Closure of the school gates may have brought relief from some concerns, but moving to online learning and keeping the school afloat bring continuing obligations.
School boards need to continue to meet and govern the school, even when students are not on campus.
These challenging times are also a test of the Board’s effectives. It’s easy to be a leader when everything is going well. But, in the words of a fellow cancer survivor, Mary Tyler Moore, You can’t be brave if you’ve only had wonderful things happen to you.
Here are our top tips for Boards and the leadership team of key considerations to keep in mind as schools move online.
This does not stop. The requirements of Ministerial Order 870 include that the Board (or other governing authority) develop strategies for embedding a culture of child safety at the school. The Board needs to (among other things) develop risk management strategies pertinent to the online environment, and still vet teachers, still have reporting channels for reports of suspected child abuse and deliver education to children about standards of behaviour.
Some immediate tips to consider:
Zoom-hosted and other virtual classrooms raise issues of privacy. Parents should not participate or conduct conversations in virtual classrooms, even if present to supervise. Similarly, educators should not refer to ill students or family members other than “they are away from school today”.
Groups of children online need to be reminded about cyber-bullying. The usual rules need to be emphasised, as does parent control over devices. They should be inaccessible at night, despite the changes. Consider if teachers are able to monitor conversations between students that occur on school sanctioned online platforms, recognising that it is likely that the school’s duty of care will extend to any cyber-bullying or inappropriate messaging that occurs on school platforms.
Check all provider contracts and their cancellation clauses. Do not assume a refund is available. Earlier termination may be considered better, but beware fixed term contracts – you may have to pay them out in full, unless you can point to “frustration” or external factors.
Many contracts will allow the builders to walk offsite and make this the school’s problem. Check the force majeure clause to see whether the school has rights to terminate and/or receive back deposits paid.
Check lease terms to understand the implications of non-payment of rent. Re-negotiate rent holidays early.
Consider what you will do if an enrolment agreement allows the school to terminate, particularly around behaviour. Will the duty of care mean you have to find another school for any students that the school terminates? If terminating for non-payment, what is the school’s credit policy? Does this need to be reviewed? Will the school prefer to keep enrolments, and the funding? Note you will need a sufficient number of non-parent board members to vote on any changes to fee or credit policies, because parent board members will need to declare a conflict of interest.
Does your constitution actually allow this? Many are too old and were drafted before emails and telemeetings existed. You may need to amend the constitution to ensure your resolutions are valid in online meetings (query if you can hold a members’ meeting). Furthermore, given the need for fast decision making during these critical times, consider if your constitution allows resolutions to be made by circulation and ensure you are complying with the requisite notice requirements before voting on resolutions.
Directors must ensure the school is solvent – this is a directors’ duty. Even though the law has been temporarily changed to allow insolvent trading in the ordinary course of business for a period of 6 months, the usual rules of good decision making apply. The laws have been relaxed, not repealed, so directors are still required to exercise sound judgment and not breach other directors’ duties. For example, causing school insolvency by entering into a prohibited arrangement would still be an issue. Entering into a modelled temporary insolvency to pay staff who are still working and who will be needed after the crisis, in the context of considered and suitable cost cutting, would be much less problematic.
Flexibility and workforce restructuring need to be considered.
What measures do you need to ensure wellbeing and connectedness? Will children be in uniform/complying with dress code? (Some schools say uniform only required on the visible top half). How will distressed students access school counsellors?
Moores is still working and available 24/7 to support you. For more information or guidance, please do not hesitate contact us.
We wanted to reach out in these challenging times. As the COVID-19 pandemic unfolds, we know that many people are experiencing insecurity and uncertainty about what their future looks like.
Please rest assured that we are equipped to continue to help and support you. Whilst the client experience of working with Moores and the service excellence that you are used to will not change, the way you do business with Moores might change over these coming months.
We are confident that we have the infrastructure in place to continue to support our people and our clients. Working remotely is not new to our business and we and our clients, have already enjoyed the benefits of this model, such as increased employee engagement levels, early adoption of innovative solutions and creative problem solving.
Our number one priority is the health and safety of our staff, clients, referrers and their families. In order to minimise any risks to health and safety, we have put in place internal preventative measures including
We are equipped to run business as usual and will continue to provide our clients the same high level of service we know they love.
