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Will your organisation be able to comply with its contractual obligations?
Is your organisation's insurance protection adequate?
We have considered these issues below.
- Are there circumstances when we may sign documents electronically or witness documents via an audio-visual link?
- What if our organisation can’t comply with contractual responsibilities because of COVID-19 or government restrictions?
- My organisation has shut temporarily or permanently. Can I cancel my insurance?
- Does my public liability insurance cover any harm resulting from COVID-19?
- Should I take out additional insurance? If so, what types of insurance do I need?
- My workforce is working remotely and this is likely to continue. What is cyber liability insurance cover and do I need it?
- If a worker or volunteer is diagnosed with COVID-19, will we be covered by our volunteer personal accident insurance or our WorkCover Insurance? Note - eligible workers, including volunteers, in Victoria have access to the COVID-19 Worker Support Payment. For more information, see our news item.
1. Are there circumstances when we may sign documents electronically or witness documents via an audio-visual link?
Temporary laws were passed in almost all Australian jurisdictions to address issues relating to signing and witnessing documents remotely. Many of the temporary laws’ validity periods were extended into 2021.
Commonwealth - Temporary changes were made to the operation of the Corporations Act to provide greater certainty around use of electronic signatures and the use of technology at AGMs.
Under the temporary changes, company officers were allowed to sign documents electronically where they were previously required to sign the physical document. The aim of the changes was to ensure that documents could be properly executed at a time when ordinary business operations had been disrupted. These changes, initially in effect for six months, were extended to 21 March 2021. The Treasury Laws Amendment (2021 Measures No. 1) Bill 2021, which extends these measures, has passed the House of Representatives but is not expected to pass the Senate until August 2021 at the earliest. Unless and until these measures are enacted further, company officers signing documents under the Corporations Act are required to sign the physical document.
For more information about the use of technology at AGMS, refer to our COVID-19 governance page.
NSW - Under emergency regulations passed in NSW on 22 April 2020, signatures on documents, including wills, powers of attorney, deeds, affidavits and statutory declarations may be witnessed via an audio visual link during the COVID-19 pandemic. The operation of these regulations has been extended until 31 December 2021, and may become permanent.
Victoria - The Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 has made the measures that allowed affidavits, deeds, statutory declarations, wills and powers of attorney to be witnessed remotely and signed using electronic signature permanent. See the Department of Justice webpage for more information.
Queensland - The Queensland Parliament passed regulations that temporarily allow deeds, mortgages, general powers of attorney, wills, affidavits, and declarations to be signed electronically. The reforms also allow for documents to be witnessed via audio visual link. These temporary measures expired on 30 April 2021, but the COVID-19 Emergency response and Other Legislation Amendment Act 2021 extends the operation of the temporary measures until the end of the ‘COVID-19 Declaration Period’ – which is now 30 September 2021.
ACT - Temporary measures have been passed in the ACT allowing for documents, including affidavits, to be witnessed and certified by audio-visual link for the purposes of Territory law. These measures will expire at the end of the 'COVID-19 declaration period'. For more information, see the legislative instrument and Clayton Utz’s note.
South Australia – Under the COVID-19 Emergency Response Act 2020 and related Regulations (none of which have an expiry date), the class of people who may take a statutory declaration has been widened and the need for physical attendance at a transaction or meeting may be fulfilled remotely in some circumstances. However, witnessing the execution of documents must still be done in person.
Tasmania – Emergency measures were enacted in Tasmania on 8 June 2020 which allow signing and witnessing of affidavits, declarations or other documents to be done by electronic means. These provisions are valid for 12 months.
Western Australia - The COVID-19 Response and Economic Recovery Omnibus Act 2020 extends the provision of electronic signing and witnessing of certain documents (excluding wills and powers of attorney) until 31 December 2021.
2. What if our organisation can’t comply with contractual responsibilities because of COVID-19 or government restrictions?
As a result of COVID-19 restrictions, many organisations won’t be able to comply with contractual obligations.
If there are new COVID-19 restrictions in your state that mean you may not be able to comply with some of your contractual responsibilities, you can take the following steps:
- Identify the contracts your community organisation is a party to. These contracts may be with clients, government departments, other community organisations (for example sub-contractors or auspicing agreements) or businesses.
- Then consider your obligations under these contracts and work out which obligations you may be able to meet, and which ones you're unlikely to be able to meet or won’t be able to meet.
- Now that you have a clearer picture of your exposure, examine which of the following options can apply to each contract:
Option 1 - find another commercial solution
You may be able to find a commercial solution to meet your contractual responsibilities in a different or innovative way. For example, a community group that has government funding to deliver a service may be able to find alternative ways to continue service-delivery (for example, online delivery).
Option 2 - suspend the contract
Some contracts include a ‘force majeure’ clause which allows parties to be relieved of their contractual responsibilities where there are unavoidable or unforeseeable events. Not all contracts have a force majeure clause. Where applicable and necessary, community groups should seek legal advice about applying the force majeure clause to the outbreak of COVID-19.
