Legal

Ombudsman tackles crisis facing amusement, leisure and recreation businesses

THE Australian Small Business and Family Enterprise Ombudsman (ASBFEO), Bruce Billson, has released an interim report into the insurance crisis facing Australia’s amusement, leisure, and recreation sector. 

“There is a clear and present danger facing the amusement and recreation sector because an inability for these businesses to get insurance cover means that many of the attractions people know and love won’t be able to operate,” Mr Billson  said. 

“The lack of insurance coverage could lead to the closure of businesses in the amusement and leisure sector, significant job losses, particularly in regional areas, stranded assets and loss of economic activity generated by metro and regional shows and amusement parks.” 

The report, The Show Must Go On, explores whether a Discretionary Mutual Fund (DMF) can be a durable solution and discusses required legislative reform by states and territories to ensure it is ‘fit for purpose’.  Mr Bilson said it also highlights the need for DMFs to be recognised and accepted as a suitable solution by councils and showground managers. 

Mr Billson said the interim report seeks urgent feedback from all stakeholders by November 3 to the ideas and questions raised in the report.

“We are calling for submissions from those in the industry so we can further understand any issues before we release a final report to government,” Mr Billson said.

“As businesses look to re-open after lockdowns, this issue is a shattering blow for those small and family businesses in the amusement, leisure and recreation sector which will be forced to stay shut because they can’t get insurance.  There is a very real possibility shows won’t go on – something has to be done for the show to go on. A DMF may represent the only workable solution.” 

The ASBFEO has been reviewing a proposal by the Australian Amusement, Leisure and Recreation Association (AALRA) to establish a DMF as a solution to the critical and immediate need for insurance in the sector. 

The interim report found the lack of affordable insurance was not the fault of the amusement industry but due to a 'hardening' in the global insurance market. Very few insurers are willing to insure the industry, and premiums – when available – had risen by as much as 200 percent. 

“In many instances the policy is priced such that it may as well not exist because small operators have no capacity to pay for the cover they need to continue operating,” the report said. 

“In the case of the amusement, leisure and recreation sector, there isn’t an offering that provides full coverage.”

Public liability insurance coverage is a legal requirement for the operation of rides at showgrounds and fixed installations, both through contractual obligations and obligations imposed on councils and other landowners by state and territory governments. 

DMFs operate to provide cover on a discretionary basis to a group of individuals or organisations that have a similar risk profile.  Under a DMF, members who meet requirements would have access to a certificate of protection, enabling them to operate these amusement rides. 

The Show Must Go On interim report and overview can be found at www.asbfeo.gov.au/reviews/discretionary-mutual-fund-review.

Submissions should be sent to: This email address is being protected from spambots. You need JavaScript enabled to view it. by COB, November 3, 2021.

 

Report Overview

The Show Must Go On: Is a discretionary mutual fund the solution to the insurance crisis facing Australia’s amusement, leisure, and recreation sector?

Background

  • The Australian Small Business and Family Enterprise Ombudsman (ASBFEO) conducted a self-generated inquiry in 2020 into the insurance market for small business, finding significant dysfunction for several sectors.
  • The Amusement, Leisure, and Recreation Association (AALARA) submitted to that review noting that many members were facing closure and/or stranded assets due to the unavailability of insurance.
  • AALARA then approached the Federal Government to seek support to establish a discretionary mutual fund (DMF).

Preliminary findings

  • A DMF suits the industry represented by AALARA.
  • A DMF may be a suitable way to address the current insurance crisis facing the industry.
  • The suitability and durability of a DMF solution for the sector will depend heavily on:

o   support for legislative reform from states and territories, and willingness to accept the solution by councils and land/showground managers.

o   the final makeup of the membership.

o   the cost of premiums and reinsurance, the management of the DMF and any management costs, and the size of any claims in the first years of operation.

