Brimbank
Com
munity
Governa
n
ce
Handbook
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TABLE OF CONTENTS
ACKNOWLEDGEMENT OF COUNTRY........................................................................................................................................1
Foreword ................................................................................................................................................. 1
About This Handbook .............................................................................................................................. 2
How To Use This Handbook ..................................................................................................................... 3
Navigating This Manual
............................................................................................................................ 3
List Of Abbreviations
................................................................................................................................ 4
What Is Governance?............................................................................................................................... 5
CHAPTER ONE: GETTING STARTED............................................................................................................................................6
What Is An Incorporated Organisation?
................................................................................................... 6
What Does Not-For-Profit Mean?
............................................................................................................ 6
Why Become Incorporated?..................................................................................................................... 6
Options
........................................................................................................................................................... 8
New Laws For Victorian Incorporated Associations
...................................................................................... 8
The Process Of Setting Up
........................................................................................................................ 8
Nominate A Secretary.................................................................................................................................... 9
Decide On A Name For Your Organisation
.................................................................................................... 9
Display An Association Name
...................................................................................................................... 10
Draft A ‘Statement Of Purposes’
................................................................................................................. 10
Draft Or Adopt A Set Of ‘Rules’ For The Association
.................................................................................10
Vote To Incorporate The Association
........................................................................................................... 11
Send In Form, Documents And Fee To Cav ................................................................................................ 12
Wait For Notice From Cav
......................................................................................................................... 12
Regulatory And Legislative Reform
........................................................................................................ 12
Changes To The Incorporations Act 2012
........................................................................................13
Australian Charities And Not For Profits Commission (Acnc)
...................................................................13
Regulatory Authorities
................................................................................................................................. 14
Consumer Affairs Victoria
........................................................................................................................... 14
The Australian Charities And Not-For-Profits Commission (Acnc)
..............................................................14
Other Authorities
........................................................................................................................................ 14
Resources And Links
............................................................................................................................... 16
Naming......................................................................................................................................................... 16
Intellectual Property
.................................................................................................................................... 16
Model Rules
................................................................................................................................................. 16
CHAPTER TWO: RUNNING THE ORGANISATION..................................................................................................................17
Understanding Relationships
.................................................................................................................. 17
Good Governance.................................................................................................................................. 18
Policies And Procedures
.............................................................................................................................. 18
Governing Shared Community Facilities
..................................................................................................... 18
Boards And Committees Of Management
.............................................................................................. 19
Financial Responsibilities
............................................................................................................................. 19
Committee/Board Protection
...................................................................................................................... 19
Legal Responsibilities
................................................................................................................................... 20
Effective Planning
................................................................................................................................... 20
Incorporated Associations
..................................................................................................................... 21
Overview Of Accountability Processes
........................................................................................................ 21
Committees Of Management In Incorporated Associations
.....................................................................21
Administrative Roles Of The Committee Of Management
.......................................................................22
Declaration Of Conflict Of Interests
........................................................................................................... 22
Legal Duties Of Committee Or Board Members In Victorian Incorporated Associations
......................23
Other Legal Obligations Of Committee Of Management Members
.........................................................23
Office Holders
.............................................................................................................................................. 24
Meetings
................................................................................................................................................ 25
Annual General Meeting
............................................................................................................................. 25
Apply For An Extension Of Time To Hold An Annual General Meeting
........................................... 26
Holding Ordinary Meetings
............................................................................................................. 26
Conducting Meetings
...................................................................................................................... 27
A Note About Minutes
................................................................................................................................ 28
Protecting Your Name, Ideas And Material
............................................................................................ 28
Internet And Social Media
2
.................................................................................................................... 29
What Is Social Media?
................................................................................................................................. 30
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Leases ................................................................................................................................................... 30
Insurance And Risk Management
........................................................................................................... 31
Health And Safety
.................................................................................................................................. 31
For Committees Of Management
............................................................................................................... 31
For Employees
............................................................................................................................................. 32
Resources And Links
.............................................................................................................................. 33
Governance Structures................................................................................................................................ 33
Governance – Legal Issues
........................................................................................................................... 33
Positions In Community Organisations
...................................................................................................... 34
Not-For-Profit Law - Who Runs The Organisation?
........................................................................... 34
Role Of The Treasurer
................................................................................................................................. 34
Good Governance References
.................................................................................................................... 35
Risk Management And Insurance Resources
............................................................................................36
Legislation
....................................................................................................................................... 36
Risk Management Resources
...................................................................................................................... 36
Insurance...................................................................................................................................................... 37
Occupational Health And Safety
.................................................................................................................. 37
Worksafe Victoria Resources
....................................................................................................................... 38
Worksafe Victoria ........................................................................................................................... 38
Risk Assessment
............................................................................................................................. 38
Working Safely In Community Services
.......................................................................................... 38
Other Occupational Health And Safety Information
...................................................................................38
Related Legislation
....................................................................................................................................... 39
Associations Incorporation Reform Act (2012)
............................................................................... 39
Associations Incorporations Regulations (2012)
............................................................................. 39
Model Rules
................................................................................................................................................. 39
CHAPTER THREE: MANAGING PEOPLE...................................................................................................................................40
People Involved In Community Organisations
...................................................................................... 40
Definitions
............................................................................................................................................. 40
Employees – At A Glance
....................................................................................................................... 41
In Case Of A Dispute .................................................................................................................................... 41
Independent Contractors – At A Glance
................................................................................................. 41
In Case Of A Dispute .................................................................................................................................... 42
Volunteers
............................................................................................................................................. 43
Definition And Principles Of Volunteering
.................................................................................................. 43
Definition Of Formal Volunteering
.............................................................................................................. 43
Principles Of Volunteering
........................................................................................................................... 44
Rights And Responsibilities Of Volunteers
.................................................................................................. 44
Understanding The Details Of Working With Volunteers
........................................................................ 45
Legal Obligations To Volunteers
.................................................................................................................. 45
Volunteer Health And Safety In Community Organisations
......................................................................45
Written Agreements With Your Volunteers
................................................................................................ 46
Liability For The Conduct Of Volunteers
...................................................................................................... 46
Discrimination And Equal Opportunity
....................................................................................................... 46
Payments And Volunteers
........................................................................................................................... 46
Managing Disputes
...................................................................................................................................... 47
Background Checks On Employees, Contractors And Volunteers
........................................................... 47
Working With Children Checks
.................................................................................................................... 47
Resources And Links
.............................................................................................................................. 48
Employees
.................................................................................................................................................... 48
Contractors And Consultants
...................................................................................................................... 48
Volunteers
.................................................................................................................................................... 48
CHAPTER FOUR: MANAGING YOUR FINANCES ....................................................................................................................49
Not-For-Profit Does Not Mean Not Making Money
................................................................................ 49
Responsibility For Overseeing The Finances
........................................................................................ 49
Record Keeping, Auditing And Reporting
............................................................................................... 50
Tax Obligations
....................................................................................................................................... 51
Annual Tax Returns
...................................................................................................................................... 51
Supplier Discounts
................................................................................................................................. 52
Resources And Links
.............................................................................................................................. 53
Australian Taxation Office (Ato)
.................................................................................................................. 53
Legal And General Information On Managing Your Finances
...................................................................53
Record Keeping, Auditing And Reporting
................................................................................................... 53
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CHAPTER FIVE: RAISING MONEY.............................................................................................................................................55
Overview ............................................................................................................................................... 55
Fundraising Options
............................................................................................................................... 56
Grants.................................................................................................................................................... 57
What To Consider When Looking For Grants ............................................................................................. 57
Your Organisation’s Internal Requirements
................................................................................................. 57
Grant-Maker Requirements
......................................................................................................................... 57
Grant Amount And Conditions
.................................................................................................................... 58
Read And Understand The Conditions
........................................................................................................ 58
Agreeing To The Conditions
........................................................................................................................ 58
Using The Grant Or Funding ....................................................................................................................... 59
Non-Compliance With The Conditions Of The Grant Or Funding
.............................................................59
Applying For Grants And Funding
............................................................................................................... 59
Tax Considerations
....................................................................................................................................... 59
Goods And Services Tax (Gst)
.......................................................................................................... 59
Income Tax
...................................................................................................................................... 59
Fund Raising Activities
........................................................................................................................... 60
Exemption From Registration
.......................................................................................................... 60
Collecting Money On Roads And At Intersections
........................................................................... 60
Collecting On The Footpath, Nature Strip Or Other Public Area
..................................................... 61
Collecting Money Or Other Donations Door-To-Door
..................................................................... 61
Raffles
............................................................................................................................................. 61
Calcutta Sweepstakes
...................................................................................................................... 61
Bingo............................................................................................................................................... 61
Patriotic Funds
................................................................................................................................ 61
Sponsorship ........................................................................................................................................... 62
Gifts, Wills, Bequests And Endowments
................................................................................................. 62
Resources And Links
............................................................................................................................... 63
Grants........................................................................................................................................................... 63
Find A Grant.................................................................................................................................... 63
Tax And Grants
..................................................................................................................................... 63
Fundraising................................................................................................................................................... 63
Gifts, Wills, Bequests And Endowments
..................................................................................................... 64
Legal Information
........................................................................................................................... 65
Bequests
......................................................................................................................................... 65
CHAPTER SIX:ORGANISING EVENTS .......................................................................................................................................66
Overview ............................................................................................................................................... 66
Permits For Events................................................................................................................................. 66
Ways To Identify Which Permits May Be Needed
.....................................................................................67
Venue Or Equipment Hire
................................................................................................................... 68
Event Insurance ..................................................................................................................................... 68
Getting Your Own Insurance
..........................................................................................................68
Insurance Cover For Rides And Entertainment
......................................................................................... 69
Insuring Workers At The Event................................................................................................................... 69
Insuring Against Problems Caused By Food You Serve
.............................................................................69
Legal Obligations Around Event Safety
................................................................................................... 69
Accessible Events And Activities
............................................................................................................ 70
Event Sponsorship.................................................................................................................................. 70
Fundraising Events................................................................................................................................. 71
Events Serving Food............................................................................................................................... 71
Council Permit
............................................................................................................................................. 71
Serving Alcohol
...................................................................................................................................... 72
Providing Alcohol At An Event
..................................................................................................................... 72
Fundraising ............................................................................................................................................ 72
Road Closures
........................................................................................................................................ 72
Using Volunteers At Events
.................................................................................................................... 72
What Makes A Good Event?
.................................................................................................................. 73
Criteria For A “Good” Event........................................................................................................................ 73
A Clear Rationale
............................................................................................................................ 73
Well Planned
................................................................................................................................... 73
Effective Publicity And Promotion
................................................................................................... 74
Risk “Free”
..................................................................................................................................... 74
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Resources And Links
.............................................................................................................................. 76
Related Legislation And Regulations
.......................................................................................................... 76
Legal And General Issues
..................................................................................................................77
Licences For Events..................................................................................................................................... 77
Organising Events........................................................................................................................................ 77
Insurance And Risk Management
............................................................................................................... 78
Serving Alcohol And Food Safety
................................................................................................................ 78
CHAPTER SEVEN: PROVIDING SERVICES................................................................................................................................79
Legal Issues
............................................................................................................................................ 79
Duty Of Care And The Standard Of Care When Providing Services............................................................79
Discrimination And Human Rights When Providing Services
....................................................................80
Discrimination
................................................................................................................................. 80
Human Rights
.................................................................................................................................. 80
Australian Consumer Law
...............................................................................................................80
Unsolicited Selling Provisions In The Australian Consumer Law
........................................................81
Whistleblower Law Reforms And Impact On Not-For-Profit Organisations
..............................................81
Scams .......................................................................................................................................................... 82
Reporting Scams
............................................................................................................................. 82
Resources And Links
............................................................................................................................... 83
General Information
.................................................................................................................................... 83
Privacy Issues ................................................................................................................................... 83
Scams........................................................................................................................................................... 84
CHAPTER EIGHT: MARKETING, MEDIA & CAMPAIGNS......................................................................................................85
Marketing And Communication
............................................................................................................. 85
Understanding External Relationships
.................................................................................................... 85
Working With The Media
.................................................................................................................... 86
Appointing A Spokesperson
........................................................................................................................ 86
Developing A Media Policy
.......................................................................................................................... 86
Resources And Links
.............................................................................................................................. 86
CHAPTER NINE: MANAGING DIFFICULTIES AND CHANGE..................................................................................................87
When Things Go Wrong ......................................................................................................................... 87
Handling Conflict In Your Organisation
................................................................................................... 87
Using Mediation To Resolve Conflicts And Disputes
...................................................................................87
Conflicts Within Victorian Incorporated Associations
................................................................................ 87
Court Action
................................................................................................................................................. 88
Financial Problems And Insolvency
........................................................................................................ 88
Incidents And Accidents......................................................................................................................... 89
Criminal Conduct
................................................................................................................................... 89
When Things Change ............................................................................................................................. 89
Closing Or Winding Up
........................................................................................................................... 89
Winding Up And Finances........................................................................................................................... 90
Excess Funds
................................................................................................................................... 90
Resources And Links
............................................................................................................................... 91
Resolving Disputes
....................................................................................................................................... 91
Financial Problems
...................................................................................................................................... 91
Managing Changes
...................................................................................................................................... 92
Closing Or Winding Up
....................................................................................................................... 92
Incorporated Associations
.............................................................................................................. 92
Companies...................................................................................................................................... 92
Cooperatives
................................................................................................................................... 92
Indigenous Corporations
................................................................................................................. 92
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CHAPTER TEN: WHO TO TURN TO WHEN YOU NEED ADDITIONAL ADVICE AND SUPPORT........................................93
Organisations
......................................................................................................................................... 93
Searching For Current Legislation
.......................................................................................................... 94
Victorian Legislation And Regulations
......................................................................................................... 94
Commonwealth Legislation
......................................................................................................................... 94
Training.................................................................................................................................................. 94
Project Planning Template
..................................................................................................................... 95
Evaluation Template
.............................................................................................................................. 96
Working With Other Cultures Checklist
................................................................................................. 97
Agenda .................................................................................................................................................. 98
Minutes
................................................................................................................................................. 99
LIST OF TABLES
TABLE 1 INCORPORATION CHECKLIST
......................................................................................................................... 9
TABLE 2:RESPONSIBILITIES OF KEY REGULATORY AUTHORITIES
............................................................................... 16
LIST OF FIGURES
FIGURE 1: KEY ELEMENTS OF GOVERNANCE
.............................................................................................................. 5
FIGURE 2: THINGS TO CONSIDER IF YOU WANT TO INCORPORATE
............................................................................ 7
FIGURE 3: GOVERNANCE - INTERNAL AND EXTERNAL ENVIRONMENTS
.................................................................. 17
FIGURE 4: STRATEGIC PLANNING PROCESS
.............................................................................................................. 20
FIGURE 5: GOOD MEETINGS
.................................................................................................................................... 27
FIGURE 6: STEP BY STEP PROCESS TO ACCESS INFORMATION ON LICENCES FOR EVENTS
........................................ 67
ATTACHMENTS
ATTACHMENT ONE: PROJECT PLANNING TEMPLATE
............................................................................................... 95
ATTACHMENT TWO: EVALUATION TEMPLATE
.......................................................................................................... 96
ATTACHMENT THREE: WORKING WITH OTHER CULTURES CHECKLIST
.................................................................... 97
ATTACHMENT FOUR: AGENDA TEMPLATE
.............................................................................................................. 98
ATTACHMENT FIVE: MINUTES TEMPLATE
................................................................................................................ 99
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ACKNOWLEDGEMENT OF COUNTRY
Brimbank City Council respectfully acknowledges and recognises the Kulin Nation including the
Wurundjeri, Bunurong and Boon Wurrung Peoples as the Traditional Owners of this land and waterways
and pays respect to their Elders past, present and future. For the Traditional Owners the lands in the City
of Brimbank have always been a significant trading and meeting place.
FOREWORD
This handbook is designed to provide local community groups and organisations information to
function well. The information will help you to better understand your legal responsibilities and
how to get the most out of your organisation. It is a resource which you can refer to when you need
to. Importantly, this manual will help to get on with the purpose for which your organisation was set up,
feeling confident you have done what you can to operate effectively.
Group and community organisations make an important contribution to the life of our community.
There are over 900 operating in the Brimbank municipality. This includes social groups, cultural and
religious groups, youth organisations, seniors’ clubs, Ethno specific groups, environmental groups, parents’
groups, Playgroups, Toy Libraries, Neighbourhood houses and sporting clubs to name a few.
These groups are important in supporting people across the whole of the community to be engaged
in community life. They contribute to improving and maintaining people’s health and wellbeing and to
encourage people to have a voice in decisions which impact on their lives.
The handbook uses information, which is readily available from a number of sources, but particularly
the Not-for-Profit Law website, a one-stop shop site managed by Justice Connect and Consumer Affairs
Victoria (CAV).
We have also used the Indigenous Governance Toolkit extensively. Developed by
Reconciliation Victoria, this handbook is written in everyday language and provides all the information
you need to ensure that your organisation runs smoothly.
A reference section has been included at the end of each chapter. Each section contains links to
relevant websites, enabling you to access the most up-to-date information. This resource is also
available online on the Brimbank City Council website: Brimbank City Council - Community Governance
Resources.
Should you require any further information or assistance regarding this handbook, contact Brimbank City
Council:
Brimbank City Council PO Box 70
SUNSHINE VIC 3020
Tel:+613 9249 4000
Fax:+613 9249 4351
Email:
info@brimbank.vic.gov.au
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ABOUT THIS HANDBOOK
This handbook was first published in 2013 as a result of the ‘Building Capacity for Community Governance
in Brimbank’ Project carried out by Council’s Community Participation and Inclusion Team. Community
groups and small community organisations in Brimbank identified the need for a resource to support
and strengthen the governance of their groups. This occurred within community consultations for
the Brimbank Community Strengthening Policy and with input from the Brimbank Community Groups
Network.
The current publication is the revised version of the handbook reflecting up to date and relevant content
to community groups and organisations.
Special thanks to Nola Tudball of n.l.t consulting who researched and developed this handbook in
2013.
Special thanks to Pirooz Jafari of Track C Consulting for the review and further revisions and research of
the handbook in 2020.
© Brimbank City Council 2020
This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part may be reproduced by any
process without written permission from Brimbank City Council.
Disclaimer
Any representation, statement, opinion or advice, expressed or implied in this publication is made in good faith but on
the basis that Brimbank City Council, its agents and employees are not liable (whatever by reason of
Negligence, lack of
care or otherwise) to any person for any damages or loss whatsoever which has occurred or may occur in relation to that
person taking action in respect of
any representation, statement, or advice referred to above.
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HOW TO USE THIS HANDBOOK
The handbook makes reference to a number of useful resources and guides that are written by various
organisations including Not-for-profit Law, Consumer Affairs Victoria and Reconciliation Victoria.
Information from the websites of these organisations has been used extensively throughout this
handbook and in many instances directly quoted from these sites.
A list of abbreviations is provided on page 4. Throughout this document there is reference to a
vast range of resources and organisations, and to simplify abbreviations have been used when
appropriate.
This manual also contains templates that you can use for a range of different functions and checklists.
These are contained at the end of each section to which they relate.
NAVIGATING THIS MANUAL
Section One:
Getting Started
Section Two:
Managing Your Organisation
Section Three:
Managing Your People
Section Four:
Managing Your Finances
Section Five:
Raising Money
Section Six:
Organising Events
Section Seven:
Providing Services
Section Eight:
Marketing, Media & Campaigns
Section Nine:
Managing Conflict and Change
Section Ten:
Who to Turn to When you need additional advice and support
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LIST OF ABBREVIATIONS
ABLIS
Australian Business Licence Information Service
ACL
Australian Consumer Law
ACNC
Australian Charities and Not for Profits Commission
AGM
Annual General Meeting
ASIC
Australian Securities and Investments Commission
ATO
Australian Taxation Office
CATSI Act
Corporations Aboriginal and Torres Strait Islander Act 2006
CAV
Consumer Affairs Victoria
CEO
Chief Executive Officer
CFA
Country Fire Authority
CSA
Chartered Secretaries Australia
DARU
Disability Advocacy Resource Unit
DDLS
Disability Discrimination Legal Service
DGR
Deductible Gift Recipient
Doj
Department of Justice
DSCV
Dispute Settlement Centre Victoria
FAQ
Frequently Asked Questions
FBT
Fringe Benefits Tax
GST
Goods and Services Tax
ICAA
Institute of Chartered Accountants
ICT
Information and Communications Technology
ITEF
Income Tax Exempt Fund
LCIS
Local Community Insurance Services
LIV
Law Institute of Victoria
MFB
Metropolitan Fire Brigade
NES
National Employment Standards
NFP
Not-For-Profit
OHS
Occupational Health and Safety
ORIC
Office of the Registrar of Indigenous Organisations
PAYGW
Pay As You Go Withholding
QUT
Queensland University of Technology
SES
State Emergency Service (VIC)
TCC
Tax Concession Charity
VA
Volunteering Australia
VCGLR
Victorian Commission for Gaming & Liquor Regulation
VCOSS
Victorian Council of Social Services
VEOHR
Victorian Equal Opportunity and Human Rights Commission
VICCSO
Victorian Council of School Organisations
VMIA
Victorian Managed Insurance Authority
Worksafe
Victorian Worksafe Authority
WWCC
Working with Children Check
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WHAT IS GOVERNANCE?
