In 2016, the Victorian Government introduced the ‘no, jab, no play’ vaccination policy for child care and kindergarten. Was this a precursor to today’s debate?

This compulsory vaccination policy meant the only exemption from a vaccination for children attending child care or kindergarten was on medical grounds. The ‘conscientious objector’ loophole was closed at the time by changes to education and care laws.

The introduction of the 2016 ‘no jab, no play’ vaccination policy was accompanied by much community debate around the importance of high immunisation to establish ‘herd immunity’. A catalyst for the policy was an increase in outbreaks of whooping cough and measles.

To complement ‘no jab, no play’, the Federal Minister for Education and Training introduced ‘no jab, no pay’, meaning the Child Care Subsidy and other childcare payments are only paid to parents whose children are fully immunised.

What does this mean for the COVID-19 vaccination in child care and schools?

It is unclear if, in the future, the COVID-19 vaccines may be added to the list of required immunisations for child care. The current vaccines required of four year olds by the Department of Health includes:

• Tetanus;
• Whooping cough (pertussis)
• Polio
• Measles
• Meningococcal
• Chickenpox (varicella)

How might education staff be affected by a vaccination policy?

A number of independent schools are openly promoting COVID-19 vaccination to teachers and other staff. Some will offer the convenience of vaccination to staff on campus, recognising that avoiding lockdowns and spending more time in classrooms with students is likely beneficial to education and development of young people.

Offering access to the vaccine is unlikely to cause any problems for a school, but mandating a vaccination might be a different story.

The recent announcement by major food manufacturer, SPC, which set out that it will mandate vaccinations for its employees, has spurred significant discussion and debate about what employers could, can or should do. While there is some guidance emerging from regulators and even the federal government, many employers, including schools, are uncertain about how to approach vaccinations and their workforce.

It is certain that there will be continued focus on this issue in the coming months with close attention paid to the legal challenges to employers who mandate COVID-19 vaccination. In the absence of government directives or regulation, it will be up to employers to balance competing considerations, including safety risks, in order to assess if mandating vaccination is lawful and reasonable, and therefore defensible, in the employer’s specific circumstances.

Chair of WorkSafe Australia, Ms Diane Smith-Gander, has said businesses where social distancing is difficult such as supermarkets probably have legal backing to mandate vaccinations.

Taking a slightly different approach, NSW Premier Gladys Berejiklian is considering a plan to allow fully vaccinated employees back to work earlier than those who are not. It is unclear how this policy would work practically in an education environment where certain staff to student ratios are required for supervision and duty of care.

Managing parent expectations in the playground

Many schools are considering the practical arrangements regarding mask wearing and social distancing, considering key interactions between parents and parent presence on campus, including at after school pick up and when entering buildings.

In uncertain times, fear and anger can be elevated. Parents may have certain expectations around vaccination of staff, or the behaviour of those on campus regarding social distancing or mask wearing. Others might be opposed to certain COVID measures. It can be a difficult task for schools managing varying expectations.

Clearly communicate the expectations of the school regarding behaviour. The Victorian Government’s Operations Guide provides some expectations and limitations of COVID-safe behaviour. For example, it requires all parents and carers who enter school buildings to use a QR code check-in system, however, QR check-in is not required when parents or carers come onto school grounds for drop off or pick up, but do not enter buildings.

COVID-19 and your cancellation policy

Does your school facilitate events and sell tickets? Perhaps you organise a school concert or speech night? Or a charity gala or ball?

When facing uncertainty in the era of COVID-19, it is important to reflect on your dealings with community members, stakeholders and consumers and ensure your practices meet the standards of the Australian Consumer Law.

Guidance published by the Australian Competition and Consumer Commission (ACCC) confirms that when an event is cancelled due to government restrictions, it is unlikely the consumer (likely parents) will be entitled to a refund under the Australian Consumer Law.

Instead of a refund, you may agree to provide another remedy, such as providing a partial refund, a credit note, gift certificate or voucher, or postponing the event until a later date.

Particularly relevant obligations of the Australian Consumer Law to cancellations caused by COVID-19 are:

• to not mislead consumers, including about what the consumer is entitled to under their terms and conditions;
• to not act unconscionably when dealing with their consumer; and
• to not seek to rely on unfair terms in standard form contracts with consumers.

This means refund or cancellation policies, or terms and conditions, for example, applicable when a school sells tickets to events, may need to be reviewed.

