The Queensland Office of Fair Trading has introduced changes relating to dispute resolution procedures and remuneration disclosure requirements for Incorporated Associations, effective from 1 July 2024.

Dispute Resolution Procedures

Pursuant to recent amendments to the Associations Incorporation Act 1981 (Qld), Incorporated Associations are now required to implement and follow the new model rules’ grievance procedure or adopt another compliant procedure into their governing rules. This change has been introduced to ensure that Incorporated Associations have a formal process to handle internal conflicts and reduce the need for members to seek legal recourse in applying to the Supreme Court.

Action steps required for Incorporated Associations

The model rules’ grievance procedure will automatically apply to any Incorporated Associations who follow the model rules – no constitutional change is required. An overview of the procedure can be accessed here.

Incorporated Associations who already have their own grievance procedure or otherwise wish to adopt a custom procedure must ensure that the procedure complies with section 47A of the Associations Incorporations Act 1981 (Qld). This provision requires that grievance procedures must:

• allow a member to appoint any person to act on their behalf;
• give each party an opportunity to be heard;
• allow unbiased mediation if the dispute cannot initially be resolved; and
• ensure a decision-maker is unbiased if the grievance procedure allows a person to decide the outcome of the dispute.

Any current grievance procedures that do not comply with section 47A will be invalid. In this case, Incorporated Associations will be required to follow the model rules’ grievance procedure, until a valid procedure is adopted.

We note that outlining a grievance procedure in internal policy documents rather than in the governing rules of an Incorporated Association will be insufficient for the purpose of section 47A of the Act,  and will arguably cause the grievance procedure outlined in the model rules to apply to the association. As such, Incorporated Associations which currently outline a grievance procedure in policy documents should seek to amend their rules to ensure their preferred procedure continues to apply (subject of course to the requirements of the Act.

Remuneration Disclosure

Incorporated Associations are now required to disclose remuneration and other benefits received by management committee members, senior staff and their relatives at their annual general meeting (AGM). This change has been introduced to promote grater transparency and accountability within Incorporated Associations.

Remuneration and benefits may be disclosed as a total figure given to all persons, so long as the number of persons who have benefited is reported. Reporting is required even where the amount to report is zero.

It is important to note that Incorporated Associations registered with the Australian Charities and Not-for-profits Commission (ACNC) who are exempt from submitting annual financial reports to the Office of Fair Trading are not exempt from this requirement.

For the purpose of the reporting requirements, remuneration includes salary, allowances and other entitlements (eg. free coaching sessions, waived membership fees, or discounted purchases at the association’s club). The meaning of “benefit” is undefined by the relevant legislation, but guidance issued by the Office of Fair Trading suggests that “benefit” will be interpreted as all forms of compensation paid or provided by the Incorporated Association (which is not remuneration) in exchange for services. Examples include:

• Paid leave entitlements;
• Termination benefits;

Non-monetary benefits such as medical care, housing, care and free or subsidised goods and services.

Our team of not-for-profit lawyers are experienced in providing advice to incorporated associations. If your association is looking for advice, please contact us today on 1300 862 529.

This article was written by Sarah Gates & Jessica Lipsett.

As of 1 July 2024, significant legislative changes impacting Australians have come into effect. Below is a snapshot of the important rates, thresholds, limits and workplace laws now applicable and tips for employers to ensure compliance:

Wage and remuneration changes

Employment-related matters increase in Modern Award minimum wage raise – a 3.75% increase from the previous year for adult employees. Other award wages, including junior apprentice and supported wages that are based on adult minimum wages will receive a proportionate increase.

Increase in National Minimum Wage (for employees not covered by an award or registered agreement) – up to $915.90 (38 hour) week, or $24.10 per hour.

Employers to consider

• implementing the new minimum wage rate obligations
• update their payroll systems and
• adjust expense and revenue budgets accordingly.

Employers may also issue letters to employees confirming the change and a review of and updating existing employment contracts.

