If a business chooses to impose a surcharge on its customers for making a payment using a credit, debit or prepaid card, the level of the surcharge must not be excessive. Our questions and answers provide detailed information about the new ban.
The ban on excessive payment surcharges currently applies to large businesses only. The ban has applied to large businesses since 1 September 2016.
A large business, for the purposes of this new law, is one that satisfies two or all of the following thresholds, taking account of the business and its related bodies corporate:
- consolidated gross revenue for financial year ending 30 June 2015 of $25 million or more
- value of consolidated gross assets at 30 June 2015 of $12.5 million or more
- 50 or more employees (whether full time, part time, casual or otherwise) at 30 June 2015.
If you do not satisfy at least two of the above thresholds you are not a large business, and the ban will apply to you from 1 September 2017.
If the new law does not apply to your business until 1 September 2017, you may choose to comply with its requirements ahead of time. In any case, we recommend that you take steps to understand what your obligations will be if you choose to impose surcharges on payments from your customers.
When a business accepts payment for goods or services by a debit or credit card, it usually incurs costs for processing the payment. Some businesses include these costs in the price they charge for their goods or services, and others pass the costs on as a payment surcharge.
You are not required to impose payment surcharges on your customers and if you continue not to impose a payment surcharge then this ban will have no effect on your business.
However, if you impose any additional charge on your customers for processing payment, or a charge which differs according to payment method, you are imposing a payment surcharge and you need to think about whether the surcharge is in line with your applicable costs of acceptance for each payment type.
The Reserve Bank of Australia (RBA) decides what payment types are covered by the ban.
Covered payment types are:
- Eftpos (debit and prepaid)
- MasterCard (credit, debit and prepaid)
- Visa (credit, debit and prepaid)
- American Express “companion cards” (American Express cards issued through an Australian financial service provider, rather than directly through American Express).
The payment types that are not covered by the ban include: BPAY, PayPal, Diners Club cards, UnionPay, American Express cards issued directly by American Express, cash and cheques.
Merchants are not prevented from applying surcharges to transactions in these systems. For example, American Express, Diners Club and UnionPay have provided undertakings to the RBA that enable merchants to surcharge, while PayPal has modified its User Agreements to remove its previous ‘no-surcharge’ rule. While they are not subject to the regime that enables the ACCC to take action against excessive surcharges, these payment systems may have rules or terms and conditions that seek to limit the surcharges applied by merchants to the cost of acceptance.
The ban does not apply to any payments made for taxi services. Taxi services were excluded from the RBA standard because the industry is already regulated by state and territory regulators.
The ban does not affect the existing requirements for businesses to comply with the Australian Consumer Law provisions relating to false or misleading representations about price, and component pricing. These require businesses to state the total price when presenting prices to consumers and to not make false or misleading claims about their prices.
A payment surcharge is excessive if the surcharge exceeds the permitted surcharge as defined in the RBA standard. The permitted surcharge is an amount not exceeding your costs of acceptance for each designated payment type.
The RBA has said that as a guide, payments through the domestic eftpos system (used to process payments from debit cards) are usually quite low. Accepting a Visa or MasterCard debit transaction may cost a business around 0.5 per cent of the transaction value.
Credit cards usually have a higher cost for businesses, and may cost up to 1-1.5 per cent for Visa and MasterCard, and between 2-3 per cent for an American Express card payment.
It is important to note that different businesses have different costs of acceptance. Some merchants’ costs might be higher than these indicative figures.
Only certain elements can be included in your costs of acceptance. These are listed in the RBA standard. For most merchants who decide to surcharge debit or credit cards these costs will simply be based on what they are charged for payments by their acquirer or payment facilitator and would include:
- merchant service fees
- fees paid for the rental and maintenance of payment card terminals
- any other fees incurred in processing card transactions, including cross-border transaction fees, switching fees, and fraud related chargeback fees (but not the cost of any actual chargebacks).
In addition to these standard card acceptance service costs, some additional types of costs paid to other providers can be included if they are directly related to accepting that particular card type. These are:
- gateway fees paid to a payment service provider
- the cost of fraud prevention services paid to an external provider
- any fees paid for the rental or maintenance of card terminals paid to a provider other than the merchant’s acquirer or payment facilitator
- the cost of insuring against forward delivery risk.
In each case, these costs must be specific to the particular types of cards that you are surcharging, rather than being costs that apply to all payment methods accepted by you. Furthermore, these must be costs paid by you to an external provider and verified by contracts, statement or invoices.
For most businesses, calculating your permitted surcharge will be quite simple. All of the standard card acceptance services which are supplied to you by your acquirer or payment facilitator will be set out in the monthly statements you will receive from 1 June 2017. The statements will outline your cost of acceptance for each applicable payment type expressed as a percentage of the value of a transaction.
If you obtain any of the following services from a separate payment service provider (a provider other than your bank or payment facilitator):
- fees for the rental and maintenance of payment card terminals
- gateway fees
- cost of fraud prevention services
- fees or premiums to insure against ‘forward delivery risk’
and you want to pass on these costs in a payment surcharge then you will need to calculate your permitted surcharge yourself. No other payment service provider costs can be included in a payment surcharge. You will need to calculate the proportion of these costs applying to particular systems, allocating costs based on total transaction values for each system over the previous year. The RBA guidance material contains some additional information to assist you with this.