How we can help

With extensive experience helping education clients navigate tricky issues, we approach questions regarding COVID-19 with vigour and enthusiasm, ready to help you meet these emerging challenges.

Moores also has a strong workplace relations team who deliver workplace and industrial relations in commercial and for-purpose sectors, such as education and disability.

Please do not hesitate to contact us.

On 5 August 2021, the High Court of Australia delivered its decision in Workpac v Rossato providing clarity and relief to many employers about entitlements for casual employees, especially with longer term engagements.

Background – the ‘double dipping’ casual

In 2018 in WorkPac v Skene, the Full Court of the Federal Court considered what casual employment really means. Mr Skene claimed that he was really a permanent employee, even though he was hired and paid as a casual. The case sought to challenge the longstanding consensus that the essence of casual employment is a lack of a firm advance commitment as to the duration of employment or as to the days (or hours) of employment.

In Skene, the Federal Court said casual employment depends on the contract terms and how the parties behave during the employment relationship. The Federal Court found that Mr Skene’s and WorkPac’s actions showed a “firm advance commitment” to the employment – for example, Mr Skene’s shifts were programmed many months in advance. This and other indicators led the Court to uphold Mr Skene’s claim with a finding that, despite being hired and paid as a casual, Mr Skene was entitled to paid annual leave and personal leave like a permanent employee; those leave entitlements needed to be calculated based on his casual rate of pay (with the 25% casual loading).

That result was at odds with the prior understanding by employers that casual loading compensated a casual for not receiving paid leave entitlements. Mr Skene was described as “double dipping” because he received both the payment and the leave at his casual rate of pay.

High Court said the analysis starts and ends with the employment contract

WorkPac brought Mr Rossato’s case to the Federal Court and the facts were very similar to the Skene Case but with different legal arguments. Unsurprisingly, the Federal Court upheld its decision in Skene. WorkPac then appealed to the High Court.

The High Court overruled the full Federal Court’s finding. The High Court’s starting point in the Rossato appeal was the same as in Skene and the earlier Rossato case, namely: casual employment relationships lack a firm advance commitment to ongoing employment. The High Court, though, said a “firm advance commitment” must be a legal commitment, not a commitment that one divines from how the parties conduct themselves after the written contract is put in place. Mr Rossato, as a long term regular casual, may have had a “reasonable expectation” of continuing employment, but that is not a legal commitment to ongoing employment.

The High Court’s decision provides clarity that if an employee is hired on a casual basis (that is, signs a written casual employment contract that reflects the casual nature of that engagement) and is paid a casual loading, they do not become permanent just by how the parties behave. Planning out shifts in advance is not enough to make a casual employee permanent. For a casual employment relationship to become permanent, there needs to be a legally enforceable commitment to ongoing employment; put another way, the parties need to amend the employment contract. An expectation/feeling is not enough to attract the legal entitlements of permanent employment.

The decision is significant because it limits an employer’s liability to pay other leave entitlements to casual employees notwithstanding that they received a casual loading.

However, a note of caution that where the contract is only partly in writing, there may be more uncertainty about the nature of the relationship. Other factors, such as way the employer and employee engage with each other, may be relevant in determining the nature of the employment relationship. The Rossato judgment aligns with the new statutory definition of casual employment that the Federal Government introduced in March 2021, which amended the Fair Work Act 2009 (FW Act). Some employers are not covered by the FW Act and guidance from the High Court decision will be particularly important for them.

While the High Court did not rule on the set off argument before it, the FW Act was amended earlier this year to provide a mechanism for a court set off casual loading payments against other entitlements such as leave payable to permanent employees. Click here for Moores’ article on the amendments to the FW Act.

Key Take Away: Casual contracts make casual employees

Employers now have certainty that when they engage a casual employee on a written contract of employment that expressly describes the relationship as a casual one without a firm advance commitment of further work, the relationship is a casual one. As set out in the (now amended) FW Act, it is also helpful to set out in the employment contract that a casual loading is payable, that the employee can elect to accept or reject work and that future work is not guaranteed.

It is timely for employers to review their casual employment arrangements to ensure that written contracts are in place. It may also be timely for employers to review their casual employment contract template to check that it contains the key components that would validate the casual relationship.

How we can help

As well as the recent High Court decision, there have been other changes in this area this year such as the requirement to issue the Casual Employees Information Statement to casual employees and the right to conversion now available to some casual employees.

