Resolution of small business disputes options paper

Resolution of small business disputes options paper

Author: J_Born Date: 30.06.2017

Resolution of Small Business Disputes Options Paper - PDF

As you are aware, the TIO is the external disputes resolution EDR scheme for the telecommunications industry. We receive and investigate complaints from small business and residential consumers about their landline, mobile and internet services. These complaints relate to the billing, supply, connection or transfer of these services.

We recognise the need for small businesses to have access to a range of dispute resolution mechanisms to successfully resolve their business-to-business disputes.

The Options Paper outlines several possible options that may address this need. In our submission to the Options Paper, we have focused on the impact the proposed options could have on small businesses in respect of their ability to handle disputes quickly and effectively.

We include in this submission: We trust that the information in this submission will be of assistance to the Minister for Small Business and the Department of Innovation, Industry, Science and Research. Yours sincerely Simon Cohen Ombudsman 2. National Information and Referral Service 9 Option Two: National Dispute Resolution Service 9 Option Three: National Small Business Tribunal 10 Option Four: Small Business Advocate 10 Page i.

We aim to resolve these complaints quickly in a fair, independent and informal way, having regard not only to the law and to good industry practice, but also to what is fair and reasonable in all the circumstances. Before the TIO becomes involved in a complaint, the service provider is given an opportunity to resolve the complaint with its customer. We are independent of telecommunications companies, consumer groups and government. For most complaints we receive, we establish the issues in dispute and the resolution sought, and then refer the consumer or small business to a designated point of contact at the relevant telephone or internet service provider.

The provider is given a final opportunity to resolve the matter directly with the consumer, without the TIO s direct involvement. Where the consumer and service provider do not reach an agreement at this early stage, the TIO becomes more directly involved by seeking to conciliate an agreed resolution between the parties. Complaints that cannot be resolved by conciliation are escalated for formal investigation by the TIO.

We record complaints according to service types internet, mobile, landline and mobile premium services MPSand by the types of issues that these complaints present. Every complaint involves at least one issue. Some complaints can involve multiple issues for example, a complaint about a delay in rectifying a faulty landline service may also involve a claim that the consumer s complaint about this fault was not acknowledged or escalated a complaint handling issue.

Further information about the TIO is available at Page 1. We recognise the need for small businesses to have access to a range of dispute resolution mechanisms, including external dispute resolution EDR schemes such as the TIO, in order to successfully resolve their business-to-business disputes. In considering the proposed options, the TIO has concentrated on the impacts those options could have on small businesses in respect of their ability to handle disputes quickly and effectively.

We set out in this submission: TIO Jurisdiction Jurisdiction of the TIO in relation to small businesses The jurisdiction of the TIO is set out in the TIO Constitution available at We receive and handle complaints from small business and residential consumers of telecommunications services. The TIO s jurisdiction extends to complaints about the supply and connection of standard telephone services, mobile services and internet services, the billing of these services and the repair of faulty services.

We also handle complaints specifically from small businesses about point of sale advice concerning the bundling of telecommunications services with equipment that may be on finance leases.

resolution of small business disputes options paper

Small business consumers, like residential consumers, are less likely to have the resources necessary to pursue a grievance through the formal legal system and therefore require access to the TIO in its role as an independent, free EDR scheme. As well as being typically better resourced, medium and large businesses may seek resolutions that are beyond the scope of the TIO s determinative powers.

For these reasons, the TIO does not handle complaints made by large or medium size businesses about their telecommunications services. TIO s definition of small business The TIO has developed guidelines to help us decide whether a business is a small business. We take into consideration various factors including the following: Complaints to the TIO New complaints from small business consumers When a consumer residential or small business contacts the TIO about an expression of grievance or dissatisfaction about a matter within the TIO s jurisdiction that the service provider has had an opportunity to consider, we record this as a new complaint.

Consumers who contact us generally have their complaint referred to a designated complaint handling point at the service provider. The service provider has 10 business days to contact the consumer and resolve the complaint. Where the complaint raises issues that require an urgent response, shorter timeframes apply.

Alternatively, the TIO can decide to deal with the matter directly rather than refer the complaint to the service provider.

Where, after referral, a consumer comes back to the TIO with their complaint unresolved, we aim to conciliate an agreed resolution between the two parties. The number of small business new complaints recorded and handled by the TIO has increased over each of the last four years.

Graph 1 shows the comparison between total new complaints and small business new complaints recorded by the TIO over the past four years. Small business new complaints service types Graph 2 shows total new complaints and small business new complaints by service type.

This trend is connected with recent network problems experienced by one of the largest mobile carriers in Australia. Our data indicates that this issue has impacted small businesses as well as non-small business consumers.

Issues raised in small business new complaints The TIO categorises the individual issues that are presented by each new complaint. Over this period, issues about faults and contracts were proportionally more common in small business new complaints. Awareness of Small Business Consumers about the TIO The TIO works to improve the awareness of, and accessibility to, the TIO Scheme. We undertake a number of activities each year to help raise awareness among specific communities.

These include targeting consumers residential and small businesses in rural and regional areas, indigenous communities, culturally and linguistically diverse communities, consumers with disabilities, young consumers and the elderly.

