Who should you complain to?
Being concerned about the behaviour of an agent which you believe might be inappropriate in some way and knowing where and to whom to complain can be confusing.
To remove your confusion here are some important facts in respect to complaints and the parties responsible to receive your complaints against an agent (whether a collector, investigator, process server or repossession agent):
- Depending upon the State or Territory where you are located there may be State/Territory licensing legislation which regulates the behaviour of the agent. The Departments regulating agents are:
- Australian Capital Territory - ACT Justice & Community Safety Directorate
- New South Wales - CAPI Unit, Security Licensing & Enforcement Directorate, NSW Police
- Northern Territory - NT Consumer Affairs
- Queensland - QLD Fair Trading
- South Australia - SA Consumer & Business Services
- Tasmania - Justice Tasmania - Consumer Affairs & Fair Trading
- Victoria - Consumer Affairs Victoria
- Western Australia - Department of Commerce
States & Territories with licensing legislation for agents have responsibility to receive and consider complaints against agents in their jurisdiction.
- In respect to debts owing to sole traders and partnerships, the various State & Territory Departments of Fair Trading (or equivalent) and in the circumstances of debts owed to corporations the Australian Securities & Investments Commission (ASIC) and the Australian Consumers Competition Commission (ACCC) have responsibilities. ASIC & ACCC have jointly issued guidelines on what are fair debt collection activities - such guidelines are available from their respective websites: www.asic.gov.au and www.accc.gov.au.
Those regulators have powers and systems for the lodgement and investigation of complaints by consumers.
- Depending upon the nature of the complaint, your concerns may actually lie with the agent's client rather than with the agent. In such circumstances you should direct your complaint/concern to the agent's client or else to the relevant regulatory body overseeing the client's activities.
- The IMA is not an industry regulator. It is not a licensing authority. Membership of the IMA is not compulsory for those persons and organisations engaged in collections, investigations, process serving and repossessions in Australia. The IMA can only receive complaints relating to its members - in all cases, complaints should always be first directed to the relevant regulatory authority.
- Agents are licensed to undertake their occupational activities. Generally acting for principals - an agent's dealings with an individual is not usually motivated by personal reasons but rather the agent is simply attempting to undertake a lawful and at times difficult task professionally - for the individual concerned the task may be regarded as confronting.
- There is nothing unlawful or unethical in making a demand (in writing, by phone or in person) for a debt which is legally due and payable.
- There is nothing illegal or unethical in an agent refusing to discuss with any third party (such as a spouse, parent, child or friend) the reason for contacting any individual - such refusal is due to privacy, licensing and other legislative constraints. You would need to provide a signed consent to the agent authorising the third party to discuss with the agent details of the issue at hand.
- Agents act under instructions from principals - if the facts are different to what the agent understands you should explain that there has been some change which the agent has possibly not been informed about and ask the agent to clarify with the principal.
- On occasions when contacted by an agent, no matter how such contact occurs, individuals respond emotively or even aggressively. Such a response is perhaps understandable but does not resolve the issue at hand and can even escalate difficulties in achieving resolution. Dealing with an agent in an open, calm and helpful manner will assist in achieving effective communication and resolution of any dispute.
IMA Complaints Handling ProcedureCommitment
The Institute of Mercantile Agents Limited (IMA) in acknowledging the public’s right to lodge complaints has adopted and published this Complaints Handling Procedure to assist in the resolution of complaints against either the IMA or any of its members.
This Complaint Handling Procedure recognises the need to be fair and impartial towards both the complainant and the organisation or person against whom the complaint has been made. This means for example both parties shall be heard impartially, given access to all the relevant details and be kept informed throughout the complaints handling process.
The National Office including its Executive Director and his staff, National Board and possibly state based ethics committees are the resources to be involved in the implementation of this Complaints Handling Procedures.
A reference to the term “Complaints Officer” within this Complaint Handling Procedure shall mean the IMA’s Executive Director or his delegated staff member.
All complaints in the first instance shall be directed to the following:
Institute of Mercantile Agents – National Office
PO Box 233 WARATAH NSW 2298
Phone: 02 4927 0477
Fax: 02 4927 0677
Whenever, a complaint is made orally to the IMA, its Complaints Officer shall:
- Listen, record details and determine what the complainant wants.
- Empathise with the complainant in a courteous manner.
- Not attempt to lay blame or be defensive.
- Determine if the person or organisation they are complaining about is a member of the IMA.