For more information and advice about the implication of these changes for your organisation and its management of casual employees, Moores can help so please get in touch.

Note: This article contains general information only. It is not legal advice and should not be relied upon as such. You should always obtain legal advice based on your needs and circumstances before taking action on the matters referred to in this article.

Many independent and Catholic schools are feverishly working on their budgets for September approval. In a year like no other, the balancing of competing concerns has never been more challenging or perhaps more important.

In this article, we discuss three key areas schools need to be across as they plan for Budget 2022.

Employee salaries

As in every year, salaries paid to government teachers have a bearing on salaries for other schools. As at the date of publication, the salary negotiations for state government teachers are not yet concluded and look to escalate in the coming months. The teachers’ union has made an opening claim of a 21% increase over 3 years (that is, 7% a year from 2021) as well as pursuing an increase to superannuation contributions from the current rate to 16.5%.

Salaries this year have a particular sensitivity where many schools froze salaries last year and relied on the goodwill of staff to bear this freeze due to the COVID-19 pandemic.

For independent and Catholic schools that have enterprise agreements in place, many of those ‘freezes’ were achieved through majority agreement with employees (which is necessary in order to apply for a formal variation to an enterprise agreement under the regulatory framework). Some schools may have offered commitments to their people to secure an agreement, such as a commitment to minimise job cuts during the pandemic.

As schools approach their next round of enterprise bargaining when current agreements are due to expire, many will need to consider the impact of any prior freezes on employee expectations such as the potential for expectations of higher pay increases to compensate for foregone increases in the past year.

Some schools may also be considering how to build in mechanisms into new enterprise agreements to respond to crisis events, such as a pandemic, should they occur in the future. This may impact terms such as stand down, types of leave and how the leave can be taken, mechanisms to vary pay increases or delay pay increases and/or consultation requirements in the event of urgent change requirements.

Tuition fees

Many schools need to increase tuition due to caps or refunds last year, combined with the fact that some schools’ funding is expected to drop under the DMI funding model. At the same time, schools need to be mindful of parent expectations and the ongoing general insecurity in the community. A few issues which we have seen crop up repeatedly in relation to tuition fees are:

No	Issue	Moores comment
1	Parents claiming a refund for reduced hours in remote learning	Your enrolment is not a per-hour service, and in most cases is holistic, ie you provide a service in exchange for fees. Having said that, many enrolment agreements need to be more explicit regarding the promises made about contact hours and outcomes. Many schools are choosing to add specific enrolment contract provisions which make it clear that remote learning is the same level of “service”. Don’t forget that your “enrolment contract” could be interpreted to include your marketing materials and any handbooks. Beware of being held accountable in relation to promises of “one on one” time or specific academic achievement which may be found in those documents.
2	Increased numbers of parents on payment plans	If you’re allowing parents to pay outstanding fees over time, ensure they are subject to a written payment plan, and that the consequences of breaching that plan are clear (eg back to original terms? Termination?). The scope of the agreement also needs to be clear (just old debt? Applies to all students in the family forever?) as does the obligation of parents to advise if and when their circumstances change, if the payment plan was subject to a hardship application.
3	“Upfront” paying parents move to your school, then “ghost” the school when further payments are sought	Some parents respond to market volatility and move schools and offer to pay some fees upfront. Sometimes, later payments are not forthcoming.
4	Increased demand for scholarships	Some schools require re-payment of foregone fees if a student breaches the terms of the scholarship. Be aware, these re-payment clauses need careful legal drafting to be enforceable. Your application terms also need to be clear, including whether current students are eligible, and including whether decisions can be appealed. Note the VRQA’s April 2021 readiness tool requires a provision on enrolment decision appeals.
5	Increased demand for bursaries	The desire to support students has led to a growing use of tax-deductible funds to provide bursaries to students. Please note that the rules of tax-deductible funds are strict. Some require advertising to the public and cannot be assumed to be available only to currently enrolled students. They are often also limited to fees and cannot be used for camps or uniform etc. On this topic, ensure your donations are voluntary. Only voluntary donations attract tax deductibility. (And on a related subject, check the restrictions on your canteen permit before you start catering to the broader community!)

In addition to the issues which come about in relation to tuition fees, we also note some further considerations for schools when managing outstanding accounts and debtor parents in our article School Debt Collection – front page news.

