It is not unusual for couples to re-consider the ownership of real property they own, whether as part of their estate planning arrangements or in considering the protection of their assets.

Before 1 July 2017, there was no stamp duty payable if any property was transferred between spouses or domestic partners.

After 1 July 2017, there was a change to the Duties Act 2000 (Vic) (“the Act“) which restricted the availability of stamp duty exemption to the transfer of the principal place of residence (being the ‘home’) between spouses or domestic partners, provided the transfer is a gift – meaning, the recipient does not pay to acquire it.

The Act did not change the availability of a stamp duty exemption for property transfers arising from the breakdown of a marriage or a domestic relationship.

Exemption Criteria

Following the changes to the Act, the current eligibility criteria for the duty exemption are:

1. the parties involved in the property transfer are spouses or domestic partners (including those in a registered domestic relationship or two persons who are living together as a couple on a genuine domestic basis); and
2. no person outside the relationship is entitled to take an interest in the property being transferred; and
3. the property is a residential property that at least one person in the relationship will live in for a continuous period of at least 12 months from the date of the transfer (“residency requirement“); and
4. the recipient of the property is not paying any consideration to receive the property (“no consideration requirement“).

Typically, proving eligibility under the first two criteria is quite straightforward. However, when it comes to the residency requirement and the no consideration requirement, there are some important issues to be aware of.

Residency Requirement

Not only must the property being transferred be the principal place of residence, it is a requirement for duty exemption that the property will remain the principal place of residence of at least one person in the relationship for the next year after the property transfer takes place.

There is a positive obligation on couples who use this duty exemption to ensure they advise the State Revenue Office (“SRO“) of any changes to their circumstances in this 12-month period, if they will not be using the property as their home for the full year.

Our experience is that the SRO is vigilant in determining whether a property being transferred is genuinely a principal place of residence and ensuring compliance with the ongoing residency obligation.

No Consideration Requirement

If the property being transferred is unencumbered, provided the recipient does not pay to receive the property, the no consideration criteria can be quite simple to satisfy.

Where there are loans secured against the home, the no consideration requirement comes sharply into focus.

If there is a mortgage on the property, and at the time of the transfer, the recipient gives a mortgage which either:

1. secures the same or a greater amount than the amount owing immediately before the transfer; or
2. assumes the liabilities under the existing mortgage;

then the no consideration requirement will be satisfied, provided the SRO is satisfied the couple has not entered into the transfer simply to access the duty exemption (meaning, there would need to be another reason for the transfer to take place). This typically covers a genuine refinance, or mortgages created at or before the time of the transfer, or those created to secure borrowings used for the improvement of the property.

A recent example where the SRO was not satisfied that the ‘no consideration requirement’ was met, is as follows:

1. the home was owned by one party to the relationship, who was also the sole borrower in relation to a number of loans secured against the home;
2. the intended property transfer would have resulted in the second party to the relationship becoming the sole owner of the home; and
3. in relation to the borrowings, it was intended the second party would become the sole borrower, with the first party remaining involved as guarantor.

In these circumstances, the SRO took the view that consideration had passed between the parties resulting in the transfer being dutiable.

Key takeaway

Transferring property between spouses or domestic partners is not as straightforward as it once was.

Before proceeding with a property transfer between spouses or domestic partners, there is value in seeking advice about whether or not, in the specific situation, the duty exemption criteria are satisfied. In some circumstances, requesting the SRO make a private ruling may provide comfort and certainty about the eligibility for this duty exemption.

How we can help

Please contact us for more detailed and tailored help.

The Victorian government recently announced that COVID-19 vaccination is mandatory for school staff once in-person teaching resumes in term 4.

In this update, you will find information about the most recent government directions and key dates to ensure compliance in time for the resumption of teaching in term 4.

Key features of the government direction

The relevant government direction is the “Directions from Acting Chief Health Officer in accordance with emergency powers arising from declared state of emergency COVID-19 Mandatory Vaccination Directions (No 5)” issued on 2 October 2021. The direction applies to education providers who are:

• registered schools as defined under the Education and Training Reform Act 2006 (Vic); and
• onsite early childhood education and care services or children’s services provided under the Education and Care Services National Law, the Education and Care Services National Regulations, and the Children’s Services Act 1996 (Vic).

Under the direction, school staff must have had:

• their first vaccination by 25 October 2021; and
• their second vaccination by 29 November 2021.

