Particularly in smaller organisations, directors and committee members (referred to as ‘directors’ from here on) are often volunteers chosen primarily for their connection to the organisation’s mission rather than their governance experience.
Unfortunately, good governance requires an increasingly sophisticated skill set and understanding. In 2019, directors may need to consider the impact of matters on their organisation as diverse as: recommendations from the banking royal commission; the new ACNC External Conduct standards; changes for deductible gift recipients that are not registered charities; and a potential change in government.
Each organisation should consider whether the level of experience of its committee or board is appropriate for the complexity of the organisation and the regulatory environment in which it operates. It may be appropriate to provide professional development to current directors or recruit additional directors with specialist governance qualifications.
The recent royal commissions have caused significant reputational damage to organisations and the individuals responsible for their governance. Almost invariably, those investigations found cultural failures had allowed misconduct to thrive.
The lesson for directors is not only that culture is important, but that the public considers that setting and overseeing the culture of an organisation is a key part of good governance. Culture is no longer a solely operational issue – if it ever was.
Directors need to ensure that their organisation’s values meet changing community expectations and meaningfully translate into day to day operations.
Baby Boomers make a disproportionately large contribution to the bottom line of many not-for-profit organisations. But the boomer wave is cresting. – By the end of 2019, almost half of the Baby Boomers will have retired, and will no longer be earning a regular income.
The window of time within which not-for-profit organisations can engage with their most rusted-on and generous donors is starting to close. Directors need a strategic, segmented fundraising strategy to engage with retiring boomers, Generations X and Y and the emerging Gen Z workforce.
For more information on the issues facing NFPs in 2019, please do not hesitate to contact us.
This article was first featured in the Community Directors Intelligence newsletter in February 2019.
These set out the new evidence requirements under each Minimum Standard and set out detailed hoops for schools to jump through.
The focus is increased student welfare and outcomes, and more transparency for boards and management.
Whilst some existing requirements have been removed, many requirements are new and specific.
1. Transparency – Online publication of enrolment agreements
This is a new requirement. The guideline requires the enrolment agreement to be publicly available and include specific clauses, including fees and codes of conduct.
In my experience, many enrolment agreements do not contain these items. Many also contain potentially discriminatory content and (wrongly) form part of enrolment applications.
Unfortunately, the guideline requirement is named “enrolment policy”, but requires publication of the “enrolment agreement”. These are not the same, and should not be in the same document.
If you have not already separated your enrolment documents into the best practice Moores Enrolment Trifecta, now is the time.
2. More Scrutiny regarding services to students with a disability
One new requirement is that the school must show evidence that, in respect of lands and buildings, reasonable adjustments have been made. This, along with the new requirements to demonstrate how a school “enacts its philosophy”, suggest that the area of discrimination will be scrutinised. Schools are also advised, in light of the focus on enrolment documentation, to check their enrolment policy is consistent with legal requirements regarding discrimination, including reasonable adjustments. Many schools believe they can rely on exemptions in legislation. These are typically much narrower than is widely believed.
3. Student Behaviour Management and Procedural Fairness
From 1 July 2019, grievance procedures will need to include a statement as to how the school manages “procedural fairness”. Note that policies are required here, as is a statement of the school’s approach to behaviour management. Please also review your parent code of conduct. You will need to include this in the enrolment agreement to be published online. If it does not include procedural fairness, or is used as a “stick” when it is not binding on parents, this will be non-compliant. I’ve seen many parent codes of conduct, and many which are introduced and managed badly. They can be enforced, and can be extremely useful, but need to be correct and compliant.
4. Not for Profit Purpose and Governance
As discussed at many an education law conference last year, and on my school board, new guidelines have been introduced regarding board transparency and relationships with third parties. The VRQA requires, for example, board delegations of authority, and a conflict of interest register, but the largest compliance requirement relates to third party arrangements. Copies of a range of funding and other contracts are required in order to ensure there are no “prohibited arrangements” – ie school funds being applied for purposes not related to the school. Whilst “uncommercial” and “mates” deals are a focus here, religious schools in particular need to carefully consider financial and other relationships with faith bodies which may form part of the school’s community.