- In the event, the party being complained about is a member of the IMA explain this Complaints Handling Procedure and ask the complainant to commit the complaint to writing, providing any supporting documentation.
- Explain the IMA is a member association with a Code of Conduct and Code of Ethics to which every member subscribes and is not a regulatory body and as such cannot take any legal action in respect to any complaint. Instead, the IMA can investigate complaints against members with the ultimate sanction available, if the Code of Conduct and/or Code of Ethics of the IMA is deemed to have been breached, being the expulsion of membership of the IMA.
- Reinforce to the complainant that no action will be taken until the complaint is received in writing.
- Attempt to resolve the matter or provide a remedy for example by offering to identify an alternative contact at the organisation against whom the complaint is made, as from experience most complainants will prefer to resolve the issue as opposed to lodging a formal complaint.
- In the event the party being complained about is not a member of the IMA, offer to the complainant to lodge a written complaint to the IMA, so it can be retained for future reference in the event such party applies for membership at a later date.
- Provide details to complainants of the relevant regulatory body (eg. ASIC, ACCC, Department of Fair Trading etc) with whom they can lodge an alternative complaint but explain if a complaint is lodged with an alternative body no conclusion shall be made to the IMA’s investigation until the alternative body’s investigation and determination is complete.
- Once a complaint is received in writing, the first step of the Complaints Officer shall be to record the details into a Complaints Register maintained at the IMA’s National Office. Details to be recorded in the Complaints Register may include but not be necessarily limited to: identity of the complainant, the party against whom the complaint is made and whether or not a member of the IMA, details of the complaint and any ongoing summary of the investigation/outcomes arising from actions pursuant to this Complaints Handling Procedure. In the event, the complaint is against a member of the IMA, the information from the Complaints Register shall also be recorded in that member’s membership file (both in membership register database and the physical paper file). The Complaints Officer shall also create a separate file for each complaints, whether against a member or otherwise and maintained under ‘Complaints’ within the IMA’s general filing systems for future reference purposes.
- The Complaints Officer shall examine all documentation available in respect to the complaint received and determine within 7 calendar days of receipt of the complaint whether a prima facie case exists to support a contention of a breach of any aspect of the IMA’s Code of Conduct and/or Code of Ethics and whether the matter should be formally investigated and considered.
- If determined the allegations as presented do not support a contention of a breach of any aspect of the IMA’s Code of Conduct and/or Code of Ethics then such determination shall be appropriately documented in the Complaints Register and on all other records in relation to the complaint and the complainant informed of such determination in writing. Any such correspondence shall include acknowledgement of the complaint and the reason for the determination made.
- If it is determined the allegations as presented do prima facie support a contention of a breach of any aspect of the IMA’s Code of Conduct and/or Code of Ethics then the following steps shall be undertaken:
- A written communication shall be forwarded to the complainant acknowledging receipt of the complaint and explaining the IMA’s Complaints Handling Procedure.
- Written communication shall be forwarded to the member against whom the complaint has been made to advise of the complaint; to provide copies of documentation received from the complainant; to explain the IMA’s Complaints Handling Procedure; and to request a written response within 14 calendar days be made to the Complaints Officer setting out any explanation of the circumstances complained about including the provision of any supporting documentation.
The Complaints Officer shall diarise the time frame for the member’s response. In the event a response is not received within the time frame, the member shall be contacted by telephone by the Complaints Officer and asked as to why a response has not been provided. If the member seeks an extension to provide a response, the Complaints Officer may allow an additional 7 calendar days for the response to be forwarded but shall inform the member that if the response is not received within such further period, the member’s membership with the IMA shall be suspended until there is a determination on the complaint and further that such complaint shall be dealt with without the benefit of the member’s response.
The Complaints Officer shall diarise the further time frame for the member’s response. In the event a response is not received within the time frame, the member’s membership with the IMA shall be suspended pending resolution of the complaint within the terms of this Complaints Handling Procedure. The Complaints Officer shall issue a written communication to the member advising of suspension of membership pending determination of the complaint.
- Upon receipt of a member’s response within the time frame of 14 calendar days or any extension of a further 7 calendar days, the Complaints Officer shall review all documentation and if appropriate initiate further enquiries by telephone, in person or writing with any relevant party so as to provide a summary to the IMA’s National Board within 1 calendar month of receipt of the member’s response. The summary shall detail whether in the opinion of the Complaints Officer any breach of the Institute’s Code of Conduct and/or Code of Ethics by the member has been confirmed.