By 18 October 2021, schools need to have collected the following information from staff:

• whether staff have received both doses of a COVID-19 vaccination; or
• whether they have received one dose of a COVID-19 vaccine and the date they have booked in to receive their second dose (which needs to be before 29 November 2021); or
• whether they have made a booking to receive their first COVID-19 vaccination, noting that this must be on or before 25 October 2021; or
• whether they cannot receive a COVID-19 vaccination because an exception applies to them and they have evidence from an approved medical practitioner certifying an exception applies to them.

If staff have not provided the above information by 18 October 2021, they will not be permitted on school grounds, and will need to be treated as though they are unvaccinated.

Additionally, if staff have not received their first dose by 18 October 2021 but have made a booking to receive their first dose by 25 October 2021, they will be permitted on site. If the person has not received their first dose by 25 October 2021, they will not be permitted on school grounds after that date.

Exceptions

The direction permits an exception to the vaccination requirement if a staff member has a medical contraindication, as determined by the clinical guidance issued by Australian Technical Advisory Group on Immunisation.1

If a staff member seeks to apply for an exception, the school must sight and record evidence from a specified list of medical practitioners:

• general practice registrars on an approved 3GA training placement;
• public health physicians;
• GPs;
• infectious disease physicians;
• clinical immunologists;
• gynaecologist;
• obstetrician;
• GPs who are vocationally registered;
• GPs who are a fellow of the Royal Australian College of General Practitioners; or
• GPs who are a fellow of the Australian College of Rural and Remote Medicine.

If a staff member refuses to be vaccinated and cannot provide the required evidence of a medical contraindication, they will not be permitted on school grounds from 18 October 2021.

The direction does not provide scope for an individual staff member to be granted an exception on any other grounds (including religious grounds). However, engaging in a proper and lawful process with any staff who raise a religious objection is important, so that the school can avoid later claims of discrimination and/or unfair dismissal.

There is scope for a temporary exception to be granted on the basis of an emergency for the limited duration of that emergency, if the staff member wears PPE including a surgical mask and a face shield (as a minimum).

Collecting vaccination information and privacy obligations

Schools are required to collect, record and hold information regarding each staff member’s vaccination status if they will or may be on school grounds from 18 October 2021.

An authorised officer may request a school to provide its vaccination records. The school will be required to comply.

Schools are required to communicate the vaccination requirements to affected staff members as soon as reasonably practicable. The information to be collected includes:

• whether each staff member is fully vaccinated; or
• if they are not fully vaccinated:
  • (i) the date they have booked to receive their first or second dose;
  • (ii) whether they intend to apply for an exception on the grounds of a medical contraindication; or
  • (iii) whether they do not intend to receive a COVID-19 vaccine.

Schools may accept the following information as evidence of vaccination status:

• Immunisation History Statement;
• digital certificate; or
• letter from a general physician.

Privacy considerations which apply to health information apply here. Including regarding storage, use, disclosure, security, access and archiving. The use or disclosure of staff vaccination information for an unauthorised purpose would attract serious penalties.

Responding to non-compliance

In the event a staff member does not comply with the government direction and does not have a medical contraindication, a school will be required to consider its options with respect to that staff member, including whether stand down, leave arrangements or other disciplinary consequences are available in the circumstances.

Considerations include:

• whether the school can reasonably accommodate alternate duties that can be completed off-site;
• whether the stand-down mechanism under the Fair Work Act 2009 (Cth) is available to stand the employee down without pay for a temporary period; or
• whether the termination of the staff member’s employment is a valid option and how the school may seek to minimse risks associated with termination.

This assessment will need to be conducted on a case-by-case basis with a careful examination of the duties of the staff member and the operational requirements of the school. Should you require assistance, Moores can help you through the process of making this assessment.

Penalties

Significant penalties apply if a school or staff member does not comply with the direction. An individual can face a fine of up to $21,808 (120 penalty units) and the school could face a fine of up to $109,044 (600 penalty units) for a single breach.

Additionally, if a person is found to have provided or recorded false or misleading information, an individual can face a fine of up to $10,904 (60 penalty units) and a body corporate may face a fine of up to $54,522 (300 penalty units).

How we can help

Moores can assist your school, including to:

• prepare a staff policy about COVID-19 vaccination requirements;
• understand its privacy obligation with respect to collection, use and storage of vaccination information;
• develop its procedures for dealing with medical exceptions and other grounds for exceptions made by staff; and
• prepare for dealing with staff non-compliance with the vaccination requirements.

