What?

On 23 January 2022, the Victorian Government announced its back to school plan for 2022. A major part of keeping schools open for face-to-face learning is rapid antigen testing (RAT), which will be in place for at least the first four weeks of Term 1.

How?

The Victorian Government has promised to deliver more than 14 million rapid antigen tests to all government, independent and Catholic schools and early childhood education and care services. For the first week of Term 1, 6.6 million tests will be delivered.

Schools are not required to collect proof of negative rapid antigen tests. The introduction of rapid antigen testing for schools and early childcare is a recommendation only – not a mandate. Schools will be responsible for distribution of tests to families.

Who?

The Victorian Government is strongly recommending surveillance rapid antigen testing for all:

• primary and secondary school students;
• primary and secondary school staff; and
• early childhood education and care staff.

Children under 5 are not part of the rapid antigen testing recommendation.

When?

These students and staff are recommended to RAT test twice-weekly at home before school or childcare.

For students and staff at specialist schools, the recommendation is to test five days each week due to the higher risk of severe illness for medically vulnerable children.

Other COVIDSafe measures

Other COVIDSafe measures will also continue to be implemented, including ventilation through air purifiers and shade sales to increase useable outdoor spaces. The Victorian Government has promised to deliver 51,000 air purifiers to government and low-fee non-government schools for the first day of Term 1, and schools are encouraged to hold lessons outdoors where appropriate.

Masks will continue to feature in classrooms for students in Grade 3 and above. As in 2021, teachers will be required to wear masks at all times when not actively teaching or communicating with students. Masks will be available in schools, provided by the Victorian Government.

How we can help

Moores is happy to assist in creating a Return to School Plan, RAT policy and related communications for staff, students and parents and help you deal with dispute management.

Contact us

Please do not hesitate to contact us for further information and assistance.

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The national cabinet has announced it will expand the list of workers who will be exempt from COVID-19 isolation rules when they are a close contact of a positive COVID-19 case. The decision follows recent announcements that certain workers who are close contacts will be allowed to attend work after a negative rapid antigen test and seeks to ease pressure on workplaces and supply chains. In the case of teachers, it is to keep schools open and students in classrooms so as to minimise workforce disruption with respect to parents and carers.

Yesterday’s national cabinet statement stated that isolation exemptions would extend to all teachers and childcare workers, as well as all non-public facing healthcare and support workers. Essential workers include:

• Education and schooling services;
• Early childhood education and care; and
• Adult and higher education.

It is unclear as yet how the state and territory governments will implement this announcement, and to whom specifically the changing rules will apply to beyond teachers. The requirement for ongoing rapid antigen tests and for what duration testing is required has not been clarified in Victoria. The Victorian Department of Education and the Department of Health and Human Services have not released information about the change.

The plan to keep schools open

The national cabinet agreed to “key principles” about how schools will operate moving towards a COVID-normal.

The role of rapid antigen tests

Instead of isolating if a close contact of a positive COVID-19 case, the broadened group of essential workers will be able to return to work with a negative rapid antigen test. The availability of rapid antigen tests and the responsibility for sourcing the tests is likely to be focus areas for schools and the Victorian government in the coming weeks.

How we can help

More detail on the implementation of the plan for schools, including surveillance testing using rapid antigen tests and mask-wearing policies, is likely be released next week by state and territory governments.

In the meantime, please contact us if we can assist.

2021 ushered in a range of new and proposed changes affecting not-for-profit and charity governance and regulation. Many of these changes will come into effect in 2022. Here are some things to keep in mind as you develop your 2022 Board agenda.

Top of the to-do list

All registered charities should ensure they have considered and are prepared to implement the new Australian Charities and Not-for-profits Commission (ACNC) reporting requirements (which will commence from the 2022 Annual Information Statement reporting period). These requirements cover both Financial Reporting and Related Party Transactions and Board Remuneration. Charities should ensure they have systems, processes and controls in place to support compliance.

All company directors and committee members of incorporated associations with an Australian Registered Body Number, which allows your incorporated association to operate outside of your “home” state or territory must obtain a Director Identification Number in 2022. Different deadlines apply depending on when the director is appointed.

Deductible Gift Recipients (DGRs) will need to register as a charity with the ACNC (if they are not already registered charities) or be operated by a registered charity. The new requirements do not apply to public and private ancillary funds. Affected existing DGRs will have until 14 December 2022 to register and should commence this process now.

Charities and not-for-profits who expend more than $250,000 for the dominant purpose of influencing the way electors vote in a federal election (“electoral expenditure”) will be required to register as a “significant third party” (previously a “political campaigner”) and meet certain disclosure requirements by 14 March 2022. The electoral expenditure threshold was reduced from $500,000 to $250,000 by legislation passed on 1 December 2021.

Large charitable companies (with annual revenue of $1m or more) and not-for-profit public companies have been required since 1 January 2020 to have a compliant whistleblower policy. ASIC’s 2021 review of a sample of whistleblower policies indicated the majority were non-compliant. This remains an area of focus for ASIC and further reviews will be conducted. Affected organisations should review their policy alongside ASIC’s Letter to CEOs and Regulatory Guide.

2021 changes to note

Companies continue to benefit from temporary amendments to the Corporations Act 2001 (Cth), which allows companies to use technology to hold member and director meetings. These amendments will lapse on 1 April 2022. Companies whose constitution does not expressly permit them to hold virtual meetings should consider amending their constitution. All charities and not-for-profits should ensure that any virtual meetings are held in accordance with their governing document and legislative requirements and properly facilitate member participation.

