Conflict of Interest Policy

Introduction

Brandkind Ltd (Company) is committed to maintaining the highest level of ethical standards in all its dealings and places great importance on protecting the integrity of its decision making processes.
It is the policy of the Company, as well as the responsibility of the Directors, that ethical, legal, financial or other conflicts of interest be avoided and that any such conflicts (where they do arise) do not conflict with the obligations to the Company.
Identifying and dealing with conflicts of interest is an integral part of establishing an ethical culture at the Company and the Company recognises that individuals hold a range of legitimate interests outside the immediate workplace and board environment.
According to the Company’s constitution (Constitution), the objects for which the Company is established are to support Social Enterprises to create and amplify their positive social impact within the community by harnessing the collective branding and marketing skills and resources of a community of highly skilled professionals and, for that purpose, to:
1. deliver pro-bono, low-bono and affordable branding and marketing services to Social Enterprises to support them to achieve sustainable growth and thereby increase their impact;
2. establish relationships between branding and marketing specialists and Social Enterprises to allow for collaborative and sustainable growth of the Social Enterprises;
3. develop training programs for brand and marketing teams within Social Enterprises in order to equip them with the skills to amplify their social impact;
4. facilitate mentoring between the Company and refugees, youth and women interested in the marketing and branding space to build their skills and capacity in this area;
5. raise awareness and understanding of Social Enterprise including by increasing the presence, credibility and profile of Social Enterprise;
6. undertake research into the impact of branding for Social Enterprises in order to encourage more Social Enterprises to utilise the Company’s services to further amplify their impact;
7. educate the Social Enterprise sector more broadly on the value of branding via workshops and masterclasses and become a thought leader and branding specialist in the Social Enterprise space;
8. build a community of branding and marketing specialist volunteers and consultants to provide branding and marketing services and deliver expertise to Social Enterprises;
9. develop partnerships or associations with other organisations, community groups and businesses with aligned objects in order to extend the reach of the Company’s activities;
10. raise funds and seek donations of goods and services from the public and volunteers to support the overall objects of the Company; and
11. do all things that are incidental or ancillary to the attainment of the above objects, (Objects).
As a registered charity, the Company is required to pursue its charitable purposes only and must apply its income in promoting those purposes.
This Conflicts of Interest Policy (Conflicts Policy) is to be read in conjunction with other Company policies and requirements including, for Directors, the ACNC Governance Standards, particularly Governance Standard 5.
Terms defined in the Company Constitution have the same meaning in this Conflicts Policy.

Purpose

The purpose of this Conflicts Policy is to:

help Directors and Company Persons effectively identify any actual, potential or perceived conflicts of interest affecting the Company;
explain the process for disclosing any actual, potential or perceived conflicts of interest affecting the Company;
provide guidance to those responsible for dealing with conflicts of interest; and
assist in the management of any conflicts of interest to protect the integrity of the decision making processes of the Company.

Who is covered by this policy?

Application of this Conflicts Policy

This Conflicts Policy applies to all:

Directors of the Company (Directors); and
employees, committee members, secondees, contractors, trainees, interns and work experience students and volunteers of the Company (Company Persons).

Complying with this Conflicts Policy

All Directors and Company Persons are required to comply with this Conflicts Policy.

What is a conflict of interest?

Two types of conflict of interest

There are two primary types of conflict of interests relevant to Directors and Company Persons, namely a:
1. conflict of personal interest; and
2. conflict of roles.
These conflicts are not mutually exclusive – depending on the circumstances, some conflicts can be both a conflict of personal interest and a conflict of roles.
These situations present the risk that a person will make a decision based on, or affected by, these influences, rather than in the best interests of the Company. Therefore these situations must be identified and managed accordingly.

Conflict of personal interest

A conflict of personal interest occurs where a Director’s or Company Person’s personal interests (financial or otherwise) influence, or could be seen to influence, their judgement or objectivity in performing their duties and acting in the best interests of the Company.
Personal interests include the Director’s or Company Person’s direct interests, as well as those of family (eg, a spouse, domestic partner, parent, grandparent, child, brother, sister, spouse of a child, spouse of a brother, or spouse of a sister), friends or other organisations with which that person may be involved or in whom that person has an interest (Associated Entities).
Examples of where personal conflicts of interest may arise include in the following situations:
1. personal and family relationships of Directors and Company Persons where a perception of unfair advantage could arise such as:
  1. dealings or arrangements between two Directors who are joined by a special relationship (for example family members, business affiliates) agreeing to vote on a Board decision to benefit one or both of them;
  2. the Company needs to purchase goods or services and a Company Person purchases goods or services from an Associated Entity of that person without any other quotes being asked for;
  3. an Associated Entity is prioritised to receive the services provided by the Company (for example a Director’s or Company Person’s child is prioritised to receive the Company’s support or services over another child);
  4. an Associated Entity of a Director bids for a Board-controlled contract and is successful, even though it’s not the most competitive bid; and
  5. a Company Person gives a job to an Associated Entity of that person, despite the Associated Entity not going through an open and competitive employment process and without excusing themselves from the selection process;
2. use of the Company’s facilities and equipment for personal or third party interests; and
3. receipt of gifts or benefits of more than nominal value from third parties.

