Purpose

Introduction

1.0 Identifying a Potential Systemic Problem

2.0 Assessing a Potential Systemic Problem

3.0 Notification of a Potential Systemic Problem

4.0 Considering the Member’s response

5.0 Potential Systemic Problem Investigation

6.0 Resolving Systemic Problems

7.0 Reporting on the TIO’s Systemic Problem investigations

Purpose         

The purpose of this Procedure is to provide a framework for the TIO’s monitoring, investigation and resolution of systemic problems:

• caused by a problem with or failure of a system, process or practice of a Member, and
• that have the potential to cause detriment to a significant number of consumers.

The TIO investigates Systemic Problem Complaints under the TIO Constitution. These procedures are intended as a supplement to the TIO Constitution.

A ‘Systemic Problem’ is defined in TIO Constitution as:

A problem with or the failure of a system, process or practice of a Member that causes detriment (that is not trivial) to a significant number or a class of end‑users of a carriage service and which arises from a Complaint that is within the jurisdiction of the TIO by virtue of another provision of the TIO Constitution.

The TIO procedures include four separate steps:

• identifying and assessing a Potential Systemic Problem
• where appropriate, notifying a Member of a Potential Systemic Problem and seeking a response
• if necessary, investigating a Potential Systemic Problem and working with the Member to resolve it, and
• reporting on the TIO’s work in dealing with Systemic Problems.

In addition to investigating a Potential Systemic Problem, the TIO deals with individual Complaints relating to the Problem. For any specific Potential Systemic Problem, this will include a Test Case and any other deferred Complaints.  The TIO will work to resolve these Complaints in a manner consistent with any agreed resolution of the Problem.                                  

1.1

The TIO identifies a Potential Systemic Problem through a range of methods, including the following:

• a TIO Officer may identify a Potential Systemic Problem during the course of handling a Complaint or Complaints
• an analysis of Complaint trends or types may indicate a Potential Systemic Problem, or
• other information available to the TIO may suggest there is a Potential Systemic Problem.

1.2

The TIO actively monitors Potential Systemic Problems to continue to gather information which may be relevant to the Problem.  

2.1

Where a Potential Systemic Problem has been identified, it will be assessed for further action by the TIO having regard to the relevant information available, and matters including the following:

• the Potential Systemic Problem must be within the TIO’s jurisdiction, and
• in the view of the Manager, Systemic Investigations or other appropriate senior TIO Officer:
  • an investigation of the Potential Systemic Problem would be practical, fair, efficient and effective
  • the detriment caused to consumers must not be trivial, and
  • the number or class of consumers affected or potentially affected must be significant.

2.2

In some cases, the receipt of one Complaint may be sufficient to identify a Potential Systemic Problem depending on the nature of the issue raised. 

2.3

When satisfied that there is a Potential Systemic Problem that should be acted upon, the TIO will also identify a Complaint suitable for use as a Test Case at any classification Level within the TIO.

2.4

The TIO will not start an investigation of a Potential Systemic Problem using a Test Case that has been received more than 12 months before the start of the Potential Systemic Problem investigation.          

3.1

When the TIO has identified and assessed a Potential Systemic Problem as requiring action, the TIO will notify the Member in writing.

3.2

The written notification to the Member should describe the nature of the Potential Systemic Problem and generally will include the following:

• a summary of the information considered by the TIO when monitoring and assessing the Potential Systemic Problem, including information about the Test Case
• the reasons for the TIO’s opinion that there is a Potential Systemic Problem
• where appropriate, suggestions as to the possible resolution of the Potential Systemic Problem
• a request that the Member provide a submission about the Potential Systemic Problem, including advice about whether the Complaint or issue raises a Systemic Problem, and how the Member proposes to resolve the Problem
• a request for documents or other information required from the Member
• a request that the Member considers and works to resolve the Test Case, and
• an offer for the TIO to speak and meet with the Member to discuss the Potential Systemic Problem and possible resolutions of it.

3.3

The Member will be requested to respond in writing, generally within 20 business days from receiving the written notification of the Potential Systemic Problem.

4.1

The TIO will consider any response received from the Member. This consideration will focus on whether, having regard to the Potential Systemic Problem and the information provided by the Member, it is practical, fair, efficient and effective to conduct an investigation.  

4.2

In some cases, the TIO may:

• request further information to assist in this consideration, or
• continue efforts to resolve the Potential Systemic Problem without having recourse to an investigation. 