Please contact us for more detailed and tailored help.

The Victorian Government is pushing the “3 Vs” for the return to school in Term 4: Ventilation, Vaccination and Vital COVIDSafe Steps.

Vaccination

The Victorian government today announced mandatory vaccination for school staff. The mandate will apply to teachers, support staff, administrative staff and cleaners and to all schools and all types of early childhood and care settings.

The Education Minister said to reporters: “Anyone who works on-site at schools or early childhood settings, they will not be able to work on site if they are not vaccinated.”

School staff must have their 1st dose by 18 October 2021 and the 2nd dose by 29 November 2021. 

Exceptions: It looks like there will be scope for medical exceptions to the vaccination requirement. There is limited information available about the extent or application of those exemptions and we expect more information to come.

Ventilation

Only low-fee non-government schools will receive a share of the 51,000 ventilators to be rolled out according to the government’s announcement today. Likewise, only low-fee non-government schools are eligible for a grant of up to $25,000 for shade sails – to facilitate increased outdoor learning. Other independent and Catholic schools will also not receive financial support from the government to purchase their own. 

Independent and catholic schools may nevertheless need to review ventilation infrastructure, assess ventilation and CO2 monitoring steps in their planning for term 4. 

See the Premier of Victoria’s 22 September press release for more information.

How we can help

Please contact us for more detailed and tailored help to ensure you are prepared for return to school in Term 4.

In the Guidelines to the Minimum Standards and Requirements for School Registration, written by the VRQA, the Care, safety and welfare dimension requires schools to develop policies, procedures, measures and practices in accordance with a Ministerial Order for managing the risk of child abuse including the implementation of minimum standards for a child safe environment.

A recent news article reported that over 1,000 suicidal children have called a hotline for help in the past six months.

What can you do to help affected children?

Providing a child safe environment requires consideration of an online learning environment. The duty of care owed to students remains during remote learning. Being flexible and proactive with assessments and online activities may help some students feel less pressure during online learning. It’s not only adults that suffer from Zoom fatigue. Imagine having a normal 8 hour school day online and then having to start homework after that. Considering the workload other teachers are providing may require discussions between staff, or at the coordinator level.

All schools must make reasonable adjustments for students with disabilities. Anxiety and depression and considered disabilities under relevant legislation.

Are your staff aware of the red flags to be aware of in students? If not, it might be time for an updated training session to assist them and ensure the children at your school are thriving, rather than just surviving, during this pandemic. Regular wellbeing checks and other activities suitable in an online environment can help reduce anxiety and depression.

Return to School and Safety Management Plans

If your school is impacted by an attempted suicide, we can assist with the creation of relevant policies and procedures to reduce the impact on the students and school community as a whole.

How we can help

Keep an eye out for our upcoming education seminar on duty of care and mental health for students in late October.

If your school would like to discuss training or new policies, please contact us for further information. We’re also able to point you in the direction of leading industry resources.

What an ‘unprecedented’ year! Haven’t we heard that a few times? While we initially thought 2020 brought all the challenges, 2021 has thrown the education sector its fair share also.

As schools prepare for Term 4 and end of year assessments, we would like to reflect and congratulate schools on all they have handled in 2021. This reflection might also be a handy checklist for you, given the amount of work you have done this year.

A visual timeline of commercial, legal and regulatory considerations for schools in 2021:

Child Information Sharing Scheme

Schools were captured by the Child Information Sharing Scheme (CISS) from 19 April 2021. This means schools have an obligation to respond to information requests made under the CISS and schools can:

1. Share information proactively to other ISEs
2. Make a request for information; and
3. Share information in response to a request from another ISE.

Diversity in schools for pride month

This year we saw a big push to support diversity in schools. Schools can support diversity in many different areas, including bathrooms, uniform and events. When planning your return to school in Term 4 and for 2022, the planning process is an opportunity to imbue your school community with a refreshed commitment to supporting diversity.

From February 2022, practices seeking to change or supress a person’s sexual orientation or gender identity, known as conversion practices, will be banned in Victoria.

This builds on the prohibition in the Equal Opportunity Act 2010 (Vic) against schools engaging in direct or indirect discrimination on the basis of gender identity and sexual orientation.