Private Clients – Our team are fully functional and will continue supporting clients and referrers with matters of estate planning and structuring, will disputes, family and relationship law, elder law and property transactions.
Organisational Clients – We are continuing to support organisational clients in our specialist sectors and areas of expertise including workplace relations, education, privacy, child safety, not-for-profit and charity, property, construction and infrastructure.
We recognise that these unprecedented times may present new challenges and legal issues for you. We are here to help, please do not hesitate to contact us if you need any support.
As you know, a focus on community and connection are hallmarks of how Moores does business. It is our hope that as a community, we can continue to show compassion and care to one another and, importantly, patience.
Our thoughts are with you and your families. We will continue to keep you updated throughout this period.
Take care and best wishes,
Tessa van DuynCEO and Practice Leader
The Commission for Children and Young People (CCYP) has announced that the Reportable Conduct Scheme (Scheme) has been extended to include youth organisations that provide overnight camps for children as part of its primary activity. This includes organisations such as the Scouts and Girl Guides and may also include sporting, recreational and summer camp organisations. The changes will take place from 1 May 2020 and youth organisations that may be captured should begin preparations.
The Scheme began on 1 July 2017 and is administered by the CCYP. It aims to ensure allegations of misconduct involving children in relevant organisations that exercise care, supervision and authority over children are properly investigated. The Scheme includes reportable allegation involving an employee, volunteer, minister of religion, contractor or other person associated with the organisation.
A reportable allegation means any information that leads a person to form a reasonable belief that an individual associated with the organisation has committed:
whether or not the conduct or misconduct is alleged to have occurred within the course of the person’s employment. This is a wide scope and captures conduct before the individual became an employee (such as historical allegations) and conduct by the employee in their personal lives outside of work.
Reportable conduct means:
The Scheme was rolled out in three initial phases. It captures a wide range of organisations including schools, religious bodies, disability service providers, education and care services and children’s services.
The new changes are set out in the Child Wellbeing and Safety Amendment Regulations 2019. It states that “a youth organisation that provides overnight camps for children as part of its primary activity” will be captured by the Scheme from 1 May 2020.
A youth organisation is defined as a youth organisation:
If your organisation is captured by the Scheme, significant amendments need to be made to your policies, procedures and operations.
The Scheme imposes obligations on the head of organisations to:
Organisations need to ensure that they have the proper policies and procedures in place to comply with the above requirements. It is important to note that the CCYP has begun to take compliance action against organisations that fail to comply with their obligations under the Scheme.
Youth organisations that are now captured by the Scheme need to prioritise preparation to ensure they are compliant by 1 May 2020. We recommend that organisations captured by the Scheme take the following steps.
For more information or guidance regarding the Reportable Conduct Scheme, please do not hesitate to contact us.
The Office of the Australian Information Commissioner (OAIC) just released the following latest notifiable data breach statistics from 1 July to December 2019:
Whilst not the largest reporting sector, private education providers were responsible for 9% of all breaches, which is arguably an over-representation from the sector. Of these breaches, 61% were due to a malicious or criminal attack. Four percent of all breaches were committed by entities in the “personal services” sector, which includes community services and childcare centres. The highest reporting sector was the health sector, notifying 22% of all breaches.
Under the Notifiable Data Breach Scheme, a data breach is ‘eligible’ where:
Moores can assist with drafting or reviewing current policies and procedures to ensure that they are tailored to your organisation’s needs and consistent with best practice to minimise risk and liability. For more information, please do not hesitate to contact us.
Commencing 1 July 2020, the ACNC will review selected charities’ eligibility for Deductible Gift Recipient (DGR) endorsement and charity registration. These reviews are part of DGR reforms announced in 2017, most of which have not yet been implemented. The purpose of the reviews is to ascertain whether charities remain entitled to registration as a charity. If a charity is not meeting its obligations, the ACNC may take action in accordance with its regulatory approach. In very serious cases, this can include loss of charity registration.
The ACNC has said it proposes to review approximately 500 charities per year, starting with Public Benevolent Institutions (PBIs). PBIs are charities that provide relief to people in need and include hospitals, welfare services, legal services and charities working with marginalised and disadvantaged communities.
PBIs will be prioritised for review if they:
The ACNC will also continue their usual practice of reviewing PBI eligibility for charities in response to concerns raised by third parties including the public, employees, beneficiaries, other regulators or the media.
