Legal DivisionCommercial and Property Law Unit Services

Presentation by Regina EwingSenior Lawyer, Commercial and Property Law UnitLegal Division

Todays presentation

• Financial management responsibilities

• Purchasing and contract management

• Scams

• Neighbour issues

• Debts and parents

• Emerging hot topics

• Further information

• Contacting the Legal Division

Financial management – business managers

The legal framework

Education and Training Reform Act

2006

Public Administration Act

2004

Financial Management Act

1994

Business manager’s are employed pursuant

to Ministerial Order 200/199

Business managers are not in the Victorian

Public Services (VPS) but are ‘public sector

employees’

A business manager is a ‘chief finance and accounting officer’

Role is performed under the direction and control if the Principal

Role is performed consistent with ‘Public

Sector Values’

Responsible to the Principal for financial

accounting and reporting,

effectiveness of audit and effective use of

resources

Financial management responsibilities

The legal Framework

Purchasing and contract managementGoing to market

Good practice is to perform appropriate due diligence checks on a proposed service provider, particularly when it is a new contractor or a specialised good/service.

This might include looking at:

• what does the school need?

• what service providers can provide for those needs?

• should you advertise?

• how will you approach the market, i.e: – directly?

– Expression of interest?

– request for quote?

• what are other schools doing?

Purchasing and contract managementDue diligence

Once you find or decide upon a service provider, you may wish to also examine:

• whether the business is licensed in the specific type of business it conducts?

• do they have references?

• does the business you are contracting with have expertise in its area?

• do their services pose particular risks and liabilities to the school?

• do they have the requisite insurance cover?

Purchasing and contract managementThe contract

You may have already decided on a contract through your approach to the market, i.e.:

• the service provider’s own contract; or

• a Department template.

Once a contract is signed, a valid and legally enforceable contract comes into effect:

• Each party is legally required to perform their obligations as outlined in the agreement.

• If a breach of contract can be established, the non-infringing party has the right to elect to terminate OR

continue with the contract.

Purchasing and contract managementRemember:

• schools don’t enter into contracts, school councils do

• school councils are separate legal entities

• there are limits on the types of contracts that school councils can enter into.

Purchasing and contract managementPurchasing Templates

• RFQ

• Short form agreements - goods and services

• Standing offer agreements – goods and services

• School uniform agreements

EduGate > Services > Legal > Commercial and Property Law Unit > School Council – Purchasing Goods or Services

Link:

https://edugate.eduweb.vic.gov.au/Services/legal/Pages/School%20Council%20-%20Purchasing%20Goods%20or%20Services.aspx

Purchasing and contract managementUsing service provider contracts

• automatic renewal clauses

• indemnity clauses

• fee/service variations

• personal guarantees

• termination fees

• the laws of another state apply

Purchasing and contract managementGeneral

• Use School Council templates if possible

• The ‘School Council’ is the party to the contract (not the ‘School’).

• Know your Supplier

• Payments: how much, when and where?

• Clearly specify the goods or services

• Check the warranties and guarantees

• Pricing and Delivery Issues

• Termination: can you get out of the contract and if so, how?

• Automatic renewal – diarise notice periods

• Always read the contract - the whole contract.

Purchasing and contract managementPolicies and information

Finance Manual for Government Schools - information on purchasing thresholds and issuing of purchase orders.

School Policy Advisory Guide - information regarding School Councils and Contractors and Purchasing.

School Maintenance System - gives schools easy access to maintenance suppliers who are compliant with occupational health and safety legislation, WorkSafe, “working with children” provisions, and appropriate insurance requirements.

ScamsScams

• Directory listings

• Door to door sales

• Australian Consumer Law

• Misleading or deceptive conduct

Neighbour issuesFences

• The neighbour demands that the school contribute to the cost of a new fence – do we need to pay?

• The neighbour refuses to let us fix a fence – what do we do?

• We can’t agree on what sort of fence to put up – what’s the answer?

Trees

• A tree on a neighbour’s property is damaging our fence or posing a risk – can we do anything?

• A neighbour thinks a tree on our land is damaging their property – what do we have to do?

• Neighbours (everybody needs good neighbours)

Debts and parentsCharging parents for goods and services

• School council power to charge parents

• Parent payment policy

• Pursuing a debt

Common debt queries

• Laptops and tablets

• Uniforms

• Excursions

Emerging hot topicsSolar panels

Schools who have queries relating to the purchase of solar panels can contact the Legal Division to see legal advice.

Online services

Schools wanting to know more about the key legal issues associated with the use of online services, please go to the Legal Division online services information sheet at:

https://edugate.eduweb.vic.gov.au/Services/legal/Pages/CP%20Information-Sheets.aspx

Further information

FAQs and Information Sheets

The Legal Division has FAQs and information sheets on:

• Cleaning services

• Insurance

• Purchasing

• Fences

• Chasing up bad debts

• Invoice scams

Link:

https://edugate.eduweb.vic.gov.au/Services/legal/Pages/default.aspx

Contacting the Legal Division

• Phone: (03) 9637 3146 (Monday –Friday 8.30am-5.30pm)

• Email: legal.services@edumail.vic.gov.au

• Fax: 9637 2750