This definition of governance was developed by the Indigenous Community Governance Research
Project, 2004.
It is useful to think of governance as being about people and how they organise themselves as a group
to manage their own affairs to achieve the things that matter to them. To do that they need to have in
place processes, structures, traditions and rules so they can:
•
Determine the membership of their group;
•
Decide who has authority, and over what;
•
Ensure that authority is exercised properly;
•
Enforce and implement their decisions;
•
Hold their decision makers accountable;
•
Steer their future direction;
•
Negotiate their rights and interests with others; and
•
Establish the most effective and legitimate arrangements for getting those things done.
The framework used in the
Indigenous Governance Toolkit developed by Reconciliation Victoria,
provides a useful way to consider governance and has informed the structure of this Manual.
Governance is made up of many different, but equally important elements. These all need to
work well together if a group or organisation are going to be effective. Each of these different
parts have to work together in order to create strong effective and legitimate governance.
(Indigenous Governance Toolkit).
Some of the key parts of governance are illustrated in Figure One.
FIGURE 1: KEY ELEMENTS OF GOVERNANCE
Your processes
(how you do it)
Your strategies
(what you do)
Your People
(who does it)
Your resources
(what you need)
Your culture
(the way you do
things)
Your wide
environment
(outside
influences)
·
Rules
·
Laws
·
Powers
·
Procedures
·
Roles and
responsibilities
·
Plans
·
Goals
·
Milestones
·
Programs
·
Functions
·
Community
·
Members
·
Leaders
·
Managers
·
Staff
·
Infrastructure
Technology
·
Funding
·
Capital –
cultural, social,
economic
·
Natural asset
s
·
Values
·
World view
·
Traditions
·
Behaviour
·
Networks
·
Other groups
·
Other
communities
·
Government
departments
·
Local
Source: Indigenous Governance Toolkit
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CHAPTER ONE:
GETTING STARTED
WHAT IS AN INCORPORATED ORGANISATION?
Incorporation is the legal structure of a club or community group, operating as a Not-For-Profit (NFP). An
incorporated association can be recognised by the word ‘Incorporated’ or the abbreviation ‘Inc.’ after its
name. When a club or community group incorporates, it becomes a ‘legal person’ – that is, a legal entity
that stays the same even if its members change.
Victorian incorporated associations must register with Consumer Affairs Victoria under the Associations
Incorporation Reform Act (2012).
WHAT DOES NOT-FOR-PROFIT MEAN?
Not-For-Profits (nfps) are organisations that exist to benefit their members. A NFP can actually make a
profit but it is required to re-invest any profits into the organisation or use them to pay for activities and
functions.
WHY BECOME INCORPORATED?
A NFP organisation can be incorporated or unincorporated. If you want to set up a community group or
other membership-based NFP organisation, you are not legally required to become incorporated. A NFP
organisation can exist simply as a group of people with a common interest and a common purpose.
The main reasons for incorporation are normally to do with:
•
Funding:
grants from government or philanthropic trusts and foundations may only be available
to incorporated associations
•
Taxation:
an unincorporated group may not be eligible for the same tax concessions as an
incorporated group
•
Legal action:
the committee of management and membership of an unincorporated
association can be more at risk of being sued if something goes wrong. Incorporating the
organisation as a NFP can also allow a group to take legal action as a group. Incorporation also
protects the individual members of the association from legal liabilities. It also enables the
organisation to enter into contracts in its own name; for example, to borrow money or buy
equipment
Before you make a decision about becoming or not becoming incorporated, there important things
to consider. Have a look at the checklist prepared by Not-for-profit Law which will help you with key
considerations about becoming an incorporated association: Before you start - Checklist.
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FIGURE 2:
THINGS TO CONSIDER IF YOU WANT TO INCORPORATE
Things to
consider
If you incorporate
If you do not incorporate
Membership
Your organisation must have at least five members.
Your organisation can have any number
of members.
Not-for- profit
status
Your organisation must operate not for profit, and can
trade only if:
Its main purpose is not to make profit
Its rules ensure its assets will be distributed for not-for
profit purposes if it is wound up or dissolved
Its rules contain a clause authorising trading
Your organisation is not restricted from
trading or doing business for profit.
Legal status
Your organisation becomes a ‘legal person’ (that is, a
legal entity that stays the same even if its members
change). It can do the following things in its own name:
Accept gifts or bequests
Buy and sell property
Invest and borrow money
Open a bank account
Sue and be sued
Take out public liability insurance.
Your organisation cannot do any of
the things described under ‘if you
incorporate’, at left.
Legal
protection
for members
Members and office bearers are protected against
personal liability for the organisation’s debts and other
legal obligations.
Members could be personally liable if
the organisation incurs debts or has
legal problems.
Statutory
obligations
Your organisation must comply with requirements for
accounting, auditing and annual reporting. Failing to do
so can result in prosecution, penalties or deregistration.
Your organisation will not have
the expense of meeting statutory
obligations.
Costs
Your organisation must pay fees for incorporating and
lodging some administrative forms. There are also costs
involved in meeting ongoing statutory obligations, such
as auditing.
Your organisation will not have
the expense of meeting statutory
obligations.
Disputes
Your organisation must either have its own procedure
for resolving internal disputes, or use the procedure in
the model rules for incorporated associations (see CAV
website).
Your organisation is not required
to have or use a dispute resolution
procedure.
Contracts and
agreements
Your organisation can enter into contracts and
agreements in its own name. This offers more certainty
to potential contracting parties such as lenders, lessors,
employees and suppliers of goods and services.
Your organisation cannot enter into
contracts or agreements in its own
name. It will have no legal standing.
Grants
Your organisation will be eligible to apply for a larger
range of government and non- government grants.
Your organisation will not be able to
apply for grants that require applicants
to be incorporated.
Source: Consumer Affairs Victoria
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OPTIONS
There are a number of legal structures for nfps. These include incorporated associations, incorporated
co-operatives, public companies limited by guarantee or indigenous corporations. All of these types
of NFP legal structures are governed by a State or Commonwealth laws. The Not-for-profit Law website
provides useful information about which structure may suit your group (link in last section of this chapter).
NEW LAWS FOR VICTORIAN INCORPORATED ASSOCIATIONS
New laws for Victorian incorporated associations came into effect on 26
November 2012. Not-for-profit law reports the following:
In 2009 and 2010, the Victorian Government passed legislation which made a number
of changes to the Associations Incorporation Act (1981) the legislation that regulates all
incorporated associations in Victoria. The changes never came into effect. More recently, the
Victorian Parliament passed the Associations Incorporation Reform Act 2012. This new Act
incorporates the changes previously passed, in a ‘re-write’ of the Act. While the name of the
new Act and some other provisions are slightly different, the key changes made by the 2009
and 2010 legislation will come into force as planned. Explanations of these changes are on the
Not-for-profit Law website: https://www.nfplaw.org.au
THE PROCESS OF SETTING UP
This information is taken from the Not-for-profit Law
website. They advise:
While setting up an incorporated association is a relatively simple process, there are a few important
decisions that your organisation will need to make (and may need to get advice about). In particular, the
wording of your organisation’s ‘statement of purposes’ and ‘rules’ need to be chosen carefully so that your
organisation can apply for tax concessions, fundraising registration and other benefits in the future. It is
worth getting these documents right at the start, as it can be time-consuming and difficult to change them
later on.
The information here is an overview of the main requirements for setting up an incorporated
association. As Not-for-profit Law points out, it is not legal advice. If you or your organisation has a specific
legalissue, you should seek legal advice before making a decision about what to do.
Here is a check list of the things your organisation will need to do before you can apply to
Consumer
Affairs Victoria
to be incorporated.
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TABLE 1: INCORPORATION CHECKLIST
CHECK
1. Nominate a secretary
2. Decide on a name for your organisation
3. Draft a statement of purposes
4. Draft or adopt a set of 'rules' for the association
5. Hold a pre-incorporation meeting
6. Complete Consumer Affairs Victoria (CAV) 'Application for Association Incorporation'
form
7. Submit form, documents and fee with CAV
8. Wait for notice from CAV
Source: www.consumer.vic.gov.au
NOMINATE A SECRETARY
The
Victorian Association Incorporation Reform Act (2012) requires an organisation to nominate a
‘Secretary’. This person is the ‘contact person’ for the organisation and they agree to give their
details (name and address) to CAV for this purpose. The Secretary must be over 18 years of age, live in
Victoria and consent to be appointed as the organisation’s Secretary.
The Secretary is the person that the organisation authorises to apply to CAV for incorporation. The
Secretary also has an ongoing, administrative role in the organisation, particularly in relation to
providing information to CAV. The Act sets out a number of the duties and requirements for the role of
Secretary. An incorporated association must have a Secretary at all times (the position must be filled
within 14 days of it becoming vacant).
To find out more about the Secretary, Committee of Management and other people involved in a
Victorian incorporated association, see Running the organisation.
DECIDE ON A NAME FOR YOUR ORGANISATION
The
Associations Incorporation Reform Act
(2012) requires that an organisation choose and that CAV
approve a name for the incorporated association.
You need to make sure that the name chosen is not being used by (or too similar to) any other
organisation. Check Victorian and national business name registers for this purpose (links in last
section of this chapter).
To find out if your proposed name can be registered, you must lodge an application with the CAV. The
fee is fully refundable if your application is unsuccessful. You can use the company names.
Register to confirm the availability of a name for registration. There might be other restrictions that
affect your application.
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When you decide on a name and it is approved by CAV, your organisation may also wish to look into
the laws that are available to protect the intellectual property rights in that name (see Associations
Incorporation Reform Act (2012) which places restrictions on incorporated association’s registering a
different business or trading name.
DISPLAY AN ASSOCIATION NAME
Your association’s name, including the word ‘Incorporated’ or the abbreviation ‘Inc.’, must appear on all its
notices, advertisements, publications and business documents. This indicates to other organisations and
businesses that your organisation is incorporated and has limited liability. The Act requires that you use
the full name on all business documents. Your organisation may use a common seal (stamp) but this is no
longer legally required.
If, after incorporation, your organisation wants to change its name, your organisation must pass a special
resolution at a meeting, and then the secretary must apply to CAV for approval.
DRAFT A ‘STATEMENT OF PURPOSES’
The
Associations Incorporation Reform Act (2012) requires that an incorporated association have a
statement of purposes. (This is similar to an ‘objects clause’ in a company constitution.)
The Act does not say what this ‘statement’ must include. In general, the statement is a short, written
document which sets out the main objectives that the organisation is trying to achieve and the planned
activities of the organisation.
While writing a statement of purposes sounds like a simple task, your organisation should be aware that
the wording of your organisation’s statement may have significant legal implications in the future.
For example, there are laws that provide certain, eligible, not-for-profit organisations with quite significant
tax concessions (such as exemptions from income tax and deductible gift recipient status). For more
information about tax concessions, see Section Four of this Manual).
To decide whether your organisation may be eligible for these concessions, the Australian Tax Office (ATO)
will look at your organisation statement of purposes (and its rules – see below).
If, once it is set up, your organisation intends to apply for some of the concessions and benefits that
are available to charities and other not-for-profit organisations, you should seek advice about the most
suitable wording of your organisation’s ‘Statement of Purposes’. Advice at this early stage will save your
organisation from having to amend the statement in the future.
DRAFT OR ADOPT A SET OF ‘RULES’ FOR THE ASSOCIATION
The
Associations Incorporation Reform Act (2012) requires that an incorporated association have a set
of ‘rules’ for the association (sometimes also called a ‘constitution’). These are designed to govern the
internal affairs of the incorporated association.
The Schedule to the Associations Incorporation Reform Act 2012 found near the end of the Act, sets
out a list of 23 matters that an incorporated association rules
must
cover (for example, membership
qualifications and fees, powers of the management committee, rules about sources of funds, dispute
resolution processes, among many other matters).
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To help organisations wishing to become incorporated associations, the Victorian Government has
drafted a set of ‘Model Rules’ which are set out in Schedule 5 to the Association Incorporation
Regulations 1998 (Vic). The Model Rules have clauses that address all 17 issues required by the Act.
They are available as an option for newly forming incorporated associations to use for their rules.
These rules are attached in Appendix Two of this Manual.
Here is a really important piece of advice from Not-for-profit Law:
Beware! While it may seem easier (and initially less costly) for your organisation to just adopt
the Model Rules, it is important that your group seek advice as to whether these rules are
suitable for your organisation. Although called ‘model’ rules, the rules do not have all of
the wording that many organisations need when they try to register for fundraising or minor
gaming licences (needed to conduct a raffle) or to apply for tax concessions or a grant in the
future. There are certain clauses that your organisation will need to change or add to the
Model Rules for these purposes.
For example, the Model Rules do not include the ‘not-for-profit’ and ‘winding-up’ clauses
that many government departments and funders will look for when deciding whether
to give your organisation funding or assess you as eligible for tax concessions. For more
information about these clauses, see ‘Frequently Asked Questions (FAQ): “What does not
for-profit mean?” on the
Not-for-profit Law
website.
The CAV examines the ‘rules’ submitted by incorporating associations closely, so yourorganisation may
need to get help with drafting new or modified clauses to make sure they comply with the legislation.
Your organisation should note that the Association Incorporation Act provides rules which act as a
‘contract’ between the incorporated association and its members.
VOTE TO INCORPORATE THE ASSOCIATION
In order to incorporate, the association must hold a meeting to vote on whether to do so. All members
must be given at least 21 days’ notice of the meeting.
At this meeting, a majority of votes cast by members, whether personally or by proxy if proxies are
allowed, must:
•
Authorise a person, who is at least 18 years old and resides in Victoria, to incorporate the
association (the ‘Secretary);
•
Approve a proposed ‘Statement of Purposes’;
•
Approve proposed rules that comply with the Act or approve the adoption of the model
rules.
The person who lodges the application for incorporation becomes the first secretary of the incorporated
association, unless another secretary has been nominated. The committee members of the
unincorporated association form the first management committee of the incorporated association, unless
the rules specify otherwise.
COMPLETE CONSUMER AFFAIRS VICTORIA (CAV) ‘APPLICATION FOR ASSOCIATION INCORPORATION’ FORM
–
visit
Consumer Affairs Victoria
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The person authorised to apply for incorporation must complete and lodge:
•
The Application for Association Incorporation;
•
A copy of the proposed ‘Statement of Purposes’;
•
A copy of the proposed Rules of the Association (unless your association is adopting the
model rules without any changes);
•
Copies of any trusts that affect the association;
•
The application fee (see CAV website).
SEND IN FORM, DOCUMENTS AND FEE TO CAV
Once you have established that you are eligible to register an incorporated association, you can create an
online account with CAV to apply to register your organization. This is called mycav and you need to set up
an account if you don’t have one already. You can visit the CAV website and follow the prompts to create
an online account
mycav.
If you do not have access to the internet, you need to discuss your needs with CAV to see how you can
register your organization. However, you need to be aware that the CAV requires incorporated associations
to use the online portal to manage their account with CAV. This includes submission of annual statements.
You also need to pay the fee which is set out in the Association Incorporation Regulations 1998 (Vic).
Fees and charges will vary depending on whether you use Model Rules or create your own rules. For
the most up to date information on fees and charges, visit CAV website on Fees & Forms - Incorporated
Associations
Not-for-profit Law advises (as noted above) that it is worth getting your organisation’s rules right at the
start, even if it means paying the higher fee. If your organisation needs to change its rules, it will have
to go through the process of applying to CAV again, and paying another fee (see CAV website for details
and up-to-date fees).
WAIT FOR NOTICE FROM CAV
Once CAV have received your application for incorporation, they will review the information. This can
take a number of weeks, and sometimes longer. It will often take longer if your organisation has chosen to
amend the Model Rules or submit its own rules.
If CAV do not approve your rules, you may wish to seek independent advice about whether they
comply with the requirements in the Victorian Associations Incorporation Reform Act (2012).
If CAV accepts your application for incorporation, a Certificate of Incorporation (with your
organisation’s registration number) will be sent to your organisation, at the address included on the
application form. You should keep this Certificate, a copy of your organisation’s ‘Statement of
Purposes’ and a copy of the rules in a secure place.
On becoming an incorporated association, your organisation need to comply with the requirements
of the Associations Incorporation Act, the Associations Incorporation Regulations and your
organisation’s rules. You should become familiar with all of these documents to understand all of your
organisation’s legal requirements.
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REGULATORY AND LEGISLATIVE REFORM
Significant legislative and regulatory reform occurred at both Commonwealth and State Government
levels. The intent of these reforms is to streamline processes for nfps and to reduce the “red tape” and
duplication which occurs across jurisdictions. Specifically:
•
The
Associations Incorporation Act (1981)
wa
s
repealed and a new Associations
Incorporation Reform Act came into effect in 2012.The reforms that will be included are
attached in Appendix One; and
•
The Commonwealth Government in July 2012 established the Australian Charities and Not-for
Profits Commission(
ACNC
) and related legislation, to facilitate more streamlined Commonwealth
processes.
CHANGES TO THE INCORPORATIONS ACT 2012
This information is from Consumers Affairs Victoria website. It outlines the changes to the Incorporations
Act which occurred in late 2012. Source: CAV - Legislation Updates
In the second half of 2012, the Associations Incorporation Act (1981) was repealed and a new
Associations Incorporation Reform Act (2012) came into effect.
Among other things, this new Act:
•
Allows incorporated associations to trade, provided that profits are used to further the purposes
of the association rather than distributed to its members;
•
Revise annual reporting requirements and audit thresholds, reducing reporting obligations for
smaller associations;
•
Includes a definition of the term ‘office holder’ and clarify the duties required of an
association to provide indemnity for committee members;
•
Clarifies the minimum rights of members, in particular attendance and voting at meetings, and
to access financial and other records;
•
Requires an association to maintain a register of members and ensure information about
them will not be used or disclosed inappropriately;
•
Replaces the term ‘public officer’ with ‘secretary’;
•
Improves grievance and dispute resolution procedures;
•
Allows an association to keep its records in any language, provided an English translation is
available on request;
•
Enables committee meetings and general meetings to be held in different locations through
the use of technology.
New Associations Incorporation Reform Regulations were also developed in 2012 which detail forms,
fees and fines. Refer to the
CAV
website for further information.
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AUSTRALIAN CHARITIES AND NOT FOR PROFITS COMMISSION (ACNC)
This commission is a Commonwealth authority and was established in July 2012. It has the responsibility
to register and regulate NFP entities seeking Commonwealth support including access to tax concessions
and NFP specific grants, and includes:
•
Determining the charitable status of individual organisations, including public benevolent
institution status, for all Commonwealth purposes. This ruling is accepted by the Australian
Taxation Office (ATO) which will, in turn, manage the legislation in relation to individual
organisations;
•
Providing education and support to the NFP sector;
•
Administering a regulatory and reporting framework; and
•
Being a ‘one-stop shop’ for the sector. This means that registered organisations will only need
to put in one application with the ACNC. The ACNC will then manage the interaction with
other Australian Government agencies.
REGULATORY AUTHORITIES
Not-for-profit community organisations are required to comply with Commonwealth and State tax laws
and other legislative and regulatory responsibilities. A number of regulatory bodies have a range of
responsibilities for monitoring the performance of nfps.
The two key agencies which have the most significant roles in compliance, accountability and support
for community organisations in Victoria – Consumer Affairs Victoria (CAV)
and
Australian Charities
and Not-for-profits Commission – undertake significant work to support the development of good
governance in community organisations. This includes specific resources to ensure compliance as well
as providing a range of resources to support skill development.
CONSUMER AFFAIRS VICTORIA
Consumer Affairs Victoria (CAV) is the Victorian Government’s consumer affairs regulator, and a
business unit of the Department of Justice. This is the primary agency to which NFP incorporated
associations are accountable. An incorporated association must report certain information to
Consumer Affairs Victoria as set out in the Associations Incorporation Reform Act (2012).
The CAV has
responsibilities for monitoring compliance of incorporated associations and for imposing penalties,
including prosecuting breaches of the Act.
In addition to its online resources and a ‘Help Line’, CAV runs free sessions for groups wanting to
incorporate their association, and for those want to learn more about the requirements of running an
incorporated association. The sessions provide information on:
•
Setting up an incorporated association;
•
Defining the rules of a incorporated association;
•
Members rights;
•
Dispute resolution;
•
Responsibilities of committee members; and
•
Statutory obligations.
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THE AUSTRALIAN CHARITIES AND NOT-FOR-PROFITS COMMISSION (ACNC)
The ACNC was established in 2012 and it regulates charities across Australia. It provides guidance and
support to charities to register and understand their legal obligations. Members of the community can
access a range of information about charities by referring to the
ACNC website.
