resolving-disputes by xuyuzhu

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									                                                                                                     April 2010




                               Resolving disputes affecting
                               your charity
We encourage you to use all    Sometimes, disputes can occur            or committee. An officer may be a
available methods to resolve   between a charity’s members,             person or a body corporate – for
                               within its governing and                 example, a company.
disputes internally, before
                               management bodies or between the
contacting us.                 charity and a third party such as a      Managers
                               landlord or supplier.                    Are responsible for the day-to-day
                               It is important that the officers or     management of a charity’s
                               management of a charity resolve          operation and for carrying out the
                               disputes quickly, because they can       decisions of the officers.
                               have a negative impact on how a
                                                                        Rules
                               charity operates.
                                                                        Are the document or documents
                               Glossary                                 that set out a charity’s purposes,
                                                                        what it does, and how it operates.
                               Dispute                                  They may be its governing
                               A serious disagreement, which left       document, constitution, trust deed,
                               unresolved, can lead to a                charter, or an Act of Parliament (if
                               breakdown in the effective               the organisation was specifically set
                               governance and day-to-day                up under one).
                               management of a charity.
                                                                        Mediation
                               Officers                                 Is a process involving an
                               The Charities Act may define             independent person appointed by
                               officers differently to the way your     the people who are in dispute. The
                               rules define them.                       mediator helps them reach a
                                                                        solution. It is a private and
                               If your organisation is a trust, your
                                                                        confidential process and as the
                               officers are your current trustees
                                                                        solution is reached by agreement
                               and no one else. If it is not a trust,
                                                                        between those involved, it is more
                               your officers are all the members of
                                                                        likely to provide a long-term
                               your highest governing body and no
                                                                        resolution.
                               one else. A governing body is
                               usually appointed at an annual
                               meeting and is often called a board




HOW-CON APR10                                                                                                  1
Resolving disputes affecting your charity




Resolving disputes internally             seeking assistance from a            You should also seek professional
                                           relevant government department       advice if the dispute is connected
If the dispute has the potential to         or agency – for example, the        with a planning application or
damage your charity it is important         Registrar of Incorporated           control of property development.
that you resolve it quickly and by          Societies, Ministry of Education,
working in the best interests of the        Ministry of Health, Human Rights    Mediation
charity.                                    Commission, or Te Puni Kokiri
                                                                                Employing the services of a
Your charity should have set              approaching an agency that
                                                                                professional mediator can be a
policies and procedures for                deals with dispute resolution in
                                                                                quick and cost effective way to
resolving disputes and complaints.          the area of concern – for
                                                                                resolve a dispute. We have listed
These may be set out in your rules          example, Employment Services
                                                                                the contact details of some
or in a separate policy document.           at the Department of Labour, the
                                                                                mediation services at the end of this
Following these written procedures          Disputes Tribunal or Tenancy
                                                                                document.
should enable disputes to be                Tribunal at the Ministry of
resolved quickly and internally.            Justice, or the Health and          Please note that if you decide to
                                            Disability Commissioner             take the matter to a disputes
When should you approach                                                        tribunal or a court, the tribunal or
                                          obtaining independent legal
other people or organisations                                                   court will expect mediation to have
                                           advice from a Community Law
                                                                                taken place before they hear your
for help?                                   Centre or by engaging a lawyer
                                                                                case.
                                          approaching a neutral and
If there are no set procedures as
                                           respected person from your           At what stage should you
described above, the process
                                            community – for example a           contact the Charities
breaks down, or the written
                                            kaumatua or community elder
procedures need clarification, one                                              Commission?
or more of the people involved in         employing the services of a
the dispute should look for help           professional mediator.               We encourage you to use all
from outside the charity.                                                       available methods to resolve the
                                         You should seek help from an
                                                                                dispute before you contact us. If
An outside person or organisation        independent professional advisor if
                                                                                you wish to make a complaint to the
will provide a fresh perspective and     the dispute is about contractual or
                                                                                Commission and you are sure all
may help facilitate a quick solution.    other property rights which are
                                                                                possible steps have been taken to
                                         matters between the charity and a
You could consider:                                                             resolve the matter, you should send
                                         third party. For example:
                                                                                us written details of your complaint,
 approaching your charity’s
                                          employment issues or claims of       supported by evidence. See our
   regional or national body, if there
                                            unfair dismissal                    information sheet Making a
   is one
                                                                                complaint about a charity for more
                                          disputes relating to contracts
                                                                                details about how to do this.
                                           with the charity, including
                                            landlord-and-tenant disputes.




