Sub Branch Committee Executive Seminar 2012

RETURNED AND SERVICES LEAGUE (Victorian Branch) Inc

05/07/2012

Silent Tribute

05/07/2012

David McLachlanState President

Introduction

05/07/2012

Mike AnnettChief Executive Officer

ANZAC House Services & Overview by Key Staff

05/07/2012

Overview of ANZAC House Services & Key Staff Appeals & Membership – Peter Smith

Aged and Health Support – Wendy Bateman

Veteran Welfare and Entitlement Support – Jeff Jackson

Membership, Rules and Branch Administration including State

Executive and Tribunal Matters – Mike Annett

Finance, Property, Quality Assurance, Patriotic Funds –Mark Sherlock

Licensed Sub-Branch Group including Corporate Member Services

and Marketing – Brian Cairns.

05/07/2012

Introduction Branch Rules And Bylaws

Mike Annett & Frank Bell

05/07/2012

Branch Rules and Bylaws National Constitution National Bylaws & Standing Policy Branch Rules and Policy Statements Branch Bylaws Corporate Governance Charter (Bylaw 11)

and Compliance Manual

05/07/2012

Questions of Precedence And Interpretation. Key Bylaws

4&5 Treasurer and Secretary 7: Patriotic Funds8: Appeal Monies10A&10B: Model Rules for Licensed Sub-Branches11: Corporate Governance19:Sub-Branch Disciplinary Proceedings

Branch Rules and Bylaws

05/07/2012

Duties Of Presidents, Secretaries And Treasurers

Mike Annett & Frank Bell

05/07/2012

President Responsibilities

Rules provide a guide only, particularly in the case of the President.

Branch Rule 13.6(p) “The President shall provide a general supervision over the staff and the Sub-Branch’s administration”

05/07/2012

President Responsibilities What Does This Mean?

a) Must be inclusive – First amongst Equals

b) Involve Committee and seek consensus, noting the particular role

of the Executive in this

c) Ensure League’s Welfare and Commemorative objectives are met.

d) Lead Committee members and other vital appointments

e) Public & Community face of the RSL

f) Provide direction, goals and oversight to Manager, Staff and

Volunteers

g) Keep State Branch abreast of issues and seek guidance or

authority where appropriate

05/07/2012

Secretaries Responsibilities

Bylaw 5

Smooth administration of Sub-Branch

See obligations under Constitution, Rules and Bylaws met

Support President in his role, especially as Secretary of the Committee and ensuring information is disseminated.

05/07/2012

Treasurer’s Responsibilities Bylaw 4

Meet financial reporting requirements of Sub-Branch, including preparation for Annual Audited Statement

Meeting of QA and Patriotic Funds reporting obligations (ATO Deed of settlement)

In Licensed Sub-Branches, work with Manager and staff to maintain financial health of Sub-Branch in terms of operational cash flow, statutory and creditor obligations and debt servicing.

05/07/2012

QUESTIONS

05/07/2012

MORNING TEA

05/07/2012

Conduct Of ElectionsAGMS & Disciplinary Hearings

Mike Annett – Chief Executive Officer

05/07/2012

Sub-Branch Elections Rule 13.7/13.8

Key IssuesNotices Given: Timing and FormAppointment of Returning Officer/ ScrutineersPostal Ballot v AGM Voting

○ (proposed secret ballot mandatory in LSBs)Affiliate Representation and “60/40 Rule”Social member position on CommitteeVoting Method: Keep it simple and understood by membersProbity and Transparency: “Seen to be done”

05/07/2012

AGM’sRule 13.9/13.9A

Key Issues Timing and notice to members Quorum and chairing of meetings Vital Business

a) Presidents report b) Audited Financial Statement (already approved by Committee) c) Elections/ Declaration of Ballot d) Auditor Appointment e) Honorariums f) Other Business – items on agenda only? g) Members open forum? Back to back GM?

Not less than one ordinary GM, in addition to AGM required in the year. (One required within sixty days prior to State Conference)

05/07/2012

Conduct of Sub-Branch Disciplinary Hearings

Sub-Branch Processes cannot be arbitrary State Branch Tribunal and its role Vital to get this right to deal with unacceptable behavior Sub-Branch – Bylaw 19 State Branch Tribunal – Bylaw 18 National Rule 19 governs the above; the role of National Tribunal.

05/07/2012

Jurisdiction Service, Affiliate and Social members essentially

entitled to same process at Sub-Branch level. Natural justice and procedural fairness embedded in

the Rules/Bylaws Service and Affiliate can appeal to State Branch

(Hon Peter Heerey Chairs Tribunal)

Service can appeal to National, where hearing is initiated at State Branch level.