Not-for-profit Law provides extensive information on matters that you should consider, if you are
considering starting a charity. See
How to start a Charity - Not-for-profit Law
OTHER AUTHORITIES
Effective monitoring and regulation of businesses, whether non-profit or for-profit, is undertaken by a
number of other authorities. Table 1 provides an outline of the responsibility of some of the other key
regulatory authorities to which nfps are accountable.
TABLE 2: RESPONSIBILITIES OF KEY REGULATORY AUTHORITIES
Authority
Role
Australian Competition
and Consumer
Commission (ACCC).
•
Has primary responsibility to ensure that individuals and businesses comply with
the Commonwealth competition, fair trading and consumer protection laws;
•
Has an established Memorandum of Understanding with other regulatory
authorities, to facilitate access to information and coordination in regulation.
These authorities include the Australian Taxation Office (ATO) and Australian
Securities and investments Commission (ASIC)
Australian Taxation
Office (ATO)
•
Has responsibility for administering the tax system, including tax concessions for
nfps, as the Australian Government’s principal revenue collection agency;
•
All incorporated nfps must lodge tax returns with the ATO;
•
Tax obligations for nfps may cover income tax, fringe benefits tax (FBT), Goods and
Services Tax (GST), land tax, stamp duty and tax deductibility on the gifts received.
Australian Securities and
Investments Commission
(ASIC)
•
An independent Commonwealth Government body with responsibility to regulate
Australia’s corporate, markets and financial services. This includes ensuring
that Australia’s financial markets are fair and transparent and that investors and
consumers are well-informed.
Source: Consumer Affairs Victoria
A NOTE ABOUT PATRIOTIC FUNDS
1
The other category of not-for-profit organisations is a ‘patriotic fund’. Patriotic funds are a type of trust
fund created after the First World War, when Victorian communities raised money to assist soldiers
and their families. They provide welfare services and clubrooms for returned service personnel and their
dependents.
You must establish a patriotic fund if you intend to collect funds, receive subscriptions, or request
donations for any purpose related to any military service or duty.
It is illegal to do any of these things without approval from Consumer Affairs Victoria. The
Veterans Act
2005
, outlines the relevant legal requirements.
1
Consumer Affairs Victoria. For more information about Patriotic funds, refer to their
website
.
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RESOURCES AND LINKS
For more information to decide whether to become incorporated and what structure best suits
your group, look at the following sites:
Not-for-profit Law Legal Resources & Information
This site includes a checklist with questions to help you make the decision about incorporation.
This site also has important legal information. Should your organisation need specific legal advice
contact them directly. Additional links to related resources, are available on their site.
Refer to the following sections:
•
Getting Started
•
The incorporation decision
•
Choosing a legal structure
•
Registering as a charity
•
Setting up your organisation
Consumer Affairs Victoria : www.consumer.vic.gov.au
All the information you need to complete the registration process is on their website. You can do all
the paper work on line as well –click on Clubs and fundraising
.
Fitzroy Legal Service:
The Law Handbook
Refer to the ‘Community Organisations’ section of this handbook which discusses ‘choosing a
structure’ (i.e. Incorporated or unincorporated).
NAMING
ASIC: Business name registration site.
INTELLECTUAL PROPERTY
Intellectual Property
MODEL RULES
Model Rules 20-30: an example of provisions relating to a committee of management
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CHAPTER TWO:
RUNNING THE ORGANISATION
UNDERSTANDING RELATIONSHIPS
It is important to understand and manage the relationships within your organisation and the relationships
which your organisation has with the wider community. Figure 3 shows the relationships between your
organisation and the wider community. This has been reproduced from the Indigenous Governance
Toolkit. While cultural issues and networks of people may have greater significance for Indigenous
organisations than others, it provides a useful way to look at how your organisation fits into the broader
community.
FIGURE 3: GOVERNANCE - INTERNAL AND EXTERNAL ENVIRONMENTS
Culture
Individuals
Organisation
Community
Wider Envrionment
Your working environment
(political, legal, economic, funding,)
Your community
(networks of people & organisations linked
together)
Your organisation
(coming together to pursue agreed,
collective goals)
Your people
(abilities, roles, values, leadership,
motivations, knowledge, relationships,
responsibilities)
Your governance culture
(beliefs,
values, behaviours, institutions,
responsibilities. For
Indigenous
Australians & other specific cultural groups
this also includes families, relationships,
laws, traditions & identities)
Source: Indigenous Governance Toolkit
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GOOD GOVERNANCE
The ‘governance’ of an organisation generally refers to the processes by which an organisation is
directed, controlled and held to account (Not-for-profit Law – governance issues). This section provides
some guidance on the nuts and bolts of governance - authority, accountability, stewardship, leadership,
direction and control - exercised in the organisation.
Good governance practices are crucial to the organisation’s ability to function, to achieve its objects and
to comply with all of the legal, ethical and operational requirements of a community organisation. A
major issue that community organisations often face is working out:
•
The role and responsibility of an organisation’s board or committee (to govern the
organisation); and
•
The role and responsibility of the management or executive team (to manage the
organisation).
This is a particularly difficult issue for small organisations that have no (or very few) paid staff. For these
organisations, and even medium community organisations, the size of the organisation can make it
challenging to be able to separate issues of strategic governance and day-to-day management.
There is a lot of information about good governance in community. A list of references is contained at
the end of this chapter.
POLICIES AND PROCEDURES
Policies and procedures help make a workplace run smoothly by ensuring staff and volunteers know
how things are done and how decisions are made. They provide guidelines for resolving conflict
and minimising risk and they enable staff to get on with the job of delivering quality services. There
are a number of examples around to help you develop policies and procedures which suit your
organisation. The Victorian Council of Social Services (VCOSS) has a couple of very affordable
publications available as well as links to some good sample policies (see reference at the end of the
chapter). These resources help you identify a set of key policies that your organisation should have in
place as a minimum to ensure good governance and management. Visit
VCOSS for a range of resources
available to the not-for-profit sector.
GOVERNING SHARED COMMUNITY FACILITIES
Community organisations are often co-located with other organisations in a shared facility.
Your organisation may have responsibility for governing the facility, or as a sporting club, have
responsibility for the maintenance of the grounds and/or hiring of the facility to others.
Brimbank City Council provide information and guidance to clubs and associations on how to use its halls,
neighbourhood houses, community centres and sporting clubs.
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BOARDS AND COMMITTEES OF MANAGEMENT
Boards and committees are the leadership teams and decision makers of nfps. This governing body may be
known by a variety of different terms - a ‘committee of management’, ‘board of management’, ‘board of
governance’ or a ‘council’. We have referred to this body as a ‘committee of management’ throughout this
manual.
The role of the committee of management is to look after the affairs of the organisation. The committee
has a range of legal obligations and responsibility for governing the organisation. They have additional
responsibilities and may also be liable under the Wrongs Act 1958 for the actions of volunteers and other
workers in the organisation.
The exact legal responsibilities and compliance considerations vary depending on the legal structure of the
organisation.
Not-for-profit Law advises that when you have questions about the board, committee of management or
directors of your organisation, first check the Rules of Association, constitution or rule book. The exact
name of the document will vary depending on your organisation’s legal structure, but whatever it is called,
the rules or constitution are legally binding and will include the answers to most governance questions. If
you need more information, ask the agency or authority which regulates your type of organisation. Links
to information about the role and responsibilities for your particular structure are contained in the last
section of this chapter.
It is important for you to understand the legal responsibilities of the members of boards and committees
of management.
Not-for-profit Law has specific information on these. The links are contained in the
Resources and Links section at the end of this chapter.
FINANCIAL RESPONSIBILITIES
Your leadership team (board, committee of management or directors) also has responsibilities for the
organisation’s finances. While a board member might not be involved in day-to-day transactions or
maintaining the accounts, they are responsible in the eyes of the law. This means that the leadership
team has an obligation to understand the organisation’s finances. The Not-for-profit Law Toolkits
provide a range of important and useful guides to help organizations understand their roles and financial
responsibilities.
COMMITTEE/BOARD PROTECTION
Although public liability insurance will cover your organisation against claims for wrongful acts, individual
board members, committee members or directors are not covered, and would need to be covered with
directors’ insurance.
Unfortunately, if something goes wrong, individual board members, committee members and directors of
nfps can be sued for acts of negligence. For example, if a board member negligently gives wrong advice or
dismisses a staff member without following proper processes, they may be sued. If this happens, and the
case against them is proven, the law says personal assets of the negligent board or committee members
can be seized to meet any damages.
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LEGAL RESPONSIBILITIES
Not-for-profit Law the has produced a guide to the legal duties of Committee or Board members of
not-for-profit community organisations in Victoria. It outlines the key legal duties of all people who hold
a position on the governing body of a not-for-profit community organisation, including incorporated
associations, companies limited by guarantee, cooperatives and indigenous corporations as well as
unincorporated groups.
EFFECTIVE PLANNING
The committee of management, as the governing body, has responsibility to define the purpose,
goals and priorities of the organisation. These need to be developed in consultation with the
broader membership and reflect the overall wishes of the community group. Any staff employed need
to be engaged actively in this process. The committee of management should officially adopt such a
plan at a meeting, and the managers and staff should then proceed to carry it out and report on progress
to the governing body.
The best plans are those that are short, flexible, made part of the daily work of the organisation and are
regularly reassessed.
There are some good resources available to assist you with the process. Two in particular, the
Indigenous Governance Toolkit
and Not-for-profit Law
are really useful. The links to these sites are
in the last section of this chapter. The “Quick governance health check- up” contained in the Indigenous
Governance Toolkit is a good resource to see how you are going as an organisation. (refer to link at end
of this chapter). This Toolkit identifies a number of steps to help you in the strategic planning process.
These are illustrated in Figure 4.
FIGURE 4: STRATEGIC PLANNING PROCESS
Source: Indigenous Governance Toolkit
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INCORPORATED ASSOCIATIONS
This information is specifically for community organisations which have been incorporated under the
Associations Incorporation Reform Act (2012). It is extracted from the Not-for-profit Law website which
has extensive information to support incorporated associations to understand their roles, responsibilities
and legal obligations. This section provides more details about these processes, and the information
comes from
Consumer Affairs Victoria (CAV)
,
Not-for-profit Law
and
Our Community (OCS).
OVERVIEW OF ACCOUNTABILITY PROCESSES
The accountability processes of incorporated associations, regardless of size, include:
•
Developing and adhering to the rules and purposes of the organisation, which detail the
procedures
for running the organisation;
•
Appointing a Committee of Management or Board of Governance which is responsible for
overseeing
how the organisation operates and fulfilling a range of statutory responsibilities
under the
Associations Incorporation Reform Act (2012);
•
Appointing a secretary who has legal responsibilities for submitting documents to Consumer
Affairs
Victoria, including the Annual Statement, and who is the official contact person for the
organisation
(you need to do this is the process of becoming incorporated – see Section 3);
•
Holding an Annual General Meeting (AGM) within five months of the end of the association’s
financial
year; and
•
Submitting a financial statement that covers the full financial year to members at the annual
general
meeting.
There are penalties for breaching these responsibilities, with CAV having responsibility for
monitoring and administering penalties, either directly through fines or through judicial prosecution.
COMMITTEES OF MANAGEMENT IN INCORPORATED ASSOCIATIONS
The
Associations Incorporation Reform Act (2012) requires an incorporated association to have rules
relating to a ‘committee or other body having the management of the incorporated association’.
Most Victorian incorporated associations call this governing body a ‘committee of management’ but your
organisation may call its governing body by some other name (for example a ‘board’ or a ‘council’).
Whatever it is called (we will use the term ‘committee of management’) it is the group responsible for
running the affairs of the incorporated association in accordance with the Associations Incorporation
Act and the organisation’s rules.
The Schedule to the Victorian Associations Incorporation Act requires that an incorporated
association’s rules set out certain requirements for the committee of management. For more
information about the rules of an incorporated association and Model Rules (the provisions relating to a
committee of management), refer to the links at the end of this chapter.
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A useful Fact Sheet, produced by Not-for-profit Law which outlines the duties of members of
management committees is on their website (link at the end of this chapter).
If your organisation has adopted the Model Rules for an incorporated association, Model Rules contain
the basic requirements for a committee of management. Model Rules set out that:
•
The affairs of an association shall be managed by a committee of management;
•
The committee of management shall have the power to control and manage the business
and affairs of the association, and exercise all the powers and functions of the association in
accordance with the rules;
•
The committee of management of the association shall be made up of:
o
Four office holders: being a President, Vice-President, Secretary and Treasurer; and
o
That the committee of management shall be elected at the Annual General Meeting of
the association each year
o
Certain rules for nominating, electing and removing committee members and provisions
for dealing with committee vacancies; and
o
Certain rules for committee of management meetings and voting rights.
If your organization wants to create its own rules, there are legal requirements that must be met. It is
important that you seek legal advice, if you are unsure. Check Not-for-profit Law for more information.
You should check your organisation’s rules to see what the requirements are for your organisation’s
committee of management because it is possible for the ‘Model Rules’ to be modified.
ADMINISTRATIVE ROLES OF THE COMMITTEE OF MANAGEMENT
The committee of management looks after the affairs of the incorporated association and has
statutory responsibilities under the Associations Incorporation Reform
Act
(2012). There are penalties
for breaching these responsibilities.
Committee of management members must:
•
Ensure an annual general meeting is held within five months of the end of the association’s
financial year;
•
Submit a financial statement that covers the full financial year to members at the annual
general meeting;
•
Appoint a new secretary within 14 days, if the position becomes vacant;
•
Return all documents that belong to the incorporated association within 28 days of ceasing to
be a committee member.
Members have a duty to act in the best interests of the incorporated association and to not take
advantage of their position. They must not make use of their position (or information acquired
because of their position) to:
•
Gain any financial benefit for themselves or any other person
•
Harm the association.
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DECLARATION OF CONFLICT OF INTERESTS
It is a conflict of interest if, as a member of a Committee of Management, an individual(s) has a
private financial (pecuniary) interest, directly or indirectly, in a contract that the organisation is
considering. If this occurs, the conflict of interest must be disclosed to the Committee as soon as the
member becomes aware of it. The member will be permitted to take part in discussions about the
contract but must not take part in any decision of the Committee with respect to that contract.
This does not mean that your organisation cannot have business dealings with committee members.
But, it does mean that the conflict of interest must be disclosed to the rest of the Committee of
Management and that the committee member with the conflict should not vote on the contract.
LEGAL DUTIES OF COMMITTEE OR BOARD MEMBERS IN VICTORIAN
INCORPORATED ASSOCIATIONS
The law requires committee of management members to meet certain standards of conduct while
managing the affairs of the organisation. If you are (or are considering becoming) a member of
a committee of management (or governing body) of an incorporated association, you need to
understand what your legal duties are. These are covered really well in the guide produced by
Not
for-profit Law
.
OTHER LEGAL OBLIGATIONS OF COMMITTEE OF MANAGEMENT MEMBERS
A committee of management is responsible for running an organisation, which includes making sure that
the organisation is complying with the law generally.
Not-for-profit Law provides this information regarding the legal obligations of community organisations
that are incorporated under the
Associations Incorporation Reform Act (2012).
1.
The Act contains some sections that mean committee of management members may be held liable for
certain breaches of the Act. For example, section 28(3) of the Act states that if an incorporated association
does not notify Consumer Affairs Victoria (CAV) of a change to its registered address, each member of the
committee may be liable to pay a fine (5 penalty units). There is a similar provision for failure to comply with
the Annual General Meeting requirements (section 63(1). Failure to do so can attract 10 penalty units.The
Act states that the association’s rules are a contract between the association and its members. In
theory,
this means that any member of the association can take a court action to prevent or remedy a ‘breach of
contract’ (i.e. Non-compliance with the rules of an incorporated association) by another member (including a
committee of management member).
2.
Under the
Occupational Health and Safety Act 2004 (Vic),
‘officers’
of an incorporated body,
like
an
incorporated
association,
can be
liable
for breaches of the Act. However,
volunteer (unpaid) committee
of
management members are
exempted
from these provisions
(although
the incorporated
association itself will
still
be
liable).
For further
information
about
occupational health
and safety
(OHS) laws,
visit
Not-for-profit
Law website.
3.
The normal criminal and other laws that apply to the public in Victoria can apply to committee of
management members.
4.
The normal criminal and other laws that apply to the public in Victoria can apply to committee of
management members.
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OFFICE HOLDERS
Often people on the committee of management hold certain ‘offices’ or ‘positions’. This generally
means that they have responsibility for monitoring certain aspects of the community organisation’s
activities; or performing certain functions. It is also possible to have office holders who are not
committee of management members. As mentioned above, the governing body of your organisation
will largely be determined by your organisation’s rules.
The only ‘office’ required by the
Associations Incorporation Reform Act (2012)
is that of Secretary. The
Act states that the Secretary can also hold another office (such as President or Treasurer). Whether
your incorporated association will have other ‘offices’ will be determined by your organisation’s rules.
The normal types of ‘offices’ that an incorporated association may have are:
•
President / Chairperson
•
Secretary (who can also hold another office)
•
Treasurer / Financial Officer
Some organisations might also have assistant (or ‘vice’) positions such as a Vice-President or Assistant
Treasurer.
You should check your organisation’s rules for the ‘offices’ and their duties (see Not-for-profit Law
for
more information).
The committee of management must appoint a secretary, who is the main point of contact between the
association and Consumer Affairs Victoria. The secretary must be at least 18 years old and reside in
Victoria.
The secretary is responsible for doing the following things on behalf of the association:
•
Lodging an annual statement with the Registrar (the Director of CAV) within a month after the
annual general meeting
•
Notifying the Registrar of:
o
A change to the incorporated association’s registered address within 14 days
o
Their appointment as secretary or any changes to their details
o
A special resolution to wind up the association or distribute its assets.
•
Applying to the Registrar to:
o
Alter the association’s statement of purposes or rules
o
Change the association’s name.
If the position of secretary becomes vacant, the committee of management must fill the vacancy
within 14 days. The new secretary must notify CAV within 14 days of their appointment by completing
and submitting a ‘Change of association details’ form, available online at CAV.
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MEETINGS
ANNUAL GENERAL MEETING
Incorporated associations must hold an annual general meeting (AGM) each calendar year. The first AGM
can be held at any time in the 18 months following incorporation. The second and any subsequent
AGM must be held within the five months following the end of the incorporated association’s financial
year.
At the AGM, the association must submit to its members a financial statement that gives a true and
fair view of the association’s financial position during and at the end of its last financial year. The
statement must detail:
•
The income and expenditure of the association during its last financial year;
•
The assets and liabilities of the association at the end of its last financial year (a balance
sheet);
•
Any mortgages, charges and securities affecting any of the property of the association at the
end of its last financial year;
•
For each trust of which the association was a trustee during all or part of the last financial
year:
o
The income and expenditure of the trust;
o
The assets and liabilities of the trust;
o
Any mortgages, charges and securities affecting any of the property of the trust.
Any trust held on behalf of the association by a person or body other than the association, in which funds
or assets of the association are placed.
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APPLY FOR AN EXTENSION OF TIME TO HOLD AN ANNUAL GENERAL MEETING
If there are exceptional circumstances that prevent your association from holding its AGM by the due
date, you can apply to the Registrar for an extension of time by either:
•
Lodging an ‘Application for extension of time’
•
Applying online for an extension of time(
CAV website
)
•
Extensions of time are subject to Registrar approval.
HOLDING ORDINARY MEETINGS
Meetings are an important part of the operations of any effective NFP community organisation.
Depending on the size and structure of your community organisation, there are a number of different
meetings that may be held including:
•
Meetings of the organisation’s management committee or board;
•
Meetings of members of your community organisation;
•
Management meetings; and
•
An annual general meeting.
It is important for your organisation to conduct meetings in accordance with the requirements set
out in any legislation (for example, incorporated associations must comply with the Associations
Incorporation Reform Act (2012) and companies limited by guarantee must comply with the
Corporations Act 2001 (Commonwealth). However, for many organisations, much of the detail of the
requirements for holding valid meetings will be set out in an organisation’s rules or constitution.
The main legal issues that can arise around meetings involve:
•
Requirements to hold meetings and rights to call a meeting;
•
Proper notice of the meeting (time periods, content of notice);
•
Quorum (minimum number of people present to make meeting valid);
•
Adjournments;
•
Voting rights (and proxy rights);
•
Resolutions;
•
Minutes.
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CONDUCTING MEETINGS
Role of the Chairperson
The role of the chairperson is to run the meeting. The chairperson ensures (as outlined in
Indigenous
Governance Toolkit )that:
•
The board members take part and behave as set out in the Model Rules of the organisation;
•
Every member can express their view and vote;
•
Board discussions are inclusive, open and thorough;
•
How the board makes decisions is fair, relevant and of a high legal standard; and
•
Meetings are effective and orderly.
