In August 2022, the Fair Work Commission (FWC) Full Bench quashed a decision that a Deliveroo delivery rider was an employee and afforded protection under the unfair dismissal regime.
In Diego Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818, the FWC rejected Deliveroo’s argument that the delivery rider was an independent contractor, stating that while ‘camouflaged’, Deliveroo had a ‘significant capacity for control’ over the delivery rider and consequently should be considered an employee.
In that decision, the FWC found that despite the supplier agreement suggesting an independent contractor relationship, due to the terms of the agreement being determined unilaterally and the lack of bargaining power by the delivery driver, the agreement needed to be considered with a degree of caution.
That decision was significant, providing avenues for workplace rights for a group that had previously not enjoyed those benefits.
The decision was overturned by the FWC in an appeal. In Deliveroo Australia Pty Ltd v Diego Franco [2022] FWCFB 156, the FWC Full Bench determined that while at the time the FWC’s findings were correct, the original decision should be overturned based on the High Court decision in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1.
In the High Court decision, the court found that where parties have set out clear terms of their relationship in an employment contract which are ‘not challenged as a sham’, there is no reasons why the employment relationship would not be determined by the rights and obligations that are set out in the contract.
In the Deliveroo appeal, the FWC found that:
Therefore, the delivery rider must be considered an independent contractor due to the primacy of the contractual terms.
The decision is unlikely to be the last we see on the matter, with this recent appeal highlighting the ongoing uncertainty of laws and regulations in the gig economy surrounding the employment relationship of gig economy workers.
Going forward, organisations should ensure they continue to remain cautious of the way that they engage workers, the legality of their employment contracts and remain mindful of this rapidly evolving area of law.
At Moores, our Workplace Relations team is well-equipped to guide employers through tricky situations in the workplace. Get in touch with the Workplace Relations team at Moores if you or your organisation would like some advice on navigating these evolving employment issues.
Please contact us for more detailed and tailored help.
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Privacy and data breaches are in our headlines yet again, but what can the not-for-profit and education sectors learn this time around? This article considers lessons from recent high-profile privacy breaches.
Data breaches can trigger emotional responses from members of the public who are affected – and big headlines in the media – because privacy is tied to identity, individuality and autonomy.
Malicious and criminal attacks are the leading cause of data breaches notified to the OAIC under the Notifiable Data Breach Scheme. While data breaches, or malicious hacking, may be an inevitable threat, there are measures you can implement in your organisation to ensure you are prepared to respond swiftly and in an appropriate manner.
Now is a good time for you to review your current data breach response plan. The OAIC has guidance about the four key steps to responding to data breaches which are: contain, assess, notify and review.
In addition, staff should regularly receive data breach simulation training to help staff recognise data breaches, risks to data security and know how to respond in the moment. Taking swift, immediate steps is critical to limiting the further dissemination of information affected by a data breach.
The trend of children’s privacy gaining importance can be seen in Australia, Britain and California.
The British Information Commissioner’s Office (ICO) has taken enforcement action against TikTok for breaching the privacy of children, which could impose the largest fine in the ICO’s history: £27 million.
The ICO’s investigation found TikTok may have:
This enforcement action is currently a notice of intent. No fine or factual findings have been made as yet.
In Australia, much has been accomplished by the eSafety Commissioner in recent years, partly with the introduction of two new schemes: the Online Content Scheme and Cyberbullying Scheme.
The growing concern for upholding children’s rights to privacy is confirmed as the focus of the Privacy Act Review on stronger measures to ensure consent from parents and/or children, and the need for clear language that is child-friendly when organisations’ key stakeholders are children. Overall, greater organisational accountability, transparency and privacy-by-design requirements will also contribute to better empowering children to make decisions to protect their privacy, and establish baseline expectations so pro-privacy mechanisms are built into online platforms.
Transparency and accountability are part of the ICO’s criticisms of TikTok. The Online Privacy Bill published as an exposure draft in 2021 was designed to implement an Online Privacy Code regulating the activities on social media platforms specifically, however, this bill has not yet been put to Parliament. The Attorney-General has promised an overhaul of Australia’s privacy laws. As we await a bill to amend the Privacy Act 1988, we recommend organisations work with children to take pro-active steps to ensure policies, procedures and technology uphold the privacy rights of children interacting with your organisation.
On 15 September 2022, the Californian Governor signed legislation protecting the wellbeing, data and privacy of children using online platforms. To be called the California Age-Appropriate Design Code Act, many of the themes resemble pro-privacy design elements so children are not manipulated into waiving privacy rights on online platforms. Ensuring terms of service are easily understandable is another common feature.
