This article provides a brief overview of the worker screening system, including who is required to undergo screening, and the consequences of failing to comply.
What is worker screening?
Worker screening involves the assessment of whether a person who works, or applies to work, with vulnerable people is suitable for working with vulnerable people. Screening helps to ensure that workers engaging with vulnerable people do not pose a risk to the health and safety of the people they work with.
Adequate worker screening is one of the key methods by which organisations can safeguard vulnerable people from harm. In a number of industries, worker screening is mandatory, and extends to the assessment of suitability of both paid workers and volunteers. The lack of appropriate screening has also been identified as a major risk factor in a number of public inquiries and Royal Commissions.
Worker screening requirements reflect the increased risk of abuse and harm faced by vulnerable populations – including children, people with disability, and people in aged care. The requirement to undergo a rigorous screening process reflects the right of all people to live free from abuse, violence, neglect or exploitation, and acknowledges that children, people with disability, and people in aged care are at greater risk of institutional harm. This can be a due to a broad range of reasons, including communication barriers, personal care needs, inadequate or inaccessible reporting mechanisms, and not being believed or supported to make a complaint. Appropriate worker screening is an important mechanism to mitigate these risks and ensure that suitable staff are employed to work with vulnerable people.
Workers in risk assessed roles in particular sectors are required to undergo worker screening. The specific worker screening schemes are operated by individual states and territories, and therefore there are key differences from state to state. For the purposes of this article, we consider the Victorian regulatory context.
In Victoria, worker screening is regulated by the Worker Screening Act 2020 (Vic) (WS Act) which came into operation in February of 2021 to replace the Working with Children Act 2005 (Vic). The WS Act provides a more streamlined worker screening scheme, setting out one framework for conducting checks on both NDIS workers and people who work with children.
Under the National Disability Insurance Scheme, workers considered “key personnel” within registered service providers, workers directly delivering NDIS supports or services, and workers who have ‘more than incidental contact’ with people with disability are required to undergo screening checks. For child connected work, all adult workers and volunteers engaged in child-related work are required to undergo screening checks (unless they have a valid exemption). This includes workers who are working for a prescribed service, place or body, whose work involves direct contact with children that is not occasional or incidental. Prescribed services include, but are not limited to, child care and children’s services, educational institutions, religious organisations, and clubs and associations.
Adequate screening helps organisations comply with a number of State and Federal guidelines and regulations, including the Aged Care Worker Screening Guidelines, the NDIS Practice Standards, the National Principles for Child Safe Organisations, and the Victorian Child Safe Standards. The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability recently identified the inadequate screening of employees as a systemic issue.
Failure to comply with screening obligations in Victoria is a breach of the WS Act, and may attract significant penalties for individuals and organisations, as follows:
Offences – Working with Children Check Clearance Provisions
| Offence | Penalty for individuals | Penalty for organisations |
|---|
| Knowingly or recklessly engaging or continuing to engage a person in child-related work who does not have a Check. | Two years imprisonment, or a fine of 240 penalty units maximum* or both. | A fine of 1200 penalty units*. |
| Knowingly or recklessly offering the services of any person without a Check to another person or organisation for child-related work. | Two years imprisonment, or a fine of 240 penalty units maximum* or both. | A fine of 1200 penalty units*. |
| Giving any person, directly or indirectly, any information acquired from a Check, including information obtained from the worker or from the Department of Justice and Community Safety. This applies to both individuals and organisations. | A fine of 60 penalty units maximum*. | A fine of 60 penalty units maximum*. |
| Knowingly or recklessly engaging or continuing to engage a person in child-related work for profit or gain if that person has a Volunteer Check. | A fine of five penalty units maximum*. | A fine of five penalty units maximum*. |
| Failing to provide information to the Department of Justice and Community Safety pursuant to s142(1) of the Act within 28 days or any longer period specified in the notice. | A fine of 60 penalty units*. | A fine of 60 penalty units*. |
*In the 2021-22 financial year, one penalty unit = $181.74Offences – NDIS Worker Screening Provisions
| Offence | Penalty |
|---|
| Failing to notify the department, in writing within 7 days of a relevant change in circumstances (i.e. being charged with an offence) whilst holding an NDIS Clearance or having applied for an NDIS Clearance. | A fine of 60 penalty units* |
| Engaging in risk assessed role without NDIS clearance or interstate NDIS clearance. | Penalty: Level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both |
| Giving false or misleading information to the department in your application or when the department is reassessing your eligibility or conducting an internal review. | 2 years imprisonment, a fine of 240 penalty units*, or both |
Applying for an NDIS Check when you are:
a registrable offender under section 3 of the Sex Offenders Registration Act 2004
subject to a supervision order, a detention order, or an emergency order. | 2 years imprisonment, a fine of 240 penalty units*, or both |
| Failing to provide the information required under section 142(1) within 28 days or any longer period specified in the notice. | A fine of 60 penalty units*. |
*In the 2021-22 financial year, one penalty unit = $181.74Failure to properly screen workers and volunteers may also result in broader consequences for organisations and the people they serve – including in relation to safety, wellbeing, potential litigation and insurance consequences for breaching its duty of care, and the reputation of the organisation. It is not enough for organisations to say that ‘it is too hard and therefore we don’t comply’, as the penalties are far too high, and the potential consequences can be horrific and life changing.
Importantly, compliance with screening requirements should not be the only mechanism an organisation undertakes to safeguard vulnerable people. The Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse describes it as one of a range of strategies required to make organisations safe. The report states that worker screening checks:
“Will only contribute to keeping children safe if they are used in the context of broader child-safe strategies, such as appropriate leadership, governance and culture; quality recruitment, selection and screening; training; effective child protection policies and procedures; and child-friendly practices.“
The report goes so far as to say that an over reliance on worker screening in the absence of other safeguarding strategies can provide communities with a false sense of security, and can cause organisations to become complacent.
Organisations that work with vulnerable people – including children, people with disability, and elderly people – should ensure that they implement appropriate procedures to comply with their worker screening obligations. In addition, compliance systems, like OHO, can ensure that screening is carried out automatically, regularly, and with ease.
How we can help
Moores can also assist organisations to understand the broader suite of tools necessary to safeguard children and vulnerable people from harm. Moores works with organisations to train staff and management, develop safeguarding strategies, implement policies and procedures, and respond to concerns and claims. Contact our safeguarding team for further information and support.
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