An important decision-making process for meetings is ‘majority rules’. Individual board members have
the right to have their say, but once a decision has been put forward (a resolution), seconded and
passed by a majority of the members, it is binding. The minority who voted against the resolution or
abstained must respect and abide by the decision
The Indigenous Governance Toolkit provides information on how to conduct good meetings. The
important elements are illustrated in Figure 5. These are:
•
A proper notice period is provided to members of the committee, allowing enough time before
the
meeting date;
•
A clear, informative agenda is sent to members prior to the meeting;
•
Minutes of the previous meeting are sent out prior to the next meeting;
•
A quorum is met at each meeting. This is the minimum number of members who have to be
present,
for the decisions of the meeting to be binding. This number will be specified in the
rules of your
organisation;
•
Meetings are well chaired (see note about the role of the chairperson above);
•
Meeting procedures are followed sensibly: this means ensuring that processes are followed
but
balanced with the opportunity for everyone to have a say.
FIGURE 5: GOOD MEETINGS
Source: Indigenous Governance Toolkit
GOOD
MEETINGS
notice of the
meeting is sent
out , allowing
enough time
before the
meeting
a clear and
informative
agenda paper
sent out before
the meeting
minutes of
the previous
meeting
a quorum
good
chairing and
facilitation
meeting
procedures
followed
sensibly
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A NOTE ABOUT MINUTES
A governing body must keep minutes of all its official meetings—it is the law. The minutes are an accurate
record of the previous meeting’s discussions, decisions, recommendations and actions proposed.
Meeting minutes should:
•
Be accurate and a complete record of the meeting, including the main points of decisions
and discussions, and a formal record of resolution, seconding and passing the decision;
•
Focus on the matters set out in the agenda;
•
Reflect the board as a whole, not individual personalities or comments;
•
Be objective and not have offensive comments or inappropriate discussion;
•
Be consistent in format and style;
•
Be professional by being proof-read with no errors;
•
Be readable and clearly laid out with main points highlighted so that they can be easily
understood and followed by members;
•
Be made understandable if necessary, using translation or visual aides to those who cannot
read English;
•
Be properly filed and available at subsequent meetings; and
•
Be sensitive to cultural protocols (e.g. Not mentioning recently deceased indigenous people by
name) Source: Indigenous Governance Toolkit.
Attachment One contains some useful templates for conducting meetings. This includes templates for
agenda and minutes.
PROTECTING YOUR NAME, IDEAS AND MATERIAL
Your organisation’s intellectual property is what makes you different from other organisations. It is
important, valuable and worth protecting. Your organisation’s intellectual property includes the rights it
may have in its:
•
Name
•
Logo
•
The names or logos of any programs or services developed by your organisation
•
Publications
•
Training materials
•
Website design and content
•
Domain name
•
Computer applications, programs, or databases it has developed, and
•
Any ideas, innovations and inventions
Not-for-profit Law has produced a guide to assist people involved in Victorian nfps to understand the
basics of intellectual property law. It also covers what to do if you think your organisation’s intellectual
property rights have been infringed, and how to avoid infringing the rights of others.
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INTERNET AND SOCIAL MEDIA
2
The internet, and especially social media, are increasingly becoming vital communication and marketing
tools for not-for-profit community organisations. They can be a great way for your organisation to
promote its cause and services, and to communicate with your community cheaply and quickly.
However, there are risks both legally and to the organisations reputation with social media use -
especially because of the speed with which information travels on the internet, its global reach, and the
lack of control that your organisation has once something goes online.
Not-for-profit Law provides information to help you understand the context of social media and how best
to use it to your advantage. The definition of social media is from their website.
2
DOWNLOADED FROM
NOT-FOR-PROFIT LAW
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WHAT IS SOCIAL MEDIA?
Not-for-profit Law defines ‘Social media’ as a website, mobile application or technology that allows users
to share and communicate information (‘content’) online - either privately or publicly. Examples of
social media include:
•
Social networking sites (such as Facebook, Twitter and linkedin)
•
Blogs
•
Information sources (such as wikis)
•
Video-sharing sites (such as You Tube)
•
Photo sharing sites (such as Flickr & Instagram), and
•
Other sites with user generated content elements (such as news sites which invite customers to
post reviews).
It is important to store your organisation’s documents such as minutes from your meetings, financial
reports, details of transactions, constitution and members’ personal details, contracts, funding documents,
bank details etc. In a safe place. Not-for-profit Law provides important information and resources to guide
your organization in this regard. For more information, visit Not-for-profit Law - Record Keeping
page.
LEASES
If your not-for-profit organization is renting an office or a building, there are important considerations. It
is very important that you pay attention to the details of the rental agreement to ensure that both your
organization and the landlord are clear about the roles and responsibilities and the costs associated with
the lease. The following are some of the key considerations when entering into a lease agreement with a
property owner or an agent:
•
The length of the lease: think about the financial position of your organization and whether you
are certain that you will be able to commit to the length of the contract
•
Outgoings: utility costs such as water, electricity and internet are not always included in the lease
•
Adding fixtures to the building: if you need to install equipment or make any alterations to the
building, you need to have permission from the landlord
•
Waste management: you need to consider the costs associated with removing your waste
responsibly
•
Noise: if the nature of your activities is such that you are likely to have large gatherings and loud
music, you need to make sure that you comply with local laws requirements.
For more information on this topic, visit Not-for-profit Law - Leases
.
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INSURANCE AND RISK MANAGEMENT
According to the law, risk must be managed to a reasonable level of care, with insurance as a back
Up to this duty of care. The
Not-for-profit Law website provides information about insurance and risk
management. It advises that you need to understand the risks involved in the activities undertaken by the
organisation, and your legal position should any of those risks happen to occur.
Not-for-profit Law
have produced a guide, “Insurance and risk management for community
organisations”, specifically on insurance and risk management. Not-for-profit Law continually update
their material to ensure that it has the most up-to-date legal information. The guide is designed to
help Victorian community organisations understand ‘risk management’ and legal issues relating to
insurance, including:
•
Some of the processes and practices your community organisation can put in place to avoid or
minimise the risks associated with running a community organisation;
•
Basic information about insurance;
•
Information about the different types of insurance available; and
Tips to consider before getting insurance for your organisation (Not-for-profit Law)
HEALTH AND SAFETY
FOR COMMITTEES OF MANAGEMENT
If you are a board member, director or member of a committee of management you have health
and safety obligations to others – even if you are a volunteer yourself. The worksafe publication
“More information about - Community service volunteer boards and committees” includes up-to
date information about these and other responsibilities for members of boards and committees of
management in nfps.
As a volunteer who is a member of a board or committee of management in the community services
sector, you have health and safety responsibilities as part of the leadership team. You may also have
concerns about your own health and safety as a volunteer. This fact sheet addresses both aspects.
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The nature of the obligations depends on the type of organisation you are involved with. If your
organisation has employees (i.e. It is an employer), it has health and safety duties towards those
employees. These duties are set out in the OHS Act and the Occupational Health and Safety Regulations
2007 (the Regulations). Under the OHS Act, employers have obligations to make sure volunteers are not
exposed to risks to their health and safety, so far as reasonably practicable. Volunteer board members
of companies and other bodies and associations are not liable for prosecution under the OHS Act for
anything they do or fail to do as a volunteer. This acknowledges the important contribution of volunteer
members of boards. However, the organisation, as a legal entity, may be liable if a volunteer or paid
employee suffers a work-related injury or illness. You also have an obligation to protect the health and
safety of anyone, including service users, who enter premises that you occupy.
FOR EMPLOYEES
In Victoria, occupational health and safety (OHS) in the workplace is regulated by the Occupational Health
and Safety Act 2004- the OHS Act, and the
Occupational Health and Safety Regulations 2017
- the OHS
Regulations. There are different laws in other States and Territories and your organisation will need to
check these if it operates outside of Victoria.
The purpose of the OHS laws is to protect the health, safety and welfare of employees and other persons
who are at, or come into contact with, a workplace in Victoria. The laws set out various duties that
organisations and individuals must comply with in the workplace. The laws are regulated and enforced by
a Victorian government authority known as the Victorian Worksafe Authority
(worksafe). Worksafe may
prosecute organisations that breach (do not comply with) the OHS law duties that they are required to
comply with.
Because a lot of the information and advertisements about Victoria’s OHS laws mention or depict
businesses, some people think that the OHS Act only applies to for-profit, business organisations. This
is not correct. The OHS Act is very broad and may apply to all Victorian community organisations (both
incorporated and unincorporated). The OHS Act will apply to all community organisations that have
employees but may also apply to community organisations that are completely volunteer based where
they operate in a ‘workplace’.
Information on the Worksafe website is intended as a guide only and is not legal advice. If you or your
organisation has a specific legal issue, you should seek advice before making a decision about what to do.
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RESOURCES AND LINKS
These links have been sourced from Not-for-profit Law, Consumer Affairs Victoria, Work Safe Victoria and
other sources. Many are websites which Not-for-profit Law identified as having great resources. They
have provided a description of each site. We have checked them out and added to the comments. When
viewing websites consider Australian resources in particular, Victorian resources, in relation to legislation
issues.
GOVERNANCE STRUCTURES
Consumer
Affairs Victoria: Incorporated associations
This site, http://www.consumer.vic.gov.au/clubs-and-not-for-profits/incorporated-associations
provides information on incorporated associations in Victoria.
Australian Securities and Investment Commission (ASIC): Company officeholder duties
This site provides information on companies limited by guarantee.
Consumer Affairs Victoria: co operatives
This site provides information on co-operatives in Victoria.
Office of the Registrar of Indigenous Corporations
This link to the Office of the Registrar of Indigenous Organisations (ORIC) provides
information for directors of registered Indigenous organisations.
Victorian Associations Incorporation Reform Act (2012)
GOVERNANCE – LEGAL ISSUES
Not-for-profit Law
Not-for-profit Law is really the “go-to” place for legal information for NFPs in Victoria. It is easy
to understand and provides a comprehensive guide on key aspects of running a not-for-profit
organization.
Consumer Affairs Victoria: clubs and not for profits
Consumer Affairs Victoria is the organisation responsible for monitoring incorporated
associations in Victoria.
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P
OSITIONS IN
C
OMMUNITY
O
RGANISATIONS
R
OLE OF THE
T
REASURER
The Our Community
website includes a section on governance for boards and committees which
includes regulatory and non-regulatory information. The Boards section of the Our Community
website includes information on governance issues in not-for-profit community organisations. Our
Community also run training for boards and committees, with information of the sessions on the
website.
Volunteering Victoria
Volunteering Victoria provides a range of useful resources to guide your orgnisation on matters
related to volunteers.
The Australian Institute of Company Directors
The Not For Profit organisations section of this website, has useful information about understanding
the NFP sector, the contribution and duties of NFP directors, the role of the NFP board, governance
tools and characteristics of good NFP governance.
Australian Securities and Investment Commission: running your company
The
Australian Securities
and Investment Commission
(ASIC)
website has
information
about
officeholder duties
and how to make changes to your
organisation details.
Not-for-profit Law - Who runs the organisation?
This link to the Not-for-profit Law website provides more details on the governance positions
within an
incorporated association
and information on the different committee roles.
Not-for-profit Law - Choosing a legal structure
This link to the Not-for-profit Law website, provides a great deal of information on important things
to consider when choosing a legal structure.
Not-for-profit Law - Toolkits
This is a link to a booklet developed by Not-for-profit Law which provides information about the
legal responsibilities of committee of management members
Our Community - The role of the treasurer
This is a link to the Our Community site which has developed a Guide for Community Treasurers
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G
OOD
G
OVERNANCE
R
EFERENCES
QUT
The Centre for Philanthropy and Non-profit Studies at the Queensland University of Technology
(QUT) has a wiki on board and committee issues. This site provides useful information on the roles
and responsibilities of boards and resources to help you evaluate your board’s performance. Any
references to the law may be to Queensland law and not relevant for Victoria, so make sure you
check the relevance of the legislation to Victoria.
ASX Corporate Governance Council
This is a link to the 2019 update of the guide to good corporate governance provided by the
Australian Securities Exchange (ASX). This publication is aimed at for-profit companies (and uses
language like ‘shareholders’ not members) but the key principles of good governance are useful for
not-for-profit organisations.
VCOSS
The website of VCOSS provides a range of useful information, resources and templates for not-for
profit organisations.
Reconciliation Australia
This is a link to the Indigenous Governance Toolkit. It is an online resource developed to assist
Indigenous individuals, organisations, communities and enterprises to improve their governance.
From the basics of governance like rules and regulations to examples of ideas that work from
other organisations, the Toolkit aims to provide useful guidance and information. While it has been
developed to support Indigenous organisations, it is really useful, easy to understand and easy to
use. You can use the toolkit to answer quick questions about governance or go through it like a
textbook.
A guide to governing shared community facilities
This resource is intended to be particularly useful for those who have not governed such facilities
in the past. It covers facility vision and type; size and catchment; governing bodies; facility
maintenance; and operations and integration.
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R
ISK
M
ANAGEMENT AND
I
NSURANCE
R
ESOURCES
There are also a number of other organisations which can help you with insurance. Here are the
links:
LEGISLATION
Workplace Injury Rehabilitation and Compensation Act & Regulations 2013
This is a link to the legislation that requires almost all employers in Victoria to take out workers
compensation for their employees.
Transport Accident Commission
Transport Accident Commission (TAC) is a Victorian government organization that is set up to
promote road safety and help people involved in road accidents to get their lives back on track.
The TAC website provides the latest information about laws and regulations relevant to transport
accidents.
Insurance Contracts Act 1984 (Commonwealth)
Insurance Contracts Act 1984
(Commonwealth)
is the
Commonwealth legislation that regulates
most
insurance contracts
in Australia.
RISK MANAGEMENT RESOURCES
Volunteering Australia
Volunteering Australia provides a range of useful information about insurance and risk management
for volunteer run organisations or organisations that engage volunteers in their activities, events or
daily operations.
Ourcommunity: community insurance and risk management centre
The ‘Insurance’ section of the Our Community website provides sponsored resources about
insurance and risk management issues, including checklists and tools for different kinds of activities
which often occur in the community sector.
Business Victoria
This Victorian Government website is to help people who are setting up a small business but the site
also has some useful information about risk management and insurance that may be relevant for a
community organisation.
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INSURANCE
VMIA
VMIA website contain a range of useful resources to guide organisations to manage risk.
Australian Securities
and Investment Commission: moneysmart
This link is to an ASIC website moneysmart. It includes information on consumer rights under
insurance contracts. ASIC regulates the consumer aspects of insurance contracts. This information is
not written specifically for not-for-profit organisations but is generally relevant for all insurance
contracts.
Business Victoria: Insurance for business
This Victorian Government website is to help people who are setting up a small business but the
site also has some useful information about insurance that may be relevant for a community
organisation.
Local Community Insurance Services (LCIS)
This is a link to Local Community Insurance Services (LCIS), a specialist insurance provider
established to manage the insurance needs of NFP clubs and community groups within Australia.
This initiative is supported by the Municipal Association Victoria (MAV).
OCCUPATIONAL HEALTH AND SAFETY
LEGISLATION
Workplace Injury Rehabilitation and Compensation Act & Regulations 2013
This is a link to the legislation that requires almost all employers in Victoria to take out workers
compensation for their employees.
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WORKSAFE VICTORIA RESOURCES
This is a link to the worksafe Victoria website. Worksafe is the Victorian government authority
with responsibility for occupational health and safety laws in Victoria. The ‘Safety and Prevention’
and ‘Publications’ section of their website has resources for identifying and minimising risks in the
workplace.
WORKSAFE VICTORIA
This page of the worksafe Victoria website provides an overview of the main legal obligations under
Victoria’s occupational health and safety laws. It has links to a page of the main employer obligations
and main worker obligations under the Act.
RISK ASSESSMENT
This worksafe page resources to help your organization conduct a risk assessment.
WORKING SAFELY IN COMMUNITY SERVICES
This publication covers health & safety basics, managing OHS in your workplace, checklists & tools,
managing accidents & claims, and resources & links for the community services sector.
These worksafe publications are specifically designed for community organisations:
Worksafe - Volunteer Management Handbook
This worksafe handbook includes general health and safety information for people who manage
volunteers in community services organisations.
Work Safe: More Information About - Community Service Volunteer Boards And Committees
This worksafe factsheet outlines the health and safety responsibilities of volunteers who are
members of a board or committee of management in the community services sector.
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OTHER OCCUPATIONAL HEALTH AND SAFETY INFORMATION
RELATED LEGISLATION
ASSOCIATIONS INCORPORATION REFORM ACT (2012)
This
link
is to the
legislation
that
regulates
incorporated
associations
in Victoria. The
Schedule
near the end of the Act sets out the issues that the
rules
of an incorporated
association
must
cover.
ASSOCIATIONS INCORPORATIONS REGULATIONS (2012)
This link is to the regulations that set out some of the detail of the rules related to incorporated
associations in Victoria. Schedule 4 contains the Model Rules - which some organisations have
used for their rules.
MODEL RULES
Model Rules for an Incorporated Association
Model rules as set out by the Associations Incorporations Regulations 2012 which can be used by
the not-for-profit sector, if they do not wish to draft their own.
S
OCIAL
M
EDIA
Not-for-profit Law - Social Media
ACNC - Social Media Policy
Institute of Community Directors - Policy Bank
Injury & Incident Reporting Policy
A useful resource to help organisations implement an injury and incident reporting policy to ensure
that all employees and volunteers are aware of reporting processes when an injury occurs.
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CHAPTER THREE:
MANAGING PEOPLE
PEOPLE INVOLVED IN COMMUNITY ORGANISATIONS
People are an important resource for NFP organisations. Depending on the size and legal structure of
your organisation, you will be working with a combination of people, contributing in different ways to
specific tasks and the day-to-day running of your organisation. These include:
•
A leadership team such as boards, committees or directors (see Section Two for more
information about boards and committees of management);
•
Paid employees;
•
Volunteers; and
•
Independent contractors.
Regardless of the type of worker or contributor, your organisation has responsibilities to the people who
work with you. You are required to keep the workplace safe, ensure that your members are protected
and ensure that you are complying under the applicable Act/s (refer to Not-for-profit Law - The People
Involved
.
DEFINITIONS
There are legal differences between an employee, an independent contractor and a volunteer. It is
important to understand these differences as the organisation has different legal rights and obligations in
relation to all three.
The main differences between employees and independent contractors will be to do with how they are
paid, what benefits they receive and how they approach the work. Not-for-profit Law has developed a
guide to help Victorian not-for-profit community organisations understand different kinds of working
relationships - including that of employee/employer. It is important for your community organisation to
know when you are ‘employing’ a person, because different legal entitlements and obligations apply,
depending on whether the worker is regarded as an ‘employee’, an ‘independent contractor’ or a
‘volunteer’.
The Guide outlines:
•
The importance of correctly classifying different working relationships;
•
The basic legal differences between employees, independent contractors and volunteers;
and
•
An overview of some of the main legal obligations an organisation owes to its employees,
independent contractors and volunteers.
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EMPLOYEES – AT A GLANCE
Not-for-profit Law website provides comprehensive information on the definition of employees,
contractors and volunteers and how the law applies in each case. The website also provides an overview
on the Fair Work process and how it relates to the responsibilities that the not-for-profit organisations
have in relation to their employees. The website also has useful resources on modern awards, enterprise
agreements and the role that unions play in a workplace.
Employees are covered under the Fair Work Act 2009 (Commonwealth) and
Long Service Act
defines
minimum standards of employment, known as the National Employment Standards (NES).
Fair Work Commission
is the national workplace relations tribunal and their website has detailed
information about employee entitlements and should be your first point of reference. It provides
information on minimum wages, awards and conditions of employment as well as forms and other
resources to help employees and employers understand their responsibilities under the law.
Fair Work Ombudsman
website provides detailed information on pay rates, leave entitlements, ending
employment, employment entitlements, awards & agreements.
IN CASE OF A DISPUTE
Fair Work Australia is the national body concerned with workplace relations and they operate under
the terms of the Fair Work Act 2009. They can assist with resolving disputes between employers and
employees.
INDEPENDENT CONTRACTORS – AT A GLANCE
Employee, contractor or volunteer? Is a guide written by Not-for-profit Law and provides an overview of
the definition of an employee, contractor and volunteer. It is very important to understand the differences
as the legal obligations of your organization can be different in relation to each of these categories.
The following is a summary of the key topics that this guide covers:
•
What is an employee?
•
What is an independent contractor?
•
What is a volunteer?
•
Legal obligations owned by community organisations including but not limited to employment
conditions, leave entitlements, work health and safety, superannuation, and taxation
•
Reference to relevant legislations
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Fair Work Ombudsman provides a range of resources for independent contractors. Fair Work Ombudsman
outlines the particular aspects of being an independent contractor:
•
Have a high level of control over how the work is done, including the choice to hire others to
assist
•
Agree to the hours required to complete the job
•
Usually engaged for a specific task or time
•
Bear the risk of making a profit or a loss and usually bears responsibility and liability for poor
work or injury and usually have their own insurance
•
Use their own tools and equipment
•
Pay their own tax and GST
•
Have an ABN and submits invoices
•
Don’t receive paid leave
IN CASE OF A DISPUTE
If a dispute arises with an independent contractor and they are performing work as a business entity (e.g.
