to support the application.
In most cases, RPL and skills recognition is completed within four (4) weeks. However, the final assessment decision and issuing of the qualification is the decision of the RTO. If applicants have provided sufficient, valid, authentic and current evidence to the assessor and our partnered RTO rejects the application, we will refund the full cost of enrolment. GQ requests that applicants allow a maximum of 90 days from the date of your enrolment for the qualification to be issued.
Refund Exceptions
The GQ Australia “100% money back guarantee” doesn’t apply if:
Applicant withdraws from RPL after enrolment – if applicants decide they don’t wish to proceed with the RPL process following enrolment, no refund is offered. This is due to the fact that there is extensive review of career information and administration that is undertaken on your behalf before the submission to our RTO partners.
UEE30811 Certificate III in Electrotechnology Electrician – this refund doesn’t apply to our UEE30811 due to the extensive theory and practical assessment process prior to submitting the portfolio to our RTO partners.
If you need clarification, please contact the Head Assessor directly on 1300 88 43 66.
316 From at least about 17 December 2015, GQA’s terms and conditions, which were available on its website, included words to the following effect:
100% Money Back Guarantee
Get Qualified Australia has a 100% Money Back Guarantee should we be unable to get you the qualification. This means that after you have provided us with all your mentioned evidence and after exhausting all possible avenues, if the Registered Training Organisation deems you not yet competent and you are unable to meet the requirements of the qualification, you will be eligible for a 100% refund of your paid fees.
317 From at least about August 2015, GQA sent emails to customers and potential customers which contained statements to the following effect:
100% Money Back Guarantee – It’s our aim to get our applicants qualified and we’re confident we can, if you’re eligible. If, however your application is unsuccessful, we’ll give you your money back.
318 From at least about August 2015, GQA sent emails to customers and potential customers which contained statements to the following effect:
100% Money Back Guarantee – It’s our aim to get our applicants qualified and we will do everything we can to help you once we determine you’re eligible. If, however, your application is unsuccessful, we’ll give you your money back.
319 From at least about September 2015, GQA sent emails to customers and potential customers which contained statements to the following effect:
Get Qualified Australia has a 100% Money Back Guarantee should we be unable to get your qualification. This means that after you have provided us with all your mentioned evidence and after exhausting all possible avenues, if the Registered Training Organisation deems you not yet competent and you are unable to meet the requirements of the qualification, you will be eligible for a 100% refund of your paid fees.
320 From at least about August 2015, GQA representatives made statements in telephone calls to customers and potential customers to the following effect:
… if we are unable to produce your qualification, so once we’ve gathered together all of your evidence and we’ve lodged it to the registered training organisation, if the requirements are not met by the registered training organisation and they deem you not yet competent you will receive 100% refund of your paid fees … so after you’ve provided us with all of your evidence we’ll exhaust all possible assessment methods but if the RTO deems you not competent then we will be able to issue you a 100% refund of your paid fees.
321 Each of these statements made the 100% money back guarantee representation. By making the 100% money back guarantee representation, GQA represented that in the event that a consumer was unable to obtain a qualification through GQA, they were entitled to 100% of their money back. The 100% money back guarantee representation was misleading or deceptive because GQA purported to apply “eligibility criteria” for granting refunds which were not made clear to consumers before they made payments to GQA. In particular, GQA applied an eligibility criterion requiring that consumers provide to GQA valid, current, authentic and sufficient evidence and that consumers exhaust all possible avenues of obtaining their chosen qualification, in circumstances where GQA representatives did not disclose all of the relevant information in relation to units of competency for the qualifications, the evidentiary requirements to be met in respect of each unit, the possibility that gap training would be required, the possibility that practical assessments would be required or the possibility that consumers would incur additional fees for gap training or practical assessments. This eligibility criterion was used as a basis to reject refund requests that were made in reliance on the 100% money back guarantee, in circumstances where customers were ineligible for their chosen qualification and were therefore unable to submit sufficient evidence to obtain that qualification.
322 In the circumstances, GQA’s representations concerning the 100% money back guarantee were misleading or deceptive within the meaning of s 18 of the ACL and misleading or false within the meaning of s 29(1)(m) of the ACL because the eligibility criteria which were in fact applied by GQA in determining whether to grant a refund were not made clear in the 100% money back guarantee representation (or elsewhere).
323 Further, from at least April 2016 GQA deducted a 25% administration processing fee from any monies paid by consumers. GQA’s intention to charge this fee was not made clear in the 100% money back guarantee representation (or elsewhere).
324 For these reasons, GQA’s representations concerning the 100% money back guarantee were misleading or deceptive within the meaning of s 18 of the ACL and misleading or false within the meaning of s 29(1)(m) of the ACL.
(b) Skills review representation
325 The Free Skills Review at http://www.gqaustralia.edu.au and previously at http://www.gqaustralia.com.au was programmed so that no matter what variables were selected by a consumer in completing the review, the consumer was provided with an eligibility assessment which read: “Good news! Based on your answers, it looks like you might be eligible to achieve a qualification without the need for study”.
326 The skills review representation was a representation with respect to future matters within the meaning of s 4(2) of the ACL.
327 In light of the evidence set out earlier, GQA did not have a sufficient understanding or knowledge of consumers’ prior experience and learning based on the Free Skills Review to assess whether they might be eligible to obtain any qualifications without the need for further study, nor was any such qualification ever identified by GQA.
328 Further, GQA had no reasonable grounds for making the skills review representation. In my view, the skills review representation was misleading or deceptive within the meaning of s 18 of the ACL and false or misleading within the meaning of s 29(1)(b) of the ACL.
329 Further, in light of the evidence set out above, GQA’s online Free Skills Review purported to perform but did not in fact perform a genuine assessment of the consumer’s eligibility to obtain or achieve any qualifications. As such, the skills review representation was misleading or deceptive within the meaning of s 18 of the ACL and false or misleading within the meaning of s 29(1)(b) of the ACL.
(c) Eligibility representation
330 The eligibility representation was a representation that GQA made to consumers in telephone conversations and written correspondence that the consumer was eligible to receive specific qualifications based on their previous work experience, using RPL. The eligibility representation was a representation with respect to future matters within the meaning of s 4(2) of the ACL.