Public Benevolent Institutions (PBIs) considering broadening their activities and entities that have previously been refused registration with this charity subtype should be aware of the landmark Global Citizen decision. The Administrative Appeals Tribunal found that Global Citizen, a charity that pursues its purpose of relieving poverty through advocacy and education (seeking to influence and enlist public opinion to obtain financial commitments from governments and philanthropists to fund overseas aid projects) was entitled to be registered as a PBI. The boundaries around what constitutes a PBI are not static and past ACNC decisions may be able to be reviewed on the basis of the Global Citizen decision. See the ACNC response here.

Registered charities that have not joined the National Redress Scheme (NRS) and have been, or are likely to be, identified in connection with abuse that is covered by the NRS should be aware of ACNC Governance Standard 6. Following the introduction of this new standard in February 2021, these entities may be subject to ACNC compliance action including revocation of charity status. Read our article here for an overview and what this may mean for your charity.

Charities providing housing should note the updated ACNC Commissioner’s Interpretation Statement on the provision of housing by charities. Published on 5 November 2021, this clarifies the meaning of ‘relieving poverty’ in the context of the provision of housing assistance, significantly expands guidance on permitted commercial activities and outlines ways in which the private benefits of home ownership schemes might be successfully mitigated.

Entities seeking to establish tax deductible school building funds (particularly non-traditional schools and faith based organisations co-locating with schools) may benefit from the Buddhist Society of Western Australia decision. Although still subject to appeal, this decision may allow for a more holistic assessment of what constitutes a “school”.

On the horizon

Not-for-profit organisations that are not registered charities are currently encouraged by the Australian Tax Office to carry out an annual self-review to confirm they are meeting their tax and super obligations. From 1 July 2023, not-for-profit entities with an Australian Business Number will be required to lodge this annual self-review in order to confirm their eligibility for income tax exemption.

A national fundraising framework (currently fundraising is separately regulated in each state and territory) will be developed following a federal government announcement on 15 December 2021. The announcement does not include a proposed timeline.

Faith based organisations will be watching as the third draft of the Religious Discrimination Bill 2021 (Cth) is considered by Federal Parliament in February 2022. Read our article here regarding what this may mean for the expression and application of religious views.

How we can help

Moores can advise charities and not-for-profits on what these proposed changes mean for your organisation and how to review your policies and processes to ensure that they are compliant.

Please contact us if we can assist.

Most employers had to quickly respond to the COVID-19 pandemic since its emergence in March 2020 including identifying workplace health and safety risks and the controls that were available to eliminate or minimise those risks.

The availability of COVID-19 vaccination in Australia has meant many employers have also had to quickly navigate the use of a vaccination requirement as a ‘control’ measure to respond to workplace risks. That is made more challenging where a public health order or government direction does not apply and an employer has to assess whether it can effectively impose an employment condition that employees are vaccinated against COVID-19 in order to perform their duties.

With the emergence out of various lockdowns and remote working arrangements in the latter part of 2021, employers have turned their minds to whether workplace vaccination directions are required.

Since mid-year, some large employers announced decisions to ‘mandate’ vaccination for their workforce, rationalising the requirement as part of their safety obligations to employees. Others waited to see how government would respond and whether the decision could be deferred because of the imposition of public health orders and government directions. Each state has had a different approach with different timelines.

The recent decision in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 (3 December 2021) was a much awaited decision about an employer’s ability to defend a ‘lawful and reasonable’ direction requiring employees to be vaccinated against COVID-19 in order to perform duties.

BHP’s Mt Athur Mine Operation – Site Requirement

BHP’s Mt Arthur mine, in the Hunter Valley in New South Wales, announced in October 2021 that it would require mine workers to be vaccinated as a condition of entry to site. Mt Arthur is a separate legal entity employing over 700 workers at the mine site but is within the BHP group of companies. No public health order or government direction was in place ‘mandating’ workplace vaccination at that location or workplace, and which Mt Arthur could rely on. It therefore relied on its ability to issue a ‘lawful and reasonable’ employment direction as the basis for the site requirement. This was the ‘site requirement’ that was the central focus of a recent full bench decision.

The site requirement was announced on 7 October 2021 and required that employees must have had their first COVID-19 vaccination dose by 10 November 2021 to be permitted access to the site to work, and the second dose by 31 January 2022.

The union (the CFMEU) sought to challenge the site requirement under the dispute resolution procedure in the applicable enterprise agreement. The basis for the challenge was whether the site requirement was a ‘lawful and reasonable’ direction for those employees covered by the enterprise agreement. The application of the enterprise agreement and Commission’s dealing of this matter under that agreement’s dispute resolution procedure may be an important feature to the future application of the Commission’s principles in this case.

Mt Arthur did attempt to inform employees and their union representatives, and seek feedback, about the vaccination site requirement before October. However, the process and in particular, the language used, would prove critical in the Commission’s ultimate decision to find that the site requirement was not ‘lawful and reasonable’ in the circumstances.

Consultation obligations can impact the assessment of what is a ‘reasonable’ direction

Central to the union’s argument against Mt Arthur was that Mt Arthur failed to adequately consult with employees before the 7 October 2021 ‘announcement’ about the site requirement. Those consultation obligations arose from the applicable safety legislation in New South Wales (the Work Health and Safety Act 2011 (NSW)) and the enterprise agreement.

Mt Arthur argued that the consultation obligations (and whether they had been met or not) did not impact on whether the vaccination site requirement was lawful and reasonable for the purposes of an employment direction. The full bench of the Commission disagreed finding that a range of factors will impact on whether a particular direction viewed objectively, is ‘reasonable’. The full bench stated that:

“Whether a particular direction is reasonable is not to be determined in a vacuum, it requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship. In NSW, this would include consideration of obligations in the WHS Act, which governs employment relationships in that jurisdiction. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis. The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction.”

The full bench then closely assessed the triggers for consultation and what the processes required under those instruments. Interestingly, Mt Arthur implemented 3 ‘phases’ which it argued satisfied consultation. They were the:

1. Options phase prior to 31 August 2021;
2. Assessment phase from 31 August to 7 October; and
3. Implementation phase from 7 October to 10 November 2021.

