The Australian Consumer Law (ACL) came into effect in 2011 and established a new code of rights for Australian consumers. One of its central provisions is that products have to be of acceptable quality, which means they have to be safe, durable and free of defects. If they're not, you're entitled to a refund.
We think that's a pretty fair deal, but some players in the consumer marketplace seem to still be getting their heads around the details – especially the local sales team for the famed all-in-one kitchen machine Thermomix.
Our investigation, detailed below, has given rise to an investigation by the ACCC, which is currently underway.
With a review of the ACL currently under way, we've been tracking what appears to be one of the more notable household product failures in recent years – the Thermomix TM31.
The unit, which retailed for about $2000 until it was superseded by the Thermomix TM5 (which costs about the same), has become an object of worshipful devotion for many of its owners, who express pride at having the king of all kitchen machines in their cupboard.
But the TM31 has also become a source of bitter disappointment to those who shelled out the $2000 and ended up getting burnt – some of them literally.
Great machine – when it works
The devotion to this wunderkind of a kitchen unit is understandable. In our previous review of all-in-one kitchen machines, published in December 2015, the TM31 was the second-highest scorer of the nine machines tested. Which machine came in first? The Thermomix TM5, which scored better when we tested it than the new lineup of all-in-one machines in our most recent test.
But both the TM31 and the TM5 lack a safety feature that's built in to a number of the these latest machines which prevents users from blending hot liquids at high speeds.
We've now added this to our testing criteria: to score well on safety, all-in-one kitchen machines will have to have a cut-out feature to prevent hot liquids from spilling out.
Aside from the safety issue, the TM31 is probably worth the money when it works as advertised, but the quality of customer service by the local sales team is another matter.
And according to numerous reports that have come our way, the machine can be dangerously unsafe, to the extent that a critical part of the TM31 model ended up on Australia's national product recall site in 2014, though Thermomix has adamantly refused to call the incident a recall. The ACCC, on the other hand, has confirmed that a voluntary recall was in fact issued and that 'recall' is the correct term.
More than a few scalding incidents have been attributed to failure of the faulty part, a $15 sealing ring for the mixing bowl, which is meant to be replaced every two years – though apparently only a small proportion of Thermomix owners are aware of this critical detail.
CHOICE has received reports from consumers that say Thermomix knew about the safety risk well before October 2014, when the recall site notice was posted.
Under mandatory reporting requirements, Thermomix Australia would have had to report any injuries to the ACCC that occurred before the faulty part was listed on the recalls site.
We asked the ACCC if this had happened but were told "we are generally required by law to maintain that information in confidence, unless given permission to disclose it publicly".
In March, we launched a poll to find out how many Thermomix owners knew about the two-year replacement rule. At last count, 3127 people had completed our poll, and only 718 (23%) of them knew they were supposed to replace the ring. That means 77% were unaware that the ring needs replacing to prevent a possible scalding incident.
Meanwhile, Thermomix Australia has assured CHOICE through their local legal team that replacement sealing rings had been sent to all affected TM31 owners as of November 2014. Those rings will be due for replacement in November this year.
Case studies – mass incident report
The discrepancy between expectation and experience among the many disgruntled Thermomix owners we've heard from has been so stark that we decided to escalate the issue.
In late March we launched our 'Thermoburn' campaign with an eye to filing a mass incident report with the ACCC, the first of its kind as far as we're aware. We asked Thermomix owners to let us know if they'd had issues with or been injured by their machines, and the response was swift.
Between 29 March and 9 May 2016, 87 Thermomix owners filled out our mass incident form and reported a problem with their machine (83 with the TM31 model and four with the TM5). Forty-five reported being injured, and 18 of the injured said they received medical treatment.
Fifty-three people complained to Thermomix about an incident, and ten of the injured who had sought treatment from a doctor or a nurse said they reported the incident to Thermomix Australia, in one case as early as 2013. And many Thermomix owners who had been sent new green sealing rings told us the new part didn't fix the problem.
Here's a brief sample of some of the many comments that have come our way.
"I bought a TM31 in 2013 and it was then listed by the company as one of the faulty machines. Although I contacted the company a number of times they refused point-blank to address my concerns or to issue me with a refund. This is despite the fact I was burnt by hot soup when using it with the old seal.
"The company's behaviour has been abhorrent throughout. They have used bullying tactics, ignored consumer law, and answered every question with the same cut-and-paste response.
"$2000 was a very extravagant and expensive outlay for me to make; never have I made such a purchase before. But despite having a new seal I have never used it for cooking again. It is now simply a ridiculously expensive blender. The company is a serious disgrace and their behaviour is a blight on Australian standards."
- Robyn Egerton
'Take us to court'
"On delivery of the TM31 my husband brought to the delivery consultant's attention the loose seal that wouldn't engage in place. Her response was 'it was normal', so we accepted that this was what it was supposed to be like. We also asked about the rumoured new model prior to purchase and were told that there was not going to be a new model released in the near future.
"If we had known we would have waited to purchase the new model five months later. When the recall came in October 2014 we were angry that we had been deceived and straight away I emailed Thermomix refusing a replacement seal and demanding a refund.
"Customer Service at Thermomix was frustrating and I felt intimidated by them and was also told by customer service that to get a refund I had to take them to court. Phone calls from Thermomix customer service ... affected my health and drained my energy."