Reforms to parent-principal relationships and powers

One reform to the Education and Training Reform Act 2006 (Vic) that may have been overshadowed by necessary responses to the pandemic is an increase in powers for principals to remove or refuse entry to parents who pose an unacceptable risk of harm to another person, or to parents who cause significant disruption or interfere with the wellbeing, safety or educational opportunities of students.

We explain the details of these new powers for principals in our article Education amendments significantly alter relationship between parents and teaching staff.

New Guidelines to the Minimum Standards on 1 July

The New Guidelines required schools operating an Early Learning Centre (ELC) to amend their governing document; a constitution, rules or trust deed. This prompted many schools to review and refresh their constitution for other reasons, such as:

1. Compliance with the Australian Charities and Not-for-profits Commission (ACNC)
2. Including the ACNC Governance Standards
3. Making it more clear, using plain language and introducing technology or COVID-19 clauses for digital meetings

We have more information about updating your constitution or rules here.

Other key areas in the new Guidelines included a strengthening of not-for-profit requirements, and the new requirement for annual staff training on the offence of grooming.

Budget crunches: fee reductions, salary increases

Balancing competing concerns may have made budgets particularly unwieldy or tight this year. Key areas we identified that schools need to be across when planning for 2022 are:

1. Employee salaries
   • the need to continue to meet salaries provided by the state government;
   • the effect of freezes on salaries in 2020
   • amendments or negotiations of new enterprise bargaining agreements
2. Tuition fees
   • The effect of caps or refunds in 2020 due to remote teaching
   • Increasing numbers of parents on payment plans
   • Increased demand for scholarships
3. Insurance
   • Reviewing policies for COVID-19 clauses, for example for travel.

Continued remote learning and the mental health dimension

Continued lockdowns shine a light on mental health issues for students. Data shows students particularly impacted are secondary students and those who identify as LGBTIQA+.

Our article on how schools can support students after self-harm or suicide attempts discusses the role of the duty of care in the area of mental health. Tools that can help a school meet this duty of care for students struggling with mental health are:

1. Safety management plan.
2. Return to school plan.

Watch this space for more Moores training for schools in this area.

Boarding house Minimum Standards

From 18 June 2021, new minimum standards for boarding premises came into effect in Victoria. The VRQA then published guidelines for these new standards. Schools were given until 18 September 2021 to complete a deeming process for existing boarding schools to maintain compliance, or work toward compliance with the help of the VRQA. A key reform is the requirements for your Boarding House Acceptance Agreement.

How we can help

If you would like assistance with any other these topics for your school, our various linked articles can provide a starting point.

Please contact us for more detailed and tailored help.

Are you considering collecting vaccination status from your staff or stakeholders? This means you will be collecting health information. If you operate in Victoria, New South Wales and the Australian Capital Territory, health information is regulated by the Privacy Act 1988 (Cth) and state based privacy laws.

Is your organisation captured?

You may need to consider how state based health privacy principles affect how your organisation handles health information, such as vaccination status, if:

• You operate in Victoria and collect, or intend to collect health information (e.g. vaccination status);
• You operate in New South Wales, collect, or intend to collect health information and have an annual turnover greater than $3 million;
• You operate in Victoria or New South Wales and provide a health service (e.g. counselling, physiotherapy);
• You have a state funding or services contract that contractually imposes state privacy laws.

Privacy principles across Australia

Different states have privacy principles that apply in conjunction with the national Australian Privacy Principles.

Jurisdiction	Privacy Principles	Apply directly to some private sector organisations	Can apply by contract (organisation is a contracted service provider to government agency)
Commonwealth	Australian Privacy Principles (APPs)	✔	✔
Victoria	Information Privacy Principles (IPPs)	×	✔
	Health Privacy Principles (HPPs)	✔	✔
New South Wales	Information Privacy Principles (IPPs)	×	✔
	Health Privacy Principles (HPPs)	✔	✔
Australian Capital Territory	Territory Privacy Principles (TPPs)	×	✔
Queensland	Information Privacy Principles (IPPs)	×	✔
	National Privacy Principles (NPPs)	×	✔
South Australia	None	×	✔
Northern Territory	Information Privacy Principles (IPPs)	×	✔
Western Australia	None	×	✔
Tasmania	Personal Information Protection Principles (PIPPs)	×	✔

What does this mean for me?