5. Overseas Students
The significant evidence requirements relating to international students (including prescribed documents and training) remain in place. These do not form part of these guidelines, but are in separate documentation, including a specific evidence guide and evidence portfolio.
If you are not already familiar with these, it’s important to become familiar as you review these new guidelines. You are probably expected to publish your international student enrolment agreement online, as part of these new requirements. This, therefore, must also be up-to-date. We have Moores guides on these international student requirements.Please contact Cecelia Irvine-So below if you would like a copy or for more information regarding the new guidelines.
At Moores, we work extensively with schools in the independent and Catholic sectors. If you have any queries about these guidelines, or any other matter, please do not hesitate to contact us.
The Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was delivered by Commissioner Hayne on 1 February 2019. The recommendations focus on financial advice (fee arrangements, conflicted remuneration and quality of advice) as well as the banking industry – in particular, consumer lending.
While the financial services industry, mortgage brokers and the banking sector are abuzz about the scope of the recommendations, elderly bank customers garnered no specific mention in the final report. This is despite evidence having been given by elderly bank customers in relation to inappropriate lending, inappropriate financial advice and (to some extent) the targeting of these consumers by product hawkers.
Post-GFC FOFA reforms resulted in the legislating of a “best interests” duty, grandfathering of commission arrangements and giving of renewal notices/fee disclosure obligations. While these reforms have imposed a compliance burden on financial services businesses, they went a long way to protecting consumers’ rights – inappropriate advice given to clients pre-FOFA which may have been motivated by commissions no longer necessarily complies with the “best interests” duty. Nevertheless, the banking royal commission heard evidence of post-FOFA advice that arguably did not meet the “best interests” requirement.
The Hayne recommendations will result in further reform and the end to grandfathered commission arrangements. While this change will have a significant impact on a number of businesses, an end to these arrangements is an important step for consumer protection and perhaps one that ought to have been included in the FOFA reforms.
A major development will be the creation of a compensation scheme of last resort. The legal profession has the “Fidelity Fund” which is a compensation scheme of last resort, the National Guarantee Fund operates in respect of the Australian Securities Exchange. A financial advice sector compensation scheme would protect consumers with a meritorious claim who are otherwise unable to recover losses because the licensee no longer exists, has insufficient insurance coverage or if their insurance will not respond (due to e.g. the timing of when a claim is made).
It is worth noting that AFCA will have an extended jurisdiction to consider financial advice compensation claims. The time period for claims that AFCA can deal with will be extended beyond the current 6 year limitation period to 10 years. That means those with potential claims against financial advisors for losses during or immediately post-GFC can lodge an application (if they did not raise their complaint within the existing statutory time limit).
Do the recommendations go far enough to protect consumers from inappropriate financial advice, or from advice that is not in their best interests? We will see. What the recommendations do not deal with is whether and if so, how, banking practices can or should be amended to protect vulnerable elderly customers. Various jurisdictions in the United States have implemented banking reforms to allow banks to suspend suspicious transactions and to report concerns around vulnerable customers (and eg, intra family loans).
When dealing with your clients, it is important to bear in mind that:
For more information, please do not hesitate to contact us.
The Guardianship and Administration Bill 2018 (“the Bill”) was introduced on 19 December 2018 and is currently before the Legislative Assembly for debate. It is expected to be passed in its current form in due course, and come into effect on 1 March 2020, unless proclaimed earlier.
This is the first in a series of articles that will provide an explanation of the new legislation. Here, we provide an outline of the Bill and key changes.
The Bill was introduced to bring guardianship and administration matters in line with changing legislation and more contemporary views on disability having regard to the United Nations Convention on the Rights of Persons with Disabilities among other things.
The Bill now expressly acknowledges the gradations of impairment and disability, as opposed to a binary view on capacity. This brings it in to line with other recent legislation such as the Mental Health Act 2014 (Vic), the Powers of Attorney Act 2014 (Vic) (POA Act), and the Medical Treatment Planning and Decisions Act 2016 (Vic) (MT Act).