Insurance

There are some sleepers in relation to insurance. With the resumption of travel, policies need to be carefully checked for COVID-exclusions and the availability of refunds in the event of cancellations due to COVID.

A number of policies are also tightening with respect to historical sexual abuse claims, and the conditions for molestation cover.

To do now

As you prepare your budget, we encourage you to consider:

• Staff salaries – obligations and expectations;
• EBAs – whether this EBA needs revision to account for ongoing pandemic uncertainty (or future pandemics!);
• Your enrolment documents, payment plans, scholarship and bursary arrangements; and
• Insurance coverage, and any related changes needed to risk framework, and whether provision needs to be made in budget.

How we can help

Please do not hesitate to contact us if you have any questions on the above.

Independent and Catholic schools are working on their budgets for September 2021 approval.

In our article “Budget time for schools” Cecelia and Amanda have set out key areas schools should be across as they plan for the 2022 year. In addition to the issues which come about in relation to tuition fees in that article, we also note some further considerations for schools when managing outstanding accounts and debtor parents.

For instance, it made the news when Melbourne Private School Wesley College offered parents discounts of 20% on tuition fees, waived costs and made a $5 million transfer to its scholarship fund in 2020. Yet, it also made the news when a number of Melbourne Private Schools initiated court proceedings against families for unpaid fees with the suggestion schools forcing parents to sell family homes to cover the tuition debt.

We appreciate that schools need to balance their commercial recovery rights with their relationship to families and reputation amongst the community. For that reason we have set out some tips and traps to keep in mind.

Recovery tips

• It is important for schools to get ‘on the front foot’ when managing the accounts. Where there are signs that a family is struggling to make payments or have indicated this is the case, schools should ensure there is an open and transparent dialogue with the family so that it can:
  • make any necessary decisions quickly (i.e. offer a carefully drafted payment plan, a financial hardship discount etc.); and
  • mitigate the risk that the debt escalates to an overwhelming amount – if this occurs, it is likely families will go ‘underground’ or the school will need to take more formal and forceful recovery steps.
• Review the Enrolment Agreement to ensure you know what you can and cannot do in respect of fee recovery.
• Review any court orders / parenting arrangements that may impact fee collection.
• Record in writing any agreements made with parents including:
  • clear dates when payments are due; and
  • any discounts applied to the account.
• Be clear about what happens when there is a default of the agreed payment plan including reserving the School’s rights to take further steps to protect its interests.
• Be proactive in following up any missed payments under an agreed payment plan.
• Consider the tone of all correspondence – while it can be frustrating to chase/deal with a challenging debtor parent, ensure that all correspondence is civil, balanced and reasonable. Imagine if that needs to be provided in court proceedings.
• Keep up to date records of all recovery attempts (formal or informal) and phone discussions with parents.
• Carefully consider when to refer the matter to a debt collector or lawyers for formal collection – use debt collectors that are familiar with the way schools operate. If you think you need legal advice, reach out earlier rather than later.
• Take the time to reflect on a debt recovery matter and learn from what was done well/could have been done better. Consider whether there needs to be a review or update to the Enrolment Agreement (i.e. is it clear who is liable for school fees, was the contract signed, can you recover your legal fees etc.).

Things to watch out for

• Non-compliance with the Enrolment Agreement.
• Family court proceedings/orders.
• Offering arrangements to non-payment parents which are contrary to consumer and credit laws (i.e. be careful about entering into payment plans that could be seen to be a loan to parents).
• Ambiguous payment plans or terms of agreement which can make recovery challenging.

How we can help

Please do not hesitate to contact us if you have any questions on the above.

The tax treatment of the payment of superannuation after a member dies, can vary significantly depending on who receives them (and whether they qualify as a death benefit dependant in the Income Tax Assessment Act 1997 (“Tax Act”). It can mean the difference between a zero tax rate and up to 30%.

Adult children and parents are not usually categorised as “dependants” under the Tax Act, unless they fall within the category of financial dependant, or are in an interdependency relationship. Key factors in assessing whether there is an interdependency relationship include:

• Living under the one roof;
• A close personal relationship; and
• One or each of them provides the other with financial support, domestic support and care.

