NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 1 In the NDIS environment, a service provider with a service agreement with a NDIS participant may have to contract-in support services or professional/ technical services from another service provider. In many instances, the initiating service provider (often called the “Broker/Principal”) has its own “standard” legal agreement that has been drawn up by lawyers comprising several pages of contract clauses to specify, define and protect the interests of the Broker/Principal. The service provider being offered a brokerage agreement in these circumstances (often called the “Supplier/Contractor” of services) is faced with reviewing this often complex agreement and attempting to negotiate reasonable changes to better protect the interests of the Supplier/Contractor. In providing quality support services through a brokerage agreement, the best win- win outcome for both parties will be achieved if everyone has a sound and shared understanding of the nature, use and challenges of a “best practice” Brokerage Agreement to mutually protect both parties and the NDIS participant.

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 2 WORKSHOP OBJECTIVES  What are “brokerage agreements” and when are they appropriate  Benefits and challenges in entering into brokerage agreements  Legal relationship of the service parties to brokerage agreements (Principal and Supplier/Contractor) and relative negotiating power of the parties  Specifying confidentiality and conflicts of interest protections  Defining Contractor’s scope of services, personnel, warranties, roles, responsibilities, indemnities, performance management and any required insurances  Defining specific requirements for meeting various service standards, policies, quality assurance, work health and safety requirements and resolving complaints or disputes  Defining Principal’s responsibilities including privacy, access to records and facilities, and payment for brokerage service performed  Standard terms including contract period, early termination for cause, non- assignment, intellectual property protection.

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 3 What are “brokerage agreements” and when are they appropriate? The terms ‘sub-contracting’ and ‘brokerage’ are often used interchangeably where service delivery arrangements are established by a funded service with a third party provider. … ‘Sub-contracting’ is where a funded provider enters into a contract with another third party provider to deliver services or activities that it would usually provide directly. ‘Brokerage’ is where a funded provider facilitates the delivery of services on behalf of a service user through another provider using funds that are available to support that person. In summary, sub-contracting is where a funded provider elects to engage a third party to provide services and brokerage is where a funded provider is specifically funded to engage third parties for the provision of services. NSW Gov. “Sub-contracting and brokerage policy for FACS funded disability service providers “

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 4 Benefits and challenges in entering into brokerage agreements

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 5 significant expenditure is involved, requiring formal protection of the interests of the parties by documenting the deliverables and basis for payment; the specific outcomes and performance measurement being sought require explanation and the contractor’s performance needs to be monitored and managed over time; specified, nominated or key personnel are required by the acquiring entity to undertake the contract obligations; termination for convenience is necessary to enable contracts to be terminated by the acquiring entity at its discretion; intellectual property rights exist in material being provided by either party to the contract and both parties need to agree the ownership and rights to use the property; confidential information provided by either party needs to have protection for its use and disclosure in a contract; privacy of personal information collected or disclosed in the course of contracting must be protected in line with the requirements of the Commonwealth Privacy Act 1988; … the law requires a written contract, for example, in relation to acquisitions or dispositions of interests in land, dispositions of equitable trusts and assignment of copyright. In this case the requirements of state, territory and Commonwealth law need to be considered. Benefits and challenges in entering into brokerage agreements

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 6 Benefits and challenges in entering into brokerage agreements

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 7 Legal relationship of the service parties to brokerage agreements (Principal and Supplier/Contractor) and relative negotiating power of the parties  Legal relationship is of Principal and Supplier/Contractor  Provided elements of valid contract exist, all parties PRESUMED to be fairly and knowledgeably bargaining  Unconscionable contracts (more than just unfair) considerations of:  the relative bargaining strength of the parties  whether any conditions were imposed on the weaker party that were not reasonably necessary to protect the legitimate interests of the stronger party  whether the weaker party could understand the documentation used  the use of undue influence, pressure or unfair tactics by the stronger party  the requirements of applicable industry codes  the willingness of the stronger party to negotiate  the extent to which the parties acted in good faith