331 From at least 1 January 2015, GQA employed or engaged sales representatives to undertake “eligibility assessments” of consumers. GQA did not require its GQA sales representatives to have any prior adequate training, qualifications or experience in training or assessment either in general or in the specific qualification fields for which they would undertake eligibility assessments. From at least April 2016, GQA advertised for sales representatives with call centre experience, communication skills, drive and who were “extremely money hungry”. The training for GQA sales representatives did not include proper instruction in training or assessment. In essence, GQA sales representatives were not qualified to assess, or capable of properly assessing, consumers’ eligibility for qualifications.
332 In the circumstances, the eligibility representation made to customers was misleading or deceptive within the meaning of s 18 of the ACL and misleading or false within the meaning of s 29(1)(b) of the ACL, because when it was made, GQA had no reasonable grounds for making the eligibility representation.
333 Further, the eligibility representation was a representation with respect to future matters within the meaning of s 4(2) of the ACL. GQA did not instruct its sales representatives to obtain any documents or evidence from a consumer before they enrolled customers and received payment from them. GQA sales representatives assessed eligibility on the basis of short telephone calls or email exchanges, which did not enable them to accurately assess a consumer’s prior experience against the requirements for the chosen qualifications. As such, GQA representatives did not have a sufficient understanding or knowledge of the consumers’ prior experience, learning or available evidence to assess whether consumers were in fact eligible to obtain their chosen qualifications through the RPL process or at all.
334 In the circumstances, the eligibility representation was misleading or deceptive within the meaning of s 18 of the ACL and misleading or false within the meaning of s 29(1)(b) of the ACL. When it was made, GQA had no reasonable grounds for making the eligibility representation.
(d) Refund ineligibility representation
335 The refund ineligibility representation was a representation that GQA made during telephone conversations and in written correspondence to consumers that the consumer was not eligible to receive a refund of payments the consumer had made to GQA in circumstances where (despite the eligibility representation) the consumer was not eligible for an RPL qualification or had otherwise tried unsuccessfully to obtain an RPL qualification through GQA, but where the consumer was entitled to a refund under the consumer guarantees in the ACL.
336 As is established in relation to the eligibility representation, GQA sales representatives were not qualified to assess or capable of properly assessing consumers’ eligibility for qualifications and they did not have a sufficient understanding or knowledge of the consumers’ prior experience and learning or the requirements of particular qualifications to assess whether consumers were in fact eligible to obtain any qualifications. Further, GQA sales representatives provided simplistic or incomplete information to consumers about the RPL process, about the evidence required to support an RPL application and about the units of competency for particular qualifications. Further, they failed to make proper inquiries of consumers as to their individual background and experience and failed to inform consumers about key terms and conditions of GQA’s standard form consumer agreement (such as the refund policy). Further, the GQA facilitators did not have a technical background which would allow them to accurately assess whether a consumer’s application was sufficient to obtain RPL qualifications. The GQA facilitators failed to provide sufficient guidance and assistance to consumers in completing their RPL application. Further, GQA facilitators gave incorrect advice and assurances to consumers about the pre-requisites for qualifications and the documentation that was necessary to obtain a qualification.
337 In light of the matters set out above, the services that were provided by GQA failed to comply with the consumer guarantee in s 60 of the ACL because they were not provided with due care and skill. The failure to comply with the consumer guarantee in s 60 of the ACL was a major failure. As such, consumers were entitled to a refund under s 269(3) of the ACL. Therefore, the refund ineligibility representation was misleading or deceptive within the meaning of s 18 of the ACL and false or misleading within the meaning of s 29(1)(m) of the ACL, because consumers were entitled to a refund under the ACL.
338 Further, the services that were provided by GQA failed to comply with the consumer guarantee in s 61 of the ACL because they were not fit for the purpose of obtaining qualifications through the RPL process. The failure to comply with s 61 of the ACL was a major failure. As such, consumers were entitled to a refund under s 269(3) of the ACL. Therefore, the refund ineligibility representation was misleading or deceptive within the meaning of s 18 of the ACL and false or misleading within the meaning of s 29(1)(m) of the ACL, because consumers were entitled to a refund under the ACL.
339 Further, GQA facilitators failed to provide consumers with services in obtaining qualifications through the RPL process within a reasonable time. Consequently, the services that were provided by GQA facilitators failed to comply with the consumer guarantee in s 62 of the ACL. The failure to comply with s 62 of the ACL was a major failure. Therefore, the refund ineligibility representation was misleading or deceptive within the meaning of s 18 of the ACL and false or misleading within the meaning of s 29(1)(m) of the ACL, because consumers were entitled to a refund under the ACL.
(e) Unfair contract term
340 Each contract entered into between GQA and individual consumers from about 1 January 2015 to date (the GQA consumer contract) was a contract for the supply of services to an individual whose acquisition of the services was wholly or predominantly for personal use. The GQA consumer contract was a consumer contract within the meaning of s 23(3) of the ACL. The GQA consumer contract was a standard form contract.
341 The GQA consumer contract included a refund policy as I referred to above.
342 The terms of the refund policy were not brought to the attention of consumers at the time of entering into an agreement with GQA and were not transparent within the meaning of s 24(3) of the ACL.
343 The terms of the refund policy caused a significant imbalance in the parties’ rights and obligations under the GQA consumer contract.
344 Further, the terms of the refund policy were not reasonably necessary to protect GQA’s legitimate interests because the policy could be relied upon to refuse a refund in circumstances where GQA had not incurred any significant costs in relation to a particular consumer or GQA would not be out of pocket if a refund were provided and s 24(4) applied.
345 Further, the refund policy caused financial and other detriment to consumers, given that consumers affected by the refund policy had not received the promised services (obtaining qualifications through the RPL process) but had incurred significant expense.
346 In light of the matters set out above, the refund policy was an unfair contract term within the meaning of s 24 of the ACL. Therefore, the refund policy is void by the operation of s 23 of the ACL.
(f) Unsolicited consumer agreements
347 Consumers completing the Free Skills Review could provide GQA with contact information in order to receive a free “eligibility assessment” with a “GQA Skills Recognition Specialist”. Consumers who provided GQA with contact information for the purpose of receiving a free “eligibility assessment” were subsequently contacted by GQA sales representatives.
