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FAIS 2010 Presentation - Associated Compliance · FAIS 2010 Training Presentation . ... •...

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FAIS 2010 Training Presentation
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Page 1: FAIS 2010 Presentation - Associated Compliance · FAIS 2010 Training Presentation . ... • Financial advisors ... Recommendation, guidance or proposal of a financial nature -

FAIS 2010 Training Presentation

Page 2: FAIS 2010 Presentation - Associated Compliance · FAIS 2010 Training Presentation . ... • Financial advisors ... Recommendation, guidance or proposal of a financial nature -

INDEX

THE AIM AND PURPOSE OF FAIS

FINANCIAL ADVISORY AND INTERMEDIARY SERVICES

1. Describing words

1.1 Advisory 1.2 Intermediary

2. Definitions 2.1 Advice

2.2 Client

3. Financial Service Provider

3.1 Intermediary Services

Fais Fit & Proper Requirements

4. Key Individual 5. Representative and Representatives under supervision

6. Supervision

7. Who are the different role-players in the legislation

7.1 Financial Services Board 8. What are the Functions of the role-players?

8.1 Financial Services Board

8.2 Financial Services Provider 8.3 Key Individuals

8.4 Representatives

8.5 Compliance Officer 8.6 Auditor

8.7 Support Staff

9. Protection That the FAIS Legislation Gives Clients 10. The role of the Ombud in terms of the role in supporting Fais

10.1 Definitions

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THE AIM AND PURPOSE OF FAIS

WHO IS PROTECTED BY FAIS WHY DID THEY NEED PROTECTION

Consumers

By financial advisors who will indirectly protect consumers by:

• Keeping records

• Complaint practices

• Keeping within the law as to who can advise

• Licensed advisors against bad advice

• Have access to the ombud for complaints

• Freedom of choice

• Unscrupulous advisors

• Unregulated industry to a large extent which let do abuse by various parties

• Illiterate and gullible clients

• Industry which is production driven- with little or no focus on ethics, and value to the client

WHO HAS TO ABIDE BY THE RULES OF FAIS

HOW WILL CONSUMERS BE PROTECTED

• Financial advisors

• Representatives

• Employees of financial service providers

• Compliance officers

• Auditors of financial services providers

Advisors representatives will have to be licensed and comply with the Act in as much as they

• Are fully competent

according to the “FIT AND PROPER” and have the right knowledge and skills

• They are registered as a representative

• Fully trained

• Honesty

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• Integrity

• Access to legal redress in the case of a complaint

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FINACIAL ADVISORY AND INTERMEDIARY SERVICES ACT

1. DESCRIBING WORDS

1.1 ADVISORY

• Empowered to make recommendations

• An advisory body

• Consultative

• Counseling

• Helping

• Recommending

1.2 INTERMEDIARY

• A person who acts as an agent between parties

• Agent

• Broker

• Entrepreneur

• Go-between

• Mediator

• Middleman

FAIS ACT 5 2010

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2. DEFINITIONS

2.1 ADVICE

Recommendation, guidance or proposal of a financial nature -

furnished by any means or medium, to any clients or groups of

clients

• buying the financial product

• or investing in a financial product

• on the conclusion of any other transaction including a

loan or cession aimed at incurring any liability

• on replacement

• is given in the course of or incidental to financial

planning in connection with the affairs of the client

• Results in any such purchase, investment, transaction,

variation, replacement or termination, as the case may be

2.2 CLIENT

Means a specific person or group of persons, excluding the

general public, who is or may become the subject, to whom a

financial service is rendered intentionally, or is the successor in

title of such person or the beneficiary of such service.

3. FINANCIAL SERVICES PROVIDER

Means any person other than a representative who as a regular

feature of the business of such person

FAIS ACT 6 2010

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• FURNISHES ADVICE OR

• FURNISHES ADVICE AND RENDERS ANY

INTERMEDIARY SERVICE OR

• JUST RENDERS AND INTERMEDIARY SERVICE

3.1 INTERMEDIARY SERVICES

• Any act other than the furnishing of advice performed by a

person for or on behalf of a client of product supplier

• The result of which the client may enter into or OFFERS to

enter into with a view to

a) Buying

b) Selling

c) Otherwise dealing in a financial product

d) Managing

e) Administering

f) Keeping in safe custody

g) Maintaining or servicing

h) Collecting or accounting for premiums or other

i) Moneys

j) Receiving submitting or submitting or processing the

k) Claims of a client against a product supplier

FAIS FIT AND PROPER REQUIREMENTS

See table at end of manual

FAIS ACT 7 2010

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4. KEY INDIVIDUAL

An authorized financial services provider or a representative carrying on business as