Criminal offences:
The Bill creates new offences for guardians or administrators who dishonestly use their powers to obtain a financial advantage, with penalties of up to 5 years imprisonment or 600 penalty units. The same offence exists for officers of body corporates.
While a represented person is and remains entitled at common law to claim compensation for an administrator’s dishonest use of powers (or oversight), incorporating new criminal offences is welcome. The next article in this series will address this in more detail.
The offence provisions are in response to the Victorian Law Reform Commission’s concerns of rising rates of elder financial abuse. These concerns have also led to the creation of a new Elder Financial Abuse and Elder Law practice at Moores, led by Jessica Latimer.
Changes to VCAT’s powers and procedures:
While VCAT has retained its powers in relation to making guardianship and administration orders, there will be significant changes under the new legislation.
This includes the ability for VCAT to make more flexible and tailored orders, in order to promote the person’s personal and social wellbeing. The Act provides that a person’s personal and social wellbeing is promoted by:
The act also includes a new definition of decision making capacity consistent with the POA Act and MT Act, where capacity is presumed unless there is evidence to the contrary.
The third article in this series will address VCAT’s powers and procedures in greater detail.
Supported decision-making:
Supported decision-making is an emerging concept that is also in the POA Act and MT Act. It recognises that individuals may have decision making capacity if they are given additional support. The Bill allows VCAT to appoint a supportive guardian or administrator (with consent of the represented person), who will be authorised to do things such as collecting information, communicating information and giving effect to decisions.
The fourth article in this series will look at supported decision making.
Orders made under the old Act will continue to remain in force unless revoked or set aside by a Court or VCAT. The provisions of the old Act will continue to apply and the powers and duties of guardians or administrators will continue to be dictated by the old Act.
However, some provisions of the new Bill, if passed, will apply such as the provisions regarding resolution of disagreements, enforcement orders and offences. If an order is required to be reassessed, it will be reassessed under the new Act.
Individuals and organisations that are involved with guardianship and administration matters or represented persons should take the following steps.
If you seek further advice about these matters, please feel free to contact us.
This article is part of our Guardianship and Administration Bill series:Guardianship & Administration Bill 2018 – Administrator liability and new offencesGuardianship & Administration Bill 2018 – Supported Decision-Making
The recent High Court case of Commissioner of Taxation v Tomaras determined the Court has the power to shift a tax liability from one party to another. Lawyers, accountants and financial advisors and their clients with substantial tax considerations should take heed.
The case determined if the conditions of section 90AE(3) are satisfied, a transfer of a tax debt from one party to the other may be on the cards. While this case was limited to a tax debt, it could apply to any debt.
The case of Commission of Taxation v Tomaras considered whether the Family Court could substitute the husband to be solely liable to the ATO for a tax debt in the wife’s name.
The basic facts of this case are:
Section 90AE(1)-(2) of the Family Law Act grants the Court the power to order, during their family law case, that a debt – any debt – of one party, be paid by the other party. Importantly, this is binding on creditors. The Question for the High Court, was whether the ATO was exempt as a Commonwealth revenue authority and had Crown Immunity from such general provisions of legislation?
The unanimous decision of the High Court was that the Family Law Courts do have the power to bind the ATO.
Question answered, the matter has now been referred back to the Federal Circuit Court for adjudication of the competing claims. It is critical to note that even though the High Court has confirmed that the lower Court can make an order directing that one party to a marriage be substituted in the place of the other as a debtor to the ATO, it does not mean that the Court will in fact follow that course of action.
Section 90AE(3) of the Family Law Act sets out the conditions which must be satisfied for an order of substitution to be made. In a nutshell the Court must be satisfied that:
Judges, Kiefel CJ and Keane J commented that:
‘Given that, so far as it appears from the record in the present case, the husband is a bankrupt and the wife is solvent, it is not possible to see how the condition in s 90AE(3)(b) could be satisfied in this case. More generally, it is difficult to see how any case where there is a real prospect that the substitution of one spouse for another as a debtor of the revenue authority would create or enhance a risk of non-payment would not fall foul of Section 90AE(3)(b) of the Act.’