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 8 ESSENTIAL ELEMENTS OF VALID CONTRACT: Intention to create legal relationships Intention that promises will create legally enforceable obligations Legal capacity to contract Genuine consent Offer and Acceptance Consideration Something of value passing from one party to the other in return for a promise to do something Legality of purpose Legal relationship of the service parties to brokerage agreements (Principal and Supplier/Contractor) and relative negotiating power of the parties

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 9 Example: “During and after the Term of this Contract, the Contractor must: (a) keep all Confidential Information belonging to the Principal secret and confidential (b) comply with all measures established by the Principal to safeguard its Confidential Information from unauthorised use or disclosure; (c) not use or disclose any Confidential Information or make a copy or any other record of any Confidential Information except in the proper performance of the Services or as required by law; and (d) take all reasonable steps to ensure that its employees and agents comply with this clause. >>> CONTINUED NEXT SLIDE Specifying confidentiality protection

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 10 … For the purposes of this clause, “Confidential Information” includes but is not limited to, all trade secrets, know-how and any other information confidential to the Principal that is disclosed to the Contractor or acquired by the Contractor during the Term of the Contractor’s engagement with the Principal which relates to the business affairs, clients or property of the Principal that are generally not available to the public or are not generally known in the industry in which the Principal operates including (without limitation): (a) client information, including but not limited to, care plans and medical records; (b) any other information of the Principal relating to its services (offered or to be offered), research, development, marketing, pricing, clients and prospective clients, business methods, strategies, financial conditions, personnel, plans or policies; (c) any information, record, specification, formula, patent, device, invention, method, technique or process that is owned by the Principal; and (d) any confidential information of any third party obtained by the Principal on a confidential basis. … Specifying confidentiality protection (continued) >>> CONTINUED NEXT SLIDE

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 11 … Where the Contractor has been provided with confidential information of a government, the Principal may require the Contractor to give and arrange for its personnel to give written undertakings in a form required by the Principal, relating to the non-disclosure of that information. If the Contractor receives such a request, the Contractor is required as soon as practicable, to arrange for all such undertakings at the Contractor’s cost.” Specifying confidentiality protection (continued)

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 12 Specifying non-conflict of interests protection “The Contractor warrants that to the best of its knowledge after making diligent enquiry, at the date of signing this Contract, no conflict of interest exists or is likely to arise in the performance of this Contract. The Contractor must not, and must use its best endeavours to ensure that its personnel do not engage in any activity or obtain any interest that is likely to give rise to a conflict or adversely affect the performance of this Contract. If at any time a conflict of interest arises or appears likely to arise in respect of this Contract or any of the Contractor’s personnel, the Contractor is required to notify the Principal immediately in writing, make full disclosure of all relevant information relating to the conflict, set out the steps the Contractor proposes to take to resolve or otherwise deal with the conflict and take such steps or otherwise deal with the conflict as the Principal reasonably requires. If the Contractor fails to comply with this clause the Principal may take such steps as it considers appropriate to resolve or otherwise deal with the conflict, which may include terminating this Contract.”

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 13 Defining Contractor’s specific scope of services, key personnel, roles, responsibilities, performance management and any required insurances Generally these matters are covered in Schedules that are referenced in the Brokerage Agreement itself and form part of the legal agreement.

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 14 Defining Contractor’s specific warranties to Principal Example: “The Contractor warrants and represents to the Principal that: (1) it has the power to execute, deliver and perform its obligations under this Agreement and is not bankrupt, insolvent nor in the process of being wound up; (2) it has the necessary qualifications, expertise, experience and capability including sufficient and competent supervisors and other Personnel to provide the Services efficiently in accordance with the Agreement; (3) it shall comply with all relevant Laws as applicable from time to time when providing the Services; (4) it will provide a safe system of work for the Contractor's Personnel; (5) the Services will be rendered with due care and skill and be of high quality and workmanship to a standard equal or better than good industry practice; and (6) The Principal’s use of the services will not infringe any Intellectual Property Rights; and (7) The Contractor acknowledges that the Principal is relying on these warranties and representations to enter into this Agreement.”