About Discretionary Mutual Funds (DMFs)

  • DMFs operate to provide risk cover on a discretionary basis to a group of individuals or organisations, through a ‘Certificate of Protection’.
  • DMFs do not offer an insurance product: o Under traditional insurance coverage, a policy holder has a contractual right to have their claim paid upon meeting the policy’s terms and conditions.

o   Under DMF coverage, the DMF’s members are entitled to submit a claim for indemnity to the DMF’s board, which may or may not approve the claim, at its discretion.

Benefits of a DMF

  • DMFs are often created to address market failure or significant dysfunction.
  • DMF members are accepted or rejected by the directors, who have significant industry knowledge, allowing them to more closely monitor risk profiles of those covered.
  • DMF membership can also be predicated on compliance with a range of risk management and training protocols to lessen the risk profile across the membership.
  • Because DMFs do not have shareholders to make returns to, they are able to operate on slim margins, potentially reducing costs to members.
  • DMFs can offer additional services to their members, adding value over the protection offered.

Challenges

  • The DMF should be fully funded for the first year, requiring a reasonable amount of start-up capital.
  • Many pieces of state, territory, and local government legislation and regulation require businesses operating on their land to hold insurance, which a DMF cannot offer.

o   To address this, these pieces of legislation and regulation could be amended to allow membership of a DMF in lieu of insurance where insurance is not available, or the market is significantly dysfunctional.

  • A DMF should be established in such a way to ensure its ongoing durability.
  • Consumers may have concerns about the discretionary nature of coverage.

Alternatives

  • A range of alternative options have been considered to address this issue, including a captive, self-insurance, group insurance schemes, a reinsurance pool, tort reform to address risks (‘the New Zealand solution’), implementation of a National Injury Insurance Scheme, and hybrid models.
  • A recent entrant to the market has been Coversure, a respected UK-based insurer:

o   Only provides $10 million coverage (half of the $20 million required by most legislation/regulation).

o   Industry is reporting premiums of at least double that they were previously paying.

o   Will not cover the whole market.

 

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Small Business and Family Enterprise Ombudsman backs tax report to help business owners

THE Australian Small Business and Family Enterprise Ombudsman, Bruce Billson, has strongly backed a call from the Inspector-General of Taxation for the Australian Taxation Office (ATO) to more consistently and transparently inform taxpayers of their right to review, complain and appeal decisions.

“This is a significant investigation and report by the Inspector-General of Taxation and Taxation Ombudsman, Ms Karen Payne, and the findings and recommendations are really important for delivering a better and fairer tax system,” Mr Billson said. 

 “Tax issues are among the top concerns for small businesses, and it is critical for the Tax Office to step up as a modern revenue agency to help people as part of their charter.” 

Ms Payne’s report called for the ATO to update the Taxpayers’ Charter to include an express right to be informed of rights to review, complain and appeal decisions and to be told about all relevant channels to do so.  

The report found over the past three years fewer than 1 percent of ATO staff had attended a training course to teach them how to tell taxpayers about their rights to complain, review or appeal a decision and a survey found 60 percent of taxpayers were unaware of or had not used the ATO’s complaints function. 

“I am pleased the Tax Office has embraced this report from the Inspector-General and has committed to working through these important recommendations,” Mr Billson said. 

“I look forward to seeing the Tax Office implement these changes to improve the way it deals with taxpayers.” 

The ASBFEO has released several reports outlining measures to improve the tax system for small business, especially around the vital need to tell taxpayers about their opportunities to complain about or have a decision reviewed. 

Since March 2019, more than 650 small businesses have sought the help of the ASBFEO’s Small Business Tax Concierge Service -- a team of specialists and case managers who respond to requests for assistance from small business who receive a negative decision from the ATO.  

For further information about the Concierge Service call 1300 650 460 or email This email address is being protected from spambots. You need JavaScript enabled to view it. 

Attorney-General Cash's class action laws are designed to help big business, not everyday Australians

NEW LAWS proposed last week by Federal Attorney-General Michaelia Cash would, according to some senior legal sources "cripple the capacity of everyday Australians to take legal action against corporations and governments, which – according to the peak body for class action law firms – is precisely their intent".