05/07/2012

Notice to accused – Clearly stating offence

Full particulars of conduct to accused and provision of relevant

documents before hearing

Opportunity to question statements/witnesses and be heard by

Sub-Branch Committee Disciplinary Hearing.

Quorum?

Advice of decision in writing and appeal rights and method

Sub-Branch powers of punishment: Service, Affiliate and Social

Issues

05/07/2012

Other Matters Sub-Branch appearances before Tribunal in appeal cases

Use of Liquor Control Reform Act 1998 and OH&S Regulations as alternative or adjunct?: Legislation’s proper role and how it complements the League’s Disciplinary Procedures.

The continuing value of the “Caution” by Sub-Branch President/ Secretary as an alternative to formal disciplinary action (But document it or have a witness)

05/07/2012

Administration Of Patriotic Funds

Bryan Arendse– Patriotic Funds

The Veterans Act 2005

The Victorian Veterans Council:

Replaced the Patriotic Funds Council

Is an independent statutory body which reports directly

to the Premier on issues relating to the Victorian veteran

community

It provides advice to the Minister of Consumer Affairs on

matters relating to the regulation of Patriotic Funds.

The Veterans Act 2005

The Director of Consumer Affairs Is the regulator (not the controller) of Patriotic Funds

The Office of the Director of Consumer Affairs approves/monitors the transfer of monies from all Patriotic Funds, the lodgement and review of annual returns and the recording of office bearers.

The Trustee For Sub-Branch Patriotic Funds

The RSL State Branch is acknowledged by CAV to be the

Trustee for all Welfare and Building Patriotic Funds

As Trustee, it may delegate certain financial responsibilities

to Sub-Branch Patriotic Fund officers

Sub-Branches may give direction to the State Branch for

its consideration as Trustee.

What is a Building Patriotic Fund?

Building Patriotic Funds are/have been established in

accordance with a Building Patriotic Fund Trust Deed

All assets of a Sub-Branch are held in the BPF and include

but are not limited to halls, clubrooms (purchased or leased)

investment properties, equipment, motor vehicles, plant and

equipment, furniture and equipment and memorabilia.

THE USE OF BPFMay be used for Purchase of property, plant and

equipment, furniture, motor vehicles and memorabilia

Upgrades, renovations and maintenance of property, plant and equipment.

NoteThese items of expenditure need to be submitted to the State Property Sub-Committee for its consideration for recommendation to the State Executive

It also needs to be in the annual budget of the Building Patriotic Fund.

May not be used for Salaries Honorariums Items that should be paid for

by a Licensed Sub-Branch under the terms of the lease with the BPF.

What is a Welfare Patriotic Fund?

Welfare Patriotic Funds are/have been established to:

Raise funds to be used in necessitous circumstances for the

welfare of veterans and their dependants. Funds are raised from

the ANZAC Day and Poppy Appeals, donations, bequests,

interest from investments, raffles, bingo and other sundry income.

The Veterans Act mentions, but does not define necessitous

circumstances. We believe that it relates to the financial

circumstances of the veteran or in other words “in financial need”

Generally it means that the veteran or the dependant cannot afford

to purchase the goods or services they need to live, in an

appropriate and acceptable manner.

Who is a Veteran?

A veteran is someone who has served in the

Australian Defence Force, Peacekeeping Force or

other Commonwealth Forces and resides in Victoria

A veteran does not have to be a member of the RSL

to receive assistance.

Who is a Dependant?

The wife or husband of a veteran (living or deceased) is a dependant

The son, daughter, grandchild who are solely dependent on the veteran are dependants

A dependant does not have to be a member of the RSL to receive assistance.

Eligible expenses which will assist the Sub-Branch Welfare Patriotic Officers to discharge their responsibilities.

The needs of eligible beneficiaries may be classified as:

Financial

Medical

Social or

Psychological.

FinancialBefore assisting a Veteran or a dependant with financial assistance, the Committee must exercise a degree of discretion to determine that such assistance is required. i.e. that the Veteran or the dependant does not have their own funds to pay for their needs.

Financial assistance may include the following:

Rental assistance Food vouchers School fees Medical expenses RSL membership fees Short term loans which must be documented and signed by the borrower Minor repairs to a Veteran’s home.

Bereavement

Death notices incorporating the RSL badge for Service members

Death notices for affiliates including badge where these affiliates

were a close relative of a Veteran

Wreaths

Funeral costs (if the family is unable to meet the costs).

Hospitalisation of a Veteran or a Dependant

Fruit baskets/bowls

The expenses of volunteers who do hospital visits

Flowers

Cab fare/Cab Charge for the veteran/dependant to hospital

Get Well cards.

