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BFCSA: ASIC questions Westpac over uncalled witnesses in superannuation court case

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ASIC questions Westpac over uncalled witnesses in superannuation court case

Australian Financial Review Mar 8 2018 11:00 PM

Misa Han


The corporate regulator has questioned Westpac's decision not to call three of its sales call centre employees as witnesses in court proceedings and said the staff misunderstood their obligations about not giving personal advice to customers.

Australian Securities and Investments Commission and Westpac are in court over the bank's "super activation campaign", where the bank contacted its existing BT super customers offering to roll over their super from other accounts.

ASIC alleges the campaign amounted to giving personal financial product advice in breach of the Future of Financial Advice laws, and many BT customers lost the opportunity to receive proper financial advice about insurance, super fees and performance as a result.

Westpac denies this, saying there was "nothing intrinsically wrong" with trying to get people to consolidate their super and the obligations under the Future of Financial Advice laws did not apply because it was not giving any personal advice.

'Gloss of the legislation'

In its submission to the Federal Court, ASIC's barristers James Renwick, SC, and Matthew Kalyk said the fact Westpac did not call three of its call-centre employees suggests calling them would not have helped Westpac's case.

During the five-day hearing in February, Westpac called four witnesses: three call-centre employees and one sales coach.

The corporate regulator said the staff members' understanding of personal advice was "not in line with the way they were trained at their induction" but rather in line with the "gloss of the legislation" set out in the company's internal framework and by their sales coach.

Under the Future of Financial Advice laws, there are strict requirements for anyone giving personal advice to customers, including a duty to act in customers' best interests.

No adequate explanations

"They considered that they could sell a benefit of a product provided they used the word 'potentially'. They considered they could use the 'social proofing' method," ASIC's barristers said.

The "social proofing" involved asking the customer why they want to consolidate their super, and responding with: "Many of our customers say the same thing."

"They considered that they had to give a form of general advice warning and could make no explicit recommendation, but could otherwise seek to persuade a customer to roll over their external accounts," ASIC says.

It is ASIC's case the call-centre staff did not know whether it was in the customers' interests to roll over their super balance to Westpac.

ASIC says calling the witnesses would not have assisted Westpac's case, and Westpac has not given adequate explanations for not calling the three witnesses.


Westpac had explained one witness could not be called because the witness's participation has been "an ongoing source of stress and anxiety and detrimental to her health".

Noting the absence of a doctor's certificate, ASIC said there was no proof she has even been to see a doctor.

"As far as the evidence goes, the witness has self-diagnosed."

The bank's super activation campaign was very successful, with more than 30,000 customers consolidating their super into BT between 2013 and 2016.

Justice Jacqueline Gleeson is expected to deliver judgment at a later date.



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