How not-for-profit employers can get ahead of threats

Posted on 10 Feb 2019

By Catherine Brooks and Andrew Brooks

2019 is set to be a big year for NFP directors, with a number of changes either on the way or already being implemented.

Some of these changes, like those we are witnessing because of the #Metoo movement, are fantastic and long overdue, while others, such as an increase in general protections claims, will be less welcomed. We've set out the top challenges and opportunities for directors this year from an employment law perspective.

Legal claims could get personal for directors

Every year the Fair Work Commission releases figures on the types of claims that employees lodge, and over the past decade, general protections claims - also known as adverse action claims - have continued to rise. A general protections claim is similar to a discrimination claim, but can be made when an employee believes they have been adversely affected.

For example, they may believe their employer took disciplinary action against them after they disclosed having a mental illness. The challenge we are seeing for not-for-profit directors is the increasing trend for employees to "join" directors (in their personal capacity) to the claim. This means the claim is made against both the not-for-profit and the director, and that a director may be held personally liable.

Get ahead of this trend by ensuring your organisation has appropriate directors and officer liability insurance (also known as D&O insurance) or employment practices liability insurance, or both and speak to a lawyer early if you think an employee situation may be becoming litigious.

Don't lose sight of proper compliance

NFP directors need to ensure important compliance issues and dates are not overlooked. Get your year off to the right start by creating an employment compliance calendar with your HR staff. Ensure all directors are across it.

Consider the #metoo movement as an opportunity to use its momentum to stamp out inappropriate and unlawful behaviour in your organisation.

Child and youth safety changes are just ramping up

The Royal Commission into Institutional Responses to Child Sexual Abuse concluded in 2018, but 2019 will see the greatest number of changes stemming from it. Regulators will have had more time to identify compliance breaches, and less leeway will be given to organisations that should already be compliant.

Of course, while child safety will be a challenge, it is also an opportunity to ensure you provide a safe environment for all children in your community.

#Metoo a chance to protect employees, community

The #Metoo movement has prompted widespread awareness of and censure against inappropriate behaviour, including in the workplace. However, it would be foolish to think that the problem is "solved".

Consider the #metoo movement as an opportunity to use its momentum to stamp out inappropriate and unlawful behaviour in your organisation. Carry out sexual harassment, bullying and discrimination training for all employees, volunteers, contractors and directors. This will go a long way towards protecting the members of your community while also limiting liability for the organisation.

Become an employer of choice to benefit staff, retain the best

Many organisations are struggling to shore up funding opportunities or deal with a changing landscape. Don't let your staff suffer in this turbulent time, or risk them jumping ship to a competing organisation. As a board, it's important that you consider staff attraction and retention.

There are many non-financial benefits you can provide to staff to help boost morale. Co-working locations such as WeWork [and Our Community House - ed.] are leading the way in providing daily treats such as food and massages, while organised games help create a real community vibe in the workplace.

Financial benefits such as additional leave entitlements may have an impact on your bottom line. But there are other benefits you can provide - such as domestic violence leave - that are likely to have minimal financial impact, yet make an important statement about your organisation's ethics and culture, and can make a real difference for your team.

Look out for recruitment opportunities

Your board should always be recruiting and looking for people with expertise in the areas where you need it. When you carry out your board strategic planning, put recruitment on the agenda, discussing the areas of expertise you have already covered, as well as any gaps.

We recommend identifying the gaps using a board skills matrix. This will form the basis of an action plan you can follow to recruit the best people for your board. Consider advertising the role on the popular Board Matching Service on the ICDA website. Include the terms and conditions of engagement for your board members to ensure you're getting the best out of your people and protecting your organisation while you're at it.

The quick takeaways?

It's going to be a big year for community organisations with competition for funding, greater regulatory scrutiny and movements at board and staff level. But we remain optimistic about good work to be done by organisations led by passionate CEOs and committed board members. Get your strategic planning done, start recruiting for future board members, tick off your compliance list, and you'll be well on your way to a successful year.

Siblings Catherine and Andrew Brooks are a formidable pair of legal experts who've forged a reputation for having a compassionate understanding of not-for-profits and their challenges. Last year they co-wrote the Child Safety Toolkit, published by Our Community and legal firm Moores. Now, with their new firm Law Squared, the Brooks duo maintain a clear grasp on trends and threats facing the sector. Catherine is a member of the Community Directors Council.

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