We can help you respond to a data breach by helping with the immediate steps, and subsequent notifications required by the Notifiable Data Breach Scheme. We can also provide assistance by leading privacy audits to proactively identify information security risks in your systems and processes.
In conjunction with our Safeguarding expertise, we are also passionate about helping organisations keep children safe online and uphold their privacy rights.
The last couple of challenging years have seen a dramatic increase in aggression aimed at teachers, whether in person or via email and other electronic means (see a recent example here). Increasingly, schools report that many parents are pestering staff to the point of harassment.
In the context where the proprietor of the school owes a duty of care to its staff in relation to their health, safety and wellbeing, such harassment does need to be addressed. This duty, which is embedded in occupational health and safety legislation and also enshrined in the common law, is broad enough to cover not only the physical safety of teaching and non-teaching staff, but their mental wellbeing as well.
A Parent Code of Conduct (Code) is an important tool in the school’s arsenal against keyboard warriors. It allows the school to issue a warning notice and ask for the messages to a particular staff member to cease. We’ve found a Code to be a useful tool for managing a parent’s behaviour, provided it is properly drafted and does not fall at the last hurdle, ie. fails to provide consequences for a breach.
The Victorian government has enacted a change to the Education and Training Reform Act 2006 (Vic) (Act) in June 2021 to establish the School Community Safety Order Scheme (Scheme).
The Scheme enables authorised persons to issue school community safety orders (Orders) to prohibit or restrain certain behaviours from occurring on school premises and school-related places, or in relation to school staff. Orders can be immediate or ongoing.
Orders may only be made and can only be issued to adults (18 years old or over) who are not staff members or students at the school. This may include parents or carers of students at the school, former students, friends or partners of students, former staff members or staff members from other schools and third-party contractors engaged by the school.
Orders can only be made if the school has looked at other ways to address the behaviour, considered the mandatory considerations for Orders and an Order is found to be the least restrictive means available of addressing the behaviour.
There are two types of Orders that principals and other authorised persons can issue to prohibit or limit different types of behaviours:
The standard required to create an Order is lower than that required for a personal safety intervention order, which may only be granted by court order. In our experience, the making of an Order under the Scheme is an important addition to a school’s suite of initiatives to address the issue of parents harassing staff at the school.
We have assisted many schools in the creation of a School Community Safety Order Policy. We are able to advise you whether one is necessary and assist you in reviewing your current Parent Code of Conduct to determine whether it needs updating.
We have seen a steady rise in information requests being made by parents, clients and other individuals connected to our clients across education, housing, not-for-profit and community health organisations. Information requests – or access requests – most commonly arise when there has been a breakdown of trust, and can be a pre-litigation measure.
The right for individuals to make requests of organisations for access to information about themselves comes from the Australian Privacy Principles (APPs), or other privacy principles that might be applicable in different states.
If an organisation holds personal information about an individual, the organisation must, on request by the individual, give the individual access to the information.
Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable whether the information or opinion is true or not.
There are some exclusions which might apply, for example, the employee records exemption.
There is no tort of privacy in Australia, however, privacy is recognised as a human right and is enforced in Australia through various privacy principles – the most well known are the Australian Privacy Principles in the Privacy Act 1988.
The right to make information requests recognises that privacy is fundamentally about power. When organisations hold personal information about an individual, the organisation can construct an image of that person and make inferences about their identity, needs and wants. When there is a breakdown in the relationship between the individual and organisations, individuals make information requests in order to regain control over their information, and by extension, identity.
Privacy is fundamentally about power.
A breakdown in trust is also exacerbated by data breaches, ransomware and hacking. Look out for our lessons from the recent data breach in the headlines.
Information requests can also be made as a pre-litigation measure to gather information in order to be better positioned to commence a claim against the organisation. This can be concerning for organisations, and make it difficult to balance individual privacy rights with organisational commercial and strategic objectives.
There is an ability for organisations to refuse a “frivolous or vexatious” (APP 12.3(c)), but this should be treated with caution. There are no published decisions where the Australian Information Commissioner has found a request to be frivolous or vexatious, and the APP Guidelines say:
“A request should not be refused on this ground unless there is a clear and convincing basis for deciding that a request is frivolous or vexatious. It is not a sufficient basis, for example, that a request would cause inconvenience or irritation to an organisation.”
Lessons from the Privacy Commissioner
Earlier in the year we reported on decision made by the Australian Information Commissioner about an information request that involved personal information of another person. The decision confirmed organisations cannot simply “fob off” information requests on the basis that providing the information would unreasonably impact the privacy of another person.
