Residents of Retirement Villages Victoria Inc Action Plan 2012/14 April 2012 RRVV Action Plan 2012-2014 TABLE OF CONTENTS 1. EXECUTIVE SUMMARY ................................................................................................ 1 2. TERMS AND ACRONYMS ............................................................................................. 2 3. RETIREMENT VILLAGE SECTOR ................................................................................ 2 4. RESIDENTS OF RETIREMENT VILLAGES VICTORIA ............................................. 2 5. PRIORITIES FOR THE RRVV ......................................................................................... 3 5.1 Reducing Red Tape ..................................................................................................... 3 5.2 Reducing Disputes ...................................................................................................... 5 5.3 Reducing Costs ........................................................................................................... 7 6. ACTION PLAN ................................................................................................................. 8 7. GOVERNANCE OF THE ACTION PLAN .................................................................... 14 8. PERFORMANCE MEASURES ...................................................................................... 16 9. RISK ASSESSMENT ...................................................................................................... 17 10. LEGAL AND REGULATORY ISSUES ......................................................................... 18 11. FUNDING AND FINANCE ISSUES.............................................................................. 19 12. ACTION PLAN SUMMARY AND NEXT STEPS ........................................................ 20 12.1 Action Plan Summary ............................................................................................. 20 12.2 Next Steps ............................................................................................................... 20 APPENDIX 1 – RRVV CONSTITUTION .............................................................................. 22 i RRVV Action Plan 2012-2014 1. EXECUTIVE SUMMARY The Action Plan sets out a strategic approach to address the priorities of the Residents of Retirement Villages Victoria Inc. Registered No. A0048146R (RRVV) which includes: promoting residents wellbeing; improving consumer protection, minimising disputes and costs and ensuring a sustainable and vibrant retirement village sector. The RRVV’s constitution has been amended to better equip the organisation to address these priorities. The changes to the constitution provide the RRVV with a greater capacity to serve its members and work more effectively with the retirement village industry and government departments. This Action Plan provides an overview of the key drivers and pressures which have influenced the RRVV to address the above priority areas. This Action Plan also needs to identify potential risks and sets out a number of actions in section 8 to mitigate these identified risks. A summary of the anticipated outcomes from the RRVV’s Action Plan is presented in section 10. 1 RRVV Action Plan 2012-2014 2. TERMS AND ACRONYMS 3. Term/Acronym Definition/Description CAV Consumer Affairs Victoria COTA Council of the Aging CALC Consumer Action Law Centre LIV Law Institute of Victoria Red Tape Is a general term that refers to regulatory processes and rules that hinder decision making and increase costs. Red tape generally includes the filling out of paperwork, having multiple people or committees approve a decision and various low-level rules that make conducting one's affairs slower, more difficult, or both. See http://en.wikipedia.org/wiki/Red_tape RRVV Residents of Retirement Villages Victoria Inc Registered No. A0048146R RVA Retirement Village Association VCAT Victorian Civil and Administrative Tribunal RETIREMENT VILLAGE SECTOR Victorians are living longer than ever before. The availability and confidence in living in affordable, supported and financially sustainable community or ‘retirement village’ housing options should be a priority for Government as our community ages. The current diverse models of retirement villages have evolved over the last 40 years and there are now over 400 retirement villages with more than 30,000 residents (Consumer Affairs Victoria (CAV) discussion paper: Retirement villages: Contract and information disclosure options and website). The continued interest and investment in the retirement village industry is critical if retirement villages are to be developed and available as a healthy and sustainable housing option in the future. 4. RESIDENTS OF RETIREMENT VILLAGES VICTORIA Residents of Retirement Villages Victoria Inc. Registered No. A0048146R (RRVV) is a representative group for all people living in retirement villages in Victoria. The RRVV provides a collective voice for all Victorian retirement village residents and carrying out a range of functions including but not limited to the provision of information and support to retirement village residents, educational presentations and policy advocacy. The RRVV’s Constitution sets out the purpose of the RRVV as follows: Provide information and support to its members. o The provision of general information concerning retirement village matters o Referral to legal/support services in cases where residents are in dispute with a retirement village operator or other resident o The provision of information concerning the development and/or 2 RRVV Action Plan 2012-2014 operation of a retirement village residents committee Educate its members and the broader community of the issues affecting retirement village residents. o Talks and presentations to retirement village residents, community organisations and other relevant groups. Contribute to policy debate and to advocate on behalf of the community of retirement village residents. o Facilitate a collective voice on issues, needs and problems regarding retirement village residents. This would involve liaison with relevant government departments at both State and Federal level, local councils and relevant peak organisations. Promote interaction between retirement village residents throughout Victoria. o Organise social events and gatherings. The Association may choose to be involved in the settlement of disputes and in an advocacy role on behalf of its Members. Promote diversity and equal representation. o Provide balanced representation for all residents regardless of their gender, socioeconomic status, culture, religion, geographic location or disadvantage. o Promote diversity in representation. o Ensure all residents have equal access and participation regardless of personal circumstances or residential location. The RRVV Constitution is attached in Appendix 1. The members of the RRVV have identified a number of priorities that have shaped the development of this Action Plan: the need to reduce Red Tape, disputes and costs. These are summarised below. 5. PRIORITIES FOR THE RRVV 5.1 Reducing Red Tape Retirement villages are regulated by multiple, overlapping pieces of legislation. Over the last 40 years, numerous new Acts have been introduced to address one or more specific problems resulting in the biggest problem now being ‘regulatory creep’. Regulatory creep creates confusion and limits the ability of residents to identify and defend their rights, creates disputes and imposes costs. Table 1 below provides a summary of some of the legislation now affecting Retirement Villages. Please note that additional Commonwealth legislation relating to taxation and workplace awards also applies. For further information about taxation and workplace law please see the Australian Taxation Office and Fair Work Australia websites. Table 1: Overview of the development of the regulatory framework affecting Retirement Villages Legislation Description 1981 1990 2000 2012 Company share schemes Company share schemes to enable the common ownership of buildings began in approximately 1945. A company built or purchased a building containing a May apply May apply May apply May apply 3 RRVV Action Plan 2012-2014 1945 The Transfer of Land (Stratum Estates) Act 1960 Strata Titles Act 1967 Associations Incorporation Act 1981 Retirement Villages Act 1986 Subdivision Act 1988 Planning and Environment Act 1987 Building Act 1993 Fair Trading (Amendment ) Act 1999 Occupationa l Health & Safety Act 2004 Owners Corporations Act 2006 Fair Trade Amendment (Australian Consumer Law) Act 2010 number of apartments. A resident would buy shares in the company which would entitle that person to live in one of the apartments. The company is governed by a Board of Directors whose powers and duties are set out in a Memorandum and Articles of Association. Company share schemes are regulated by Corporations Law. This Act enabled the subdivision of land (and buildings) into residential land and residual land (common property). The common property is owned by a service company that allowed residents to use the common property in return for defined payments. The rights and responsibilities relating to the common property are contained in complex service agreements. Created a legal entity “body corporate” to enable the ongoing shared ownership of land. The legislation allows the committee to be delegated powers of the body corporate for not for profit purposes and to manage the common property. Created a legal entity enabling the collective members to open bank accounts, enter into contracts and obtain legal advice for not for profit purposes Created a regulatory framework to protect the rights of persons, who live in, or wish to live in, retirement villages. Created a legal entity “body corporate” to enable the ongoing shared ownership of land. The legislation allows the committee to be delegated the powers of the body corporate for not for profit purposes and to manage the common property. Requires the owner of land to conserve, maintain and protect certain environmental, heritage and cultural features of land (e.g. a section 173 Agreement to protect heritage, environment, cultural significant land, bushfire survival plans flood management plans, protection of growling grass frog native habitat plans etc) Requires the owner of private buildings to maintain essential safety measures in private buildings. Disputes between residents and managers of retirement villages previously required (prior to 5 April 2005) to be resolved by arbitration now may be determined by the VCAT (s.40 Retirement Villages Act 1986 (Vic)). Employer must provide a safe and healthy workplace for workers and contractors. Duties include to monitor and consult with workers and occupiers This Act replaced the