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What will the Commission do               signposting to mediation              What is the likely nature of
to help you solve the                      services                              the regulatory action?
problem?                                  providing guidance to officers
                                           regarding their duties and            We decide the best course of
Our focus will be on finding a               responsibilities.                   regulatory action to take based on
workable solution to the problem.                                                an assessment of the:
                                         How we provide a solution will
If, after receiving your written         depend on the level of risk involved     particular circumstances
complaint, we decide that your           to the charity’s activities,             seriousness and scale of the
concerns require our involvement,        beneficiaries, property or reputation      problem
we will assess the facts and             and the likelihood of a successful
determine the most appropriate                                                    level of risk to the charity
                                         outcome.
course of action within the                                                         (activities, beneficiaries, property
boundaries of the Charities Act.         Once a course of action has been           or reputation)
                                         agreed, we expect all parties to
Where information or education for                                                available evidence
                                         commit to implementing the
the charity or another party is
                                         solution.                                likelihood of a successful
appropriate, we will aim to provide it
                                                                                    outcome.
and try to secure a positive
                                         When will the Commission
outcome for the charity.                                                         The options available to us include
                                         take regulatory action in a             providing information, education
The Commission may provide
information or education including:
                                         dispute?                                and help to comply with the
                                                                                 Charities Act, enforcement, and, as
 identifying provisions within the      We will consider exercising our         a last resort, removal from the
  charity’s rules that apply to the      powers under the Charities Act          Register.
  issue                                  when there is evidence of:
                                                                                 Enforcement options include issuing
 assisting with interpretation of        the charity no longer meeting the     warning notices, publishing notices
  disputes provisions in the charity         requirements for registration       on the charity’s listing on the
  rules
                                          a breach of the Charities Act         Register, administrative penalties,
 suggesting ways to improve                                                     or prosecution for offences under
  existing dispute resolution             ‘serious wrongdoing’ in
                                                                                 the Charities Act.
  provisions                                 connection with a charity.
                                                                                 We can prosecute an organisation if
 suggesting ways to add new             If the issue cannot be corrected, or
                                                                                 it falsely claims that it is a registered
  dispute resolution provisions that     the charity is not willing to comply
                                                                                 charity, or if it does not provide
  would prevent a repeat of the          with the Act, then formal action,
                                                                                 required information or documents
  issue                                  including removal from the Register,
                                                                                 to us.
                                         is likely.
 providing our information sheets
  on the relevant subject matter
  providing information on
  improving the charity’s rules or
  operation




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Resolving disputes affecting your charity




We may remove a charity from the        Matters the Commission won't               the terms and conditions of
Register if:                            become involved in                          occupancy or use of charity land,
                                                                                    and, (provided that legal and
 the entity is not, or is no longer,
                                        We are unlikely to investigate              constitutional requirements are
  qualified for registration as a
                                        disputes that relate to contractual,        met), its disposal.
   charitable entity
                                        employment, or service delivery
 there has been a significant or       matters.                                  Criminal offences and failure
  persistent failure by the entity to                                             to comply with obligations
                                        We won’t become involved if your
   meet its obligations under
                                        concern is about a decision made          under other legislation
   legislation
                                        by the officers of the charity that is
 there has been a significant or       within the law or within the rules of     Criminal offences should be
  persistent failure by the officers    the charity.                              reported to the Police or another
   or collectors of the charity to                                                relevant law enforcement agency. If
                                        Also, we cannot overrule a decision,
   meet their obligations under the                                               charities, or anyone connected with
                                        including deciding policy, made by
   Act                                                                            them, are suspected of committing
                                        officers that is within their powers to
                                                                                  a criminal offence, we will refer the
 the charity has engaged in            make, simply because others do not
                                                                                  matter to the appropriate law
  serious wrongdoing                    agree with it.
                                                                                  enforcement agency.
 a person has engaged in serious       Deciding policy is a key part of
                                        officers' freedoms and                    Failure to comply with obligations
  wrongdoing in connection with a
                                        responsibilities, and may include:        under other legislation should be
   charity.
                                                                                  reported to the relevant government
                                         seeking resolution to the dispute,
We will inquire into any person who                                               department or agency (for example
                                          including differences of opinion
is engaged in conduct in breach of                                                the Registrar of Incorporated
                                          over spiritual or doctrinal
the Charities Act or where there is                                               Societies, Ministry of Education,
                                          matters, within religious or other
serious wrongdoing in connection                                                  Ministry of Health, or the Human
                                          belief-based charities
with a registered charity. We do this                                             Rights Commission)
if we consider the enquiry is            deciding how community
reasonably necessary for the              facilities (such as a local hall,
purposes of carrying out our              community centre or playing
functions and exercising our powers       field) are used
under the Act.                           deciding how to consult paid
                                          staff, volunteers, clients,
                                          members and other interested
                                          parties about decisions and
                                          policies of the charity they use or
                                          support




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Useful contacts                            Employment Relations Service,          For more information
                                            Department of Labour
We won’t become involved in an                Provides support on employment       See these other information sheets:
issue if another organisation can             relations matters and helps
                                                                                    Qualities of an effective charity
more appropriately deal with it. The          resolve employment problems.
following list includes contact details                                             Making a complaint about a
                                           Disputes Tribunal, Ministry of
of some agencies that offer                                                           charity
                                            Justice
specialist help.                                                                    Rules and the Charities Act
                                              Provides a quick, inexpensive,
 Complaint Line                              informal and private way to help
  The Complaintline website                   resolve a wide range of civil
   provides details of organisations          disputes.
   that offer complaint resolution
                                           Tenancy Tribunal, Ministry of
   relating to particular sectors of
                                              Justice
   service.
                                              Specialist tribunal resolves
 Citizens Advice Bureau                      disputes between landlords and
   Citizens Advice Bureaux provide            tenants.
   information, advice, advocacy
                                           Tenancy Mediation, Department
   and support to individuals, from
                                            of Housing
   a large number of locations
                                              Staff are available to provide
   around New Zealand.
                                              advice and information about
 Community Law Centres                       tenancy disputes. Trained
   Community Law Centres are                  mediators are available to assist
   located throughout New Zealand             in settling disputes.
   to provide legal information,
   advice and assistance, and in
   some cases represent people in
   court. Services are usually
   provided free to eligible
   members of the public.




                                 This information sheet was first published in April 2010.
                     Please refer to www.charities.govt.nz for any new developments or updates.




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