Sole trader, company or partnership), you will be able to get help through the Dispute Settlement Centre
Victoria, provided by the Department of Justice (link in last section of this chapter).
The basis of your arrangement with an independent contractor is the agreement you have with them. The
independent contractor’s page on the business.gov.au website has sample agreements and information
about responsibilities, intellectual property, entitlements and resolving disputes (see link in last section of
this chapter).
Under the Independent Contractors Act 2006
, a contractor or the organisation can apply to a court for an
order to have the contract (or a part of it) revoked or varied on the grounds that it is ‘harsh’ or ‘unfair’.
This could happen if the independent contractor believes that he or she is being paid at a rate that is, or is
likely to be, less than an employee would get for performing similar work. For more information, go to the
business.gov.au website to see the process you should follow, including information about going to court.
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VOLUNTEERS
DEFINITION AND PRINCIPLES OF VOLUNTEERING
Volunteers are important to NFP organisations. Many community organisations are completely volunteer
run or rely heavily on the commitment and support of their volunteers. While the definition of ‘volunteer’
may vary a little depending on who you ask, some things about volunteers remain true across all
definitions:
•
Volunteers are working voluntarily. You cannot force a volunteer to work;
•
Either the volunteer or the organisation can stop the arrangement;
•
An organisation is not required by law to make any kind of payment to a volunteer in
exchange for their work;
•
Whatever agreement is in place with a volunteer, it does not tie the organisation or the
volunteer into a legally binding arrangement;
•
Volunteers may be reimbursed for out of pocket expenses and may also receive payments
such as an allowance, or an ‘honorarium’, which is a payment made freely and with no
obligation;
•
Volunteers can receive non-cash benefits, e.g. Free tickets, free access to services but if these
types of benefits are accepted regularly and have substantial value, they may need to be
taxed;
•
Volunteers are protected by the Equal Opportunity Act and have the right to work in a safe
environment.
Volunteering Australia has developed principles and definitions of volunteering, following extensive
consultation. The link to this website is contained in the reference section at the end of this chapter. They
are included here.
DEFINITION OF FORMAL VOLUNTEERING
Formal volunteering is an activity which takes place through not for profit organisations or projects and
is undertaken:
•
To be of benefit to the community and the volunteer;
•
Of the volunteer’s own free will and without coercion;
•
For no financial payment; and
•
In designated volunteer positions only.
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PRINCIPLES OF VOLUNTEERING
•
Volunteering benefits the community and the volunteer;
•
Volunteer work is unpaid;
•
Volunteering is always a matter of choice;
•
Volunteering is not compulsorily undertaken to receive pensions or government allowances;
•
Volunteering is a legitimate way in which citizens can participate in the activities of their
community;
•
Volunteering is a vehicle for individuals or groups to address human, environmental and social
needs;
•
Volunteering is not a substitute for paid work;
•
Volunteers do not replace paid workers nor constitute a threat to the job security of paid
workers;
•
Volunteering respects the rights, dignity and culture of others; and
•
Volunteering promotes human rights and equality.
RIGHTS AND RESPONSIBILITIES OF VOLUNTEERS
Unlike paid staff, volunteers are not covered by awards or work-place agreements. Volunteers however
do have rights, some which are enshrined in legislation and some which could be considered the moral
obligations of an organisation involving volunteers.
The following volunteer rights have been developed by Volunteering Australia (see also website link at the
end of this chapter).
As a volunteer you have the right:
•
To work in a healthy and safe environment (refer various Occupational Health and Safety Act[s]);
•
To be interviewed and engaged in accordance with equal opportunity and anti-discrimination
legislation;
•
To be adequately covered by insurance;
•
To be given accurate and truthful information about the organisation for which you are working;
•
To be reimbursed for out of pocket expenses;
•
To be given a copy of the organisations volunteer policy and any other policy that affects your
work;
•
Not to fill a position previously held by a paid worker;
•
Not to do the work of paid staff during industrial disputes;
•
To have a job description and agreed working hours;
•
To have access to a grievance procedure;
•
To be provided with orientation to the organisation;
•
To have your confidential and personal information dealt with in accordance with the principles
of the Privacy Act 1988; and
•
To be provided with sufficient training to do your job.
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Check that:
•
The organisation is a not for profit;
•
The purpose of the organisation matches your own values and beliefs;
•
The organisation carries volunteer insurance;
•
Your role is clear and specific;
•
The organisation can provide you with written information about its purpose and activities; and
•
You are satisfied that the funds of the organisation are expended in accordance with its mission.
UNDERSTANDING THE DETAILS OF WORKING WITH
VOLUNTEERS
There are many organisations, like Volunteering Victoria, Volunteering Australia and Volunteer West
that have extensive and practical resources for volunteers. Volunteering Victoria and Volunteering
Australia have online resources about volunteer recruitment and management issues, including extensive
information regarding rights and responsibilities. Volunteer West has developed a manual, “Volunteer
Management Essentials: A Best Practice Toolkit for Not-For-Profit Organisations”, which has all the
information which you need to help you work collaboratively with your volunteers and get the best out of
their contribution. We have provided links to some of the most useful resources (see Reference Section at
the end of this chapter).
LEGAL OBLIGATIONS TO VOLUNTEERS
The
Not-for-profit Law website has useful information about legal obligations in relation to volunteers.
This covers legal issues that may arise when attracting, screening, selecting and managing volunteers. The
information on this site indicates that:
Your organisation owes its volunteers certain legal obligations. These are sometimes hard to work out - the
way that the law applies to volunteers is often very different from the way that it applies to employees and
independent contractors. Also, there are laws which provide that, in certain situations, your organisation
will be held legally responsible for the actions of its volunteers. This makes it crucial for your organisation
to have good volunteer management practices and policies (and insurance) in place.
VOLUNTEER HEALTH AND SAFETY IN COMMUNITY ORGANISATIONS
Worksafe
has developed a booklet to help you provide a safe and healthy environment for your
volunteers: “ Volunteer Health and Safety: a handbook for community service organisations, 2008”
.
This handbook includes general health and safety information for people who manage volunteers in
community service organisations. It may also be of use to volunteers themselves. (see
worksafe website –
link at end of this chapter).
The Ourcommunity
website has useful links and information regarding keeping volunteers and workers
safe. This is arranged by topic with appropriate links.
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WRITTEN AGREEMENTS WITH YOUR VOLUNTEERS
There is no legal requirement for a written agreement with a volunteer, supplier or contractor. However,
you may find that a written agreement, clearly defining roles and responsibilities so that the organisation
and the volunteer understand what both parties expect of each other will assist if there is a dispute or may
help prevent disputes taking place.
LIABILITY FOR THE CONDUCT OF VOLUNTEERS
Under the terms of the Wrongs Act 1958 (Vic), there are some circumstances where an organisation is
liable for something that a volunteer does. If this happens, the liability can extend to individual office
bearers, committee members or directors (depending on the structure of your organisation). If you are
unsure about whether your organisation is liable, get advice from a lawyer (Not-for-profit Law).
Indicates that in Victoria, there are laws which do not hold volunteers personally liable for anything done
(or not done) in good faith while doing community work that is organised by a community organisation.
These laws provide that any liability (legal responsibility) resulting from the actions of these volunteers
may transfer to the community organisation, so that the organisation will be held liable to injured parties,
instead of the volunteer.
These laws were introduced in Victoria in 2002 and are set out in the Wrongs Act 1958 (Vic). Not-for-profit
Law has developed a Fact Sheet which provides more details about liability and volunteers:
Safety, risk
management and volunteers. A checklist, to help you work out whether your organisation is responsible
for the actions of volunteers is also useful - “Checklist: Is our organisation liable for its volunteers under
the Wrongs Act 1958 (Vic)?”
DISCRIMINATION AND EQUAL OPPORTUNITY
Under the terms of the
Equal Opportunity Act 2010,the rights of volunteers are not always clearly defined.
No organisation is required to take on a person as a volunteer if they believe they will be unable to do the
tasks required. However, if a person applying for a volunteer role feels treated unfairly on the basis of a
personal characteristic covered by the Equal Opportunity Act, they may decide to take action against the
organisation that they believe treated them unfairly. The Victorian Equal Opportunity and Human Rights
Commission has a range of fact sheets and frequently asked questions about the rights of volunteers.
PAYMENTS AND VOLUNTEERS
Volunteers can receive non-cash benefits, e.g. Free tickets, free access to services, but if these types of
benefits are accepted regularly and have substantial value, they may need to be taxed. Your organisation
may also pay ‘one-off’, ‘honoraria’, or ‘ex gratia’ payments. These are payments that carry no expectation
of an exchange of work for pay. The Australian Taxation Office (ATO) has information about when tax
might become applicable for volunteers. They have produced a guide for organisations and volunteers (see
link at the end of this chapter).
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MANAGING DISPUTES
Even with the best of intentions, problems can arise. Your avenues for dispute resolution will be different
depending on the type of dispute, the legal structure of your organisation and whether you have volunteer
agreements in place. If there is a problem, first check your rules or constitution and any agreements you
have with the volunteer.
If the matter cannot be resolved easily, you may be able to access the Dispute Settlement Centre Victoria
(DSCV), managed by the Department of Justice and Community Safety, see link at end of this chapter).
BACKGROUND CHECKS ON EMPLOYEES, CONTRACTORS
AND VOLUNTEERS
This section has been downloaded from Not-for-profit compliance support centre website.
When recruiting workers of any sort for your organisation, there may be some legally required background
checks, as well as other checks that are recommended as part of the organisation’s duty of care. For
example, if you have not completed background checks, the organisation may be liable for damage
incurred by someone working for your organisation.
There are few hard-and-fast rules about background checks. The decision has to be about the risk that
applies for your organisation. You should take special care if employees or independent contractors are
working with children, the elderly, and people with disabilities or if a volunteer will have responsibility for
finances or driving a vehicle.
WORKING WITH CHILDREN CHECKS
A working with children check is a legal requirement for all workers who have direct contact
1
with children
during the course of their work. After the release of the Child Abuse Royal Commission Report
, the
Victorian Parliament endorsed some of the key recommendations in the legislation to ensure that children
are safe from harm. Refer to Not-for-profit Law - New Working With Children Checks in Victoria
for
comprehensive information on new legal requirements with regards to working with children.
It is very important that you put systems in place to ensure that your organization is child safe. Read
information on Making institutions Child Safe
.
Visit the
Working with Children Check (WWCC) webpage to find out how to apply for a Working With
Children Check and if your workers need to obtain one.
1 Definition of “direct contact” now means written, oral and electronic communication including social media.
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RESOURCES AND LINKS
EMPLOYEES
Fair Work Commission
Fair Work
Australian
- Disputes
Not-for-profit Law: Employee, contractor or volunteer?
CONTRACTORS AND CONSULTANTS
Dispute
Settlement Centre
Victoria
Business Victoria - Contractor: Rights & Protection
VOLUNTEERS
Volunteering Australia
Volunteering Victoria
Both of these sites have extensive resources and information for organisations as well as volunteers.
Volunteers and equal opportunity
This page on the Victorian Equal Opportunity and Human Rights Commission website provides a
number of fact sheets in relation to volunteers and different aspects of the Equal Opportunity Act
2010.
Australian Taxation Office: Volunteers and Tax
This is a link to a guide produced by the ATO in relation to tax matters and volunteers: “Guide for
non-profit organisations and individuals: Volunteers and tax Treatment of transactions between non
profit organisations and volunteers”
National Standards for Volunteer Involvement
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CHAPTER FOUR: MANAGING YOUR
FINANCES
NOT-FOR-PROFIT DOES NOT MEAN NOT MAKING MONEY
Finances are an important consideration for nfps. The term ‘Not-For-Profit’ can be misleading – it can give
the impression that an NFP organisation should not make any money. An NFP will generally need to make
money, if only to cover the costs of day to day operations and to run events and other activities.
‘Not-For-Profit’ simply means that any surplus funds must not be used for the profit (gain) of any
individual member.
This definition is also true if an NFP winds up – the way that any surplus funds at that time will be
distributed will depend on the organisation type; they are not to be distributed to directors, office bearers
or members of the organisation that is winding up. For more information on what to do with your surplus
funds, visit
Not-for-profit Law - Winding Up
webpage.
RESPONSIBILITY FOR OVERSEEING THE FINANCES
The golden rule is that the committee of management (or board) of an incorporated association is
ultimately responsible for managing the finances of the organisation. And, importantly, you cannot leave it
up to the Treasurer or the auditor – the law is clear that all members of the management committee and
directors of corporations are directly responsible for making sure that the finances are accurate, up-to
date and for managing the association’s finances. This is clear in the Associations Incorporation Reform
Act (2012), as well as a lot of case law on this issue (Not-for-profit Law).
Under the Associations Incorporation Act, the powers of incorporated associations in relation to financial
management include:
•
If not immediately required, investing money of the incorporated association from time to time;
•
Raising or borrowing money on terms and in the manner, it thinks fit; and
•
Secure the repayment of moneys so raised or borrowed or the payment of a debt or liability of
the incorporated association by giving mortgages, charges or securities upon or over all or any of
the property of the incorporated association; and
•
Do all such other things as are incidental or conducive to the attainment of the purposes and the
exercise of the powers of the incorporated association.
Not-for-profit Law has developed a really useful Fact Sheet about the financial reporting obligations for a
Victorian Incorporated association.
Not-for-profit Law indicates that the rules (constitution) of an incorporated association must state the
powers of the committee of management (see Schedule of the Associations Incorporation Act). An
association’s rules will often state that the committee of management must manage and control the
business and affairs of the association. Courts have often determined that duties of the committee
members are similar to those of the board of directors of a company, and include:
•
A duty to exercise reasonable care and skill in managing the affairs of the association (including
the financial affairs); and
•
A duty to prevent insolvent trading by the association.
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See the list below for information for the most common types of NFP organisations:
•
Responsibilities in an incorporated association
•
Responsibilities in a company limited by guarantee
•
Responsibilities in an indigenous corporation
•
Responsibilities in a co-operative.
For more information about the duties of committee of management members, see Not-for-profit Law -
Governance.
RECORD KEEPING, AUDITING AND REPORTING
Your obligations around record keeping, reporting and auditing will depend on what type of organisation
you are (your legal structure), the types of transactions you do and your annual turnover. However,
regardless of the type of organisation, your NFP should keep accurate and up- to-date records of
financial transactions. The NFP compliance website provides the following summary with links for further
information:
•
Incorporated associations:
If your NFP is an incorporated association, you will need to maintain
accurate accounts. According to Section 89 of the Associations Incorporation Reform Act
(2012), financial records must be kept for seven years. See information on the Consumer Affairs
Victoria (CAV) website (link at the end of chapter) about accounting and auditing for incorporated
associations.
•
Companies limited by guarantee:
If your NFP is a company limited by guarantee, there are
specific compliance considerations, detailed on the Australian Securities and Investment
Commission (ASIC) website (link at end of chapter).
•
Co-operatives:
If your NFP is a co-operative, there is a range of records you need to keep,
including financial records. The complete list and additional information is available on the
CAV -
Cooperatives
webpage.
•
Indigenous corporations:
If your NFP is an indigenous corporation, you must keep financial and
other records so that you comply with the Corporations (Aboriginal and Torres Strait Islander) Act
2006 (
CATSI
Act). Information about what financial records must be kept by your corporations is
available on the Office of the Registrar of Indigenous Corporations (ORIC) website (link at end of
chapter).
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TAX OBLIGATIONS
Not-for-profit community organisations are required to comply with both Commonwealth and State tax
laws.
In general, your community organisation may need to pay tax on things like the income it receives, and
GST on goods and services supplied, or stamp duty on a purchased property.
Some nfps are entitled to exemptions, concessions or rebates in relation to certain taxes. An ‘exemption’ is
where the organisation does not have to pay the tax at all, a ‘concession’ is where the organisation pays a
reduced rate of tax, and a ‘rebate’ is where an organisation can claim back some tax paid.
There are other tax benefits that not-for-profit community organisations may be eligible for. For example,
organisations that apply for, and are endorsed as, deductible gift recipients (DGR) are entitled to receive
tax deductible gifts and contributions.
Not-for-profit Law advises that it is best to get your organisation’s tax issues right, at the beginning.
This is because you may need to include special wording in your organisation’s constitution (or rules) to
be eligible to apply for tax concessions or endorsements. Also, the way you set up an organisation (i.e.
Defining who the members are) may also have an impact on tax liability, as there are laws that allow
membership income to be treated as tax exempt in certain circumstances.
You may need to seek specialist legal or accountancy advice on tax issues when establishing your
organisation. See Section Two for information on setting up your organisation.
ANNUAL TAX RETURNS
The
Australian Taxation Office (ATO) is the most important source for information on tax matters for nfps.
It produces a guide each year to help taxable non-profit groups; societies and associations complete the
company tax return and explains some common errors and their consequences.
Tax obligations for nfps cover income tax, fringe benefits tax (FBT), Goods and Services Tax (GST), land tax
and stamp duty. Other issues which you may need to consider include:
•
Tax concessions, rebates and exemptions (FBT, Income Tax, Land Tax, Stamp Duty);
•
Receiving tax deductible gifts;
•
GST;
•
Employer obligations (PAYGW, Super, FBT);
•
ABN and TFN withholding.
Not-for-profit Law has an entire chapter covering very important information relevant to tax obligations
of not-for-profit organisations. It is very important that you understand your tax obligations at all stages of
running your organization.
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SUPPLIER DISCOUNTS
Some suppliers offer discounts to nfps but they may ask you to provide evidence that you are a NFP
organisation before they will give the discount.
A supplier may list endorsement by the
ATO as the kind of evidence they need, but some
organisations do not receive endorsement from the ATO. The ATO will endorse eligible nfps as:
•
A tax concession charity (TCC) or income tax exempt fund (ITEF);
•
A deductible gift recipient (DGR).
If your organisation has not received endorsement from the ATO in one of the above categories,
other documents that are evidence of your NFP status include your organisations:
•
Rules of association (for incorporated associations);
•
Constitution (for companies limited by guarantee);
•
Rules (for co-operatives);
•
Rule book (for indigenous organisations); and
•
Registration with other regulatory bodies that require an organisation to be a Not For Profit. You
will find information on supplier discounts on the
ATO website
(links at the end of this chapter).
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RESOURCES AND LINKS
AUSTRALIAN TAXATION OFFICE (ATO)
Australian Taxation Office (ATO)
The ATO is the government agency responsible for (federal) taxes in Australia.
Australian Tax Office: Non-Profit Homepage
This section of the ATO’s website is dedicated to providing not-for-profit organisations with
information about the tax they must pay, as well as the tax concessions that they may be eligible
for.
ATO Guide:
Tax
basics
for Non-Profit organisations
This ATO guide provides an overview of tax obligations and concessions for not-for-profit
organisations, and may help to identify which taxes affect your organisation.
ATO Guide:
Objecting
to a
taxation decision
This guide provides guidance on the steps that should be taken if you disagree with a decision by the
ATO which affects your community organisation.
LEGAL AND GENERAL INFORMATION ON MANAGING YOUR FINANCES
Australian Institute of company director: Not-for-profit organisations
Not-or-Profit organisations section of their website has useful information about understanding the
NFP sector, the contribution and duties of NFP directors, the role of the NFP board, governance tools
and characteristics of good NFP governance.
Not-for-profit Law - Tax
Legal information on setting up, managing and reporting on your organisation’s financial and tax
situation. It also provides information about tax concessions and exceptions, as well as what financial
records need to be kept and who is responsible for them.
Deductible Gift Recipient Endorsement
Fringe Benefit Concessions
Goods and Services Tax (GST)
Income Tax Exemptions
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RECORD KEEPING, AUDITING AND REPORTING
Not-for-profit Law - Reporting to Government
Consumer Affairs - Financial Reporting
Consumer Affairs Victoria - Record Keeping
Australian Securities and Investment Commission: company limited by guarantee
Office of the Registrar of Indigenous Organisations - Financial Reporting
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CHAPTER FIVE:
RAISING MONEY
OVERVIEW
All community organisations need to raise money. As indicated in the previous section, your organisation
will generally need to make money, if only to cover the costs of day-to-day operations and to run events
and other activities.
Some really good information is available to help you with how to manage the process of raising money.
Many of you will also regularly receive lots of information from a variety of sources which support
fundraising activities, such as selling various goods.
The
‘ourcommunity’ website is particularly useful. We have re-produced some of their advice here. The
fundraising information here describes ‘The Six Pillars of Fundraising’. They advise that your community
group’s money needs to be coming from as many sources as you can manage and raised by as many
people as you can coordinate. Further, they indicate that most groups get into trouble because they have
only two or three sources of funding, or because they have only two or three people really involved in
raising money. If any one of the sources or any of the people leave, the organisation starts to slide into
trouble.
A good fundraising plan rests on six pillars. These are
•
Donations;
•
Grants;
•
Community-Business Partnerships;
•
Membership/Alumni/Friends;
•
Special Events; and
•
Earned Income.
