This document is an internal policy of YAPA. Use it to help develop your own agency's internal policies. You will have to make changes to suit your own context and any legal requirements which apply to you.
Policy
This policy overviews some (but not all) of the main legal responsibilities of the YAPA Board of Governance. It is important to note that even when the Board delegates work on legal issues it retain the legal responsibilities of the organisation.
- Disclaimer - This policy is not to be relied upon as legal advice. Legal requirements referred to below may be amended, removed or superseded at any time. For more information about this topic refer to the appropriate legislation, Jobs Australia or seek legal advice.
Summary of key legal responsibilities – updated January 2007
Associations Incorporations Act 1984 (NSW)
The YAPA Board must:
- act in accordance with the objectives and rules of the YAPA constitution;
- have a public officer appointed at all times;
- hold an annual general meeting once per year, within 6 months of the end of the YAPA financial year;
- provide a financial report to members at the AGM and have this report forwarded to the Dept of Fair Trading within the following month;
- ensure proper accounting records are kept which correctly record and explain the transactions of YAPA and its financial position;
- ensure that Board minutes and registers of YAPA members and Board members are kept;
- ensure that YAPA does not incur debts if there are reasonable grounds to expect that YAPA will not be able to pay all its debts as they fall due; and
- ensure that the association does not do any act with intent to defraud creditors or any other person.
YAPA, as an incorporated association, can
- enter into and enforce contracts, including contracts with funding bodies;
- sue or be sued; and
- continue to operate, regardless of changes to membership.
Members of the Board have limited liability for the debts of an association provided that they follow accepted business and community standards.
The YAPA Constitution can only be changed if a special resolution is passed by members at an Annual General Meeting or Special General Meeting, in accordance with the process set out in the YAPA Constitution.
Occupational Health and Safety Act 2000 (NSW)
The YAPA Board must ensure the health, safety and welfare at work of all staff. The Board must:
- ensure the workplace (including any entrance and exit);
- systems of work and the working environment; and
- plants or other substances provided to staff for use at work, if properly used;
are all safe and without risks to health.
The Board must also:
- consult with staff on decisions affecting health, safety and welfare at work;
- provide information, instruction, training and supervision necessary to ensure health and safety at work;
- provide adequate facilities for the welfare of staff at work; and
- ensure that visitors to the workplace are not exposed to risks to their health or safety.
The Board must not charge, dismiss or victimise staff for actions as required or allowed for under the OH&S Act and Regulations.
Individual members of the Board of Governance can be prosecuted and fined for OH&S breaches.
**The following Acts contain provisions permitting special measures that provide positive discrimination for particular groups.
Anti-Discrimination Act 1977 (NSW)**
It is against the law to discriminate (treat someone unfairly compared to others) in any employment related activities on the basis of their race, sex, disability, pregnancy, homosexuality, transgender grounds, age, marital status or carer responsibilities, or that of their associates. This applies to recruitment, employment, dismissal, retirement and redundancy of staff members.
However, the Act makes certain provisions for affirmative action and equal employment opportunity.
The YAPA Board has a legal responsibility to take all reasonable steps to prevent vilification and harassment from occurring. Prohibitions on victimisation arising from complaints of discrimination also exist. If the Board does not, YAPA may be held liable for the actions of staff members.
YAPA Board and staff members must not incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the basis of race, homosexuality, transgender or HIV/AIDS status. This includes threatening physical harm towards a person, group of persons or their property.
YAPA Board and staff members must not sexually harass another person by making an unwelcome sexual advance, request or conduct where a reasonable person would anticipate that the person would be offended, humiliated or intimidated.
Disability Discrimination Act 1992 (Commonwealth)**
YAPA Board and staff members must not discriminate (treat someone unfairly compared to others) on the basis of disability in the provision of work, access to premises, goods, facilities and services, etc. YAPA must make reasonable adjustments to accommodate the needs of people with a disability, provided it does not cause unjustifiable hardship.
