Cornwall Stodart | Not for Profit Newsletter

In this issue, we highlight important changes to the Children’s Services Act which came into force on 14 July 2008 and requires providers of children’s services to have in place an anaphylaxis management policy.

We also discuss the need for schools to fulfil their obligations under the Trade Practices Act by ensuring that any promises or representations made by them are accurate and capable of being fulfilled.

We outline important issues that schools should consider when undertaking construction projects as well as available support that can minimise the potential risks associated with construction projects.

Failure to register a trade mark can result in an organisation losing its rights to trade under its own name or risk having its reputation tarnished. The importance of schools and not-for-profit organisations registering trade marks is also discussed.

If you would like further information on any of these topics or advice in relation to other issues, please feel free to contact me.

Statistics from the Royal Children’s Hospital in Melbourne reveal admissions for anaphylaxis have tripled from 23 in 2001 to 71 in 2006, highlighting the need for schools to manage this potentially fatal illness.

The Children’s Services and Education Legislation Amendment (Anaphylaxis Management) Act 2008 (Act) commenced on 14 July 2008 amending the Children’s Services Act 1996 and the Education and Training Act 2005. The Act requires a proprietor of a children’s service to have in place an anaphylaxis management policy.

The Act also enables new regulations to be added to the children’s services regulations. Changes will be introduced later in the year to prescribe policies, plans, procedures and training on anaphylaxis.

The purpose of the legislation is to ensure there are minimum safety standards in schools and children’s services for children diagnosed at risk of anaphylaxis.

From 14 July 2008 all government and non-government schools with a student who has been diagnosed as being at risk of anaphylaxis must have an anaphylaxis management plan in place. Ministerial Order 90 – “Anaphylaxis Management in Schools” sets out the minimum standards.

It is important that schools review their anaphylaxis management policies and procedures to ensure they are consistent with the Ministerial Order. A sample anaphylaxis management policy is included in an information pack available from the Department of Education and Early Childhood Development.
To comply with the legislation, a school’s anaphylaxis management policy must contain provisions for:

Schools complying with the anaphylaxis guidelines developed in 2007 should already be complying with the Ministerial Order.
In schools, the principal is responsible for ensuring appropriate policies and procedures are in place to manage anaphylaxis.
It is appropriate for all schools to examine their procedures and ensure they are familiar with anaphylaxis guidelines and the requirements under the new legislation.

Making Sure Independent Schools Do Not Breach The Trade Practices Act

Schools need to protect themselves from individuals who claim the school has failed to fulfil promises made to students. This article outlines the implications for independent schools under the Trade Practices Act 1974 (Cth) (TPA) and suggests a solution to the problems.

In 2006 proceedings were brought by a disgruntled parent against a private school in Victoria for breaching the TPA by not teaching her son to read properly. The parent claimed the school’s marketing material promised to address her son’s reading problems but failed to do so.
The case was settled on 15 August 2006 on confidential terms.

Parents might have recourse to the courts if they are dissatisfied with their children’s performance and the school failed to meet their expectations. Such a legal precedent could apply not only to academic performance but also to music, sport and other forms of tuition.

Schools traditionally have not been seen as businesses. However, the fact that independent schools can charge up to $20,000 each year makes them commercial enterprises. Independent schools must observe the TPA and equivalent State legislation. Section 52 of the TPA stipulates that “a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”. Section 52A provides that where a corporation makes a representation on a future matter and it does not have reasonable grounds for doing so, the representation shall be taken as misleading. The obligation is on the school to show it had reasonable grounds for making the representation.

Literature produced by independent schools might contain promises of future performance or predictions. The non-fulfilment of a promise is misleading under the TPA, unless the person making the promise can demonstrate there were reasonable grounds for making the promise.

Promotional material may contain statements that families of prospective and current students rely on to influence their decision to attend or remain enrolled at a school. Examples include making promises about the academic results students will achieve, guaranteeing improvement of a particular skill such as essay writing or making assurances of advancing musical or sporting abilities. Intention is not relevant to whether something is misleading. Representations, if without reasonable foundation, may give rise to claims if they prove to be incorrect.

Misleading conduct can be spoken as well as written. Accordingly, staff in schools should be trained on how to communicate with parents and how to represent the school’s abilities. Staff and schools should:

Schools are entitled to publish material about their academic and extra-curricula activities. The Victorian case serves as a warning for independent schools to review their promotional material to avoid any potential for being sued by disgruntled parents. Regardless of the competition for enrolments, schools should be discouraged from making individual promises or unachievable claims about the educational excellence their students will reach once enrolled. This way schools can protect themselves by selling an opportunity for their students to achieve high results, not a guarantee that it will occur.
For further information, please contact Leneen Forde on +61 3 9608 2243 or l.forde@cornwalls.com.au

Construction projects are exciting. It is exhilarating to watch as months or even years of fundraising and planning come together. However, occasionally projects can go wrong, and the fallout can be very stressful, very messy and very expensive. It can have a significant impact on all parties to the project as well as the staff and students working and learning “around” the site.