Conflict of roles

Conflict of roles is a situation in which a Director or Company Person fulfils another role in addition to their role as a Director or Company Person, where the two roles may be in actual, potential or perceived conflict with each other to some degree.
In these circumstances the Director or Company Person may be wearing ‘two hats’ so as to cause the person to feel torn, potentially feel torn or be perceived to be torn, between their duty to the Company and their duty to another organisation.
Examples of where conflicts of roles may arise include situations where a secondary employment, contracting or directorship engagement is at odds with fulfilment of the Director’s or Company Person’s duties to the Company, such as:
1. arrangements where the Company’s information may be relevant to a third party to which a Director or Company Person owes a duty;
2. a Director is a senior executive or director of an entity or organisation which is funded by the Company;
3. a Director is a senior executive or director of an entity or organisation which is funding the Company or is in a separate commercial relationship with the Company;
4. a Company Person has a second job which competes with the interests of the Company;
5. a Director is a senior executive or director of another entity or organisation with access to information which may adversely impact on the Company; and
6. a Director or Company Person has secondary employment or directorship and, in undertaking their role they are expected to help raise funds for both organisations and approach the same people or organisations for donations for the two different groups.

Actual, potential or perceived conflicts

Either type of conflict of interest may arise:

if the conflict is:
1. an actual conflict of interest – you are being influenced by a conflicting interest;
2. a potential conflict of interest – you could be influenced by a conflicting interest; or
3. a perceived conflict of interest – you could appear to be influenced by a conflicting interest; and
regardless of whether any financial benefit to the Director, Company Person, or another person is involved.

The impartial observer test

In assessing whether a conflict exists, a Director and/or Company Person should consider whether, on an objective basis (ie in the view of a reasonable person), their personal interests or other roles would influence, could influence, or appear to influence their decisions or actions as a Director and/or Company Person.

Disclosure

Disclosure of conflicts by Directors

The Director must disclose the matter to the Chairperson as soon as he or she becomes aware of his or her actual, potential or perceived conflict (whether he or she becomes aware on or before receipt of any relevant board papers). Early disclosure allows board papers relevant to the matter the subject of the conflict to be withheld from that Director if appropriate.
Once an actual, potential or perceived conflict of interest is identified, the Chairperson must:
1. if the disclosure is in writing between Directors’ meetings, disseminate the communication to the Board; and
2. if the disclosure is made orally at a Directors’ meeting, ensure that such disclosure is included in the minutes of the Directors’ meeting.
Notice of a material conflict of interest should be given in a full, frank and formal manner and be sufficiently detailed for the Board to understand the nature and extent of the interest and to contribute to an informed decision by the Board in the best interests of the Company.
A reasonable opportunity should be provided to the other Directors to ask the disclosing Director any questions they may have about the nature and extent of the disclosing Director’s relevant competing interest or role.
Where a conflict may exist in relation to the Chairperson, the Chairperson is to notify the Board as soon as he or she becomes aware that they may have an actual or potential conflict of interest.
In the case of all conflicts of interest, the Director must give standing notice of the interest.
Where every other Director shares a conflict of interest, the Board should refer to ACNC Governance Standard 5 to ensure that proper disclosure occurs, and in doing so, the Board may do any one or more of the following:

if suitable and possible, appoint Alternate Directors in accordance with the Constitution;
establish or designate any decisions to an independent Company committee; and/or
engage a legal advisor.

Disclosure of conflicts by Company Persons

In respect of any Company Person, if the Company Person believes or suspects that an actual, potential or perceived conflict of interest has arisen or may arise in the future, the Company Person must disclose the matter:
1. if the Company Person is a member of a Board committee, to the Chairperson; or
2. for all other Company Persons, the Founder (or where there is a concern in disclosing to the Founder, the Board Members),

as soon as possible.

Notice of a conflict of interest should be given in a full, frank and formal manner and be sufficiently detailed for the Founder (or Board Members) to understand the nature and extent of the interest and to contribute to an informed decision by the Founder (or Board Members) in the best interests of the Company.

Managing Conflicts of Interest – Directors

Evaluating and dealing with conflicts

Once a conflict of interest has been identified the Board should evaluate the conflict and determine whether the consequences of the conflict are potentially material.
For all material conflicts of interest, the Board will also determine whether the conflict is manageable and, if so, what arrangements need to be put in place to mitigate the risk of adverse consequences resulting from that conflict.
The approval of any action requires the agreement of at least a majority of the Board (excluding any conflicted Director(s)) who are present and voting at the meeting.
The action and result of the voting will be recorded in the Board’s minutes of the meeting and in the register of interests.

