Discuss About The Diocese Of The Anglican Church Of Australia?

History of Anglicare Australia and its operations

Question:

Discuss About The Diocese Of The Anglican Church Of Australia?

Anglicare Australia is a repudiated national level body for community service with respect to agencies related to every Diocese of the Anglican Church of Australia. Anglicare is also referred as a brand name using which various Australian Anglican Community Services continue their operations even when they are separate legal persons. Anglicare and AVR had merged to give rise to a new organization known as Anglicare. The new organization is equipped to serve the need of the people in a better way across various diocese having shared values and purpose. The organization promises its home care clients, residents and the community that they would be providing those best possible services to support them through life. The organization promises through its website to include integrity, honesty, compassion and excellence through their operations. The organization states that its purpose is only to meet the needs of people in the community, share love of God and enrich lives. The organization holds its Christian motivation alongside responding to satisfy the need of the society. The organization provides enhanced compassion and care for every person by meeting social, spiritual, physical, emotional and material needs. The organization in partnership with others provide various services which enhances safety, dignity wellbeing, participation , homes, relationships and the community as whole. The organization provides mostly all services related to community well being such as retirement care, home care, residential care and community services. The organization does not operate for making profit and is a non-profit organization operating in Australia to provide community care.

The organization had been established initially in form of a church society in the year 1856 and then came to be known as Home Mission Society since 1911 to 1977. The original purpose of the organization was although to build churches and fund clergy since the 1890 depression it extended its role to bring people who require support under the provisions of Christian care. Prior to WW2 significant milestones included appointing deaconess to work with young generations who appear before the children court since 1920 along with expanding the work for welfare society including Wollongong and Sydney both. The first Parish nurse had been appointed by the organization in the year 1943 to provide care to those people who are aged in interior Sydney which was followed through establishing the initial Chesalon home in 1952 at Summer hill along with a Family Service Center which dealt with various needs such as family problems, marriage and financial issue in 1945[1].

Legal provisions imposed on nonprofit organizations

Since 1960 the decade witnessed establishment of a few major programs which included Anglicare shops, foster care services, disability services, adoption migrant and refugee services along with expanding via a network of local and regional offices. A major emphasis in the recent years has been to work closely in partnership with churches in the locality. In the year 2016 April the Synod of the Sydney Diocese of the Anglican Church voted unanimously  for supporting a merger of Anglicare with AVR. Through the merger the organization would be able to serve better the community[2].

Various legal provisions are imposed on an organization indulging in profit and non-profit making operations. Organizations which have the object of making profit are imposed with increased compliance regimes as compared to non-profit making organization. The directors of non-profit organizations mostly are not held personally liable for the liabilities of the organization or any unsatisfied court judgments. The fundamental principles of the provisions governing the activities of an organization are same although there may be very minor variations across different Jurisdiction. The identity of a corporate body is not the same as its members. As there are various shareholders in an organization and all of them cannot participate actively in the functioning of the organizations directors are appointed to control and manage its operations. For the purpose of protecting the legitimate interest of the members, stakeholders, creditors and the community which might be affected by the functions of the organization the directors have to be essentially provided with guidelines which they must follow while doing their duties. The guidelines are given to the directors in a statutory manner so that their significance is realized by the corporate sector.  For the purpose of smooth functioning the most important factor which an organization has to take into account is legal compliance. Not only the shareholders but also the community, employees and consumers of the organizations are affected by its functions. Therefore there is a vast area of legal provisions which are imposed on an organization. Different sectors of the company are imposed with separate regulations which are stated through common law as well and statutory provisions along with governing bodies which have delegated responsibility to enact regulations and keep an eye in the functioning of the business.

The first and foremost obligation which the organizations have towards compliance is abiding by the rules of proper corporate governance. The system through which the directors, shareholders, and other officers of the organizations are governed with is known as the system of corporate governance. All participants of the organization are provided specific sets of responsibility and entitlements. Corporate governance although being only a guideline it is utilized to observe and monitor the functioning and decision making off a company with respect to its directors, shareholders and other officers. The provisions of common law along with enacted legislations of the parliament bind the directors of the organization to certain duties. the decision of the officers and directors of a company has to be confined towards the best possible interest if the organization and there must be a element of good faith in all the decision which have been taken by them for the organization. Moreover the skills possessed by the directors and officers of the organization have to be implemented with care and diligence towards the operations of the organization by the directors, any situation which may give rise to a conflict of interest between their personal needs and the needs of the company. The directors of n organization must in any case not use any data which they possess in relation to the organization in such a way so as to bring detriment to the organization and make personal gains.  In the same way the position which the directors have in relation to the organization must also not be used in a way to make personal interest and bring detriment to the company[3]

