Class B cemetery trust governance

Developing a fraud and protected disclosure policy

All cemetery trusts are required to have a documented fraud and protected disclosure policy. The department has prepared a template Fraud, Corruption Control and Protected Disclosures Framework which is designed to provide organisations with a ‘fill in the blanks’ policy structure that they can adapt for their use.;

See Fraud and protected disclosures for more information.

The Department of Health and Human Services provides governance and operational training to all cemetery trust members and secretaries.

See Governance training for more information

An extensive review of the department’s Manual for Victorian Class B cemetery trusts was undertaken in August 2021. Further amendments have been made and provided in the Manual for Victorian Class B cemetery trusts - April 2022 (Class B manual) has been undertaken resulting in a number of amendments and additions. Please note that Topic 13 ‘Cremation’ and Topic 22 ‘The right of interment’ are currently still under review.

A Summary of amendments (August 2021 and April 2022) - Manual for Victorian Class B cemetery trusts - revised April 2022 has been developed to assist trusts identify where amendments and additions have been made.

The Class B manual helps Class B cemetery trusts to understand and meet their obligations under the Cemeteries and Crematoria Act 2003 (the Act). It has been prepared on a good faith basis by the department in consultation with the Cemeteries and Crematoria Association of Victoria, Victorian Managed Insurance Authority, and the legal services and financial services branches of the department.

The manual is in summary form only, and so does not include a complete discussion of each subject. The information provided in the manual is for general use only and is not intended to constitute formal legal advice or be a definitive guide to the law and operations of a cemetery trust. Therefore, it is not a substitute for professional advice, and does not take the particular needs and circumstances of an organisation into consideration.

If cemetery trusts are unsure or unclear about any information contained in the Class B manual, they should seek appropriate professional advice regarding their own particular circumstances before acting or refraining from acting.

Every effort has been made to ensure the accuracy and completeness of the manual at the date of publication.

Please ensure previous versions (printed and electronic) of the Class B manual currently in your possession are destroyed.

Please note printed copies of the Class B manual are not available.

Under clause 2 of schedule 1 of the Act, the members of a Class B cemetery trust must appoint one of the current members to be the trust’s chairperson.

It is up to the trust to determine the length of a chairperson’s appointment. For example, some trusts like to rotate this role on an annual basis, whereas others appoint their chairperson for five years to tie in with their appointment tenure as a trust member.

At a broad level, the role of the chairperson is to:

• lead the cemetery trust board
• ensure its performance and accountability
• exercise procedural control at trust meetings.

Specific responsibilities of the chairperson will vary depending on the size and complexity of the cemetery trust. The position description for Class B cemetery trust chairpersons provides more detail on the duties and responsibilities of the role.

Although there is no reference in the Act to the position of secretary or trust manager, the cemetery trust may appoint a person to attend to routine business matters and to perform those powers and duties delegated by the trust.

Depending on the size and operations of the trust, the role of secretary/manager may be paid or voluntary. Where the secretary holds a paid position, the trust should ensure a job description is created. The department has developed a job description for trust secretaries that trusts may use if they wish.

The powers and duties delegated by the trust include:

• the day-to-day administration of and liaison in regards to the cemetery
• administration of the trust
• general statutory obligations
• financial management
• assisting with funeral arrangements, memorial approvals, and investigations and complaints management.

Any payment made to the secretary should be commensurate with the duties of the position. Information about appropriate pay and working conditions can be found at the Fair Work Ombudsman website.

Note that trust members may be appointed to the role of trust secretary, however, they must not receive any payment for this role other than reimbursement of expenses as approved by the trust.

The trust secretary may be responsible for providing administrative support to the trust, such as taking trust meeting minutes and circulating papers.

Under the direction of the chairperson, the trust secretary’s duties may include:

• facilitating induction of new trust members
• ensuring effective information flows within the trust
• advising members on the legal obligations of members and of the trust
• carrying out the instructions of the board, assisting in implementing corporate strategies and giving practical effect to the board's decisions
• undertaking a range of operational functions related to the cemetery services provided by the trust such as sale of rights of interment and memorials, taking interment/funeral bookings, and attending interment services as the trust’s delegate to check and receive documentation.

The duties of the trust secretary are to exercise care and diligence, act in good faith, and use powers for a proper purpose. The secretary may not use inside information gained through their position for their own benefit or to the detriment of the trust.

Information regarding governance relating to trust members as board members is available from the Victorian Public Sector Commission (VPSC) website.

A cemetery trust member is appointed under s. 6 of the Act by the Governor in Council on the recommendation of the Minister for Health.

Cemetery trust members comprise the cemetery trust board. As a cemetery trust is incorporated, the responsibilities of a cemetery trust member can be likened to those of a company director, such as:

• Acting diligently and prudently in regard to the business of the incorporated entity. The members of a cemetery trust have legal obligations and duties under common law and under the constituting legislation, being the Act and the Cemeteries and Crematoria Regulations 2015, as well as under the Public Administration Act 2004 and all other relevant state and federal legislation. Trust members may wish to seek independent legal advice concerning their responsibilities and potential personal liabilities.
• Disclosing conflicts of interest. Trust members are required to disclose pecuniary interests, or any other interests, which could conflict with the proper performance of their duties.
• Keeping and rendering proper accounts and giving full information when required. This includes meeting the applicable compliance and reporting requirements of both state and federal legislation.

The position description for Class B cemetery trust members provides more detail on the duties and responsibilities of the role.