As the
‘ourcommunity’ website indicates, to survive and thrive in a changing world, you need to be
drawing from all six. This section provides some information about how to manage the fundraising
process and refers you to some useful websites so you can seek further information. We have provided
an overview of the administrative and legal issues which you may need to consider (Not-for-profit Law
provides useful information.)
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FUNDRAISING OPTIONS
There are a number of sources of funds that your organisation might be able to tap into. These include:
•
Grants
- identify federal, state or local government, philanthropic and corporate grant programs
open to your group;
•
Sponsorship
- identify possible major and minor sponsorship arrangements your group could
pursue. This could include, but not limited to, naming rights for your team, building, uniforms,
scoreboard, events, players, trips, newsletter and lunches. (Click
here for more
information
about sponsorships and other forms of
community business partnerships.)
•
Membership Fees
- introduce different levels of membership or association fees such
as- standard, family, non-playing, “friends of” or associate membership, “Angels” or “Gold”
membership, lifetime members or three-game members. - and charge a fee for each.
•
Bequests
- provide general information or personal approaches to long-time benefactors
and supporters about how they can provide an ongoing gift for your organisation.
•
In-kind Support
- you might be able to get donations of everything from a venue or office to
office supplies, printing and photocopying, transport, entertainment, pro bono work (legal,
accounting, IT, marketing/public relations, auditing), gifts, subscriptions, uniforms and so on.
•
Donations
- set up your organisation to receive online donations. Pursue personal
donations, general appeals, direct mail, and appeals to your email database of all former
players, members and supporters.
•
Special Events
, including:
Ø
Sales, fetes.
Ø
Trivia nights, fashion parades, talent contests, art shows with a local retailer or
gallery, dances and discos, film nights, restaurant functions;
Ø
Various ‘athons’, with club members and players gaining sponsorship for a walkathon,
readathon, skipathon, walkathon or skillathon;
Ø
Games’ nights using casino-type games and “play” money;
Ø
Sponsored record attempts or other similar quests;
Ø
Fun runs (carefully check legal requirements with local authorities); and
Ø
Raffles, competitions, auctions - major items, memorabilia, services, travel, gifts,
tickets, etc.
•
Merchandising
- sell your club clothing, office products, sports products or glassware.
•
Sales
- sell your goods and services.
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GRANTS
Much of the information in relation to grants is reproduced from the Not-for-profit Law webpage
. As they
point out, the information is intended as a guide only, and is not legal advice.
The terms ‘grant’ and ‘funding’ are not technical terms although, in general, grant is usually used to
describe a one-off provision of money, whereas funding describes a longer term agreement. Organisations
that give out grants or funding to community organisations (grant-makers) include: Local, state and federal
governments, philanthropic organisations and some financial institutions.
WHAT TO CONSIDER WHEN LOOKING FOR GRANTS
Before you apply for a grant, it is very important that you understand the funding guidelines. In many
cases, funding bodies look for projects that aim to address a social issue at a local level. These priorities
can change from time to time and usually have a direct link with the funding body’s role and matters that
impact the community at any given time. For example, a local government may offer grants to community
projects that are aimed at prevention of family violence against women and girls or help reduce youth
disengagement in their municipality. Other examples include projects that promote gender equality in
local sporting clubs, improvements to a recreation facility to increase access for people with a disability or
community education around public safety. These priority areas have direct links with the funding body’s
key policies, strategies and plans and it is very important that your organization familiarizes itself with the
policy direction of the funding body. If you are not sure about how to access these documents, contact the
relevant staff member and find out more.
YOUR ORGANISATION’S INTERNAL REQUIREMENTS
Check the constitution or rules to see if they contain any requirements about ‘funding sources’. If there
are clauses that prohibit your organisation from receiving funds from outside bodies (or it is not consistent
with your organisation’s objectives or purpose), your organisation will need to comply with its rules.
Alternatively, your organisation will need to make a change to its constitution / rules before applying for
grants or funding from external sources.
GRANT-MAKER REQUIREMENTS
Research the bodies to which you might apply to seek funding. Many have particular rules about the
kind of organisations they will give money to. For example, most philanthropic organisations and
many government organisations will only give grants and funds to community organisations that are
incorporated.
Another example is that certain philanthropic organisations have a (legal) requirement that they can
only give grants or funding to organisations that have deductible gift recipient (DGR) tax status. If your
organisation wants to apply for grants from these bodies, it will need to apply to the ATO to see whether it
is eligible for this status first (see Section Four).
It may be possible for you to receive a grant through another organisation (an Auspice), which is
incorporated. This requires a good partnership with that organisation and a clear, written agreement in
relation to the receipt and use of the funds. It is important that this arrangement be clearly understood
and agreed to by the funding body.
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GRANT AMOUNT AND CONDITIONS
In general, before applying for a grant or funding, your organisation should read the conditions of the
grant and be sure that it can comply with them. It is common for grants to have a series of conditions
attached to them. These conditions may involve things like:
•
How your organisation is to receive and spend the grant money;
•
How often your organisation must report to the grant-making organisation;
•
What kind of information your organisation must provide to the grant-making organisation in its
reports; and
•
Whether your organisation is required to prepare audited accounts (which can be costly,
especially if these are not currently obtained by your organisation).
Ensure that it is in the best interest of your organisation to accept the grant. In most cases, when you
receive grant money, your organisation will be considered to be in a contract with the grant- maker. The
grant conditions will be the terms of that contract and your organisation will be under a legal obligation to
comply with them.
READ AND UNDERSTAND THE CONDITIONS
It is important for your organisation to read and understand the conditions of the grant. While it might
be that the funding agreement is a standard form agreement, there may still be requirements in the
conditions your organisation can not comply with. As they say, read the fine print! Seek advice if you do
not understand the conditions before you sign anything.
AGREEING TO THE CONDITIONS
After your organisation has read and understood the conditions, the Committee or Board of your
organisation then needs to decide whether the organisation should agree to them. Though it may seem
important for your organisation to receive the funding, there are several reasons why your organisation
may not want to agree to all the conditions without further negotiation, including:
•
The conditions are inconsistent with your organisation’s goals, purposes, values or objectives;
•
The conditions are too administratively onerous;
•
The conditions are too restrictive in terms of how you spend your money; and/or
•
The obligations under the conditions continue too far into the future.
The funding agreements may also require you to comply with a piece of legislation, regulation or guide
outside of the agreement itself. In this situation, your organisation will need to read, understand and
comply with that legislation, regulation or guide. For example, an agreement with a government agency
may require your organisation to comply with federal or state privacy laws. In this case, you must comply
with the privacy legislation as it forms part of your contract with the government agency.
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USING THE GRANT OR FUNDING
It is important to keep the conditions of the funding in mind. The funding agreement is considered a
contract. That means that your organisation needs to comply with the conditions under the contract for
as long as the contract is in force. It is a good idea to periodically review the conditions to make sure that
your organisation is complying with them.
NON-COMPLIANCE WITH THE CONDITIONS OF THE GRANT OR FUNDING
Failure to comply with the conditions may be considered a ‘breach’ of the contract. Your community
organisation may be required to repay the grant or funding. Common failures to comply with a grant
agreement include:
•
Not using the funds as directed;
•
Not returning surplus funds;
•
Not reporting back to the grant-maker as required; and
•
Not complying with any additional material outside of the contract itself (for example, other
Acts or regulations).
Failure to comply may also damage your reputation with grant-makers and make it difficult for your
organisation to get other grants or funding.
APPLYING FOR GRANTS AND FUNDING
There are many websites available to assist community organisations to find out the various government
grants available, and to help you with applications. Links to some of these websites are in the Related
Resources section below.
TAX CONSIDERATIONS
GOODS AND SERVICES TAX (GST)
Not-for-profit Law indicate on their website that this is a difficult issue. Whether you are required to pay
GST will depend on the circumstances including:
•
Whether your organisation is registered or required to be registered for GST purposes; and
•
Whether there are specific conditions attached to the grant Check with the
ATO
(link is listed
below) and Not-for-profit Law website for further information.
INCOME TAX
Generally, unless the organisation is exempt from paying income tax, an organisation will be required to
pay income tax on grants or funding received. Check the Not-for-profit Law website for more information.
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FUND RAISING ACTIVITIES
The Fundraising Act 1998
(Vic) says a ‘fundraiser’ is any person or organisation that collects money, food,
clothes or other items for a beneficiary or a cause, including collections on behalf of someone else. This
includes collecting food, clothes and other items on behalf of a person or organisation. An organisation
collecting for commercial benefit or for the profit of individual members is not considered to be
fundraising. (refer to the CAV website for more information - link at the end of this chapter).
Examples of fundraising activities include:
•
Door knock appeals*;
•
Telephone appeals;
•
Traffic intersection and highway collections*;
•
Golf days, movie nights and trivia nights;
•
Dinner dances and balls;
•
Public auctions;
•
Clothing bins;
•
Sale of goods at opportunity shops;
•
Appeals run by commercial fundraisers;
•
Public appeals to support groups, associations, causes or people; and
•
Sale of goods where part of the sale price is donated to a charitable organisation or cause.
Source: CAV website information, last updated: February 2020.
EXEMPTION FROM REGISTRATION
There are exemptions for some types of organisations and fundraising activities. A full list of exempt
organisations and exempt activities is available in the fundraising section of the
CAV website.
REGULATIONS APPLYING TO SPECIFIC FUNDRAISING ACTIVITIES
Not-for-profit Law guide to fundraising laws in Australia, provides very useful information about the legal
issues regarding fundraising. It is worth checking out this information prior to organising fundraising (links
in last section of this chapter).
COLLECTING MONEY ON ROADS AND AT INTERSECTIONS
In line with regulation 28 of the Road Safety (Traffic Management) Regulations 2009 (Vic), you will need
a permit to collect on a public road. Victoria Police has information on how to apply for a permit to
collect on a public road. See Highway Permit Applications for more information.
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COLLECTING ON THE FOOTPATH, NATURE STRIP OR OTHER PUBLIC AREA
If you are collecting on the footpath, nature strip, public car park or other part of the road or Council land,
you will need a permit from the local council. You should contact council with plenty of notice to ensure
there is enough time to process the application.
COLLECTING MONEY OR OTHER DONATIONS DOOR-TO-DOOR
You will need a permit from the local council if you want to collect door-to-door. You should contact the
council with plenty of notice to ensure there is enough time to process the application.
Bingo, Raffles, Calcutta sweepstakes & Lucky Envelopes
RAFFLES
Your organisation may only benefit from funds raised by a raffle if it has been declared as community or
charitable organisation by the Victorian Commission for Gaming Regulation (VCGR). You may require a
permit to run a raffle. The raffle frequently asked questions page on the VCGR website answers questions
about raffles including special requirements for prizes, how long you can sell tickets for, and when to draw
the winners.
If a raffle is being run for your organisation by someone else, they will also have rules to follow. The raffles
frequently asked questions page on the VCGR website is also the correct place to go for this information.
CALCUTTA SWEEPSTAKES
If you plan to run a Calcutta sweepstakes for fundraising you will need to apply for a permit, as required by
the
Gambling Regulation Act 2003 (Vic). For information on guidelines and how to apply for a permit, visit
Department of Jobs, Precincts and Regions
website.
BINGO
If your organisation has been declared (registered) by the
Victorian
Commission for Gaming Regulation
(VCGR) as a community or charitable organisation, you can conduct bingo or arrange for a licensed Bingo
Centre Operator to run a bingo games on your behalf. You will also need to submit a notification of
commencement of bingo sessions to the VCGR at least seven days before the first bingo session.
PATRIOTIC FUNDS
You must establish a patriotic fund if you plan to collect funds, receive subscriptions, or request donations
for anything related to any military service or duty. More information about patriotic funds is available on
the
Consumer Affairs Victoria (CAV)
website.
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SPONSORSHIP
Aside from applying for grants, your organization might want to consider seeking sponsorship from
another organization or entity. Sponsorship is like a business agreement between two organisations and
it is very important to fully understand a whole range of key issues when entering into a sponsorship
agreement. Sponsors offer sponsorship to not-for-profit organisations for a whole range of reasons
including but not limited to:
•
Showing support for a good cause in the community
•
Demonstrating commitment to social impact
•
Increase public confidence in their goodwill
•
Enhance public profile
•
Promotion of their core business, products and services
The Funding Centre
, an enterprise of Our Community, has a range of really useful fact sheets and guides
to help organisations understand what is involved and how to go about finding sponsors.
GIFTS, WILLS, BEQUESTS AND ENDOWMENTS
Not-for-profit Law has useful information and links to other information and websites, to help you
understand the legal issues about gifts, wills, bequests and endowments. The following information is
taken directly from their website, as it is simple and easy to understand.
Gifts, wills, bequests and endowments can provide significant (and sometimes unexpected) income to
charities and not-for-profits. Not-for-profit Law’s fact sheet below explains:
•
What to do when offered a gift, bequest or endowment and whether you need to accept the gift,
bequest or endowment
•
Gifts/bequests/endowments with conditions, and requirements to comply with those conditions
•
Whether changing organisational structure will affect gifts, bequests or endowments, and
•
Whether DGR status is required to accept gifts and how gifts, wills or endowments are treated for
tax purposes.
Refer to Gifts, Wills & Bequests Fact Sheet put together by Not-for-profit Law to learn more about the
meaning of each of these and the legal implications for your organization. As noted by Not-for-profit Law,
this fact sheet is only an overview and is not legal advice.
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RESOURCES AND LINKS
GRANTS
Legal and Other Responsibilities
This link takes you to the information on the Not-for-profit Law website in relation to taxation
and grants:
Seeking funds and holding events
FIND A GRANT
The following sites are some of the places where you can look for grants:
Philanthropy Australia - How to seek funding
Funding Centre
Victorian Government - Grants
The Grants Hub
Australian Government - Grant Connect
Grantready:
offers
free assistance to community
organisations
to
find,
and
apply
for,
relevant
grant programs.
TAX AND GRANTS
Not-for-profit Law - Tax
Australian Taxation Office - Not-for-profits & Tax
ACNC - Fundraising
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FUNDRAISING
Consumer Affairs Victoria: fundraisers
This link to Consumer Affairs Victoria (CAV) provides the information you need about regulations
and liability in relation to fundraising.
Permits for Fundraising
Permit to collect on a public road
This is a link to the relevant page on the Victoria Police website.
VCGLR - Gambling: Raffle, Bingo, Keno, Casino & Lottery
This is the link to the VCGLR website.
Registration
Consumer Affairs Victoria: exemptions from fundraising registration
This link takes you to the Consumer Affairs website regarding registration exemptions. Patriotic
Funds
Establish a patriotic fund
If you want to raise money for war veterans, you need to read this information about Patriotic
funds.
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GIFTS, WILLS, BEQUESTS AND ENDOWMENTS
LEGAL INFORMATION
Law Institute of Victoria - Wills & Estates
Supreme Court of Victoria - Wills & Probate
Tax and Gifts
Australian Taxation Office: Tax & fundraising
This ATO Guide explains the income tax and GST treatment of gifts made to your
organisation. It includes a definition of what is a ‘gift’ as well as examples and case
studies to explain what is ‘voluntary’ and a ‘material benefit’.
BEQUESTS
Queensland University of Technology (QUT): Practical guide for bequest officers - Family
provision and bequests in wills
The Funding Centre: Wills & Bequests
Not-for-profit Law: Gifts, Wills and Bequests
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CHAPTER SIX:
ORGANISING EVENTS
OVERVIEW
Most community organisations organise events of some kind. Your organisation may hold an event to raise
money for its activities or for a particular cause, or just to promote the great work it does. Or, it may be
that your organisation holds a conference, operates a stall in a local market, holds an annual dinner and
awards night, or organises a weekend away for its members. Some community organisations may be set
up solely for the purposes of holding an annual event, like a music festival (Not-for-profit Law).
Not-for-profit Law has substantial information on their website about running events and the legal
issues you need to consider. In particular, complete the events checklist that will help you to think about
important legal requirements, when you want to hold an event.
A checklist developed by staff at Council has also been included, to help you run the best possible event.
PERMITS FOR EVENTS
The permits that your community organisation may need to obtain prior to holding an event will
depend on:
•
The type of event;
•
The activities to take place;
•
The facilities which will be provided to patrons and participants; and
•
The particular requirements of the relevant local council.
It is recommended that your organisation checks with the local council to see what council-specific
permits may be required before running your event.
EVENTS AND ACTIVITIES WHICH GENERALLY REQUIRE PERMITS OR LICENCES
Permits are generally required for the following events and activities:
•
Holding an event on council or other public land;
•
Setting up a temporary structure or using a venue for a purpose it is not designed for;
•
Serving food to the public (more information on this is included below);
•
Serving alcohol to the public (more information on this is included below);
•
Playing live or recorded music;
•
Displaying signs and banners;
•
Using gas cylinders to cook or for other purposes
•
Using an open flame;
•
Using fireworks; and
•
Using the footpath or closing a road.
This is not an exhaustive list and there may be other permits required for your event.
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WAYS TO IDENTIFY WHICH PERMITS MAY BE NEEDED
One way to identify local permits, licences and registrations relevant to your event is to access
Brimbank
City Council. There is also a very important Events Handbook that you can access on Council’s webpage for
detailed information on planning an event.
Permits may be required for the whole event or for aspects of it. You may need one or more permits for
some events. The rules may vary from council to council where you are holding your event in and the type
of event. For example, you will need a permit to hold fireworks, to sell food, to serve alcohol or even for
signage.
You can use
Australian Business Licence Information Service (ABLIS) to find many of the licences and
registrations that your NFP organisation requires throughout its life cycle. This site uses terminology that
is suited to commercial businesses, which can be a bit confusing to relate to the NFP situation. We have
included these to help you navigate the site. You may wish to check the Not-for-profit Compliance Centre
website in case any changes have been made (link at the end of this chapter).
FIGURE 6: STEP BY STEP PROCESS TO ACCESS INFORMATION ON LICENCES FOR EVENTS
F
ollow these steps to access information on licences:
1.
Visit Australian Business Licence Information Service at
ABLIS
and click ‘”guided search” to
navigate the site, if you know exactly what you are looking for, click “find a specific form or
service”
2.
When responding to the question ‘What type of business are you researching’, do not
type in ‘Not For Profit’. Instead, enter in the core business of your NFP organisation
(for example ‘sport’, ‘charity’, ‘disability services’, ‘welfare’, or ‘conservation’) and click
‘Continue’
3.
On the next screen, in response to ‘How do you intend to operate your business’, select
your type of NFP from the dropdown menu (see the image below) and follow the
prompts to create your Information Pack.
Source:
Australian Business Licence and Information Service
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VENUE OR EQUIPMENT HIRE
An agreement to hire a venue or equipment is usually a legally enforceable contract. It is important to
read the terms and conditions of the contract carefully and make sure your organisation can comply with
these. In particular, your organisation should be aware of the terms and conditions relating to insurance or
indemnity (see below), and your organisation’s obligations to repair or replace any damage to equipment
or property. And remember, if you are not an incorporated body, you cannot enter into a contract!!!
EVENT INSURANCE
GETTING YOUR OWN INSURANCE
As the organiser of an event, it is likely your community organisation will need to take out public liability
insurance, particularly if your event is to be held on council or public land.
Often the owner of land or venue you want to hire is likely to insist that your community organisation
has public liability insurance of at least $20 million which is the new standard requirement across most
Victorian Councils. Some Councils and other organisations will also ask you to list them in your policy as an
‘interested party’ and will request a copy of the policy before giving permission to hold your event. Your
organisation should not ignore these requirements.
Your organisation may already have public liability insurance for other activities, but you may need to
increase your cover for the event. Check with your insurer. The amount of cover you need should be
specified in your agreement with the owner of the land or venue that you are using for your event.
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INSURANCE COVER FOR RIDES AND ENTERTAINMENT
If you are engaging other individuals or organisations, such as entertainers providing rides or other
amusements at the event, you should check that their insurance is in order. It may be a condition of your
agreement to use the land or venue that all parties providing entertainment are covered – read your
agreement for details.
To be sure that these third parties comply with the insurance requirements, you can ask them to
provide copies of the insurance certificates for your records. If your community organisation is booking
amusements or other entertainment for an event, insist on a copy of that entertainer’s current public
liability policy before the event. To better protect the interests of your community organisation, try to
ensure that your event entertainers and participants have their own public liability insurance. Even small
stall holders should have their own public liability insurance.
INSURING WORKERS AT THE EVENT
If you have volunteers, employees or independent contractors working for your organisation at the event,
they should be insured.
•
Volunteers:
ensure you have personal accident insurance for your volunteers;
•
Employees:
make sure your worksafe injury insurance is up to date and that you have
enough cover;
•
Independent contractors:
check the agreements you have in place with your independent
contractors. These agreements should specify the cover you need your independent
contractors to have in place.
Note:
this also applies to musicians or other entertainers.
Make sure your contract with third parties is clear about their obligation to take out insurance
and the level of cover your organisation requires them to have in place.
INSURING AGAINST PROBLEMS CAUSED BY FOOD YOU SERVE
Your public liability insurance is unlikely to cover your organisation if there is an injury resulting from the
food you serve, for example if the food causes illness or if you have been negligent in handling it. You may
need Product Liability Insurance. Check with your insurer.
