GUIDELINE Review of Certain Actions‐ Internal Review Utilities Regulatory Authority
DECEMBER 2011 © 2011 Utilities Regulatory Authority This publication is copyright. No part may be reproduced by any process except with the express permission of the Utilities Regulatory Authority of Vanuatu. Preface The Utilities Regulatory Authority (the Authority) has prepared this Review of Certain Actions – Internal Review Guideline (Guideline) as part of the implementation of the Authority established under the Utilities Regulatory Authority Act No 11 of 2007 (the Act). The Guideline set out the Authority’s processes, procedures and preferred methodology for reviewing certain actions by internal review as set out under the Act, and describes the rights, obligations and responsibilities of utilities, Commissioner(s) and the Authority. The Guideline should be read in conjunction with Part 5 section 27 of the Act. The purpose of the Guideline is to inform stakeholders of the Authority’s decision making role in relation to its functions and powers, issuing of safety and reliability standards, assignment of contractual rights, price determinations and consultation. By providing information in relation to the process for conducting reviews of certain action by internal review, the Guideline is intended to establish workable and effective review processes, and to enable aggrieved parties to be adequately prepared for the process. It is also intended that providing information on the rights and obligations of the parties to an internal review process, the Guideline can assist to facilitate efficient and effective consultation between the parties. In order for the Guideline to provide clear guidance to utilities and the Authority in relation to the internal review of certain actions, the Authority considers it appropriate to test the Guideline and subject it to critical review. To this end the Authority welcomes perspectives and input from stakeholders. The Authority invites written submissions from interested parties on the Guidelines by close of business on 10 February 2012. Submissions received by the Authority will be published on the Authority’s website unless they are confidential or commercially sensitive. Any confidential or commercially sensitive information should be clearly marked as such and preferably included as a separate attachment to the public submission. When finalizing the Guidelines, the Authority will consider all submissions received by stakeholders on or before 10 February 2012. Submissions should be forwarded by email to: [email protected] or hard copy to: Review of Certain Actions – Internal Review Guideline, Utilities Regulatory Authority, PMB 9093, Port Vila Vanuatu. Enquiries can be directed to Mr Olivier Fernandez on (678) 29 795. 2 | P a g e Contents Preface .......................................................................................................................................................... 2 Contents ........................................................................................................................................................ 3 1. 2. Background and purpose ...................................................................................................................... 5 1.1. Overview ....................................................................................................................................... 5 1.2. Purpose and scope of the Guideline ............................................................................................. 6 1.3. Structure of the Guideline ............................................................................................................ 7 Nature of certain actions ...................................................................................................................... 8 2.1 Disputes over functions and powers of the Authority ........................................................................ 8 2.2 Safety and reliability standards disputes ............................................................................................ 9 2.1.1. Safety standards .................................................................................................................... 9 2.1.2. Safety orders ......................................................................................................................... 9 2.1.3. Safety inspection ................................................................................................................. 10 2.1.4. Reliability Standards ............................................................................................................ 10 2.3 Pricing, complaint resolution and contract administration disputes ............................................... 11 2.3.1. Maximum prices .................................................................................................................. 11 2.3.2. Complaint resolution .......................................................................................................... 11 2.4 Consultation disputes ....................................................................................................................... 11 3. Framework for internal review ........................................................................................................... 13 3.1. 3.1.1. Submission Policy ................................................................................................................ 13 3.1.2. Protection of confidential information ............................................................................... 14 3.1.3. Conduct of the party ........................................................................................................... 14 3.2. 4. Nature of the Authority’s internal review role ........................................................................... 13 Statutory requirements for internal review ............................................................................... 14 3.2.1. Notification of a review of certain actions .......................................................................... 15 3.2.2. Timeframes for reaching a decision .................................................................................... 15 3.2.3. Internal review process requirements ................................................................................ 15 3.2.4. When a decision takes effect .............................................................................................. 16 3.2.5. Case Management .............................................................................................................. 16 Preconditions for an internal review .................................................................................................. 18 4.1. Preliminary assessment of whether a grievance exists .............................................................. 18 4.2. Withdrawal of an application for review of certain actions ....................................................... 18 4.3. When the Authority makes a decision ........................................................................................ 18 3 | P a g e 5. Internal review process, structure and procedures ............................................................................ 20 5.1. Preliminary phase ....................................................................................................................... 20 5.1.1. How an application should be made to the Authority ........................................................ 20 5.1.2. Form of application ............................................................................................................. 21 5.1.3. Notification to parties aggrieved ........................................................................................ 22 5.1.4. Preliminary case management step .................................................................................... 22 5.1.5. Exchange of information, access to information and confidentiality ................................. 23 5.1.6. Conferences ........................................................................................................................ 24 5.1.7. Use of experts ..................................................................................................................... 24 5.2. Authority’s decision .................................................................................................................... 25 5.3. Appeals ........................................................................................................................................ 26 5.4. Costs ............................................................................................................................................ 26 Appendix A: Notice of grievance ................................................................................................................. 27 Appendix B: Confidential information policy ............................................................................................. 29 Appendix C: Example of conflict of interest statement .............................................................................. 31 Appendix D: Flow chart ............................................................................................................................... 32 4 | P a g e 1. Background and purpose The Utilities Regulatory Authority (the Authority) has produced this Review of Certain Actions – Internal Review Guideline (Guideline) as part of the implementation of the regulatory framework established by the Utilities Regulatory Authority Act No 11 of 2007 (the Act). The Guideline sets out the Authority’s processes, procedures and preferred methodology for reviewing certain actions by internal review as set out under the Act, and describe the rights, obligations and responsibilities of utilities, Commissioner(s) and the Authority. 1.1.