Subdivision (Body Corporate) Regulations and created a legal entity “owners corporation” to enable the ongoing shared ownership of land. The legislation allows the committee to be delegated powers of the owners corporation for not for profit purposes and to manage the common property. The national consumer law was introduced into Victoria on 1 July 2010 and applies to standard form consumer contracts entered into, varied or renewed on or after 1 July 2010. This Act was intended to be transitional and applies to consumer contracts entered into or renewed between 1 July 2010 and 31 December 2010. May apply May apply May apply May apply May apply No longer applies No longer applies No longer applies May apply May apply May apply May apply Did not apply Yes Yes Yes Did not apply May apply May apply May apply Did not apply Did not apply Did not apply Yes Did not apply Did not apply Did not apply Did not apply Yes Yes Did not apply Yes Did not apply Did not apply Did not apply Yes Did not apply Did not apply Did not apply May apply Did not apply Did not apply Did not apply Yes 4 RRVV Action Plan 2012-2014 The problems created by regulatory creep include: Multiple responsibilities for managers (e.g. operator, developer, delegated manager and office manager) Numerous committees (e.g. residents committee, residents association committee and owners corporation committee) for similar purposes with different powers and obligations Numerous overlapping rules (e.g. village rules, association rules and owners corporation rules) Significant administration and compliance obligations and costs Increased disputes over rights and obligations. 5.2 Reducing Disputes It is currently almost impossible for a resident or a residents committee to understand their rights and obligations under the legislation and residence documents. This makes residents both legally and financially vulnerable which is the cause of most disputes. The Consumer Action Law Centre (CALC) recently assisted an elderly retirement village resident with her dispute before the Victorian Civil and Administrative Tribunal (VCAT). CALC in its media release said that: ‘It is well known that complex retirement village contracts can cause problems for residents. We shouldn’t have to rely on a regulator’s intervention, the industry needs to be proactive about simplifying contracts”. This media release was viewed on 20 April 2012 at: http://www.consumeraction.org.au/downloads/RetirementvillagecontractsconfusingFINAL.pdf The various legal arrangements have different implications and raise different issues in terms of the applicable legislation, agreements or residence documents. For example, in many villages the residence documents makes the residence association responsible for providing services and all legal obligations of the manager under the Retirement Villages Act and other law. However, sometimes the residents association does not have the capacity to do so because: the operator has the controlling votes the capacity is in conflict with other obligations in the residence documents carrying out the obligations in the residence documents would require the residents association to commit an offence and be at risk of paying significant penalties, or the operator has a power of attorney for the residents association. These residence documents creating these obligations may include: Lease Agreement Licence Agreement (e.g. occupancy, tenancy or car park) Loan Agreement Contract of Sale Services Agreement Village Rules Association Rules Owners Corporations Rules Appointment of Manager Manager’s Lease Instrument of Delegation 5 RRVV Action Plan 2012-2014 Plan of subdivision Building permit conditions including essential safety measures. Planning permit conditions and Section 173 Agreement pursuant to the Planning and Environment Act 1987 which may include a heritage, cultural, flood, fire or an environmental management plan e.g. to “retain and manage wetlands for the Growling Grass Frogs in perpetuity”). Powers of Attorney from the resident, residents association and/or the owners corporation to the operator. The various legal arrangements created by the residence documents as set out above makes it problematic to develop a standard contract for the services agreements without having consideration of the applicable legislation and other agreements that make up the legal and financial arrangements for a village. For example, the residence documents may create confusion as to who is the manager and the committee, for the purposes of the Retirement Villages Act 1986 and this is the cause of many disputes. For example the “manager” could be any or all of the following: The developer, The operator The owner The owners corporation and an owners corporation committee The residents association and a committee of management The office manager. In addition to issues relating to who is the ‘manager’, there are also issues as to the number and responsibilities of the multiple committees that may be required to be established by legislation as set out below: Residents committee (Retirement Village Act 1986) Residents Association committee (Associations Incorporation Act 1981) Owners Corporation committee (Owners Corporations Act 2006) Each Act also sets out the legal capacity of the committees and how the committees should operate and provides different obligations making volunteering to be on the ‘committee’ by retired elderly residents facing issues related to aging very problematic. In 2012, the financial arrangements are made much more complicated by legislative creep and complex residence documents. For example the range of financial obligations may include: The upfront fee, in going contribution, entry fee or purchase price usually represents the market value of the unit or secures the right of the resident to occupy their new home. Sometimes the upfront fee is in the form of a loan and will be refunded upon departure, although part of this ‘upfront fee’ may be retained by the operator as an outgoing contribution or deferred management fee. Maintenance fees, recurrent charges or resident levies which are a contribution to the cost of running the retirement village. Such as staff salaries, community facilities, gardening maintenance, emergency call systems, some rates and taxes and the provision of services to all residents. Maintenance Plan and Maintenance Fund. The service agreement may provide that the operator of the village is an owners corporation and the residents association is delegated the obligations of the owners corporation including the responsibility to have a maintenance plan and create a maintenance plan or sinking fund. Personal service fees which are charged for additional services such as meals, cleaning, laundry and personal care provided to a resident. These services are usually not provided by the village itself but provided by contractors and the fees are based on user pays at market rates. 6 RRVV Action Plan 2012-2014 Refurbishment fees, sales and marketing costs and legal fees for the resale of the unit on departure. If an owners corporation is created by the plan of subdivision then that owners corporation has to have a maintenance plan and a maintenance fund. The maintenance fund has to be in the name of the owners corporation and contributions to the maintenance fund are made by members of the owners corporation. Management Plan and Management Fund. The planning permit for the development of the village may have conditions or provided for a section 173 Agreement that provided for the management and maintenance of village or community infrastructure or vegetation protection. Outgoing contribution/deferred management fee/departure fee which refers to the amount payable to the retirement village operator on the departure of a resident from the village. The outgoing contribution amount can depend on a number of variables, such as percentage of the ingoing contribution, or outgoing contribution, multiplied by the number of years the resident lives in the village. The percentage rate of the resale amount of the unit may also reflect a contribution to the capital repairs/capital replacement/upgrades of the village (including communal facilities, buildings, roads etc). There is a complex relationship between the upfront fees, maintenance and service fees and outgoing fees. Table 2 below shows the regulatory provisions relating to the financial arrangement for retirement villages. Table 2: Summary of sources of financial obligations in retirement villages Ingoing contribution Maintenance charge Special levies Personal services Capital replacement Sales, marketing & legal fees Outgoing contributions Retirement Villages Act 1986 Owners corporations Act 2006 Associations Incorporation Act 1981 No Lease, Licence or Contract of sale Yes Service Agreement and/or other agreements No Yes No Yes Yes Yes Possibly Yes Yes Minor provision No Yes Capacity No No Possibly Possibly Yes Yes Yes No Possibly Yes No No No Possibly Yes No No No Yes Yes 5.3 Reducing Costs The need to reduce costs for residents has been recognised by the Retirement Villages Association (RVA). In its submission to the Productivity Commission Enquiry – Caring for Older Australians, dated August 2010, on page 18, the RVA stated: “A high proportion of seniors living in retirement villages (our members indicate upwards of 80% in some locations) draw a part or full pension. This highlights the ongoing challenges people face as they predominantly use their equity to come into a village and then have to budget for weekly expenses in a planned manner to ensure lifestyle and care needs are met.” And on page 25 of that submission, the RVA further stated: “The constant changes and up-scaling of various aspects of regulation only serves to increase consumer uncertainty and adds cost to the industry. The net result is often the 7 RRVV Action Plan 2012-2014 requirement to raise service charges, which impacts the resident and does not promote affordability.” Residents of retirement villages recognise that access to an external dispute resolution process without addressing the problems set out above will consume available financial resources of individual residents and villages. 6. ACTION PLAN Actions to reduce red tape: 1. Review the Retirement Villages Act 1986. The review should undertake a stocktake of Retirement Villages Act 1986 to: identify the current and future objectives of the Act identify what provisions of the Act are effective, could be improved, are duplicated or are now redundant possibly amend the Retirement Villages Act to become an umbrella legislation setting out minimal rights and obligations for retirement villages and residents and providing default provisions to enable the appropriate legal framework to continue to avoid duplication of administrative and compliance costs. 