Principal Instrument Template

Part 1—Preliminary

1 Name

This is the Telecommunications (Consumer Complaints Handling) Industry Standard 2018.

This instrument commences on 1 July 2018.

Note: All legislative instruments are registered on the Federal Register of Legislation kept under the Legislation Act 2003, which may be accessed at: www.legislation.gov.au.

3 Authority

This instrument is determined under subsection 125AA(1) of the Telecommunications Act 1997 and in accordance with sections 5 and 8 of the Telecommunications (NBN Consumer Experience Industry Standard) Direction 2017.

Note: The Telecommunications (NBN Consumer Experience Industry Standard) Direction 2017 was given to the ACMA by the Minister under subsection 125AA(4) of the Act.

4 Application of industry standard

For the purpose of subsection 125AA(1) of the Act:

(a) this industry standard applies to participants in the following sections of the telecommunications industry:

(i) carriage service providers; and

(ii) carriers responsible for network units that are used in the supply of services by carriage service providers; and

(b) the content of this industry standard deals with the handling of consumer complaints about the supply of carriage services by carriage service providers and carriers listed in paragraph (a) in a professional, effective and efficient manner, and reporting about consumer complaints.

5 Definitions

In this instrument:

ACMA means the Australian Communications and Media Authority.

Act means the Telecommunications Act 1997.

advocate means a person nominated on behalf of a consumer to deal with a carriage service provider on the consumer’s behalf, but does not include an authorised representative or a person who has authority to access the consumer’s account information from the carriage service provider.

authorised representative means a person who has authority from a consumer to deal with a carriage service provider on behalf of that consumer as their authorised agent.

bill means an invoice from a carriage service provider which advises a consumer of the total of each billed charge.

billed charge means a charge that is due for payment by a consumer in respect of telecommunications products provided by a carriage service provider.

billing period means a period of time in relation to which a billed charge relates.

carriage service provider’s website includes a website controlled by a carriage service provider or another website it has endorsed for managing or receiving complaints.

closed, when used in connection with a complaint, means a complaint that is no longer open in the carriage service provider’s complaint management system where:

(a) resolution has occurred and no further action is required by the carriage service provider; or

(b) paragraph 13(1)(l) applies.

complaint means an expression of dissatisfaction made to a carriage service provider by a consumer in relation to its telecommunications products or the complaints handling process itself, where a response or resolution is explicitly or implicitly expected by the consumer.

It does not include an initial call to request information or support or to report a fault or service difficulty unless a consumer advises that they want that call treated as a complaint, and does not include an issue that is the subject of legal action.

complaints handling process means a consumer complaints handling process established by a carriage service provider pursuant to section 7.

consumer means:

(a) an individual who acquires or may acquire a telecommunications product for the primary purpose of personal or domestic use and not for resale; or

(b) a business or non-profit organisation which acquires or may acquire one or more telecommunications products which are not for resale and which, at the time it enters into the consumer contract:

(i) does not have a genuine and reasonable opportunity to negotiate the terms of the consumer contract; and

(ii) has or will have an annual spend with the carriage service provider which is, or is estimated on reasonable grounds by the carriage service provider to be, no greater than $20,000.

A reference to a consumer includes a reference to the consumer’s representative.

consumer contract means an arrangement or agreement between a carriage service provider and a consumer for the supply of a telecommunications product to that consumer, and includes a standard form of agreement formulated by a carriage service provider for the purposes of section 479 of the Act.

financial hardship means a situation where:

(a) a consumer is unable to discharge the financial obligations owed by the consumer under their consumer contract or otherwise discharge the financial obligations owed by the consumer to a carriage service provider, due to illness, unemployment, being the victim of domestic or family violence, or other reasonable cause; and

(b) the consumer believes that they will be able to discharge those obligations if the relevant payment arrangements or other arrangements relating to the supply of telecommunications products by the carriage service provider to the consumer are changed.

internal escalation process means the internal escalation process referred to in paragraph 10(b).

internal prioritisation process means the internal prioritisation process referred to in paragraph 10(a).

minimum requirements for consumer complaints handling means the minimum requirements for the handling of consumer complaints set out in sections 8, 9 and 10.

notified mass outage of service means a mass outage of service that is the subject of a notice published in accordance with section 25 of the Telecommunications (Consumer Service Guarantee) Standard 2011.

personal information has the same meaning as in section 6 of the Privacy Act 1988.

personnel includes staff or contractors engaged by or on behalf of a carriage service provider.

recorded telephone message means a telephone message from a consumer making a complaint that is recorded without direct contact with personnel.

representative means an advocate or an authorised representative.