Overview In 2008 the Government established the Authority under the Utilities Regulatory Authority Act No 11 of 2007. The primary objective of the Authority is ‘to protect the long‐term interests of Vanuatu’s consumers with regard to the price, quality and reliability of regulated services.’ This objective is central to the framework of economic regulation that facilitates efficiency and financial viability in regulated industries, prevents misuse of monopoly power and ensures that customers benefit from the gains from regulation and efficiency. The facilitating objectives of the Authority, as expressed in the Act under which it is constituted are: •
•
to ensure the provision of safe, reliable and affordable regulated services; and maximize access to regulated services throughout Vanuatu. The functions of the Authority, as expressed in the Act under which it is constituted, are: • to exercise the functions and powers conferred by this Act or by any other Act in furtherance of the purpose of this Act • to provide advice, reports and recommendations to the Government relating to utilities • to inform the public of matters relating to utilities • to assist consumers to resolve grievances • to investigate and act upon offences under this Act • when requested by the Minister to do so, to conduct an inquiry into any systemic reliability of supply issues related to a regulated industry or other regulated service specified by the Minister in the request • to conduct public education programs for the purpose of promoting its objectives under the Act and the relevant legislation and in relation to significant changes in the regulation of a regulated industry • to advise the Minister on any other matter referred to the Authority by the Minister; and • to administer and monitor compliance with the Concession Agreements under the Act Part 5, section 27 of the Act provides for the Authority to review and determine certain actions upon notice of grievance provided to it by an aggrieved Utility. Section 27 also imposes specific processes and timeframes that are designed to ensure the quick resolution of grievances. 5 | P a g e 1.2.
Purpose and scope of the Guideline The purpose of this Guideline is to describe how the Authority intends to carry out its functions of making decisions (‘internal review decisions’) in respect of reviewing certain actions under Part 5 of the Act. The Guideline also has the objective of enabling the parties to an internal review of certain actions to be adequately prepared for the Authority’s review processes. This is consistent with the Authority’s preference to minimise the costs involved for all parties in resolving grievances through the Authority and to provide as much certainty as possible to the aggrieved person(s). By providing information on the rights and obligations of the parties to an internal review of certain actions, the Guideline is also intended to facilitate processes that are workable and effective, in light of the legislative requirements that the Authority must satisfy and the nature of the grievance that can be brought to the Authority for internal review. The Guideline addresses the following matters in relation to internal review of certain actions: •
what constitutes certain actions that triggers the Authority’s internal review process; •
the processes to be undertaken when an internal review arises and the Authority’s role with respect to reviewing and deciding the dispute, including the Authority’s powers, obligations, responsibilities and guiding principles; •
the circumstances in which the Authority will exercise its discretion not to make a decision in regards to an internal review; •
the Authority’s procedures and preferred strategy for deciding a dispute, including the steps from the time of notification of a grievance to the making of a decision and the procedures for exchanging information and conducting hearings and conferences; •
how the Authority will perform its role in resolving a dispute including the matters to which it may and must have regard to when making a decision; and •
the content and effect of the Authority’s decisions. 6 | P a g e 1.3.
Structure of the Guideline The remainder of this Guideline is organized as follows: •
Chapter 2 examines the types of actions that may come to the Authority for internal review; •
Chapter 3 provides a brief summary of the legislative and procedural requirements that the Authority is bound by when reviewing and deciding grievances and discusses the overall approach that the Authority proposes to adopt in order to review certain actions efficiently and effectively; •
Chapter 4 explains the preconditions for the internal review, including the process for handling the grievance prior to a formal notification of a grievance to the Authority; the initial steps the Authority will take when it receives a formal notice of grievance, including its preliminary assessment of whether a grievance for internal review exists; the circumstances in which the Authority will not decide the dispute; and the process for withdrawal of a grievance that has been notified to the Authority; •
Chapter 5 provides information on the internal review process and procedures, the matters the Authority must have regard to when making its decision, the Authority’s procedures and the effect of the Authority’s internal review decision. •
Appendix A: Notice of Grievance •
Appendix B: Example of Confidentiality Deed •
Appendix C: Example of Conflict of Interest Statement •
Appendix D: Flowchart 7 | P a g e 2. Nature of certain actions This chapter identifies the types of grievances under the Utilities Regulatory Authority Act which activate the Authority’s internal review functions under Part 5 section 27. This discussion centres on the definition of certain ‘actions’ in section 27(1) of the Act. The Authority is required under section 27(2) of the Act to make a decision in relation to the grievance that has been notified to it in writing in accordance with section 27(4). Part 3 and section 37 of the Act describes the types of actions that may activate the Authority’s internal review functions. Broadly there are four types of actions: (a) disputes about decisions made by the Authority in relation to its functions and powers; (b) grievances about safety standards, safety orders, safety inspections and reliability standards made by the Authority; and (c) disputes about pricing principles, complaint resolution and contract administration; and (d) grievances about consultation functions of the Authority. The detailed legislative requirements in relation to each of these types of dispute, grievance or action are outlined below. 2.1 Disputes over functions and powers of the Authority The functions and powers conferred upon the Authority are defined in section 12 of Part 3 Division 1. The Authority has the following functions: •
to exercise the functions and powers conferred by the Act; •
to provide advice, reports and recommendations to the Government relating to utilities; •
to inform the public of matters relating to utilities; •
to assist consumers resolve grievances; and •
to investigate and act upon offences under the Act. In addition the Act sets out the powers of the Authority under section 13, which states: (1) The Authority has power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions; (2) Without limiting subsection (1), the Authority may: (a) Require a utility to furnish the Authority with information or documents relating to a regulated service or corporate structure, accounts or finances of the utility; 8 | P a g e (b) Require a utility to confer with the Authority as to the manner in which it carries on any specified activity in relation to a regulated service; or (c) Do anything reasonably incidental to any of its powers. (3) The powers conferred by the Act may be exercised on behalf of the Authority by any individual authorised by the Authority or the Act. Since the provisions of sections 12 and 13 cover a range of functions and powers that are exercisable by the Authority, the sources of grievances that may arise include (but are not limited to): •