Current government policy recommends that public entities such as cemetery trusts should be representative of the communities they serve. Opportunities to appoint women, Indigenous Australians, people with a disability, people from culturally and linguistically diverse backgrounds and lesbian, gay, bisexual, trans, gender diverse and intersex people should be actively explored.

A cemetery trust is expected to administer the cemeteries for which it is responsible in an equitable manner for the benefit of the whole community. When someone completes an Application for appointment to a Class B cemetery trust they are required to declare that they agree to the application terms in the Class B cemetery trust applicant guidelines which state:

• Applicants who foresee a potential conflict of interest relating to their appointment as a trust member due to their employment or personal interests must advise the trust in writing at the time the application is made.
• If the applicant’s circumstances or interests change after the application has been submitted and the change may pose a potential conflict of interest, the applicant must advise the trust and the department in writing as soon as practicable.

There may still be unforeseen circumstances where a trust member may have a conflict of interest. Where a trust member has a personal interest in the outcome of a decision it is difficult, if not impossible, for them to be objective in discussion and decision making.

Under clause 9 of schedule 1 of the Act, trust members are required to disclose any interest that could conflict with the proper performance of their duties. The chairperson must ensure this disclosure is recorded in the minutes of the meeting that the conflict is disclosed. A trust member who has disclosed a conflict of interest must not take any further part in the discussion of or vote on any matter relating to the conflict of interest.

In addition, the Public Administration Act 2004 requires that members disclose any pecuniary interests or other interests that could conflict with the proper performance of their duties, and details certain procedures to be followed where disclosures occur. It is important to bear in mind that over time a person’s circumstances may change, and a person who did not have a conflict of interest 5 years ago may have one now.

See the Conflicts of interest and duty for directors of public entities practice guide published by the VPSC for more information.

There is an expectation that cemetery trust members will act in good faith, fair and impartially, with honesty and integrity, and in the best interests of the trust and their community. As members of a public entity, trust members:

• are subject to the public sector values outlined in s. 7 of the Public Administration Act 2004, which include responsiveness, integrity, impartiality, accountability, respect and leadership
• must comply with the Victorian Charter of Human Rights and Responsibilities
• must comply with the Code of Conduct for Directors of Victorian Public Entities issued by the VPSC.

More information about the duties and responsibilities of boards and board directors is available on the VPSC website.

In carrying out a function or power under the Act, a member of a cemetery trust is not personally liable for anything they do or omit to do in good faith. In such instances, liabilities that would result from the actions of individual trust members attach instead to the cemetery trust (refer to s. 16 of the Act).

Where a trust member has retired, changed their contact details or passed away, the chairperson of the trust should take steps to ensure the department is advised as soon as is practicable. The updated information will ensure that the department’s database is maintained accurately and trust members can be contacted as required.

Under clause 3(1) of schedule 1A of the Act, a trust member may resign from their position by means of a letter of resignation addressed to the Minister for Health, and delivered to the department. A template resignation form is available.

The Premier's Circular No 2015/02 on good board governance introduced a requirement for trust chairpersons to maintain a skills matrix. A skills matrix lists all current trust members and identifies the different skills each member brings to the trust. The skills matrix is designed to assist with the recruitment process to fill vacancies by highlighting existing skill gaps.

All chairpersons are expected to keep a copy of the skills matrix on file and keep the document updated as trust membership changes. The skills matrix template can be printed and filled out by hand, or downloaded and completed online.

Under clause 3(2) of schedule 1 of the Act, the Governor in Council may, at any time, remove from office a trust member on the recommendation of the Minister for Health. This would only occur in exceptional circumstances.

Under clause 5(1) of schedule 1 of the Act, a member of a Class B cemetery trust, other than a member who is an employee of the public service, is entitled to receive travelling and other allowances from time to time fixed by the Minister in respect of that member. Pursuant to clause 5(2) of schedule 1 of the Act, the travelling and other allowances payable to a member of a cemetery trust are to be paid from the funds of that trust.

Claims for expenses must be reasonable and necessary. An expense is deemed necessary if it is unavoidably incurred in the course of authorised work. Expenses can only be paid upon presentation of receipts and these must be endorsed by the chairperson of the trust. Where a chairperson claims expenses, receipts must be endorsed by an authorised trust member.

The travelling and other allowances incurred in accordance with the below fee structure are payable up to a maximum of $4,000 per annum:

• travelling expenses: up to $2,000
• postage and administrative expenses: up to $2,000.

Section 15 of the Act provides for a trust to delegate its powers and functions under the Act to authorised officers.

Section 15(1) sets out the powers the trust cannot delegate. This includes the power to:

• make cemetery rules
• establish a crematorium
• fix fees
• delegate.

It is important to note that, while the trust may delegate powers, duties and authority, it cannot delegate the trust’s responsibility. This means the trust continues to be accountable for the exercise of its powers and functions, including the actions of its delegates.

Delegations should be made formally by the cemetery trust at a trust meeting. The delegation of powers and duties must be in writing and recorded in the minutes of the relevant trust meeting. The chairperson of the cemetery trust must sign an instrument of delegation on behalf of the cemetery trust.

The department recommends and encourages Class B cemetery trusts to keep a record of the types and frequency of information they request from Class A cemetery trusts and the advice or assistance provided. A record-keeping template for recording advice or assistance from Class A trusts is available for download.

Trusts do not have the power under the Act to waive the gazetted fee for a right of burial for fellow trust members or former trust members. If you have any queries about this matter, please contact the department.