Senator Cash last week released an exposure draft bill that would severely limit the ability to get worthwhile class actions off the ground, by applying a cap on class action funders and banning common fund orders (CFOs), they claimed 

Class Actions Australia spokesperson and Maurice Blackburn's National Head of Class Actions, Andrew Watson, said it was preposterous for the government to claim the laws were being introduced to help everyday Australians participating in class actions.

"This isn't reform, it's sabotage," Mr Watson said.

“The Morrison Government wants class actions de-clawed and de-fanged so corporations can use their power and size to get away with hurting people.

"Class actions are hugely expensive, because you are invariably taking on a giant with deep pockets and a lot to lose. They need funding options to survive. The government and the big business lobby knows if they take away the viability of those funding options they take away most class actions. That's the point of these proposed changes."

Mr Watson said the way to drive down costs for class members was to adopt market-based solutions which promote competition – contingency fees and common fund orders as recommended by the Australian Law Reform Commission.

"The idea that these laws are designed to help class action members is laughable," Mr Watson said.

"How many meetings have Frydenberg and Cash taken with class action members? And how many have they taken with big business lobbyists? The answer will tell you all you need to know about the government's motivations,” Mr Watson said.

“Surely if you're introducing a measure to benefit class action members you would have talked to them first? Michaelia Cash hasn't met with people ripped off by insurance companies selling worthless products to the vulnerable. Or the women hurt by big pharma due to faulty pelvic mesh implants. Because she's not looking after victims, she's siding with wrongdoers.

"The point of these law changes isn't to make class actions better, it's to throw so much sand in their gears they don't get off the ground.”

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Some employers try to mandate vaccines in the workplace ... but a law doesn’t exist

AS THE COVID-19 vaccination continues its rollout across Australia, there is increased talk on whether or not it should be made compulsory in the workplace.

Last week SPC became the first Australian company to require all onsite staff and visitors be vaccinated by November, a move unions have described as ‘unrealistic’. Other companies are expected to follow suit.

According to SME workplace advisory firm Employsure, SPC aside, all vaccine mandates for workers such as those in the aged care and health care sectors have previously only been made by governments under public health orders. So while employers like SPC may seek to mandate vaccinations for the health of their staff, there is currently no law that will specifically allow them to enforce it.  

“Employers who want their staff vaccinated may see themselves hit with a Fair Work claim if that employee is sacked as a result of refusing the jab,” Employsure health and safety manager,  Larry Drewsen said.

“As it stands, employers cannot force an employee to get the jab. While we may see circumstances change as vaccination rates continue to climb, employers should tread with caution and maintain open communication with their employees over their workplace vaccination rights, responsibilities and options.

“While employers cannot force an employee to get the jab, they must however, continue to do everything reasonably practicable to reduce the risk to health and safety in the workplace.”

Mr Drewsen said while employers are unable to mandate it, they can ask the question to their employees on whether or not they want the jab. Employers can suggest staff get the vaccine, provide them with relevant government health advice, and allow them to take time off during the workday if only weekday appointments are available.

Workers do not however, have to tell their employer if they have been vaccinated, or even give a reason behind it," Mr Drewsen said. "To keep on the safe side, employers should assume a worker is unvaccinated if they withhold this information, and inform that worker of their assumption."

"While some worksites may be at higher risk than others, it shouldn’t stop employers in lower risk settings from keeping track of which employees have been vaccinated. Employee management software like BrightHR’s Vacctrak feature allows employers to monitor who is fully, partially, or not vaccinated against COVID-19 in the workplace.

“Employers have an obligation to take reasonably practicable steps to ensure a safe workplace, and health advice indicates vaccinations are a critical component if we are to successfully come out of this pandemic. As they cannot legally enforce it, employers should consult with employees who are unable, or don’t want the COVID-19 vaccination, and discuss alternative measures that can help them do their job safely,” Mr Drewsen said.