Corporate governance system and duties of directors

Employment of staff is also an area of legal issues for the organization. A company has to abide by the employment law regimes of the country with respect to the process of hiring selection and treatment of the employees. There are various issues which come out from the organization in relation to employment provisions. The issues include discrimination, sham contracting related to the position of an employee as an independent contractor, unfair dismissals and exploitation of employees within the organization. The employment law regime of any country has the purpose of enhancing a fruitful and healthy relationship between the employee and the employer. It is therefore the responsibility of all managers within the organization to ensure that they provide equal opportunity to all the employees within the organization so that no discrimination takes place. The employees have to be provided with fair remuneration for their work along with the appropriate status that has been employed with. In Australia the rights of employees and employers and the relationship between them is monitored by the Fair work Commission established through the Fair Work Act 2009 (Cth)[4]. One of the major aspects for the growth of an organization is the condition of the employees and their relationships with the employer. Various studies have depicted that there is direct relationship between employee satisfaction and organization performance. The organizations have to abide by employment law further to mitigate legal violations risks.

The Corporation Act 2001 (Cth)[5] is the primary legislation which governs the functioning of the companies in Australia. The Australian Investment and Securities Commission Act 2001 which have established the Australian Investment and Securities Commission is also a governing body of organizations in Australia. Both the legislations in a combined manner deal with the provisions related to insolvent trading, directors duties, fines and penalties for the directors for both criminal and civil breaches, the provisions related to the issue of shares and dividends and the rights of the directors and shareholders of the organization. The legislations also set out clearly the remedies which a shareholder may seek in case their rights have been oppressed along with the procedures required to appropriately carry out business activities by the organization.  The Workplace Relations Act 1996[6] and Fair Work Act 2009 provide provisions with respect to governing the employment relationship within an organization. The legislations set out guidelines which have to be observed by both employees and employers in relation to the organization. Any failure to comply with such provisions can result in pecuniary penalties. The working environment in relation to the workplace in Australia is governed by The Work health and Safety Act[7] and regulation 2011. Through the legislation it is made sure that a safe working environment is provided to the employees within the organization along with any necessary equipment needed to carry out the work safely and to ensure personal development of the employees. Through The Competition and Consumer Act 2010[8] it is ensured in Australia that the businesses do not indulge in any kind of anti competitive activities with respect to their operations in addition the organizations providing services and goods have to comply with the provisions of Australian consumer Law as provided by Schedule 2 of The Competition and Consumer Act 2010. There are many legislations which have also been implemented to prohibit any kind of discrimination within the organization and to provide equal opportunity to all those who are associated with it these legislations include Disability Discrimination Act 1992[9] and Age Discrimination Act 2004[10]. In addition the Australian Human Rights Commission Act 1986[11] also provides provisions related to the treatment of employees in an organization.

Employment law regime and employee relationship

A company is a huge entity which has its operations distributed among various areas. Therefore each of such areas are subjected to potential legal risks. The risks which an organization may be subjected can be classified into financial risks, strategic risk, demographic risk and operational risk. A legal risk with respect to a company arises when the company fails to comply with the legal provisions of the country. In case legal risk in relation to the organization arises they are subjected to civil and criminal penalties which may extend to its officers and directors. The main aim of the paper is to discuss and analyze legal risk which may originate from the functioning of an organization.