348 Where the consumer had provided a telephone number, this contact was made by telephone.
349 GQA sales representatives were instructed by GQA to sell GQA’s services to consumers. They were provided with a script as to how to respond to and overcome common objections raised by consumers about using GQA’s services, including by suggesting that there were limited enrolments available, offering time limited discounts, offering instalment plans and emphasising the 100% money back guarantee representation.
350 Some of the consumers contacted by GQA subsequently entered into a GQA consumer contract for the supply of GQA’s services.
351 In the premises, GQA consumer contracts entered into by consumers over the telephone under these circumstances (unsolicited GQA consumer contracts) were unsolicited consumer agreements within the meaning of s 69 of the ACL, because the relevant consumers did not invite GQA to make a telephone call for the purpose of entering into negotiations relating to the supply of services and did not provide the telephone number for the predominant purpose of entering into negotiations relating to the supply of services. Further, the presumption in s 70 of the ACL applies.
352 The unsolicited GQA consumer contracts entered into by GQA were not in the form required by s 79, given that they, inter alia:
(a) did not set out in full all of the terms of the unsolicited GQA consumer contract, including the total consideration to be paid by the consumer;
(b) did not include a notice on the front page which conspicuously and prominently informed the consumer of the consumer’s right to terminate the unsolicited GQA consumer contract;
(c) were not accompanied by a notice which could be used by the consumer to terminate the unsolicited GQA consumer contract; and
(d) were not transparent.
353 Further, GQA required and accepted payment from consumers before the unsolicited GQA consumer contract was given to the consumer. GQA’s practice in requiring and accepting payment from consumers before the unsolicited GQA consumer contract was given to consumers contravened ss 86(1)(b) and 86(1)(c) of the ACL.
(g) Unconscionable conduct
354 The principal elements of GQA’s unconscionable conduct are established by the following matters.
355 First, GQA entered into employment and contractor agreements with sales representatives who had telemarketing sales experience but who did not necessarily have any expertise, experience, qualifications or specialist knowledge of the RPL process, as GQA did not require this as a criteria for employment in this role. GQA’s identified aim was to employ people who were ‘money hungry’. GQA paid sales representatives a salary or hourly rate plus commission based on the number of consumers whose agreements they procured to apply for qualifications from RTOs affiliated with GQA using GQA’s services. GQA provided limited and cursory training to its sales representatives about the RPL process and the competency requirements for qualifications offered by RTOs affiliated with GQA. GQA’s sales representatives were not qualified or sufficiently skilled to conduct comprehensive assessments of the consumer’s skills and experience. GQA referred to its sales representatives as “skills recognition specialists”, notwithstanding the limited expertise, experience, qualifications or specialist knowledge that GQA’s sales representatives had in the RPL process and the fact that they were not qualified to conduct comprehensive assessments of the consumer’s skills and experience.
356 Second, GQA obtained the contact details of potential customers through the Free Skills Review function on its website. This function produced an automated response which included the skills review representation, irrespective of the information submitted to GQA by the consumer.
357 Third, GQA provided sales representatives with a script for use with prospective consumers. This script:
(a) directed sales representatives to introduce themselves as “the Skills Recognition and RPL Specialist here at GQA”; and
(b) provided direction about how to respond to and overcome objections raised by consumers who expressed reluctance in using GQA’s services.
358 Fourth, GQA sales representatives were directed to use unfair sales tactics, such as suggesting that enrolments were limited when they were not limited, and offering time limited discounts to encourage consumers to enrol immediately.
359 Fifth, GQA sales representatives were encouraged by GQA to entice prospective customers to use GQA’s services by making the eligibility representation, which representation was misleading or deceptive or false for the reasons set out above.
360 Sixth, GQA sales representatives were encouraged by GQA to make the 100% money back guarantee representation, which representation was misleading or deceptive or false for the reasons set out above.
361 Seventh, GQA sales representatives were not required by GQA to explain the refund eligibility requirements or the fees and charges which applied under GQA’s refund policy to consumers.
362 Eighth, GQA sales representatives were required to take payment from consumers before providing them with accessible and detailed information about the competency and evidence requirements for the qualifications in documentary form.
363 Ninth, GQA sales representatives did not provide sufficient opportunity for consumers to consider all relevant information.
364 Tenth, GQA sales representatives were not required by GQA to adhere to ss 79 or 86 of the ACL in respect of consumers who provided their contact information to GQA in order to receive a free “eligibility assessment”, for the reasons set out above.
365 Eleventh, GQA entered into consumer agreements with customers which contained unfair contract terms with respect to the payment of refunds, for the reasons set out above.
366 Twelfth, GQA sales representatives were not required by GQA to disclose to consumers the risk that they would be liable to GQA for the full cost of an RPL qualification even if they were ultimately ineligible to obtain qualifications through RPL.
367 Thirteenth, GQA sales representatives were not required by GQA to disclose to consumers that because GQA did not offer a cooling off period consumers would be liable to GQA for the full fee and bound by GQA’s terms and conditions upon payment of a deposit.
368 In summary, the cumulative effect of the conduct of GQA set out above was to create a situation in which GQA held a position of unequal bargaining power vis-à-vis consumers.
369 Moreover, GQA took advantage of the unequal bargaining position by:
(a) relying on the terms of its refund policy to refuse refund requests; and
(b) relying on the terms of its agreements with consumers to take debt recovery action against customers who did not receive qualifications.
370 By reason of these matters, GQA, in trade or commerce:
(a) engaged in a system of conduct or pattern of behaviour that was unconscionable; and/or
(b) engaged in conduct in the course of its dealings with the relevant individuals that I have identified earlier that was unconscionable.
PERSONAL LIABILITY OF MR WADI
371 As I have said, Mr Wadi was GQA’s chief executive officer, sole director, sole shareholder and the controlling mind of GQA. In my view, it is clear on the evidence that Mr Wadi aided, abetted, counselled and procured and was directly and indirectly knowingly concerned in each of GQA’s contraventions of the ACL, save and except the allegations of unconscionable conduct concerning individual consumers. Mr Wadi was intimately involved in and had knowledge of the systemic deficiencies (Yorke v Lucas (1985) 158 CLR 661). I have already referred to some aspects of the evidence concerning and implicating Mr Wadi in the various contraventions. Let me supplement this with the following additional evidence.