“The Federal Government has stated mandatory vaccinations will not happen in Australia. While vaccinations form part of a business’s methods of controlling the risk of infection, employers must therefore have other plans in place if workers refuse.

“For employers who follow SPC’s lead and make vaccines mandatory to continue on-site work, by doing so it could lead to legal challenges in the future. Employers must be prepared for that and weigh up alternatives to mandatory vaccinations if it comes to it.”

www.employsure.com.au

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AFCA receives 70,000 financial complaints in 2020-21

AUSTRALIANS in dispute with banks, insurers, superannuation funds, investment firms and financial advisers lodged more than 70,000 complaints with the Australian Financial Complaints Authority (AFCA) in the past 12 months.

They secured more than $240 million in compensation and refunds after seeking AFCA’s help, as well as outcomes such as fee waivers, debt forgiveness and apologies. 

In addition, AFCA’s investigations into a range of systemic issues resulted in remediation payments to consumers totalling nearly $32 million in the past financial year.

AFCA has now helped to secure more than $610 million in compensation and refunds, and over $220 million in remediation payments, since starting operation on November 1, 2018.

In 2020-21, individual consumers and small businesses – who can also access the free ombudsman service – made 70,510 complaints to AFCA.

A preliminary data 'snapshot' as of June 30 also shows that nearly 70 percent of cases were resolved by agreement after AFCA brought the parties together, and that nearly 60 percent of cases were resolved within 60 days.

The most complained about product in 2020-21 was credit cards, accounting for 14 percent of all complaints, followed by home loans (9 percent) and personal transaction accounts (8 percent). With credit cards, the most common issues were default listings and unauthorised transactions – the latter accounting for 11 percent of card complaints.

Government support, business relief measures and a steadying economy had a positive effect on complaint levels in 2020-21, including complaints involving financial difficulty, AFCA’s chief ombudsman, David Locke said. 

“Significantly, complaints involving financial difficulty were down nearly 40 percent from the numbers we saw the previous year,” Mr Locke said. “That’s a great outcome and reflects the positive response from government and industry to the impact of COVID. 

“However, it’s too early to say we’re out of the woods yet. It may be some months before we know the full impact of the end of government emergency support and assistance from financial firms such as deferred loan repayments. And, of course, we are still living with COVID-19.

“It’s important that consumers and financial service providers continue to work together to resolve issues quickly as they emerge,” Mr Locke said. “The past 12 months show what’s possible when that happens.” 

Overall, complaints were down 12 percent on 2019-20, a year that included the initial months of the COVID-19 pandemic and a spike in complaints in areas such as travel insurance.

In 2020-21, there were 8,303 COVID-related complaints, up from 5,013 in just four months at the end of 2019-20 after the pandemic was officially declared. That translates to an average of 692 a month in 2020-21, down sharply from an average of 1,253 a month from March through June 2020.

The past 12 months included 165 complaints related to insurance cover for business interruption associated with COVID-19. More complaints are expected in the coming year, once the second of two test cases brought by the insurance industry is resolved.

The AFCA data for 2020-21 also shows travel insurance complaints down 22 percent, as Australians stayed at home, and superannuation complaints down 31 percent, after a jump the prior year when the government allowed the early release of super at the start of COVID. 

On the other hand, complaints related to personal transaction accounts rose 48 percent, with unauthorised transactions accounting for 29 percent of those complaints. Also, complaints about electronic banking increased 76 percent, with unauthorised transactions accounting for 28 percent of those complaints and mistaken internet payments accounting for a further 19 percent.

“There’s no single reason for these increases but people transacting online more during COVID will have contributed,” Mr Locke said. “Scams, which have accelerated during the pandemic, are also leading to growing complaints about transactions.”

Complaints about sales of funeral insurance in Indigenous communities continued to be troubling in 2020-21, Mr Locke said. “There’s a pattern of poor conduct in regional and remote communities that’s concerning.”