Parental leave changes

Other considerations for employers include the increase to Parental Leave Pay to 22 weeks and the increase to the amount of unpaid flexible parental leave for children born or placed for adoption.

Fixed term contract exceptions

Additional temporary exceptions to the use of fixed term contracts have been extended in some industries, namely:

• Organised sport, high performance sport, live performance – until 1 November 2025
• Higher education – until 1 January 2025

Numerical changes on caps, thresholds, brackets and noteworthy introductions

In short summary, the following have also been updated.

Caps & thresholds:

• Unfair dismissal compensation cap increase – now $87,500
• High income threshold – now $175,000
• Tax-free limit for genuine redundancy payments increase – $12,524 base limit, $6264 for each completed year of service
• Increase in Superannuation guarantee rate – now 11.5% (up from 11%)

Employer note: Employers should make these superannuation-related adjustments and review any existing salary sacrificing arrangement involving superannuation payments with their employees.

• Concessional contributions caps now $30,000 (up from $27,500)

New tax brackets:

• Earn up to $18,200 – pay no tax
• Pay a 16 per cent tax rate on each dollar earned between $18,201-$45,000
• Pay a 30 per cent tax rate on each dollar earned between $45,001-$135,000
• Pay a 37 per cent tax rate on each dollar earned between $135,001 to $190,000
• Pay a 45 per cent tax rate on each dollar earned above $190,000.

Other noteworthy introductions:

• A new industrial manslaughter offence introduced – carrying a maximum penalty of 25 years’ prison for individuals and $18 million fines for bodies corporate of the Commonwealth
• Introduction of delegate’s right clauses in modern awards. Also any enterprise agreement made post 1 July must include a delegate’s rise clause that is no less beneficial for employees compared to the modern award clause. These provisions give additional rights to employee delegates including:
• • Representing the industrial interest of eligible employees in a wide range of workplace matters including changes to rosters or hours of work, consultation about workplace change, disciplinary processes, enterprise bargaining, dispute resolution.
  • Communication with eligible employees during work hours, work breaks, or before after work
  • Access to a private room or area for discussions with eligible employees, p notice board, email account for communication purposes, secure document storage area, office facilities and equipment
  • Paid time off during working hours, depending on size of employer’s business and total number of eligible employees
• Right of entry exemption certificates – the Fair Work Commission now has the authority to issue right of entry exemption certificates allowing permit holders to enter worksites without the usual 24 hours’ written notice if the purpose of their entry is to investigation suspected wage underpayment issues.
  • Employers should prepare for the possibility of unannounced visits by union representatives and ensure their payroll and record-keeping practices are legally compliant. Regular audits and wage practice reviews will help mitigate risks associated with wage underpayment

Further updates expected

From 26 August 2024, there will also be further updates:

• A new definition to help determine the meaning of ‘employee’ and ‘employer’
• Changes to casual employment including definition of casual, the pathway to permanent employment, and employee and employer responsibilities
• A new right to disconnect for eligible employees (which doesn’t apply to small businesses until 26 August 2025).
  • Eligible employees have the right to refuse employer or third-party contact outside of working hours.

• New minimum standards and protections for ‘employee-like workers’ in the gig economy and certain industries

Need assistance on employment-related matters?

Please reach out to our employment lawyers for specific advice for your business or if you are an employee, to navigate these changes. Call us today on 1300 862 529, or email your enquiry via the contact us link, to arrange an initial consultation. We look forward to meeting with you.

This update was written by Fran Keyes, Practice leader (Employment & Discrimination Law).

The non-government school sector has witnessed a significant upturn in litigation in recent times with several high-profile cases attracting significant media attention. Most of those cases centred around a decision of the Minister to recover financial assistance that had been provided to a school, who was later declared to be operating ‘for profit’. In late 2023 the New South Wales government announced that it would be undertaking a review of section 83C of the Education Act 1990 (NSW), and a full report with recommendations is due to be delivered to the Minister by end of June 2024. This article provides insight into the scheme as it currently stands and will provide a benchmark for our analysis of the forthcoming review.  