4.3

As a result of the TIO’s consideration and any further action, the TIO may decide to:

• investigate the Potential Systemic Problem (including the Test Case)
• continue to investigate the Test Case in accordance with standard procedure, and take no further action on the Potential Systemic Problem, or
• take no further action in relation to the Test Case or Potential Systemic Problem.

4.4

The TIO will notify the Member of the outcome of this consideration, including the reasons for any decision. The TIO will also provide appropriate information to the consumer in the Test Case.

4.5

Where the TIO decides to take no further action on the Potential Systemic Problem, the TIO may continue to monitor and assess any Complaints which raise issues similar to the Potential Systemic Problem, for further action (including to again notify the Member of the Potential Systemic Problem).

5.1

Where the TIO decides to investigate a Potential Systemic Problem, the TIO will notify the Member in writing. The written notification should include:

• information about the consideration by the TIO of the Member’s response to the notification of the Potential Systemic Problem, including the reasons for the decision to investigate the Potential Systemic Problem
• a request for any additional documentation or information that may be relevant to the investigation and resolution of the Potential Systemic Problem, and
• a request for any further submission about the Potential Systemic Problem.

5.2

To assist in resolving the Potential Systemic Problem, the TIO may also recommend a possible resolution or resolutions, and request that:

• the Member respond to these recommended resolutions, and
• the Member propose other resolutions.  

5.3

In recommending a resolution of a Potential Systemic Problem, the TIO will have regard to relevant laws, good industry practice and what is fair and reasonable in all the circumstances. 

5.4

The Member will be required to respond in writing, generally within 20 business days from receiving the written notification of the investigation.

5.5

While the TIO is conducting a Potential Systemic Problem investigation (including after notification of a Potential Systemic Problem), the TIO may defer the investigation of any other Complaint which relates to the Problem. 

5.6

Where the TIO defers the investigation of another Complaint, the TIO will notify the Member and the consumer of this decision.

6.1

When a Potential Systemic Problem Investigation is complete the TIO will notify the Member of the conclusion as to whether a Systemic Problem exists, and give reasons for this conclusion.

6.2.1

Where the TIO has concluded that a Systemic Problem exists, the TIO will also specify a recommended resolution. 

6.2.2

The TIO will work with the Member, including through consultation and negotiation, to reach an agreed resolution. 

6.2.3

Where there is an agreed resolution, the Member is expected to implement the resolution in the manner, and within the timeframe, agreed.

6.2.4

In resolving the Systemic Problem, the TIO will also work with the Member and relevant consumers to reach an agreed resolution:

• for the Test Case
• for any other Complaints that have been deferred during the Potential Systemic Problem Investigation, and
• for any other consumers whose Complaints have not been considered during the Potential Systemic Problem Investigation, but who have been affected by the Systemic Problem. 

6.2.5

Any further investigation or resolution of individual Complaints or for individual consumers will have regard to the recommended or agreed resolution.

6.2.6

The TIO will monitor Complaints relating to the Systemic Problem for an appropriate period of time after the closure of the investigation to ensure that the agreed resolution has been implemented. 

6.2.7

If Complaint numbers indicate that the resolution may not have been properly implemented, the TIO can re-open the investigation.

6.3.1

Where an agreed resolution of a Systemic Problem cannot be reached, or the Member fails to implement an agreed resolution, the TIO will determine what further action is necessary. This may include:

• reporting the Systemic Problem to the Chief Executive Officer of a TIO Member, including a request that the Problem and any recommended resolution be further considered, or
• referring the Systemic Problem to an appropriate regulator, such as the ACMA, the ACCC, the OAIC, Communications Alliance or another appropriate statutory or industry body.

6.3.2

When the TIO refers the Systemic Problem to a regulator it will notify the Member.

6.3.3

Where the Test Case or any deferred Complaints cannot be resolved, the TIO will continue to investigate them in accordance with standard procedure.

6.3.4

Outcomes for these Complaints may include:

• that no further action is taken on the Complaints (or some of them)
• that the Complaints (or some of them) are resolved by agreement between the Member and consumers
• that the Complaints (or some of them) are considered for binding decisions.

6.3.5

The TIO will provide appropriate information to the Member and consumer about the outcomes of any individual Complaints.

7.1

The TIO is committed to regularly reporting on its work in identifying, assessing and investigating Potential Systemic Problems, and resolving Systemic Problems. This includes:

• providing information as requested by the ACMA, ACCC or OAIC about Potential Systemic Problems
• providing information to Members, including through MNews
• providing information in response to requests from Communications Alliance or the Member concerned, and
• reporting to the community, including in the Annual Report, on the TIO website and through regular publications.

 

 

 

 

Updated on: 4 May, 2011