In some recent private rulings, the ATO has considered the question of whether parents and adult children living in the same house qualify as inter-dependants in the context of members who are terminally ill, and in some cases have moved back in together for support and care. The table below summarises 5 cases as examples:

	1	2	3	4	5
Deceased member	Adult child	Adult child	Adult child	Parent	Adult Child
Beneficiary	Parent	Parent	Parent	Adult Child	Parent
Domestic or emotional support provided	Yes	Yes	Yes	Yes	Yes
Financial support provided	Not significant	Yes	Yes	Yes	Yes
Living apart before illness	Yes	Yes, but not for long	Yes	Yes	Yes
Period living together prior to death	Short	Most of their lives	24 years	Not stated	Not stated
Interdependant?	NO	YES	YES	YES	NO

In each of these cases the focus was on whether there was a “close personal relationship” between the parties which is a key factor to establishing inter-dependence. Consistently the ATO stated that generally such a relationship would not exist between a parent and a child, because the relationship would be expected to change over time and no mutual commitment to a shared life would exist.

In all but example 1 and 5, the ATO found that the definition of “interdependent relationship” was satisfied. In example 1 and 5, it was found that the facts did not support anything beyond usual family arrangements, and no commitment to a mutual life.

What can we take away from these decisions?

1. For a parent/child relationship to qualify as an interdependency relationship, there needs to be more than just loving familial relationships under the one roof.
2. The test of mutual commitment to an shared life is more likely to be satisfied where:
   • The period of time of living together is lengthy;
   • Either or both parties have made or changed their arrangements so as to enable to mutual commitment to be permanent. For example, in case 4 above where inter-dependence was found, the child had changed career and moved the parents into his house in order to care for them.
3. If in doubt, a private ruling application might be appropriate. This is particularly the case for executors of an estate, because they bear the liability when the death benefits are paid via the estate.

How we can help

For  more information, or if you would like access to the specific private edited rulings, please do not hesitate to contact us.

Moores is delighted to announce the appointment of Amanda Junkeer as a Practice Leader at Moores joining our Corporate Advisory Team.

Amanda has extensive experience in all aspects of employment law with a focus on industrial relations advice and representation, enterprise bargaining strategy, and managing employment disputes and grievances.

Amanda joins Moores bringing over 20 years’ experience in workplace relations including recent appointments as General Counsel at Australian Red Cross Lifeblood, Special Counsel at Clayton Utz, and General Manager of Workplace Relations at Spotless.

Amanda will work closely with Skye Rose, Som Leung and members of the Corporate Advisory Team to deliver workplace relations, industrial relations and compliance work in commercial and for-purpose sectors such as disability, health, aged care and housing.

When asked ‘why Moores?’, Amanda said “Moores is unique in its approach to client services, from value pricing to value alignment with its clients. Moores partners with great clients and embraces a culture of care for its people. That is fantastic not only for everyone who works at Moores but also for clients who benefit from the genuine team work that contributes to its results.”

We’re thrilled to welcome Amanda.

To find out more, please do not hesitate to contact us.

The “gift and loan back” strategy essentially provides an opportunity for some protection of assets, otherwise vulnerable to bankruptcy, occupational and estate challenge risks, by transferring the value of those assets (not the assets themselves) to a structure with lower risk (typically a discretionary trust). 

An example of how this can be done is an individual gifting cash equivalent to the value of the asset they intend to protect to a trust, then the trust loaning the cash back to the individual for their personal use. Often there’s a mortgage involved, to provide security against the individual’s real property. Without transferring the assets themselves, capital gains tax and stamp duty implications can typically be avoided.

In the context of estate planning, a “gift and loan back” arrangement may be implemented to add a hurdle to any potential claimant to the estate. Essentially, the arrangement may succeed in acting as a deterrent to claimants, who will need to work harder to access the estate assets.

A recent Queensland Supreme Court case of Re Permewan [2021] QSC 151 provides valuable insight into a “gift and loan back” strategy and its application in the context of an estate challenge.

In this case, Prudence Permewan died in 2019, and was survived by three adult children, whose relationship was fairly strained. The deceased’s only son was appointed as executor of the estate, which had a value of approximately $3M comprising the deceased’s home and some share holdings.

The deceased’s Will gifted the entirety of the estate to her existing family discretionary trust, and also appointed the deceased’s son as the controller of the trust. The effect of this was that the son was in control of all the deceased’s assets.

The case also examined a number of transactions the deceased undertook in 2018. In summary:

1. The deceased gifted $3M to the family trust via a promissory note (which represented her approximate net worth at the time); and
2. The family trust then loaned the $3M back to the deceased, which was documented via a loan agreement, and the family trust registered a mortgage over the deceased’s home and also registered security over her shares.
   

