Debt collection guideline: for collectors and creditors

22. Resolving debtor complaints and disputes

  1. Complaints and disputes must not be ignored. You must have effective internal processes in place for logging, assessing, and where appropriate, taking timely action in response to them.

CASE STUDY

A company created a fictitious complaints handling organisation to mislead debtors to believe their complaints and disputes were being considered by an independent body that did not exist. The court found the company to have engaged in misleading and deceptive conduct and to have acted unconscionably, as debtors were deceived into believing their complaints and disputes had been subject to a genuine review by a third party, when this was not the case, and were unduly coerced into paying alleged debts under false pretences.

ACCC v Excite Mobile Pty Ltd [2013] FCA 350

  1. All staff members need to be adequately trained to identify complaints and disputes, and to ensure that established procedures are followed in dealing with them.78 We encourage you to actively monitor staff who have direct contact with consumers to ensure that, where appropriate, matters are escalated to senior staff.
  2. It is not acceptable to require that a complaint or dispute be in writing, and/or explicitly identified as such by the complainant/disputant, before it is considered or investigated.
  3. Identifying and handling a dispute professionally, as soon as it originates, may save you time and money and may increase the likelihood of recovering the debt.
  4. Entities regulated by the NCCP must hold an Australian Credit Licence, and entities providing financial services to retail clients who are required under the Corporations Act 2001 (Cth) (Corporations Act) to have an Australian Financial Services Licence, must have an internal dispute resolution procedure that complies with standards and requirements made or approved by ASIC and must also be a member of an ASIC-approved external dispute resolution scheme.79 ASIC requires that licensees’ internal dispute resolution procedures satisfy the essential elements of Australian Standard AS ISO 10002-2006.
  5. Under the NERL, energy retailers are required to develop, make and publish on their websites a set of procedures detailing how they will handle complaints and disputes. These procedures must be regularly reviewed and kept up to date and must be substantially consistent with the Australian Standard AS ISO 10002-2006. Energy retailers must also be a member of, or subject to, an energy ombudsman scheme for each state and territory where it sells or markets energy.80
  6. Complaints/disputes handling standards may also be imposed as a condition of membership of an industry code or external dispute resolution scheme.
  7. If you are not under a legal requirement to do so, we recommend that you have in place internal complaint/dispute handling processes that are, at least, consistent with the Australian Standard AS ISO 10002-2006 (or any Australian Standard that may subsequently replace it).

78 Creditors and collectors also need to have appropriate contractual and operational arrangements in place to facilitate providing information and documents required to resolve disputes: see part 2, section 11, Providing information and documents.

79 See s. 47(1)(i) of the NCCP. Further information about credit license obligations is available in ASIC’s Regulatory Guide 205: Credit licensing: General conduct information.

80 For more information, visit the AER website.

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