Register of enforcement action

Declarations

In its orders, the court also made declarations that:

• Between 1 January 2019 and 30 November 2021, in respect of customers who were receiving payment assistance under Division 3 Part 3 of the ERC whose repayment of arrears was not on hold and who failed to make a payment by the date on which it was payable, contravened cl 81(6) of the ERC by failing to contact 11,670 customers to discuss their putting forward a revised proposal under cl 81 of the ERC
• Between 1 January 2019 to 30 November 2021, in respect of customers who were receiving payment assistance under Division 3 Part 3 of the ERC whose repayment of arrears were on hold and who failed to make a payment toward the cost of their ongoing energy use by the date on which it was payable, contravened cl 82(2) of the ERC by failing to contact 2,738 customers to discuss varying the amount payable or the frequency of those payments, or both, to give the customers more time to lower their energy costs
• On about 25 September 2021, contravened cl 1.5 of the Compliance and Performance Reporting Guideline v 6 by failing to report breaches of cl 83(1) of the ERC within two business days of their identification on 23 September 2021
• Between 14 February 2019 and 31 March 2020, contravened cl 111A(1)(a)(iv) of the ERC v 12 to v 15 by arranging de-energisation of the premises of 20 residential customers for not paying a bill without, after the issue of a disconnection warning notice, using its best endeavours to contact the customer in relation to the matter, and in doing so, failing to provide clear and unambiguous information about the assistance available under Part 3 of the ERC.
• Between 23 April 2018 and 31 December 2020, in respect of 36 small customers who had been undercharged and from whom it proposed to recover the amount undercharged, contravened cl 30(2)(a) of the ERC v 11a to v 17, by not limiting the amount to be recovered to the amount that had been undercharged by it in the nine months before the date on which the customers were notified of the undercharging, and in circumstances where the amount undercharged was not as a result of the customer’s fault or unlawful act or omission
• Between 1 January 2021 to 30 November 2021, in respect of 86 small customers who had been undercharged and from whom it proposed to recover the amount undercharged, contravened cl 30(2)(a) of the ERC v 18 to v 21, by not limiting the amount to be recovered to the amount that had been undercharged by it in the four months before the date on which the customers were notified of the undercharging, and in circumstances where the amount undercharged was not as a result of the customer’s fault or unlawful act or omission
• Between 1 July 2019 and 28 February 2022, in respect of 404 small customers who were entitled to receive a “deemed best offer”, contravened cl 70R (1) of the ERC v 13 to v 21, by failing to provide a “deemed best offer” at least once every four months, or, if the customer had agreed to a billing cycle with a regular recurrent period that differed from the usual recurrent period and that period was three months or longer, once in each billing cycle
• Between 22 August 2018 and 28 February 2022, in respect of 33 customers, contravened cl 26 (1) of the ERC v 11b to v 21 by providing a “pay-by date” for a bill that was earlier than 13 business days from the bill issue date

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The Supreme Court of Victoria made declarations that:

• Between 1 January 2019 to 20 March 2020, in respect of 1,102 gas customers who had not paid a bill by its due by date and had arrears of more than $55 (inclusive of GST):
  • contravened cl 80(2) of the ERC, by failing to contact those customers within 21 business days after the pay-by date and give them information about the assistance to which each was entitled under Division 3 Part 3 of the ESC and how to access it.
  • contravened cl 89(1)(b) of the ERC, by failing to provide clear and unambiguous information to those customers when required to do so.
• Between 1 January 2019 to 20 March 2020, in respect of 285 gas customers who were receiving payment assistance under Division 3 of Part 3 of the ERC whose repayment of arrears was not on hold, and who failed to make a payment by the date on which it was payable:
  • contravened cl 81(6) of the ERC, by failing to contact those customers to discuss their putting forward a revised proposal under cl 81 of the ERC
• Between 1 January 2019 to 20 March 2020, in respect of 285 gas customers who were receiving payment assistance under Division 3 Part 3 of the ERC whose repayment of arrears were on hold, and who failed to make a payment towards the cost of their ongoing energy use by the date on which it was payable:
  • contravened cl 82(2) of the ERC, by failing to contact them to discuss varying the amount payable, or the frequency of those payments, or both, to give the customers more time to lower their energy costs
• Between 1 January 2019 to 8 November 2021:
  • contravened cl 83(1) of the ERC, by failing to continue to provide assistance to 173 customers in accordance with Division 3 Part 3 of the ERC where no exception applied
• Between 1 January 2019 to 25 January 2022:
  •  contravened cl 111A(1)(a) of the ERC, by failing to comply with all of its obligations to 98 gas customers under cl 89 of the ERC and after issuing a disconnection warning notice, use its best endeavours to contact each customer in relation to the matter and provide clear and unambiguous information about the assistance available under Part 3 of the ERC