For schools undertaking renovation works or redevelopments, forward planning and expert advice are essential. Advice from expert consultants, who work regularly on construction projects, can help you to identify and minimise the risks inherent in a project, manage it, and avoid potentially time, cost and quality-related problems down the track.

This article highlights some important considerations, identifies the support available and advises on the best time to seek help.

Standard form contracts are a useful starting point. However, be aware they need to be adapted to meet individual needs of the project and the parties. They should be reviewed carefully. Redrafting is often not up to par and may result in risk reallocation to the benefit of the drafting party.

Standard form contracts prepared by industry bodies such as those associated with builders are likely to contain provisions (especially on risk allocation), more favourable to the builder than to the project owner.

As a general rule, the project owner is best served if the base contract is selected and amended (in an even-handed way) by its team with input and guidance from external consultants.

It is particularly important that construction contracts are well drafted and address potential problems, even if the parties do not expect them to arise. It is better for both parties to have a well-drafted contract in place at the start, than to find out half-way through that no provision has been made for an unexpected contingency. Unexpected contingencies not dealt with in the contract provide fertile ground for expensive cost blow-outs, delays and disputes.

The most common consequences of a construction project gone awry are delays and increases in costs. It is important the contract deals clearly with how the burden of those consequences is to be dealt with and shared.

Construction work and the contracts governing the work are by nature complex. You should consider consulting an experienced construction lawyer to prepare such contracts for you. Your lawyer should also review contracts prepared by the builder.

For minor and straightforward projects, the initial review of the construction contract and the advice to accompany the review may cost between $1,000-$2,000. For a major renovation or development, the cost will be greater. However, in the context of the construction of a large project the cost will be relatively minor especially bearing in mind the significant benefits.

You should ensure there is a dedicated project manager overseeing your project for its duration. While that person may be a member of staff, it may not be practical to take one of your senior staff such as Business Manager away from their duties and assign that person to manage the task. They may not have the expertise to oversee the project effectively, and more importantly, their time is better spent as an effective Business Manager.

You should consider engaging an experienced project management firm to supply that service on a fee-for-service basis. Depending on the project the services required might only amount to a few hours a week. In terms of peace of mind and staff time saved, the fee is likely to be good value for money.

Cornwall Stodart’s Construction team drafts, reviews, tailors and negotiates contract documentation specific for each construction project. We work closely with our clients and their project managers to achieve optimal outcomes, from concept through to completion. The team prides itself on acting commercially and achieving fast, cost-effective and advantageous outcomes that do not delay projects and inflate costs.

For further information, please contact:
Peter Macnish
Head of Construction Team
T: +61 3 9608 2229
M: 0417 378 949
E: p.macnish@cornwalls.com.au

Why would a school or a not-for-profit organisation need to register a trade mark?

The answer is easy – to protect itself and one of its most valuable assets – its reputation. Although not often considered by schools and charities, a registered trade mark is key to protecting an organisation’s name.

Is a trade mark really necessary if an organisation already has a business, company and domain name registered? YES. Although the former are useful business tools and often legal requirements, they do not offer genuine protection of intellectual property rights – only trade marks offer tangible, enforceable proprietary rights in relation to a name.

Registration of a trade mark gives the owner exclusive use of the mark for the goods and services for which it was registered and using the mark with the exclusive ® symbol warns others the mark is protected.

While there is no legal requirement to register a trade mark, failure to do so could result in an organisation losing its rights to trade under its own name or having its rights and reputation tarnished.

Take the situation of a charity that has operated for 20 years. It has built up a first rate name and reputation but may find that without a registered trade mark, another organisation could commence operating under a very similar name in the same or a similar space. Or what if a disgruntled employee surreptitiously applied for a trade mark of the organisation’s name, forcing it to ‘buy back’ the right to operate under its own name? These scenarios are not unusual – but they are easily avoidable.

Applying and registering a trade mark is relatively inexpensive and simple and offers real protection to its owner. Once registered, a trade mark gives the owner the exclusive right to use the trade mark and to authorise others to use it. While common law rights are generated through the use of a name without registration, having a mark registered makes it much easier to protect and enforce rights, potentially saving a great deal of time, money and uncertainty down the line.

Registration is based on an international system of ‘classes’, with 45 classes covering innumerable goods and services. For example, educational services can be covered, as can sales, marketing and advertising, not to mention clothing and promotional goods. An organisation simply needs think about how it uses its name and where it needs protection. Is it used only for the name of the school or is it also on uniforms, bags, books, brochures and in advertising?

Upon registration the organisation is able to use the mark confidently for any of the registered goods and/or services and know that it can enforce its rights, preventing others from using the same or similar name for those goods/services.
In a society where image and reputation is vital to the success of any business or organisation, a registered trade mark is the surest way to protect the status and character of your organisation.
You have worked hard to develop your name, make sure it stays safe!