While Mt Arthur could show it informed employees of the site requirement and sought feedback about its implementation, the full bench found the safety legislation (ie. the WHS Act) required consultation before the (safety) decision was made. It found that Mt Arthur had not effectively consulted with employees before communicating on 7 October 2021 that “the Company will introduce a requirement for COVID-10 vaccination as a condition of entry…”.

Despite the process steps applied by Mt Arthur in the ‘options’ and ‘assessment’ phases, they were ultimately not enough to satisfy the full bench that effective consultation had occurred before the company made a final decision. The full bench found that the language used by the company on 7 October conveyed the decision was ‘irrevocable’ and ‘not amenable to consultation’. In a useful and detailed summary of the purpose of consultation and what it requires in practice, the full bench found that the “deficiencies” in the consultation process swayed against finding that the site requirement was a reasonable direction. That was in the context where the site requirement was not imposed by a government regulation such as a public health order.

The full bench noted that:

“[199] Mt Arthur’s failure to meaningfully consult with the Employees denied the Employees the opportunity to influence the Respondent in its decision-making process and the possibility of a different outcome. We are not persuaded that further consultation could not possibly have produced a different result.”

The full bench did observe that the enterprise agreement required consultation after a ‘decision’ and while not reaching a finding on that point, noted that Mt Arthur arguably met its enterprise agreement obligation to consult by consulting after the decision was made.

What does this mean for employers?

While being the first significant full bench decision to consider whether a COVID-19 vaccination requirement can be a ‘lawful and reasonable’ employment direction, the case very much turned on the particular facts of Mt Arthur’s decision and process steps leading to implementation of the vaccination site requirement.

The Commission did offer further observations to clarify that the site requirement may have been a ‘lawful and reasonable’ direction had the consultation obligations been met given the employer’s safety obligations and consideration of the vaccines’ effectiveness as a control to respond to those safety risks.

A caution for employers more broadly is to have regard to applicable safety legislation and relevant consultation obligations in the legislation when considering a safety based direction or policy requirement in the absence of a third party requirement such as a public health order. Consultation is key.

How Moores can help

Please do not hesitate to contact us for further information and assistance.

Failures, like those alleged by the NDIS Commission in these proceedings, will not be tolerated.

The Disability Royal Commission

This week, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with a Disability (the Disability Royal Commission) held its 20th public hearing since it commenced in April 2019. The Disability Royal Commission was established following widespread reports of violence, abuse and neglect of people with a disability. The focus of the Disability Royal Commission is to investigate:

• how to prevent people with a disability being subjected to abuse, violence, neglect and exploitation;
• best practice in reporting, investigating and responding to abuse, violence, neglect and exploitation; and
• promoting a more inclusive society, where people with a disability are supported to live independent lives without abuse, violence, neglect and exploitation.

The Disability Royal Commission has been preceded by other relevant Royal Commissions examining the treatment of other vulnerable Australians, including The Royal Commission into Institutional Responses to Child Sexual Abuse and the Royal Commission into Aged Care, Quality and Safety. These public inquiries have examined factors and failures leading to the abuse and substandard care of vulnerable Australians, and inadequate responses to risk and harm in relation to children and the elderly. The findings of these Royal Commissions have led to fundamental systemic reform in child safety and the aged care sector across the country.

We expect that the findings of the Disability Royal Commission will have a similar impact on systemic reform in the disability sector leading to the protection of people with a disability from harm. The Disability Royal Commission has released 6 monthly interim reports, with the next report to be published in February 2022.

So what legal obligations currently exist to protect people with a disability from harm?

The National Disability Insurance Scheme Act 2013 is the Act which provides the guidelines as to how NDIS Providers should act. If your organisation is registered as an NDIS provider, it must comply with the NDIS Act. NDIS providers must provide adequate support and services to customers in a safe and competent manner with care and skill.

The NDIS Commission was established on 1 July 2018 and all states transitioned to the new national quality and safeguarding arrangements by 1 July 2020. The NDIS Commission is the national regulator of supports and services provided to people with a disability who participate in the National Disability Insurance Scheme (NDIS). The NDIS Commission has strong regulatory and compliance powers under Commonwealth Law where suspected breaches of a provider’s obligations under the NDIS Act, including the NDIS Code of Conduct and the NDIS Practice Standards, are identified.

These powers include seeking civil penalties when a provider has failed to deliver supports and services in a safe and competent manner, with care and skill.

Recent action by the NDIS Commissioner

On 2 December 2021, the Commissioner of the NDIS Quality and Safeguards Commission launched legal action against NDIS provider Australian Foundation for Disability (Afford) following the death of a resident Merna Aprem. The Originating Application and a Concise Statement have been filed in the Federal Court of Australia against Afford, and sets out the horrific circumstances and alleged failings by Afford, that led to the death of Merna Aprem.

The Concise Statement reveals that Merna Aprem was a 20 year old woman living in the Woodbine Residential Home run by Afford. She had a diagnosis of Epilepsy, Autism Spectrum Disorder and a moderate to severe intellectual disability. Afford was aware of the diagnoses and was also aware that Merna Aprem was required to be supervised when bathing due to the ongoing risk of seizures.

On 23rd of May 2019, Merna Aprem was found face down and surrounded by vomit in the bath. Paramedics were unable to revive her and she died at the scene. Neither of Merna’s carers were aware that she had a diagnosis of Epilepsy. Among other matters raised in the Concise Statement, the Epilepsy Management Plan held by Afford was incomplete, including the notable omission addressing the risk of bathing and showering, which was left blank.