2. Each village should create a folder of documents setting out the history of the village for the purposes of understanding the relevant legislation and obligations under that legislation. The folder should include: A copy of all Planning Permits A copy of Building Permit A copy of the plan of subdivision A copy of the search of the common property on the plan of subdivision A copy of any section 173 agreements Copies of residential contracts and service agreements affecting the village. 3. Each village or villages collectively, should identify and simplify the current legal structures and obligations within that retirement village and then develop a checklist to simplify administrative processes and reduce costs. (See also opportunities to reduce costs). Actions to reduce disputes over legal obligations 4. Each village, or villages collectively, should create a checklist of obligations for each of the parties e.g. Manager/operator Office manager Committee (or hierarchy of duties if multiple committees) Resident. 5. Each village or the villages collectively through the RRVV, RVA, CAV and other relevant stakeholders should work together to identify the key legal structures within existing retirement villages or retirement village models and work towards simplifying these agreements/legal structures/retirement village models. While it is understood that significant work has been done to develop standard contracts for future residents, additional work needs to be undertaken to deal with existing problems. This activity should be done firstly at the village level and then collectively by the RRVV, RVA and CAV. Each village needs to identify legal obligations and agree as to the process to be followed to comply with those obligations. Please see above for the list of documents that are needed to be examined to understand the legal obligations of the village. The process can be set out in best practice procedures, checklists or fact sheets and that knowledge can be shared between villages. This work will reduce disputes and costs and provide the necessary information to make recommendations to Government to make appropriate regulatory amendments. This strategy would avoid 8 RRVV Action Plan 2012-2014 possible future expensive litigation to determine the rights and obligations of the parties. Actions to reduce disputes over financial arrangements 6. Each village (or with assistance from the RRVV, RVA and CAV collectively) should work together to create a set of model financial accounts from budget to audited accounts for presentation at the Budget meeting and the Annual General Meeting. This set of accounts should be simple, clear and transparent, with a fact sheet on how to set out and present to minimise disputes, what should be provided and how to handle questions that may arise. This would allow potential residents to compare apples with apples when making the decision on what village to move into, especially if they are on fixed incomes. 7. Each village (or with assistance from the RRVV, RVA and CAV collectively) should work together to identify the components of the costs representing the ingoing, ongoing and outgoing contributions. Each village then should clarify the responsibility for those costs, fees and charges relating to those contributions for existing and future residents. e.g. Ingoing contribution and whether it represents the market price of the unit or finance for the development of the village Ongoing contributions and what is included in the village operating costs Outgoing contributions and what it actually represents. For example whether the amount represents an ingoing contribution discount, capital replacement/upgrades to the village or profit Refurbishment and resale costs. 8. Each village (or with assistance from the RRVV, RVA and CAV collectively) should identify and set out the financial obligations within current retirement villages and then develop a check list for that village and/or fact sheets for retirement village models. This work would provide a benchmarking tool to help identify what items may be set out in standard contracts to reduce the complexity of residence documents, reduce disputes and provide the necessary information to make appropriate regulatory amendments. This process would avoid expensive litigation which may put in jeopardy, the financial viability of the village, and the retirement village industry in general. Actions to improve decision making and reduce disputes 9. The focus should be on improved communication and transparency at general meetings. A retirement village community is a community and the appropriate way to promote that community is to improve communication and the appropriate structure to do that is at ‘a general meeting’. 10. The villages collectively through the RRVV, RVA, CAV and other relevant stakeholders should work together to develop fact sheets for meetings to improve communication and transparency. This would reduce disputes and provide the necessary information to make appropriate regulatory amendments and avoid expensive litigation to determine the rights and obligations of the parties. 11. To ensure independence and accountability, the RRVV should assist villages obtain independent legal advice and professional independent meeting facilitators. See also actions to reduce costs. Actions to clarify obligations and reduce disputes 12. Each village should create a folder of residence documents. See above actions to reduce the red tape. 13. The RRVV, RVA and CAV (other relevant bodies) should work together to identify the key attributes of the specific agreements to simplify and make fair, the legal and 9 RRVV Action Plan 2012-2014 14. 15. financial arrangements. This work should be able to identify an appropriate legal and financial framework for the village that is compliant with the new law. While it is acknowledged that this may change existing obligations and entitlements, it may be the most cost effective option to avoid litigation, and ensure that villages remain financially sustainable. Each village or villages collectively through the RRVV should seek independent legal advice and engage an independent facilitator at general meetings when key or important decisions impacting the village need to be made. This will ensure voices are heard and concerns are addressed. See actions to reduce costs below. The Retirement Village Act is amended to set out a process for residents to take disputes to VCAT or alternatively, the appointment of a Retirement Villages Commissioner. Actions to reduce costs 16. An opportunity to reduce costs and improved decision making for each village, and villages collectively, is for the RRVV (or alternately, the RRVV, RVA and CAV collectively) to obtain independent legal advice and professional meeting facilitator to assist villages. The professional assistance will assist villages clarify roles and responsibilities, processes, improve decision making and make better use of village resources The professional assistance could then develop processes and fact sheets to be made available for all villages. The knowledge and information gained by the professional assistance will be very valuable for CAV in identifying appropriate legislative amendments. Having professional assistance chair meetings will provide the much needed skills to ensure meetings are more effective, views are heard, decision making will be transparent and actions are identified and recorded. The independent facilitation provided by the professional assistance will assist in resolving existing disputes, prevent future disputes and reduce costs. The professional assistance will enable committees, managements, and residents to focus on the details and finding solutions. The professional assistance must be: seen by the parties as fair and neutral in relation to the content impartial in their handling of participants highly capable and authorative accountable to the whole village. Having independent professional assistance has a number of benefits including: Increases the chance that all voices will be heard Reduces the likelihood of manipulation or stand over tactics All parties will be able to identify the costs and benefits of alternatives and the many interests that have to be considered Increases the likelihood that the outcome will be acceptable to all, and that the decisions reached will be implemented. The professional assistance providing independent meeting facilitation services will also be particularly useful and cost effective for villages that must make major changes to multiple legal or financial arrangements in contracts to be compliant with the law. The skills required for the professional assistance (possibly two or more people) include: A high level of knowledge of the retirement village law and operation 10 RRVV Action Plan 2012-2014 The holder of Legal Practicing Certificate Organizational abilities and strong attention to detail Facilitation skills Capacity to handle stress and have a common sense approach Strong communication skills including writing and report writing This model of sharing resources to reduce costs reflects a model in the US and Canada, where individuals and organisations pooled resources to establish an organisation called Naturally Occurring Retirement Communities (NORC) to provide support for communities which are ageing, whether as independent houses, apartments or larger communities. There are also other models such as the RVA and RACV where membership fees and sponsorship is sufficient to cover paid professional support that is provided to members. There are particular benefits if RRVV or the RRVV, RVA and CAV collectively administer the professional assistance to villages including: Pools resources and knowledge. Currently villages, villages, committees and committees, individually or collectively, have difficulty in obtaining expert assistance due to lack of resources, capacity and available of professional knowledge of Retirement Village Law. Reduces barriers to legal advice. Obligations of professional conduct also limit the capacity of legal practitioners to provide advice to multiple parties (eg signing of costs agreements etc and conflict of interest.) Information and knowledge is shared. It is acknowledged that the greatest costs will be imposed on the first villages to obtain the professional assistance. Improved collaboration and cooperation between the parties. Strong governance of the Action Plan will common goals and commitment and ensure outcomes are measured, achieved and reported. Table 3. Summary of actions set out in the Action Plan WHAT WHY HOW Action: Stocktake of the Retirement Villages Act Review Retirement Villages The Act does not take into account Collectively CAV, RRVV and RVA (and with Act the current and future needs of consultation