It has already been stated above that the operations of the organization are completed through the process of corporate governance. The directors of the organization have the duty to perform their functions for the betterment of the organizations along with meeting the needs of the creditors and shareholders. The directors by virtue of their position are provided supreme control over the operations of the organization. In such circumstances because of human nature the directors can be use their positions to make personal interest benefits and ignore the needs of the organizations and those who are associated with it. The information which they possess can be easily used by them to make personal gains at the cost of the company. The Australian Securities Exchange (ASX) provides seven recommendations in relation to the corporate governance within an organization. Although no company is forced to take up such recommendations as a part of their business as it may not be suitable for them and they may have better options to implement in relation to corporate governance, such businesses have to provide the ASIC that why they are not using the recommendation. The policy can be described as an “if not why not” policy. There have been various cases brought up by the ASIC which denotes that the directors have not been complying with the duties they owe to the company. The directors seek to take advantage of the doctrine of corporate veil and indulge in activities which are illegal and fraudulent. Detriments can also be brought by the directors of the company to the shareholders and creditors of the organization through dividends, share buybacks and bonus shares. Therefore along with the guidelines and recommendations provided by the ASX there are many other legal provisions which have been deployed to protect the shareholders, community, creditors related to the organization from the discretionary powers of the directors[12]. The directors have been made liable on various instances by the courts for not been able to comply with the legal provisions such as in the cases of Shafron v Australian Securities and Investments Commission[13], ASIC v Cassimatis[14] and ASIC v Lindberg[15]. Another major risk any organization whether profit or non profit is subject to is that of insolvent trading. The directors through section 588G of the CA are disallowed to indulge in any form of insolvent trading even if they believe that the company would be insolvent because of such transaction. In a nonprofit organization like Anglicare where the directors are not usually held liable personally more attention have to be paid by the directors towards their operations The organization is huge in structure and although it has a nonprofit nature it can be subjected to evils like corruption in case there is any negligence by the directors towards managing its operations. Any big organization would always be prone to corporate governance risk if they are not observing integrity and ethics in their corporate governance framework. As a non-profit organization Anglicare has an increased responsibility of maintaining its goodwill in the society as the main aim of the organization is community development. The organization may also in certain situations subjected to financial risk if they do not comply with ethical corporate governance framework. 

Primary legislations governing companies in Australia

The ever increasing nature of industrialization prompts an immediately required actions related to the environment. Every organization has a corporate social responsibility imposed on it according to which they have to company with the provisions of environmental protection as well as engaging in the development of the community. The services which any organization has to provided has to be environmental friendly and such services are always monitored by the environment protection provisions. Any project which is initiated by the organization has to take the environmental impact assessment in order to successfully initiate the project. The Australian government has made it mandatory to company with the environmental provisions. A huge amount of compensation has to be paid by the organizations if it is found that they did not base their operations in accordance to environmental provisions such as sustainable development principles. Rules and regulations with respect to the protection of environment are provided in Australia through The Environment Protection and Biodiversity Conservation Act 1999[16]. The legislation imposes fines and penalties on organization which have not abided by its provisions. There have been many cases in Australia which denotes that organization have not complied with their environmental obligations and thus had been subjected to penalties and fines. Although Anglicare is a non-profit organization and its operations are largely based on proving care to individuals in the society who require it they can be subjected to environmental provisions related to health care facilities provided by them along with providing a clean living environment while giving residential care.

In Australia there is a very strict regime of competition law so that the market of the country may run smoothly. In addition the provisions of consumer law have also been strengthened to provide an increased bargaining power to the consumers compared to that of the seller. The organizations in the country must not do any operations which may be regarded as an anti competitive action as per the rules of The Competition and consumer Act 2010. Activities such as market abuse, illegal joint ventures, authorization and notification, acquisition, mergers, exclusive dealing, limiting rice, refusal to deal, dividing territory, mergers, dumping and resale price abuse are a few examples which denotes anti competitive activities. These activities pose high risk to any organization but in case of non profit organization it is evident that they mostly do not indulge in anti-competitive activities

The law for the protection of the consumers is known as a consumer law. The law protects the consumers from any discretionary powers which may be exercised by the sellers against them. There is an increased risk which is posed to the consumers as they are subject to the high bargaining power of the sellers and manufactures in relation to the contract for sales. In Australia the rules in relation to the protection of consumers have been stated through the ACL as provided in schedule 2 of the CCA[17]. All organization operating at a large or small scale have to abide by the consumer laws if they fall within its scope and the organizations cannot incorporate a term in the contract to opt out of consumer law remedies. It is the duty of organizations to provide the consumers with services in such a way as expected by the consumers and also ensure that no damages are incurred by the consumers because of the services provided to them. The law also prohibits an organization from making bait advertisements, indulging in false and misleading conduct and incorporating an unfair term into a standard for of contract. Therefore the above mentioned risk can originate in relation to Angelicare as they indulge in providing services to the consumers. They can be held liable for any loss to the consumers which arise out of the services provided by them.

Relevant legislations for ensuring safe and equal work environment

As discussed above an organization is a separate legal entity and has a distinct identity. Although it cannot commit negligence as it is not a natural person it can be held liable for any negligence committed by its managers and employees in the course of business as per the principals of Vicarious Liability. Negligence arises which a person has a duty of care towards another. Therefore an organization being a natural person having a duty of care to its subjects can be held liable for any negligence. The concept of duty of care in Australia was provided through the case of Australian Knitting Mills, Ld. v. Grant[18]. According to the case if a harm caused to another person because of one’s action is forseeable a duty of care exits. A person is to not abide by the duty of care if in same situation a better and cautious moduce operandi may have been taken by a reasonable person. In the same way the actions of the organization and its employees in relation to negligence are analyzed using these principles. In case of negligence the organization has to pay financial damages to the party which has been injured because of the actions of the employees or the organization. The damages can extend to the extent of injury and losses which have been incurred by the aggrieved party. In the given circumstances where Anglicare provides services to the aged and disable people they have to be very cautious in relation to any negligence as they may be held liable to pay compensation to the aggrieved party.