Racial Discrimination Act 1975 (Commonwealth)**
YAPA Board and staff members must not do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
YAPA Board and staff members must not do a public act which is likely to offend, insult, humiliate or intimidate another person or group of people on the basis of race, colour or national or ethnic origin.
Sex Discrimination Act 1984 (Commonwealth)**
YAPA Board and staff members must not discriminate (treat someone less favourably) in the provision of goods, services or facilities on the basis of sex, marital status, pregnancy or potential pregnancy.
YAPA Board and staff members must not sexually harass another person by making an unwelcome sexual advance, request or conduct where a reasonable person would anticipate that the person would be offended, humiliated or intimidated.
Commission for Children and Young People Act 1998 (NSW)[1]
Prohibited persons must not be employed as paid YAPA staff or subcontractors in positions of “child related employment”. This is where the work requires direct (i.e. face-to-face), unsupervised contact with children and young people under 18. YAPA must conduct a Working with Children background check for all such prospective employees.
The Act prohibits people convicted of certain serious offences from working in child related employment in either a paid or unpaid capacity, which includes working as a volunteer and student placements. YAPA must require prospective employees to complete a Prohibited Employment Declaration, to be kept on file.
A prohibited person is someone who has been convicted of certain serious offences in NSW or anywhere else; or a registrable offence under the Child Protection (Offenders Registration) Act 2000.
The YAPA Board must report to the Commission for Children & Young People if any disciplinary proceedings have found some evidence that reportable conduct (as defined under the Act) or an act of violence has occurred. This may occur despite such evidence being inconclusive or insufficient, however, reports should not be made where the allegations are found to be false, misconceived or vexatious (i.e. malicious and unsubstantiated) or the conduct was reasonable in the situation.
Annual Holidays Act 1944 (NSW)
The YAPA Board must ensure minimum standards of annual leave for all staff.
Long Service Leave Act 1955 (NSW)
The YAPA Board must ensure minimum standards of long service leave for all staff.
Workers Compensation Act 1987 (NSW)
YAPA must have a workers compensation policy with a licensed workers compensation insurer.
Superannuation Guarantee (Administration) Act 1992 (Commonwealth)
YAPA must make compulsory contributions to employees‘ superannuation.
Employment Protection Act 1982 (NSW)
YAPA must pay severance payments to employees employed under State Awards or Enterprise Agreements who are retrenched on certain grounds.
Industrial Relations Act 1996 (NSW)
This Act makes it possible for employers and employees to make their own enterprise agreements. Once the agreement is finalised it prevails over the provisions of the Award. Enterprise Agreements must comply with a number of minimum employment conditions.
YAPA has an Enterprise Agreement and all conditions are either at or above conditions in the Social & Community Services Award.
Privacy Act 1988 (Commonwealth)
YAPA Board and staff members may be required to adhere to privacy principles including the collection of information and its use and disclosure.
Spam Act 2003 (Commonwealth)
YAPA Board and staff members must not send unsolicited commercial electronic messages. Commercial electronic messages must include information about YAPA and must contain a functional unsubscribe facility.
Workplace Surveillance Act 2005 (NSW)
YAPA Board and staff members must ensure computer surveillance of employees does not commence without prior written notice to their employees, either at least 14 days before the surveillance commences or a lesser, agreed period.
Computer surveillance must only be carried out in accordance with a relevant policy, notified to employees in advance.
Smoke Free Environment Act 2000 (NSW)
The YAPA Board must not allow smoking in an enclosed public space which it has control over. This applies to business premises, community centres, eating areas or vehicles carrying members of the public.
Civil Liability Act 2002 (NSW) & Duty of Care in Torts (Common law)
YAPA Board and staff members must take reasonable care to avoid any reasonably foreseeable risk of harm to staff and others. In many cases, the YAPA Board cannot delegate this responsibility.
The Board may also be held liable for the actions of staff during the course of YAPA work.
[1] This Act is to be amended by the Commission for Children and Young People Amendment Act 2005 (NSW) once related provisions enter into force. Please check the information given here for updates.
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