Aged-Care Coordinators (where employed) and Volunteers Expenses

All reasonable expenses incurred by them in providing services to

Veterans or their dependants

These may include motor vehicle, accommodation and telephone.

Salaries and on-costs of Aged-Care Co-ordinators

The appointment of an Aged-Care co-ordinator must be ratified by the State Branch in consultation with a particular Region’s Sub-Branches

The ongoing employment, activities and performance of the Aged-Care co-ordinator will be facilitated by the State Branch in conjunction with the Region and particular Sub-Branches acting as the employer

Salaries and the terms of employment will be the subject of a specific agreement between the Region and the State Branch.

Mobility Needs and other Specialised Equipment

Including:

Mobile scooters

Wheel chairs

Walking frames

The above equipment remains the property of the Welfare Patriotic Fund and must be

returned to the Sub-Branch when no longer required

Such equipment must be recorded in the Asset Register of the Welfare Patriotic Fund

The equipment can also be hired and in many cases this is the best approach

Hearing Aids

Emergency Alarms.

Other

NATURAL DISASTERS

Emergency relief when a Veteran or dependant is inadequately or not insured

Utilities paid for the comfort of Veterans and their dependants when attending a traditional Sub-Branch and where that Sub-Branch does not conduct fund-raising

Gas Electricity Water Rates.

Income Tax Exempt Charity Status

All RSL Victorian Sub-Branches and their Welfare and Building Patriotic

Funds have the status of being an Income Tax Exempt Charity (ITEC)

The criteria for this status is that a Sub-Branch must be able to

demonstrate that its predominant purpose and activities are charitable

by nature

Items A, B and C below may be paid out of the General Account of a

Sub-Branch (more so a licensed Sub-Branch) to demonstrate that it is

carrying out is charitable activities.

A. National Police Record ChecksRequired for Volunteers

B. Administration expenses of the Welfare Office• Postage• Stationery• Telephone expenses• Internet expenses• Computer expenses• Consumables

C. NewslettersA portion of the overall cost of producing and mailing the newsletter of a

Sub-Branch to its Veterans and/or dependants.

Expenses incurred during the ANZAC Day and Poppy Appeal

Any reasonable expenses incurred by volunteers collecting for

the above Appeals may be paid out of the Welfare Patriotic Fund

These may include travelling expenses, parking, and telephone

calls

Dinners or lunches arranged to commemorate ANZAC Day or

Remembrance Day may not be paid out of the Welfare Patriotic

Fund.

Transfers from a Welfare Patriotic Fund to another Patriotic Fund

The Act allows the transfer of assets or money between Patriotic Funds

Transfer forms, available from ANZAC House, detailing the need for the transfer, must be lodged with the State Branch (as Trustee) for its recommendation for approval by CAV.

Transfers from a Welfare Patriotic Fund to a charitable trust or charitable corporation

The Act allows for the transfer of funds to establishments that assist with the welfare of Veterans and/or their dependants

These include hospitals and aged care facilities who require assistance with the provision of equipment and furniture for the comfort and well being of veterans and/or their dependants

Transfer Forms, available from ANZAC House, detailing the need for the transfer, must be lodged with the State Branch (as Trustee) for its recommendation for approval by CAV.

BANKING ARRANGEMENTS Each Fund must have its own bank account to record all monies

raised and expensed by the Fund

There must be two signatories to each transaction

Changes to cheque signatories must be advised to the Trustee on the prescribed form

A listing of cheques drawn must be presented at each meeting.

INCOME TAX EXEMPT CHARITY (ITEC) STATUS OF PATRIOTIC FUNDS

All Patriotic Funds are registered with the ATO as an ITEC

This privilege must be protected through the diligent handling

of Patriotic Fund monies so as not to lose this status.

ANNUAL AUDITED PATRIOTIC FUND STATEMENTS Each Sub-Branch is required to submit audited Statements on

the prescribed form direct to ANZAC House by the 21st February immediately following the end of the financial year (1st January to 31st December)

Audits for funds exceeding gross receipts of $50,000 must be conducted by a:

Member of The Institute of Chartered Accountants in Australia

Registered company auditor Member of The Australian Society of Certified Practising

Accountants Member of The National Institute of Accountants.

Funds with gross revenue less than $50,000 may have their

accounts audited by a person authorised to take statutory

declarations. E.g. JP, Australian lawyers, Police force

members, bank managers

Patriotic fund financial accounts do not have to be audited if

total gross annual receipts do not exceed $10,000 unless

required by the Director of CAV.