- The IMA’s National Board shall convene as the IMA Ethics Committee to review and consider the summary of the Complaint Officer’s investigation and all supporting documentation and determine whether or not a breach of the Institute’s Code of Conduct and/or Code of Ethics by the member has occurred. The National Board may from time to time on an individual complaint basis invite other persons to participate as a member of the IMA Ethics Committee provided such persons are of at least 5 years standing as a member of the IMA and practices in the sector of the industry in which the specific complaint has arisen.
- If the IMA Ethics Committee determines there has been no breach of the Institute’s Code of Conduct and/or Code of Ethics by the member such outcome is to be documented as appropriate.
- If the IMA Ethics Committee determines the information provided presents objective and irrefutable evidence of a breach of the Institute’s Code of Conduct and/or Code of Ethics by the member such outcome is to be documented and the National Board shall then convene to consider and determine what sanctions are to be imposed upon the member concerned in accordance with the IMA’s Constitution, which presently provides:
3.11. Conduct Prejudicial
“Any written complaint that a member has acted or behaved in a manner prejudicial to the Institute or in breach of the objects, purpose, code of ethics, code of conduct, rules and By-Laws of the Institute shall be referred by the National Secretary/Chief Executive Officer to the National Board for consideration and action in accordance with the By-Laws. If in the opinion of the majority of members of the National Board the interests of the Institute require that any member thereof shall cease to be a member, the National Board may if it thinks fit, by notice in writing request the member to resign from the Institute within a time specified in such notice and in default of the receipt of such resignation within the time limited for that purpose the National Board shall submit the question of the cancellation of the membership of the member so called upon to resign to a subsequent meeting of the National Board and upon the passing of a resolution by the National Board for the cancellation of his membership such member shall thereupon cease to be a member of the Institute.
Provided that such member shall have first been given an opportunity of showing cause in person or by writing to such meeting of the National Board why his membership should not be cancelled.”
- If the IMA Ethics Committee determines the information provided fails to present adequate evidence to determine whether or not a breach of the Institute’s Code of Conduct and/or Code of Ethics occurred it may determine additional enquiries are warranted and provide directions to the IMA Complaints Officer to conduct or to arrange for such additional enquiries to be undertaken and schedule to reconvene to consider the complaint once such further enquiries are complete. The IMA Ethics Committee in seeking additional information may recruit and appoint a member of at least 5 years standing as a member of the IMA and practicing in the same State or Territory and sector of the industry in which the specific complaint arose to assist the Complaints Officer to conduct and report on such additional enquiries as it requires.
- The Executive Director shall then issued written communication to all parties advising the determination of the IMA Ethics Committee and of any sanctions imposed by the National Board against the member.
The Complaints Officer shall review the IMA’s Complaints Register, membership register database, member files and other records to ensure all relevant records are updated with a record of the IMA Ethics Committee’s determination and any sanctions imposed against the member by the National Board and copies of all documentation is appropriately filed.
This Complaints Handling Procedure is to be publicised on the IMA’s website as well as advertised in the IMA’s publications. This is to ensure the existence of the procedure, its purpose and the method of accessing it are known and complaints can be appropriately forwarded to the relevant people.
This Complaints Handling Procedure will endeavour to be accessible to those who require it. This will be achieved by:
- Providing information on how, when, where and to whom to make complaints;
- Providing an uncomplicated and easy to understand procedure;
- Providing more then one communication channel available to lodge complaints (i.e. lodge complaints online, via email, mail or fax etc);
- Timeframes being in place for response times in respect to the Complaints Handling procedure.
The IMA will provide as much assistance with the lodgement of complaints as possible.
All stages of the Complaints Handling Procedure have approximate time frames (as detailed in this procedure) which will be expressed to all parties involved.
A lodgement fee of $220.00 (Incl GST) for each complaint is payable by the complainant at the time the complaint is lodged. In the event the complaint made against a member is proved to be a breach of either the IMA’s Code of Ethics or Code of Conduct, then such fee shall be refunded to the complainant and the IMA as part of any sanctions against the member concerned shall impose a fine not less than the lodgement fee refunded to the complainant.
Systematic and Recurring Problems
Analysis of the information by the National Office from the Complaints Register will allow the IMA to identify repeat offenders and any common issues.
All complaints received and the relevant details shall be presented to the National Board by the Executive Director for review and evaluation. This is to ensure the procedures are followed and complaints handled efficiently and effectively.
This Complaints Handling Procedure shall be periodically reviewed by the National Board and changes made as necessary to ensure its effectiveness and viability.