(a) The 100% money back guarantee representation
372 It is apparent from Mr Wadi’s s 155 examination that Mr Wadi was knowingly involved in the development of the 100% money back guarantee and in the imposition of conditions on the guarantee. In his s 155 examination, Mr Wadi gave the following evidence, which has been tendered by way of admission:
MR LANG: When was the money back guarantee introduced?
MR WADI: I can’t remember.
MR LANG: Who was responsible for introducing it?
MR WADI: I can’t remember.
MR LANG: Was it your idea?
MR WADI: I definitely approved it because it was a conditional money back guarantee but I can’t remember if it was marketing, myself or operations or sales.
[…]
MR WADI: ... But at the end of the day I approved it so I don’t know if it makes any difference.
MR RENEHAN: You made it a point that it was a conditional money back guarantee so I assume you not only approved the money back guarantee but you approved the conditions that were attached to that money back guarantee?
MR WADI: Correct so sometimes ideas we welcome them to come from our staff. They might be not – they might think their idea is good but then that’s my duty is to see okay is it good or do we tweak it to make it better, and I think the money back guarantee are still – my intentions on it that it was conditional money back guarantee with terms and conditions attached to it.
MR LANG: Was the idea of imposing conditions your idea?
MR WADI: Possibly yes.
MR LANG: What were the conditions that were imposed?
MR WADI: If the applicant provides all the evidence that they have confirmed related to all the units of competency and we have failed to provide them with the qualification from any of our partnered RTOs, they are able to get a money back guarantee. Of course there is better wording for it but I can’t remember it as per the terms and conditions.
373 Section 155(7) (which applies to information and documents produced in response to a notice under ss 155(1)(a) or 155(1)(b)) and s 159 of the CCA (which applies to evidence given in an examination conducted pursuant to s 155(1)(c)) do not preclude material obtained in response to a s 155 notice or in a s 155 examination being used in a case concerning civil penalties as and by way of an admission. This is apparent from s 159 of the CCA, which provides:
(1) A person appearing before the Commission to give evidence or produce documents is not excused from answering a question, or producing a document, on the ground that the answer to the question, or the document, may tend to incriminate the person or expose the person to a penalty.
(2) Evidence given by an individual before the Commission is not admissible against the individual in any criminal proceedings, other than:
(a) proceedings for an offence against this Part; or
(b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part.
374 Section 159(1) of the CCA expressly abrogates the privilege against self-incrimination and exposure to civil penalties in the context of a s 155 examination. That abrogation is subject to a direct use immunity conferred by s 159(2), which provides that, except in limited circumstances, such evidence is not admissible against the individual in criminal proceedings. But the immunity provided by s 159(2) does not extend to civil penalty proceedings.
375 It is apparent from the above exchange that Mr Wadi was very familiar with the conditions on the 100% money back guarantee, and probably devised them himself. In any event, he certainly approved them. Further, Mr Wadi was aware that the 100% money back guarantee was the cause of complaints long before these proceedings were commenced.
376 In February 2016, Mr Wadi circulated minutes of a meeting between Ms Markson and Ms O’Malley and NSW Fair Trading to discuss the 31 complaints which had been received by NSW Fair Trading in the previous six months. The first points identified for discussion was “Miscommunication/Misled - 100% Money Back Guarantee”. The minutes of the meeting included suggestions to improve internal procedures and reduce complaints, including “100% money back emphasised on calls and the key areas set out in bold on correspondence” and “Refund Policy fine-tuned – it’s too ‘wordy’”. In his email, Mr Wadi noted that a continuous improvement committee would be established, which he would head. It is apparent from this email that by February 2016, Mr Wadi was fixed with the knowledge that the 100% money back guarantee was misleading.
377 Notwithstanding this awareness, Mr Wadi took no further action in relation to the money back guarantee until the ACCC took action against him and GQA. He removed the guarantee in August 2016, shortly after the freezing order was made.
378 It is apparent from these matters that Mr Wadi was an intentional participant in devising and promoting the money back guarantee, the existence of which underpinned the money back guarantee representation. He had actual knowledge of the matters constituting the contravention.
(b) The skills review representation
379 It is apparent from his s 155 examination that Mr Wadi was very familiar with the skills review tool, which was presented to him by his digital marketing manager, and was aware that it was used to obtain consumer’s details , rather than an effective assessment tool:
MR LANG: Taking as an example a Facebook advertisement the customer may be directed to a process called a free skills review on GQA’s website?
MR WADI: Mm.
MR LANG: Could you just say yes?
MR WADI: Yes.
MR LANG: Thank you. Through the skills review the customer provides their contact details?
MR WADI: Sorry say it again?
MR LANG: Through the skills review, the customer provides their contact details?
MR WADI: Correct.
MR LANG: And were you involved in introducing the skills review feature on the website?
MR WADI: Sorry, repeat the question?
MR LANG: Were you involved in introducing the skills review feature on the GQA website?
MR WADI: No.
MR LANG: Whose idea was that?
MR WADI: Scott Roy, our digital marketing manager.
MR LANG: I see. And was that an idea that he presented to you?
MR WADI: When he first started with the company we used to have the traditional form capture and he said, “We want to do something more innovative”, and he presented that idea. It’s three years old now. It’s his baby, so he - it went through multiple stages of improvement.
MR LANG: I see. And in its current state, are you aware when you conclude filling in the skills review that there’s a message that indicates, “Congratulations. You may be eligible for a qualification?”
MR WADI: “You may be eligible?”
Mr LANG: Yes.
MR WADI: So there is no – there’s a, a preview. It’s not a skills assessment.
380 Subsequently, Mr Wadi agreed that at the end of the Free Skills Review process, consumers received a message which said “congratulations, you may be eligible”.
381 Mr Wadi approved the Free Skills Review tool knowing that it would be used to obtain customers’ details and not for the purposes of assessment. He was aware that the conclusion of the Free Skills Review process was a message telling consumers that they were eligible.
382 It follows that Mr Wadi was an intentional participant in the skills review representation, with actual knowledge of the matters constituting the contravention.
(c) The eligibility representation
383 Mr Wadi (who was himself a qualified assessor) was aware that the skills recognition specialists were in fact sales people. Indeed, it was his idea in May 2014 to introduce so-called “skills recognition specialists”, who were not trained assessors:
MR LANG: When was the job of skills recognition specialist first introduced in GQA’s business?