a belief that the actions or decisions taken by the Authority in relation to the contractual rights assigned to it under section 20 gives rise to an internal review; •
an inability to agree on the terms and conditions made by the Authority in relation to a consumer dispute between the utility and its customer; and •
an action or decision taken by the Authority following an investigation upon offences under the Act. 2.2 Safety and reliability standards disputes 2.1.1. Safety standards The Authority may issue safety standards in relation to the safety of a regulated service provided by a utility. In doing so, the Authority must, in determining whether to issue any safety standard, have regard to: (a) the cost and convenience of compliance with the safety standard; and (b) the nature and magnitude of the risk that is addressed. The sources of disputes that may arise over the safety standard issued by the Authority appear to be limited to: •
an inability to agree on the cost and convenience of compliance with the safety standard; and •
a belief that the Authority may need to have further regard to the nature and the magnitude of the risk that is addressed when issuing safety standards. 2.1.2. Safety orders The Authority may issue safety orders directing any person to do or refrain from doing any thing in relation to the safety of a regulated service. In doing so, the Authority must, in determining whether to issue any safety order, have regard to: (c) the cost and convenience of compliance with the safety order; and (d) the nature and magnitude of the risk that is addressed. 9 | P a g e The sources of disputes that may arise over the issuing of a safety order by the Authority appear to be limited to: •
an inability to agree on the cost and convenience of compliance with the safety standard; and •
a belief that the Authority may need to have further regard to the nature and the magnitude of the risk that is addressed when issuing safety standards. 2.1.3. Safety inspection The Authority may inspect any premises, plant, equipment or vehicle connected with a regulated service and may carry out all or any of the following: (a) enter upon any premises; (b) take any sample of any substance; (c) conduct any non‐destructive test upon any plant or equipment at its location; (d) bring with him, or her any other individual for the purpose of advice or the conduct of any test; (e) in a suspected emergency, obtain forcible entry to any premises or vehicle; and (f) in a suspected emergency, bring with him a member of the Police Force to facilitate his or her inspection An action for internal review may arise in relation to safety matters if the aggrieved utility reasonably believes that the Authority has not complied with section 16 subsections (1) to (6) of the Act. 2.1.4. Reliability Standards The Authority may issue reliability standards in relation to the reliability of the regulated services provided by a utility. In doing so, the Authority must, in determining whether to issue any reliability standard, have regard to: (e) the cost and convenience of compliance with the reliability standard; and (f) the nature and importance of the reliability issue that is being addressed. The sources of disputes that may arise over the reliability standard issued by the Authority appear to be limited to: •
an inability to agree on the cost and convenience of compliance with the reliability standard; and •
a belief that the Authority may need to have further regard to the nature and importance of the reliability issue that is being addressed when issuing reliability standards. 10 | P a g e 2.3 Pricing, complaint resolution and contract administration disputes 2.3.1. Maximum prices Section 18 of the Act empowers the Authority to determine the maximum price which may be charged in relation to any aspect of a regulated service throughout Vanuatu. In doing so the Authority must have regard to the price of similar services in any comparable location when determining maximum prices. The sources of disputes that may arise following the Authority’s determination of the maximum price that may be charged in relation to any aspect of a regulated service appears to be limited to: •
a belief that the Authority must have further regard to the price of similar services in any comparable location when determining the maximum price.. 2.3.2. Complaint resolution The Authority may, if requested by a person, assist that person to resolve any dispute with a utility in respect to a regulated service. In doing so the Authority may: (a) require the utility to answer any questions; or (b) require the utility to provide any documents; or (c) require the utility to test, at the utility’s cost, the accuracy of any meter or other equipment measuring the quantity or quality of a regulated service provided to the complainant; or (d) require the utility to calibrate, at the utility’s cost, any meter or other equipment measuring the quantity or quality of a regulated service provided to the complainant; or (e) require a utility providing water to test, at the utility’s cost, a sample of water as directed by the Authority. An action for internal review may arise in relation to complaint resolution matters if the aggrieved utility reasonably believes that the Authority has not complied with section 19 subsection (1), (2) (a) to (e) of the Act. 2.4 Consultation disputes It is a requirement under section 37 that the Authority must consult with relevant stakeholders prior to exercising certain powers contained within the Act. The Act and other industry‐specific agreements outline the notification, consultation and publication procedures that the Authority follows when undertaking our functions and making decisions. 11 | P a g e The Authority has developed and published its Charter of Consultation and Regulatory Practice to assist stakeholders and consumers by providing guidance relating to the Authority’s processes for making determinations and conducting inquiries. In relation to section 37, more specifically, prior to exercising any of the powers relating to Safety Standards (s14 (1)), Reliability Standards (s17 (1)) or Maximum Price (s18 (1)), the Authority must: (a) give notice of the material substance of the proposed exercise of such powers to all utilities potentially affected; and (b) afford all such utilities a reasonable opportunity to make submissions in relation to the exercise of such powers. The Authority is required to consider any submissions provided to it by the utility in relation to the exercise of such powers. If upon consideration, the Authority is satisfied of any of the following matters: (a) the cost and inconvenience of compliance with any standard is not reasonably proportionate to the issue it addresses: and (b) a price determined pursuant to section 18 will produce less income for the utility than the cost to the utility of providing the regulated service in the place which it relates; and (c) a price determined pursuant to section 18 does not enable the utility to realise a reasonable profit on the regulated service to which it relates, it may revoke, amend or otherwise vary the proposed action accordingly. An action for internal review may arise in relation to consultation matters if the aggrieved utility reasonably believes that the Authority has not complied with section 37 of the Act. 12 | P a g e 3. Framework for internal review This chapter outlines the statutory requirements that the Authority must address when reviewing certain actions by internal review. It also discusses the internal review strategy that the Authority proposes to adopt for internal review decision processes. The detail of the internal review process and procedures is addressed in chapter 5. 3.1.