LEGAL OBLIGATIONS AROUND EVENT SAFETY
Your organisation will have a legal obligation to make sure the event is safe. Your organisation will owe this
obligation to people involved in organising the event, volunteers, employees, independent contractors and
anyone who comes to the event (for example, members of the public).
The legal obligation to ensure the event is safe may arise under the common law of negligence. Generally,
organisers of an event will owe a duty of care to participants in that event. Briefly, this means that an
organisation must take reasonable precautions against any foreseeable risk of harm which may occur at
an event. In determining liability, courts will assess whether your organisation should have reasonably
foreseen that its activities and actions (or inaction) could have caused loss, damage or injury to a
participant.
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The legal obligation to ensure the event is safe may also arise under occupational health and safety
legislation. Visit Not-for-profit Law - Community Organisations and Work Health & Safety Laws
which
provides a useful guide to laws that apply to community organisations.
For more information about occupational health and safety laws, see Chapter Two.
Council can provide specific advice in relation to safety, security and emergency procedures applicable to
your community organisation’s proposed event.
Depending on the nature of your event, you may need to ensure the safety of equipment, goods and
persons. You may wish to consider whether you need to notify or organise for some groups to be at your
event:
•
The Police
•
The MFB, CFA or SES
•
St Johns Ambulance
•
Private security
•
The Victorian Worksafe Authority (worksafe)
Visit
Not-for-profit Law webpage for detailed information on Negligence, accidents and incidents. In
particular, there is a useful Checklist put together by Not-for-profit Law that provides step by step process
in case an incident or accident occurs.
ACCESSIBLE EVENTS AND ACTIVITIES
Equal opportunity and anti-discrimination legislation apply in Victoria. These laws prohibit discrimination
against people on the basis of a ‘protected attribute’ (protected attributes include a person’s impairment
or disability, age, sex, race, religious beliefs, status as a parent or carer, pregnancy or breastfeeding among
many other attributes). Some exceptions to the laws apply.
In general, equal opportunity laws apply to prevent discrimination when providing goods and services to
the public. They also apply in other circumstances (for example in employment, sporting activities, and
membership of clubs and groups).
Your organisation could be covered by these laws should you put in place reasonable measures to ensure
that your event (and goods and services) are accessible to all people. Even if your organisation is not
covered by these laws, it is best practice to attempt to be accessible to all. We have provided a link below
to resources for running events which are inclusive to people with hearing and/or vision impairments.
EVENT SPONSORSHIP
If your community organisation is intending to share the cost of staging an event via sponsorship, it is
recommended that you and your sponsor partner enter a sponsorship agreement.
A sponsorship agreement will generally be a legally enforceable contract. Your organisation should be sure
that it can comply with the terms of the contract. If you have any concerns about a proposed sponsorship
agreement, you should seek legal advice.
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FUNDRAISING EVENTS
There are laws that regulate fundraising in Victoria. If your community organisation is considering holding
a fundraising event in Victoria, you will need to comply with these laws. There are also laws that regulate
raffles, bingo and gaming. More information about this is contained in Section 5, Raising Money.
EVENTS SERVING FOOD
This section is extracted from Not-for-profit Law - Events involving food
guide.
In Victoria, there are laws that regulate the way that food is provided to the public. The main objective of
the Food Act 1984 (Vic) is to ensure that food is safe and suitable for human consumption. No-one would
want their community festival or local school fete to end in a major food poisoning episode.
If your community organisation is planning to hold an event or activity involving the service of food to the
public, there are a number of legal issues that you should be aware of:
•
Permits
•
Record systems;
•
Food Safety program;
•
Requirements of food preparation;
•
Labelling of food;
•
Food storage, display and serving;
•
Insurance issues.
C
OUNCIL
P
ERMIT
Under the Food Act 1984 (Vic) the Victorian State Government requires all organisations regardless
whether a NFP and for-profit, that supply food to the public, even a basic sausage sizzle, to apply online at
streatrader@health.vic.gov.au .The application will be automatically logged with the State Governments’
Health Department and the Council where the food premises, or basic sausage sizzle, will take place. For
more information visit the
Streatrader webpage.
Your event will be classified according the level of risk involved, class 1 being the highest risk and class 4
the lowest. Stall holders intending sell anything more that low risk category 4 foods (i.e. A basic sausage
sizzle with sauce on bread, uncut fruit/vegetables, pre-packaged confectionary and drinks) will fall into
a different, higher risk food category. The preparation, storing and sale of higher risk foods now involves
an annual registration, a substantial annual fee as well as a ‘Statement of Trade’ application for each stall
and/or event. These also involve an online application which you will find a streatrader@health.vic.gov.au
For comprehensive information on applying for laws and regulations relevant to serving food, refer to
Food Premises and Safety
page on Brimbank City Council website.
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SERVING ALCOHOL
Victoria has liquor licensing laws to regulate the supply and consumption of alcohol in the State. The
main piece of legislation that regulates how alcohol can be sold or provided to others is called the Liquor
Control Reform Act 1998 (Vic). The Victorian Commission for Gambling and Liquor Regulation (VCGLR) is
responsible for regulating this Act. Their Responsible Alcohol Victoria website tells you what obligations
you have as a licensee and provides the information you will need to apply for a license and ensure
that you comply with its terms. Their FAQ’s page provides very important information about the type of
training your organization may need to have, if serving alcohol. Victoria Police and your local council also
have a role to play. You should contact your local council to obtain clear information on what you need to
do to comply with their laws and to know what permits you may require.
If your organisation operates a licensed venue, please note that recent changes to the law may apply
to your organisation. As of 1 January 2011, there are new requirements for licensees and employees
of licensed venues to undertake compulsory Responsible Service of Alcohol training. It is also now
compulsory for all venues serving alcohol on-site to provide free drinking water. Your organisation can
apply for an exemption in certain circumstances. Visit the Things to consider before applying - VCGLR
.
PROVIDING ALCOHOL AT AN EVENT
If you are providing alcohol at your event, you will probably need a licence. Depending on your
requirements, there are a number of different licensing options. For all licences, you will need to work out
which licence you need, arrange for a licensee and apply for the licence. You will need to pay a fee. The
information you need is on the “Responsible Alcohol Victoria” website – link at the end of this chapter.
FUNDRAISING
If your event is to raise money, you will need to comply with the laws that regulate fundraising in Victoria.
The law may require that you register as a fundraiser or apply for a licence or permit for some of your
planned fundraising activities. See Section Four: Fundraising for more information about your legal
obligations when raising money for your organisation.
ROAD CLOSURES
If you need to close a road or disrupt traffic for your event, you will need to make an application through
council. They will liaise with Victoria Police and Vic Roads if required. You may need to provide a Traffic
Management Plan from a certified traffic management provider. This will probably involve a cost to your
organisation.
Contact council for information about the requirements for your event. Events that may require a street or
road to be temporarily closed include triathlons, street parties, street parades and festivals.
USING VOLUNTEERS AT EVENTS
It is important that volunteers who are helping to organise events understand their roles and
responsibilities and are easily identifiable at the event. Parkinson’s Victoria, working with event
management company Perfect Events, developed comprehensive and very user-friendly volunteer
briefing documents for its 2010 Unity Walk. This includes templates which you can download, via the
“ourcommunity”
website (see link at the end of this chapter).
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WHAT MAKES A GOOD EVENT?
This checklist has been developed by Brimbank City Council, to assist in the planning of events. Essentially,
it focuses on the Why, When, Where, How and Who of event organising.
C
RITERIA FOR A
“G
OOD
” E
VENT
1. A CLEAR RATIONALE
a.
Why
do the event?
i.
Develop a clear Vision / Mission / objectives & goals
ii. What evidence do you have to support the need for the event?
Examples of objectives and goals (these need to be measurable):
•
Run a safe event for a range of ages
•
The organising team works in an effective way
•
Attract a defined number of people
•
Provide healthy food
•
Promote positive relationships
b.
Who
is the intended audience?
Specify:
•
Ages
•
Cultural groups
•
People with a disability
•
Socially isolated
•
People with limited income
2. WELL PLANNED
a.
What
is the event?
i.
What is in the program? – what are the activities?
ii. What infrastructure is needed? Where is it sourced?
iii.
What do you want to achieve?, for example:
•
Numbers of people attending
•
Stronger relationships between people
•
Skills development for the organisers
•
Broad cultural cross-section of attendees.
iv.
How will you know that these things have been achieved?
b. How
will the event be delivered?
i. What kind of resources are needed?
ii.
How many volunteers are needed? What are their jobs? Who decides?
iii.
Do you have an adequate budget (and not overrun):
•
What is in the budget?
•
Can you get in-kind support?
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iv. Governance
•
How are decisions made?
•
Does this need to be written down?
•
How do you ensure effective and timely communication between the organisers?
•
What happens when something goes wrong? Who solves it? Who can be called on for
advice?
v.
Effective consultation
•
Who needs to have input to the planning, or other aspects, of the event?
•
Who can you link into to find the audience?
c.
When
i.
Are there any major clashes with other events?
ii.
Are there any cultural considerations or celebrations that might conflict?
iii.
What is the best time to run the event?
iv.
Develop a timeline
3. EFFECTIVE PUBLICITY AND PROMOTION
a.
What methods of publicity and promotion will
you use? Consider:
i.
Media releases – who does them?
ii.
Flyers / posters
iii.
Texts
iv.
Website / Facebook / twitter
v.
Talking with groups
vi.
Email lists
vii.
Information distributed through key community leaders and key groups
viii.
Develop a promotional strategy
4. RISK “FREE”
a. Is
the event outdoors?
i.
How do you protect people from the weather? Trip hazards? Water? Infrastructure?
ii.
Is there a “Plan B”?
b.
Will people travel by car?
i. Is there enough parking to accommodate them?
ii.
Can people be encouraged to travel by public transport?
c.
What happens in an emergency?
i.
Do you know where the nearest hospital is?
ii.
Do you have an evacuation plan?
iii. First Aid:
•
Is there a first aid kit?
•
Are any people on site first aid trained?
•
Do you need first aid on site?
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d. Do you need an event permit? Consider the following:
i.
Does the building have an occupancy permit?
ii.
Is the site / grounds / building safe?
iii.
What is access like to the venue?
iv.
Alcohol –
•
Identify the risks and develop strategies to manage these
v. Food safety –
•
Identify the risks and develop strategies to manage these
vi.
Are toilets adequate and clean?
5.
EVALUATION (AT THE EVENT AND POST EVENT)
a.
Positive/negative feedback
i.
What methods will you use?
•
Surveys of attendees
•
Feedback or website
•
Organiser survey
•
Short interviews on video – remember you need to have permission to record and publish
people’s images and voices, especially if they are under 18.
•
Anecdotal
b. M
easure against your objectives / goals
i.
Attendances numbers
ii.
Range of cultural groups
iii. Age groups
iv.
What was the working process like?
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RESOURCES AND LINKS
RELATED LEGISLATION AND REGULATIONS
Occupational Health and Safety Act 2004 (Vic)
This is a link to the legislation which sets out the laws relating to workplace health and safety
in Victoria.
Victorian Equal Opportunity & Human Rights Commission
This is a link to the Victorian Human Rights and Equal Opportunity Commission that includes
specific provisions prohibiting discrimination when providing goods and services.
Fundraising Act 1998 (Vic)
This is a link to the Victorian legislation that regulates certain fundraising activities and events
in Victoria.
Food Act 1984 (Vic)
This is the main Act in Victoria that regulates the way food is provided at events.
Liquor Control Reform Act 1998 (Vic)
Liquor Control Reform Regulations 2009 (Vic)
Wrongs Act
1958 (Vic)
These can be found through the following link:
View Acts & Regulations
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LEGAL AND GENERAL ISSUES
Brimbank City Council - Events, Functions or Activities in a Council park or reserve
Not-for-profit Law: Events
Not-for-profit Law has really good information about the legal issues of event organisations.
LICENCES FOR EVENTS
Australian Business Licence Information Service (ABLIS)
The Australian Business Licence and Information Service (BLIS) is designed for businesses but
can be used by community organisations. For example click on ‘tailored training’, enter search
term like ‘festival’ select ‘event-related festival’, choose your local council and then continue
to answer questions about the event. A report of licence and permit requirements will be
generated.
ORGANISING EVENTS
Victoria Police - Events
Victoria Police website provides critical information about organsing safe events and the roles
and responsibilities of event organisers.
Disability Advocacy Resource Unit: A Guide
for
Accessible Events for People
with
Disability
This page takes you to the Disability Advocacy Resource Unit (DARU) website and to
guidelines to help you deliver events which are accessible for people with a disability. It
uses a Canadian guide. The DARU is working currently with VCOSS to produce a simpler,
home-grown version.
ourcommunity: plans and tools
Volunteer briefings developed
by
Parkinson’s
Victoria and Perfect Events. The
templates
are
available
for
downloading from
this
link
to the OurCommunity website.
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INSURANCE AND RISK MANAGEMENT
Volunteering Australia - Insurance
This portal has information about the types of insurance that your NFP may require for events.
Volunteering Victoria: Useful resources and guides
SERVING ALCOHOL AND FOOD SAFETY
Victorian Commission for Gambling and Liquor regulations - Applying for a permit
This website has the up-to-date information that you need about serving alcohol.
Food Safety website
Food Safety is a Victorian government site which provides information and tools to help you keep
food safe. This page includes information on the changes to the Food Act in relation to
running community events. It has a link to assist you in working out what class your event will fall
into.
FoodSmart - Food safety programs website
FoodSmart is a Victorian government website designed to help retail and food service
businesses develop their Food Safety Programs.
Department of Health Victoria: Food Safety
This link takes you to the Department of Health website information for community groups
on serving food. It contains lots of information about food safety and links to additional advice.
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CHAPTER SEVEN:
PROVIDING SERVICES
LEGAL ISSUES
Not-for-profit Law has information on its website to provide guidance for community organisations which
provide services. We have provided an overview of this information. There are several fact sheets on
the
Not-for-profit Law
website that are worth checking out.
The key issues identified are:
•
Duty of care and the standard of care when providing services;
•
Privacy when providing services;
•
Discrimination and human rights when providing services; and
•
Australian Consumer Law
DUTY OF CARE AND THE STANDARD OF CARE WHEN PROVIDING SERVICES
A community organisation may be liable for any acts or omissions made by the organisation, which
results in an injury to a client or the public or damage to their property. There are a number of legal
tests that must be satisfied before your organisation will be held liable for negligence (for more
information see the link at the end of the chapter to the Fitzroy Legal Service Law Handbook).
PRIVACY WHEN PROVIDING SERVICES
Some community organisations, including those that have contractual arrangements with government
(including funding agreements) may be required to comply with privacy laws (see the
Privacy Act 1980
(Victoria)
and
Privacy Act 1988 (Commonwealth)).
The Office of the Victorian Information Commissioner provides comprehensive guidance on the 10
Information Privacy Principles (ipps). It is very important that organisations understand they obligations to
ensure they comply with the law. For more information, visit the 10 Information Privacy Principles
page.
Not-for-profit Law advises that where the legislation covers your community organisation, you must
comply with the relevant Information Privacy Principles or National Privacy Principles which set out
how personal information is to be collected, held, managed, used, disclosed or transferred. Even where
your organisation is not covered, it is best practice to follow the relevant privacy principles as they are
not overly onerous and reflect public expectations on the way personal information ought to be handled.
Information about health is covered by the Health Records Act 2001 (Vic), and this framework
protects the privacy of individuals’ health information. The act also regulates the collection and
handling of health information.
Your community organisation should provide an opportunity for people that believe their records are
inaccurate or out-of-date to have them amended as appropriate. See also the section on Document
Retention on the Not-for-profit Law
website.
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DISCRIMINATION AND HUMAN RIGHTS WHEN PROVIDING SERVICES
DISCRIMINATION
Not-for-profit Law advises that the Equal Opportunity Act 2010 (Vic) protects a number of personal
attributes from discrimination in various situations including in employment and in providing goods and
services. Your organisation needs to know about the personal attributes and the situations covered
by the Equal Opportunity Act and also the exceptions and exemptions that are available. Relevant
links are on the Not-for-profit Law - Recruitment
guide.
As of 1 August 2011, when the new
Equal Opportunity Act 2010 (Vic)
came into force, there are a
number of new laws which affect community organisations - importantly, the sexual harassment
provisions of the Act now applies to volunteers (in the same way that they apply to employees).
The new Act also creates a positive duty on community organisations to eliminate discrimination
where possible; and makes some changes to indirect discrimination.
The Victorian Equal Opportunity and Human Rights Commission has created a series of fact sheets to help
volunteer-involving organisations, and volunteers, understand the new Act. (See the links at the end of
this chapter).
HUMAN RIGHTS
Victoria also has a Charter of Human Rights and Responsibilities (The Charter). Please refer to the
Victorian Human Rights and Equal Opportunity Commission page for in-depth information about the
Charter.
AUSTRALIAN CONSUMER LAW
Not-for-profit Law advises the following:
The
Australian Consumer Law (ACL) is a single, national law regulating consumer protection and fair
trading, which applies in the same way nationally and in each State and Territory of Australia. The
ACL imposes obligations on both individuals and companies or organisations who engage in trade or
commerce or supply goods or services to consumers. The ACL obliges them to act fairly and honestly and
to ensure that the good and services they supply are safe.
The ACL will apply to all not-for-profit community organisations when they engage in trade or
commerce or supply goods and services to consumers, and covers five main areas:
•
Unfair business practices;
•
Unfair sales practices;
•
Unfair contract terms;
•
Consumer guarantees; and
•
Product safety.
For more information on laws applicable to consumers and clients, visit Not-for-profit Law
website.
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UNSOLICITED SELLING PROVISIONS IN THE AUSTRALIAN CONSUMER LAW
It is likely that your organisation will need to comply with the unsolicited consumer agreement
provisions in the ACL if your community organisation goes door-knocking, makes unsolicited telephone
calls or approaches people in public spaces to sell goods or services or seek donations such as chocolates,
auction items or raffle tickets. It is important that your staff and volunteers know and understand these
provisions, so that you can make sure your practices and sales agreements are compliant with the ACL.
WHISTLEBLOWER LAW REFORMS AND IMPACT ON NOT-FOR-PROFIT
ORGANISATIONS
From July 2019, protection for whistleblowers have broadened under the Corporation Act 2001. Not-for
profit Law states:
The definition of who can be a whistleblower is now wider. Whistleblower protection has been extended
to include people that are current or former employees, volunteers, officers and contractors. The spouses
and dependents of these people also now enjoy protection as whistleblowers. The protection still applies
if a whistleblower stays anonymous. The scope of protection is also wider because whistleblower reports
are no longer confined to corporate breaches of the law; but may include inappropriate or improper
conduct.
For information on definition of “whistleblower” and how the new laws impact your organisation, refer to
the
Not-for-profit Law
webpage.
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SCAMS
Scams are ways that are used to deceive individuals, businesses or organisations to disclose their financial
or personal details. Scammers use various techniques and tactics to deceive people or organisations.
Unfortunately, not-for-profit groups are also at high risk of being targeted by scammers especially during
times of crisis, e.g. pandemics such as COVID – 19 or community emergencies.
Some of the examples of ways that scammers use to deceive people and organisation is by sending fake
bills, account summary, making phone calls pretending to be the ATO, local council or other regulatory
bodies and ask for your tax file number or threaten to take you to court for unpaid taxes, turn up at your
venue/building and pretend to be a qualified tradesperson. They even create websites, social media
accounts or email addresses that look and sound identical to yours. According to
ACCC, scams received via
email made approximately 53% of the reported scams by the end of April 2020.
It is very important that you protect your email and social media accounts, passwords, account numbers
and financial details. When opening emails from unknown senders, be very careful not to download or
open attachments as these are often harmful to your computer and can be used to access your database
remotely. The CAV Resources webpage provides a range of information including videos that can help your
organisation increase your knowledge to avoid scammers. You can take the CAV online scam quiz
to test
your knowledge of scams and how to avoid them.
During the COVID-19 crisis, scammers targeted businesses and community members and according to
ACCC SCAM WATCH, 2700 reports contained the word “Coronavirus”. The scammers attempted to solicit
personal information or superannuation information. Visit the ACCC SCAM WATCH
webpage for more
information and to keep up to date with the latest news and trends.
REPORTING SCAMS
It is very important that you report a scam as soon as it occurs. You can do so by reporting it via:
The
CAV Report a Scam portal;
The ACCC
SCAM WATCH portal.
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RESOURCES AND LINKS
GENERAL INFORMATION
Fitzroy Legal Service Law Handbook: Negligence and Injury
This is the link to the Fitzroy Legal Service Law Handbook. Negligence and Injury chapter which
provides an overview of the test for negligence and other relevant information on liability.
Please note that you need to pay if you want to access the full text.
PRIVACY ISSUES
Office of the Victorian Information Commissioner
The Office of the Victorian Information Commissioner regulates how Victorian government
agencies and local councils handle personal information. This relates to community
organisations if you are receiving funds from government agencies. The Office of the Victorian
Information Commissioner does not deal with issues relating to the private sector and
medical or health records, but has links to direct you.