Remember, the only non-acquirer, non-payment facilitator fees (that is, fees which do not appear on your monthly statement) allowed to be included in your cost of acceptance calculation are these four elements, and they must be documented or recorded in a contract or invoice provided by the payment service provider. They must also be costs that apply to cards but not to other payment methods. You may need to provide these documents to us if we issue you with a surcharge information notice to examine the level of your surcharges.
The new ban does not prevent a business from charging fees that are genuinely unrelated to payment methods. However your business will still need to comply with its existing obligations under the Australian Consumer Law. That is, you will need to include all components that make up the price of your goods or services in the advertised price, where they can be quantified. You will also need to ensure you do not mislead consumers and you need to provide adequate disclosure and be clear about the nature of the fee and the circumstances in which it applies.
To be clear though, if you impose a fee, however you describe it, that is payable on some payment methods but not others, then it is likely to be a payment surcharge. The ban will apply and the amount that you surcharge will be limited to your costs for accepting that payment method.
Yes you can in certain circumstances.
Different payment methods will typically have different costs of acceptance. This will be set out in your monthly statements – a customised percentage will be provided for each relevant payment type (for example an individual percentage for MasterCard credit, another for American Express credit, another for Visa Debit etc).
If you wish to impose a single surcharge across multiple payment types, you must set the surcharge at the level of the average cost of acceptance of the lowest cost system; that is, no higher than the lowest permitted surcharge.
If your average cost of acceptance for Visa Debit is 1 per cent, for Visa Credit is 1.5 per cent, and for American Express is 2.5 per cent, you would be permitted to charge the same level of surcharge for each payment system, but it would need to be 1 per cent as that is the lowest of all payment systems. You would not be allowed to use the average of those three figures (that is, 1 + 1.5 + 2.5 = 5 divided by 3 = 1.6 per cent).
Yes you can, but it will normally be easier for you to apply a surcharge in percentage terms, if you choose to impose a surcharge in the first place.
In most cases your payment costs are charged to you in percentage terms, so it will typically be appropriate that any surcharge you impose will also be expressed in percentage terms.
The ban does not prevent you from imposing a payment surcharge as a flat or fixed fee, however you will need to ensure that the amount of the surcharge does not exceed your cost of acceptance for any given transaction.
If your acquirer or payment facilitator charges you on a flat fee basis (this is less common than costs being expressed as a percentage) then you can apply a flat fee surcharge. This will be made clear on your monthly statement.
You should only have to review the level of any surcharge once a year.
Your costs of acceptance for some payment methods may fluctuate from month to month based on the mix of cards presented, and this will be shown on your monthly statements. You may wish to reset your surcharge levels frequently based on these monthly statements. However, the RBA standard has been designed so that you will be able to analyse your payment costs once a year, using your annual statement and any other applicable costs, and set your surcharge for the next year based on this information.
Acquirers (banks) are required under the RBA standard to provide monthly statements to their customers (businesses) from 1 June 2017.
The RBA has worked with the banks to ensure that the statements clearly set out merchants’ average costs of acceptance for each card scheme.
If an acquirer provides payment processing services to a business indirectly through a payment facilitator, then the acquirer must ensure that the payment facilitator provides these monthly statements to its customers.
You should receive a monthly statement either from your acquirer, or from your payment facilitator, depending on how you obtain payment processing services.
You should receive a statement outlining your annual average costs of acceptance for the 2016/17 financial year in July 2017. If you do not start to receive monthly statements by mid-July 2017, you should contact your acquirer or payment facilitator and ask them to provide these to you. If this does not work, contact the RBA.
I am a new business/I have recently changed my acquirer, so how do I set a permitted payment surcharge level if I don’t have the necessary details?
If you do not have the details on which to base your permitted surcharge, there are things that you can do. The RBA standard allows you to make an estimate of your payment costs in good faith, based on the information you do have available, including any monthly statements you have received. Remember, we have the power to require you to provide documents or information to us, which we can use to check whether any estimates made are reasonably calculated based on available information.
If you are a large business, you will need to comply with the ban now. The ban commenced for large businesses on 1 September 2016. Any payment surcharges you charge to your customers must be in line with your applicable costs of acceptance. If you are not a large business, you will be subject to the ban from 1 September 2017.
The ACCC has been given new powers to enforce the ban. We can issue surcharge information notices to businesses, and banks, requiring them to provide evidence of the actual costs incurred by a business for accepting a payment method.
That information can be used to determine whether or not a surcharge imposed by a business was ‘excessive’ i.e. greater than the cost charged to it for accepting payment by that method.
If we believe that a business has charged a payment surcharge which is excessive, we can issue an infringement notice to the business:
- 600 penalty units ($108,000) for a listed corporation
- 60 penalty units ($10,800) for a body corporate
- 12 penalty units ($2,160) for a person other than a body corporate.
We can also take court action against a business, in which we can seek pecuniary penalties:
- 6,471 penalty units ($1,164,780) for a body corporate
- 1,295 penalty units ($233,100) for a person other than a body corporate.
We can also seek redress on behalf of a group of consumers who have been charged an excessive surcharge, as well as seek injunctions and various non-punitive orders (including community service and probations orders).
In addition to ACCC enforcement action, an individual who suffers loss or damage due to a breach of the ban can bring an action seeking damages.