Articles written by Brian Herd
Could You Do with a Lawyer on Your Board?
Statistics from America suggest two interesting things about board membership: A lawyer/director increases an organisation’s value by 9.5%; and The number of lawyer/directors in America has doubled in recent times But if you have a lawyer on your board, what’s your experience? The reality is that any good board member needs to perform to the five governance commandments: Be able to contribute to strategy See opportunities and threats Be willing to challenge management Make decisions, not just express views Be clear thinkers with good judgement Lawyers, or even accountants or retired politicians don’t have a mortgage on these qualities.
It’s Not in the Tea Leaves – It’s in the Minutes
The ubiquitous Board Agenda and its progeny, the Minutes are often assigned to a spring back folder and buried on a shelf somewhere. A board meeting and its record, once distributed, approved and stored, can take on an inert, colourless and even meaningless hue only fit for the corporate archives. The Minutes rarely engender much interest let alone controversy except for the anally retentive member who salivates over grammatical boo boos or misspellings.
Liabilities For Board Members Under The Fair Work Act
One of the legacies of the WorkChoices era is a well resourced and bureaucratically motivated workplace “cop on the beat” – the Fair Work Ombudsman. The combination of a regulator with a brief to maintain a tough public profile, the financial resources to back that up and supportive legislation has had the practical result of creating a new range of personal liabilities for directors and board members. Traditionally, an employer was liable for the conduct of its board or senior managers towards its employees, whether the employer was a private company, not for profit association or a government agency.
NFP Crisis Management – Well Whadya Know
I was called in recently by a small not for profit CEO to help out with what we lawyers call some ‘crisis management’. The organization was being pursued by Fair Work Australia for some breaches of the new workplace laws. It was apparent to me that the problem arose not because they were trying to rip off their staff but its genesis lay in a simple malaise, ignorance – the CEO simply didn’t know about the particular law that they had breached.
Application of Federal Workplace Laws To Nonprofits
As a result of the referral of power by most States to the Commonwealth over industrial matters as of 1 January 2010, most not for profit organisations are now covered by Federal workplace laws. Until this referral took place, the assumption of many not for profit organisations is likely to have been that they were not covered by the Federal workplace laws because they were not “trading” or “constitutional” corporations.