– Anonymity requested
All the way to the NCA Tribunal
"My TM31 started playing up within a couple of months of buying it. I had issues with the motor stalling when following instructions from their own cook book, the motor stopping, error messages being displayed, the machine flashing 'open' when the lid was on and speed was at maximum. The most concerning issue of all was that the lid unlocked whilst it was operating.
"Not only did I notify Thermomix of this, but I also sent them the videos. They refused to refund and demanded I send in the machine. I told them that I didn't want it repaired, I wanted a full refund as the machine was sold to me as 'German technology' that would last me 20 years. It didn't even last me two months.
"A fight ensued for the next few months and then, realising that I was getting nowhere with Thermomix, I lodged a complaint with NCAT [NSW Civil and Administrative Tribunal]. The hearing was scheduled for a month's time. Two days before the hearing, Thermomix's lawyer contacted me and used scare tactics and bullying to try and get me to sign off on a confidentiality agreement. The method they were using was dirty and disgusting and there was no way I was going to relent to bullies.
"I really hope that some long overdue retribution comes Thermomix's way before anyone else gets seriously hurt."
– Keira (whose refund was ordered by NCAT without any confidentiality agreement).
Aside from the product failure issue itself, Thermomix Australia has taken a belligerent stance toward customers who complain.
Instead of offering prompt refunds to customers who reported being injured or who had other problems with their TM31 machines, the local sales team resorted to hardball tactics.
In what may be an all-time low in customer service for a high-end product, Thermomix attempted to force customers to sign non-disclosure agreements – or gag orders – in exchange for a mere refund, not medical costs or other damages.
Acting for Thermomix, an Australian law firm wrote to customers saying, "the terms of the deed of settlement [refund of the cost of the machine] are strictly confidential and must not be disclosed to any person (but including via social media) without prior written consent".
And customers had to agree "not to disparage or otherwise comment negatively about Thermomix or Vorwerk [the German manufacturer] and not to take any action which it is intended, or would reasonably be expected, to harm the reputation of Thermomix or Vorwerk, or lead to unwanted or unfavourable publicity".
A number of Thermomix owners who contacted CHOICE refused to sign such agreements.
Culture of bullying?
Hardball tactics also came into play within the Australian-based sales team and ultimately infused the entire Thermomix Australia culture, according to one 'consultant' (lead salesperson) who was previously a branch manager and group leader and spoke to CHOICE on condition of anonymity.
"There was bullying and intimidation from top to bottom," the woman said, referring to the three-tiered structure.
She claims a number of Thermomix sales staffers have left the business in response to mistreatment by profit-minded managers. And, says the woman, Thermomix Australia was aware the TM5 was on the way but deliberately misled the Australian public in an effort to sell off excess TM31 stock.
"I myself knew about the TM5 five months before it was released, and the company obviously knew as well," the consultant said. "The bigger the operations here in Australia got, the greedier Thermomix Australia got."
It's a view that jibes with comments we've received from Thermomix owners, including Phil, quoted below.
Unloading outdated TM31s
"I ordered my Thermomix TM31 on 2 August 2014, shortly before the announcement of the new TM5. At the time, we had specifically asked the consultant if a new model was on the horizon as my wife had asked about becoming a consultant. The consultant's response was, 'no, the TM31 is a tried and tested product with a very low defect rate and looks like it will be around for many years to come'.
"The locking mechanism on the lid on our machine was a bit dodgy, and we subsequently received a new lid and seal as part of the recall. That did not fix that problem completely, however, just made it stiff and difficult to close. The whole lid issue had made me suspect the surprise launch of the TM5 was due to a known defect with the TM31 rather than a marketing strategy. We are left feeling ripped off, misled and sold a faulty product by Thermomix."
CHOICE gave Thermomix Australia a Shonky award in 2014 for its handling of the TM5 release. Meanwhile, Thermomix has informed Phil that, despite the issue with his machine, he does not meet the criteria for a refund.
Thermomix Australia responds
We gave Thermomix Australia an opportunity to respond to what we uncovered during this investigation, particularly whether it was aware of the TM31 issue well before the sealing ring was recalled and whether it now acknowledged that 'recall' was the right term. The company declined to address these points but told us "the safety, well being and support of our customers is and always will be our highest priority".
The 'black box' furphy
A number of Thermomix owners have apparently been told to return their machines to the company so one of its components, the 'black box', can be analysed to determine the cause of the lid failure and other malfunctions. But one longtime Thermomix Australia consultant and former branch manager and group leader told us the black box only records weight and time of use. "They [Thermomix Australia] are lying when they say it will tell you what happened with the lid."
What to do if you've been burnt
If you've had an incident with your Thermomix machine, public safety lawyer Dimi Ioannou of the law firm Maurice Blackburn offers a few tips on what to do next.
Locate your receipt, and then contact the person you bought the machine from and ask for a refund under Australian Consumer Law on the grounds that your machine is not of acceptable quality.
Write a detailed letter about the incident or nature of the malfunction to the manufacturer, Vorwerk Elektowerke.
If Thermomix Australia asks you to mail your machine in for inspection, request that a Thermomix representative come to you instead.
If you do mail your machine in, ask to be reimbursed for postage.
Be advised that you are likely entitled to compensation for any expenses, medical or otherwise, you incur as result of a Thermomix malfunction.
Are you a CHOICE member with a Thermomix issue? Our CHOICE Help team may be able to help.