Other links in relation to privacy legislation:
Freedom of Information
What is Privacy?
Information Privacy Principles
Health Records Act 2001 (Vic)
Commonwealth Office of Australian Information Commissioner
Images of children and young people online resource sheet
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DISCRIMINATION AND HUMAN RIGHTS
Victorian Equal Opportunity and Human Rights Commission (VEOHRC)
Villamanta Disability Rights Legal Service
Equal Opportunity Act 2010 & Clubs
VEOHRC information on the Equal Opportunity Act 2010 (Vic) Volunteers & Equal Opportunity Act
2010
Laws & Legal Resources
SCAMS
Consumer Affairs Victoria - Resources & Links
Consumer Affairs Victoria - online scam quiz
Consumer Affairs Victoria - If you are scammed
Consumer Affairs Victoria - Report a scam
ACCC SCAM WATCH
ACCC SCAM WATCH - Types of scams
ACCC SCAM WATCH - Report a scam
ACCC SCAM WATCH - Where to get help
Australian Cyber Security Centre
Report a cyber crime
Stay Smart Online -Online scams at a glance
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CHAPTER EIGHT:
MARKETING, MEDIA &
CAMPAIGNS
MARKETING AND COMMUNICATION
Marketing and communications involve a range of activities that essentially focus on getting people
involved in your volunteer programs and promoting your organisation in the community. To get people
involved, you need to ensure that there is a good fit between the programs you offer and the needs of the
people involved in them (for example volunteers, customers, staff and other stakeholders). You also need
to ensure that all these audiences know about your programs and how they can be involved.
Volunteer Victoria and the “
ourcommunity
” websites have some really useful information about
marketing. They cover the range of activities involved in promoting your organisation and how these
are tied together through the development of a marketing plan and communications strategy. The
“ourcommunity
” website has a list of local media contacts and helpful hints on organising a media
campaign.
The communications templates are particularly useful. The Volunteer Victoria website includes templates
in WORD format for items such as your Annual Report, badges, certificates, brochures, and newsletters.
Use the links at the end of the chapter below to access the information.
The “ourcommunity
” website has some great images which you can use and play around with
electronically. Topics covered on both sites help you in the process of developing a communications
strategy and a marketing plan, how to work with the media and how to manage a range of strategies,
including direct mail-outs and data base management.
UNDERSTANDING EXTERNAL RELATIONSHIPS
Understanding the broader context and the environment in which your organisation operates is a critical
part of marketing your organisation and communicating with the range of stakeholders which you deal
with every day. This includes the people who use your services, the members of the organisation, funding
bodies and the community at large.
As part of the process of developing a marketing plan for your organisation, you need to consider who
your stakeholders are. Both the “
ourcommunity” and
Volunteering Victoria
websites provide advice and
step-by-step processes for developing a marketing plan.
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WORKING WITH THE MEDIA
APPOINTING A SPOKESPERSON
The “ourcommunity
” website has great tips for working with the media, including appointing a
spokesperson for the organisation. This is really important. For most organisations, it is usually either
the chairman/president or the CEO/Executive Director or in some cases both. Other groups will choose a
senior manager who has the power and ability to get the message across.
DEVELOPING A MEDIA POLICY
You need to develop a media policy, which provides guidance for the spokesperson as to what he or she
can or cannot say. However, “ourcommunity” advises that you need a spokesperson that is an opinion
leader and as such are expected to have opinions on a wide range of issues. Check out their advice on the
website.
It is also very important to consider all the various forms of media and communication methods that your
organisation uses. The wide range of communication channels available mean that information travels
faster and has a wider reach. For more information on important legal considerations applicable to your
media and communication strategies, visit the Not-for-profit Law
webpage on this topic.
Activist Rights is a specialist website developed to provide the Victorian community with information
about activists’ rights. The website was developed by the Fitzroy Legal Service, with support from the
Victorian Law Foundation and the Reichstein Foundation. Its contributors include many lawyers from
across the Victorian community legal sector
If you are considering organizing a rally, protest march or an advocacy campaign of any kind, you need
to fully understand the implications of your activities and make sure that you do not breach any laws
including local laws enforced by your local council. Some of the possible risks that your organisation may
face includes defamation, trespass, public safety, damage and loss to businesses and reputational risk to
name a few. The
Not-for-profit Law Campaigns and Protest page provides very useful information on this
topic.
RESOURCES AND LINKS
Not-for-profit Training - Communication and Advertising
Not-for-profit Law - Defamation
Ourcommunity - Marketing & Communication Centre Fitzroy Legal Service Inc: activist rights
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CHAPTER NINE: MANAGING
DIFFICULTIES AND CHANGE
WHEN THINGS GO WRONG
Sometimes, despite your best efforts and plans, things go wrong. It is a good idea to get help as soon
as you can – do not wait or hope the problem will go away. Many problems can be resolved if dealt
with effectively at an early stage (Not-for-profit Law). This section provides an overview of the types of
problems and directs you to useful information. The links are contained in the last section of the chapter.
The following sections are drawn from on the information from the Not-for-profit Law
website.
HANDLING CONFLICT IN YOUR ORGANISATION
Healthy debate in organisations is important and can help organisations to change, grow and adapt to
changing environments. However, sometimes, the debates can become destructive and can get in the way
of you achieving your goals. Specific information is available for disputes involving employees, volunteers
and or occupational health and safety in the workplace. Links to assistance are contained in the last
section of this chapter. Criminal conduct needs to be referred to the police.
USING MEDIATION TO RESOLVE CONFLICTS AND DISPUTES
Not-for-profit Law indicates that mediation is a useful way to try to resolve disputes within community
organisations - and can be free for Victorian community organisations. The Attorney General’s Department
has a great deal of information about Alternative Dispute Resolution. You can download
Your Guide to
Dispute Resolution
from their website.
The
Dispute Settlement Centre of Victoria can also provide information and support to not-for-profit clubs
and associations to resolve internal conflict.
CONFLICTS WITHIN VICTORIAN INCORPORATED ASSOCIATIONS
Disputes with Members and Committee Members
The
Not-for-profit Law website has considerable information in relation to managing disputes in
incorporated associations. This includes:
•
Dealing with disputes and grievances with members;
•
Removing or disciplining a member;
•
Removing a committee member from the committee.
The information on this website is regularly updated and thus it is worth checking – link at end of the
chapter.
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COURT ACTION
Not-for-profit Law advises that the law provides some options for going to court about an ‘internal
dispute’ within a Victorian incorporated association. However, going to court is stressful, time consuming
and expensive - it is a last resort. Attached is an information sheet prepared by Not-for-profit Law to assist
you. It contains information about:
•
Things to try before going to court about an internal dispute,
•
What kinds of internal disputes can be taken to court under the Associations Incorporation
Reform Act (2012)
, and
•
What to do if someone takes legal action against your organisation.
Before deciding to take court action about an internal dispute, think about what is really
important about the dispute. Will going to court fix it? Also ask:
→
Who, if anyone, is likely to get what they want by going to court?
→
How much has the dispute cost so far, and how much more will our organisation
spend if it
goes to court?
→
What will be the personal costs of going to court be (for example: time, impact on
individual’s
lives, relationships and stress levels)?
→
Are there other alternatives (e.g., resigning or starting another organisation)?
FINANCIAL PROBLEMS AND INSOLVENCY
If your organisation is having trouble with finances, e.g. Unable to pay bills, you should seek advice about
your rights and responsibilities.
You must not
continue
to
operate while insolvent
– it is
illegal.
Australian Securities and Investment Commission (ASIC) have a whole section about insolvency on their
website, including information about your responsibilities if you are a director of an insolvent company.
Not-for-profit Law also has information to help you. (refer to the last section of this chapter).
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INCIDENTS AND ACCIDENTS
Not-for-profit Law explain that your organisation needs to consider what duty and standard of care applies
when you provide a service to clients or the community. If your organisation breaches the duty of care,
there may serious legal implications. Not-for-profit Law have put together a very useful Negligence Fact
Sheet.
We also encourage you to refer to
N
ot-for-profit Law Insurance & Risk Management Guide for
Community Organisations.
CRIMINAL CONDUCT
Criminal conduct in nfps does not happen often. Please refer to the Not-for-profit Law Criminal Conduct
Inside Your Organisation Fact Sheet for preliminary information. It has a step-by-step process, providing
guidance on what you might do if you suspect criminal conduct.
WHEN THINGS CHANGE
Inevitably, things will change for your community organisation. There a number of factors which can lead
to change. These include expanding, which may require a change in legal structure, growth in fundraising
to the point where you may wish to consider applying for Deductible Gift Recipient taxation status and
requiring amendments to your constitution. You may even decide that you no longer need to exist or that
you wish to amalgamate with another NFP.
The
Not-for-profit Law website looks at just some of the legal issues that Victorian community
organisations should think about when things change (or before things change!). The topics include legal
issues to consider when:
•
Changing our organisation’s constitution or rules;
•
Working with other organisations (including auspicing agreements, joint ventures agreements,
and memoranda of understanding);
•
Changing your organisation’s legal structure;
•
Amalgamating with another organisation (or many); and
•
Winding up an organisation (either voluntarily, via de-registration or the courts). (Not-for-profit
Law).
CLOSING OR WINDING UP
Winding up or ceasing to operate as an NFP can happen voluntarily or may be forced by circumstances.
For example, if your NFP is a company and you are insolvent (such as unable to pay your bills), ASIC
might initiate deregistration. The Not-for-profit Law - Ending an organisation page, provides detailed
information about important things you need to consider. Also refer to their Ending an organisation FAQ
Fact sheet.
If you’re faced with the responsibility of winding up your Not–For-Profit, there are specific processes
you need to follow, depending on the type of organisation; incorporated association, company,
cooperative or Indigenous corporation (links in last section).
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WINDING UP AND FINANCES
If you need to wind up your NFP for any reason, you will need to consider finances.
Finances may be the reason for winding up. If your organisation is unable to pay its bills by the due date,
this is also known as being insolvent.
If you are winding up your organisation for other reasons, you are likely to have excess funds and these
will need to be distributed.
EXCESS FUNDS
Not-For-Profit organisations may not distribute funds to benefit individual members. Go to your rules or
constitution in the first instance for information about your obligations.
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RESOURCES AND LINKS
RESOLVING DISPUTES
Your Guide to Dispute Resolution
Not-for-profit Law - Disputes and Conflict
This page provides information about legal issues in relation to managing conflict and disputes.
Dispute Settlement Centre of Victoria (DSCV)
Dispute Settlement Centre of Victoria (DSCV): A free dispute resolution service funded by
the Victorian Government.
Queensland University of Technology (QUT): when things go wrong
This is part of Queensland University of Technology’s “
Developing Your Organisation Manual
”
which provides directions to help not-for-profits meet their governance, organisational and
service delivery responsibilities.
Law Institute Victoria: Find a Lawyer and Legal Referral Service
This is a link to the Law Institute of Victoria (LIV) referral service. This service allows you to
locate a lawyer that can provide legal advice on various topics.
FINANCIAL PROBLEMS
Not-for-profit Law: Insolvency
Consumer Affairs Victoria: Incorporated Associations
This is a link to Consumer Affairs Victoria, the Victorian government agency that is responsible
for regulating Victorian Incorporated Associations.
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MANAGING CHANGES
Not-for-profit Law: Changing Structure
This link takes you to the section of the Not-for-profit Law website relating to the possible
changes referred to in this chapter.
CLOSING OR WINDING UP
INCORPORATED ASSOCIATIONS
Consumer Affairs Victoria: cancel wind up or amalgamate an incorporated association
For wind up of incorporated associations, this link takes you to Consumer Affairs Victoria and
guides you through the steps you need to follow.
COMPANIES
Australian Securities and Investment Commission: closing down your
company
This is a link to the Australian Securities and Investment Commission (ASIC) website. It
provides information in relation to voluntary and forced closure of a company.
COOPERATIVES
Consumer Affairs Victoria: wind up a co operative
For wind up of cooperatives, this link takes you to Consumer Affairs Victoria and guides you
through the steps you need to follow.
INDIGENOUS CORPORATIONS
Office of the Registrar of Indigenous Corporations: Closing a corporation
To wind up an organisation, members will have to pass a special resolution and you will
need to inform
Office of the Registrar of Indigenous Corporations (ORIC), using the proper
form. This link takes you to the ORIC website for more information.
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CHAPTER TEN: WHO TO TURN TO
WHEN YOU NEED ADDITIONAL
ADVICE AND SUPPORT
ORGANISATIONS
This manual is designed to provide you with the basic information to get you going and keep you
going. However, there will be times when you need additional advice and information. So, here are the
websites which we have found the most useful. These are located throughout this document also, in
the references section at the end of each chapter.
Organisation What is available
Website Address
Consumer
Affairs Victoria
Regulatory authority for nfps in
Victoria. You need to register
with this organisation.
Http://www.consumer.vic.gov.au/clubs-and
not-for-profits
Dispute
Settlement
Centre of
Victoria
Dispute Settlement Centre of
Victoria provides free dispute
resolution services to all
Victorians.
Https://www.disputes.vic.gov.au
Not-for-profit
Law
Comprehensive legal and other
information for nfps.
Https://www.nfplaw.org.au
Indigenous
Governance
Toolkit
Easy to understand guide to
good governance.
Https://toolkit.aigi.com.au
Our
Community
Range of information for nfps
including grants that are
available. You need
to subscribe to get all the
resources.
Http://www.ourcommunity.com.au/
Volunteering
Victoria
“I can do that” portal: an easy
to use site with a range of
information for volunteers and
organisations.
Http://www.volunteer.vic.gov.au/
Volunteering
Australia
Range of information including
advice about insurance.
Http://www.volunteeringaustralia.org/
VCOSS
Peak body for social services
of nfps in Victoria. Have good
information about policies and
procedures and a range of other
resources.
Http://www.vcoss.org.au/
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SEARCHING FOR CURRENT LEGISLATION
VICTORIAN LEGISLATION AND REGULATIONS
Current, authorised versions of Victorian Acts and Regulations are available at legislation.vic.gov.au
. It is
important to always view the current version of legislation, to ensure you are complying correctly.
To search for the current version of any Victorian Act or Regulation, follow these steps.
1.
Go to legislation.vic.gov.au
2.
Click on Legislation in force
3.
Select legislation or rules relevant to the area of law that you seek information about
For comprehensive guidance on how to navigate this webpage, visit: Searching.
COMMONWEALTH LEGISLATION
Current, authorised versions of Commonwealth Acts and Regulations are available at comlaw.gov.au
The home page of the comlaw website has useful information on how to use the site.
You can also search for Commonwealth and State legislation as well as case law by visiting the Australasian
Legal Information Institute.
Please note that navigating legislation can be quite complex and confusing, to ensure that you access
the most accurate legal information, we strongly recommend that you seek legal advice or refer to the
relevant regulatory body for information related to your organisation.
TRAINING
There are numerous training opportunities available to help you gain more knowledge to work effectively
in your NFP organisation. The “
ourcommunity
” organisation offers training as does Not-for-profit Law
.
Brimbank City Council also offers training for community organisations. Visit the Brimbank City Council
- Community Training and Resources page for the most up-to-date information. It is a good idea to work
out what your skills are as an organisation and where your knowledge gaps may be. Target your training to
meet these needs, for example find out if your treasurer needs support in further training, if the president
identifies training in resolving conflict within the organisation or the newly appointed secretary feels the
need to refresh their knowledge regarding their roles and responsibilities and reporting requirements. It is
very important to make sure that all members also take responsibility to develop and enhance their skills
and identify areas of improvement. You can assess your organisations’ training needs by conducting self
assessment surveys and having robust conversations at your committee meetings. It is also very important
that newly elected members are provided with training opportunities to maintain a high standard of
knowledge and practice in your organisation.
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PROJECT PLANNING TEMPLATE
Project title/name
Project description
: In 50-100 words, describe your project and be sure to cover the following key points:
1.
What your project will deliver? I.e.: product, program, campaign
2.
Who is your target audience?
3.
Who your organisation is partnering with?
4.
Where the project will take place? I.e.: a community centre, public spaces, online
5.
How you will deliver the project? I.e.: series of workshops, series of publication, songs, interviews
6.
When will the project take place?
The need for the project:
Provide evidence as to why you think the target audience will participate in the
project and how you know that the community wants/needs the project
The aims of the project:
Outline 2-5 outcomes that the project will aim to achieve
Financial resources you need to run the project
Human resources you need to run the project:
i.e.: who will do what? Number of people needed
Other resources you need to run the project:
i.e.: transport, venue, lighting, sound system, cooking
facilities
Permits/insurance:
Check what permits you need to obtain and how much they will cost
Checks:
If your event/project involves children, make sure that all people involved in the project have
WWCC
Your community partners and their role
Timelines for the project:
The date the project starts and the date it ends
Evaluation plan
Risk management
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EVALUATION TEMPLATE
Project/event title
Time and place of the project/event
List of activities carried out
Facilitators/organisers
Who attended:
Age, gender, disability and culture
How did you make sure that people knew about your project/event?
Community meetings, social media
posts, talking to other organisations, local community radio
Feedback provided by the attendees:
survey forms, interviews, social media polling, photographs, etc.
What worked well:
equipment, location, facilitator, contents, food, drinks, activities
What didn’t work well:
Partnership, finances, weather, number of attendees, attendees’ engagement,
promotion, volunteers didn’t turn up, etc.
What were some of the challenges?
How much did it cost?
Did you use the budget according to the budget template? Did you keep a record of
each expenditure item?
What will you do differently next time?
Better time management, budget planning, partnership
development, further training
Did the project achieve its aims?
Refer to your project plan template
What were the outcomes of the project?
I.e.: 150 newly arrived families were informed about how to
navigate the legal system, or: 200 young people from various cultural backgrounds shared their traditional
art and music with the wider community
How will you make sure that the impact of the project is ongoing?
I.e.: how you will know that the
participants will continue to benefit from the activity/event you held? What are your plans for the future?
More events? More workshops? Linking the participants with other organisations?
How will you share your success story with the broader community? Social media posts, article in the local
newspaper
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WORKING WITH OTHER CULTURES CHECKLIST
1.
Welcome to Country or Acknowledgment of Country:
Invite an Aboriginal Traditional Owner of the country where you meet, to open your event. This
is a very important step to acknowledge the custodians of the land where you meet. If you are
unable to do this, make sure that you acknowledge the traditional owners of the land upon which
your activity/event takes place. If you don’t know the wording, ask your local council for guidance
2.
Check whether your activity/event coincides with a significant cultural event, i.e.: Chinese new
year, Ramadan or Diwali to ensure that your activity is inclusive of community members who
celebrate these occasions
3.
Acknowledge and welcome all other cultures: it is important that your activity/event is welcoming
of all community members.
4.
Create a culturally safe environment: Make sure that everyone feels they can participate in your
activity/event
5.
If you are providing food, take into account different dietary requirements of the community.
Don’t make assumptions about what people eat/don’t eat!
6.
Prayer area: try and provide a prayer space for community members who may wish to access a
prayer room
7.
Serving of alcohol: If you are serving alcohol at your event, try and keep the serving area away
from where non-alcoholic drinks are served
8.
Promotion and marketing: Use appropriate images and wording when promoting your activity/
event. You may need to have your promotional material in different languages to have a wider
reach and to be inclusive
9.
Use interpreters and cultural guides: Try and have interpreters or community guides to make sure
that community members understand the content of your activity/workshops/events. At the same
time, don’t assume that people from culturally diverse background, don’t speak English. Many
people have a good command of English, let the community member guide you as to whether
they require an interpreter
10.
Create opportunities for cultural exchange: Include activities that create an opportunity for various
cultures to share their views, traditions, customs and practices with the broader community.
Include them as part of your event and not simply as the audience
11.
Invite cultural leaders to give you feedback on your activity/event and take their feedback on
board for your next project. There is a risk of disengagement, if you ask for people’s feedback but
don’t do anything with the information
12.
Make time to educate yourself about other cultures. Don’t make assumptions about people’s
country of origin and their cultural practices.
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Agenda
Type meeting title here
Date:
Time:
00:00 to 00:00
Chairperson:
Location:
Attendees:
Guests:
Apologies:
Items
No. Topic
Attach
Presented by
For
Tabled?
Time
1.
2.
3.
4.
5.
Next meeting:
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Minutes
Type meeting title here
Date:
Time:
00:00 to 00:00
Chairperson:
Location:
Attendees:
Guests:
Apologies:
Items
No.
Item
Action Who
Date
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
Next meeting:
Brimbank City Council
Telephone
9249 4000
Email
info@brimbank.vic.gov.au
Post
PO Box 70, Sunshine, VIC 3020
Hearing or speech impaired?
• TTY dial
133 677
• Speak & Listen
1300 555 727
•
www.relayservice.gov.au
, then enter
03 9249 4000
Find us on Facebook, Twitter and YouTube
www.facebook.com/brimbankcouncil
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