Our operations are governed by published Terms of Reference (TOR). The TOR sets out our rules and processes, such as:
- our power to consider disputes;
- our dispute resolution processes; and
- our reporting obligations.
The Financial Ombudsman Service TOR came into effect on 1 January 2010. They apply to disputes lodged on or after that date. We developed the TOR in 2008 and 2009 through a process involving extensive stakeholder consultation. ASIC approved these TOR in December 2009.
The current Terms of Reference follows:
ASIC-approved Terms of Reference effective from 1 January 2014
Disputes first lodged with FOS from 1 January 2012 to 31 December 2013:
ASIC-approved Terms of Reference effective from 1 January 2012
Disputes first lodged with FOS from 1 July 2010 to 31 December 2011:
ASIC-approved Terms of Reference effective from 1 January 2010 (as amended 1 July 2010)
Disputes first lodged with FOS from 1 January 2010 to 30 June 2011:
ASIC-approved Terms of Reference effective from 1 January 2010
Disputes first lodged with FOS before 1 January 2010 are subject to the Earlier Terms of Reference.
The Operational Guidelines to our Terms of Reference (TOR) are intended to:
- assist understanding of the TOR
- provide further detail on how we will resolve disputes.
The original version of our Operational Guidelines was published on 1 January 2010.
Several amendments have been made to the guidelines since 1 January 2010. Here is a summary of the amendments:
- Paragraph 13.1(a)(ii) of the TOR applies to disputes which are the subject of legal proceedings about debt recovery started prior to a dispute being lodged with us. Following consultation with our stakeholders, we have established a Para 13.1 Operational Guideline about how this aspect of the TOR operates in practice.
- We have provided additional information about the operation of paragraph 8.7 to explain the process for correcting an arithmetic or clerical error in a decision.
- Paragraph 6 of the TOR sets out the time limits for lodging disputes, the requirements for internal dispute resolution and other provisions for our application process. This paragraph was amended from 1 July 2010. We have amended the guideline to paragraph 6 to reflect this change.
- From 1 January 2012, the TOR have been extensively amended to enable FOS to deal with disputes about traditional trustee company services, and to clarify when FOS can deal with disputes about cross-border investments. We have amended the Operational Guidelines to explain these changes.
- Paragraph 8.5c) of the TOR explains that disputes can be referred to either a single Ombudsman or a Panel of three. From 1 May 2012, we have amended the Operational Guidelines to paragraph 8.5 to clarify that life insurance and investment disputes will not automatically be referred to a Panel just because they involve more than $50,000.
- Paragraph 13.1 of the TOR have been amended to insert new paragraph 13.1d). We have amended the guidelines to paragraph 13.1 to reflect this.
The following document provides a guide on the differences between our current and earlier Terms of Reference.
The Financial Ombudsman Service is approved to operate as an external dispute resolution (EDR) scheme under ASIC’s Regulatory Guide 139 (RG 139). To retain our approval, we have to ensure that our Constitution and TOR comply with RG 139 as revised from time to time.
Amendments commencing 1 July 2010
ASIC revised RG 139 on 7 May 2010. To comply with the revised version of RG 139, we have had to amend paragraph 6 of the TOR effective 1 July 2010.
Amendments commencing 1 January 2012
ASIC revised RG 139 on 20 April 2011 to set out its requirements for EDR schemes dealing with disputes about traditional trustee company services (“TTCS”). To comply with the revised version of RG 139, we have had to amend the TOR as follows:
- Separate IDR time frame for TTCS disputes;
- Modification of some of the exclusions, to ensure they apply appropriately to TTCS;
- A set of procedures (“Section F”) to deal with disputes against trustee companies where they also affect other parties (e.g. other beneficiaries of the trust or estate which the dispute is about), where all parties consent to FOS dealing with the dispute;
- Ability to deal with disputes against joint trustees, not all of whom are FOS members, provided all co-trustees consent.
In addition, there have been minor amendments to clarify FOS’ jurisdiction to consider disputes regarding cross-border investments (where an overseas collective investment scheme is offered to investors in Australia, or an Australian managed investment scheme is offered to Australian investors).
A copy of the TOR effective 1 January 2012, including these changes, can be found here.
Amendments commencing 1 January 2014
ASIC revised RG 139 in June 2013 to set out its requirements for EDR schemes dealing with disputes involving small business credit, where legal proceedings have been issued to recover the debt. To comply with the revised version of RG 139, we have amended paragraph 13.1 of the TOR to limit FOS’s coverage of these disputes.
Table of Amendments to the Terms of Reference
A table of amendments to the Terms of Reference up to 1 January 2014 can be found here.
Up until 31 December 2009, we operated under five different TOR that were modified versions of the documents that governed the operations of our predecessor schemes. These earlier TOR continue to apply to disputes that were lodged with us, or transferred to us by one of our predecessors, before 1 January 2010. This is stated in the current TOR and explained in the Operational Guidelines. Links to earlier TOR are provided below.
Terms of Reference - Banking & Finance
Terms of Reference - General Insurance
Terms of Reference - Insurance Broking
Terms of Reference - Investments, Life Insurance & Superannuation
Terms of Reference - Mutuals
The Banking & Financial Services Ombudsman (BFSO) and Credit Union Dispute Resolution Centre (CUDRC) produced separate publications entitled "Guidelines to the Terms of Reference" which provide guidance on the Banking & Finance and the Mutuals Terms of Reference respectively. These guidelines have not been updated for some time and will remain in their current form pending the finalisation of existing Disputes which are subject to those Terms of Reference. View and download the BFSO Guidelines or the CUDRC Guidelines.