Assisted care services platform agrees to unfair contract terms undertaking

Mable operates a digital platform that connects individuals seeking care support with independent support workers across Australia who specialise in disability or aged care services. The platform facilitates access to services including social support, domestic support, nursing care and allied health services. Registration on Mable is free for both clients and workers, but users must agree to the platform’s Terms of Use during the sign-up process. 

Once registered, clients and support workers can communicate directly through the platform to negotiate and enter into a Service Agreement. Under this Agreement, support workers operate as independent contractors, delivering personalised care services to clients and all payments are processed directly through Mable’s online system. 

Between 9 November 2023 and 22 August 2024, Mable’s Terms of Use included several provisions that Mable ultimately admitted were unfair under sections 23 and 24 of the ACL. These included: 

• terms allowing for Mable to receive a minimum penalty fee of $5000 from clients and support workers (together, the members) in particular circumstances where the client or support workers avoided fees that would otherwise be payable to Mable;
• terms allowing for a client’s ‘service log’ (similar to an attendance record or timesheet) to be deemed approved unless the client disputed it within 24 hours;
• terms allowing Mable to unilaterally change some of its fees and terms without reasonable notice;
• terms allowing Mable to unilaterally amend the Terms of Use without reasonable notice;
• terms which sought to limit Mable’s liability for claims and losses in circumstances where a corresponding mutual limit was not also provided to the members;
• a broad indemnity in favour of Mable against third party claims and liabilities incurred by Mable in connection with the members’ use of Mable’s platform and services; and
• a requirement for members to pay costs reasonably incurred by Mable in enforcing its rights under the Terms of Use. 

The ACCC was further concerned that the relevant terms posed a significant disadvantage between Mable and its vulnerable users. The ACCC noted that approximately half of Mable’s clientele were NDIS participants, making the presence of unfair terms especially alarming because of the heightened risk of exploitation and disadvantage faced by NDIS participants, who readily rely on platforms like Mable for essential care services. 

Ultimately, Mable agreed to amend its Terms of Use and agreed to enter into a court-enforceable undertaking to address the ACCC’s concerns, prohibiting Mable from entering into particular terms with its client and support workers and further requiring Mable to clearly and prominently communicate substantial Terms of Use. The undertaking also required Mable to cease from relying on the terms that were deemed unfair and establish and maintain an ACL compliance program monitored by the ACCC. 

Mable represents one of the ACCC’s early enforcement actions following the November 2023 amendments to the ACL, which introduced significant penalties for businesses that propose, use or rely on unfair contract terms in standard form contracts. Interestingly, the ACCC in this case chose not to seek any financial penalties for the breach.

The undertaking highlighted the ACCC’s proactive engagement with its Enforcement and Compliance Priorities for 2025-26. Each year the ACCC announces a list of priorities that outlines areas of focus and enforcement activities for the year ahead. This year’s priorities included: 

• improving compliance by NDIS providers with their obligations under the ACL;
• protecting consumers and small businesses from unfair contract terms, with a focus on harmful cancellation terms, including those associated with automatic renewals, early termination fee clauses and non-cancellation clauses; and
• ensuring transparency and fairness in online service platforms, where power imbalances are prevalent. 

To date, the ACCC has not yet imposed substantial financial penalties in relation to unfair contract terms, despite having gained the power to do so under the November 2023 legislative changes. Although the ACCC’s enforcement strategy under the new unfair contract terms regime remains somewhat unclear, it’s imperative that businesses review and update their standard form contracts.

This article was written with the assistance of Charlotte White, Law Graduate.