Given the increasing importance of understanding the vaccination and health status of individuals in the community, your organisation may be changing how it collects and uses information about its staff or other stakeholders, such as customers or students. When information handling practices change – such as introducing a vaccination status register – We/the OAIC recommend(s) conducting a Privacy Impact Assessment to help you reflect on any privacy protection measures and ensure ongoing privacy compliance with all privacy principles that may apply.

How do I do a Privacy Impact Assessment?

1. A Privacy Impact Assessment involves considering the current information handling practices in comparison to the proposed new practices. This helps you see how privacy might be affected – for example, by an increase in the collection of sensitive health information such as vaccination status.
2. Having identifies how the proposed change may affect privacy, you are better placed to introduce steps to protect privacy and maintain compliance. For example, you may re-educate staff or increase data protection measures.
3. Reflect on how the changing information handling practice might require an update to your Privacy Policy.

Following these steps of a Privacy Impact Assessment encourages a privacy-by-design approach, where privacy protections are included in the design process of new information practices.

If you are a school, Moores has published a specific guide to undertaking a Privacy Impact Assessment regarding remote learning adjustments that may also be helpful.

How we can help

If you are uncertain as to how to adapt your current policies and practices to equip you for the new environment, may wish to consider:

• Introducing a Privacy Impact Assessment process and/or template to ensure ongoing compliance and privacy-by-design.
• Reviewing, updating and amending your privacy policy;
• Reviewing, updating or amending internal process sheets for staff when collecting personal information =;
• Implementing and/or reviewing a data breach response plan;
• Drafting consent forms for clients, customers, and/or students that details what information may be collected/used/disclosed; and
• Training your staff on their rights and obligations.

Moores can provide assistance with all of the above and is available for online training with staff members.

Please contact us if you would like further information.

Disability support is a matter of significant public and community interest, with employers operating in a highly regulated, accountable and sensitive environment. The type of care and conduct of employees towards those in their care has come under closer scrutiny in recent years as community expectations have shifted to zero tolerance of any form of abuse perpetrated against supported persons.

Within the backdrop of the Royal Commission into ‘Violence, Abuse, Neglect and Exploitation of People with Disability’ currently underway, we look at some relevant Fair Work Commission (Commission) decisions for guidance for employers, noting the significant role that the Commission has to play in influencing the employment standards for unacceptable workplace conduct.

The Fair Work Act 2009 (Cth) (Act) provides the statutory framework for the majority of employers including in the disability support sector. The Act details the considerations the Commission must factor in determining if an employee’s dismissal from employment is ‘unfair’. The importance of that determination is that an employee may be entitled to a remedy, including reinstatement and/or compensation following dismissal.

An act of misconduct may justify an employee’s dismissal but it can be tricky for disability support employers to navigate where the misconduct presents in the form of neglect or various degrees of aggressive or abusive behaviour. The Act provides that in cases of unsatisfactory performance, an employer is expected to provide warnings prior to dismissal. Misconduct, as distinguished from unsatisfactory performance, must be sufficiently serious to justify dismissal.

What the cases tell us

Disability support organisations may take some comfort in knowing that the Commission is prepared to hold support workers to an uncompromisingly high standard of client care. The case analysis below shows that where an employer can substantiate abuse or neglect towards a supported person, the Commission is willing to denounce such behaviour.

There are a number of factors that may be relevant in a case including the gravity of the conduct, the impact on the person in the employee’s care, the proportionality of dismissal and the employee’s willingness to be forthcoming and honest in any investigation and disciplinary process.

An employee charged with misconduct can find themselves in a difficult position when faced with allegations of neglect or abuse. Their reputation and employment is at stake, and in serious cases, they can face regulatory scrutiny, including placement on the Disability Worker Exclusion List.

During an investigation and/or disciplinary process relating to misconduct, an employee may try to avoid responsibility by either denying the allegations, attempting to discredit the victim (whom in many cases will be a vulnerable supported person), or otherwise downplay the seriousness of the relevant incident/s. A comprehensive investigation process and assessment of the employee’s conduct during that process are therefore critical.

The cases show that the Commission will consider the factual evidence and, in some cases, an employee’s accountability and attitude to the conduct because that can be relevant to an employer’s assessment about the confidence it has (or doesn’t have) in the employee to refrain from that conduct in the future.