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The nature of the contravention order/obligations:

• Between 13 May 2022 and 3 November 2022, in respect of five customers who were life support customers for the purpose of the Electricity Industry Act 2000 (Vic) (EI Act), contravened s 40SG(1) of the EI Act, by failing to record in a register of life support customers and residents the life support customer details of those customers in respect of their premises in Victoria within one business day after being advised that a life support resident for the purpose of the EI Act resided or were intending to reside at their premises in Victoria
• Between 19 May 2022 and 3 November 2022, in respect of five customers who were life support customers for the purpose of the EI Act, contravened s 40SG(3) of the EI Act, by failing to give those customers the information specified by cl 163(1)(a) of the Energy Retail Code of Practice (ERCOP) v 1 to v 2 (as applicable), within 5 business days after being advised that a life support resident resided or was intending to reside at their premises in Victoria
• Between 13 May 2022 and 3 November 2022, in respect of five customers who were life support customers for the purpose of the EI Act, contravened s 40SG(4) of the EI Act, by failing to give the distribution company that distributes electricity to those customers’ premises, the details specified by cl 163(1)(b) of the ERCOP v 1 to v 2 (as applicable) within one business day after being advised that a life support resident resided or was intending to reside at their premises in Victoria
• On about 21 May 2022, contravened cl 1.5 of the Compliance and Performance Reporting Guideline v 6 and v 7 by failing to report breaches of s 40SG(1), 40SG(3) and 40SG(4) of the EI Act within two business days of their identification on 19 May 2022
• Between 27 July 2022 and 16 September 2022, in respect of four customers who were life support customers for the purpose of the EI Act, contravened cl 165(1)(a) of the ERCOP v 1 to v 2 (as applicable) by failing to give the distribution company that distributes electricity to those customers premises the information about the customers’ medical confirmation within one business day after receiving their medical confirmation
• Between 27 July 2022 and 16 September 2022, in respect of four customers who were life support customers for the purpose of the EI Act, contravened cl 165(1)(b) of the ERCOP v 1 to v 2 (as applicable), by failing to update the register of life support customers and residents within one business day after receiving the customers’ medical confirmation
• Between 27 July 2022 and 16 September 2022, in respect of four customers who were life support customers for the purpose of the EI Act, contravened cl 167(1)() of the ERCOP v 1 to v 2 (as applicable), by failing to ensure that the register of life support customers and residents was maintained and kept up to date with the details of when the medical confirmation from was received from those customers in respect of their premises
• Between 1 December 2021 to 5 May 2023, in respect of customers who were receiving payment assistance under Division 3 Part 3 of the Energy Retail Code (ERC) v 21 or Division 2 Part 2 of the ERCOP v 1 and v 2(as applicable) whose repayment of arrears was not on hold and who failed to make a payment by the date on which it was payable, contravened cl 81(6) of the ERC v 21 or cl 130(6) of the ERCOP v 1 and v 2 (as applicable) by failing to contact 3,238 customers to discuss their putting forward a revied proposal under cl 81 of the ERC or cl 130 of the ERCOP (as applicable)
• Between 1 December 2021 to 5 May 2023, in respect of customers who were receiving payment assistance under Division 3 Part 3 of the ERC or Division 2 Part 6 of the ERCOP (as applicable) whose repayment of arrears were on hold and who failed to make a payment toward the cost of their ongoing energy use by the date on which it was payable, contravened cl 82(2) of the ERC v 21 or cl 131(2) of the ERCOP v 1 and v 2 (as applicable) by failing to contact 622 customers to discuss varying the amount payable or the frequency of those payments, or both, to give the customers more time to lower their energy costs