MR WADI: Two years ago.
MR LANG: I see, in 2014?
MR WADI: Yeah.
MR LANG: Whose idea was that?
MR WADI: My idea
MR LANG: I see. Can you explain what idea you had at that time?
MR WADI: In May 2014 we used to have the skills recognition and the assessors and the facilitation. The three roles were combined by one person and that’s what exactly most RTOs they try to do.
MR LANG: Yes?
MR WADI: And we felt that it is frustrating our customers and the basic, basic questions can be answered by a skills recognition specialist if we provide them with the training. So we separated the three positions. So we have three checkpoints.
MR LANG: I see. So that was an idea you had in May 2014?
MR WADI: Correct.
MR RENEHAN: Sorry, what were the three positions? The skill recognition specialist and--
MR WADI: And we refer to them as facilitators.
MR RENEHAN: That’s the second position?
MR WADI: Correct. And an assessor.
MR RENEHAN: Assessor, thank you.
MR WADI: And this is where the customer journey 100% falls.
384 This change was a major structural change in GQA’s business, which required his approval, and which he welcomed.
385 Mr Wadi helped develop the employment induction plan for skills recognition specialists. He also had the idea of calling the salespeople “skills recognition specialists”.
386 Mr Wadi also knew that the skills recognition specialists were entirely dependent on training.gov.au for information about qualifications, and that the entirety of their training was to refer them to training.gov.au, as is apparent from the following excerpt from his s 155 examination:
MR LANG: And it’s the skills recognition specialist’s job to identify a qualification for which the customer is eligible and which is appropriate for the customer?
MR WADI: If the customer have not indicated a certain qualification, yes.
MR LANG: What happens if the customer does indicate a certain qualification?
MR WADI: It’s the job of the skills recognition specialist to go through the units ---
MR LANG: Yes?
MR WADI: - - - that makes up the qualification and to make sure that the applicant is able to provide evidence related to the units to deem them eligible to enrol in the process.
MR LANG: How do they do that?
MR WADI: They go either on training.gov, the government website, for every qualification under the AQF, or they could choose to go on our internal system, which is a mirror of training.gov, cause that’s where we pulled the content from, and they go and read every unit of competency to, to make sure that the person is aware what evidence they need to provide for that unit.
MR LANG: I see, and that’s what happens on the phone call?
MR WADI: Yes.
MR LANG: And--
MR WADI: Or at least that’s what I expect them to do on the phone call.
MR LANG: Is there a written protocol that requires the salesperson to do that?
MR WADI: They go through it in the training. Again, as a start-up company, written operational processes is, is not 110 per cent there, but staff are aware of the process. They are trained on the process and we have team managers that have been with the company for a long time to refer to as well.
MR LANG: So is it the case there’s not a written protocol that requires that process?
MR WADI: What do you mean by written protocol?
MR LANG: Well, you’ve set out the steps which the skills recognition specialist goes through when a particular qualification is sought by a customer, yes?
MR WADI: Yes.
MR LANG: And they include going to a website which identifies the units of competence for that qualification?
MR WADI: Mm-hmm.
MR LANG: Is that yes or no?
MR WADI: Yes.
MR LANG: And they read out those units of competence to the customer on the phone, yes or no?
MR WADI: Yes.
MR LANG: Is there a written protocol that tells the skills recognition specialist that that’s what they have to do?
MR WADI: As far as I know the training is the written documented training—
MR LANG: Yes.
MR WADI: --that they go through?
MR RENEHAN: Do they have scripts?
MR WADI: They have scripts that they follow when they are enrolling an applicant before they take any fees, but, because they’re not able to have a script for the qualification, other than the script available on the website, because it differentiates between what qualification and what are the units based on the conversation with the applicant.
MR RENEHAN: So are you saying that there’s no script for this first conversation because there are too many variables, if you like?
MR WADI: Correct, so matching, yeah.
MR RENEHAN: And what you say is that you provide or your company provides training as to what they should do but there are no scripts?
MR WADI: Correct.
MR RENEHAN: Is that correct?
MR WADI: Yes.
MR RENEHAN: All right.
MR LANG: And the training as to what they should do involves going to the website for the particular qualification and reading off the units of competence?
MR WADI: Yes.
MR LANG: Anything else?
MR WADI: No.
387 Indeed, Mr Wadi was of the view that a skills recognition specialist was not able to assess the eligibility of the consumer to receive the qualification following the sales call:
MR LANG: At some point in the conversation between these skills recognition specialists and the customer, a qualification for the customer is identified?
MR WADI: Yes.
MR LANG: Is that a qualification which the skills recognition specialist considers the customer is eligible for?
MR WADI: No.
MR LANG: Why do you say--
MR WADI: Eligible to enrol in that process, not eligible for the qualification.
388 Mr Wadi later confirmed that he considered that the initial call only determined eligibility to enrol and not eligibility to obtain the qualification.
389 Mr Wadi was also aware that there was no written instruction for a skills recognition specialist to obtain evidence from a consumer before enrolling them: “They can ask for evidence prior to enrolling them, but it’s not a must, if they feel it’s not necessary”.
390 That is to say, Mr Wadi devised the scheme by which consumers would “enrol” with GQA, and the training which salespeople received in “eligibility assessment”.
391 He appreciated that GQA’s sales people were not, in fact, able to assess eligibility to receive a qualification on the basis of their interactions with consumers.
392 It is apparent that Mr Wadi was an intentional participant in the eligibility representation, with actual knowledge of the matters constituting the contravention.
(d) The refund ineligibility representation
393 In my view, based upon the evidence, Mr Wadi was also knowingly involved in GQA’s conduct concerning the refund ineligibility representation.
(e) The unfair contract term
394 GQA imposed an unfair contract term (the refund policy) on consumers, in breach of s 24 of the ACL.
395 Mr Wadi was aware that where a consumer cancelled before any work was done on their portfolio, GQA would retain the entire fee paid to it for the qualification. He considered that to be an appropriate outcome.
396 Consistently with this evidence, in June 2015, Ms Sella wrote to Mr Wadi in relation to refunding a customer who had sought to cancel his enrolment before receiving any services, and said:
I know that you have declined the refund for this candidate once before, and we can certainly let this go until he takes legal action and contacts the Office of Consumer and Business Services.