In the most recent decision, published in June 2022, a not-for-profit agency (Relationships Australia) was found to have interfered with an individual’s privacy by not providing all the information requested, and not providing access in the manner requested. The not-for-profit agency also did not adequately explain the exceptions it considered applied in responding to the individual.
Organisations must give access to the information in the manner requested by the individual if it is reasonable and practicable to do so (APP 12.4). In this decision, the individual had requested the information by post. The not-for-profit agency only offered to provide access to the information in person by viewing the documents at their office, as the information was sensitive and this was a more trauma-informed approach. While the trauma-informed approach was recognised by the Information Commissioner, ultimately the organisation had an obligation to provide the information by post, as the individual had rejected the suggested trauma-information approach.
While organisations can offer to provide access in different ways, they cannot refuse a method of access requested by an individual unless it is unreasonable or unpracticable.
Moores can support your organisation to respond to the rise in information requests by:
Practices that restrict a person’s freedom (restrictive practices) are common in the disability sector, but their use and misuse can give rise to significant risks to the health and wellbeing of vulnerable people, breaches of human rights, litigation and reputational damage. While the use of restrictive practices is authorised in limited circumstances, recent data from the NDIS Commission demonstrates that over 1,000,000 instances of unauthorised restrictive practices occurred between 2020-2021.*
Given the prevalence and risk associated with restricted practices, it is critical that registered disability service providers understand and comply with their obligations in relation to regulated restrictive practices. This is particularly the case for where it is a condition of their registration with the National Disability Insurance Scheme (NDIS).
We note that this article is focused on registered disability service providers (Providers), as non-registered disability service providers must not provide services to participants or consumers which are regulated restrictive practices. Regardless of registration, non-registered disability service providers must comply with the NDIS Code of Conduct and ensure they provide safe and high-quality services.
The National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) defines a restrictive practice as ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability’. The primary purpose of a restrictive practice is to protect the restricted person, or other people, from harm. The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (NDIS Rules), sets out five categories of restrictive practices that are regulated by the NDIS Commission:
The use of restrictive practices for people with disability is highly regulated because of the risk that the practices pose. As the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) has recently heard, restrictive practices can cause serious physical and psychological harm, including trauma, fear, shame, and loss of dignity. Restrictive practices can also reinforce power differentials and lead to a loss in autonomy.
The NDIS Rules set out conditions for the use of restrictive practices, which Providers must be aware of. These conditions include that the use of a restrictive practice must be:
When engaging in a restrictive practice, Providers should also consider:
The Disability Royal Commission recently heard submissions from Providers and advocacy bodies, who identified key drivers for the inappropriate use of restrictive practices. Notably, the Royal Commission heard that excessive use of restrictive practices is often linked to low staff to client ratios, a lack of staff support, deficiencies in supervision, and insufficient resources and funding.
In light of the themes emerging from those hearings, Providers should consider the following actions to limit the use and misuse of restrictive practices:
The Rules provide for rigorous reporting requirements in relation to the use of restrictive practices, which are a condition of a Provider’s ongoing registration with the NDIS.
Where a restrictive practice has been authorised, and is part of a person’s behaviour support plan, the Provider needs to report each use of that restrictive practice to the NDIS Commission on a monthly basis.
Where a restrictive practice is used but has not been authorised for the person, the Provider is required to report each use of the restrictive practice to the NDIS Commission as a Reportable Incident. This includes where the use of the restrictive practice is a once-off in response to an emergency, and where the use of the restrictive practice is ongoing but has not been authorised or is not included in the person’s behaviour support plan.
The Rules also provide for stringent record-keeping requirements, as conditions of a Provider’s ongoing registration with the NDIS. Where a restrictive practice is used, a Provider must record and maintain the following information for seven years from the day the record is made:
For a Provider to comply with its reporting and record keeping obligations, it may also be required to conduct an investigation into incidents and allegations of restrictive practices being used.
Providers who breach their obligations risk losing their NDIS registration, and may face significant public scrutiny. Importantly, an organisation’s failure to comply with its obligations places people with disability at risk of harm and abuse.
Providers may also be liable for any harm or injury caused by their staff, and should take great care to provide staff with appropriate training and resources to ensure the safety and wellbeing of both their workforce and their clients.
If your organisation would like assistance with understanding its obligations under the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018, the Moores Safeguarding team can assist. Our team is well-equipped to provide advice, draft and review policies, and respond to concerns.
Moores has expertise in harm prevention and mitigation for organisations working with vulnerable people. Moores can also conduct independent investigations, with a trauma-informed approach, to ensure that concerns are properly responded to, and to ensure the safety, well-being, and dignity of vulnerable people.