The ACNC has not provided details of how the assessment will be carried out, other than to note that:
Understand your obligations
DGR charities are required to comply with the ACNC Governance Standards and ACNC External Conduct Standards (if they have overseas operations). They must also meet the eligibility requirements for their particular DGR category. In the case of PBIs, the ACNC has released a Commissioner’s Interpretation Statement on Public Benevolent Institutions setting out the ACNC’s interpretation of the law that applies to PBIs. Although the Commissioner’s Interpretation Statement is fairly technical, it provides context and background to the questions in the self-assessment tool.
Many charities were automatically transferred to the ACNC Charity Register when the ACNC was established in late 2012. These charities have most likely never been assessed for compliance by the ACNC. It is important that these charities in particular take the time to review and understand their obligations, as they will be prioritised for review.
Involve your Responsible Persons
Your charity’s Responsible Persons (the board, committee or trustees, depending on your structure) are responsible for compliance with the Governance Standards and External Conduct Standards. This is a governance issue, not an operational issue. The charity self-assessment should be carried out or at least overseen by your Responsible Persons.
Some key issues to consider
The public guidance the ACNC has released and our experience registering new PBIs suggests that the review may look at matters including:
All charities should regularly self-assess to ensure that they are complying with their obligations. Good governance is a requirement of your ongoing entitlement to charity registration. DGRs in particular should be aware that the ACNC is likely to assess additional DGR categories when the PBI assessments are complete.
If you have concerns about your charity’s eligibility, our expert For Purpose team at Moores can assist with your queries. Please do not hesitate to contact us.
The federal Government has just released its response to the Australian Charities and Not-for-profits Commission (ACNC) legislation review. The ACNC legislation provided for a mandatory review of the ACNC’s objects, functions, powers, regulatory framework, and sector red tape. The review report was released in 2018 and made 30 recommendations. The Government response supports 18 of the recommendations.
Many of the proposed changes will require legislative amendment or are subject to consultation. We’ll keep you up to date as they progress. Our comments on the key recommendations supported by the Government – and some that were not supported – are set out below.
The revenue thresholds that determine charities’ reporting obligations will be raised (based on average revenue over a rolling three-year period). The revenue thresholds will be subject to consultation – those recommended in the report were:
This will mean fewer charities are required to provide financial reports, a welcome reduction in red tape for small charities.
Other supported changes to financial reporting include:
The Government supports all charities being required to disclose related party transactions in their financial reports – a requirement that currently only applies to charities preparing general purpose financial reports. Related party transactions are contracts, sales, loans and other agreements between a charity and a “related party” – a defined term that includes the Board and their family members, subsidiaries, management and their family and other associates.
Small charities will be permitted to make simplified disclosure. These changes will align with changes to financial reporting thresholds.
A number of recommendations supported by the Government will enhance the ACNC’s ability to monitor and regulate the conduct of responsible persons, including:
The Government also proposed to release a consultation paper in response to a recommendation that directors’ duties under the Corporations Act be switched back on for the responsible persons of charitable companies.
Importantly, the Government did not support the recommendation to remove the Commissioner’s power to remove or replace a responsible person. However, the Government indicated it would “mandate additional criteria” and “broaden the power of appeal” to introduce safeguards to the process.
Many in the sector will be disappointed by the Government’s rejection of recommendations stemming from the #FixFundraising campaign. These included calls for the Australian Consumer Law to be amended to clarify its application to charitable and not-for-profit fundraising as well as for the development of a mandatory Code of Conduct for fundraising activities.
Instead, the Government says it will continue to support efforts by states and territories to harmonise fundraising laws.
Since its inception, the ACNC has been bound by secrecy provisions that prevent it from publicising the details of its compliance activities (except in very limited circumstances). The Government has supported a recommendation to give discretion to the ACNC Commissioner to release public interest information about compliance activities.
The Government will consult on details – including triggers and boundaries to the Commissioner’s discretion. Additional information about compliance activities may give helpful guidance to the sector about how the ACNC applies the Governance Standards and External Conduct Standards in practice.
Finally, the Government did not support a recommendation to review the exemptions for Basic Religious Charities from financial reporting and from the ACNC Governance Standards.
Moores will continue to provide updates on the proposed reforms as they are implemented and as any consultation takes place. If you’d like further information, please do not hesitate to contact us.
Liquidating a company won’t necessarily avoid husbands and wives from back-paying employees out their own pockets.