The authorities help pave the way for disability support providers to embed zero-tolerance policies into their organisational culture, and insist on strict commitments to equality, inclusion, respect and dignity of those in care. While employers in the sector are not immune to unfair dismissal claims, exposure to significant awards of compensation or reinstatement orders are generally reserved for cases where employers have failed to properly investigate allegations or have relied upon unsubstantiated or false allegations to justify termination of employment (e.g. see Bolden v Lyndoch Living Inc [2014] FWC 8649).

Table of relevant unfair dismissal cases involving disability/elder abuse

Case	Summary of Misconduct	Commission’s Position in Support of Dismissal
Salvannah Bennie v Sunnyhaven Disability Services Ltd [2021] FWC 1789	Disability Support Worker fell asleep during a shift, leaving five disabled and vulnerable clients unattended for a period of 90 minutes.	Deputy President Cross determined at paragraph [46]: The misconduct alleged by the Respondent occurred and involved serious breaches by the Applicant that justified termination. The seriousness of the Applicant’s breaches was compounded by the fact that she failed to take responsibility for her actions, maintaining that sleeping on the job for a significant period of time was not a big issue.
Chadissa Whale v CPL – Choice, Passion, Life [2021] FWC 82	A Direct Support Worker was due to complete her shift at 4.00pm. She was advised by a colleague that a client had a shoulder injury. The Direct Support Worker sent an incident report at 4:06pm, left the employer’s premises at 4:15pm, but did not otherwise offer medical treatment to the client or report the incident verbally to an ‘on-call’ service.	Deputy President Lake determined at [191]: It must be reiterated that there was no insinuation that [the employee] caused the injury and this was not the reason for her dismissal. In giving evidence, the applicant seemed invested in the service she provided to patients – she presented honestly and without embellishment. What was apparent is that she did not properly evaluate the scope of her duty of care – this is evidenced by her failure to call on-call, even in a precautionary manner. It is this failing, in an industry with an exceptionally high bar for care, that provides a valid reason for dismissal.’
Mr Michael Girgis v Civic Disability Services Limited [2019] FWC 4573	A Support Worker neglected his duties by (among other things): • setting up a camp bed with a pillow and blanket in the staff room where he was laying down in the dark during a wakeover shift; and • using a tablet device to watch a movie or television show during his wakeover shift.	Deputy President Bull determined at paragraph [137] and [138]: The conduct of the applicant in retiring with bedding to the floor of his office with the light off and the door shut in the context of performing a wakeover shift with the care and responsibility of vulnerable clients was incompatible with his obligations as a support worker and destructive of the necessary confidence between the employer and the applicant. Given also Ms Girgis’s denial of any wrong doing in respect to lying down on the office floor on a wakeover shift, I am satisfied the employer’s trust and confidence in him has justifiably been lost as the respondent could not be confident that he would not act in a similar way by ignoring his responsibilities to highly vulnerable clients.
Lehmann v Mary Mackillop Aged Care SA [2017] FWC 478 Legmann v Mary Mackillip Aged Care SA [2017] FWCFB 2099	A Patient Care Attendant displayed an open bag of faeces and toilet paper to a supported elderly resident suffering from dementia and incontinence.	Commissioner Hampton determined at paragraph [50]: The actions with respect to the bag of faeces and the associated conduct was a serious breach of the reasonable expectations of a person in Ms Lehmann’s position and was also a significant abuse of the resident’s rights. This was done, not as an act to inform the resident, but undertaken improperly out of frustration and annoyance. The denial of that conduct in the course of the investigation is also relevant in this context.
Dolva v Sylvandale Foundation Limited T/A Sylvandale Foundation [2011] FWA 8340	A Disability Support Worker verbally abused and shouted at a supported person.	Commissioner Deegan determined at paragraphs [79] and [80] that: While termination of employment might in other situations seem a harsh reaction to a staff member raising their voice unnecessarily to a client, given the nature of the employment and the particular vulnerability of the clients of the Respondent in this matter I take the view that the dismissal was the only avenue available to this employer.’

How we can help

Moores can assist employers to review their policies and practices in this area and identify opportunities to further embed standards of workplace conduct. Moores also regularly represents employers in the Fair Work Commission to defend unfair dismissal applications.

Please contact us if you would like further information.

On 30 June 2021, the Australian Government announced further reporting obligations for registered charities. The reporting obligations are expected to provide greater accountability to donors, beneficiaries and the public by requiring:

• large charities to report remuneration paid to responsible persons (such as directors, committee members or trustees) and senior executives; and
• all charities to report related party transactions.