One provider accounted for 98 percent of funeral insurance-related complaints and was the subject of multiple determinations in favour of complainants.


About AFCA

  • The Australian Financial Complaints Authority (AFCA) is a non-government ombudsman service providing free, fair and independent help with financial disputes.
  • It is a one-stop-shop for consumers and small businesses who have a dispute with their financial firm, in areas such as banking, credit, insurance, advice, investments and super.
  • Where an agreement cannot be reached between parties, AFCA can issue decisions that are binding on financial firms.
  • AFCA has searchable public data on financial complaints available at data.afca.org.au.

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Ombudsman urges small businesses to get on the front foot at tax time  

THE Australian Small Business and Family Enterprise Ombudsman, Bruce Billson has urged struggling small and family businesses to be proactive at tax time, as a new report reveals declining payment plans, despite record collectible debt owed to the Australian Taxation Office (ATO).

Mr Billson said the report, released today by the Inspector General of Taxation and Taxation Ombudsman (IGTO), shows that although SMEs owe $21 billion to the ATO – well over half of this collectible debt is held by just 6.4 percent of SMEs.

 “The vast majority of small business owners are doing the right thing and complying with their tax obligations,” Mr Billson said. 

“This report shows that while collectible debt owed by small businesses to the ATO has reached an all-time-high, in reality the breakdown sees the majority of debt owed by very few SMEs while the remainder is very small amounts of debt spread over a small percentage of Australia’s more than 2 million SMEs.

“In fact, less that one percent of small businesses owe $2.5 billion to the ATO, according to the IGTO’s report.”

Mr Billson said the reported decline in small business payment plan arrangements over the past three years is a concern.

“For those small businesses that are struggling to meet their tax obligations, now is not the time to put your head in the sand,” Mr Billson said.

“Small businesses are strongly encouraged to get on the front foot by lodging now and reaching out to the ATO – either online or by phone – for a tailored payment plan, if having difficulties meeting payment obligations.

“The ATO has told my office it is also introducing a system for payment plans in arrears to give small and family businesses a chance to get back on track rather than falling into default and having to start again.

“While the ATO is signalling plans to return to collection action, which it relaxed during the pandemic, it has also indicated to my office that its predominant strategy is to support and assist small businesses wherever possible," Mr Billson said.

“The ATO has acted on key recommendations in ASBFEO’s report: A tax system that works for small business to turn its small business independent review service into a permanent offering.

“This is in addition to the Australian Government giving the Administrative Appeals Tribunal (AAT) greater powers to pause or change debt recovery action applied to small businesses in dispute with the ATO.”

Small businesses engaged in a tax dispute are encouraged to contact ASBFEO for assistance on 1300 650 460 or email This email address is being protected from spambots. You need JavaScript enabled to view it.

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Governments consider consistent electronic document execution across Australia

LAW COUNCIL president, Jacoba Brasch QC, has come out in support of the move by the state and federal Treasurers to focus together on an agreed approach to electronic legal documentation processes and systems.

“The Law Council of Australia is fully supportive of today’s decision by Commonwealth, State and Territory Treasurers to work together towards a common approach for electronic document execution," Dr Brasch said. 

"During the COVID-19 pandemic, the electronic execution of documents was a game changer, especially in the commercial law space. It will remain a game changer by offering real potential for trade and commerce to flow in a more efficient and cost-effective way.

"For the upheaval that was 2020, there have been positive outcomes in the service of document execution that will have long lasting positive outcomes for clients. However, the need for consistency across the states and territories is paramount, which is why today’s announcement is crucial.

"The Law Council looks forward to working with the government to ensure that fidelity and veracity of the process for the execution of electronic documents is maintained," Dr Brasch said.

"The Law Council supports further investigation into what additional permanent improvements can be made as a result of technology which may further improve the follow of commerce in this country, efficient service delivery and cost effectiveness for clients.”

 

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