with all relevant stakeholders) residents and retirement village should: industry. For example the residents identify the current and future needs of committee needs to be the industry incorporated to organise outings identify the current and future objectives and open a bank account. of the Act Existing smaller retirement villages identify what provisions of the Act are cannot comply with the regulatory effective, could be improved, are requirements of both the duplicated or are now redundant. Retirement Villages Act and the Owners Corporations Act. Action: Reduce Red Tape and simplify and clarify legal obligations Each village should create a Retirement villages have been The folder should include: folder of legal documents established and are governed by A copy of all Planning Permits establishing the village. multiple and conflicting regulatory A copy of Building Permit and contractual requirements. The A copy of the plan of subdivision multiple requirements of the A copy of the search of the common legislation and contracts are the property on the plan of subdivision cause of disputes and are A copy of any section 173 agreements undermining confidence in the Copies of the different types of residential industry. contracts and service agreements 11 RRVV Action Plan 2012-2014 WHAT Each village should simplify and clarify the structure and legal obligations for the village. WHY A list and/or checklist setting out the legal obligations and relevant legislation to reduce costs and reduce disputes. HOW Each village should create a list or checklist of obligations for each of the parties e.g. Operator/Manager Residents Association Office manager Committee (or hierarchy of duties if multiple committees) Resident. Multiple and duplicated provisions in the legislation, rules and contracts is the cause of unnecessary costs and disputes. This work will reduce disputes and costs and provide the necessary information to make recommendations to Government to make appropriate regulatory amendments. This strategy would avoid possible future expensive litigation to determine the rights and obligations of the parties. Action: Simplify and clarify fees and financial obligations Each village should clarify the There is a lack of clarity of what funding/financial structure of and how the ingoing, ongoing and the village. outgoing have been calculated. There are frequent disputes as to what fee has a component for building maintenance and capital improvements to units and the communal facilities. There are several problems with the contractual arrangements that have evolved over the last 30 years for residents and operators. Some contracts have just been assigned to new residents and do not comply with current legal requirements. Other villages have created many different contracts over the years resulting in confusion as to ongoing and outgoing financial obligations of residents. Each village needs to improve Lack of transparency and reporting financial reporting and of ongoing costs and capital costs transparency at budget are a major cause of conflict and meetings and the Annual dispute. General Meeting. This set of accounts should be simple, clear and transparent, with a fact sheet on how to set out and present to minimise disputes, what should be provided and how to affecting the village Each village needs to identify roles and responsibilities flowing from all the legal obligations above and agree as to the process to be followed to comply with those obligations. This activity should be done at the village level with independent professional assistance provided through the RRVV (or the RRVV, RVA and CAV collectively). The RRVV, RVA and CAV can use the above work to identify the key attributes/ common elements/legal structures within existing retirement villages or retirement village models to inform the review of the Retirement Villages Act. Each village needs to identify legal obligations for the parties and agree as to the process to be followed to comply with those obligations. This activity should be done at the village level with independent professional assistance provided through the RRVV (or the RRVV, RVA and CAV collectively). Each village needs to identify the financial structure of the village for existing and future residents. e.g. Ingoing contribution and whether it represents the market price of the unit or finance for the development of the village Ongoing contributions and what is included in the village operating costs Outgoing contributions and what it actually represents. For example whether the amount represents an ingoing contribution discount, capital replacement/upgrades to the village or profit Refurbishment and resale costs. This activity should be done at the village level with independent professional assistance provided through the RRVV (or the RRVV, RVA and CAV collectively). Each village (or with independent professional assistance provided through the RRVV collectively) should work together to create a set of model financial accounts from budget to audited accounts for presentation at the Budget meeting and the Annual General Meeting. This would enable benchmarking and assist the village identify efficiencies and reduce 12 RRVV Action Plan 2012-2014 WHAT WHY HOW handle questions they may arise. costs. This would allow potential residents to compare apples with apples when making the decision on what village to move into, especially if they are on fixed incomes. Action: Improved communication and decision making (reduced disputes) Improved communication and Formal dispute resolution The RRVV should support villages by transparency at general processes can impede providing independent meeting facilitating to meetings. A retirement village communication, transparency and improve village capacity to conduct meetings, is a community and the decision making! communicate issues and improve decision appropriate way to promote Lack of transparency and making at a general meeting. that community is to improve opportunities to have a say and be The RRVV, RVA and CAV (and other communication and the heard adds to conflict. Isolating relevant bodies) should work together to appropriate structure is at ‘a questions to a formal dispute develop fact sheets for meetings to improve general meeting’. resolution process does not communication and transparency. improve communication, transparency and decision making. The RRVV engages If each resident individually The professional advice and support professional support for obtained independent legal advice provided through the RRVV (supported by villages (Operators, managers on the legal structure and specific the RVA and CAV) will be: and retirement village operation of a residents committee seen by the parties as fair and neutral in committees collectively) to there would be considerable conflict relation to the content provide independent and imposing costs to the residents and impartial in their handling of participants authoritive legal advice and the village. highly capable and authoritive facilitation at general meetings. accountable to the whole village. If each village individually set out to simplify and clarify the legal The knowledge and skills provided by the framework for each village, set out paid assistance and support will inform the a process for committees to follow review of the Act, develop skills and and provide independent facilitator processes for the RRVV and the residents for a general meeting there may be committees. concerns about whether the work See the New Zealand Retirement Villages was fair and value for money. Act model. See http://www.legislation.govt.nz/act/public/2003/ However if the RRVV engage 0112/latest/DLM220371.html professional assistance with the support of the RVA and CAV, there would be increased commitment to the outcomes, reduced costs and conflict Action: Opportunities to reduce costs The RRVV engages If each resident or each village The professional support provided through professional support for individually set out to simplify and the RRVV (supported by the RVA and CAV) villages (Operators, managers clarify the legal framework for each will be: and retirement village village, the costs would be Qualified and demonstrated experience committees collectively) to significant. in the area of retirement village operation simplify and clarify the legal There are approximately 400 and relevant law framework for each village, set villages and 30,000 residents. Lower in cost than the cost of obtaining out a process for committees independent legal advice to 30,000 to follow and provide an individual residents independent facilitator at Lower in cost than the cost of obtaining general meetings independent legal advice to 400 individual villages Lower in cost than providing the necessary regulatory powers to an existing or new regulatory body 13 7. GOVERNANCE OF THE ACTION PLAN Principles of Governance of the Action Plan: Promote the wellbeing of residents of retirement villages. Maintain a clear basis for supervision and oversight of the Action Plan: Ensure roles and accountabilities are clearly defined to achieve the required outcomes as set out in the Action Plan. Promote fair and responsible decision making in approving and implementing actions set out in the Action Plan. Ensure that disclosure and reporting of work and outcomes is accurate and balanced. Recognise and manage risk. These principles are brought into effect by: Establishing a Reference Group to approve and implement the Action Plan and to identify and manage risk. The Reference Group will consist of the RRVV, RVA and CAV with regular liaison with stakeholders such as HAAG, COTA, CALC, LIV, Village Developers and Village Operators. The Reference Group will consist of two representatives from CAV and the RVA and four members of the RRVV. The Reference Group will have four members of the RRVV to ensure that at least two RRVV members are present at each Reference Group meeting. Four RRVV members on the Reference Group will be required to ensure a balanced and representative resident’s input into decision making, avoiding potential conflicts of interest and improve reporting back to RRVV members. The Action Plan recognises the difficulties and disadvantages that older people face from time to time including poor health and forgetfulness. The Action Plan also seeks to overcome any concerns that the RRVV voice has not been included into decision making. Well defined actions, roles, timelines and reporting. Regular communication with the RRVV members including: o regular reporting on financial, expenditure and outputs o regular reporting of activities and outcomes o reporting to the Minister through Consumer Affairs Victoria. A comprehensive annual report which includes financial disclosure for each financial year and reporting on a range of performance indicators and benchmarks. Village participants entering into a memorandum of understanding prior to accessing independent legal advice or use of meeting facilitation to ensure common goals and expectations of support services provided. Strong governance objectives and values to deal with potential conflicts of interest. 