*NDIS Quality and Safeguards Commission, Unauthorised uses of restrictive practices in the National Disability Insurance Scheme, January 2022.
Jennifer Dixon, Lachlan McKenzie, Krista Fitzgerald, James Dimond and Luke Haley have all featured as Leading Lawyers and Rowdy Johnson as Rising Star in the latest Doyle’s Guide. Recognised by their peers and referrers for their expertise in Wills & Estates Litigation and/or Wills, Estates and Succession Planning.
This ranks Moores as a First Tier Law firm in both the ‘Wills & Estates Litigation‘ and ‘Wills, Estates & Succession Planning‘ categories for the sixth year running.
Our expert team is experienced in assisting families with complex Estate Planning arrangements as well as challenging and defending all manner of Disputes relating to Wills, Estates, Trusts, SMSF and Bequests.
For more information or to speak with one of our experienced lawyers, please do not hesitate to contact us.
Often, such tenancy arrangements are informal – the land is owned by one entity and the business is operated by another – but because the same people are in control of both entities, there is no formal agreement in place for the use of the land by the operating entity.
This scenario can prove problematic on many fronts – set out below are some of the reasons why you should consider putting a lease into place between related entities.
In the recent case of Olde English Tiles Australia Pty Ltd v Transport for New South Wales, land in Annandale, NSW was owned by a family who used it to operate a tile business through a corporate entity. There was no formal lease in place.
The land was compulsorily acquired by the NSW Government and the business entity sought compensation for its business relocation costs. However, as there was no formal lease in place, the NSW Court of Appeal held that the business entity had no “interest” in the land for the purposes of the compulsory acquisition law, and therefore they were not entitled to be compensated for relocation costs.
Leases serve an important function of allocating liability for costs and risk. If an accident occurs on the land and a claim is brought for personal injury, a proper lease will go a long way to determining who is responsible for the costs of meeting the claim by addressing matters such as risk and indemnity.
In the absence of a lease, there may also be difficulties with recovering an insurance claim if the building is damaged.
Things don’t always run smoothly, and if there is a rift between those in control of the land and those who run the charity or business from that land, this can have serious repercussions for the viability of the charity or business, especially if the landowner decides to sell the land. A formal lease will ensure that the charity/business operator has an enforceable right to continue operating from the land in these circumstances.
A lease (with the consent of any mortgagee) will also go a long way in protecting the occupier against the unfortunate circumstance where the bank might need to step in and conduct a mortgagee sale.
If the charity/business is to be sold or otherwise transferred, any knowledgeable buyer will insist on there being a lease in place which entitles the charity or business to use the land it operates on. Having a formal lease in place therefore adds value to the operations.
Properties used for charitable purposes can be exempted from land tax upon making application to the State Revenue Office. If there is no lease in place with the charitable entity which occupies the property, it may be difficult to convince the State Revenue Office that the property satisfies the criteria for exemption.
A properly drafted lease will clearly set out matters such as what rent is payable, when and how rent will be increased, and who is responsible for outgoings relating to the land.
This makes it much easier to justify payments and allocate liability for these matters when preparing the charity/business accounts, the landowner accounts, and tax reporting. Your accountant and auditor will always prefer you to have some kind of basis (like a signed lease) for setting rent payments at a particular amount.
The team at Moores has extensive experience in handling these issues and can help you to quickly and easily get a lease into place between related parties, saving you the kinds of headaches we’ve outlined above.
If any of the above raises concerns for you, please get in touch with us and we’ll help you put into place a quick and effective solution.
Conflicts concerning directors and staff can be disruptive to an organisation’s operations and burdensome on all individuals involved. They can also be detrimental to charities and not-for-profits to the extent that they detract from their charitable purpose and the efficient use of their limited resources.
This article is part one of a two-part series concerning the duties and expectations of directors as they relate to staff. It explores the options available to manage conflicts between directors and staff as and when they arise within an organisation.
While the board is responsible for the governance of an organisation (including setting its objectives), staff are responsible for meeting an organisation’s immediate operational needs in order to meet those objectives. Directors and staff are often required to work together and communicate with one another to carry out their respective responsibilities.
Directors and staff may interact with one another in a number of different ways. Staff may be invited to attend and speak at board meetings, while directors may be invited to attend and speak at staff events. Directors and staff may also serve together on committees.
Conflicts may arise when there is miscommunication or a lack of communication between the board and staff. They may also arise when communications are disrespectful, discriminatory or intimidating. This makes it important for organisations to set behavioural expectations around how directors and staff treat and communicate with one another.