Please note the thresholds that apply to small, medium and large charities will change from 1 July 2022 (taking effect against the 21/22 financial year). For further information on those changes, please see Part 1 – Financial Reporting.

Reporting remuneration to responsible persons

Large charities with two or more key management personnel will be required to report remuneration paid to responsible persons and senior executives on an aggregated basis in their Annual Information Statement. This requirement will apply from 1 July 2022 (reporting against the 2021-22 financial year).

Charities should take particular care with payments to responsible persons. In addition to reimbursing responsible persons for reasonable expenses incurred in performing their duties, some charities may pay responsible persons for their services (such as attendance at meetings). Payments made to responsible persons must be in the best interests of the charity, reflect responsible financial management, be permissible under their rules and otherwise be properly authorised.

In respect of all remuneration paid, charities should ensure that:

• payments to responsible persons and senior executives are not excessive (industry benchmarking may assist here);
• payments to responsible persons are consistent with the charity’s funding arrangements and any fundraising authorisation in their state or territory of incorporation;
• the charity’s governing document allows for payments to responsible persons;
• the charity has a process in place to determine which responsible persons should be paid and what constitutes a reasonable payment (this process should also provide for management of conflicts of interest); and
• the charity is accountable and transparent to members, donors, beneficiaries and the public at large.

Note that if the charity is a company limited by guarantee that does not use the term “Limited” in its name payments may not be made to directors.

Reporting related party transactions

All charities will be required to report related party transactions in their 2023 and later Annual Information Statements. This will take effect from 1 July 2023 (reporting against the 2022-23 financial year).

The Australian Accounting Standards Board (AASB) defines a related party transaction under AASB 124 as ‘a transfer of resources, services or obligations between a reporting entity and a related party, regardless of whether a price is charged’.

Relevantly:

• reporting entities include registered charities of all sizes and corporate structures; and
• a related party is a person (or a close family member of a person) who has control or joint control of a reporting entity, significant influence over a reporting entity or is a member of the key management personnel of a reporting entity.

Related party transactions are of interest to the Australian Charities and Not-for-profit Commission (ACNC) because they may impact a responsible person’s ability to act in the best interests of the charity. Medium and large charities are already required to disclose related party transactions in accordance with AASB 124 in their annual financial report to the ACNC. From 1 July 2023 these transactions will also be more prominently disclosed in the Annual Information Statement itself. Small charities have not previously been required to disclose related party transactions in their financial reports or in the Annual Information Statement.

Charities structured as public companies are already subject to related party provisions under the Corporations Act 2001 (Cth) (Act). This includes a requirement to obtain to approval of the members before giving a financial benefit to a related party (unless one of the exceptions under the Act applies). Responsible persons should ensure they are aware of and comply with the Corporations Act requirements.

How we can help

It is timely for registered charities of all structures to review related party relationships and transactions. All charities should ensure that they have an appropriate related party policy and procedure in place (related party transactions may also be addressed within a conflicts of interest policy) and that they are complying with their financial reporting obligations and (for corporations) the requirements of the Act. This will assist to confirm that related party transactions are properly considered and approved.

Large charities should also review their arrangements in relation to responsible person and senior executive remuneration to ensure that the quantum is reasonable, the approval process was appropriate and (in respect of payments to responsible persons) the payment is not prohibited and conflicts of interest are properly managed.

For more information or guidance regarding any of the above, please do not hesitate to contact us.

On 30 June 2021, the Australian Government announced changes to the financial reporting thresholds under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (Act). The changes aim to reduce the financial reporting obligations of registered charities so that they can direct more of their resources towards pursuing their charitable purpose, and will take effect from 1 July 2022 (reporting against the 2021-22 financial year).

What are the reporting obligations of registered entities under the Act?

All registered charities must submit an annual information statement for a financial year to the Commissioner no later than 31 December in the following financial year.

Medium and large registered charities must submit an annual financial report for a financial year to the Commissioner no later than 31 December in the following financial year. Large registered entities must have their annual financial reports audited, whereas medium registered entities may have their annual financial reports either audited or reviewed. The audit or review must be carried out by a registered auditor in accordance with the auditing standards issued by the Australian Accounting Standards Board (AAS).

The Commissioner may place additional reporting obligations on registered charities in special circumstances (such as when the Commissioner is concerned about a charity’s compliance with the Act).

