Structuring, governance and risk considerations for Medical Societies

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1 Structuring, governance and risk considerations for Medical Societies Speaker: Lynette Reynolds, Partner, TressCox Lawyers Saturday, 9 May 2015

2 Objectives Role of a director / member of management committee Legal Duties imposed Personal consequences for breach of these duties

3 Common Structures Unincorporated Association Incorporated Association Company limited by guarantee Company created under statute

4 What is the Role of the Board? Provide strategic direction Focus on achieving the Society s goals Ensure the Society has the resources to fulfil its goals and strategy Approve strategic plan and business plan Monitor financial performance Ensure management has processes to ensure compliance with all laws and regulations Ensure management has risk management processes in place It is not day to day management Approve material and organisational policies Monitor performance against strategic and business plans

5 What are the duties imposed as a Board member? Duty 1: Act in good faith in the best interest of the society Duty 2: Exercise the powers with proper purpose Duty 3: Not fetter the future exercise of their powers Duty 4: Avoid being placed in a position of conflict of interest Duty 5: Act with care and diligence Duty 6: Not to use their position to gain advantage for themselves or others or cause detriment to the company Duty 7: Not to use information to gain advantage for themselves or others or cause detriment to the society

6 Duty 1: Act in good faith and with loyalty to the Company Always act honestly Act in the best interest of the Society even if this is not in your personal interest or in the interest of the group who appointed you Avoid conflicts between your personal interests and those of the Society Don t misuse your position to gain personal advantage for yourself Don t use information you receive to gain advantage for yourself Don t use Society property for your personal purposes Always ask yourself, what would a normal honest person do in this situation

7 Duty 1: Act in good faith and with loyalty Dealing with Conflicts of Interest Declare any conflict of interest in writing as soon as possible Step out of any meetings while there are discussions or decisions relating to the matter Standing disclosure

8 Duty 2: Use reasonable care and skill in performing role Understand what the Society does Understand the Society s goals Know what activities the Society is undertaking Read and understand the strategy and business plans Read and understand the Society s financial statements Read and understand all information sent to you Examples: Minutes of meetings, Financial reports, Reports on activities, Committee reports If something is not clear, ask questions If something seems odd or not quite right, ask questions What would a reasonable and honest person think/do about this?

9 Duty 3: Prevent Insolvent Trading Ensure the Society can pay all its debts when they become due Only allow the Society to take on new debts if you are satisfied it can pay the new debt and its existing debts when they become due

10 Indications a company is or is nearing Insolvency Continuing losses Overdue taxes Poor relationship with present bank - inability to borrow further No access to alternative financing Suppliers placing the company on COD terms Issue of post-dated cheques, dishonoured cheques Solicitors' letters, summonses, judgments or warrants issued against the company Inability to produce timely and accurate financial information

11 As a board member how to prevent Insolvent Trading? Read and understand financial statements Ask questions as issues arise Seek professional advice if questions are not answered satisfactorily Keep accurate records Be active at board meetings Stop the society from incurring debts if a reasonable suspicion of insolvency arises don t assume you can trade out of it If the company is insolvent, appoint an administrator

12 When to rely on information/ advice provided by others? You can rely on information provided by: Employees of the Society (i.e. management) if you reasonably believe that person is reliable and competent on that matter The Society professional advisers/experts if you reasonably believe the matter is within that person s competence Another director on matters within their authority A committee of board members (if you were not on the committee) on matters within the committee s authority IF.

13 When to rely on information/ advice provided by others? IF. You rely on the information in good faith Make your own independent assessment of the information bearing in mind your own knowledge of the Company

14 Breach of a Duty Corporations Law Fines up to $200,000 Criminal conviction and prison time of up to 5 years (if you are reckless or intentionally dishonest) Having to compensate a creditor personally (if the company is trading while insolvent)

15 Breach of a duty Both Corporations and Associations Having to compensate the Society personally for any loss it suffers Being disqualified from managing a company Removal by members in general meeting under the Constitution/rules

16 Corporate Governance Having the right people making the right decisions Looks at the systems processes principles and practices adopted by a company Directors/committee members are accountable to shareholders/members for their actions, are responsible for determining the right governance practices and put in place the necessary procedures to ensure the governance objectives are met

17 Corporate Governance BROAD FOCUS ISSUES ESTABLISH EFFECTIVE GOVERNANCE FRAMEWORK TO MEET STAKEHOLDERS REQUIREMENTS Strategy Corporate Culture Accountability & Transparency Performance Evaluation Remuneration Risk Management Stewardship Financial Disclosure Role of Stakeholders Protecting Shareholders rights SUSTAINABLE VALUE Regulators Staff Management General Public Shareholders Counterparties Suppliers

18 What if the Society is a non-profit organisation? The owner is less clear Goals are not just financial Directors/Committee are usually unpaid volunteers Directors/Committee often represent a group/class of members Boards are often large

19 Questions?

20 Contact Us Lynette Reynolds Partner TressCox Lawyers Tel: (07)

21 linkedin.com/company/tresscox-lawyers twitter.com/tresscox Disclaimer TressCox PowerPoint material does not constitute legal advice The material on this PowerPoint has been produced by TressCox Lawyers and has been prepared as general information about TressCox and its services. It is not intended to provide legal advice and, as such, the content does not constitute legal advice. Use of this PowerPoint does not create any solicitor-client relationship between the user and TressCox. Copyright The contents of this PowerPoint (Materials) may not be copied, reproduced, republished, uploaded, posted, transmitted or distributed in whole or part for any purpose other than individual viewing of the PowerPoint without the express prior permission of TressCox. Unless otherwise indicated, copyright of the Materials is owned by TressCox. Modification of the Materials or use of the Materials for any purpose will constitute a violation of the copyrights and other rights of TressCox. Linked Sites TressCox is not responsible for the content of any sites linked within this PowerPoint. The linked sites are attached for the convenience of the user only and may be accessed by the user at the user s own risk. Privacy TressCox is committed to protecting your privacy. In the course of our business we collect, use and disclose personal information provided to us by our clients and other users of this PowerPoint. We do this in accordance with National Privacy Principles established by the Privacy Act 1988 (Cth). Please refer to our privacy statement for more details. Jurisdiction This PowerPoint is the property of TressCox. Legal content is based on laws applicable in the states and territories in Australia in which we practise. TressCox does not represent that it is authorised to provide legal advice in all the jurisdictions from which this PowerPoint can be viewed. Limitation of liability To the extent permitted by the law, TressCox will not be liable for any damage, including loss of business or profits, in relation to usage of this PowerPoint. Where any law implies a liability which cannot be excluded, any such liability is limited and provided for by the Competition and Consumer Act

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