Nature of the Authority’s internal review role The Authority’s decision‐making role in relation to internal reviews is similar to that set out in the Authority’s Charter of Consultation and Regulatory Practice where the Authority’s aim is to be open and transparent in the performance of its functions. The Authority’s role in reviewing certain actions involves the party putting their case to the Authority, which then must review the merits of the grievance and make a determination that may revoke, amend or vary the action complained of in the notice or take no further action. In doing so, the Authority must consider whether: (a) the cost and inconvenience of compliance with any standard is not reasonably proportionate to the issue it addresses: and (b) a price determined pursuant to section 18 will produce less income for the utility than the cost to the utility of providing the regulated service in the place which it relates; and (c) a price determined pursuant to section 18 does not enable the utility to realise a reasonable profit on the regulated service to which it relates. 3.1.1. Submission Policy The Authority accepts all submissions in good faith and has a policy to publish all submissions on the Authority’s website. However, the Authority reserves the right to withhold submissions from publication on its website and/or to delete parts of a submission from publication where the submission has been submitted on the basis that all or parts of it are not to be published, or where, in the opinion of the Authority, a submission contains information which is or may be considered to be: •
in breach of privacy legislation or may result in the identification of an individual without his or her consent; •
inflammatory or offensive or otherwise inappropriate for publication; •
defamatory or may otherwise expose the Authority to legal action; •
confidential or commercially sensitive; or •
outside the terms of reference of the review. Where the Authority receives a submission, it will publish that submission and the details of the person or organisation making the submission on its website unless the Authority is advised in writing that the submission and/or personal information should not be published, or if one or more of the above listed 13 | P a g e considerations exists in the reasonable opinion of the Authority. The making of a submission without an express request for privacy is deemed to constitute consent to publish a submission and details of the person or organisation making the submission. The Authority will not be liable to any person or organisation named in a submission where the Authority withholds or fails to withhold a submission and/or personal information from publication or deletes parts of the submission which may fall into one or more of the above categories. Any refusal to publish a submission or the deletion of any information in a submission is at the prerogative of the Authority and the Authority will not be liable to any person for such action. Notwithstanding the above, it should be noted that all submissions will be fully considered by the pursuant to its decision making powers. It should also be noted that submissions posted on its website may be retained on the website for any period of time at the discretion of the Authority. 3.1.2. Protection of confidential information Confidentiality issues can arise in the internal review process where the Authority is asked by the party to consider information held by it to be confidential. During the review process, the fact that a party considers information to be confidential does not exempt a party from providing that information to the Authority if that information is within the scope of the notice of grievance issued under section 27(1) of the Act. However, the Authority may not disclose information and/or documents provided to it which it has accepted on a confidential basis, except where it is of the opinion that disclosure would not cause any detriment to the information provider, or the public benefit in disclosing it outweighs the detriment to the information provider. When a party provides information to the Authority which it considers to be confidential, the process to be followed includes the following steps: •
the party making the claim for confidentiality must identify the information claimed to be confidential and the basis of the claim for confidentiality and advise whether they or any other person will suffer any detriment as a result of the information or the contents of the document being disclosed and, if so what the detriment will be; •
the Authority will make a decision as to whether the information is in fact confidential information and, if so, how such information should be made available or disclosed. 3.1.3. Conduct of the party The Authority expects that the party to an internal review process will at all times do all things required by the Authority to enable a fair determination to be made. No party should knowingly give information that is false or misleading, or produce a document that it knows is false or misleading. 3.2.