• A corporate or unincorporated body

• Trust

• Partnership (any natural person responsible for managing or overseeing, either alone or together with other responsible persons)

5. REPRESENTATIVE and REPRESENTATIVES UNDER SUPERVISION

Any person who renders a financial service to a client for or on behalf of a financial services provider, in terms of conditions of employment or any other mandatory agreement

Advices do not include:

• advice on the procedure for entering into a transaction

• in relation to the description

• in answer to routine admin queries

• in the form of objective information about a particular product

• the display or distribution of promotional material

• an analysis or report on a financial product without any

• express or implied recommendation, guidance or proposal

Representatives under supervision

The Act demands that an FSP only appoint representatives that are

fully compliant from an experience and qualification perspective. This

is clearly not practical and an exemption exists that allows

representatives to work under supervision of one or more key

FAIS ACT 8 2010

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individuals or suitably qualified representatives until such time as the

incoming representative has;

• Completed the minimum experience requirements as per the

attached Table A,

AND

• Completed the required qualification (OR credit levels for

representatives appointed for the 1st time during 2008 or 2009)

AND

• Completed ALL the required Regulatory exams – levels 1 and 2

This supervision process cannot exceed a period of 6 years from the

date first appointed as a representative.

What must the supervised representative do?

i) Before any financial service is rendered a client must be informed that the representative is working under supervision In a direct marketing situation this would be at the start of a call and in others this detail could be provided verbally or by the presentation of the issued mandate letter. (A degree of practicality is required here and not all interactions need be preceded with a statement to this effect. Generally those likely to result in a sale, cancellation or amendment to a financial product should have the required information supplied)

Supervision agreement

A supervision agreement will form part of the employer's performance

management processes and/or employment contract, and details the

procedures regarding the rendering of services under supervision.

NB 1: Supervision can apply to key individuals who are also acting as

representatives.

FAIS ACT 9 2010

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NB 2: Qualifications and Regulatory exams need not be done under

supervision for any representative appointed during 2008 or 2009 that

have completed their minimum experience requirement by 31/12/2009

It must be noted that, we are obliged to:

• indicate on the representative register whether the

representative is acting under supervision, and

• differentiate on the representative register between

representatives that are acting under supervision and those that

meet all the requirements and are not acting under supervision.

• Issue a representative mandate letter that signifies their

supervision status.

Objective of the supervision period At the end of the supervision period the supervisee will have completed his/her minimum experience requirements and their appropriate qualification (where applicable) and should be thoroughly versed in the manner and form by which financial services, as envisaged in terms of the Financial and Advisory & Intermediary Services Act “FAIS”, are rendered in respect of the product categories of financial products detailed above.

Supervisor rules

Selection of the supervisor:

The financial services provider must ensure that the normal working

relationship between the supervisee and supervisor allows the

supervisor oversight of the activities performed by the supervisee as

per agreement, and that there is regular contact that enables the

transfer of skills, which may include face-to-face and/or contact via

electronic means, between the supervisee and supervisor in the

FAIS ACT 10 2010

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execution of their duties.

Ideally a supervisor must have completed and meet the relevant requirements regarding experience and qualification and at least the first level regulatory examination in relation to the specific Categories or subcategories before the supervisor is allowed to act as a supervisor for a specific Category or subcategory however Supervisors that were acting as supervisors prior to 31 December 2010 can continue acting as supervisors in terms of the transitional arrangements in the relevant Board Notice 104.

Duties of the Supervisors:

• ensure that supervisees are supervised at all times when

executing their duties in terms of the supervisory arrangement;

• ensure that the supervisee has a good understanding of and

exposure to the Categories and/or subcategories in which he or

she is providing financial services;

• observe selected meetings between the supervisee and

customers, the frequency of which may vary according to the

complexity of the service that is provided; and/or the complexity

of the products offered; and/or the experience of the supervisee;

and/or the qualifications of the supervisee;

• ensure that the supervisor is able to provide properly

documented evidence of the supervision actions undertaken,

including methodology and frequency, and such evidence must

be available for scrutiny by the Registrar (see Checklist of

Supervisor annexure as a guide);

• assess the advice given by the supervisee for appropriateness

based on a review of the analysis conducted and the record of

the advice as provided for in terms of the General Code of

Conduct, and ensure that the FSP takes the necessary action to

protect the client where it is found that the supervisee's actions

may not have been in the interest of the client; and

• Supervisees are expected to obtain experience across the

FAIS ACT 11 2010

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subcategories in respect of which they are appointed as a

representative.