The Ipsos Dispute Resolution in Victoria: These results are similar to findings in Small Business SurveyIpsos Australia Pty Ltd,Page 6. Matters outside the TIO s Jurisdiction Each year, we receive a number of contacts from businesses that are considered to be outside the scope of the TIO s jurisdiction because: In these instances, we refer the business to a more appropriate body for example, the Australian Competition and Consumer Commission or a small claims tribunal or suggest that the business seeks independent legal advice.

Common small business contacts outside the scope of the TIO s jurisdiction include: While the TIO is able to deal with some equipment related complaints where, for example, they are bundled with a telecommunications servicewe cannot deal with complaints where the equipment is not part of a bundled contract or the issue related to equipment defined as customer premises equipment for example, a PABX system the issue involved a service provider s commercial decision that is outside of the scope of the TIO scheme for example, setting of tariffs the issue was not a carriage service issue for example, it related to domain names or website hosting.

Graph 4 shows the number of contacts received over the past four years from businesses that were either not considered as small or were about an issue outside the scope of the TIO scheme.

Each proposed option appears intended to complement and integrate with existing dispute resolution processes, something that is supported by the TIO.

We also support an approach that promotes information provision, informal resolution and ease of use. National Information and Referral Service We note that the proposal in option one indicates that the information and referral service would provide small businesses with a range of information about how to avoid disputes, how to manage disputes, how alternative dispute resolution can help and what their rights and responsibilities may be.

The proposed option also is intended to put any Australian small business in contact with the relevant existing dispute resolution service quickly. The information and referral service proposed in the Options Paper if widely publicised to small businesses could help quickly direct small businesses to the most appropriate body that can assist in resolving their disputes. This option would contribute to increased awareness of dispute resolution services including the TIO on the part of small businesses.

Such a referral service could also reduce the amount of time taken by small businesses in finding the most appropriate avenue for dispute resolution. We believe that this option has a very real potential to improve outcomes for small businesses that may be unaware of the existence and purpose of organisations such as the TIO. We further note that an expert national information and referral service may reduce the number of businesses contacting the TIO where it is not appropriate.

If the service has good knowledge of our jurisdiction and matters we can deal with, only those businesses we can assist will be referred to the TIO. National Dispute Resolution Service We understand that, in part, the proposal in option two would include the national information and referral service Option Oneand also include a resolution service where no other service is available.

We reiterate our comments above in relation to the information and referral aspects of the proposal in option two. We agree with the proposal that the national dispute resolution service should not generally deal with matters where other, specialist dispute resolution services such as the TIO already can deal with the dispute.

If option two is intended to provide a national dispute resolution service, we suggest that the mechanisms used by this service to resolve disputes should not be limited to mediation only and that other appropriate dispute resolution processes including conciliation should be included Page 9.

In this respect, we suggest that the national dispute resolution service employs a flexible range of dispute resolution methods, including mediation, conciliation and other methods, so that the most appropriate method can be used to resolve particular disputes.

We further note that if this service imposes costs on small businesses, this may limit its accessibility. This is a matter that should be closely considered if option two is selected. National Small Business Tribunal If the proposed option three is to be further explored, we support a number of the matters already raised in the discussion in the Options Paper. We support an approach to the proposed National Small Business Tribunal that does not attempt to duplicate existing services, as this may be inefficient and a waste of resources, and may result in confusion or indirectly lead to forum shopping.

It may also result in objections raised by the other party about the appropriateness of the forum that is selected by the small business to resolve the dispute and this may unduly delay the effective resolution of the dispute. We suggest that if option three is selected, the proposed National Small Business Tribunal should employ a flexible range of dispute resolution methods, including mediation, conciliation and other methods, so that the most appropriate method can be used to resolve particular disputes prior to decision making.

This is a matter that should be closely considered if option three is selected. The information in the Options Paper does not clearly identify any strong basis to indicate that this option would deliver significant benefits to small businesses.

Further information and analysis may be required if this option is to be considered further.

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Small Business Advocate We note that option four considers the establishment of a Small Business Advocate who would act as an independent voice for small businesses and report directly to the Minister for Small Business. We also note, and agree with, the term Ombudsman not having been used to describe the functions to be undertaken by the proposed Small Business Advocate. As outlined by the Australian and New Zealand Ombudsman Association ANZOA in its Policy Statement 4, there are a number of essential criteria that must be met before the term Ombudsman can be used, including the independence of the Ombudsman from the disputing parties or government, and not acting or being perceived to act as an advocate for either party.

In this regard, the phrase Small Business Advocate 4 Australian and New Zealand Ombudsman Association ANZOAPolicy Statement, 18 Mayat Page The education and support services that the proposed Small Business Advocate would provide to small businesses is similarly to options one and two likely to see an increase in awareness and uptake of the available dispute resolution services, including the TIO.

In addition to this, the extent to which the proposed Small Business Advocate educates small businesses about how to avoid and handle conflict would see some disputes be resolved between parties prior to EDR involvement. As such, this proposed option may over time reduce escalation of disputes as businesses become more skilled in handling and resolving issues before they become disputes.

The proposed option four envisages that the Small Business Advocate would have the power to research difficult areas of small business activity this is an important function that has benefits for small business consumers because new, emerging issues over different industry sectors can be identified and addressed. It could provide an opportunity for the Small Business Advocate to work collaboratively with how to get more dosh coins on binweevils stakeholders including dispute resolution services to identify relevant systemic issues that may involve more than one industry.

In this way, small businesses could benefit from the identification and improvement of cross-industry issues that may otherwise go undetected.

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