However, I must stress that this chap has taken up plenty of our time and that is not only Aine and myself, but he calls daily and will not stop talking to whoever answers the phone. Are we not better off just getting rid of someone like that and not wasting our valuable time on it. This is definitely going the legal route and I really don’t want people to carry on talking to Fair Trading, the Office of Consumer and Business Services- as one day that will end up with the ACCC. As you know I was at AMI when the ACCC when after Jack Wiseman and the company and they became like a dog with a bone. I don’t want that for you or GQ.
397 Mr Wadi responded to Ms Sella’s email by saying:
So what did we do wrong to refund him, has he signed the terms and conditions and accepted,
Where did we go wrong to pay a $2700 penalty?
398 This response demonstrates Mr Wadi’s view that GQA was entitled to retain 100% of payment made, even where a consumer had received no services whatsoever.
399 Further, in August 2015, a representative of zipMoney, an entity which provided credit to GQA students, wrote to GQA about GQA’s policy of charging 25% for administration when customers cancelled. He observed “a $675 fee for a customer who cancels 1 day after they enrolled for the course is probably bordering on unreasonable ... The time to cancel should be factored in when applying the 25% cancellation fee ... We will be monitoring this closely as this category is a significant risk both for GQ Australia and zipMoney”. Mr Wadi responded to this email by saying “I guess we now have a policy in place and we need to stick to it”.
400 In my view, Mr Wadi was an intentional participant in instituting the refund policy and he was knowingly involved in implementing that policy in a way which was unfair to consumers.
(f) Unsolicited consumer agreements
401 Mr Wadi appreciated that the purpose of the Free Skills Review was to obtain the details of consumers, so that they could be contacted by GQA, and was not, as it purported to be, an assessment tool.
402 In January 2015, Mr Wadi engaged in internal discussions as to whether to institute a cooling off period, when a meeting took place “to brainstorm and determine a procedure and handling policy for requests relating to refunds, extensions, cancellations and applications on hold”. The idea of a short cooling off period (which is required by the ACL) was vetoed by Ms Sella, on the basis that “This may open a whole new can of worms; I think that opens us up for even more actual refunds. The ones we are getting now are being told they cannot have a refund; it is possible for us to keep them on board”.
403 No cooling off period was introduced by Mr Wadi. As an inadequate (and noncompliant) substitute, from at least 17 December 2015 the “Refund Policy” provided that “Within the first 7 days, an applicant can submit a refund request to the GQA Refunds Department where a decision will be made under GQA’s Discretionary Guidelines within a 4 week period. If the refund request proceeds, there will be a 25% administration fee applicable to the total cost plus any transaction processing fees”. Requests determined under the “Discretionary Guidelines” were refused, as can be seen from the experiences of MA (who enrolled on 14 June 2016 and sought to cancel the same day when he realised he had misunderstood the nature of GQA’s services) and MK (who enrolled on 30 September 2016 and sought to cancel the same day because he was sceptical about GQA’s ability to deliver a formwork qualification using RPL).
404 By approving the Free Skills Review, and by failing to introduce a cooling off period when the issue was raised in a meeting facilitated by him in January 2015, Mr Wadi made himself an intentional participant in the scheme by which GQA obtained customer details to make unsolicited calls to consumers (who had provided those details for the purposes of an assessment).
(g) Unconscionable conduct
405 GQA engaged in a system of conduct or pattern of behaviour which, in all the circumstances, constituted unconscionable conduct in breach of s 21 of the ACL. The system had the following features:
(a) GQA enticed consumers to enter into agreements under which they paid substantial sums of money to GQA by making the false and misleading representations about its services.
(b) As set out above, GQA systemically contravened unsolicited consumer agreement provisions contained in the ACL by using the ruse of a free assessment to obtain consumers’ contact details. In this regard, it should be noted that these provisions were included in the ACL with the purpose of addressing the information asymmetry between the supplier and consumer, the incentives for unfair conduct and the impact of unfair conduct given the added vulnerability or disadvantage faced by consumers in the context of unsolicited sales.
(c) Skills recognition specialists were not experienced in RPL and had very little training in RPL, so that they were effectively relying on the same material which was available to consumers as the source of their “expertise”.
(d) GQA trained its skills recognition specialists in the use of the conversation guide and the objection handling guide.
(e) GQA provided its skills recognition specialists with significant incentives to make as many sales as quickly as possible.
(f) GQA usually required consumers who agreed to use GQA’s services to make full payment of GQA’s fees (or in some cases, to make a partial payment with a payment plan) before GQA would assist them to compile a portfolio of evidence and make their RPL application. GQA provided credit facilities to assist consumers.
(g) Further, GQA imposed a strict requirement on its customers to complete the payment of fees in full before any application for a qualification based on RPL was submitted to the relevant RTO.
(h) It was only after the consumer made a payment to GQA that GQA provided the customer with an information pack, including details of the relevant competency requirements and the enrolment form. GQA did not provide the customer with a document containing the terms and conditions which applied to GQA’s services. This document could be accessed from the GQA website.
(i) GQA often failed to respond to customer concerns and correspondence in a reasonable time or at all and ultimately failed to obtain the promised qualification for many of its customers.
(j) In addition, GQA relied on an unfair contract term (its refund policy) to deny refunds to consumers, contrary to the promised 100% money back guarantee.
(k) Finally, notwithstanding the matters set out above, GQA’s policy was to take debt recovery action against consumers who wished to discontinue their relationship with GQA and sought refunds in accordance with the 100% money back guarantee.
406 Mr Wadi had close oversight over every aspect of GQA’s operations.
407 For example, in April 2016 when Mr West worked at GQA, Mr Wadi regularly walked around the office (which was contained in one floor) and spoke regularly to staff, in particular the Chief Operating Officer (who was in charge of the sales department) and the head of marketing. He was hands on, and engaged regularly on operational matters. GQA’s Head Assessor, LR, raised concerns with Mr Wadi and GQA’s sales manager about the sales tactics used by the skills recognition specialists. The sales manager, Ms Robertson, responded to LR and Mr Wadi by saying that it was necessary to create a sense or urgency to meet sales targets and that GQA needed to decide “whether we are sales or customer service”. It is also apparent from LR’s evidence that, during the period of her employment from March to May 2016, Mr Wadi was closely involved in the business.