In other words, since the husband is bankrupt he won’t be able to pay the debt and there is no real chance that the order the wife wants will be made.
Before seeking an order or coming to an agreement in a family law dispute that shifts the liability for a debt, the implications would need to be carefully considered. These can include:
In practice, this question does not regularly arise.
A more common issue with debt in the Family Court is where one party is failing to meet their obligations which mean the asset put up as security is at risk. In this case, the approach may not be to move the debt, but instead to stop the creditor from recovering the debt for a defined period.
Moores applied under this law to restrain a creditor from pursuing a debt until a family law case was finalised.
In a case Moores ran last year, our client sought to keep the family home which had a large mortgage on it. It was in the other party’s sole name and he had not been paying the mortgage. The bank was threatening to foreclose.
Moores successfully got an injunction to stop the bank proceeding, and ultimately got a very good result. This enabled our client to keep the home and catch up the arrears of the mortgage payments. Importantly, at all times our evidence was clear that the bank was not at risk of being out of pocket as there was plenty of equity in the home to cover their debt.
If you have any questions regarding this article, taxation matters or family law settlements in general please do not hesitate to contact us.
This article by Moores’ privacy expert Cecelia Irvine-So first appeared in the Belonging Early Years Journal.
In 2018, Australia saw the introduction of the Notifiable Data Breach (NDB) Scheme and the prevalence of data breaches became clear. In the Office of the Australian Information Commissioner’s (OAIC) second quarterly report of the NDB Scheme, a total of 242 breaches were reported from 1 April to 30 June 2018.
The education sector was listed as the fourth most likely sector to suffer a data breach in the OAIC second quarterly report. Early learning providers are bound by the National Ouality Standards (the Standards), as well as the Australian Privacy Principles (APPs). Data security falls under Standard 7, relating to governance and leadership.
Early learning providers also have data security obligations under privacy laws in order to prevent data breaches. This article will set out the basics of privacy and outline an organisation’s data security obligations with a focus on the ECEC sector.
Privacy is a set of principles protecting the collection, use, disclosure, storage and destruction of personal information. An early learning provider is likely to hold children’s health information such as allergies, medical conditions, disabilities, and medications – a type of information that is particularly sensitive.
Both personal information and sensitive information must be carefully secured by early learning providers to prevent data breaches and protect an individual’s privacy.
Most early learning providers are bound by the Privacy Act and APPs because they have a turnover of $3 million or more (or are part of a larger organisation with a turnover of $3 million or more).
Early learning providers need to be across all the privacy principles in order to appropriately and securely store privacy data. Most importantly, early learning providers will need:
Penalties of up to $1.8 million apply for companies that have a privacy breach.
Since February 2018, all companies who are required to comply with the Privacy Act must also prevent data breaches, and report any eligible data breaches that occur to the regulator.
The recent regulator’s report highlighted the main causes of data breaches. The majority of breaches were caused by malicious or criminal activity (59 per cent) or human error (36 per cent). The most common examples of malicious or criminal activity were:
Human error was a key source of data breaches.
The most common errors were:
Only eligible data breaches need to be reported. Therefore, you need to be equipped to consider, in the event of a breach, whether the breach is ‘eligible’.
An eligible data breach arises when:
Your data breach response plan should contain the following elements:
Record keeping is an important aspect of data security and privacy compliance. Privacy legislation requires the destruction of personal information that is no longer needed. Equally, you must retain information you are required to keep!
As privacy and data security become an increasing concern, it is important that organisations prioritise action in relation to both prevention and response.
Assess which scheme or legislation applies to your organisation.
Review your privacy policy to ensure that it is tailored to your needs and compliance requirements.