STATISTICAL INFORMATION ON RSL VICTORIA SUB-BRANCH PATRIOTIC FUNDS

Welfare Patriotic Funds 31st Dec 2010

Number of Funds = 280

2010 Revenue $4.96M

Net Assets $6.90M

Building Patriotic Funds 31st Dec 2010

Number of Funds = 204

2010 Revenue $17.37M

Net Assets $440.25M

REFERENCES AND CONTACTS

Victorian Veterans Act 2005

Branch By-Law 7

Corporate Governance Module 7

State Executive Policy in Relation to Use of Patriotic Funds

Lease Agreement (if in place) between RSL (Vic Branch Inc.) as

Trustee for BPF and Sub-Branch

Deed of Settlement with ATO.ContactBryan Arendse Tony RuddellPatriotic Funds Liaison Officer Patriotic Funds Accountant9655 5558 9655 5520barendse@rslvic.com.au truddell@rslvic.com.au

The Role Of Victorian Branch As Trustee Of Building Patriotic Funds Relating To Real Property

Bernard Churchill – Property and Legal Manager

05/07/2012

The Role Of Victorian Branch As Trustee Of Building Patriotic Funds Relating To Real Property The 1993 State Conference voted in favor of Vic Branch

incorporating under the Associations Incorporation Act

The Victorian Branch was incorporated under the above act on 11 th January 1994

The Patriotic Funds Council of Victoria unanimously adopted the following policy on 19th July 1994:

The Patriotic Funds Council views the incorporation of the RSL (Victorian Branch) Inc as an act designed to confer on that body the status of Trustee of RSL Building Patriotic Funds and it is appropriate that local trustees of those funds forward documentation with respect to audited financial returns to the RSL (Victorian Branch) Inc.

05/07/2012

The Role Of Victorian Branch As Trustee Of Building Patriotic Funds Relating To Real Property The Property Committee was established by the Victorian Branch to,

amongst other things; assist it in carrying out its role as trustee

Branch Rule 7.6 (i) lists the “duties, powers and functions” of the Property Committee which, amongst other things, include “the investigation by the Committee of the development of the properties vested in the Sub-Branch Building Patriotic Funds and the financial implications of such developments.”

Branch Rule 7.6 (j) requires the Property Committee to “regularly

report to the State Executive as to actions to be taken by the State Executive for and on behalf of Victorian Branch in relation to its role as Trustee of Sub-Branch Building Patriotic Funds.”

05/07/2012

The Role Of Victorian Branch As Trustee Of Building Patriotic Funds Relating To Real Property The trust deed relating to most Building Patriotic Funds provides

that the trustee shall not exercise any of the powers and authorities conferred upon it by the trust deed without the authority of resolution of the Sub-Branch Committee provided always that the trustee shall not be bound to follow any directions of the Sub-Branch Committee which would constitute a breach of trust

All dealings involving Sub-Branch Building Patriotic Fund property require the prior approval of State Executive which is obtained by an application to the Property Committee who will assess the same before making a recommendation to State Executive.

05/07/2012

The Role Of Victorian Branch As Trustee Of Building Patriotic Funds Relating To Real Property There is no pro forma application form and application is by way

of a letter from the Sub-Branch to the Property & Legal Manger, Bernard Churchill, setting out in detail what is proposed and providing supporting documentation, including, but not limited to, a copy of the minutes of the Sub-Branch Committee meeting at which the proposal was approved

All contracts including those relating to sale, purchase, building, leases, mortgages and bank letters of offer can only be executed by Vic Branch in its capacity as trustee; the Sub-Branch is not authorized to execute the same.

Questions05/07/2012

Membership & The Impact of Project 2012

Peter Smith – Director of Appeals and Membership

05/07/2012

MEMBER SERVICES Project 2012 – Membership Working Group System Changes – IMG Clubs Online Player Loyalty – IGT Advantage Club Membership cards

Next issue Ambassador Card Future plans

Data Cleansing Data Accuracy responsibilities

05/07/2012

QUESTIONS

05/07/2012

LUNCH

05/07/2012

It’s application to the Committee in running the Sub Branch effectively.

ByLaw 11

Corporate Governance Charter

05/07/2012

Corporate Governance Corporate Governance Charter and supporting Manual

introduced in 2006

Chiefly intended for Licensed Sub-Branches

Widely ignored Evidence of this in policy and management failure in

several Sub-Branches in the last two years.

05/07/2012

Corporate Governance Corporate Governance Charter not a Silver Bullet.

Does however provide a minimum standard of conduct, due diligence and probity to protect committees, staff and members.

It also provides a “Check List” of actions to avoid worst consequences/ outcomes

ByLaw 11 now redrafted with focus on LSB and the obligations of the ATO Deed of Settlement

05/07/2012

Role of the Sub-Branch Committee “The Committee is responsible to the Sub-Branch

for the management and operation of the Sub-Branch in the achievement of its objectives and taking account of, and managing risk.”