• On about 12 February 2022, contravened cl 1.5 of the Compliance and Performance Reporting Guideline v 6 by failing to report breaches of cl 83(1) of the ERC within two business days of their identification on 10 February 2022
• On 18 August 2022, in respect of one relevant customer that had not in fact requested it to arrange for disconnection of their premises:
  • contravened cl 191(1) of the ERCOP v 1, by failing if a relevant customer requests the retailer to arrange for disconnection of the relevant customer’s premises, to use its best endeavours to arrange for disconnection in accordance with the relevant customer’s request; and
  • s 40SE(1) of the EI Act, by arranging for the supply of electricity at the relevant customer’s premises to be disconnected not in accordance with Subdivision 3, relevantly s 40SL in Subdivision 3, by arranging for the supply of electricity at the customer’s premises to be disconnected without the customer’s agreement or notice from the customer, in accordance with the supply and sale contract with it, that the customer wished to end the contract
• Between 26 April 2022 and 8 August 2022, in respect of 40 small customers who had been overcharged by an amount equal to or above the overcharge threshold (namely, $50), contravened cl 71(1) of the ERCOP v 1, by failing to inform those customers that they had been overcharged within 10 business days after it became aware of the overcharging.
• Between 1 December 2021 and 2 August 2022, in respect of 361 small customers who had been undercharged and from whom it proposed to recover the amount undercharged, contravened cl 30(2)(a) of the ERC v 21 or cl 70(2)(a) of the ERCOP v 1 (as applicable), by not limiting the amount to be recovered to the amount that had been undercharged by it in the four months before the date on which the customers were notified of the undercharging, and in circumstances where the amount undercharged was not as a result of the customers’ fault or unlawful act or omission
• Between 3 March 2022 and 7 September 2022, in respect of 1,103 small customers who were entitled to receive a “deemed best offer”, contravened cl 110(1) of the ERCOP v 1, by failing to provide a “deemed best offer” at least once every three months, or, if the customer had agreed to a billing cycle with a regular recurrent period that differed from the usual recurrent period and that period was three months or longer, once in each billing cycle
• Between 3 March 2022 and 21 October 2022, in respect of 395,525 small customers for whom it was required to carry out a “deemed best offer check”, contravened cl 108(1) of the ERCOP v1 and v2, by failing to identify the relevant “deemed best offer” for those customers when required to carry out a “deemed best offer check” for those customers in accordance with cl 108(2)(b)
• Between 3 March 2022 and 7 September 2022, in respect of 17 customers, contravened cl 65(1) of the ERCOP v 1 by providing a “pay-by date” for a bill that was earlier than 13 business days from the bill issue date
• Between 18 June 2022 and 17 July 2022, in respect of 3,636 customers who had nominated a preferred method of communication, contravened cl 106(1) of the ERCOP v 1, by failing to use those customers’ preferred method of communication in accordance with cl 106(2)(b) when providing a bill change alert to those customers
• Between 19 June 2022 and 20 June 2022, in respect of 267 customers who had nominated a preferred method of communication, contravened cl 107(2)(b) of the ERCOP v 1, by failing to use those customers’ preferred method of communication when providing a feed-in tariff change alert to those customers

Amount of civil penalty orders:

• $735,000 for contraventions of s 40SG(1), 40SG(3), 40SG(4) of the EI Act and cl 165(1)(a), 165(1)(b) and 167(1)(b) of the ERCOP and cl 1.5 of the Compliance and Performance Reporting Guideline (CPRG)
• $2,783,000 for contraventions of cl 81(6) and 82(2) of the ERC, cl 130(6) and 131(2) of the ERCOP and cl 1.5 of the CPRG
• $75,000 for contraventions of cl 191(1) of the ERCOP and s 40SE(1) of the EI Act
• $375,000 for contraventions of cl 71(1) of the ERCOP
• $1,179,000 for contraventions of cl 30(2)(a) of the ERC and cl 70(2)(a) of the ERCOP
• $487,875 for contraventions of cl 110(1) of the ERCOP
• $4,568,400 for contraventions of cl 108(1) of the ERCOP
• $92,500 for contraventions of cl 65(1) of the ERCOP
• $270,000 for contraventions of cl 106(1) and cl 107(2)(b) of the ERCOP

Other orders: Adverse publicity orders under s54F of the ESC Act, Order for the implementation of quality assurance systems and compliance, education and training programs under s54G of the ESC Act

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Declarations

In its orders, the court also made declarations that:

• Between 1 January 2019 and 30 November 2021, in respect of customers who were receiving payment assistance under Division 3 Part 3 of the ERC whose repayment of arrears was not on hold and who failed to make a payment by the date on which it was payable, contravened cl 81(6) of the ERC by failing to contact 14,933 customers to discuss their putting forward a revied proposal under cl 81 of the ERC
• Between 1 January 2019 to 30 November 2021, in respect of customers who were receiving payment assistance under Division 3 Part 3 of the ERC whose repayment of arrears were on hold and who failed to make a payment toward the cost of their ongoing energy use by the date on which it was payable, contravened cl 82(2) of the ERC by failing to contact 3,808 customers to discuss varying the amount payable or the frequency of those payments, or both, to give the customers more time to lower their energy costs
• Between 14 February 2019 and 16 March 2020, contravened cl 111A(1)(a)(iv) of the ERC v 12 to v 15 by arranging de-energisation of the premises of 177 residential customers for not paying a bill without, after the issue of a disconnection warning notice, using its best endeavours to contact the customer in relation to the matter, and in doing so, failing to provide clear and unambiguous information about the assistance available under Part 3 of the ERC.
• Between 23 April 2018 and 31 December 2020, in respect of 477 small customers who had been undercharged and from whom it proposed to recover the amount undercharged, contravened cl 30(2)(a) of the ERC v 11a to v 17, by not limiting the amount to be recovered to the amount that had been undercharged by it in the nine months before the date on which the customers were notified of the undercharging, and in circumstances where the amount undercharged was not as a result of the customer’s fault or unlawful act or omission
• Between 1 January 2021 to 30 November 2021, in respect of 958 small customers who had been undercharged and from whom it proposed to recover the amount undercharged, contravened cl 30(2)(a) of the ERC v 18 to v 21, by not limiting the amount to be recovered to the amount that had been undercharged by it in the four months before the date on which the customers were notified of the undercharging, and in circumstances where the amount undercharged was not as a result of the customer’s fault or unlawful act or omission
• Between 1 July 2019 and 28 February 2022, in respect of 2,212 small customers who were entitled to receive a “deemed best offer”, contravened cl 70R (1) of the ERC v 13 to v 21, by failing to provide a “deemed best offer” at least once every three months, or, if the customer had agreed to a billing cycle with a regular recurrent period that differed from the usual recurrent period and that period was three months or longer, once in each billing cycle
• Between 22 August 2018 and 28 February 2022, in respect of 40 customers, contravened cl 26 (1) of the ERC v 11b to v 21 by providing a “pay-by date” for a bill that was earlier than 13 business days from the bill issue date

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Victorian energy efficiency certificates ordered for surrender: 1 

Other enforcement action:

• Warning.

Provisions contravened:

• VEET Regulations 2018 regulation 15(2)
• Code of conduct within schedule 6 VEET Regulations 2018, included clause 19, 21 and 25.