Importantly, in these transactions the deceased did not have sufficient liquidity to gift cash to the trust, and no money ‘changed hands’ for either of the two transactions.

The effect of the transactions was that all of the deceased’s ‘worth’ was shifted into the trust, leaving the estate with little value for the deceased’s other two children to claim against.

Unsurprisingly, one of the deceased’s other children brought an application for the removal of her brother as executor of their late mother’s estate, given his reluctance (despite his role as executor) to investigate the “gift and loan back” transactions, and whether they were actually binding on her estate. Such unwillingness was criticised by the Court, with Justice Davis confirming “it’s at least arguable he should be considering setting aside the $3 million transaction”. Ultimately it was decided that the son was in a “hopeless position of conflict” given he would essentially need to sue himself as controller of the trust to test the enforceability of those transactions.

The Court ordered to remove the deceased’s son as executor, and appoint an independent legal practitioner as administrator of the estate, who will now have the role of determining what to do about the deceased’s 2018 transactions.

Key Lesson

The key lesson from this case is that if you want to implement a “gift and loan back” arrangement, the money needs to actually change hands. It’s all well and good for the transactions to be documented, but unless the transactions are actually taking place, it’s far more likely that they will be challenged.

Consideration should also be given to an executor’s duty to enlarge the estate, and whether it is appropriate to deal with this duty in the Will.

How we can help

Individuals and their advisors should be very careful in seeking to implement any “gift and loan back” arrangement and should consider whether more effective options may be undertaken. For expert advice or guidance regarding Estate Planning, please do not hesitate to contact us.

New Child Safe Standards will come into force on 1 July 2022 after an amendment to the Child Wellbeing and Safety Act 2005 (Vic) was passed by the Victorian Parliament in June 2021.

The amendments will replace the current 7 Child Safe Standards enforced by the Victorian Commission for Children and Young People (CCYP) with 11 Standards. The existing 7 Child Safe Standards only came into effect on 1 November 2018, demonstrating the constantly changing expectations regarding child safety.

The 11 Child Safe Standards commencing in 2021 (New Standards) are more specific, prescriptive and include additional obligations which align with recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse.

Although similar to Victoria’s current Child Safe Standards, key changes include new requirements:

• to involve families and communities in an organisation’s efforts to keep children and young people safe
• for a greater focus on safety for Aboriginal children and young people  to manage the risk of child abuse in online environments
• in relation to governance, systems and processes to keep children and young people safe.

Prescribed organisations will need to make changes to policies, key documents and internal procedures and practices to comply with the new Standards. Compliance with the New Standards will be mandatory from 1 July 2022.

In addition to establishing the New Standards, the amending Act will increase the monitoring and compliance activities to better enforce compliance with the Standards. Further, there are also associated changes to the Education and Training Reform Act 2006 (Vic).

The New Standards do not change obligations related to mandatory reporting to the Department of Families, Fairness and Housing (formerly the Department of Health and Human Services) or police, the Reportable Conduct Scheme, the Working with Children Check requirements, the Child Information Sharing Scheme or other child safety laws.

A high level summary of key changes identified by the CCYP is outlined below.