05/07/2012

Sub-Branch Committee Functions

Strategy and Policy

Governance and Management (note the role of Manager)

Regulatory Compliance

Sub-Branch Committee effectiveness

05/07/2012

Committee Member Obligations

Duties ( Secretary and Treasurer covered specifically in Bylaws 4/5)

Conduct

Statutory Compliance

Business Judgment

Training/ Induction

05/07/2012

Other Committee obligations under CGC Meeting Attendance Conflict of Interest: Disclosure, Reporting and Voting Committee decision making and solidarity Confidentiality Sub-Branch Audit Sub Committee (House and Finance) Representation of the Sub-Branch and League Developing a Strategic Business Plan for the Sub-Branch

(5 years horizon with annual performance targets) Identification and Management of Business Risks. Development of Policies as part of Sub-Branch SOP

05/07/2012

Over the last twelve months ANZAC House has been enhancing the clarity and accessibility of the Corporate Governance Charter for Committees.

ChallengesSimpler, clearer languageUnderstood in a one/two day workshopCan be delivered to Committee members in their localityMust not be a disincentive to serve on Sub-Branch CommitteesFocus on collective responsibility and individual obligationsProper relationship between Committee and Management / Staff

Corporate Governance

05/07/2012

What is Corporate Governance? Corporate Governance is the “framework of rules,

relationships, systems and processes within and by which authority is exercised and controlled in companies”

Corporate Governance influences how the objectives of the Sub-Branch are set and achieved, how risk is monitored and assessed and how performance is optimised

05/07/2012

The Essential Corporate Governance Principles

Lay solid foundations for management, and allow them to get on with the job

Structure the Committee to add value Promote responsible and ethical decision making Safeguard integrity in financial reporting Make timely and balanced disclosure Respect the rights of members Recognise and manage risk Remunerate fairly and responsibly

05/07/2012

Licensed Sub Branch Benchmarking Process

Luke Gilholme – Business Analyst

05/07/2012

Brian Cairns – Manager Network Operations

Management Selection & Relationship Between Committee, Management And Staff

05/07/2012

Relationship Between Committee, Management & Staff

General Manager / Manager of a Licensed Sub Branch○ The General Manager/Manager of a Sub Branch is

responsible to the Sub Branch President or other Executive Members as directed by the President

○ The General Manager / Manager of a Sub Branch will attend all meetings and whilst having no voting rights in respect to Committee decisions will have input into the overall operations of the Sub Branch.(refer 5 (D) of Bylaw 11 Corporate Governance Charter)

05/07/2012

Relationship between Committee, Management & Staff The General Manager / Manager will be responsible for the

recruitment , training and performance management of all staff

members

Sub Branch staff will report directly to their line supervisor or

manager as directed by the Sub Branch General Manager /

Manager

Committee Members should not involve themselves in the day

to day operations of the Sub Branch with all staff matters

referred directly to the Sub Branch General Manager /

Manager

05/07/2012

Management Selection Process

Establish selection Sub Committee

Review Sub-Branch performance / benchmarks / KPI’s

Undertake Sub-Branch Performance Assessment

Evaluate current Management / Staffing structure

Seek professional assistance in review process if necessary

05/07/2012

Position Selection Criteria Establish position specification

Position functionScope of Management responsibilities Budgetary AccountabilityLimits of AuthorityReporting GuidelinesSpecific responsibilities and tasksPerformance measurement criteria

05/07/2012

Application Appraisal Education Qualifications Experience Competencies Social skills and attributes Communication Skills Remuneration package required Induction and training Career development

05/07/2012

Selection Phase Analyse against selection criteria

Professional qualificationsPast and present positionsCareer objectivesEstablish key achievements Establish position competenciesDetermine personality and behavioural characteristicsEstablish employment requirements and conditionsEstablish salary packageOutline position to all candidates Rate candidates against established criteriaAssess each individuals suitability to position

In order to provide a fair evaluation for all candidates any internal candidate should go through the same process as an external candidate 05/07/2012

Recommendation Phase

Discuss all candidates openly and honestly

Always refer to established selection criteria

Prepare a brief report on each candidate

Comprehensive check all professional and personal

referencesCross check against established selection criteriaReferees to call back if necessaryEstablish bona fides of all referees

05/07/2012

Final Selection Phase

Arrange follow up interview if required

Establish final job objectives, responsibilities, salary

package, commencement date and hours of work

Recommend appointment to general committee for

resolution

Advise successful applicant of appointment

05/07/2012

Equal opportunity issues

Mike Annett – Chief Executive Officer

05/07/2012

Workplace Behaviour

EEO/ BULLYING/ DISCRIMINATION/ VICTIMISATION AND DIVERSITY

05/07/2012

What are acceptable workplace behaviours?