Should this prove to be problematic during the minimum period

under supervision due to business reasons, the financial

services provider/supervisor should make arrangements to

either

-place the supervisee in a position where he or she can

gain experience in the specific subcategory; or

- extend the period under supervision to ensure that the

supervisee receives sufficient exposure to the specific

subcategory, provided that the maximum period under

supervision of six (6) years is not exceeded.

Supervisee rules

The following rules apply to the period a representative acts under

supervision:

1. The supervision period is linked to the Category or subcategory

i.e.the relevant minimum and maximum periods commence on

the date the representative is appointed to render services in

relation to the specific Category or subcategory

2. The maximum period any representative can act under

supervision in any Category or subcategory, is six (6) years from

date of first appointment as a representative;

3. Representatives who give advice and/or render intermediary

services in respect of multiple Categories or subcategories can

gain the experience at the same time, and will remain under

supervision until the experience requirements for the most

onerous Category or subcategory is met;

4. Any significant interruption during six (6) consecutive weeks (or

longer) e.g. maternity leave, prolonged illness, while gaining

experience must be compensated for by arranging for an

additional period under supervision, equal to the period

interrupted.

FAIS ACT 12 2010

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5. The supervisee must have properly documented evidence of the

supervision, the method followed and frequency thereof that

took place during the period under supervision.

In addition the Supervisees must:

• adhere to the requirements of this supervision contract;

• provide the supervisor upon request, where applicable, with any

records and or documents regarding the advice given and/or

intermediary services rendered;

• disclose to clients that he or she is acting under supervision;

• actively pursue the completion of the required qualifying criteria

within the prescribed time limits;

• undertake the relevant product training;

• request guidance from the supervisor if in doubt when

performing any duties in relation to the supervision contract;

• perform the tasks and adhere to the mandates detailed in

Annexure B: Formalised Procedures and Mandates; and

• follow the procedures for providing advise and intermediary

services as supplied by the employer and/or supervisor on

which the performance reviews will be based.

How is supervision to be carried out?

There are two specific types of supervision;

1. Direct Supervision – this is the MINIMUM supervision standards

that are applied during the first months of supervision. This

supervision must take place at least weekly but could as much

as daily – it is for the supervisor to set the required standards,

As can be expected this level of supervision is far more intense

given that the representative will be new to the job. The time

periods during which direct supervision must take place differ

from one licence category to another. See Table B

2. Ongoing supervision – after the initial Direct supervision period

FAIS ACT 13 2010

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the balance of the overall supervision period must be conducted

under a supervision program that has actual supervision taking

place at least on a bi monthly – monthly basis.

It should be remembered that these are minimum standards and each

representative and/or task may demand higher standards or time

frames being applied.

Supervision may include one or more of the following activities:

• Sign-off by a supervisor on the advice given to a client;

• Pre-transaction sign-off by a supervisor where intermediary

services are rendered;

• Attending meetings with supervisee and clients where the

purpose of the meeting is the rendering of financial services;

• Appropriate post transaction sampling;

• Follow-up calls to clients after the rendering of financial services

by the supervisee to confirm certain aspects of the interaction

with the client;

• any other activity that enables the supervisor to scrutinise the

activities of the supervisee in respect of rendering of financial

services.

As previously stated both the supervisor and supervisee must have properly documented evidence of the supervision, the method followed and frequency thereof that took place during the period under supervision.

Period of supervision

Minimum period is 12 months

o on completion of the experience period required in terms

of the category of license and completion of the

qualification requirements determined in the Fit and

Proper requirements in the FAIS Act 2002 whichever

occurs last; or

o on an earlier date if:

‐ the supervisee fails to achieve the requirements in 5.1

FAIS ACT 14 2010

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within a period of 6 years;

‐ the supervisee is fairly dismissed by the employer for a

reason related to the supervisee’s conduct or capacity

as an employee.

‐ the employer and supervisee agree to terminate the

agreement.

See attached agreement and formal documentation.