14 Figure 1 – Action Plan Governance Chart Consumer Affairs Victoria Chair HAAG Village Developers COTA Retirement Villages Association Residents of Retirement Villages Victoria CALC Village Operators REFERENCE GROUP Legal Adviser Independent Meeting Facilitator Village Operator Manager: Village Operator Office or Village Manager Owners Corporation Manager Residents Association Committee: Residents Committee Owners Corporation Committee Residents Association Committee Residents PARTICIPANTS 15 8. PERFORMANCE MEASURES Table 4 Summary of outputs, key performance indicators and measures OUTPUT KEY PERFORMANCE INDICATOR MEASURE Dispute Minimisation 2012-2013 Dispute Minimisation 2013-2014 Dispute Minimisation 3 Effective and Efficient management of Action Plan Annual 20% Reduced costs 1 number of complaints reported to CAV reduced Annual number of complaints reported to CAV reduced Member feedback Percentage of projects delivered within +/- 5% of agreed budget Percentage of projects delivered within +/- 10% of agreed time Percentage of project resources used in delivery Action Plan outcomes rather than reporting of Action Plan within +/- 10% 90% Annual 20% number of complaints reported to CAV 90% of participant villages satisfaction with advice services Manager/Operator of participant villages satisfaction with advice services RRVVs 70% Annual number of complaints reported to CAV reduced Effective and Efficient delivery of services and support 80% reduction from calendar year 2010 to 2011 to 2013-2014 30% reduction from calendar year 2010 to 2011 to 2013-2014 70% resident of villages survey* 70% manager/operator survey* reduced Reduced costs 2 reduction from calendar year 2010 to 2011 to 2012-2013 30% reduction from calendar year 2010 to 2011 to 2013-2014 Member survey* Residents member satisfaction with what and how the Action Plan was delivered member survey* * Specific methodology for measure to be further developed. 16 9. RISK ASSESSMENT The RRVV has identified several potential risks that may impact the capacity of the Action Plan to achieve the priorities of the RRVV set out in section 5. Table 5 below sets out those risks and provides controls/actions to mitigate those risks. Table 5. Summary of identified potential risks Priority Strategic Risk Issues 1. Member expectations misaligned in terms of needs and priorities set out of the Action Plan 2. Stakeholder/participants expectations misaligned in terms of needs and priorities set out of the Action Plan 3. Residents believe that decision making by the Reference Group is weighted or biased towards protecting the financial interests of village operators. 4. The process or resources required to deliver the Action Plan are deficient and contributes to not meeting objectives, timelines and expected outcomes 5. Reporting and administrative processes consume the limited resources to deliver the Action Plan 6. There is no funds or resources available 7. Reference Group do not agree and decision making stalls 8 Potential conflicts of interest by participants in the Action Plan Actions to mitigate risks Ensuring the actions in the Action Plan have been approved and needs and priorities of members have been identified from the out set. Depth of capability of advice services engaged - skills, knowledge and experience; Capacity, flexibility and agility of advice services provided to respond to new and changing situations; Regular communication and reporting on the delivery of the Plan Managing and effectively using the resources that are available Assessing gaps in capability. Ensuring the actions in the Action Plan are agreed and needs and priorities of stakeholders/participants have been identified from the out set. Stakeholders/participants will be required to sign a memorandum of understanding to clarify and align expectations To ensure that two residents are present at every Reference Group meeting and there is improved feedback to members, the RRVV will have four members of the RRVV on the Reference Group. It is likely that from time to time that there may be potential conflicts of interest and one or more RRVV representatives will be away or in poor health. The Action Plan will set out clear actions, outputs, processes and outcomes to be achieved Regular reporting to members Regular reporting to Reference Group Flexibility and capacity to identify and grasp opportunities. Designing reporting processes to minimise reporting processes consuming resources available to deliver outputs an outcomes. Designing proforma reports to minimise reporting effort and information required to prepare reports Having clear guidelines and expectations of all those contributing and participating in the activities set out in this Action Plan so that reporting processes do not consume the limited resources available to deliver outputs set out in this Action Plan. Funding may influence strategic priorities Effective and efficient use of resources that are available Accessing pro bono advice and assistance where available Embracing opportunities to share resources, knowledge and capacity to achieve areas of priority in the Action Plan The Reference Group will enter into a memorandum of understanding to clarify inputs, outputs and manage expectations to promote decision making Ensuring activities and processes are independent, fair, transparent, measured and accountable Requiring all participants in the activities set out in this Action Plan enter into a memorandum of understanding. Having four RRVV representative members on the Reference Group. 17 10. LEGAL AND REGULATORY ISSUES The principal legislation from which the RRVV derives its structure, objectives, responsibilities and powers is the Associations Incorporation Act 1981 and its Constitution approved by the Department of Justice in April 2012. To achieve its purposes set out in the Constitution, the RRVV will collaborate with the RVA and CAV in the preparation of instructions for legal advice work and support services to villages as set out in this Action Plan. A Reference Group will be established that will determine the scope of the legal advice work required and the support services to villages to be offered. The decisions of the Reference Group will be implemented through the RRVV. To ensure decisions and the use of resources related to the supply of legal advice work and support services to villages is targeted, efficient and fair, the CAV will chair the Reference Group. If it is decided that a Barrister is to be instructed, and the RRVV or CAV are not able to or it is not desirable for the RRVV or CAV to instruct directly, then CALC or PILCH be asked to give instructions on behalf of the Reference Group. Major legal advice work to be undertaken includes: Drafting a memorandum of understanding for the members of the Reference Group. Drafting a memorandum of understanding for the parties in the participant villages who have been approved. Review of the residence documents for a village or villages collectively, on an as needs basis, and identifying the relevant legislation and subordinate legislation (regulations) that applies to the village. Preparing advice on the legal entities, roles and responsibilities of the parties within a village or villages. Preparing operational guidelines, checklists and advice on processes for the parties in the village, or villages as relevant, to comply with the requirements of the relevant legislation and residence documents. Major support services work to be undertaken includes: Drafting an application form for a village or villages collectively that sets out to seek sufficient information to measure the size of the problem, the parties and outcomes desired by the support services. Preparing a proforma document of information or the Report to be supplied to the Reference Group/Minister on a six monthly basis. Preparing a number of surveys to measure the outputs and outcomes of the Action Plan. Preparing operational guidelines, checklists and advice on processes for the parties in the village, or villages as relevant, to comply with the requirements of the relevant legislation and residence documents. Preparing a Report reduction in Red Tape to be delivered at the end of the two year term of the Action Plan It is envisaged that a village or villages collectively, will apply for advice and support on an as needs basis by filling out an application form which is approved by the Village Operator and a resolution of 75% of the residents of the Village. 18 11. FUNDING AND FINANCE ISSUES The funding of the activities set out in this Action Plan will be sourced from: Government grants RRVV membership fees Fees or contributions paid by the parties (yet to be determined) Donations by industry, community groups or individuals. A bank account will be established for purposes of recording all payments and expenditure to carry out this Action Plan. The Reference Group will approve and record all transactions from the bank account. 