What is workplace culture?

05/07/2012

What’s the law

• Can employers tell employees how to behave at work?

YES

05/07/2012

What is?

•Poor workplace behaviour•Discrimination•Sexual Harassment/ Is a “one off”•Bullying/ Must be repeated and sustained•Victimisation

05/07/2012

Definitions

• In legal terms Harassment refers only to sexual harassment

• Everything else comes under the definition of bullying (OH&S Act)

• Since last year Volunteers in Sub-Branches also covered.

05/07/2012

Background

• Worksafe Victoria developed “Workplace Violence and Bullying : Your rights, What to do and where to go for help” February and November 2003

• Human Rights and Equal Opportunity Commission developed

“Sexual Harassment A code of practice March 2004

05/07/2012

When does the law apply?

• In the workplace• During work activities – no matter where• At work related social functions• When dealing with others on behalf of

the employer – contractors, customers etc.

05/07/2012

It’s The Law But Also…EEO issues have significant costs including:• absenteeism, lower productivity, reduced work

performance, low morale

• resignations, transfers, recruiting and training replacement staff

• Stress and related illnesses, workers' comp claims

• Investigate/resolve complaints

• Negative publicity

• Legal costs and/or financial compensation

05/07/2012

What is unlawful?

• For unlawful discrimination to occur, there must be less favourable treatment on the basis of an attribute protected by the Act, and the treatment must occur within an area listed in the Act.

• Under the Act, it is unlawful to treat anyone unfairly on the basis of the following attributes or personal characteristics.

05/07/2012

Equal Opportunity Act 1995 (Vic)

‘Attributes’ on basis of which discrimination is prohibited:

S 6 age, breastfeeding, gender identity, impairment, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, physical features, political belief or activity, pregnancy, race, religious belief or activity, sex, sexual orientation, personal association

Includes a ‘characteristic’ of person with that attribute

05/07/2012

• It is unlawful to discriminate against a person on the basis of the attributes in employment.

05/07/2012

Hospitality Considerations

What kinds of clubs are covered?• Clubs include social, sporting, community

service and recreational clubs that occupy crown land or receive (directly or indirectly) funding from the Victorian government or a local council.

05/07/2012

Hospitality Considerations

Exemptions and exceptions – Clubs

Private clubs • Private clubs are not covered by the Equal

Opportunity Act. Private clubs are those which:

• are not located on crown land; or • don't receive Victorian government or local

council funding either directly or indirectly.

05/07/2012

Activities where discrimination is prohibited

• Discrim against job applicants• Discrim against e/ees – can’t deny or

limit access to promotion, transfer or training or ‘any other benefits associated with employment’ – can’t dismiss –can’t subject e/ee to ‘any other detriment’

• Note how broadly constructed this provision is

05/07/2012

“I was just asking..”

• It is illegal to ask questions in an interview or job application which can be then used to discriminate :

 

e.g. “Do you intend to have children?”

05/07/2012

Exceptions where you CAN discriminate

Include:• Genuine occupational requirements/

qualification • In case of impairment, where not reasonable

for e/er to provide special services or facilities to undertake the ‘genuine and reasonable requirements of the employment’ etc

05/07/2012

Discrimination

• Direct• Indirect

05/07/2012

What is Direct Discrimination?

A treats or proposes to treat B (a person with an attribute) less favourably than A treats or would treat another person without that attribute, or with a different attribute, in the same or similar circumstances

Doesn’t matter if A doesn’t know s/he is discriminating, motive irrelevant but

Attribute must be a substantial reason for the less favourable treatment, doesn’t have to be sole or dominant reason

05/07/2012

The Elements Broken Down

• Less favourable treatment of person with an attribute

• Comparison : Measured against how would treat person without that attribute, or with another one [ie: must compare] ‘in same or similar circumstances’

• Causation : A substantial reason for the treatment was the attribute (motive irrelevant)

• No defence to say the act of discrimination was ‘reasonable’

05/07/2012

Example of Direct Discrimination

Deborah Wardley refused appointment as a trainee pilot with Ansett because of potential that she would have a baby. Court found that a man in same position would not have been treated in this way.

(Wardley v Ansett Transport Industries)

05/07/2012

Example 1 – could this be direct discrimination?

• T is travel consultant working in open plan office with several others. All use phone at desk for personal calls. One day, the boss hears T talking in Arabic on phone, and co-worker says ‘how rude’. Boss tells T to use the phone upstairs in the tea room if she is going to speak Arabic.