What changes are being made to the reporting thresholds under the Act?

The changes will change the raise the thresholds that apply to the reporting obligations, reducing the reporting obligations for some charities.

Until 30 June 2022 (20/21 Financial Year)		From 1 July 2022 (21/22 Financial Year)
Small charities < $249,999 revenue	→	No change
Medium charities $250,000 – $499,999 revenue	→	Small charity – no longer required to submit annual financial reports
Medium charities $500,000 – $999,999 revenue	→	No change
Large charities $1,000,000 – $2,999,999 revenue	→	Medium charity – can choose to have financial reports reviewed rather than audited.
Large charities ≥ $3,000,000 revenue	→	No change

As a result of these changes, the Australian Government estimates that:

• around 2,500 charities will no longer be required to submit annual financial reports because they will be recognised as small registered entities rather than medium registered entities; and
• around 2,700 charities will no longer be required to submit audited financial reports because they will be recognised as medium registered entities rather than large registered entities.

Effect on incorporated associations

Registered charities that are incorporated associations must continue to adhere to the financial reporting thresholds that apply in their state or territory of incorporation. Incorporated associations are required to adhere to those thresholds to the extent that they impose more restrictive reporting obligations than those imposed by the Act. For example, an association incorporated in Victoria with revenue of $2 million will be required to meet the reporting obligations of a tier three association in Victoria notwithstanding that it will only be considered a medium registered entity once the changes to the Act summarised above take effect.

State regulators are working to align the reporting thresholds with the ACNC thresholds. However, unless and until these changes are made, the thresholds and associated reporting requirements summarised in the attached table will continue to apply to incorporated associations:

How we can help

Incorporated associations should continue to monitor the information released by their relevant state or territory regulator in order to confirm their 21/22 reporting requirements. Moores will release information about these announcements as they are made.

For more information or guidance regarding any of the above, please do not hesitate to  contact us.

From 18 June 2021, new minimum standards for boarding premises come into effect in Victoria. They have broad application beyond the traditional boarding house, and include a number of core school offerings including outdoor education sites, day boarding and some homestay arrangements.

The new regulations require schools and other organisations that either own school boarding premises or provide school boarding services to meet new minimum standards.

The application of the new minimum standards is broad. The regime captures ‘premises’, not organisations. Regardless of who owns or runs the boarding ‘premises’, there is a requirement to be registered and comply.

The guidelines to the minimum standards informs schools with existing boarding houses whether there is sufficient alignment with existing policies and procedures to satisfy the new minimum standards.

There is only moderate alignment between the requirement for an Acceptance Agreement and existing policies and procedures. Schools may either adapt their existing policies and procedures to address the new requirement for their boarding premises or may choose to develop a stand-alone Acceptance Agreement.

What is an Acceptance Agreement?

The Acceptance Agreement is a written acceptance agreement with parents or guardians which complies with all State and Commonwealth laws, including the Australian Consumer Law. The agreement must be publicly available and cover, at a minimum:

• codes of conduct for students, and parents and guardians;
• boarding services and facilities provided, for example linens or a computer;
• fees, with a clear explanation of the service(s) that fees are payable for and other incidental fees that may become payable; and
• the grounds on which the agreement may be terminated by the provider or the student.

Clear policies and procedures regarding who is eligible for acceptance as a boarding student are also required.

Some of the matters required in the Acceptance Agreement will already be addressed by other policies. But have you considered the following:

• Does your boarding house have a COVID-19 safety plan?
• How do you cater for the emotional wellbeing of students living away from home during a pandemic?
• How clearly are the facilities that are provided described?
• What services are not provided? For example, who takes the children to the hospital when they need immediate care and there are lengthy waits for an ambulance? Is this an expense covered by the boarding house fees, or is it an additional expense?
• Are the methods of termination clearly stated?

Many of these matters are specific to the boarding house and a stand-alone Acceptance Agreement is recommended as best practice.

Next Steps

The new minimum standards are in effect now. The deeming period expires on 18 September. Existing school boarding premises have until 18 September to complete their assessment and statutory declaration in relation to the new registration requirements.

How we can help

The Acceptance Agreement is an integral part of complying with the new minimum standards.

Due to Moores having extensive experience in education governance and regulation, as well as child safety we can help navigate this new area of governance for your school.

Please do not hesitate to contact us.