19 12. ACTION PLAN SUMMARY AND NEXT STEPS 12.1 Action Plan Summary This section provides a high level summary of the anticipated outcomes of the Action Plan Table 6. Summary of anticipated key outcomes by area of responsibility Outcomes Responsibility Beneficiary Reduce Red Tape RRVV, RVA, CAV, Village Operators, Village Operators, Village Committees, and Village Committees Village Managers, residents and State Government. Clearer understanding of RRVV, RVA, CAV and retirement Village Operators, Village Committees, legal and financial rights villages participating in the actions set Village Managers and residents and responsibilities out in the Action Plan Reduction in disputes RRVV, RVA, CAV and retirement Village Operators, Village Committees, villages participating in the actions set Village Managers and residents out in the Action Plan Reduction in costs RRVV, RVA, CAV and retirement CAV, Village Operators, Village villages participating in the actions set Committees, Village Managers, out in the Action Plan residents and State Government. Improved transparency and Village Operators, Village Committees, Village Operators, Village Committees, communication of issues Village Managers and residents Village Managers and residents Improved decision making Village Operators, Village Committees, Village Operators, Village Committees, Village Managers and residents Village Managers and residents More effective and efficient Village Operators, Village Committees, Village Operators, Village Committees, use of resources Village Managers and residents Village Managers and residents Improved wellbeing Village Operators, Village Committees, Village Operators, Village Committees, Village Managers and residents Village Managers and residents 12.2 Next Steps Table 7: Summary of potential next steps and timelines Step How/Methodology Obtain support and agreement for the priorities identified in the Action Plan with the CAV and the RVA Consult with CAV and the RVA and other relevant stakeholders Establish Reference Group See sections 7 Draft Memorandum of Understanding for Reference Group including guidelines for meetings and decision making See sections 7, 9 and 10 Establish a bank account See section 11 Seek funding and/or available resources identify Draft Memorandum Understanding for Participants When Who RRVV See section 11 of See sections 7, 9 and 10 Draft application form for villages to participate in Action Plan See sections 7, 9 and 10 20 Engage legal advisor and other professional administrative support either in a pro bono or fee for service See sections 7, 9 and 10 Prepare report See sections 8 and 9 proforma six monthly Prepare draft surveys to measure outputs See section 8 and 9 Prepare a report on the reduction of Red Tape See sections 8 and 9 21 APPENDIX 1 – RRVV CONSTITUTION RESIDENTS OF RETIREMENT VILLAGES VICTORIA INC (Registered No. A0048146R) CONSTITUTION As agreed at the Special Meeting 16th November 2011 Approved by Department of Justice April 2012 Residents of Retirement Villages Victoria Inc. Constitution 22 1. Name The name of the association shall be the Residents of Retirement Villages Victoria Inc. referred to in the Constitution as “the Association”. 2. Purpose 2.1 The Association will facilitate a collective voice for all Victorian retirement village residents and carry out a range of functions including but not limited to the provision of information and support to retirement village residents, educational presentations and policy advocacy as follows: 2.2 Provide information and support to its members. (a) The provision of general information concerning retirement village matters (b) Referral to legal/support services in cases where residents are in dispute with a retirement village operator or other resident (c) The provision of information concerning the development and/or operation of a retirement village residents committee 2.3 Educate its members and the broader community of the issues affecting retirement village residents, (a) Talks and presentations to retirement village residents, community organisations and other relevant groups. 2.4 Contribute to policy debate and to advocate on behalf of the community village residents. of retirement (a) Facilitate a collective voice on issues, needs and problems regarding retirement village residents. This would involve liaison with relevant government departments at both State and Federal level, local councils and relevant peak organisations. 2.5 Promote interaction between retirement village residents throughout Victoria. (a) Organise social events and gatherings. 2.6 The Association may choose to be involved in the settlement of disputes and in an advocacy role on behalf of its Members. 2.7 Promote diversity and equal representation. (a)Provide balanced representation for all residents regardless of their gender, socioeconomic status, culture, religion, geographic location or disadvantage. (b)Promote diversity in representation. (c)Ensure all residents have equal access and participation regardless of personal circumstances or residential location. 3. Powers 3.1 The Association shall have all the powers conferred by Section 16 of the Associations Incorporation Act 1981. 3.2 The assets and income of the organisation shall be applied solely in furtherance of its abovementioned purpose and no portion shall be distributed directly or indirectly to the members of the organisation except as bona fide compensation for services rendered or expenses incurred on behalf of the organisation. 23 3.3 These Rules and the statement of purposes of the Association must not be altered except in accordance with the Act. 4. Membership 4.1(a) “Individual Member” a person who is a resident of a Retirement Village in the State of Victoria, who is eligible to apply and has been accepted by the Association to have been admitted as an Individual Member upon payment of a membership fee to the Association, of the prescribed subscription as set out in the Schedule of Fees. 4.1(b) “Honorary Life Member” a member who has rendered long or conspicuously outstanding service to the Association 4.1(c) “Life Member” a member who has contributed $100.00, or greater, for a Single Member or $150, or greater, for a Couple, to the Association. 4.1(d) “Associate Member” a person who is in the process of entering a Retirement Village (without voting rights), 4.1(e) “Village Full Group Membership” where a Village pays annually in a lump sum using an amount per occupied Unit/residence set by the Committee and lists all residents and unoccupied units. 4.2 The person must not be an owner, operator or manager of any retirement village nor shall they be a “close associate” as defined in the Retirement Villages (Amendment) Act 2005, of anyone in these positions 4.3 The person who applies for membership and agrees to obey the Rules of the Association and accepts the Purpose of the Association is eligible to be a member of the Association on payment of the membership fee. 4.4 An application of a person for membership of the Association must(a) be made in writing on the Association’s application for membership form and (b) be lodged with the Secretary of the Association. 4.5 As soon as practicable after the receipt of an application, the Secretary must refer the application to the committee. 4.6 The committee must determine whether to approve or reject the application. 4.7 If the committee approves an application for membership, the Secretary must, as soon as practicable(a) notify the applicant in writing of the approval for membership; and (b) request payment within 28 days after receipt of the notification of the sum payable under the Rules as the first year's annual subscription. 4.8 The Secretary must, within 28 days after receipt of the annual subscription enter the applicant's name in the register of members. 4.9 An applicant for membership becomes a member and is entitled to exercise the rights of membership when his or her name is entered in the register of members. 4.10 If the committee rejects an application, the committee must, as soon as practicable, notify the applicant in writing that the application has been rejected. 24 4.11 A right, privilege, or obligation of a person by reason of membership of the Association(a) is not capable of being transferred or transmitted to another person; and (b) terminates upon the cessation of membership whether by death or resignation or otherwise. 4.12 The annual subscription is the relevant amount set out in the Association’s Schedule of Fees and is payable in advance on or before 1 July in each year. 5. Register of Members 5.1 The Secretary must keep and maintain a register of members containing(a) the name and address of each member; and (b) the date on which each member’s name was entered in the register. 5.2 Members have the right to access their own personal information held by the Association, free of charge, to ensure that it is up-to-date and accurate. 6. Members’ Liability The members of the Association shall have no liability to contribute towards payments of debts and liabilities of the Association or the costs, charges and expenses of winding up the Association, except to the extent of any of their own unpaid membership fees. 7. Ceasing Membership 7.1 A member of the Association who has paid all moneys due and payable by a member to the Association may resign from the Association by giving one month's notice in writing to the Secretary of his or her intention to resign. 7.2 After the expiry of the period referred to in sub-rule 7.1 the member ceases to be a member. 7.3 After six months from the due date without payment of annual subscription the member ceases to be a member. 7.4 The secretary must record in the register of members the date on which the member ceased to be a member. 8. Discipline, Suspension and Expulsion of members 8.1 Subject to this Constitution, if the committee is of the opinion that a member has refused or neglected to comply with this Constitution, or has been guilty of conduct unbecoming a member or prejudicial to the interests of the Association, the committee may by resolution: (a) suspend that member from membership of the Association for a specified period; or (b) expel that member from the Association. 8.2 A resolution of the committee under sub-rule 8.1 does not take effect unless: (a) at a meeting held in accordance with sub-rule 8.3, the committee confirms the resolution; and (b) if the member exercises a right of appeal to the Association under this rule, the Association confirms the resolution in accordance with this rule. 8.3 A meeting of the committee to confirm or revoke a resolution passed under sub-rule 8.1 must be 25 held not earlier than 14 days, and not later than 28 days, after notice has been given to the member in accordance with sub-rule 8.4 8.4 For the purposes of giving notice in accordance with sub-rule 8.3, the Secretary must, as soon as practicable, cause to be given to the member a written notice(a)setting out the resolution of the committee and the grounds on which it is based; and (b) stating that the member, or his or her representative, may address the committee at a meeting to be held not earlier than 14 days and not later than 28 days after the notice has been given to that member; and (c)stating the date, place and time of that meeting; and (d) informing the member that he or she may do one or both of the following(i) attend that meeting; (ii) give to the committee before the date of that meeting a written statement seeking the revocation of the resolution; (e) informing the member that, if at that meeting, the committee confirms the resolution, he or she may, not later than 48 hours after that meeting, give the Secretary a notice to the effect that he or she wishes to appeal to the Association in general meeting against the resolution. 8.5 At a meeting of the committee to confirm or revoke a resolution passed under sub-rule 8.1, the committee must(a)give the member, or his or her representative, an opportunity to be heard; and (b) give due consideration to any written statement submitted by the member; and (c)determine by resolution whether to confirm or to revoke the resolution. 8.6 If at the meeting of the committee, the committee confirms the resolution, the member may, not later than 48 hours after that meeting, give the Secretary a notice to the effect that he or she wishes to appeal to the Association in general meeting against the resolution. 