The Concise Statement alleges that Afford contravened Sections 73J and 73V of the NDIS Act by failing to:

• (a) provide supports and services to Ms Aprem in a safe and competent manner, with care and skill; and
• (b) comply with the requirement that Ms Aprem be able to access supports in a safe environment which was appropriate to her needs.

The current Acting NDIS Quality and Safeguards Commissioner Samantha Taylor asserted that “NDIS Providers have very clear obligations. Failures, like those alleged by the NDIS Commission in these proceedings, will not be tolerated. The NDIS Commission will take action when providers do not meet their obligations”.

This is the first legal action that the NDIS Commission has taken to hold an organisation accountable for failing to provide proper care under the NDIS Act and it is clear from the commentary surrounding the case that it will not be the last.

What can organisations do now to ensure they are providing supports and services in a safe and competent manner?

The legislation requires that there is a positive obligation on NDIS providers to provide supports and services to customers in a safe and competent manner, with care and skill.

Organisations must act now to ensure that they are not only compliant with the mandated legislation but providing best practice to ensure a safe environment. Some of the steps organisations can take now to review their current practices and procedures include:

• Review Compliance with the NDIS Practice Standards on a frequent basis, including after any complaint or incident is reported;
• Ensuring staff comply with the NDIS Code of Conduct and support employees to meet their obligations under the Code and ensure operations are consistent with the Code;
• Have an effective complaints management system which is easily accessible and with a focus on the empowerment of people with a disability and their families, carers and support persons;
• reduce barriers to complaints by recognising the fundamental differences and vulnerabilities of each person and their need for quality care and safety;
• responding to complaints and incidents in a trauma informed manner, ensuring that efficient procedures are followed and proper record keeping is kept;
• ensuring proper screening and management of staff and properly addressing any performance concerns;
• reviewing policies and procedures to ensure that all staff and customers understand their obligations within the organisation, that the organisation is committed to a safety and quality and staff are training accordingly.

How we can help?

It is important to understand that the safety of vulnerable people is everyone’s responsibility. Organisations must do all things necessary to identify risks and provide supports and services in a safe and competent manner, with care and skill.

Moores can support organisations to fulfil their obligations under the NDIS Act and respond effectively to complaints and incidents. We not only focus on compliance, we support organisations to prepare and operate with best practice.

If you would like to discuss how this applies to your organisation please contact us for more information. We can assist with training, review and audits of current systems and operations, reviews of policies and procedures, and assistance with complaints management and quality improvement. We will also be able to point you in the direction of leading industry resources.

Employers have been navigating government issued COVID-19 vaccination workplace directions for some months now and an increasing number are moving to mandate workplace requirements as they transition to COVID-19 ‘normal’ as described in the Federal government’s roadmap.

Many employers have also been on the receiving end of objections from employees and advocacy groups. Interestingly, distributed materials to employers often have common themes and approaches. While these ‘objections’ may be compelling at first glance, they often contain misinformation, incorrectly presented as fact or law. In this update, we look at some of those common objections and how employers may choose to respond.

Variation or breach of employment contract

Some objectors state the implementation of a vaccination requirement is either an unlawful variation to, or a breach of, an employee’s contract.

A contract of employment, written or verbal, will contain some of the terms and conditions of the relationship between an employer and an employee. A contract will also stipulate various employee and employer obligations, such as payment of remuneration, position duties, rights of termination, and confidentiality obligations.

However, an employment contract is not an exhaustive representation of the employment relationship. The law recognises that through implied terms in employment contracts, an employer can supplement express terms with additional obligations in policies and directions that are lawful and reasonable. Additionally, a changing regulatory environment may impose additional requirements for employees which, if not complied with, may mean that the employee cannot perform their role for the employer. The imposition of government mandated vaccination requirements in the workplace is an example of such a change.

Demand for safety and risk assessments

Since the beginning of the pandemic in 2020 and increasing community transmission in Australia, the risk of spread and transmission of COVID-19 in the workplace is a relevant safety risk that employers have had to respond to as part of their occupational health and safety framework.

It is that risk that will often found the basis of an employer’s decision to implement a vaccination requirement in the absence of a government issued workplace direction.

Risk assessments are commonly used as part of an employer’s safety evaluations and are useful to identify risks, controls and effectiveness of controls relevant to the particular workplace. In the course of employee objections to government vaccination directions, many employers have been asked by employees for a copy of a ‘risk assessment’.

The recent decision in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 reinforces the importance of meaningful consultation ahead of the introduction of a vaccination policy. For example, under the Occupational Health and Safety Act 2004 (Vic), where an employer identifies and assesses a risk to the health and safety of its employees, and implements measures to control that risk, the employer must consult with any employees who will be affected. The duty to consult requires that employers inform employees about the occupational health and safety matter and allow employees to express their own views, which should be taken into account.

The legislation does not expressly require employees to disclose their risk assessment, but consultation often involves the sharing of relevant safety information. Whether or not an employer is obligated to share its safety assessments will depend very much on the circumstances and basis for the vaccination requirement. There may be some circumstances in which providing relevant safety information is beneficial but further advice should be sought if in doubt.

Expiry of vaccination mandates

Some employees have asked for more time to comply with relevant government directions citing that the vaccination mandates will lapse in the future and enable their return to onsite work. That is common with those who have been working remotely but also forms the basis for extended leave arrangement requests.

These responses generally assume that vaccination requirements will not be extended after the expiry of the current orders, often issued for a 4 week period. The uncertainty about the duration of government directions can be challenging. However, an employer can reasonably position its requirements based on current directions. It may need to consider reasonable alternatives if considering employment termination as part of its overall approach, given the unfair dismissal protections which extend to considerations of alternatives to termination (in some cases).

Referring to legislation and case law

Some objections quote particular Australian and international legislation as the basis for a claim that state government directions are invalid or even ‘unconstitutional’. Despite legal challenges in Victoria and New South Wales, state directions have not been invalidated and continue to have legal force.