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 15 Defining Contractor’s specific indemnities of Principal Example: “The Contractor is liable for, and indemnifies the Principal from and against, all loss or damage (including legal costs) incurred or suffered by the Principal however caused in connection with: (a) any breach of this agreement by the Contractor; (b) the enforcement of the Principal’s rights in connection with any alleged or actual breach of this agreement by the Contractor (c) the cost of any Services purchased from the Contractor by The Principal which does not meet the requirements of this agreement; (d) any alleged or actual infringement of a third party's Intellectual Property Rights or other right in connection with the Services; (e) any claim by a third party against the Principal in connection with the Services supplied to the Principal under this agreement; (f) personal injury or death of any person (including any employee of the Contractor) in connection with the supply of the Services; (g) damage to property in connection with the supply of the Services; or (h) any act or omission of the Contractor, its officers, employees, agents or subcontractors”

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 16 Defining specific requirements for meeting various service standards, policies, quality assurance, work health and safety requirements and resolving complaints or disputes Example Dispute Resolution: “If a dispute arises in connection with this Contract the parties must comply with the procedure set out in this clause. The party initiating the dispute must give written notice to the other party specifying the dispute and requiring its resolution under this clause (“Dispute Notice”). The parties have 14 days from the date of the Dispute Notice to try to resolve the dispute. If the dispute is not resolved within this period, the dispute must be referred to mediation. If the parties have not agreed upon a mediator to mediate the dispute within 7 days after the date the dispute is due for referral to mediation the mediator will be the person appointed by the President of the Queensland Law Society. The parties must pay the mediator’s remuneration in equal shares. Each party must pay its own costs of the mediation. If the dispute is not resolved within 30 days after the appointment of the mediator either party may commence court proceedings in relation to the dispute in any court of competent jurisdiction.”

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 17 Defining Principal’s responsibilities including privacy, access to records and facilities, and payment for brokerage service performed Example: “The Principal will: (a) pay the Contractor the Service Fee upon satisfactory completion of the services in this Agreement; (b) make available and issue to the Contractor any relevant instructions or other Material, as reasonably required for the delivery of Services under this Agreement; (c) use its reasonable endeavours to ensure that there is no impediment to the Contractor’s access to Clients, records and support necessary to perform this Agreement; and (d) provide reasonable assistance as requested by the Contractor from time to time, to allow the Contractor to competently carry out its responsibilities under this Agreement.”

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 18 Standard terms including contract period, early termination for cause, non-assignment, intellectual property protection Example: Termination for Cause “The Principal may terminate this Agreement by giving written notice to the Contractor if the Contractor: (1)breaches the terms and conditions of the Agreement; (2)fails to perform the Services in accordance with the Agreement; (3) fails or refuses to obtain or maintain the required insurances; (4) fails or refuses to comply with a direction from the Principal; (5) engages in any activity which might conflict with the Principal’s interest under this Agreement or which might be detrimental to the Principal’s reputation; or (6) is Insolvent.” Example: Termination for Convenience “Notwithstanding any other provision of this Agreement, the Principal may at its sole convenience, terminate this Agreement by giving thirty (30) days written notice to the Contractor. Upon receipt of a termination notice, the Contractor must cease to provide the Services and mitigate the Contractors costs,

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 19 Example: Non-assignment “The Contractor will not assign the benefit of this Contract without the prior written consent of the Principal. The Principal may consent to the assignment subject to such conditions as it chooses to impose, or refuse its consent without reason. “ Example: No subcontracting “The Contractor will not employ subcontractors to discharge any of its obligations under this Contract. “ Standard terms - non-assignment, and no subcontracting

NDIS: Providing Support Services Through a Brokerage Agreement Bringing People Together To develop responses to the community’s needs for transport, access and mobility 20 Final questions? Thank you