New Child Safe Standards (commencing 1 July 2022)	What’s new or changing
Child Safe Standard 1 Organisations establish a culturally safe environment in which the diverse and unique identities and experiences of Aboriginal children and young people are respected and valued	The new Child Safe Standard 1 requires organisations to take new steps to create a culturally safe environment for Aboriginal children and young people. Organisations must meet this requirement regardless of whether or not they know that there are Aboriginal children and young people currently using their services or facilities. This new Child Safe Standard 1 means that most organisations will need to improve their current approach to creating a safe environment for Aboriginal children and young people and their families. Implementing this Standard will require ongoing effort, not just a once-off change. This Standard links to new Standard 5 which requires that equity is upheld and diverse needs are respected in organisations.
Child Safe Standard 2 Child safety and wellbeing is embedded in organisational leadership, governance and culture	Many aspects of the new Child Safe Standard 2 are consistent with what organisations are currently required to do under existing Standards 1, 2 and 3. The new Child Safe Standard 2 has a greater emphasis on information sharing, record keeping and governance arrangements to create a child safe culture at all levels in an organisation. The management of risks to children is required to be embedded in organisational leadership, governance and culture.
Child Safe Standard 3 Children and young people are empowered about their rights, participate in decisions affecting them and are taken seriously	The Child Safe Standards have always required organisations to have strategies in place to empower children and young people and promote their participation. These obligations remain. Additional requirements for organisations under the new Child Safe Standard 3 include: • informing children and young people about their rights • recognising the importance of friendships and encouraging support from peers, to help children and young people feel safe and connected • offering children and young people sexual abuse prevention programs where relevant • equipping staff and volunteers to identify the signs of harm to children.
Child Safe Standard 4 Families and communities are informed, and involved in promoting child safety and wellbeing	Many organisations already inform and involve families and communities as part of complying with the current Child Safe Standards. The new Child Safe Standard 4 creates specific obligations on organisations to involve families and communities in promoting child safety. New obligations mean organisations must ensure they: • seek the input of families and communities in decisions impacting children and young people • involve families and communities in the development and review of their child safe policies and practices • communicate effectively with families and communities about how to raise child safety concerns and how the organisation operates • take into account the diversity of families and act to reduce barriers to inclusion.
Child Safe Standard 5 Equity is upheld and diverse needs respected in policy and practice	The Child Safe Standards have always required organisations to recognise and respond to diversity and understand that some children are more vulnerable to abuse than others. To date this has been expressed through three principles relating to the cultural safety of Aboriginal children, culturally and/or linguistically diverse children and the safety of children with disability. These obligations continue, but the new Child Safe Standard 5 makes some additional obligations explicit, requiring organisations to: • understand children and young people’s diverse backgrounds, circumstances and needs • make any necessary adjustments and provide equal protection to all children and young people • consider the needs of children and young people who are unable to live at home as well as lesbian, gay, bisexual, transgender and intersex children and young people. This Standard links to new Standard 1, which requires organisations to establish a culturally safe environment in which the diverse and unique identities and experiences of Aboriginal children and young people are respected and valued.
Child Safe Standard 6 People working with children and young people are suitable and supported to reflect child safety and wellbeing values in practice	The current Child Safe Standards already require organisations to have child safety policies and procedures for recruitment and selection processes, screening, supervision, training, development and performance monitoring of staff and volunteers. They are also required to make staff and volunteers aware of the organisation’s reporting procedures for child safety issues. Under the new Child Safe Standard 6, organisations will have new obligations to inform staff and volunteers about: • the organisation’s record keeping processes in relation to child safety and wellbeing • information sharing and reporting obligations.
Child Safe Standard 7 Processes for complaints and concerns are child focused	The current Child Safe Standards require organisations to have effective processes that support children and young people to raise complaints and ensure that the organisation can appropriately respond to and report suspected child abuse. The new Child Safe Standard 7 emphasises the importance of complaints processes being child focused and understood by children and young people and their families, in addition to staff and volunteers. The new Child Safe Standard 7 also makes explicit the obligations for organisations to: • take complaints seriously, and respond to them promptly and thoroughly • co-operate with law enforcement • meet reporting, privacy and employment law obligations.
Child Safe Standard 8 Staff and volunteers are equipped with the knowledge, skills and awareness to keep children and young people safe through ongoing education and training	The current Child Safe Standards already require organisations to provide information and training to staff and volunteers so that they can create child safe environments and respond to allegations of abuse. The new Child Safe Standard 8 spells out obligations for organisations to train and support staff and volunteers, and provide ongoing education and training to: • implement the organisation’s child safety and wellbeing policy • recognise indicators of harm (including harm caused by other children and young people) • respond effectively to child safety issues and concerns and support colleagues who disclose harm. This Standard links to new Standards 1 and 5, with all three Standards placing obligations on organisations to provide training and information for staff and volunteers on building safe environments for children and young people.
Child Safe Standard 9 Physical and online environments promote safety and wellbeing while minimising the opportunity for children and young people to be harmed	The current Child Safe Standards already require organisations to be mindful of the risks associated with both physical and online environments and to adopt measures to remove risks of child abuse. The new Child Safe Standard 9 contains specific obligations for organisations to: • consider online environments in addition to physical environments • identify and mitigate risks in these environments without compromising a child or young person’s right to privacy, access to information, social connections and learning opportunities • promote child safety and wellbeing as well as minimising the opportunity for children and young people to be harmed • have procurement policies that ensure the safety of children and young people if the organisation contracts facilities and services from third parties.
Child Safe Standard 10 Implementation of the Child Safe Standards is regularly reviewed and improved	Review and continuous improvement are already part of the current Child Safe Standards. The new Child Safe Standard 10 contains new obligations for organisations to: • analyse complaints, concerns and safety incidents to identify causes and systemic failures to inform continuous improvement • report on the findings of relevant reviews of child safe practices to staff and volunteers, community and families and children and young people.
Child Safe Standard 11 Policies and procedures document how the organisation is safe for children and young people	Preparing comprehensive policies and procedures to support implementation of child safe practices is already required by the current Child Safe Standards. The new Child Safe Standard 11 contains new obligations for organisations to: • make policies and procedures easy to understand • use stakeholder consultation and best practice models to inform the development of policies and procedures • ensure organisational leaders champion and model compliance with policies and procedures.