Statutory requirements for internal review The statutory framework of the Act establishes the following processes and requirements for review of certain actions by internal review. 14 | P a g e 3.2.1. Notification of a review of certain actions A utility aggrieved by any action taken pursuant to Part 3 or section 37 of the Act may, within 30 days notify the Authority in writing of the grievance (s27(1) of the Act). The notice of grievance provided to the Authority should contain: (a) a detailed description of any facts or matters supporting the grievance; and (b) copies of any documents supporting the grievance; and (c) a detailed description of any alleged error of law; and (d) a detailed description of any relevant changed facts or circumstances since the action being the subject of the notice. Appendix A sets out the Authority’s proposed ‘notice of grievance’ form to assist the utility in preparing its application for internal review. The Authority will notify the aggrieved party in writing upon receipt of the ‘notice of grievance’. If the Authority receives a notice of grievance within the time prescribed by section 27(1), it must review the merits of the grievance and may: (a) revoke the action complained of in the notice of grievance; or (b) amend or vary the action complained of in the notice of grievance; or (c) take no further action. The aggrieved party can withdraw the ‘notice of grievance’ at any time during the internal review process by notice in writing to the Authority. 3.2.2. Timeframes for reaching a decision In conducting an internal review of certain actions, the Authority is required to act as speedily as a proper consideration of the grievance allows, having regard to the need to carefully and quickly to inquire into and investigate the grievance and all matters affecting the merits and fair settlement of the grievance. In any event, under section 27(3), the Authority must decide on the grievance within 30 (calendar) days of receipt of a notification of grievance under section 27(1). The Authority notes that in certain circumstances the Authority is not required to make a decision: e.g., if a notification of grievance is withdrawn or the Authority forms the view that the notification or the subject matter of the grievance is trivial, misconceived or lacking in substance. 3.2.3. Internal review process requirements Subject to certain procedural requirements under the Act, the Authority can adopt a process that it considers will most effectively enable it to carry out its internal review process. It has general powers, for example, under section 13(1) to: 15 | P a g e “... do all things that are necessary or convenient to be done for or in connection with the performance of its functions”. The internal review process is discussed in detail in chapter 5. In summary, some of the requirements and powers of the Authority for the purpose of reviewing certain actions are as follows. Conferences: The Authority may conduct one or more conference during the review. All conferences will be conducted in private, unless the party to the grievance agree to a conference in public. Conduct of conferences: The Authority can specify where and how the conference will be held and who may attend the conference, and is required to give approval before the party may be represented by someone else at the conference. Submission of evidence: During the conference the Authority is not bound by technicalities, legal forms, or rules of evidence and may inform itself of any matter relevant to the action under review in any way it thinks appropriate. For example, the Authority may refer any matter to an expert and accept the experts report as evidence. Consultation: The Authority may consult with all relevant stakeholders in relation to certain actions prior to making its decision. 3.2.4. When a decision takes effect A decision of the Authority may operate both prospectively and retrospectively. In the event that the Authority takes the action to: (a) revoke the action complained of in the notice of grievance; or (b) amend or vary the action complained of in the notice of grievance; or (c) take no further action. the Authority must provide written reasons for its decision. In any event, the Authority’s decision takes effect from the date it is made, or from the date stated in the decision. 3.2.5. Case Management When a grievance is notified to the Authority by a party, the Authority will seek to define clearly and precisely the nature of the grievance, and each of the issues that comprise the grounds for the action. To this end, upon receipt of the notice of grievance by the Authority from the party, the Authority will normally consult with the party to ensure accuracy. Preparation of the notice of grievance will assist to crystallize the matters in dispute and reduce the likelihood of these moving and changing during the course of the internal review process. In any review process to be determined by the Authority, the decision makers are the Commissioners of the Authority. 16 | P a g e However, for most internal review actions the Authority will also establish a case management team, made up of staff of the Authority, commissioner(s) and/or expert(s). The case management team will have an appointed Project Manager, as well as a Commissioner. The Project Manager will be the point of contact at the Authority for the party to the action under review. The Project Manager will lead the case management team and be responsible for briefing the Authority’s commission, coordinating conferences and liaising with experts. The party will be promptly notified of the names and contact details of the Project Manager and Commissioner. The role of the case management team will be the process management and administration of the action, and provision of formal reports to the Authority’s commission. The Authority acknowledges that it is a fundamental requirement of the process that the party should have the right to a fair hearing, to make its case known, to be informed of the process and to have an opportunity to respond. The Authority will formulate the process to be followed during the review process in a document provided to the party, which will include the procedures for ensuring that the party is promptly informed of any subsequent changes in process. This document will also provide information in relation to: •
the decision makers and the case management team, the role of the case management team and the process of communication; •
the use of conferences, and who may represent the party in a conference; •
whether further submissions must be in writing, or will be made orally at conferences (or both); •
the use of experts; and •
the principles that the Authority will employ in relation to information exchange. The Authority will also prepare a timetable for the internal review process and decision, which will specify the dates for submissions, conferences and the decision. The Authority will work towards concluding the internal review of certain actions in accordance with the relevant timetable. 17 | P a g e 4. Preconditions for an internal review This chapter describes the preconditions for a internal review decision, including the circumstances in which the Authority is not required to make a decision, e.g., because the grievance does not constitute an action within the meaning the Act; the grievance is withdrawn; or the Authority forms the view that the grievance notified is vexatious, or else that its subject matter is trivial, misconceived or lacking in substance. 4.1.
Preliminary assessment of whether a grievance exists When the Authority receives notice of a grievance it will need to make a preliminary assessment of whether the grievance (as defined in section 27 of the Act) in fact exists. Matters to which the Authority would expect to have regard to, when making such a preliminary assessment are as follows. (a) consider whether the action taken is pursuant to Part 3 or section 37 of the Act; (b) review of any facts or matters supporting the grievance; (c) assess the information provided in any documents supporting the grievance; (d) review detail of any alleged error of law; and (e) consider any relevant changed facts or circumstances since the action being the subject of the notice 4.2.
Withdrawal of an application for review of certain actions At any time before the Authority makes its decision in relation to an internal review of certain actions, the aggrieved party can withdraw the grievance by making written request to the Authority. If the grievance is withdrawn, the Authority will write to the aggrieved party notifying it of the withdrawal and confirming that the Authority will not make a decision in relation to the grievance. The Authority will also publish a notice on its website stating that the grievance has been withdrawn. The withdrawal of a grievance does not set any precedent or have any implications for the Authority’s approach to any future grievance or judicial review process. 4.3.