When determining how to manage conflict, organisations should consider:
Typically, dispute resolution frameworks require parties to attempt to resolve the dispute informally before further steps are taken. It is appropriate for the chair to take the lead in this conversation (unless they are personally involved in the dispute). Depending on the gravity of a dispute, more formal avenues may need to be considered (such as mediation, an investigation, termination of employment or cessation of directorship). It is critical to understand and comply with the particular requirements of the applicable framework.
Whichever avenue is chosen, organisations should ensure that the parties to a dispute (or the respondent to a complaint) are afforded natural justice and given an opportunity to respond to any claims or allegations made against them. This will ensure that the perspectives of all parties are considered before a final decision is made.
Our For Purpose team helps charities from the ground up, from support when applying for registration to assisting charities to manage complex disputes. If you are dealing with a dispute or conflict concerning your board, we can assist you to develop and implement a plan to help manage the dispute or conflict.
Not-for-profit organisations established in order to promote or foster culture may be able to be registered as charities with an ‘advancing culture’ subtype with the Australian Charities and Not-for-profits Commission (ACNC). Registered charities benefit from charity tax concessions, including income tax exemption.
Many kinds of charities can promote culture, including:
Charities may promote culture in a range of ways, including:
Charities that promote culture may be able to be endorsed as tax deductible gift recipients (DGRs) if they are:
Being endorsed as a DGR can improve a charity’s ability to attract donations from private individuals and foundations (some of which can only donate to DGRs). Endorsement as a DGR is also a prerequisite for some government grants.
To be eligible to be endorsed as DGRs, public libraries, museums and art galleries must be controlled by individuals or institutions who, because of their tenure or public office or position in the community, have a degree of responsibility to the community as a whole*. In the case of charities seeking entry on the ROCO, this requirement applies to the committee that operates the public fund (which may be a different group of individuals to the charity’s board).
Further specific requirements apply to each category of DGR which usually require (among other things) amendment of the charity’s governing document. In the case of charities seeking entry on the ROCO, these requirements are set out in detail in the ROCO Guidelines.
As with all charities, it is important to ensure the entity exists for the public benefit rather than using its resources for the benefit of those close to the charity. For example, there are detailed requirements that apply if a charity entered on the ROCO proposes to use tax deductible donations received by its public fund to construct or restore a building that will be owned by another entity or used partly for purposes other than the charity’s principal purpose.
Moores regularly works with organisations that promote culture to support them to seek endorsement as a DGR. If we can assist your organisation, please get in touch.
*You can find examples of individuals who meet this requirement here.
This article summarises key information that registered charities should be aware of as they prepare to lodge their annual documents with the Australian Charities and Not-for-profits Commission (ACNC).
The ACNC has launched the 2022 Annual Information Statement Hub.
All registered charities are required to lodge an Annual Information Statement (AIS). The AIS is an online form that asks a range of questions about a charity’s operations and finances over a 12-month period. For charities with a reporting period of 1 July 2021 to 30 June 2022, the 2022 AIS must be lodged by 31 January 2023.
Failure to submit your charity’s AIS by the due date will result in it appearing as ‘overdue’ on the charity register, while failure to submit an AIS for two or more years may result in the ACNC moving towards revoking your charity’s registration.
Charity size thresholds have changed for the reporting periods covered by the 2022 AIS and beyond. The following table summarises those changes.
As a result of these changes:
Registered charities that are incorporated associations must continue to:
For further information about these changes, see our related article and the ACNC website.
All charities (except basic religious charities) will be required to report related party transactions in the 2023 AIS and beyond. This means that charities will need to document related party transactions from the start of their 2023 reporting period (which, for many charities, is 1 July 2022).
Medium and large charities will also need to disclose related party transactions in their financial reports in accordance with the Australian Accounting Standards (AASB 124).
For further information about this requirement, see our related article and the ACNC website.
Medium charities that prepare general purpose financial statements and large charities are required to report key management personnel remuneration in the AIS. Basic religious charities are exempt from this requirement.
For the purpose of this requirement:
The ACNC recently launched an online learning program comprised of eight courses covering the regulatory landscape of registered charities in Australia and the duties and responsibilities of responsible people (such as board members, committee members and trustees). It is targeted towards responsible people and people in leadership roles within charities of all levels of experience.
The program is available free of charge on the ACNC website. The ACNC intends to release an additional four courses by the end of this year.
Our For Purpose team helps charities from the ground up, from support to applying for registration to helping charities understand and meet their regulatory requirements.