Amidst the COVID-19 pandemic, we have put together a brief update to help Clubs understand their position on some of the legal issues.
This is an evolving situation so the overarching advice for Club CEOs and Managers is to stay vigilant and update themselves on a day-to-day basis as the situation unfolds. We recommend that preferred sources of information include the Federal and NSW Health Department websites.
- 100 person limit: On Wednesday 18 March, the Federal Government announced a ban on indoor gatherings of more than 100 people. The NSW Health Department has since implemented a Public Health Order relating to mass gatherings. Under the order, the indoor gathering applies to any area, room or premises that is or are substantially enclosed by a roof or walls. The roof or walls can be permanent or temporary, open or closed. It therefore will mean that the rules apply differently based on the layout of each club. The NSW Health Department may announce more practical guidance shortly. Clubs can therefore continue to operate normally but must ensure that no more than 100 persons are in the same room or such enclosed area. Clubs should be aware that these rules will be enforced, most likely by licensing officers, given that public health is the utmost priority at the moment. If you need to understand what this means for your club, please contact us.
- General Meetings: Our view is that general meetings (being meetings required to be held under the Corporations Act) can continue to proceed for now. However, the number of people in the room must be capped at 100. Few clubs ever reach or exceed that attendance number and with fears about virus spread, people may choose not to attend anyway. You may need to consider setting up a video conference ability from another room in the Club’s premises. You will also need to check whether you can satisfy your quorum requirement. Often, if you cannot, the meeting may be rescheduled or adjourned but this will depend on your Constitution or Rules. For more detailed advice, you should contact us well in advance of the meeting.
Update (20 Mar 2020): ASIC has now announced that it will not take any action against a public company that is required to hold its AGM by 31 May 2020, if that AGM is postponed to a date before 31 July 2020. This means that if a Club with financial year ending 31 December 2019 wants to postpone its AGM, it is allowed to reschedule it to a date before 31 July 2020 without needing specific approval from ASIC. The July date may be extended further by ASIC depending on how the situation evolves.
- Events: We recommend that all clubs seriously consider whether they should continue to hold any scheduled events involving large numbers of persons. It may or may not make sense to hold the event – each should be assessed on a case by case basis, and depending on changes in government announcements. Currently, all public outdoor events with 500 persons or more must be cancelled as per the NSW Public Health Order. As per above, all indoor gatherings of more than 100 people (including staff) should be cancelled unless they can be reconfigured to not infringe the Public Health Order.
- Turning away patrons: Clubs may wish to notify patrons to stay away if they are showing symptoms, by displaying a sign at its entrances and on their website. This raises technical questions of whether a person can be excluded. In the circumstances, it is less likely that these questions will arise. As at the date of publication, the official rules require persons who have been overseas to isolate themselves for 14 days upon landing in Australia. Clubs should still ensure staff do not behave in a discriminatory manner to anyone they request to leave. Each situation should be assessed on a case-by-case basis. If a person refuses to leave, then it would be best for at least a manager to be involved in assessing whether the person is visibly displaying symptoms. Club staff should ask relevant questions about the person’s overseas travel.
- Contracts: Some contracts may contain clauses expressly dealing with outbreaks of pandemics or a state of emergency (which has not yet been declared in NSW). These are often called ‘force majeure’ clauses. They can sometimes deal with a situation where a party (or both or all parties) cannot complete their obligations because of external forces like such a pandemic. Such clauses in Clubs’ insurance policies usually mean that cover will not apply. You should check with your broker or us. If you have any queries relevant to specific contracts, then please contact us to get advice.
- Compliance: To the extent it remains practicable to do so, all clubs should ensure they continue to follow all compliance systems to ensure that they remain fully compliant with all obligations under existing legislation.
- Staff: Clubs should implement a plan for managing the safety of their staff, which should include requiring staff members to inform you of any symptoms they are experiencing and to make an assessment on whether it is a necessary precaution for those staff members to not attend work. It may be appropriate to require some medical clearance from those staff members. However, it is anticipated that all persons who present to doctors or clinics may not be tested, in which case clubs should consider imposing a standard isolation period. Club CEOs and General Managers should ensure all unwell staff communicate regularly so that management can track all issues. We recommend that all Club CEOs and General Managers read through Safe Work NSW’s COVID-19 Guide providing advice and guidance for NSW workplaces, available here: https://www.safework.nsw.gov.au/hazards-a-z/diseases/coronavirus-covid-19-advice-and-guidance-for-nsw-workplaces.
These are evolving situations and the above is subject to changes in how the pandemic unfolds. If you would like further information on your legal obligations, please reach out to us by contacting either Brett Boon on 0414 808 265, Sherif Mouakkassa on 0414 364 766 or Arj Puveendran on 0481 908 035 to discuss further.