Manageable conflicts

A manageable conflict is a conflict which, in the reasonable opinion of the Board:

is unlikely to have any material adverse consequence for the Company; or
may be managed through arrangements to ensure that the conflict does not have such consequences.

If the Board determines a conflict to be manageable, the relevant transaction or decision may be executed, situation allowed to exist, or other action taken only if any tasks prescribed by the Board to prevent material adverse consequences to the Company have been carried out or arrangements have been put in place to ensure that they will be carried out.

Unmanageable conflicts

An unmanageable conflict is a conflict which, in the reasonable opinion of the Board, is likely to have a material adverse consequence for the Company and the Board considers it is not appropriate, practical or otherwise in the interests of the Company to put in place arrangements to manage that conflict.

Deciding whether a Director may be present and vote

Once the conflict of interest has been appropriately disclosed, the Board (excluding the Director who made the disclosure, as well as any other conflicted Director) must decide whether or not the conflicted Director(s):
- should be permitted to be present at and/or vote in relation to the matter in which that Director has a competing interest or role; and
- participate in any debate.

In making its decision as to whether the conflicted Director(s) can be present and vote, present and not vote or neither present nor vote, the Directors should always act in accordance with what they consider to be the best interests of the Company and should ensure that perceptions of conflicts of interest, as well as actual and potential conflicts, are avoided.

Board papers

A Director who is aware that he or she has a conflicting personal interest or conflict of roles that requires disclosure should decline to receive or review copies of Board minutes or other Board papers relating to the relevant matter and also papers of relevant committees, until the Board has had the opportunity to consider the conflict issue.
If the Chairperson is aware that a Director has a conflicting personal interest or conflict of roles, it is better practice not to issue relevant parts of Board papers to such a Director until the Board has considered the conflict issue.

Deciding whether a Director should resign

In some circumstances, disclosure of a conflict and/or not voting will be insufficient to satisfy a Director’s duty to appropriately manage conflicts of interest. In such cases, the Director may be under a positive duty to take additional steps to remove the conflict of interest, including (if necessary) resignation. The action required will depend on matters such as the nature and extent of the conflict.
Where ongoing competing duties become irreconcilable, the Director must consider his or her position. Too substantial or too frequent a declaration of conflicts raises the issue of whether the Director concerned should properly remain as a Director and should consider resigning.

Monitoring Conflicts

The Board must enter all conflicts of interest into the Board’s Conflict Register using this form
Directors should be aware that merely disclosing a conflict of interest and/or abstaining from voting does not give the Director a ‘free pass’ to continue to be involved in the matter involving the conflict for the Company, uninhibited by the conflict. In particular, the Director will continue to have a duty to act in the best interests of the Company at all times in relation to the matter.
Without limitation to the other measures and obligations set out in this document, the Board should also consider:
- including ‘disclosure of conflicts’ as a standing item on the agenda for Board meetings;
- recording any declared conflict in the Board minutes of meeting; and
- periodically circulating conflict of interest declaration forms to Directors.

Managing Conflicts of Interest – Company Persons

If a Company Person discloses an actual, potential or perceived conflict of interest to their Founder (or Chairperson), the Founder (or Chairperson) must:

review and consider the circumstances of the matter and determine whether the matter constitutes a conflict of interest;
if the Founder (or Chairperson) has determined that a conflict of interest exists, determine what actions need to be taken to manage the conflict; and
communicate their decision, including any actions which need to be taken, to the Company Person who has disclosed the conflict.

Gifts and ancillary benefits

Directors and Company Persons who receive more than a nominal gift or benefit (eg meals or modest hospitality amongst other things) from a third party in connection with their role with the Company may have a conflict of interest. For the purpose of this Conflicts Policy, a gift or benefit will be regarded as more than nominal if its value is more than $200 on any one occasion or an accumulation of nominal gifts exceed $2,000 per annum.

Breach of policy

The Company expects all Directors and Company Persons to comply with this Conflicts Policy and if:

the Company has a reason to believe that a Director of Company Person subject to this Conflicts Policy has failed to comply with it, it will investigate the circumstances; and
any Director or Company Person breaches this policy they may face disciplinary action which, in the case of an employee, could result in the dismissal of the employee, depending on the nature of the breach.

Contacts

The register of interests must be maintained by Irma Del Mundo. The register must record information related to a conflict of interest (including the nature and extent of the conflict of interest and any steps taken to address it).
For questions about this Conflicts Policy, contact the Board.

Review of Conflicts Policy

All Directors and Company Persons are required to familiarise themselves, and act in accordance, with the contents of this Conflicts Policy. To confirm that the Conflicts Policy has been read and accepted, all Directors and Company Persons must complete the Conflict of Interest Declaration Form set out in Annexure 2:
1. upon commencement of their role; and
2. each calendar year as directed by the Board.
This Conflicts Policy will be reviewed annually by the Board. Any changes to the Conflicts Policy will be communicated immediately to all Directors and Company Persons.