Create a data breach response plan to ensure swift action to mitigate risk, including:
Provide training to your staff on your privacy policy and data breach response plan as well as when data breaches need to be reported. Review your service provider agreements and other information sharing arrangements to help you understand the responsibilities and rights of each party.
Early learning providers are uniquely placed in holding the sensitive information of young children and families. While privacy can seem like a daunting topic, taking an active approach can allow early learning providers to set themselves apart as leaders in the sector and ensure protection of families’ data.
As a privacy expert and practice leader in the Corporate Advisory Team at Moores, Cecelia Irvine-So has significant experience working with education and early childhood clients, helping them prevent data breaches and respond if they do occur. For more information, please do not hesitate to contact us.
The ATO’s benchmark rates for “market rent” have changed. Here’s why it matters.
Non-commercial supplies made by charities are GST-free.
For a housing agency, rent must be set below 75% of the market rent to be non-commercial and therefore GST-free.
When a housing agency makes GST-free supplies, it can claim input tax credits for all the GST spent in making the supply. This allows a housing agency to claim back all the GST it spent on a new development, or purchase of new residential property. This is a significant economic advantage for NFP charitable housing agencies.
As an aside, that is also why a charitable housing agency should never purchase brand new residential property using the GST margin scheme. The GST margin scheme prevents the purchaser from claiming any input tax credits.
DHHS and the Victorian Housing Registrar have rent-setting policies. But the ATO threshold (less than 75% of market rent) matters too – if rents cross this threshold, GST input tax credits are put in jeopardy.
Obviously, market rent differs from property to property. This creates some difficult work in administering the many (sometimes thousands) of dwellings under management. You don’t have to obtain a sworn valuation in relation to each property, but you must have a sound basis for working out market rent in relation to each property.
The ATO requires ‘market value’ to be worked out by either:
ATO benchmark rates are convenient, but arbitrary. They are now divided into geographic areas, with different benchmark rates set for each area. Previously, benchmark rates were just set on a capital city basis.
Where a housing agency was relying on generous ‘Melbourne’ benchmark rates previously, some properties may now fall into other geographic categories with different (lower) benchmark rates. The benchmark rate may fall far enough to cause your current rental to exceed 75% of the benchmark rate for some properties.
If you rely on market values, you don’t need to do anything in response to the benchmark rates. However, you should be reviewing and re-setting your market values for properties on an annual basis.
If you rely on benchmark rates, you should:
Please contact us for more detailed and tailored help.
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ACNC data tells us that total charity assets sit around $200 billion.[1] Small charities (with annual turnover less than $250k) hold the majority of those assets – around $170 billion. However, those small charities represent only 1.4% of annual charity income.
It comes down to this – plenty of charities there who are asset rich and income poor. And insufficient reliable income is often a restraint on how much a charity can do in achieving its mission.
The community (and charity law) expects charities to use their assets to further their charitable purposes. The big questions for these asset-rich charities seem to be “are we doing enough?” And “how could we do more with what we have?” It is a high order governance question.
Plenty of charities are in the enviable position of having a large asset base in real estate. For those who are “land rich” in that sense, here are a few ideas to ponder as you ask yourself the question “how could we do more with what we have?”
If your Church or Charity would like to discuss a potential opportunity, please do not hesitate to contact us.
Masking racism as “banter” won’t cut it anymore says the Fair Work Commission | Moores
In this update, we look at whether racist comments in the workplace can constitute serious misconduct warranting dismissal.
StarTrack Express Pty Limited (StarTrack), Australia’s largest parcel delivery service provider, successfully defended an unfair dismissal claim in the Fair Work Commission (FWC) because it was able to prove that the dismissal of an employee was not harsh, unjust or unreasonable.
StarTrack submitted that it had found that, Mr Michael Taylor (employee of StarTrack for 17 years), had used the following racial slurs in the workplace:
After making the above finding, StarTrack provided an opportunity for Mr Taylor to respond, and then proceeded to terminate his employment on the grounds of serious misconduct.