When the Authority makes a decision The Authority is not required to make a determination in circumstances where the Authority considers that the notification of the grievance was ‘vexatious’ or that the subject matter of the grievance is ‘trivial, misconceived or lacking substance’. Therefore, upon receipt of ‘notice of grievance’, the Authority will make a preliminary assessment of the merits of the grievance and may revoke, amend vary or take no further actions. If the grievance is considered by the Authority to be lacking in substance, misconceived etc, it may exercise its right to revoke the action complained of in the notice of grievance and the party will be informed accordingly. 18 | P a g e The Authority would expect to have regard to the following matters, among others, when considering whether a notification of grievance was vexatious or the subject matter of the grievance is trivial, misconceived or lacking substance: •
whether the grievance is based on trifling or unimportant matters; •
whether the notice of grievance appears to have been lodged for a collateral purpose or an improper motive; •
whether there appears to be a reasonable basis for the grievance; and •
whether the request for an internal review is obviously untenable or manifestly groundless. In the event that the Authority takes the decision to amend or vary the action complained of in the notice of grievance or take no further action, the Authority will provide written reasons for its decision to the party. 19 | P a g e 5. Internal review process, structure and procedures This chapter outlines the general format for the conduct of the Authority’s internal review procedures and describes in detail the procedures that the Authority would expect the aggrieved party to follow if an action is notified to the Authority. The flowchart in Appendix D contains a summary of the key procedural steps and timeline for the internal review of certain actions notified to the Authority. In general there will be three main phases of the internal review procedure, namely: •
the preliminary phase (notification of grievance and holding initial case management meeting; •
the substantive phase (information assessment, conferences and Authority’s deliberations); and •
the decision phase (making the decision, the formal requirements of the decision). The remainder of the chapter is organised around these three main parts of the internal review process. 5.1.
Preliminary phase The Authority’s internal review process begins when an aggrieved party applies in writing to have the Authority review and decide on a grievance in relation to a certain action. For the purposes of this Guideline, the notice of grievance is described as an ‘application’. 5.1.1. How an application should be made to the Authority As the Authority will need to understand the nature of the grievance before it commences to determine the action, applications for the Authority to decide will need to include: •
an accurate and detailed description of any facts or matters supporting the grievance; •
copies of all the information and documents relevant to the grievance; •
a detailed description of any alleged error of law; and •
an accurate and detailed description of any relevant changed facts or circumstances since the action being the subject of the application. This Guideline provides information on how applications should be notified to the Authority. At the outset, it should be noted that the Authority considers it important that the party should properly consider the matters in dispute before an application is lodged and pay careful attention to the preparation of the application (including where appropriate seeking professional advice). In order for the Authority to be able to review the grievance quickly and efficiently, it is important that the issues in dispute are well defined in the application and that all relevant information is provided with the application. The party should be aware that the application lodged with the Authority will be used to define the dispute and the matters upon which the Authority will make a decision. The application will be made 20 | P a g e publically available, subject to maintaining the appropriate confidentiality in relation to the party’s confidential information. So that the Authority can conduct the review process within the prescribed timeframe, the Authority may not be able to have regard to matters that are not addressed in the application; particularly in circumstances where such matters could properly have been raised at the time the application was lodged. The Authority also expects that the aggrieved party will provide all the information and documents in its possession that are relevant to the review at the time of making the application. The form of application is described in 5.1.2. 5.1.2. Form of application In light of the limited time within which the Authority must make a decision, it is suggested that the aggrieved party should make their application in writing by way of a standard form. This is intended to enable the Authority to focus on the principal area of grievance and to assist the party to include the necessary information for the Authority to promptly commence the review process. The Application Form is set out in Appendix A to this Guideline. It is not compulsory to issue a ‘notice of grievance’ using the Application Form. However, applications that do not include all the necessary information may cause a delay in the internal review process. The Authority notes that this would not generally be in the interests of the aggrieved party. Grievances about decisions in relation to the Authority’s functions and powers Information that should accompany a notice of grievance of a decision made by the Authority in relation to its functions or powers should include: (a) a copy of the relevant contracts, agreements and specifications; (b) details of breaches; (c) detriment to the party or others; and (d) any other relevant correspondence. Grievances about safety standards, safety orders, safety inspections and reliability standards Information that should accompany a notice of grievance of a decision made by the Authority in relation to safety or reliability standards should include: (a) a copy of the relevant decision, safety or reliability standard; (b) expert reports or findings supporting the grievance; (c) proof of any variation of assumptions or facts used by the Authority to set the standard (costs, volumes, productivity); (d) detriment to the party or others; and (e) any other relevant correspondence. 21 | P a g e Grievances about pricing principles, complaint resolution and contract administration Information that should accompany a notice of grievance about pricing principles, complaint resolution and contract administration should include: (a) a copy of the relevant decision; (b) expert reports or findings supporting the grievance; (c) proof of any variation of assumptions or facts used by the Authority to set the tariff (costs, volumes, productivity); (d) detriment to the party or others; and (e) any other relevant correspondence. Grievances about consultation functions of the Authority Information that should accompany a notice of grievance about consultation functions of the authority should include: (a) a copy of the relevant contracts, agreements and specifications; (b) details of grievance or action; (c) detriment to the party or others; and (d) any other relevant material. 