Employee objections have also cited the Deputy President Dean’s decision in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 in disputing workplace vaccination requirements. However, of note is that Deputy President Dean’s commentary was the minority judgment in the decision. This case was heard by the Full Bench of the Fair Work Commission, with the majority of the Full Bench disagreeing with Deputy President Dean’s position.

Therefore, her statements do not reflect the state of the law as such. The Full Bench in that decision found that the employer had validly terminated an employee’s employment for failure to comply with a flu vaccination requirement (in the context of the COVID-19 pandemic) having regard to her objection on medical grounds.

Claims that employ legal language

A common feature of many employee objections is the appropriation of legal language, including claims which may appear to have a legal basis. Some claims refer to employers’ vaccination requirements (based on government direction or otherwise) as ‘threats’ of ‘assault’ or ‘battery’.

The effect of a government direction means that in many cases, an employer cannot permit an unvaccinated person to enter its site (unless medically excepted). Requiring compliance with the direction will not constitute battery or assault given that an employee still has choice about whether or not to comply.

These claims were brought before the Fair Work Commission (Commission), in the case of Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156 which considered an employer’s requirement for employees to be vaccinated against the flu. Among other claims, the employee contended that the requirement to be vaccinated constituted battery and assault. The Commission had regard to the legal elements of battery and assault, and determined these claims would fail, because there was no physical contact for the purposes of battery, and no threat to inflict a vaccination for the purposes of assault. The Commission found the requirement to consent to vaccination or face termination was not the same as a threat of being forcibly vaccinated, and that the idea the employer would threaten to inflict a vaccination upon the employee was ‘fanciful’.

Requests for unpaid leave

Many employees who do not wish to comply with a vaccination requirement have requested to take unpaid leave where paid leave has been exhausted (or not available).

There may be benefits to allowing some leave including to demonstrate a reasonable approach by employers in the circumstances.

However, employers are not required to allow employees to take periods of unpaid leave; this is a discretionary decision.

Additionally, we have seen an increase in requests to employers related to ill health, for which employees are asking for extended personal leave. If an employee seeks to take personal leave, and has paid personal leave entitlements accrued, employers should approach such requests cognisant of legal obligations in the Fair Work Act 2009 (Cth) and anti-discrimination obligations, including that termination of employment due to ‘temporary illness or injury’ may not be lawful in some cases.

Employer Liability

Some responses to an employer’s vaccination requirement claim that employers will be liable for adverse reactions to the vaccine.

The introduction of the Federal Government’s no-fault indemnity scheme further limits exposure to claims for vaccine related illness or injury. Under the scheme, Australians who suffer injury and loss of income as a consequence of receiving a COVID-19 vaccine may make a claim. The scheme will cover the cost of injuries incurred as a result of a proven adverse reaction which exceed $5,000. Claims may be made against employers for amounts under that threshold and an employer’s workers’ compensation insurance may be enlivened if such a claim is received.

How we can help

Moores can assist employers respond to objections to vaccination government mandates or stand-alone policies. Moores can also advise on discrimination and privacy issues.

Please do not hesitate to contact us for further information and assistance.

On 30 November 2021, the Australian Charities and Not-for-profits Commission (ACNC) revoked the charity registration of Devonport Community Church (DCC).

Due to secrecy provisions in the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act) the ACNC has not disclosed why DCC’s charity status was revoked. However, despite being identified in an application for redress, DCC decided not to join the National Redress Scheme for people who have experienced institutional child sexual abuse – conduct that can now lead to revocation of charity registration.

ACNC Governance Standard 6

The ACNC Governance Standards contain core minimum standards registered charities must comply with in order to become and remain registered with the ACNC. For the first eight years after the ACNC was established only five Governance Standards applied. In February 2021 Governance Standard 6 was introduced to promote participation of affected charities in the National Redress Scheme.

Governance Standard 6 requires a registered charity to take reasonable steps to become a participating non-government institution if the charity is, or is likely to be, identified as being involved in the abuse of a person either:

• in an application for redress made under section 19 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (Redress Act), or
• in information given in response to a request from the National Redress Scheme Operator (Secretary of the Department of Social Services) under section 24 or 25 of the Redress Act.

The stated object of Governance Standard 6 is to enhance public trust and confidence in the not-for-profit sector by ensuring that a registered entity’s governance enables it to be accountable for its past conduct relating to institutional child sexual abuse.

Failure to comply with one or more of the ACNC Governance Standards may result in the use of the Commissioner’s enforcement powers and, in the most serious cases, revocation of charity registration. Revocation of charity registration involves loss of Commonwealth charity tax concessions, including income tax exemption, fringe benefits tax rebates and GST concessions.

DCC’s failure to join the National Redress Scheme

In a press release issued on 23 June 2021 the Federal Minister for the Department of Social Services (Minister) named three institutions who had elected not to participate in the National Redress Scheme. The Minister stated that the named institutions had “failed to meet their moral obligations” in not signing up to the National Redress Scheme and had “chosen to shirk their responsibility to finally do the right thing by survivors.”

DCC, located in Tasmania, was one of the institutions named by the Minister. Speaking to The Advocate in June 2021, Pastor Overton said that a “collective meeting” of church members decided not to join as the National Redress Scheme was “behind closed doors and easily abused”. As at the date of revocation of its charity registration, the Church had still not joined the National Redress Scheme.

As noted above, secrecy provisions (found in Part 7-1 of the ACNC Act) prevent the ACNC from making public the nature of its concerns around a particular organisation’s registration or publishing the results of its investigations. However, the ACNC did take the relatively unusual step of publicising DCC’s revocation, noting in its media release that “Charities are required to meet their obligations to the ACNC and they must act in accordance with the ACNC Governance Standards and External Conduct Standards”. DCC’s most public failure to act in accordance with the ACNC Governance Standards was, of course, the failure to comply with Governance Standard 6.