In light of the findings around Mr Taylor’s conduct, and the process it undertook during the investigation, StarTrack submitted that the dismissal was not harsh, unjust or unreasonable.
In the alternative, the Transport Workers’ Union of Australia (TWU), on behalf of Mr Taylor, argued that Mr Taylor engaged in “well-meaning workplace banter which was not intended to offend but rather to entertain” and argued that no individual had actually complained about his comments. Furthermore, the TWU argued that the termination was excessive because casual swearing and racial slurs were common place in this workplace, and that this language was enjoyed by others.
Ultimately, the FWC held that the dismissal was not unfair, harsh and unreasonable because:
Furthermore, Commissioner Cambridge was very critical of the TWU’s arguments in favour of Mr Taylor. On this point, Commissioner Cambridge stated:
The attempt to defend or otherwise justify the applicant’s use of racially offensive language on the basis that the applicant didn’t believe that it was harmful, and that no one had complained, is an approach that has regrettable and disturbing parallels with the recent exposure of incidents of sexual harassment in the employment context, and which has created what is referred to as the “#MeToo movement.”
Such an attempted defence or justification of abhorrent behaviour is an approach that disregards the fundamental wrongdoing, and it fails to appreciate that the victims of the wrongdoing do not complain because they feel powerless to prevent the conduct.
Further to the above, Commissioner Cambridge referred to the email signature on TWU’s emails that contained a statement that “I swear never to commit, excuse or remain silent about violence against women”, and suggested that in the circumstances of this case “such a mantra should be expanded to include: “I swear never to excuse racism’”.
Accordingly Commissioner Cambridge found that the dismissal was not harsh, unjust or unreasonable, and dismissed the case.
Racism and bullying can have a significant and detrimental impact of people – personally and professionally. Left unaddressed, racism in the workplace can lead to absenteeism, staff turnover, a culture of bullying, and discrimination, bullying and worker’s compensation claims.
In light of the above, we recommend that employers:
These steps can help to create safe and inclusive environment for all staff, but will also help to ensure that you can respond swiftly and effectively when employees behave in an inappropriate and unlawful manner
If you’d like further information about what you can do to create a safe and inclusive work environment or for assistance responding to a complaint of inappropriate behaviour, please do not hesitate to contact us.
The recent Fair Work Commission (Commission) decision in Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 has confirmed that employers may reject an employee’s medical certificate if it is too vague to enable them to discharge their legal obligations following a long period of absence.
In June 2016, Mr Gadzikwa, commenced a period of unpaid personal leave with the Department of Human Services (DHS) due to a mental health condition. Mr Gadzikwa did not return to work, save for three days in September 2016.
In late 2017, DHS informed Mr Gadzikwa that his unpaid sick leave would come to an end in January 2018, and sought proof that he was fit for duty.
Mr Gadzikwa provided DHS with a medical certificate that stated he was fit to perform “light duties”. Given the extended period of absence, DHS sought further specifics about Mr Gadzikwa’s ability to return to work.
DHS’ request for further information prompted an argumentative response, but limited additional information was provided.
In light of the ambiguous language contained in the medical clearance, DHS dismissed Mr Gadzikwa on the basis that it was unsatisfactory. Mr Gadzikwa lodged an unfair dismissal claim alleging that the information that he had provided was sufficient.
Fitness for work: When employers can reject a medical certificate | Moores
Deputy President Colman rejected the unfair dismissal claim and found that Mr Gadzikwa had failed to provide a sufficient medical clearance at the end of his authorised leave because the medical certificate:
The Commission was also satisfied that dismissal was not effected by any procedural unfairness or disproportionate to the relevant conduct.
Employers should seek legal advice before rejecting a medical certificate, or dismissing an employee because it requires further information. While subjecting an employee to unreasonable requests for information about their disability could expose an employer to an adverse action or disability discrimination claim, allowing an employee to return to work without sufficient information on their fitness for duty or the modifications required may breach an employer’s OHS obligations.
For more information, or to speak with a member of our workplace relations team, please do not hesitate to contact us.