It is worthwhile taking a moment at the outset to consider the framework of the system. The Education Act 1990 (the Act) which serves as the primary legislative instrument governing schooling in New South Wales was enacted by the Parliament based on four fundamental principles, namely that: 

1. every child has the right to receive an education; 
2. the education of a child is primarily the responsibility of the child’s parents; 
3. it is the duty of the State to ensure that every child receives an education of the highest quality; 
4. the principal responsibility of the State in the education of children is the provision of public education 

To make a matters more complex, there are also five principal objects of the Act as well as a list of objects for the administration of education3 which notably includes: assisting each child to achieve his or her educational potential, and mitigating educational disadvantages arising from a multitude of socio-economic factors. The purpose and objects of the Act serve as the cornerstone in judicial review conducted by the courts and can assist non-government schools to frame decision making in a way that is consistent with the statutory framework.  

Financial Assistance for Non-Government Schools 

Many perusing this article will be familiar, if not well acquainted, with section 83C of the Act. It stipulates that the Minister must not provide financial assistance to schools operating ‘for profit’ and outlines a number of scenarios (which is a non-exhaustive list) in which a school would be considered to be operating for profit. Much of the section turns on the concept of ‘reasonable market value’. Notably, there is a broad coverall provision under section 83C(2)(b)(iii) which allows the Minister to deem any payment made by the school unreasonable, considering that financial assistance is provided by the State.  

The term ‘reasonable market value’ is not defined in the Act and is the subject of much consideration and conjecture for non-government schools. Some guidance is provided in the Not-for-Profit Guidelines for Non-Government schools. In the guidelines ‘reasonable market value’ is defined as ‘the price that a knowledgeable and willing third party would pay for property, goods or services in an arm’s length transaction from the seller’.  

There is also a strong emphasis in the guidelines on the implementation of appropriate policies, and procedures for maintaining business records, with suggestions made as to what policies should be held in different circumstances. Non-government schools must ensure they have implemented appropriate financial controls and governance systems and hold appropriate business governance policies in order to maintain compliance with the Act. 

The terms of reference for the review of section 83C require recommendations to be made to improve the regulation of financial assistance to non-government schools. An area under consideration is the effectiveness and the wording of both section 83C and the associated sections, to determine if there is sufficient clarity for schools to comply with the legislation. We expect to see recommendations being made to the Minister for the improvement of this division of the legislation, along with clarity for the phrase ‘reasonable market value’.  

Powers of the Minister

Another topic of interest for non-government schools, which has also been considered by the courts in recent times, is the extent of the power held by the Minister. The Minister, on the advice of the Advisory Committee, has a very broad power to terminate or otherwise restrict the financial assistance given to a school if they are declared to be operating either currently or in the past ‘for profit’.6 However, the Minister my choose not to terminate the provision of financial assistance if, following an investigation the Minister is satisfied that termination is not justified because of the minor nature of the relevant conduct, or more appropriate action can be taken under section 83E of the Act. 

It is important to note that should a school be the subject of an investigation, the Minister must provide written notice to the school of any recommendations made by the Advisory Committee and allow 30 days for a response. 

Let us help you

Should your school come under investigation by the Advisory Committee, Vocare Law is here to help you carefully consider your response. This is a nuanced area with the potential for severe consequences in the event of non-compliance, and we recommend that you seek our legal assistance should you find yourself in that situation.  

We are also passionate about assisting our non-government school clients to ensure that their due diligence is of a sufficiently high standard, well before an investigation is ever contemplated. We support schools in meeting their regulatory requirements, ultimately helping to ensure that educational services remain robust and compliant. Should you require any assistance in this area, please don’t hesitate to contact our office on 1300 862 529.  

We look forward to contemplating part 2 to this article as the recommendations from the review are released in due course.  

This article was written by Alice Osborne.