05/07/2012

Court’s decision• Less favourable treatment? Yes, loss of capacity to make calls

from desk

• Comparison : staff member making call from desk in English or any language other than Arabic. No evidence others barred

• Causation: Attribute of race (here Lebanese), characteristic Arabic-speaking. Not necessary to show boss hostile to Arabic speakers but that one reason for decision was attribute. Court says ‘inescapable conclusion’ that it was.

Tleyji v The TravelSpirit Group [2005] NSWADT 294

05/07/2012

Example 2 – direct discrimination?

• B works at a service station. He’s told by new boss to take out stud earring or else. B argues with boss about a range of things, refuses to take out earring. Receives written warnings about earring and other matters. Finally dismissed but letter doesn’t mention earring. Women workers at the service station wear earrings.

05/07/2012

Court’s decision

• Less favourable treatment : dismissal

• Comparison : women working at the service station wore earrings without management complaint. Court notes many men wear earrings these days.

• Causation: dismissal was for many reasons, but under NSW ADA court only has to decide if ONE of the reasons was discriminatory. Here direct discrim on grounds of sex. Awards about $17,000.

05/07/2012

What is Indirect Discrimination?

Broadly, where a ‘facially neutral’ decision has a disproportionate impact of people with an attribute

Example : everyone who joins the police force must be able to lift X kilos

05/07/2012

Elements of Indirect Discrimination

• Imposition of a requirement, condition or practice;

• someone with attribute can’t comply with;

• a higher proportion of people without attribute can comply with; and

• the requirement is not reasonable

05/07/2012

What is ‘reasonable’ in relation to Indirect Discrimination

• Whether reasonable or not ‘depends on all relevant circumstances of the case’ including

(a) the consequences of failing to comply with requirement,

(b) the cost of alternatives,

(c) the financial circumstances of [alleged discriminator]

05/07/2012

DISCRIMINATION

• S.15 Disability Discrimination Act 1992 provides:– Not unlawful to discriminate on the basis of disability

where the employee is unable to carry out the inherent requirements of the particular employment and

– Services or facilities are required which would impose an unjustifiable hardship on the employer

05/07/2012

INHERENT REQUIREMENTS

• Whether the position would essentially be the same if that requirement were dispensed with.

(Qantas v Christie)

05/07/2012

An Example of an Unsuccessful Indirect Discrimination Claim

People on long term leave given only a short time to re-apply for their jobs in corporate restructure. Vast majority were women on parental leave. Held not indirectly discriminatory, because the Bank’s demands were reasonable.

(Commonwealth Bank v HREOC [1997] 1311 FCA)

05/07/2012

The Case of Deborah Schou

• Ms Schou had a sick child, sought permission to work from home two days a week via modem. Gained approval, but never implemented. Eventually left work to care for her child.

• VCAT found indirect discrimination, awarded largest

ever damages over $160,000.

05/07/2012

Schou : the decision of Justice Harper, VSC

• Overturned VCAT decision.

• EOA designed to stop unfavourable treatment

• If requirement reasonable, then no ‘detriment in employment’

• Here requirement to work at work is reasonable, so in fact asking for a favour, special treatment, not complaining of detriment

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Harper J on the contract of employment

‘A term of a contract of employment, compliance with which is reasonably adapted to ensure that the e/ee provide to the e/er that standard of service which the e/er reasonably requires…will not be caught by s 9 of the EOA. It is not the aim of the legislation to deny employers the rights given to them by a lawful and reasonable contract of employment.’

If Shou ‘can’t do the job’ then EOA doesn’t oblige e/er to change

05/07/2012

Equal Opportunity Act 1995 (Vic)

When someone engages in:– unwelcome sexual advance, or– unwelcome request for sexual favours, or– unwelcome conduct of a sexual nature

In circumstances where a reasonable person, taking into account all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated

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“I Didn’t Mean Anything”

Awareness or Motive is irrelevant

You don’t have to intend to discriminate against someone for it to be discrimination!

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Sexual Harassment

• Physical – touching, grabbing, pinching, kissing• Continually asking someone out after they have

refused• Leering or staring at a person’s body, crude language

& jokes, sexual gestures• Innuendo, comments about appearance• Comments about a person’s private life• Sexually graphic material, posters, cartoons,

magazines, calendars, graffiti• Offensive telephone calls or voice mail• E-mails, screen savers, computer print outs

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Employer Responsibility• Employers are liable for their own behaviour.• Are obliged and responsible to promote a workplace

free of discrimination and sexual harassment• Must act on reports or incidents• Provide appropriate training and information

regarding acceptable and unacceptable behaviours• To inform staff of their rights and actions they can

take• Provide staff with support as needed• Deal fairly with all involved and ensure due process

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Vicarious Liability

But also:• Employers are liable for conduct of employees

or agents - unless the Employer can show it took “reasonable steps” or “reasonable precautions” so that the discrimination or sexual harassment would not happen

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“Reasonable Steps” include:

• Clear written policy prohibiting sexual harassment and discrimination in the workplace, the promulgation, availability and adherence to the policy

• Training staff about sexual harassment and discrimination and how to prevent it regular and current training such as this training.