5.1.3. Notification to parties aggrieved The Authority expects that the notice of grievance lodged for internal review, will contain all the required information, documents and supporting material to assist the Authority in its decision. The Authority will confirm with the aggrieved party that it has all the documents provided to the Authority. The Authority notes that in any event the Authority will notify the party of the relevant material. If any further clarifications are required by the Authority as to the substance of the action, the Authority will provide a request for clarification to the party aggrieved. As soon as practicable after receiving a notice of grievance and assessing the application, the Authority will announce on its website that it has received a notice of grievance. The announcement will include a summary statement of the substance of the grievance prepared by the Authority on the basis of the application. 5.1.4. Preliminary case management step The establishment of a case management team made up of Authority staff and commissioner to manage the process and administration of the grievance has been discussed in section 3.2.5. 22 | P a g e During the preliminary phase the Authority will endeavour to ensure that the issues in dispute are identified as early as possible with as great a degree of clarity as possible. The Authority’s approach following receipt of a notice of grievance has also been described in sections 3.2.5 and 5.1.3. The Authority will inform the party at the outset of the Authority’s proposed process for reviewing the action, and notify the party promptly of any changes in the process. For the purpose of facilitating the internal review process, the Authority may issue instructions to the party as to: •
the broad procedures to be followed in the conduct of the review; •
the timetable of steps in the review process, including timetable for exchange of information, submissions and expert reports; •
the timetable for any conferences; and •
any other matters raised by the party or the Authority to expedite the review process. 5.1.5. Exchange of information, access to information and confidentiality This section sets out the Authority’s processes for managing the provision and flow of information between the party and the Authority. The information exchange process is a crucial factor in an internal review process. Delays may occur if parties seek an unnecessarily large amount of information that is in excess of that reasonably required or relevant to reviewing and resolving the grievance. The short statutory timeframe for the Authority to review and decide the action makes it all the more important that the matters in dispute, and the factual information that must serve the basis for resolving the grievance are clearly identified in the early stage of the process. For this reason the Authority will adopt a proactive role in defining the information provided to it. To this end, it will: •
seek the party to define clearly the issues of the grievance at the outset; •
seek the party to list documents and information to be referenced to the issue to which they relate; •
assess whether information is relevant to the Authority’s task of deciding the review; •
assess any claims for confidentiality in light of the general approach to information disclosure; and •
establish the specific arrangements to protect confidential information. There may also be other information that the Authority proposes to use. To the extent that the Authority intends to draw upon or rely on any information not provided by the party, the Authority will make this information available to the party. 23 | P a g e The Authority has general powers to obtain information for the purposes of performing its functions under Part 3 of the Act. Section 13 provides that the Authority may require a utility to furnish information or a copy of the documents. If the Authority wishes to exercise this power, it will issue a written notice to the party specifying: •
the information or document required; •
the period of time within which the requirement must be complied with; •
the form in which the information or copy of the document is to be given to the Authority; and •
that the requirement is made under section 13 of the Act. However, the Authority notes that these general powers may be less than fully effective within the timeframe requirements of the internal review process. The Authority can also undertake investigations to inform itself more adequately about the information pertaining to the grievance. This includes the commissioning and consideration of independent expert reports. This is discussed in section 5.1.7. 5.1.6. Conferences Given the tight timeframe for making an internal review decision, the Authority considers that an important part of the internal review process will be to use conferences for resolving the grievance. Conference(s) have the general purpose of clarifying and prioritising the issues, and are used as a case management tool to monitor the progress of the review and to keep the process moving forward. The Authority’s view is that conference(s) will generally be used as a case management tool to monitor and manage the progress of the review and to enable the Authority in the very early stages of the review process to: •
identify the key issues of the action; •
identify the relevant documents and information provided by the party and the Authority to progress the review; and •
identify the types of expertise that may be required or useful for the purposes of making a decision. 5.1.7. Use of experts The Authority may refer any matter to an expert and accept the expert’s report as evidence. The Authority expects to use experts provide formal reports on a specific issue where the Authority considers that independent, technical expertise is required. Given the time constraints for internal review under the Act, there may be practical limitations to seeking formal reports from experts. When using experts, the Authority will ensure that appropriate confidentiality procedures and requirements are maintained. 24 | P a g e 5.2.
Authority’s decision The Authority must make a decision in relation to a action notified to it (s27) unless the grievance is withdrawn or the Authority assesses that the notification is vexatious, or that its subject matter is trivial. Misconceived or lacking substance. The Act contains relatively detailed provisions with respect to the content of the action and internal review decision. If the Authority receives a notice of grievance form a party, within the prescribed time, the Authority must review the merits of the grievance and may: (a) revoke the action complained of in the notice of grievance; or (b) amend or vary the action complained of in the notice of grievance; or (c) take no further action. If upon review, the Authority is satisfied of any of the matter described in section 28(a) to (c) the Authority must provide written reasons for its action. For the purposes of making the decision, the Authority must consider: (a) the cost and inconvenience of compliance with any standard is not reasonably proportionate to the issue it addresses; and (b) a price determined pursuant to section 18 (of the Act) will produce less income for the utility than the cost to the utility of providing the regulated service in the place to which it relates; and (c) a price determined pursuant to section 18 does not enable the utility to realise a reasonable profit on the regulated service to which it relates. The Authority will provide a copy of its decision to the aggrieved party. As noted earlier, when the Authority makes a decision, it will include a statement of the purpose and reasons for its decision. The Authority will publish its decision on its website and in a daily newspaper generally circulating within Vanuatu. The notice must include a brief description of the nature and effect of the internal review decision, details of when the decision takes effect and how a copy of the decision can be obtained from the Authority. If the decision contains any confidential information, then those parts of the decision containing the confidential information will be masked or removed in the public version of the Authority’s decision and the original version will only be made available to the party to the review. 25 | P a g e 5.3.