408 Further, and by way of example, in June 2016 Mr Wadi explained that a new business improvement manager “will be working closely with me to get an idea of the big picture, every operation and priority projects”.
409 The evidence shows that Mr Wadi was closely involved in each of these elements of the system of unconscionable conduct:
(a) In mid-2015, the process of enrolment changed at Mr Wadi’s behest for all qualifications except electrotechnology so that consumers paid for the course after speaking to a skills recognition specialist and before providing any evidence. Before that time, consumers paid after submitting documentary evidence which was considered by a qualified assessor. GQA and Mr Wadi appreciated that there were advantages to enrolling consumers before confirming that they had documents supporting their eligibility, as can be seen from a January 2016 email from the Contact Sales Manager to other members of the GQA team regarding the enrolment of electrotechnology applicants:
After a discussion with Adam, effective immediately we are able to enrol Electrotechnology applicants without all there [sic] required documents. Make sure you are asking the questions and if they verbally communicate that they can provide what is required we don’t necessarily need this before they enrol.
We are going to try this out and if it works then it will increase your sales massively.
We can verbally say to them on the recorded line, that they could be eligible for a refund if they don’t qualify. This will come off your stats and you obviously won't get paid the commission for it.
This will help get a few over the line that maybe struggling to get the documents prior to enrolling.
(b) Mr Wadi was aware that the sales team had daily, weekly and monthly targets. He received reports in relation to these targets and approved the company budget including these targets. He was aware of the justifications for the targets, and the factors considered in determining targets. Ms Sella’s evidence was that Mr Wadi was responsible for setting sales targets.
(c) By his own account, Mr Wadi had spent a lot of time and paid a lot of attention to the sales team in the months prior to March 2016, and had “been working very closely with Andy and Tony to build strong and dynamic teams”.
(d) In communications with recruitment agents, Mr Wadi expressed the preference to recruit sales managers who were not from the education industry but who had a solid sales record.
(e) In March 2016, Mr Wadi delegated his support of the sales department to Mr Mikati, so he could focus on the expansion of the marketing department. By at least April 2016, Mr Wadi was closely involved in the marketing department (demonstrated by his regular interactions with the head of marketing, which was the subject of the evidence from Mr West).
(f) However, Mr Wadi continued to have a lasting impact on the sales group, since he helped develop the employment induction plan for skills recognition specialists. He was also aware of the conversation guides and scripts. Mr Wadi retained his oversight of the induction plan until at least June 2016.
(g) The training materials focused heavily on Mr Wadi’s motivations in starting GQA.
(h) Mr Wadi continued to train new employees in customer service, the customer journey, and advanced RPL and VET (Vocational Education and Training) until at least August 2016.
(i) Mr Wadi was aware of the use of time limited discounts as a “regular marketing strategy” and that a standard discount of 20% was always offered for full payment upfront.
(j) Mr Wadi was aware of the practice of encouraging customers to pay immediately because there were a limited number of places, and concerns had been raised about this practice with him. He was also aware that there were not limited places allocated to each assessor. Mr Wadi’s evidence in the s 155 examination was that there is no limit set by the RTOs and no limit set by GQA on the number of customers it will take on for a given qualification. Although he had concerns about the practice, he took no action to stop it because he had not received major customer complaints about it.
(k) Mr Wadi was aware that the documents explaining the units in each qualification were only sent after the consumer had enrolled and made payment. Ms Sella’s evidence was that Mr Wadi was responsible for putting in place this structure, and made the relevant rule.
(l) Mr Wadi made the decision that facilitators should not be required to have qualifications (either in training or assessment or in the technical areas in which GQA offered qualifications).
(m) Mr Wadi designed the training for facilitators.
(n) Mr Wadi decided on the commissions payable to facilitators for lodging portfolios.
(o) Mr Wadi received monthly reports on whether facilitators were lodging portfolios efficiently. He communicated with the facilitators about their results.
(p) Mr Wadi had concerns about compliance in terms of the skills recognition process (that is, the work done by facilitators) for complex trades such as plumbing and electricity, but did not act on those concerns.
(q) By May 2015, GQA’s learning and development manager had recommended to Mr Wadi to engage remote assessors to assist with qualifications which were high risk or involved technical skills and in-house staff were not qualified to provide advice, because call centre staff (facilitators) often had candidates that needed more detailed information. He did not take action to implement this recommendation.
(r) Also by May 2015, Mr Wadi was aware that GQA did not have affiliated RTOs for every qualification it had sold, that many portfolios had exceeded 90 days, that portfolios had not been reallocated after facilitators had left, that not all facilitators had the right number of portfolios in their name in their specialisation, and that new facilitators had not been trained.
(s) By October 2016, Mr Wadi was aware that many consumers who had enrolled in trades qualifications were unable to compile their evidence in the allotted 90 day period.
(t) Mr Wadi kept himself informed about the level of complaints made about the business “to an extent”. The Chief Operating Officer would bring individual complaints to Mr Wadi’s attention if he could not make a decision or he was not sure what decision to make. But it is clear that by mid-2015, Mr Wadi was aware of the level of complaints about the business. In October 2015, Mr Wadi emailed Ms Sella and Ms O’Malley and said “I’m sick of seeing complains [sic] and refunds, what is wrong here. No sales, refunds and complains [sic] is all what I have been hearing in the last three month and I’m extremely frustrated”.
(u) Mr Wadi was also informed by the Chief Operating Officer if an excessive number of consumers complained to NSW Fair Trading or sought relief from tribunals.
(v) Further and relatedly, by January 2016, Mr Wadi knew that negative reviews of GQA were affecting GQA’s ratings on external sites. The marketing director of GQA proposed to provide incentives to consumers to place positive reviews online to offset negative reviews. Mr Wadi sent an email saying:
We need to have full feedback on where we are going wrong in both sales and operations so we can improve on it and reduce unhappy customers.
We need a monthly report on how many refund, on hold, cxld customers we had in one month, this is the way we get CLEAR customer satisfaction, we are not sitting on 4 stars if we are honest with ourselves, we are working on pushing people to positively rate us and our effort is what is getting us the 4 stars. The clear satisfied or unsatisfied customer experience will always be in Renna’s monthly report.
(w) Mr Wadi approved the complaint resolution process.