resolution when used in connection with a complaint, means the outcome of bringing that complaint to a conclusion in accordance with the requirements of this industry standard, irrespective of whether the outcome is in favour of the consumer. It does not include the implementation of that resolution.

resolve when used in connection with a complaint, means to bring that complaint to a conclusion in accordance with the requirements of this industry standard.

subscription broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

subscription narrowcasting service has the same meaning as in the Broadcasting Services Act 1992.

telecommunications goods means any goods supplied by a carriage service provider for use in connection with the supply of a telecommunications service, whether or not the goods are supplied in conjunction with, or separately from, a telecommunications service.

telecommunications product means telecommunications goods or a telecommunications service.

telecommunications service means:

(a) a listed carriage service or any service supplied by a carriage service provider in connection with that service; and

(b) a content service (other than a subscription broadcasting service or a television subscription narrowcasting service) provided by a carriage service provider in connection with the supply of a listed carriage service.

TIO means the Telecommunications Industry Ombudsman.

urgent complaint means a complaint:

(a) where the complaint is made by a consumer who has applied for or has been accepted as being in financial hardship under that carriage service provider’s financial hardship policy and where the subject matter of the complaint can reasonably be presumed to directly contribute to or aggravate the financial hardship of that consumer;

(b) where disconnection of a service is imminent or has occurred and where due process has not been followed; or

working day means:

(a) in Part 2 to Part 5, a day that is not a Saturday, Sunday or gazetted public holiday in the location of the consumer’s premises or principal place of business; and

(b) in Part 6, a day that is not a Saturday, Sunday or gazetted public holiday in the location of the principal place of business of the relevant carrier, first carriage service provider or retail carriage service provider.

Note: A number of other expressions used in this instrument are defined in the Act, including the following:

(a) carriage service;

(b) carriage service provider;

(d) listed carriage service;

(e) network unit;

(f) priority assistance;

(g) section of the telecommunications industry;

(h) telecommunications industry; and

(i) Telecommunications Industry Ombudsman.

6 References to other instruments

In this industry standard, unless the contrary intention appears, a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time.

Note 1: For references to Commonwealth Acts, see section 10 of the Acts Interpretation Act 1901; and see also subsection 13(1) of the Legislation Act 2003 for the application of the Acts Interpretation Act 1901 to legislative instruments.

Note 2: All Commonwealth Acts and legislative instruments are registered on the Federal Register of Legislation.

Part 2—Complaints handling process

7 Establish a complaints handling process

(1) A carriage service provider that offers to supply telecommunications products to consumers under a consumer contract must:

(a) establish a complaints handling process that includes the minimum requirements for consumer complaints handling; and

(b) comply with the minimum requirements for consumer complaints handling set out in its complaints handling process.

(2) The carriage service provider’s Chief Executive Officer (or equivalent) must approve the complaints handling process and be responsible for its implementation and operation.

8 Minimum requirements - accessibility

(1) A complaints handling process must:

(a) be set out in writing;

(b) be made available to the public on the carriage service provider’s website in a concise form that sets out the minimum requirements for complaints handling referred to in paragraphs (d) to (m), and sections 9 and 10;

(c) be made available to a consumer on request, or as soon as practicable after a consumer informs the carriage service provider they wish to make a complaint, in a form that is suitable for the consumer and, where appropriate, made available to carriage service providers or carriers identified in sections 23 and 24;

(d) be free of charge for consumers to use;

(e) be focused on the needs and expectations of consumers making a complaint and be easy to understand and use;

(f) state that consumers have a right to make a complaint;

(g) set out how and when a consumer can make a complaint and monitor the progress of their complaint;

(h) permit consumers to make complaints by telephone, letter, email and online;

(i) permit consumers to make complaints in store, where the carriage service provider offers services at a physical location;

(j) specify the telephone number, email address and web address where a consumer can make a complaint;

(k) require members of its personnel to:

(i) clarify with a consumer if they wish to make a complaint where the consumer has made contact and expressed dissatisfaction through one of the channels referred to in paragraph (h) or paragaraph (i), and the member of the personnel is uncertain if the consumer wishes to make a complaint; and

(ii) provide consumers with help to formulate, make and progress a complaint, and set out steps to assist members of its personnel to help consumers with special needs or disabilities, and consumers from non-English backgrounds or those suffering financial hardship;

(l) allow for consumers to nominate a representative to make and handle a complaint;

(m) set out in sequence each potential step in the process for managing a complaint that was unable to be resolved on first contact, including the following steps:

(i) receipt of a complaint;

(ii) acknowledgment of a complaint;

(iii) initial assessment of a complaint;

(iv) investigation of a complaint;

(v) response to a complaint and proposed resolution;

(vi) communicating the carriage service provider’s decision in response to the complaint;

(vii) implementation of agreed resolution;

(viii) closing a complaint;

(ix) the process where a complaint is referred to the TIO for external dispute resolution; and

(x) the procedures for identifying and handling urgent complaints, including how those procedures differ from handling ordinary complaints.