Appeals A party who is dissatisfied by the internal review process decision of the Authority may in addition to any other rights, apply to the Supreme Court for judicial review upon one or more of the following grounds as to which the onus of proof is upon the applicant: (d) the cost and inconvenience of compliance with any standard is not reasonably proportionate to the issue it addresses; and (e) a price determined pursuant to section 18 (of the Act) will produce less income for the utility than the cost to the utility of providing the regulated service in the place to which it relates; and (f) a price determined pursuant to section 18 does not enable the utility to realise a reasonable profit on the regulated service to which it relates. 5.4.
Costs Under section 29 (b) of the Act the Authority may only recover costs in respect of proceedings under Part 4. 26 | P a g e Appendix A: Notice of grievance NOTICE OF GRIEVANCE Company:_______________________________________ Contact person:___________________________________ Title:________________________ Address:________________________________________________ ___________________________________________________________ Phone: _______________________________________ Fax:________________________________ E­mail: _____________________________________________________________________________ Submission date: ________/________/_______________ 1) Type of Dispute: o
Over functions and powers of the Authority o
Over Safety and reliability standards o
Over Pricing, complaint resolution and contract administration o
Over consultation 2) Relevant legislative provisions: _______________________________________________ __________________________________________________________________________________________
__________________________________________________________________________________________
Size is not indicative
__________________________________________________________________________________________
__________________________________________________________________________________________ 3) Description of grievance:________________________________________________________ __________________________________________________________________________________________
__________________________________________________________________________________________
Size is not indicative
__________________________________________________________________________________________
__________________________________________________________________________________________ 27 | P a g e 4) “Statement of the substance of the grievance”, description of the relevant facts/circumstances change since the decision/actions:___________ __________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
Size is not indicative
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________ 5) List of any relevant documents supporting the grievance: 1) _______________________________________________________ 2) _______________________________________________________ 3) _______________________________________________________ Number is not indicative
4) _______________________________________________________ 5) _______________________________________________________ Person notifying the dispute: Name:_____________________________________________________________ Signature:_____________________ Title:__________________________________Date:_______________________ Utilities Regulatory Authority of Vanuatu You can access documents related to Electricity and Water Services Regulation on our website www.ura.gov.vu, contact us by telephone (+678) 29 795, fax (+678) 23 521, write at Utilities Regulatory Authority, PMB 9093, Port Vila, Vanuatu, or visit our office in the ground floor of the VNPF building. 28 | P a g e Appendix B: Confidential information policy Confidential Information Policy Principles The Utilities Regulatory Authority places a strong emphasis on the openness and transparency of its regulatory decisions. An important feature of its processes is accessibility to as much information as possible by the Commissioners, the public and business. The Authority also recognizes the importance of protecting information of a confidential and commercially sensitive nature and is committed to protecting such information consistent with the principles set out in relevant legislation, including the Utilities Regulatory Authority Act No. 11 of 2007. This policy applies to all confidential and commercially sensitive information collected by the Authority through submissions or obtained under legislation and concession agreements. Use and disclosure of business, commercial or financial information received by the Authority through voluntary submissions Any submission made by you may include information of a business, commercial or financial nature. The Authority’s policy is to publish all submissions on the Authority’s Website. If you do not want information you have provided published because it is confidential or commercially sensitive, you should advise the Authority which information you do not want published and why you do not want it published when you make your submission. If the Authority accepts that the information received from you is confidential or commercially sensitive and proposes to release that information, the Authority will contact you prior to the release of such information to discuss the proposed release with you so that your reasons for not wanting release can be taken into account. Such information will not be released without your permission unless allowed by law. Please note, if the Authority is restricted from being able to use such information in a report or finding, then the Authority may not be able to take that information into account. Collection, use and disclosure of business, commercial or financial information through legislation and concession agreements Where the Authority requests you to provide information of a business, commercial or financial nature, it is your responsibility to advise the Authority which information you do not want published and the reason you do not want it published. 29 | P a g e As a general rule, legislation requires that information requested by the Authority which is provided on the basis it is confidential and commercially sensitive nature should be treated as such. That legislation also sets out restrictions on the Authority’s capacity to disclose such information. If the Authority proposed to release, confidential or commercially sensitive information received from you, such information will not be released without your permission unless allowed by law. This policy is subject to any specific provisions about business, commercial or financial information that may be contained in other sections of the Authority’s website.
30 | P a g e Appendix C: Example of conflict of interest statement Conflict of Interest Form Declaration of Conflict of Interest Consultancy Services concerning Internal Review Actions and Regulatory Arrangements I, [name of team member] as a member of the Internal Review Team for the Consultancy Services concerning Internal Review Actions and Regulatory Arrangements in Vanuatu, am fully aware of my obligations under the Utilities Regulatory Authority Act No 11 of 2007, to avoid all conflicts of interest in carrying out my duties, and to disclose any potential conflict of interest if they emerge in the course of my office duties. I currently have the following conflicts in relation to this action: 1. NIL [name of member] [title of member] 31 | P a g e Appendix D: Flow chart 32 | P a g e ­­­­­­­­­­­­­­­­­­­­­­­­­ Left blank intentionally ­­­­­­­­­­­­­­­­­­­­­­­­­ Utilities Regulatory Authority of Vanuatu You can access documents related to Electricity Regulation on our website www.ura.gov.vu, contact us by telephone (+678) 29 795, fax (+678) 23 521, write at Utilities Regulatory Authority, PMB 9093, Port Vila, Vanuatu, or visit our office in the ground floor of the VNPF building. 33 | P a g e