(x) Mr Wadi was clearly aware that there were issues with customer service and consumer complaints arising from GQA’s systems. On 2 February 2016, Ms Markson and Ms O’Malley met with NSW Fair Trading to discuss the 31 complaints which had been received by NSW Fair Trading in the previous six months. Mr Wadi had actual knowledge of each of these issues following the meeting. He circulated the minutes of the meeting with NSW Fair Trading to selected staff, with an acknowledgment that “we have never focused on customer satisfaction, and kept our eyes on Leads and Sales, till recently Amine highlighted to me when he joined the company back in October that the money is in the operation side and not the enrolment stage of the customer journey”. Further, Mr Wadi said following the meeting that a continuous improvement committee would be established and he would head that body. However, GQA did nothing to rectify the deficiencies in those systems.
(y) On 4 February 2016, Mr Markson wrote to Mr Wadi explaining that the skills recognition specialists’ representations about refunds and the 100% money back guarantee were leading to a very large volume of customer complaints. However, Mr Wadi did nothing to modify the guarantee which he had created. It was not until August 2016, when the freezing order proceeding commenced, that GQA abandoned the 100% money back guarantee.
(z) Mr Wadi knew about the number of complaints but dismissed many of them. For example, in about March 2016, Mr Wadi told Mr West in Mr West’s interview that GQA had quite a lot of negative reviews online about the business and that Mr Wadi wanted those dealt with. Mr Wadi explained that customers weren’t getting the qualifications that they wanted and that Mr Wadi felt that they did not qualify for those qualifications. In another example, Mr West told Mr Wadi in April 2016 that the complaints were very serious and that GQA could be risking action against it by the way it was handling complaints. Mr West asked for a dedicated complaints officer to assist him. Mr Wadi refused, and told him that GQA’s debt collections staff could assist. Mr West told Mr Wadi that it was not good practice to have collections staff handling complaints, and Mr Wadi dismissed this response.
(aa) In April 2016, Mr West left just over two weeks after joining GQA. In his resignation letter, he cited GQA’s amendment of customer records, knowing breaches of Fair Trading Rules, consistently poor determinations on customer refunds where GQA did not meet its service obligations, and undertaking collections activity against customers where there had been a major defect in the service due to GQA’s fault, and a pervasive attitude that all consumers who complained were liars, scammers or whingers. Mr West said that he was concerned that GQA’s actions were unethical and possibly illegal, and would lead to sanctions by regulatory bodies and a poor reputation. Mr Wadi dismissed Mr West’s concerns, saying, “Let’s not waste any more time on this as I truly believe he got the wrong idea of what we want for our customers and most of what he is saying below is not true”.
(bb) On 12 July 2016, Mr Wadi was told by an electrotechnology assessor that the practice (suggested by him) of enrolling electrotechnology candidates without verifying their credentials was a waste of time, and had led to money being taken from consumers for courses for which they were not eligible. Mr Wadi did not take any action to change GQA’s basic structure, which he had devised, and which enshrined this practice.
(cc) GQA employed two staff whose job it was to collect on unpaid instalments. It is telling of Mr Wadi’s attitude towards GQA’s customers that when Mr West recommended that he employ a dedicated complaints officer, Mr Wadi responded that Mr West could use GQA’s debt collectors for this role.
410 As is apparent from the matters set out above, Mr Wadi was intimately involved in devising and implementing the marketing scheme, sales tactics and GQA’s business strategy.
411 There can be no doubt from the materials set out above that Mr Wadi’s close involvement in every aspect of GQA meant that he was an intentional participant in each aspect of GQA’s contravening conduct (save and except specific unconscionable conduct in relation to some individual consumers) and that he had actual knowledge of the matters constituting the contravention.
(h) Unconscionable conduct towards individuals
412 GQA engaged in unconscionable conduct towards four individual customers (WJ, GF, JA and AV) in breach of s 21 of the ACL. The ACCC has contended that Mr Wadi was knowingly involved in the contraventions against WJ and GF, but I do not accept these contentions. In my view, he is only liable in relation to the systemic deficiencies giving rise to the systemic unconscionable conduct engaged in by GQA.
413 Mr Wadi remembered WJ’s complaint and had concluded, on the basis of his review of the emails between Ms Markson and MJ and his review of the call recording, that WJ was not entitled to a refund. Mr Wadi’s view having listened to the call recording and reviewing the correspondence was that WJ’s case was an appropriate application of GQA’s policies, including the refund policy. Mr Wadi undertook to revisit WJ’s case in August 2016, but because GQA engaged external debt collectors to make demands for payment from WJ in November 2016 and WJ had not received a refund by December 2016, it may be assumed that Mr Wadi concluded based on his further investigations that WJ was not entitled to a refund. I do not consider that this involvement of Mr Wadi gives rise to the relevant accessorial liability.
414 Further, although Mr Wadi did not specifically remember GF’s complaint, he agreed that he could have received GF’s letter and handed it to his Chief Operating Officer to deal with. Mr Wadi concluded when the case of GF was brought to his attention that GF had failed to provide sufficient evidence to enable GQA to qualify him. Although Mr Wadi said in August 2016 that he needed to look at the case in more detail, it may be assumed that once he had looked at the case in more detail, Mr Wadi concluded that GF was not entitled to a refund, since GF had not received a refund by January 2017. But again, I do not consider that this involvement gives rise to the relevant accessorial liability.
(i) Conclusion on Mr Wadi’s liability
415 In summary, and on the basis of the foregoing matters, Mr Wadi aided, abetted, counselled or procured and was directly and indirectly knowingly concerned in each of GQA’s contraventions of the ACL, being:
(a) misleading or deceptive conduct and making false or misleading representations by making the 100% money back guarantee representation, the skills review representation, the eligibility representation and the refund ineligibility representation;
(b) the inclusion of an unfair contract term (the refund policy) within the meaning of the ACL;
(c) GQA’s practice of entering into unsolicited consumer contracts with consumers identified through the Free Skills Review process, without complying with the ACL in relation to those contracts;
(d) GQA’s systemic practice of unconscionable conduct, but not in relation to the individual customers that the ACCC has identified.
CONCLUSION
416 I will hear further from the parties as to the orders to give effect to these reasons and for the further conduct of the matter.
I certify that the preceding four hundred and sixteen (416) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach. |
Associate:
Dated: 23 June 2017