It is not possible for an organization to function without a workforce and thus it needs employees and their services to carry out its function. In return for such services to be provided by the employees the organizations provide the employees with salary and remunerations. The management in relation to the contract of employment has a very much increased bargaining power as compared to the employees as they have the authority to vary the contractual terms as per the needs of the organization. The organization have an implied duty to provide protection to the employees working for it. It is the right of every employee to be treated equally in an organization, to be paid appropriate remuneration to be granted the leaves that are entitled to be law along with a working environment which is healthy and provides for their development. Legal obligations would be imposed on any organization in case it is found that they are not able to provide the employees working for them with these basic righ[19]t. An organization while dismissing any employee has to abide by the procedure related to a fair dismissal. In case such procedure is not followed the aggrieved employee has the right to bring a claim for compensation against the organization. The health and safety of employees within the organization also have to be safeguarded by the organization itself and any injury which is caused to the employees within the organization can make them initiate a claim from compensation against the organization for the injuries caused to them. Angelicare employs varies employees along with volunteers to provide community services. Although the organizations do not have much obligations towards the volunteers they have the liability to comply with all legal requirements in relation to the employees working for it.

This part of the report would discuss employment risk which may be faced by an organization in relation to its activities. The reasons why such risk arise and the implications of the risk would also be analyzed in this section of the report. The risk may arise out of poor employment management strategies and may have both short and long term effect on the performance of the organization.

It is a fact that the way in which an organization operates is a direct result of the performance of its employees. In case employees provide extra effort towards the functioning of an organization the operations of the company would at all cost increase as so is the contrary. In relation to service industry where the employees of an organization are directly in contract with the clients the performance of the organization is derived from the behavior of its employees and the services provided by them to its consumers[20]. An organization has to also invest in the development of the employees which is a major issue especially for those organizations which do not operate to make profits. The expenditure which the organization has to make in relation to the employees has a major role to play for the proper functioning of the organization as it does not have stable sources of gaining revenue. On the other hand if an organization does not make proper investment in relation to the needs of their employees the employees would not provide their best efforts towards their services and would be constantly looking for options to leave. One of the main reasons why risks with respect to employment arise in the organization is that their rights are not provided to them. Discrimination is another evil which may e cited as a cause for employment dispute within an organization. Human beings by nature are somewhat bias and prefer one thing over the other. However it is very important that such preference is not based on traits like sex, gender, matrimonial status, disability religion or race. Another cause of employment disputes is not dismissing the employees in a proper manner which may result in unfair dismissals[21].

There are vast implications of not complying with the provisions of employment law within an organization. The organizations are not only made to pay compensation to the employees as a result of legal action but also suffer a loss of goodwill and the moral of the other employees of the organization also goes down. No extra effort would be provided by the employees to the organization in case they develop a feeling that the organization does not take any interest in their well-being. In long term also the organization would not be able to retain employees and would have to incur additional cost for rehiring process.  Fines and penalties would further subject the organization to the loss of revenue in the short term as well as loss of goodwill in the society which is very necessary for a non-profit organization.

The structure of management within the organization related to risk has to be not overbearing but scalable, not simplistic but simple not regimented but practical and must be flexible along with having clear guidelines. Risk in relation to an organization can not only increase it operations cost but also result in the loss of goodwill[22]. Before implementing a risk management system it is important that the commitment of managers to it is obtained. The line managers in their own area can implement a risk management system with respect to the employees. This can also be done by the team leaders, human resource manager and any person having a supervision role in the organization. Through emphasizing on employment law risk the organization can derive two major benefits for it firstly the operation of the organization would become more clear and transparent and secondly the managers of the organization would have an enhanced sense of accountability. For the purpose of addressing employment risk in the organization they have to be indentified correctly. Risk identification would need investment of money and time as a framework would be required to be formed[23].