In FWO v Sinpek Pty Ltd (In Liquidation) & Ors [2020] FCCA 88, the national workplace regulator secured orders against a director and spouse to personally reimburse two underpaid workers $52,722.48.
The Fair Work Ombudsman proved various underpayment and other workplace contraventions occurring between 8 January 2015 and 10 August 2016, which included requirements for employees to re-pay their tax returns to the employer and meet the costs of stolen fuel.
Central to the FWO’s success was its reliance on third party liability provisions in the Fair Work Act 2009, which extend exposure to contraventions of ‘civil remedy provisions’ to any individual person that was ‘involved’ or ‘knowingly concerned’ in the contravention.
550 – Involvement in contravention treated in same way as actual contravention
To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention.
An analysis of historical FWO initiated cases demonstrates a consistent trend in it continuing to name individual persons as second, third or fourth respondents to legal proceedings (including Accountants[1] and HR Managers[2], for example).
Third party liability doesn’t end with underpayment cases either. Any breach of a civil remedy provision contained in the Fair Work Act, including unlawful dismissals, entitles an applicant to explore whether an individual should also be held to account.
Further, it’s unlikely you would be forgiven if you were only following your supervisor’s orders. For example, in FWBII v Baulderstone Pty Ltd [2014] FCCA 721, two HR managers were found to be co-liable after they complied with an employer’s instruction to terminate an employee’s salary contract because the employee resigned his membership with the CFMEU.
Given the arm of accessory liability is longer and broader than you might think, all persons that are in any way involved within an organisation’s HR function need to consider the following:
For more information or guidance regarding your obligations as an employer, please do not hesitate to contact us.
[1] FWO v Blue Impression Pty Ltd & Ors [2017] FCCA 810
[2] FWO v Oz Staff Career Services Pty Ltd [2016] FCCA 105
If you’re an employer reading this – chances are you’ve recently learned that your employee’s smartphone was, without your knowledge, on record… the whole time.
Or perhaps you’re in possession of an audio recording that raises concerns regarding your employee’s conduct at work?
Naturally you might be thinking:
In this article we debunk some of the myths surrounding secret recordings and aim to demystify the legalities.
The short answer is sometimes, because it depends on which state or territory you’re in.
Where a person is not a party to a private conversation, surveillance legislation in all states and territories generally prohibits a person secretly recording that conversation. Limited exceptions apply across all jurisdictions, including for law enforcement purposes.
On the other hand, surveillance legislation operating in Victoria, Queensland and the Northern Territory generally permits a person to secretly record a private conversation, provided that person was a party to the conversation.
For example, in Victoria:
Even if a secret recording is lawfully obtained, it can still be unlawful for the recording to be communicated or published to a third party without the consent of the participants to the conversation.
Not quite.
The Telecommunications (Interception and Access) Act 1979 (Cth) operates in conjunction with state based surveillance legislation and imposes additional restrictions on the recording or interception of telecommunications systems (including telephone calls). Where a telephone call is recorded, consent must generally be obtained for that recording to be lawful (which explains the pre-recorded message each time you call your insurer).
Where an employee seeks to rely on a secret recording, the value or utility of that recording will change depending on the precise legal claim made by the employee.
In the context of unfair dismissal claims for example, there is a growing consensus among industrial tribunals that recording colleagues without consent is inappropriate. The Fair Work Commission has, time and time again, denounced such behaviour and deemed secret recordings to constitute a form of misconduct.[1]
Further, a surreptitious recording itself can in some cases give employers a valid reason to terminate employment.[2]
The rationale for denouncing secret recordings in the workplace is helpfully summarised by Deputy President Coleman in Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878, [83]:
Unless there is a justification, I consider the secret recording of conversations with co-workers to be highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction. The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.
DP Coleman’s sentiments may not, however, be persuasive (or even relevant) where an employee brings a general protections, adverse action or discrimination claim. Here, the Court’s assessment is confined to a question of what the substantive or operative reasons for dismissal were (rather than broad notions of fairness). In this instance, an employee may legitimately rely on a lawfully obtained recording as supporting evidence.[3]
For example, where an employee alleges they were dismissed for exercising a workplace right (in breach of section 340 of the Fair Work Act 2009), a recording may help an employee advance their case and prove the true reasons for dismissal.
