The establishment of the AFCA scheme represents a step change in complaint resolution in Australia. Australians need an external dispute resolution scheme that is free, fair and independent, and provides a quick resolution to consumer problems and concerns. The establishment of AFCA is essential in delivering this service. As an organisation, AFCA will be transparent, more efficient and more accountable for the service we provide.
This means that, for the superannuation industry, AFCA is not just a successor to the Superannuation Complaints Tribunal (SCT), which will continue to deal with existing complaints submitted to it before 1 November 2018. We see AFCA as an opportunity for the superannuation industry to garner all the benefits of a membership-based ombudsman scheme, with the ultimate aim of improving complaints handling and building stronger relationships with your fund members.
Many aspects applicable to the SCT are also applicable to AFCA. These include: who can make a superannuation complaint, the ‘fair and reasonable’ test for determining a superannuation complaint, claim staking provisions for death benefit complaints and statutory powers to join parties, obtain information, require a conciliation conference and give confidentiality directions. AFCA Determinations are also immediately binding, but with a right of appeal to the Federal Court on a question of law.
You will however experience some differences in dealing with AFCA:
- Governing rules: The AFCA scheme is governed by both legislation and the AFCA Rules. Superannuation providers and complainants therefore need to be familiar with both. There are also Operational Guidelines that explain how we interpret and apply our Rules. We have produced a Transitional Superannuation Guide (TSG) that brings together the legislation, Rules and our guidance as it relates to super complaints in a single document to assist superannuation providers and complainants. We expect that the TSG will be particularly useful during the period of up to two years when both AFCA and the SCT are operating. The Rules, Operational Guidelines and TSG are all available on our website at afca.org.au.
- ‘Refer-back’ process: AFCA will register a complaint, but will not usually commence considering it unless it has been first considered by the superannuation provider under its internal dispute resolution (IDR) procedures. (By comparison, the SCT must refuse to handle a complaint unless it has first been considered under the superannuation provider’s IDR procedures.)
This means that, initially, complainants must usually raise their complaint with the superannuation provider. If the superannuation provider’s IDR process has not resolved the complaint, AFCA will usually give the superannuation provider a further opportunity to resolve the complaint within a short timeframe. (This will not apply to complaints about the payment of a death benefit. We will begin considering death benefit complaints as soon as it establishes that the two prescribed 28-day timeframes for objecting to the superannuation provider and complaining to AFCA have been met.)
- Jurisdictional review: If a superannuation provider believes a complaint should be excluded because it is outside AFCA’s superannuation jurisdiction, or that we should exercise our discretion not to consider the complaint, the superannuation provider can inform AFCA and provide reasons and relevant documents to support its view. You need not wait for us to make our own assessment. AFCA has a formal process for considering jurisdictional objections, which can involve an initial assessment and, if the initial assessment is contested, review by a senior AFCA staff member or an AFCA Decision Maker. We are also able to consider complaints (other than death benefit complaints) by agreement, even if it would otherwise be outside its jurisdiction under the AFCA Rules.
- Active engagement: AFCA encourages cooperation and collaboration in the resolution of complaints. Superannuation providers and complainants will be able to engage proactively with AFCA, including by telephone and electronically. Superannuation providers can expect to receive automated email communications when a complaint is registered and will also be able to submit information and track the progress of a complaint through a secure portal available to all AFCA members.
- Requests for information: AFCA adopts an inquisitorial approach in seeking to resolve complaints. While AFCA has statutory powers to obtain information for superannuation, we will primarily use its powers and processes under the AFCA Rules to request information, which allow for the parties to constructively interact with AFCA. AFCA expects parties to bring matters to our attention that may assist us in handling a complaint. AFCA also has power under its Rules to require the parties to do things that may assist in the resolution of a complaint, such as obtaining independent expert advice.
- Flexible complaint model: AFCA is required by legislation to operate in a way that is accessible, independent, fair, accountable, efficient and effective. We have flexibility under our Rules to resolve complaints using a variety of tools, including negotiation and conciliation. We will engage with the parties to find the most effective way of reaching resolution. Not all complaints will necessarily end up being formally determined by an AFCA Decision Maker, such as an Adjudicator, Ombudsman or Panel. For example, after investigating a complaint, AFCA may make a preliminary assessment about how the complaint could be resolved, based on the case manager’s evaluation of the information we have obtained. While there is no obligation on the parties to accept a preliminary assessment, we find that many complaints do resolve in this way. Alternatively, if the preliminary assessment highlights that important information is missing or that there has been a misunderstanding of the complaint, a preliminary assessment provides the parties with the chance to provide further information or clarification before the complaint proceeds to a formal determination.
- Different decision makers: The Chief Ombudsman, or his delegate, decides whether a Determination should be made by a single Ombudsman or Adjudicator, or by a two-or three-person AFCA Panel. The aim is to select the appropriate AFCA Decision Maker for the particular complaint. An Adjudicator is likely to be the AFCA Decision Maker for a complaint that has a small number of well-defined issues and involves small amounts of money. If the complaint is complex or involves a significant amount of money, it is more likely to be determined by an Ombudsman. The selected Ombudsman would be expert in superannuation law and industry practice. If the complaint raises new issues for AFCA, it may be that a multi-person panel of AFCA Decision Makers will determine the complaint. The AFCA Panel would include relevant experts. We will regularly review our criteria for complaints decided by Panels for superannuation complaints, as it gains further insight into the range of superannuation complaints lodged with AFCA.
- Regular liaison: As a membership based scheme, AFCA regularly liaises with our members, including superannuation trustees, to discuss trends and emerging issues. At our liaison groups and forums, you will have the opportunity to discuss AFCA’s approaches and raise any concerns. Because we collect data to comply with our own reporting obligations, AFCA will also be able to provide specific complaints data to superannuation providers that can assist you to understand your own complaints trends and benchmark them against industry trends.
We are excited about the prospect of AFCA delivering a ‘best of all worlds’ dispute resolution model and look forward to working with you in bringing this vision to life.