Amendments to the Malaysian Aviation Consumer Code Protection Code 2016

The Malaysian Aviation Consumer Protection Code 2016 (‘Code’) came into operation on 1 July 2016, introducing some statutory safeguards which are specifically tailored to consumers of aviation services.
 
In February 2018, the Malaysian Civil Aviation Commission published a Consultation Paper to seek feedback from the public on some proposed amendments to the Code. This culminated in the gazetting of the Malaysian Aviation Consumer Protection (Amendment) Code 2019 on 10 May 2019, which adopts a significant number of the amendments proposed in the Consultation Paper. The amendments to the Code will come into operation on 1 June 2019.
 
This alert highlights some to the amendments that will be introduced under the amendment code.
 
Full Disclosure of Air Fare
 
Paragraph 3 of the Code which requires an airline to disclose the final price of airfares is refined and now addresses two situations; first, for the purposes of advertisements and second, before a ticket is purchased. For advertisements, an airline is required to publish an all-inclusive fare consisting of (a) base fare (including all charges payable to the airline); (b) government taxes and fees; (c) fees and charges prescribed by any written law; and (d) fuel surcharge. 
 
In addition to the four items mentioned in the preceding paragraph, an airline is also required to disclose charges for optional services purchased by a consumer on an opt-in basis as part of the final air-fare to be paid by the consumer before a ticket is purchased.
 
Prohibition on Post-Purchase Price Increase
 
Two amendments will be made to paragraph 4 of the Code which prohibits, subject to prescribed exceptions, an airline from increasing the price of an air-fare after the air-fare has been purchased by a consumer. First, as a consequence of the amendment of paragraph 3 of the Code, it is now clarified that the prohibition in paragraph 4 against post-purchase increase in air-fare applies only to the final air-fare after the air-fare is purchased by the consumer, and not in respect of fares displaced in advertisements.
 
Secondly, one of the prescribed exceptions in paragraph 4(a) of the Code which allows an airline to increase a final air-fare after the air-fare is purchased, namely in respect of ‘fees imposed by the Commission’ is replaced by ‘fees or charges prescribed under any written law’.  
 
Disclosure of Terms and Conditions
 
Paragraph 7(1) of the Code imposes an obligation on an airline to disclose all terms and conditions of the contract of carriage to the consumer before a ticket is purchased.  This requirement will be replaced by an obligation to disclose the following key-terms and conditions before a ticket is purchased by the consumer –
 
  1. cancellation fee;
  2. any refund and rebooking policies;
  3. policies for a passenger who fails to show up at the check-in counter or at the boarding gate within the designated period or to board the aircraft at the specified boarding time;
  4. baggage allowance policies; and
  5. validity of the passenger’s travel documents. 
A new paragraph 7(1A) provides that where a ticket is purchased from a travel agent, an airline is required to ensure that the key terms and conditions set out in the amended paragraph 7(1) are communicated to the consumer before the ticket is purchased.
 
Refunds
 
A new paragraph 7A will be introduced into the Code to regulate refunds.
 
The new Paragraph 7A(1) provides, inter alia, that subject to the terms and conditions of a ticket, a contracting airline shall, upon a claim by a consumer, refund –
 
  1. the base fare, including all charges payable to the airline;
  2. charges for optional services purchased by the consumer;
  3. government imposed taxes and fees; and
  4. fees and charges prescribed under any written law. 
Among others, the new paragraph 7A(2) limits any processing charges that a contracting airline may impose for the refunds referred to in sub-paragraphs (c) and (d) of the preceding paragraph to an amount not exceeding 5% of the relevant taxes, fees or charges, as the case may be. The new paragraph 7A(3) prohibits a contracting airline from imposing a processing fee for refunding the items referred to in sub-paragraphs (c) and (d) above if it charges a processing fee for refunding the items referred to in sub-paragraphs (a) and (b) of the preceding paragraph.
 
A contracting airline is required to remit the refund (a) to a consumer within 30 days from the date of the claim for a refund; or (b) where a ticket is purchased from a travel agent or through a travel portal, to refund to the travel agent or travel portal within 30 days from the date of the claim being made by the consumer for a refund in accordance with terms and conditions between the contracting airline and the travel agent or the relevant travel portal, as the case may be.
 
Any tax which is not refunded to the consumer is to be dealt with in accordance with the Unclaimed Moneys Act 1965.
 
Change in Flight Status
 
Paragraph 8 of the Code sets out an airline’s obligations in relation to any change in flight status. The existing paragraph 8(3) which defines a ‘change in status of a flight’ as a cancellation of a flight, a delay of 30 minutes or more in the scheduled operation of a flight or a diversion will be replaced by new provision whereby the expression is defined to mean a cancellation of flight, a delay of 30 minutes or more in the scheduled operation of a flight, a route cessation or a planned flight rescheduling.
 
A new paragraph 8(4) imposes an obligation on the operating airline to provide the passengers and the public with information on a route cessation one month before the date of cessation and in the case of a planned flight rescheduling of three hours and more before or after the scheduled departure time, within 12 to 48 hours from the scheduled departure time.
 
Use of Wheelchair
 
A person with disability is entitled to use the wheelchair services without charge upon production of his Kad OKU, i.e. a card issued to a person who is registered under the Persons with Disabilities Act 2008.
 
Compensation for Route Cessation and Planned Flight Rescheduling
 
A new paragraph 12A and items 5A and 5B of the First Schedule of the Code will be introduced to deal with compensation and care for route cessation and planned flight rescheduling of three hours and more before or after the scheduled departure time.
 
For route cessation and planned flight rescheduling as aforesaid, sub-items 5A(1) and 5B(1) respectively of the First Schedule provide the passenger with a choice between –
 
  1. reimbursement within 30 days of the full cost of the ticket at the price at which it was bought (including taxes and fees) for the part or parts of the journey not made; and for the part or parts of the journey already made if the flight no longer serves any purpose in relation to the passenger’s original travel plan; or
  2. re-routing under comparable transport conditions, to the final destination at the earliest opportunity or at a later date at the passenger’s convenience, subject to availability of seats, at no extra charge. 
In both instances, if a flight is offered to an airport alternative to that for which the reservation was made, the operating airline must bear any cost of transferring the passenger from the alternative airport either to that for which the reservation was made, or to another close-by destination agreed with the passenger.
 
An operating airline is exempted from providing compensation and care if it can prove that the route cessation or planned flight rescheduling is caused by extraordinary circumstances (as defined in paragraph 12A(3)) which could not be avoided even if all reasonable measures had been taken.
 
Remedies
 
A new paragraph 18A is introduced to clarify that resolution to be provided by the aviation service provider to the consumer under Part IV (Consumer Complaints) of the Code is to be in the form of necessary remedial action, including refund and monetary or non-monetary compensation.
 
Consumer Awareness
 
To promote greater consumer awareness, a new paragraph 19(2) is introduced to require an aviation service provider to use its best endeavours to ensure that all its employees or any person who performs aviation services on its behalf possess adequate knowledge and awareness of the Code.
 
 
Note: For an overview of the provisions of the Code, please refer to ‘Now Everyone Can Fly With Less Headaches’ that was published in Issue 3/2016 of Legal Insights, a SKRINE Newsletter.