What does this mean for your charity?

If your organisation has been, or is likely to be named in an application to the National Redress Scheme and fails to take steps to join the scheme, your organisation faces a real risk of revocation of its charity registration.

The ACNC secrecy provisions that prevented disclosure of the reasons for the revocation of DCC’s charity registration are currently under review. Recommendation 17 of Strengthening for Purpose: Australian Charities and Not-for profits Commission Legislation Review 2018 was that the ACNC Commissioner be given a discretion to disclose information about regulatory activities (including investigations) when it is necessary to protect trust and confidence in the sector. A Treasury consultation process in relation to this issue was completed on 22 August 2021.

How Moores can help

Moores can assist you to ensure that your organisation continues to remain compliant with all ACNC Governance Standards.

For more information or guidance regarding any of the above, please do not hesitate to contact us.

On 23 November 2021, the third draft of the federal government’s long awaited Religious Discrimination Bill 2021 (Cth) (Federal Bill) was released. Some of the more contentious provisions had been removed since the first draft of the bill was released in 2019; however, this was not enough to get it over the line this year, with the bill being put on hold until the next parliamentary sitting date in February 2022.

In this article, we provide an overview of the evolution of the Federal Bill to date, its current status and what it might mean for employers particularly given that the Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) (Victorian Bill) was passed last week. The Victorian Bill is expected to receive royal assent in the next few weeks, upon which it will then amend the Equal Opportunity Act 2010 (Vic). Many are awaiting with interest whether the legislation will permit organisations to express and apply religious views in a lawful manner that may otherwise be unlawful discrimination under current law, especially in respect of recruitment and employment decisions.

Background

On 22 November 2017, the then Prime Minister Malcolm Turnbull announced the appointment of an Expert Panel to examine whether Australian law adequately protects freedom of religion. That was at the time of the passing of marriage equality laws, with then Treasurer Scott Morrison stating that the Australians who voted against marriage equality were seeking assurances from the government that their views were not under threat. Following a nationwide consultation process, the Religious Freedom Review: Report of the Expert Panel was released on 18 May 2018. While the Expert Panel “did not accept the argument, put by some, that religious freedom is in imminent peril” it did “accept that the protection of difference with respect to belief or faith in a democratic, pluralist country such as Australia requires constant vigilance” (Report at [1.6]), and recommended new legislative protections against religious discrimination. In response, the Morrison government committed to a ‘Religious Discrimination Act’.

The Religious Discrimination Bill 2019 (Cth) was first released in late 2019, followed by a second draft in early 2020. Both drafts of the bill were heavily criticised. Some religious groups were concerned that it did not give adequate protections to people of faith, whilst some human rights groups were concerned that the bill did not strike the right balance between protecting religious and other freedoms.

What’s in the current draft of the Federal Bill?

The Federal Bill prohibits discrimination on the ground of ‘religious belief’ or ‘activity’ in a range of areas of public life, including work, education, access to premises and the provision of goods, services and accommodation. Religious belief or activity is defined as the ‘holding or not holding of a religious belief or engaging, not engaging or refusing to engage in religious activities. This part of the Federal Bill offers similar protections that currently exist under federal law for race, sex, disability and age and most state and territory anti-discrimination which specifically offers some religious protections.

However, while the Federal Bill states that its main purpose is to prohibit discrimination, it proposes wide exemptions to discriminatory statements and practices that religious bodies in particular can seek to rely on. Religious bodies are defined to include educational facilities, registered charities and any other kind of body other than a body that engages solely or primarily in commercial activities. Under the proposed legislation, they may able to act in accordance with their faith in certain situations without the conduct being considered unlawful discrimination. Key elements of the proposed legislation are:

Statements of belief

The Federal Bill proposes to protect what are termed “statements of belief”. A statement of belief is a statement:

• of a religious belief held by a person;
• made, in good faith, by written or spoken words or other communication (other than physical contact) by the person; and
• of a belief that the person genuinely considers to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.

Statements of belief also include beliefs held by a person who does not hold a religious belief relating to a belief that the person genuinely considers to relate to the fact of not holding a religious belief.

Currently, under Victorian law, a religious body or school can discriminate on the basis of certain attributes a person has (that is otherwise protected) if the discrimination accords with the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to the religious sensitivities of adherents to the religion. The Federal Bill proposes to expand and override this religious exemption so that any person (regardless of whether they are affiliated with a religious body or school) can make a ‘statement of belief’ that would otherwise be considered discriminatory. Currently, a statement may amount to unlawful discrimination and the effect of the Federal Bill, once enacted, will be to protect that statement against characterisation as unlawful discrimination. This is particularly significant in Victoria, where the State government has recently passed the Victorian Discrimination Bill which intends to narrow the protections that religious bodies and organisations can rely on. Under the Victorian Discrimination Bill, any discriminatory conduct by religious bodies and religious organisations on the basis of a person’s sexual orientation, lawful sexual activity, marital status, parental status and gender identity must be reasonable and proportionate in the circumstances.

Click here for a more in-depth overview of the Victorian Discrimination Bill.

There are some limitations to what kinds of statements will be protected under the Federal Bill. For example, statement of belief will not be protected if it is ‘malicious’ or if a ‘reasonable person’ would consider it would threaten, intimidate, harass or vilify a person or group. However, many academics and public commentators have expressed concern that the measures could wind back important protections for LGBTQIA+ persons, women, people with disabilities and even people of faith.

Religious organisations will be able to preference or prioritise the employment of persons of a particular faith

Under the Federal Bill, religious entities would be able to implement employment policies that ensure all employees are of a particular faith so long as that conduct is in accordance with a publicly available policy.