(2) A carriage service provider must ensure that its personnel dealing directly with consumers:

(a) are given access to a copy of the complaints handling process; and

(b) understand the minimum requirements for consumer complaints handling and their roles and responsibilities under the complaint handling process.

(3) A carriage service provider must ensure that information about how a consumer can contact the carriage service provider to make a complaint or enquiry can be accessed via a link on the homepage for its website.

9 Minimum requirements - timeliness

A complaints handling process must identify the relevant time periods associated with each step in the process, including the response times for managing a complaint set out in sections 12, 13, 14, 15, 16 and 17.

10 Minimum requirements - transparency

A complaints handling process must:

(a) include an internal process for prioritising complaints that is clear, accessible and transparent for consumers;

(b) include an internal process for escalating a consumer’s complaint, which is clear, accessible and transparent for consumers;

(d) set out a description of how escalated complaints will be managed;

(e) set out a dispute resolution process, which provides a consumer with the right to escalate a complaint to the TIO after the carriage service provider has been given a reasonable opportunity to resolve a complaint, and which includes details about how a consumer can contact the TIO;

(f) provide that a consumer’s telecommunications service cannot be cancelled for the sole reason that the consumer was unable to resolve the complaint directly with the carriage service provider and pursued options for external dispute resolution; and

(g) include a process for classifying complaints into different categories, which clearly describes each category of complaint.

Part 3—Complaints management and response times

11 Complaints management

A carriage service provider must ensure that:

(a) its complaints handling process is managed by a senior manager who is required to maintain the effective and efficient operation of that process in accordance with the minimum requirements for consumer complaints handling; and

(b) its personnel dealing directly with consumers or personnel dealing with complaints:

(i) manage and resolve complaints in an effective and efficient manner in accordance with the minimum requirements for consumer complaints handling;

(ii) treat consumers making a complaint with fairness and courtesy;

(iii) can identify and record a complaint; and

(iv) can classify complaints in accordance with the provider’s process mentioned in paragraph 10(g).

12 Acknowledging complaints

A carriage service provider must:

(a) acknowledge a complaint received by telephone or in store immediately;

(b) acknowledge a complaint received by:

(i) email;

(ii) through the carriage service provider’s website;

(iii) post; or

(iv) a recorded telephone message,

within 2 working days of receiving the complaint.

13 Resolution of complaints

(1) A carriage service provider must:

(a) use its best efforts to resolve a complaint on first contact;

(b) implement processes for the identification, management and resolution of urgent complaints;

(c) investigate a complaint to the extent that is commensurate with the seriousness of the complaint, where it is not possible to resolve a complaint to the satisfaction of the consumer at first contact or without an investigation;

(d) ensure that its personnel understand what remedies are available to assist with the resolution of a complaint;

(e) tailor any remedy offered to a consumer so that, as far as practicable, the remedy addresses the main cause of the complaint, and the individual circumstances of the consumer;

(f) resolve complaints about alleged billing errors no later than the end of the billing period immediately following the consumer’s current billing period;

(g) provide confirmation of a proposed resolution of a complaint, within 15 working days of receiving the complaint;

(h) provide confirmation of a proposed resolution of an urgent complaint, and if the consumer accepts the proposed resolution, implement that resolution, within 2 working days of receiving the urgent complaint;

(i) where a complaint is indicative of broader problem or systemic issue, seek to resolve the main cause of that problem or issue;

(j) complete all necessary actions to implement a proposed resolution, within 10 working days of the consumer accepting that resolution, except where:

(i) otherwise agreed with the consumer;

(ii) the consumer agreed to undertake actions to implement the proposed resolution by a specified time, but did not complete the actions as agreed;

(iii) the complaint is an urgent complaint and paragraph (h) applies;

(k) provide confirmation to a consumer that their complaint has been resolved, as soon as practicable after the carriage service provider completes its investigation of the complaint; and

(l) only allow a complaint or an urgent complaint to be closed with the consent of the consumer, or where the carriage service provider has complied with subsection 15(2), section 16 or section 17.

(2) A carriage service provider must, upon receiving a request from a consumer to provide written confirmation of the matters set out in paragraphs (1)(g), (h) or (k), provide that confirmation in writing to the consumer within 5 working days after receiving the request.