8.7 If the Secretary receives a notice under sub-rule 8.6, he or she must notify the committee and the committee must convene a general meeting of the Association to be held within 21 days after the date on which the Secretary received the notice. 8.8 At a general meeting of the Association convened under sub-rule 8.7(a) no business other than the question of the appeal may be conducted; and (b) the committee may place before the meeting details of the grounds for the resolution and the reasons for the passing of the resolution; and (c) the member, or his or her representative, must be given an opportunity to be heard; and (d) the members present must vote by secret ballot on the question whether the resolution should be confirmed or revoked. 8.9 A resolution is confirmed if, at the general meeting, not less than two-thirds of the members vote in person, or by proxy, in favour of the resolution. In any other case, the resolution is revoked. 9. Disputes and mediation 9.1 The grievance procedure set out in this rule applies to disputes under these Rules between26 (a) a member and another member; or (b) a member and the Association. 9.2 The parties to the dispute must meet and discuss the matter in dispute, and, if possible, resolve the dispute within 14 days after the dispute comes to the attention of all of the parties. 9.3 If the parties are unable to resolve the dispute at the meeting, or if a party fails to attend that meeting, then the parties must, within 10 days, hold a meeting in the presence of a mediator. 9.4 The mediator must be(a) a person chosen by agreement between the parties; or (b) in the absence of agreement(i) in the case of a dispute between a member and another member, a person appointed by the committee of the Association; or (ii) in the case of a dispute between a member and the Association, a person who is a mediator appointed or employed by the Dispute Settlement Centre of Victoria (Department of Justice). 9.5 A member of the Association can be a mediator. 9.6 The mediator cannot be a member who is a party to the dispute. 9.7 The parties to the dispute must, in good faith, attempt to settle the dispute by mediation. 9.8 The mediator, in conducting the mediation, must-(a) give the parties to the mediation process every opportunity to be heard; and (b) allow due consideration by all parties of any written statement submitted by any party; and (c) ensure that natural justice is accorded to the parties to the dispute throughout the mediation process. 9.9 The mediator must not determine the dispute. 9.10 If the mediation process does not result in the dispute being resolved, the parties may seek to resolve the dispute in accordance with the Retirement Villages (Amendment) Act 2005, the Associations Incorporations Act 1981 or otherwise at law. 10. Annual general meetings 10.1 The committee may determine the date, time and place of the annual general meeting of the Association. 10.2 The notice convening the annual general meeting must specify that the meeting is an annual general meeting. 10.3 The ordinary business of the annual general meeting shall be(a) to confirm the minutes of the previous annual general meeting and of any general meeting held since that meeting; and (b) to receive from the committee reports upon the transactions of the Association 27 during the last preceding financial year; and (c) to elect officers of the Association and the ordinary members of the committee; and (d) to receive and consider the statement submitted by the Association in accordance with section 30(3) of the Associations Incorporation Act 1981 which deals with General Meetings and accounts. 10.4 The annual general meeting may conduct any special business of which notice has been given in accordance with this Constitution. 11. Special general meetings 11.1 In addition to the annual general meeting, any other general meetings may be held in the same year. 11.2 All general meetings other than the annual general meeting are special general meetings. 11.3 The committee may, whenever it thinks fit, convene a special general meeting of the Association. 11.4 If, but for this sub-rule, more than 15 months would elapse between annual general meetings, the committee must convene a special general meeting before the expiration of that period. 11.5 The committee must, on the request in writing of members representing not less than 5 per cent of the total number of members, convene a special general meeting of the Association. 11.6 The request for a special general meeting must-(a) state the objects of the meeting; and (b) be signed by the members requesting the meeting; and (c) be sent to the address of the Secretary. 11.7 If the committee does not cause a special general meeting to be held within one month after the date on which the request is sent to the address of the Secretary, the members making the request, or any of them, may convene a special general meeting to be held not later than 3 months after that date. 11.8 If a special general meeting is convened by members in accordance with this rule, it must be convened in the same manner so far as possible as a meeting convened by the committee 12. Special business All business that is conducted at a special general meeting and all business that is conducted at the annual general meeting, except for business conducted under the rules as ordinary business of the annual general meeting, is deemed to be special business. 13. Notice of general meetings 13.1 The Secretary of the Association, at least 14 days, or if a special resolution has been proposed at least 21 days, before the date fixed for holding a general meeting of the Association, must cause to be sent to each member of the Association, a notice stating the place, date and time of the meeting and the nature of the business to be conducted at the meeting. 13.2 Notice may be sent-(a) by prepaid post to the address appearing in the register of members; or 28 (b) if the member requests, by facsimile transmission or electronic transmission. 13.3 No business other than that set out in the notice convening the meeting may be conducted at the meeting. 13.4 A member intending to bring any business before a meeting may notify in writing, or by electronic transmission, the Secretary of that business, who must include that business in the notice calling the next general meeting. 14. Quorum at general meetings 14.1 No item of business may be conducted at a general meeting unless a quorum of members entitled under this Constitution to vote is present at the time when the meeting is considering that item. 14.2 Five members personally present (being members entitled under this Constitution to vote at a general meeting) constitute a quorum for the conduct of the business of a general meeting. 14.3 If, within half an hour after the appointed time for the commencement of a general meeting, a quorum is not present(i) in the case of a meeting convened upon the request of members--the meeting must be dissolved; and (ii) in any other case the meeting shall stand adjourned to the same day in the next week at the same time and (unless another place is specified by the Chairperson at the time of the adjournment or by written notice to members given before the day to which the meeting is adjourned) at the same place. 14.4 If at the adjourned meeting the quorum is not present within half an hour after the time appointed for the commencement of the meeting, the members personally present (being not less than 3) shall be a quorum. 15. Presiding at general meetings 15.1 No other person other than an elected member of the Association’s committee can preside at general meetings. 15.2 The President, or in the President's absence, the Vice-President, shall preside as Chairperson at each general meeting of the Association. 15.3 If the President and the Vice-President are absent from a general meeting, or are unable to preside, the members present must select one of their number to preside as Chairperson. 16. Adjournment of meetings 16.1 The person presiding may, with the consent of a majority of members present at the meeting, adjourn the meeting from time to time and place to place. 16.2 No business may be conducted at an adjourned meeting other than the unfinished business from the meeting that was adjourned. 16.3 If a meeting is adjourned for 14 days or more, notice of the adjourned meeting must be given in accordance with rule 13.4 Except as provided in sub-rule 13.3, it is not necessary to give notice of an adjournment or of the business to be conducted at an adjourned meeting. 29 17. Voting at general meetings 17.1 Upon any question arising at a general meeting of the Association, a member has one vote only. 17.2 All votes must be given personally or by proxy. 17.3 In the case of an equality of voting on a question, the Chairperson of the meeting is entitled to exercise a second or casting vote. 17.4 A member is not entitled to vote at a general meeting unless all moneys due and payable by the member to the Association have been paid, other than the amount of the annual subscription payable in respect of the current financial year. 18. Poll at general meetings 18.1 If at a meeting a poll on any question is demanded by not less than 3 members, it must be taken at that meeting in such manner as the Chairperson may direct and the resolution of the poll shall be deemed to be a resolution of the meeting on that question. 18.2 A poll that is demanded on the election of a Chairperson or on a question of an adjournment must be taken immediately and a poll that is demanded on any other question must be taken at such time before the close of the meeting as the Chairperson may direct. 19. Manner of determining whether resolution carried If a question arising at a general meeting of the Association is determined on a show of hands(a) a declaration by the Chairperson that a resolution has been(i) carried; or (ii) carried unanimously; or (iii) carried by a particular majority; or (iv) lost; and (b) an entry to that effect in the meeting minutes of the Association-is evidence of the fact, without proof of the number or proportion of the votes recorded in favour of, or against, that resolution. 20. Proxies 20.1 Each member is entitled to appoint another member as a proxy by notice given to the Secretary no later than 24 hours before the time of the meeting in respect of which the proxy is appointed. 20.2 Section 38C of the Retirement Village (Amendment) Act 2005 applies. 20.3 The proxy must be appointed as set out on the RRVV General Meeting Proxy Form as at Appendix A. 21. Committee of Management 21.1 The affairs of the Association shall be managed by the committee of management. 