Obligation contravened: 60 Shades allegedly created non-compliant Victorian energy efficiency certificates because it failed to:

• Obtain consent from the energy consumer prior to undertaking the prescribed activities.
• Provide information about the person who would undertake the prescribed activity.
• Comply with the Specifications for installation of weather sealing products.

Victorian energy efficiency certificates refused: 8 (4 certificates each). 

Other enforcement action:

• Warning.

Provisions contravened: 

• Victorian Energy Efficiency Target (VEET) Act 2007 section/s 16, 17, 20(5)(b), 20(7)(a) & (b), 68.
• VEET Regulations 2018 regulation 15(1)(c). 

Obligation contravened: Glow Green and Aussie Greenmarks allegedly created non-compliant Victorian energy efficiency certificates because they each created four certificates for four activity 15 and 17 upgrades, where certificates had already been created by another accredited person for the same upgrade.

Victorian energy efficiency certificates refused: 34 certificates.

Other enforcement action:

• Warning.

Provisions contravened: Victorian Energy Efficiency Target (VEET) Act 2007 section/s 16(1) and 22(3). 

Obligation contravened: Aussie Greenmarks allegedly created non-compliant Victorian energy efficiency certificates because it did not have the authority to create those certificates because it did not hold a valid assignment form.

Victorian energy efficiency certificates refused: 2 

Other enforcement action:

• Warning.

Provisions contravened:

• VEET Regulations 2018 regulations 15(2) and 17(1)
• Code of conduct within schedule 6 VEET Regulations 2018, included clause 6 and 13(c).

Obligation contravened: Maas Green Planet allegedly created non-compliant Victorian energy efficiency certificates because its scheme participant failed to: 

• Take reasonable steps to ensure that the regulated action was only carried out in the presence of a person of or over 18 years of age.
• Take reasonable steps to ensure that the person understood that neither the scheme participant or Maas Green Planet worked for the Victorian Government.
• Decommission existing shower roses.
• Comply with the VEU code of conduct.

Victorian energy efficiency certificates refused: 22,792.

Other enforcement action:

• Warning.

Provisions contravened: VEET Regulations 2018 regulation 21. 

Obligation contravened: MYOM Australia allegedly created non-compliant Victorian energy efficiency certificates because the relevant lighting designer was not appropriately qualified according to the determination made pursuant to regulation 36(1)(c) for the purposes of regulation 21 of the VEET Regulations.

Duration of accreditation cancellation: disqualified from re-applying for accreditation for 5 years. 

Victorian energy efficiency certificates refused: 10,148.

Victorian energy efficiency certificates ordered for surrender: 78,247.

Provisions contravened: Victorian Energy Efficiency Target (VEET) Act 2007 section/s 17(1), 10B and 10C. 

Obligation contravened: Care for Environment allegedly created non-compliant Victorian energy efficiency certificates for energy efficient upgrades that did not occur.

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Number of notices: 25

Penalty amount: $924,600

Provision contravened: Electricity Retail Code of Practice (version 1-2), clause 94(2)

Obligation contravened: AGL allegedly increased tariffs payable by small customers dates that were not a 'network tariff change date'.

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Number of Notices: 21
Penalty Amount: $795,878
Provision contravened: Electricity Retail Code of Practice (version 3) clause 150(1) and clause 152(1)
Obligation contravened: Origin Energy allegedly disclosed confidential information of family violence affected customers without their consent and took debt recovery action against family violence affected customers without considering the potential impact on them. 

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Number of Notices: 21
Penalty Amount: $801,790
Provision contravened: Electricity Retail Code of Practice (version 3) clause 150(1) and clause 152(1)
Obligation contravened: Origin Energy allegedly disclosed confidential information of family violence affected customers without their consent and took debt recovery action against family violence affected customers without considering the potential impact on them.

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Victorian energy efficiency certificates ordered for surrender: 20.

Other enforcement actions:

• Warning.

Provisions contravened:

• Victorian Energy Efficiency Target (VEET) Act 2007 section 22(3)
• VEET Regulations 2018 regulation 7(1). 