14 Delays

(1) A carriage service provider must advise consumers of any delay to proposed timeframes for managing or handling their complaint as soon as possible after becoming aware of the delay.

(2) Where a carriage service provider does not reasonably believe that a complaint can be resolved within 15 working days of receiving the complaint, the carriage service provider must as soon as practicable within that period advise the complainant of:

(a) the cause of the delay;

(b) the new timeframe for resolving the complaint; and

(c) the avenues for external dispute resolution including the TIO, where it is expected that the delay will be longer than 10 working days and is not caused by a notified mass outage of service.

(3) Where a carriage service provider does not believe that an urgent complaint can be resolved within 2 working days of receipt of the urgent complaint, the carriage service provider must as soon as practicable within that period, advise the complainant of the matters set out in paragraphs (2)(a), (b) and, where applicable, paragraph (2)(c).

15 Complaint prioritisation, escalation and external dispute resolution

(1) Where a consumer communicates to a carriage service provider:

(a) that they are dissatisfied with the response times that apply to the handling or management of their complaint; or

(b) that they reasonably want their complaint to be assessed and treated as an urgent complaint,

a carriage service provider must, within 5 working days where paragraph (a) applies, or 2 working days where paragraph (b) applies, after receiving that communication, advise the consumer about:

(d) its internal escalation process; and

(e) options for external dispute resolution, including the TIO.

(2) Where a consumer:

(a) communicates to a carriage service provider that they are dissatisfied with the progress or resolution of a complaint; or

(b) enquires about their options to pursue a complaint further,

a carriage service provider must advise the consumer about:

(d) options for external dispute resolution, including the TIO.

(3) A carriage service provider must not commence legal proceedings against a consumer that has the same subject matter as the complaint:

(a) while a complaint is being handled internally and for 7 working days after a consumer is advised of the outcome of their complaint; or

(b) while a complaint is being investigated by the TIO.

16 Frivolous or vexatious complaints

(1) If, after careful consideration and appropriate internal escalation of a complaint, a carriage service provider reasonably concludes:

(a) that it can do nothing more to resolve the complaint or assist the consumer; and

(b) that the consumer’s behaviour, or complaint is frivolous or vexatious,

the carriage service provider may decide not to deal, or to deal further, with the complaint.

(2) Within 5 working days of making a decision not to deal with a complaint under subsection (1), a carriage service provider must advise the consumer of the reasons for its decision and options for external dispute resolution, including the TIO.

(3) Where a carriage service provider advises a consumer in accordance with subsection (2), it is not required to accept any further complaints from that consumer on the same or similar issues, except as a part of an external dispute resolution process.

(4) A carriage service provider must provide the consumer with written confirmation of the matters set out in subsection (2) in writing within 5 working days after receiving a request to do so from the consumer.

17 Attempt to make contact

If, in the course of meeting its obligations under this industry standard, a carriage service provider is unable to contact a consumer to discuss their complaint or to advise them of the proposed resolution of their complaint, the carriage service provider must write to the consumer:

(a) advising that they were unable to contact them;

(b) provide details of its contact attempts; and

(c) provide an invitation to contact the carriage service provider to discuss the complaint within a specific timeframe of not less than 10 working days from the date of that invitation.

Part 5—Complaints record-keeping

20 Requirements to keep records of complaints

(1) A carriage service provider must keep systematic records of complaints, which include:

(a) the name and contact details of the consumer making the complaint, and their representative where applicable;

(b) a unique reference number or such other measure that will ensure the carriage service provider can subsequently identify the complaint and its subject matter;

(d) a description of the resolution proposed by the carriage service provider or the consumer;

(e) the due date for a response;

(f) a description of the results of any investigation;

(g) a description of the proposed resolution of the complaint, including any associated commitments and the date this is communicated to the consumer;

(h) a description of the carriage service provider’s reasons for its proposed resolution;

(i) the consumer’s response to the proposed resolution of the complaint, any reasons given by the consumer, and if they have requested the proposed resolution in writing, that this request has been made;

(j) the implementation of any required actions; and

(k) copies of any correspondence sent by or to the consumer regarding the complaint.

21 Record retention

A carriage service provider must:

(a) keep records that are sufficient to demonstrate its compliance with the requirements under Parts 2 to 5 of this industry standard for at least two years from the date of creating the record; and

(b) make those records available to the ACMA upon receiving a written request from the ACMA.