The internal regulations of the company have to be analyzed so that any defects within them can be addressed as they are the primary guidelines which create the relationship between employer and employee. The potential risks which have been identified have to be recorded and registered so that they can be appropriately addressed. The risk has to be further evaluated after being identified through prioritizing the response related to the risk.  For divers risk diverse treatment would be required by the organization. A proper risk management strategy has to firstly identify the risk, record the risk, analyze the risk and then evaluate it for addressing them properly[24]

Conclusions

Therefore through the above discussed information it can be said that an organization has various potential legal risks in relation to its operations. The organizations have to address such risk through the implementation of proper risk management strategies. The structure of management within the organization related to risk has to be not overbearing but scalable, not simplistic but simple not regimented but practical and must be flexible along with having clear guidelines. The accountability and commitment of the managers have to be increased in order to properly implement risk management strategies within the organization. Managing employment risk not only protects the organization against legal actions but also enhances the reputation of the organization in the society and its employees. Few recommendations for deploying proper risk management within the organization are:

1. The implemation of an anti-discrimination policy in the organization so that no discrimination is done to the employees
2. Line managers have to be provided increased role towards employment risk management in the organization
3. Proper and periodic feedback has to be taken from the employees so that their grievances can be addressed
4. Managers must be trained to handle employees with compassion and care
5. There must be a risk register in place to identify and record any risk so that it can be addressed.

References

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ASIC v Cassimatis (No 8) [2016] FCA 1023 

ASIC v Lindberg – [2012] VSC 332

Australian Knitting Mills, Ld. v. Grant 50 C. L. R. 387

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Competition and consumer Act 2010

Corporation Act 2001

Disability Discrimination Act 1992

Drennan, L. T., McConnell, A., & Stark, A. (2014). Risk and crisis management in the public sector. Routledge.

Giannakis, M., & Papadopoulos, T. (2016). Supply chain sustainability: A risk management approach. International Journal of Production Economics, 171, 455-470.

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Shafron v Australian Securities and Investments Commission [2012] HCA 18

Sutton, I. (2014). Process risk and reliability management. Gulf Professional Publishing.

Tallon, P. P. (2013). Corporate governance of big data: Perspectives on value, risk, and cost. Computer, 46(6), 32-38.

The Australian Human Rights Commission Act 1986

The Environment Protection and Biodiversity Conservation Act 1999

The Fair Work Act 2009

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Turner, J.R., 2014. The handbook of project-based management (Vol. 92). New York, NY: McGraw-hill.

 Workplace Relations Act 1996

[1] About Anglicare | Anglicare (2017) Agedcare.anglicare.org.au <https://agedcare.anglicare.org.au/why-anglicare/about-us/>.

[2] Anglicare – Australia’S Leading Aged Care Provider | Anglicare (2017) Agedcare.anglicare.org.au <https://agedcare.anglicare.org.au/why-anglicare/about-us/our-story>.

[3] Council, ASX Corporate Governance. “Corporate Governance Principles and Recommendations, 3rd edn (ASX, Sydney).” (2014).

[4] Fair Work Act 2009 (Cth).

[5] Corporation Act 2001 (Cth)

[6] Workplace Relations Act 1996

[7] The Work health and Safety Act 2011 (Cth)

[8] Competition and Consumer Act 2010 (Cth)

[9] Disability Discrimination Act 1992 (Cth)

[10] Age Discrimination Act 2004 (Cth)

[11] Australian Human Rights Commission Act 1986 (Cth)

[12] Council, ASX Corporate Governance, and A. S. Exchange. “Corporate governance principles and recommendations . ASX Corporate Governance Council.” (2014).

[13] [2012] HCA 18

[14] (No 8) [2016] FCA 1023 

[15] [2012] VSC 332

[16] Environment Protection and Biodiversity Conservation Act 1999 (Cth)

[17] Schedule 2 of the Competition and Consumer Act 2010 (Cth)

[18] 50 C. L. R. 387

[19] Wilcox, Kirby C., and David M. Youngsmith. “Overview of Equal Employment Opportunity Laws.” California Employment Law 2 (2015).

[20] Burman, Robert. “Dismissal for operational requirements: the price of non-compliance: employment law.” Without Prejudice 14.4 (2014): 68-69.

[21] Kavanagh, Megan, and Emily McRae. “Employment law: Protecting vulnerable workers amendment to fair work act.” Governance Directions 69.4 (2017): 241.

[22] Glendon, A. Ian, Sharon Clarke, and Eugene McKenna. Human safety and risk management. Crc Press, 2016.

[23] McNeil, Alexander J., Rüdiger Frey, and Paul Embrechts. Quantitative risk management: Concepts, techniques and tools. Princeton university press, 2015.

[24] Lam, James. Enterprise risk management: from incentives to controls. John Wiley & Sons, 2014.