The Bill provides that it would not be discrimination for a religious body to engage, in good faith, in conduct to avoid injury to the religious susceptibilities of adherents to the same religion as the religious body. The Bill gives an example of a religious primary school requiring all of its staff and students to practice that religion, if such a requirement is necessary to avoid injury to the religious susceptibilities of people of that religion.

This replaces the current, objective test under Victorian law outlined above (i.e. the discrimination must be reasonably necessary to avoid injury to the religious sensitivities of adherents to the religion in order to be permitted) and replaces it with a more subjective requirement that the discrimination be in good faith. This is contrary to the current position under Victorian anti-discrimination legislation that motive is irrelevant to determine if discrimination is unlawful.

What happens next?

Federal parliament adjourned for the year without a vote on the Federal Bill. In anticipation of a federal election next year, the passage of the Federal Bill is likely to be closely watched.

How Moores can help

What constitutes discrimination is a constantly evolving issue, and the state of the law in respect of religious discrimination is currently uncertain. Moores has extensive experience in assisting faith-based organisations working across the education, disability, health and aged care sectors comply with complex discrimination laws and respond to discrimination claims.

For more information or expert advice regarding discrimination matters, please do not hesitate to contact us.

What an ‘unprecedented’ year! Haven’t we heard that a few times?

While we initially thought 2020 brought all the challenges, 2021 has thrown the education sector its fair share also. As Term 4 draws to an end, we would like to reflect and congratulate schools on all they have handled in 2021. This reflection might also be a handy checklist for you, given the amount of work you have done this year.

A visual timeline of commercial, legal and regulatory considerations for schools in 2021:

Child Information Sharing Scheme

Schools were captured by the Child Information Sharing Scheme (CISS) from 19 April 2021. This means schools have an obligation to respond to information requests made under the CISS and schools can:

1. Share information proactively to other ISEs
2. Make a request for information; and
3. Share information in response to a request from another ISE.

Diversity in schools for pride month

This year we saw a big push to support diversity in schools. Schools can support diversity in many different areas, including bathrooms, uniform and events. When planning your return to school in Term 4 and for 2022, the planning process is an opportunity to imbue your school community with a refreshed commitment to supporting diversity.

From February 2022, practices seeking to change or supress a person’s sexual orientation or gender identity, known as conversion practices, will be banned in Victoria.

This builds on the prohibition in the Equal Opportunity Act 2010 (Vic) against schools engaging in direct or indirect discrimination on the basis of gender identity and sexual orientation.

Reforms to parent-principal relationships and powers

One reform to the Education and Training Reform Act 2006 (Vic) that may have been overshadowed by necessary responses to the pandemic is an increase in powers for principals to remove or refuse entry to parents who pose an unacceptable risk of harm to another person, or to parents who cause significant disruption or interfere with the wellbeing, safety or educational opportunities of students.

We explain the details of these new powers for principals in our article Education amendments significantly alter relationship between parents and teaching staff.

New Guidelines to the Minimum Standards on 1 July

The New Guidelines required schools operating an Early Learning Centre (ELC) to amend their governing document; a constitution, rules or trust deed. This prompted many schools to review and refresh their constitution for other reasons, such as:

1. Compliance with the Australian Charities and Not-for-profits Commission (ACNC);
2. Including the ACNC Governance Standards; and
3. Making it more clear, using plain language and introducing technology or COVID-19 clauses for digital meetings.

We have more information about updating your constitution or rules here.

Other key areas in the new Guidelines included a strengthening of not-for-profit requirements, and the new requirement for annual staff training on the offence of grooming.

Budget crunches: fee reductions, salary increases

Balancing competing concerns may have made budgets particularly unwieldy or tight this year. Key areas we identified that schools need to be across when planning for 2022 are:

1. Employee salaries:

• The need to continue to meet salaries provided by the state government.
• The effect of freezes on salaries in 2020.
• Amendments or negotiations of new enterprise bargaining agreements.

2. Tuition fees

• The effect of caps or refunds in 2020 due to remote teaching.
• Increasing numbers of parents on payment plans.
• Increased demand for scholarships.

3. Insurance

• Reviewing policies for COVID-19 clauses, for example for travel.

Continued remote learning and the mental health dimension

Continued lockdowns shine a light on mental health issues for students. Students that are particularly impacted are secondary students and those who identify as LGBTIQA+, data shows.

Our article on how schools can support students after self-harm or suicide attempts discusses the role of the duty of care in the area of mental health. Tools that can help a school meet this duty of care for students struggling with mental health are:

1. Safety management plan.
2. Return to school plan.

Watch this space for more Moores training for schools in this area.

Boarding house Minimum Standards

From 18 June 2021, new minimum standards for boarding premises came into effect in Victoria. The VRQA then published guidelines for these new standards. Schools were given until 18 September 2021 to complete a deeming process for existing boarding schools to maintain compliance, or work toward compliance with the help of the VRQA. A key reform is the requirements for your Boarding House Acceptance Agreement.

New Child Safe Standards

Amendments to the Child Wellbeing and Safety Act 2005 (Vic) were passed in June 2021.

The amendments will replace the current 7 Child Safe Standards enforced by the Commission for Children and Young People (CCYP) with 11 Child Safe Standards.

Importantly for schools, Ministerial Order 870 will also be updated to reflect these new Child Safe Standards. School boards will need to ensure that the school’s documents and processes are updated by mid-year, and that staff and volunteers are trained on the new standards before they come into effect.

Our article on the New Child Safe Standards in Victoria provides further details about the effect of the new standards. For further information, the CCYP has also published an Information Sheet on the new standards and resources about What’s New and What’s Changing.