• Confidentiality

• Establishing and enforcing workable complaint procedures

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MANAGING COMPLAINTS AND INVESTIGATION PROCEDURES

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UNDERSTANDING

1. Establish the nature of the complaint (discrimination in regard to an ‘attribute’ or sexual harassment );

2. Identify relevant facts (particulars inc. dates, times, witnesses)

3. What is the complainant seeking from the process?

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PROCESS

• The Complaint handling process must:– Comply with confidentiality requirements

(only those involved in the investigation shall have access to information pertaining to the complaint)

– Maintain impartiality– Ensure complainants are not victimised– Ensure complaints are dealt with in a timely

manner

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FORM OF COMPLAINT

• Informal Complaints- No formal statement from complainant

- Limited resolution options available

• Formal Complaints - Formal statement from complainant

- Investigation process

- Broader resolution options available

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FORMAL COMPLAINTS

Investigation procedure:1. Take a statement from the complainant

(ensure statement is signed)

2. Clarify what the complainant is seeking from the process

3. Interview and take statements from relevant/ identified witnesses

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FORMAL COMPLAINTS

4. Provide the alleged respondent with the allegations and afford them an opportunity to respond;

5. Make relevant findings based on balance of probabilities;

6. Inform parties of findings and any outcomes.

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OUTCOMES

The outcomes of an investigation will be dependant on the findings – whether the complaint could be substantiated. Outcomes can include:- Disciplinary action (inc. termination of employment)- An apology (written or verbal)- Counselling- Training- Transfer

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ASSESSING THE INVESTIGATION

• Was the investigation fair?– Don’t be seen to predetermine the outcome

• Was all relevant evidence taken into account?

• Is the outcome consistent?- not necessarily the same as different circumstances, however anyone involved should be subject to investigation

• Were there mitigating circumstances?- issues of provocation, length of service and record

• Seriousness of the matter

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EXTERNAL PROCESS

• An employee can also make a complaint through the relevant Equal Opportunity Commission or the HREOC

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PERFORMANCE MANAGEMENT

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DISCIPLINE & TERMINATION

• The Workplace Relations Act 1996 currently provides avenues for redress for employees in regard to termination of employment.

• There is no prescription in Awards for disciplinary procedures.

• Policy is most commonly the reference document in regard to such processes.

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Enhancing the Financial Literacy of the Committee

Mark Sherlock – Chief Financial Officer

05/07/2012

VCGLR – Committee Responsibilities and Duties

Brian Cairns – Manager Network Operations

05/07/2012

Enhancing The Financial Literacy Of The Committee

Mark Sherlock – Chief Financial Officer

Enhancing The Financial Literacy Of The Committee

EARNINGSBEFOREINTERESTTAXATIONDEPRECIATIONAMORTISATIONRENTENTITLEMENTS

EBITDARE

KEY PERFORMANCE INDICATORS

Gross Profit Percentage

Return Per Egm

Salaries As A % Of Revenue

Ebitdare As A % Of Revenue

Brian Cairns – Manager Network Operations

Victoria Commission for Gambling and Liquor Regulation

Victorian Commission for Gambling and Liquor Regulation

The Victorian Commission for Gambling and Liquor Regulation is the independent statutory authority that administers Victoria’s liquor and gambling laws.

The VCGLR is responsible for liquor and gambling licensing and undertakes compliance activities to prevent and detect breaches, while also informing and educating industry and the general public about regulatory practices and requirements.

Victorian Commission for Gambling and Liquor Regulation

The VCGLR produces a quarterly newsletter to advise licensees, industry and the community of the latest news regarding;

Liquor licensing regulations Responsible service of alcoholLegislation changesGambling-related developments

Subscribe to the newsletter www.vcglr.vic.gov.au

Victorian Commission for Gambling and Liquor Regulation

Address: 49 Elizabeth Street, North Richmond. Email: contact@vcglr.vic.gov.au Phone: 1300 1 VCGLR (1300 182 457) Postal Address: GPO Box 1988, Melbourne

3001

FINAL QUESTIONS

Mike Annett CEO

05/07/2012