FAIS ACT 15 2010

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16

7. WHO ARE THE DIFFERENT ROLE PLAYERS IN THE LEGISLATION

FINANCIAL SERVICES BOARD

RECOGNISED

BODY

KEY

INDIVIDUALS

FINANCIAL

SERVICES

PROVIDER

EXTERNAL

AUDITOR

COMPLIANCE

OFFICER

REPRESENTATIVES

(advice givers)

Support staff

(non Advice-giving staff) FAIS ACT 2010

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8. WHAT ARE THE FUNCTIONS OF THE ROLE-PLAYERS?

8.1 FINANCIAL SERVICES BOARD

This is the regulatory body for the financial services industry

and is the body, which will be issuing licenses to authorised

FSP's.

8.2 FINANCIAL SERVICES PROVIDER

This is an entity/person which is involved either in:

The rendering of advice; or the rendering of an intermediary

service; or both. This could be an entity such as a large

corporate that is also a product supplier or even an

independent brokerage that operates as an SMME (Small,

medium, micro enterprise.)

8.3 KEY INDIVIDUALS

These are natural persons within the FSP who are either

managing or overseeing the activities of the FSP relating to

financial services (for example a manager of a distribution unit

in an FSP)

8.4 REPRESENTATIVES

These are the persons who give financial advice to clients

e.g. Finance and Insurance Provider

FAIS ACT 17 2010

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8.5 COMPLIANCE OFFICER

This is the person who embeds compliance within the FSP

and reports to the FSB on compliance issues within the FSP.

Can be an internal person or outsourced.

8.6 AUDITOR

This is the person responsible for the financial statements of

the FSP and who submits reports to the FSB on the financial

state of the FSP.

8.7 SUPPORT STAFF

These are the staffs that support the function of the sales staff

such as the administrative functions of a FSP, for example a

secretary. These are not advice staff giving.

In addition to the Act are the pieces of SUBORDINATE

LEGISLATION which support the requirements of the Act. Here is a

depiction of the Act with some of the pieces of subordinate legislation:

FAIS

1. GENERAL CODE OF CONDUCT for authorized FSP’S

and representatives

2. Determination of Procedure for APPROVAL OF KEY

INDIVIDUALS

3. Financial advisory and intermediary services

REGULATIONS

FAIS ACT 18 2010

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4. Determination of FEES PAYABLE to the Registrar of

FSP’S

5. Determination of FUNCTIONS TO BE PERFORMED BY

RECOGNISED REPRESENTATIVE BODIES

6. Rules on proceedings of the OFFICE OF THE OMBUD for

FSP’S

7. Determination of COMPLIANCE REPORTS BY

COMPLIANCE OFFICERS AND AUTHORISED FSP’S

8. Determination of FIT AND PROPER REQUIREMENTS for

FSP’S

9. QUALIFICATIONS AND EXPERIENCE OF COMPLIANCE

OFFICERS in respect of Financial Services Business

10. Determination of form and manner of REPORT OF

EXTERNAL AUDITOR of authorized FSP’S on money and

assets held on behalf of clients

9. PROTECTION THAT THE FAIS LEGISLATION GIVES CLIENTS

The Act lays down standards for market conduct of both

Providers and representatives – the full focus is on the

client – from the right of the consumer to be treated fairly,

full disclosure of relevant information and the responsibility

of industry to display professionalism and put client’s

needs before their own.

The Code of Conduct combined with the Consumer

Education drive should result in consumers becoming

FAIS ACT 19 2010

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better advised and equipped to make intelligent, informed

financial decisions.

The following extract for the General Code of Conduct is

an example which illustrates the care and protection

afforded to clients by the FAIS legislation.

PART V - CONTACTING OF CLIENT

6. A provider must-

(a) in making contact arrangements, and in all

communications and dealings with a client, act

honourably, professionally and with due regard to

the convenience of the client; and

(b) at the commencement of any contact, visit or call

initiated by the provider, explain the purpose

thereof and at the earliest opportunity, provide the

information referred to in section 5

There are two main pieces of protection afforded to clients:

1. The Ombud’s office, and 2. The authority given to the Registrar to apply for

interdicts and institute class actions* against offenders

*This refers to actions which are instituted by groups of people against a perpetrator. For example, a class action in this context could be a group of individuals suing a representative for misrepresenting the features of a product.