Option 3 - change or vary the contract
Many contracts will contain a variation clause that sets out a process to vary contractual terms. This may be an option for organisations who want to renegotiate the timeline or substance of KPIs, or the mode of delivering a service.
Option 4 - end the contract
If no other option is available, you may need to terminate the contract. Some contracts include terms that allow a party to terminate the contract if performance has become excessively burdensome or if the contract can’t be performed due to an unforeseen event (called ‘frustration’). Your community organisation should seek legal advice about terminating a contract in either of these ways.
You will need to work out the best course of action for each contract, depending on the operational, financial and reputational impacts for your organisation. More often than not, the other party to the contract will need to agree to any change. Therefore, you should get specialist legal advice before suspending performance of contractual obligations, terminating the contract or trying to vary the terms of the contract.
Generally speaking, public liability insurance will cover the cost of claims relating to injuries to a person or damage to property in connection with the organisation. Whether your insurance policy will cover any harm arising from COVID-19 will depend on the specific terms of the policy itself and the circumstances of any claim.
Unfortunately, many public liability insurance policies specifically exclude cover for claims related to outbreaks of infectious diseases, pandemics or other similar types of harm. If your current policy contains any such exclusion, it’s possible that you will not be covered for the cost of a claim brought against you in connection with COVID-19.
You should review the terms of your policy carefully to confirm whether your policy contains any relevant exclusions. If your insurance policy doesn’t cover this type of harm, you should consider whether it would be appropriate to take out additional cover to make sure you are covered for any future claims arising in connection with COVID-19. Be aware, in the current climate, insurers may be reluctant to provide this type of cover and even if you find a suitable policy, it may come with very high insurance premiums.
If you haven't already, you may want to review your insurance policies and consider whether you need additional insurance to protect you from any flow on effects of COVID-19 that may impact your organisation. The virus may have disrupted your organisation or changed how you operate. For example, you may be facing increased health and safety risks in the workplace or you may need to stop operations or cancel events due to restrictions. Changes you have made to your service-delivery, such as moving to an online service-delivery model in response to COVID-19, may be presenting new risks and require you to change your insurance coverage.
One type of insurance that may help to protect your organisation is business interruption insurance (also known as business continuity insurance). This insurance may protect your organisation if it’s forced to stop operating, but the extent of this cover will differ depending on the wording of the policy. Many business interruption insurance policies specifically exclude claims associated with pandemics and other similar scenarios. You should review the terms of any potential policy carefully to see if it will adequately protect you during the pandemic. For an insurance policy to be effective, it needs to cover losses arising from ceased business operations (and not just property damage). In some circumstances, insurers may agree to extend the policy to make sure it operates in the context of infectious diseases and similar events.
Another helpful type of insurance may be employers liability (or workers compensation) insurance. Given the circumstances, your organisation may be at risk of claims from employees who contract COVID-19 during their employment. For example, if you fail to adhere to any mandated government restrictions or put appropriate measures in place (such as a COVID-safe plan), employees may claim that you failed to ensure a safe work environment. Depending on the policy, employee liability insurance may provide cover in these circumstances. Again, you should carefully review any potential policy and consider the impact of any relevant exclusions.
Also read our COVID-19 resources on managing work safety obligations.
6. My workforce is working remotely and this is likley to continue. What is cyber liability insurance cover and do I need it?
Working from home may present new and additional risks to your organisation, particularly if your organisation is now more active online. Examples of such risks include both first-party losses and third-party liabilities that your organisation may incur as a result of a cyber-breach.
Cyber liability insurance will generally cover some of the recovery costs that might arise from a cyber security breach or similar event. A cyber liability insurance policy should provide cover for both first-party losses and third-party liabilities that your organisation may incur as a result of a cyber-breach. However, certain types of loss may be carved out, depending on the exact wording of the policy. Given the current environment, the premiums associated with cyber liability insurance may be increased. You should carefully consider if cyber liability insurance is appropriate for your organisation or necessary for your operations. You should think about how reliant you are on your online operations and what kind of consequences could flow on from a data breach. Further, your current insurance policies may also cover losses or liabilities flowing from a data breach – for example, property damage and business interruption insurance. Reviewing your current cover and identifying any gaps is a good place to start when considering whether you need additional cover.
If you decide your business does need cyber liability insurance, it’s important to carefully review the terms of any proposed cover to make sure it covers the types of loss that you are likely to suffer.
7. If a worker or volunteer is diagnosed with COVID-19, will we be covered by our volunteer personal accident insurance or our WorkCover Insurance?
Voluntary workers personal accident insurance
If this information doesn't answer your specific question, please contact us.
We have many other free resources that may be relevant to you. Access our complete library of resources on agreements, insurance and risk.