Under the amendments, the CCYP’s functions and powers will also be broadened, enabling it to:

• publish guidance notes for sector regulators;
• collect, analyse and publish information in relation to the Child Safe Standards; and
• exchange information in relation to child safety and compliance with the Child Safe Standards with sector regulators.

The new Child Safe Standards will commence on 1 July 2022 and we expect further guidance to emerge in the new year.

How we can help

If you would like assistance with any other these topics for your school, our various linked articles can provide a starting point. Please contact us for more detailed and tailored help.

It is hard to imagine more worthwhile law reform work than finding ways to free Victorians from the risk of sexual offending.

In recent times there has been a significant movement in the call for improving society’s response to sexual offending not only in Australia, but on a global scale. Abroad, the conviction of Harvey Weinstein and the #metoo movement has been significant in bringing attention to this important issue. Back home, we have heard Brittany Higgins’ horrific allegations that she was sexually assaulted in our federal parliament building and the inadequate response to those allegations, child sexual abuse survivor Grace Tame was named Australian of the Year in 2021 for her important advocacy work for victim survivors, and Saxon Mullins has been a vocal advocate for law reform leading to NSW introducing affirmative consent laws for sexual offending.

Did you know that 1 in 5 women over the age of 15 have experienced sexual assault?
85% of these assaults are not reported to police.

On 12 November 2021, the Victorian Law Reform Commission (VLRC) released its report entitled Improving the Response of the Justice System to Sexual Offences (the Report). The Report was commissioned to review and report on Victoria’s laws and the response of the justice system in relation to sexual offending, following years of scrutiny and public debate. Following 99 consultations and 71 written submissions, the VLRC produced a comprehensive report identifying opportunities to build upon previous reforms, identifying barriers to reporting and responding to sexual offences, and recommendations to improve the justice system’s response to sexual offending.

The findings of the Report have the capacity to assist organisations in preventing sexual offending and improving organisational responses to sexual offending.

This article is the first in a forthcoming series in relation to the Report and its recommendations.

So what did the Report recommend?

The Report contains 91 recommendations which provide a roadmap for effective change, impacting community organisations, workplaces, schools, the justice system and the child protection system.

The key recommendations include:

• Providing government resources to continue public education about sexual violence, including common misconceptions about sexual violence and the law of consent.
• Reviewing the content and implementation of the Respectful Relationships education and sexuality education, including improving uptake by all independent, Catholic and government schools.
• Revising the definition of consent with the aim of moving towards a stronger model of affirmative consent.
• Making image based offences indictable offences which have more serious consequences for an offender and taking steps to reduce the over-criminalisation of young people who commit image based offences.
• Including ‘stealthing’ (a criminal act where a person removes a condom (or other contraceptive or STI prevention device) without the other person’s consent) in the definition of consent.
• Implementing recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse in relation to the ‘course of conduct’ charge and the offence of ‘persistent sexual abuse of a child under the age of 16’.
• Amending the Equal Opportunity Act 2020 (Vic) to give the Victorian Equal Opportunity and Human Rights Commission the power to enforce the duty to take reasonable and proportionate measures to eliminate sexual harassment and create an enforceable duty to take reasonable and proportionate measures to eliminate sexual violence.
• Creating an independent body, such as a Commission for Sexual Safety, which would be responsible for implementing the Report’s recommendations, preventing and reducing sexual violence, and supporting people who experience sexual violence.
• Undertaking a review of how various bodies collaborate in their response to sexual violence, including interactions between the justice system and the child protection system.
• Amending various Acts to broaden the rights of victim survivors during the investigation process, including the right to request an independent review of decisions by police or prosecution to discontinue or not file charges or indictments.
• Improving research and data collection regarding sexual offences.
• Providing online access to a central hub to provide people with advice and support regarding sexual offences.
• Funding community organisations to take on key responsibilities including providing safe spaces for people to disclose sexual violence, providing support or referral services, and developing community-specific ways to prevent sexual violence and educate their community.
• Placing a greater emphasis on restorative justice and creating a restorative justice scheme for offences, including working with Aboriginal communities to design accredited restorative justice programs for Aboriginal people.
• Developing a coordinated approach to preventing sexual offending and reoffending, with a focus on early intervention programs.

What does this mean for schools and organisations?

Schools and organisations should prepare to see a number of changes being implemented by the Victorian government in response to the Report over the coming year.

The Victorian Government has made a public commitment to reforming sexual offence laws to include affirmative consent. As Ministerial Order 870 requires schools to provide healthy relationships and consent education, we recommend that schools get on the front foot of the recommendations by ensuring that the education provided to students addresses affirmative consent.

Although the Victorian government is yet to formally respond to the other recommendations in the Report, we recommend as a matter of best practice that organisations:

• Complete a risk assessment to determine what reasonable and proportionate measures can be taken to eliminate sexual harassment and sexual violence in the workplace, including how the organisation responds to complaints regarding sexual harassment and/or assault to ensure that the response is trauma informed. Those risks should be addressed in workplace health and safety policies and procedures, including providing victim survivors with the option to make anonymous reports.
• Pay particular attention to any barriers within the organisation which prevent the disclosure of sexual abuse. Organisations should have efficient complaints processes to ensure a procedurally fair and trauma informed process which allows for appropriate action to be taken which minimises any harm on the victim, and frequent review of those process to ensure continual improvement.

How Moores can help

Moores’ Child Safety team delivers seminars to students to educate them on important topics such as consent, respectful relationships, harassment and image based violence.

Moores can also assist organisations in reviewing, auditing and improving complaints processes, and to reduce barriers in reporting. Moores can assist in responding to complaints or disclosures of sexual offending and harassment to ensure a trauma focused response which is procedurally fair.

If you think your organisation needs training or a refresher, or any assistance in the complaints process, please get in touch with Patrice, Alex or Melissa to discuss how we can assist.

For more information, please contact us.