Obligation contravened: Smart User allegedly created non-compliant Victorian energy efficiency certificates because it upgraded three households with split systems where ducted heating was the primary source of heating and was in working condition.

The nature of the contravention order/obligations: Sumo Power and Sumo Gas, on 5,941 occasions, during the period 13 January 2022 to 12 August 2022, called on a domestic customer at the customer’s ordinary place of residence for the purpose of negotiating supply and sale contracts for electricity and gas. In each case, the conduct contravened conditions of their respective retail licences, imposed under section 40EB(1) of the Electricity Industry Act 2000 and section 48DB(1) of the Gas Industry Act 2001 respectively.

Sumo Power on two occasions, and Sumo Gas on one occasion, on 14 December 2021 and 10 February 2022, entered customers into contracts for electricity and gas without obtaining the relevant customer’s “explicit informed consent”, contravening cl 16(4) or 57(1) of the Energy Retail Code.

During the period from 3 March to 15 July 2022, Sumo Power and Sumo Gas contravened cl 109(1) of the Energy Retail Code of Practice, on 47,943 occasions in respect of 37,302 electricity customers and 25,763 occasions in respect of 23,325 gas customers, by purporting to carry out deemed best offer checks where those checks were undertaken incorrectly.

During the period 1 April 2022 to 31 August 2023, Sumo Power and Sumo Gas contravened cl 110(1)(a) and (b) of the Energy Retail Code of Practice, on 34,886 occasions, in respect of 21,165 electricity customers and 35 occasions in respect of 35 gas customers, by failing to provide the customers at least one deemed best offer message on a bill or bill summary within a period of three months for electricity customers and four months for gas customers.

In its orders, the court also made declarations that Sumo Power and Sumo Gas, during the period between 10 and 28 February 2022 on 10,628 occasions collectively, contravened cl 70Q(1) of the Energy Retail Code, when it failed to undertake best offer message calculations correctly.

Amount of civil penalty orders: $10,000,000 ($7,000,000 for S ECI 2023 05897 and $3,000,000 for S ECI 2024 00858)

Other orders: Adverse publicity orders under s 54F of the ESC Act, Order for the implementation of a quality assurance system under s 54G of the ESC Act, Injunction under s 54ZH of the ESC Act.

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Enforceable Undertaking

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Number of Notices: 45

Penalty Amount: $1,676,104

Provisions contravened: Clauses 150(1), 150(4) and 151(1) of the Electricity Retail Code of Practice, Section 23A(2) of the Electricity Industry Action (2000) and its statutory licence condition, and section 33(2) of the Gas Industry Act (2001) and its statutory licence condition.

Obligations contravened: Engie failed to either prevent the disclosure or provision of confidential information about customers affected by family violence without their consent, take reasonable steps to find out an affected customer’s preferred method of communication, or offer practical alternatives if their preferred method was not practicable or provide customer service assistance that avoided the need for a customer affected by family violence to repeatedly disclose or refer to their experience. Also, allegedly failed to provide accurate performance reports to the commission.

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Number of notices: 22

Penalty amount: $825,472

Provisions contravened: clause 80(1) of the ERCOP, section 23A of the Electricity Industry Act 2000 and section 33 of the Gas Industry Act 2001.

Obligations contravened: Dodo Power & Gas allegedly failing to pass on guaranteed service level payments to customers within the required timeframe and also allegedly failed to report the guaranteed service level payment breach and a separate disconnection breach to the commission within the prescribed timeframe.

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Greater Western Water enforceable undertaking 2024.

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Number of Notices: 10

Penalty Amount: $369,840

Provision contravened: Energy Retail Code of Practice (version 1 and 2) clause(s) 108, 109(1) 110(1) and 110(2)

Obligation contravened: ReAmped Energy allegedly failed in its best offer obligations to customers when it did not identify the customer’s best offer, incorrectly calculated the best offer, or did not provide a best offer message frequently enough.

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