10. THE ROLE OF THE OMBUD IN TERMS OF THE ROLE IN SUPPORTING FAIS

FAIS ACT 20 2010

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10.1 DEFINITION

In terms of the Act:

“Ombud” means-

(a) the Ombud for Financial Services Providers

appointed in terms of section 21(1); and 20

(b) for the purposes of sections 27, 28, 31, and 39,

includes a deputy Ombud

Section 20 of FAIS Act introduces the Ombud’s office and its

functions and objectives:

Ombud for Financial Services Providers

Office of Ombud for Financial Services Providers

20. (1) There is an office to be known as the Office of the

Ombud for Financial Services Providers

(2) The functions of the Office are performed by the

Ombud for Financial Services Providers

(3) The objective of the Ombud is to consider and

dispose of complaints in a procedurally fair,

informal, economical and expeditious manner and

by reference to what is equitable in all the

circumstances

FAIS ACT 21 2010

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(a) the contractual arrangement or other legal

relationship between the complainant and

any other party to the complaint; and

(b) the provisions of this Act

(4) When dealing with complaints in terms of sections

27 and 28 the Ombud is independent and must be

impartial

FAIS ACT 22 2010

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Category 2 – Short term insurance

Key Individuals

2004 - 2007

2008

Approved in 2009 First Time Approvals in

2010 First Time Approvals in

2011

1.Entry Level Requirements

Will have already

qualified

Will have already

qualified

Matric or Equivalent

Matric or Equivalent

Matric or Equivalent

2.Entry Level Experience

Requirements

Will have already

qualified

Will have already

qualified

As per supervisory

requirements.

Generally 12

As per supervisory

requirements.

As per supervisory

requirements.

3.Recognised Qualification

Not required only

minimum credits

(30/60) @ NQF level

by 31.12.2009

Not required only

minimum credits

(30/60) @ NQF

level by 31.12.2009

Completed by

31.12.2013

Approved qualification

prior to approval as KI

Approved qualification

prior to approval as KI

4.Regulatoty Examination

level 1 (RE 1)

By 31.12.2011

By 31.12.2011

By 31.12.2011

By 31.12.2012

Prior to approval as KI

5.Regulatoty Examination

level 2 (RE 2)

Not required UNLESS

you are a sole

proprietor

Not required

UNLESS you are a

sole proprietor

Not required unless you

are a sole proprietor, in

which case, to be

completed 31.12.2013

Not required unless you

are a sole proprietor, in

which case, to be

completed 31.12.2014

Not required unless you

are a sole proprietor, in

which case, needed within

6 years of authorisation

6.Continuous Professional

Development (CPD)

Specified number of

hours - as per table D -

over a 3 year period

once RE1 completed

and every 3 years

thereafter

Specified number of hours - as per table

D - over a 3 year

period once RE1

completed and

every 3 years

thereafter

Specified number of

hours - as per table D -

over a 3 year period

once RE1 completed

and every 3 years

thereafter

Specified number of hours

- as per table D - over a 3

year period once RE1

completed and every 3

years thereafter

Specified number of hours

- as per table D - over a 3

year period once RE1

completed and every 3

years thereafter

FAIS ACT 23 2010

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Representatives

2004 - 2007

2008

2009

Appointed in & after 2010

1.Entry Level Requirements

Will have already qualified

Will have already qualified

Matric or Equivalent

Matric or Equivalent

2.Experience Requirements

Will have already qualified

Will have already qualified

subject to the balance of any

supervision rules

Generally 12 months

Generally 12 months

3.Recognised Qualification

Not required subject to

achieving 30/60 credits by

31.12.2009

Must complete qualification by

31.12.2013 OR obtain credits 30/60 @ NQF level by

31.12.2011

Must complete qualification by

31.12.2013

Full qualification within 6 years

of appointment although time

should be allowed to complete

RE2 after completion

4.Regulatoty Examination level

1 (RE 1)

By 31.12.2011

By 31.12.2011

By 31.12.2011

Within 2 years of appointment

5.Regulatoty Examination level

2 (RE 2)

By 31.12.2013

By 31.12.2013

By 31.12.2013

Within 6 years of appointment -

generally expected to be

completed after qualification

6.Continuous Professional

Development (CPD)

Specified number of hours - as

per table D - over a 3 year

period once RE2 completed and

every 3 years thereafter

Specified number of hours - as

per table D - over a 3 year

period once RE2 completed and

every 3 years thereafter

Specified number of hours - as

per table D - over a 3 year

period once RE2 completed and

every 3 years thereafter

Specified number of hours - as

per table D - over a 3 year

period once RE2 completed and

every 3 years thereafter

FAIS ACT 24 2010


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