22 Privacy

Where a carriage service provider is not subject to the requirements of the Privacy Act 1988, it must ensure that personal information it collects in connection with a complaint is not disclosed to a third party except:

(a) as required to manage a complaint to the TIO or the ACMA;

(b) with the express consent of the consumer; or

Part 6—Reasonable assistance

23 Carriage service providers must provide reasonable assistance

Where:

(a) a carriage service provider (the first carriage service provider) supplies a carriage service; and

(b) that carriage service is involved (directly or indirectly) in the supply of another carriage service (the retail carriage service) by another carriage service provider (a retail carriage service provider) to consumers;

the first carriage service provider must provide reasonable assistance to:

(d) any other carriage service provider who supplies a carriage service that is involved (directly or indirectly) in the supply of the retail carriage service;

in managing and resolving any complaints received by the retail carriage service provider in relation to the retail carriage service.

24 Carriers must provide reasonable assistance

Where:

(a) a carrier is responsible for a network unit; and

(b) that network unit is used by a retail carriage service provider to supply a retail carriage service, or to supply a carriage service that is involved (directly or indirectly) in the supply of a retail carriage service;

the carrier must provide reasonable assistance to:

(d) any carriage service provider who supplies a carriage service that is involved (directly or indirectly) in the supply of the retail carriage service;

in managing and resolving any complaints received by the retail carriage service provider in relation to the retail carriage service.

25 Requests for reasonable assistance

A retail carriage service provider must:

(a) promptly upon receiving a complaint and before making a request for reasonable assistance under this Part:

(i) assess the cause of the issues that are the subject of the complaint, including, if appropriate, by contacting the complainant to determine if any third party equipment at their premises is causing those issues; and

(ii) determine if a first carriage service provider mentioned in section 23 or a carrier mentioned in section 24 is required to provide reasonable assistance under this Part to manage or resolve the complaint; and

(b) ensure that any request for reasonable assistance it makes under this Part:

(i) is made promptly after making a determination under paragraph (a)(ii);

(ii) includes an explanation of the key issues that are the subject of the complaint and, where possible, its assessment of the cause of those issues and how they can be fixed;

(iii) if requested by the first carriage service provider or carrier – describes the steps that it took under subparagraph (a)(ii) to determine that the first carriage service provider or the carrier is required to provide reasonable assistance to manage and resolve the complaint;

(iv) identifies each of the relevant timeframes that it is required to meet under this industry standard in relation to the complaint;

(v) if appropriate, set out any proposals about how the first carriage service provider or the carrier might provide reasonable assistance to manage and resolve the complaint within the timeframes identified under subparagraph (iv).

26 Responding to requests for reasonable assistance

The first carriage service provider identified in section 23 and a carrier identified in section 24 must:

(a) nominate one or more contact persons responsible for the coordination of activities in relation to the provision of reasonable assistance pursuant to this Part;

(b) notify relevant retail carriage service providers of an email address, or other method, whereby they can contact a contact person nominated under paragraph (a), or make enquiries about, or request, reasonable assistance pursuant to this Part;

(c) ensure that the inbox for the email address or other method of contact identified in paragraph (b) is monitored each working day;

(d) acknowledge the receipt of a request for reasonable assistance;

(e) advise what the indicative timeframes are for responding to the request;

(f) confirm any proposed resolution as soon as practicable after completing its investigation of the issues set out in the request; and

(g) ensure that all enquiries and requests for reasonable assistance received by the nominated contact person are responded to as soon as practicable, including by taking all reasonable steps to enable the retail carriage service provider to meet the relevant timeframes that apply to that provider under Part 3.

27 Reasonable assistance to the TIO

A first carriage service provider identified in section 23 (and a carrier identified in section 24 must provide reasonable assistance to the TIO, where the TIO requests assistance to investigate a complaint that relates to the subject matter set out in this Part.

28 Requirement to keep records

A first carriage service provider identified in section 23, a carrier identified in section 24 and a retail carriage service provider identified in section 25 must:

(a) keep records that are sufficient to demonstrate its compliance with the requirements under this Part;

(b) retain the records required to be kept by paragraph (a) for at least two years from the date of creating the record; and

Part 7—Transitional

29 Transitional arrangements for unresolved complaints

(1) Where:

(a) a complaint was made by a consumer to a carriage service provider prior to the commencement of this industry standard, and remains unresolved at or after the date of the commencement of this industry standard; and

(b) an industry code is registered by the ACMA under Part 6 of the Act that imposes requirements on carriage service providers regarding the handling of consumer complaints,

the complaint must be assessed and dealt with as a complaint for the purpose of that industry code.

(2) A complaint referred to in paragraph (1)(a) must be dealt with under this standard if at the time that this industry standard is in force there is no industry code of the kind referred to in paragraph (1)(b).