The era of smart-phones and tablets, together with Australia’s adversarial workplace relations system, makes recording conversations tempting and accessible to employees. Employers may err on the side of caution and take the following protective measures:
Moores can give you strategic guidance on how to deal with a secret recording in the workplace, and in some cases – use them to your advantage.
For more information, or to speak with a member of our workplace relations team, please do not hesitate to contact us.
[1] See for example Green v Lincon Logistics Pty Ltd [2017] FWC 4916; Evered v AHG Services (Vic) Pty Ltd [2013] FWC 9609
[2] See Schwenke v Silcar Pty Ltd [2013] FWCFB 9842
[3] See Wintle v RUC Cementation Mining Contractors Pty Ltd [2013] FCCA 694
That is, unless it’s your home.
The “Main Residence Exemption”, being the exemption for property in which you live, is the most common exemption from CGT.
But what about if you take a job overseas and sell your home in Australia while you’re not an Australian tax resident?
On 9 May 2017 the Government announced changes to be made to the main residence exemption from CGT, which were finally enacted on 12 December 2019, with effect from the announcement date. The key change applies to limit the circumstances in which a foreign resident (namely, a resident of a country other than Australia for tax purposes) can access the main residence exemption for their home owned back in Australia.
Essentially a foreign resident is now excluded from eligibility for the main residence exemption, if they are a foreign resident at the time of the sale of their home (or other CGT event).
Importantly, if you are a foreign resident when you die, this change applies to your executors and beneficiaries, surviving joint proprietors and to special disability trusts.
You bought your home in January 1990. You lived in it as your home until you accepted a job overseas in 2016.
In October 2020, you decide to sell it, while you’re still working overseas and not an Australian tax resident.
Even though the property was your home for 26 years, you will not have access to the main residence exemption.
If, however, during your period of non-residency:
you will still be eligible to access the main residence exemption.
The significant life events are limited to:
There is a short window during which foreign residents who owned property prior to 9 May 2017 may still access the main residence exemption.
The catch? They need to sell it prior to 30 June 2020.
Foreign residents also need to consider their ability (or lack thereof) to access the 50% CGT discount, which ordinarily applies to asset owned by an individual or trust for longer than 12 months.
If the owner became non-resident after 8 May 2012 there may be applicable apportioning rules based on the period of time that the current foreign resident was a resident of Australia during the period of ownership.
A practical problem with the new measures will be the matter of compiling the cost base information for the property. This is likely to be extremely challenging given the owner would have previously believed such information was never going to be required, thereby the likely result will be an even larger capital gain than the owner would otherwise have had.
Moores’ expert team can discuss how these changes may affect your tax position in relation to property ownership in Australia. For more information, please do not hesitate to contact us.
Victoria made history last night in passing Australia’s first Gender Equality Bill (the Bill). This landmark piece of legislation is designed to level the playing field so that all Victorians, regardless of gender, can benefit from equality of opportunity and equal rights.
The passing of the Gender Equality Bill will improve workplace gender equality as well as signal to the Victorian community that equality is not negotiable and cultural change is integral to a safer, healthier and more productive community.
The new law applies to certain organisations with more than 50 employees, including public sector bodies, local councils, universities, the courts, the Office of Public Prosecutions and other defined bodies.
From March 2021, affected organisations will be required to promote gender equality in the community through a number of different means, such as reviewing and amending policies, programs and services. These organisations are obliged to develop a Gender Equality Action Plan and report publicly every two years on their progress against it. The Bill establishes an independent Public Sector Gender Equality Commissioner, who amongst other things, will have an education function and be empowered in certain circumstances to take steps to ensure that affected organisations are complying with their legal obligations. Finally, the Act provides that Regulations can set targets and quotas against which affected organisations will be held accountable to.
Our Workplace Relations team at Moores has extensive experience in supporting universities, local councils and other employers to prevent gendered harm and discrimination, as well as respond to and resolve complaints. Our Workplace Relations leader, Skye Rose, is an award winning workplace relations and discrimination lawyer, who is a recognized expert in discrimination, child safety and the prevention of sexual harm and misconduct.
The new Gender Equality Act has a commencement date in March 2021 so as to give affected organisations time to get their house in order. Regardless of whether your organization has legal obligations under the Bill, Skye and our team would be delighted to work together with organisations to ensure that they are prepared for the commencement of this historic Bill.
For more information, please do not hesitate to contact us.