21.2 The committee-(a) shall control and manage the business and affairs of the Association; and (b) may, subject to this Constitution, the Rules of the Association, the Associations 30 Incorporations Act (1981) and the Regulations, exercise all such powers and functions as may be exercised by the Association other than those powers and functions that are required by these Rules to be exercised by general meetings of the members of the Association; and (c) subject to this Constitution, the Rules of the Association, Associations Incorporation Act (1981) and the Regulations, has power to perform all such acts and things as appear to the committee to be essential for the proper management of the business and affairs of the Association 21.3 Subject to section 23 of the Associations Incorporation Act (1981), the committee shall consist of-(a) the officers of the Association; and (b) six ordinary members each of whom shall be elected at the annual general meeting of the Association in each year. 22. Office holders 22.1 The officers of the Association shall be-(a) (b) (c) (d) President; Vice-President; Treasurer; and Secretary. 22.2 The provisions of rule 24, so far as they are applicable and with the necessary modifications, apply to and in relation to the election of persons to any of the offices referred to in sub-rule (1). 22.3 From the 2008 election of officers of the Association two officers shall hold office until 2009 annual general meeting and two shall hold office until 2010 annual general meeting. Subsequently from 2009 two officers shall be elected each year to allow rotation of officers. All officers are eligible for re-election. 22.4 In the event of a casual vacancy in any office referred to in sub-rule 22.1 the member appointed may continue in office up to annual general meeting at which the former member’s tenure would have expired. 23. Ordinary members of the committee 23.1 From the 2008 election of ordinary members of the Association three ordinary members shall hold office until 2009 annual general meeting and three shall hold office until 2010 annual general meeting. Subsequently three ordinary members shall be elected each year to allow rotation of ordinary members. All members are eligible for re-election. 23.2 In the event of a casual vacancy occurring in the office of an ordinary member of the committee, the committee may appoint a member of the Association to fill the vacancy and the member appointed shall hold office subject to these Rules, until the expiry of the term that the outgoing member had been elected. 24. Election of officers and ordinary committee members 24.1 Nominations of candidates for election as officers of the Association or as ordinary members of the committee must be— (a) nominate for a period of two years with five members resigning each year, still eligible for re-election, with five members remaining for the following twelve months. Subsequent elections will 31 elect five members at each annual general meeting. (b) nominate in writing, signed by two members of the Association and accompanied by the written consent of the candidate (which may be endorsed on the form of nomination); and (c) deliver to the Secretary of the Association by the date requested in election process documents forwarded to all members. 24.2 A candidate may only be nominated for one office, or as an ordinary member of the committee, prior to the annual general meeting. 24.3 If insufficient nominations are received to fill all vacancies on the committee, the candidates nominated shall be deemed to be elected and further nominations may be received at the annual general meeting. 24.4 If the number of nominations received is equal to the number of vacancies to be filled, the persons nominated shall be deemed to be elected. 24.5 If the number of nominations exceeds the number of vacancies to be filled, a ballot must be held. 24.6 The ballot for the election of officers and ordinary members of the committee must be conducted by postal vote in such manner as the committee may direct and the results announced at the annual general meeting. 25. Vacancies The office of an officer of the Association, or of an ordinary member of the committee, becomes vacant if the officer or member-(a) ceases to be a member of the Association; or (b) becomes an insolvent under administration within the meaning of the Corporations Law; or (c) resigns from office by notice in writing given to the Secretary. 26. Meetings of the committee 26.1 The committee must meet at least 3 times in each year at such place and such times as the committee may determine. 26.2 Special meetings of the committee may be convened by the President or by a majority of the committee. 26.3 Members of the committee will be elected to convene various sub-committees and to report back progress of such groups. The President and Vice President will be ex-officio members of the sub-committees. 27. Notice of committee meetings 27.1 Written notice of each committee meeting must be given to each member of the committee at least 5 business days before the date of the meeting. 27.2 Written notice must be given to members of the committee of any special meeting specifying the general nature of the business to be conducted and no other business may be conducted at such a meeting. 32 28. Quorum for committee meetings 28.1 Any 5 members of the committee constitute a quorum for the conduct of the business of a meeting of the committee. 28.2 No business may be conducted unless a quorum is present. 28.3 If within half an hour of the time appointed for the meeting a quorum is not present-(i) in the case of a special meeting the meeting lapses; (ii) in any other case the meeting shall stand adjourned to the same place and the same time and day in the following week. 28.4 The committee may act notwithstanding any vacancy on the committee. 29. Presiding at committee meetings At meetings of the committee(a) the President or, in the President's absence, the Vice-President presides; or (b) if the President and the Vice-President are absent, or are unable to preside, the members present must choose one of their number to preside. 30. Voting at committee meetings 30.1 Questions arising at a meeting of the committee, or at a meeting of any sub-committee appointed by the committee, shall be determined on a show of hands or, if a member requests, by a poll taken in such manner as the person presiding at that meeting may determine. 30.2 Each member present at a meeting of the committee, or at a meeting of any sub-committee appointed by the committee (including the person presiding at the meeting), is entitled to one vote and, in the event of an equality of votes on any question, the person presiding may exercise a second or casting vote. 31. Removal of committee member 31.1 The Committee of the Association may remove any member of the committee before the expiration of the member's term of office and appoint another member in his or her place to hold office until the expiration of the term of the first-mentioned member. 31.2 The Committee must follow the Committee Member Removal Process as detailed, and as approved, by the Committee from time to time. 32. Minutes of meetings The Secretary of the Association must keep minutes of the resolutions and proceedings of each general meeting, and each committee meeting, together with a record of the names of persons present at committee meetings. 33. Funds 33.1 The Treasurer of the Association must(a) collect and receive all moneys due to the Association and make all payments authorised by the Association; and (b) keep correct accounts and books showing the financial affairs of the Association with full details of all receipts and expenditure connected with the activities of the Association. 33.2 All cheques, drafts, bills of exchange, promissory notes and other negotiable instruments 33 must be signed by two members of the committee. 33.3 The funds of the Association shall be derived from entrance fees, annual subscriptions, donations and such other sources as the committee determines. 34. Seal 34.1 The common seal of the Association if present must be kept in the custody of the Secretary. 34.2 The common seal must not be affixed to any instrument except by the authority of the committee and the affixing of the common seal must be attested by the signatures either of two members of the committee or, of one member of the committee and of the public officer of the Association. 35. Notice to members Except for the requirement in rule 12, any notice that is required to be given to a member, by on behalf of the Association, under these Rules may be given by(a) delivering the notice to the member personally; or (b) sending it by prepaid post addressed to the member at that member's address shown in the register of members; or (c) facsimile transmission, if the member has requested that the notice be given to him or her in this manner; or (d) electronic transmission, if the member has requested that the notice be given to him or her in this manner. 36. Winding up 36.1 In the event of the winding up or the cancellation of the incorporation of the Association, the assets of the Association must be disposed of in accordance with the provisions of the Act. 36.2 In the event of the organisation being dissolved, the amount that remains after such dissolution and the satisfaction of all debts and liabilities shall be transferred to another organisation with similar purposes which is not carried on for the profit or gain of its individual members. 36.3 Assets will be distributed as directed by the Committee of Management of the Association 37. Custody and inspection of books and records 37.1 Except as otherwise provided in these Rules, the Secretary must keep in his or her custody or under his or her control all books, documents and securities of the Association. 37.2 All accounts, books, securities and any other relevant documents of the Association must be available for inspection free of charge by any member upon request. 37.3 A member may make a copy of any accounts, books, securities and any other relevant documents of the Association. END 34 APPENDIX A FORM OF APPOINTMENT OF PROXY FOR GENERAL MEETINGS OF RESIDENTS of RETIREMENT VILLAGES VICTORIA INC. Registered No. A0048146R I, (name) of Retirement Village being a member of the Association appoint (name of proxy holder) being a member of the Association as my proxy to vote on my behalf at the Annual/Special* General Meeting of the Association to be held on (date of meeting) and at any adjournment of that meeting. I authorise my proxy to vote on my behalf at their discretion in respect of the following resolution: [insert details of resolution if required] Signed Date *delete whichever is not applicable 35 APPENDIX B RRVV SCHEDULE OF FEES Annual Fees as from 1st July 2011 $10.00 per person $15.00 per couple 36