Further information on the key changes is available here.

A new standard for Aboriginal children and young people

A significant addition to the new 11 Standards is a specific standard requiring organisations to establish a culturally safe environment in which the diverse and unique identities and experiences of Aboriginal children and young people are respected and valued. Recommended by Justin Mohamed, Victoria’s second Commissioner for Aboriginal Children and Young People, this new standards requires organisations to embed strategies to equip all members to acknowledge and appreciate the strengths of Aboriginal culture and to ensure racism is identified, confronted and not tolerated.

The Commission for Children and Young People will have increased powers.  

The CCYP has oversight and enforcement of the Child Safe Standards. Its functions and powers will (from 1 July 2022) include:

• Providing education, information and advice on the Child Safe Standards;
• Publishing guidance notes for sector regulators (such as VRQA) to promote consistent enforcement of the Standards;
• Being a sector regulator itself;
• Collecting, analysing and publishing data relating to compliance with the Standards; and
• Working collaborative with sector regulators and promoting information exchange between itself and other sector regulators.

The Victorian Registrations and Qualifications Authority will have increased enforcement powers regarding schools.

There are also increased responsibilities of sector regulators in monitoring and enforcing the Child Safe Standards. For example, the Victorian Registrations and Qualifications Authority (VRQA) will be responsible for monitoring and enforcing compliance of the Standards by schools and other education and training entities allocated to it.

Sector regulators, such as the VRQA are provided functions that include:

• Providing education, information and advice on the Child Safe Standards;
• Investigating, monitoring and enforcing the Standards;
• Collecting, analysing and publishing data relating to compliance with the Standards; and
• Promote the improvement by relevant entities in relation to child safety.

What do organisations need to do now?

To prepare for the New Standards organisations should:

• Review the New Standards and what is changing by reading What’s new? Overview of the new Child Safe Standards, What’s changing? Compare current and new Child Safe Standards and the Frequently Asked Questions.
• review their structures, systems and practices to assess what they needs to do to meet the new Standards by 1 July 2022; and
• and start planning the transition now.

The CCYP has said it will provide further information and guidance over the coming months to help organisations prepare for compliance with the New Standards by 1 July 2022.

How Moores can help

Child safety regulation is complex and constantly changing. Organisations need to be aware of the latest developments and reforms in order to maintain compliance. Strong governance is key to child safety.

Moores has extensive experience in child safety. We work closely with organisations to meet their obligations and create a child safe environment. Our education and child safety teams have deep expertise in child safety, regulation, education, and governance. For more information or expert advice on child safety matters, please do not hesitate to contact us.

On 24 June 2021, the Federal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill), which aims to strengthen and simplify the legislative frameworks that protect workers from sex discrimination and sexual harassment in the workplace.

The Bill responds to recommendations of the Respect@Work Report published by the Australian Human Rights Commission (AHRC) following the 2018 National Inquiry into Sexual Harassment in Australian Workplaces.

If passed, the Bill will amend the Sex Discrimination Act 1984 (Cth) (SD Act) and the Fair Work Act 2009 (Cth) (FW Act) and Australian Human Rights Commission Act 1986 (AHRC Act).

Summary of Key Changes proposed by the Bill

• Orders to Stop Sexual Harassment: The existing anti-bullying jurisdiction in the FW Act would be amended to allow the Fair Work Commission to make an order to stop sexual harassment in the workplace. Like stop bullying orders, the focus would be on preventing harassment, not providing financial compensation. In contrast to existing stop bullying orders, the conduct would not need to be repeated to qualify. This proposed amendment aims to afford those who have suffered workplace sexual harassment with access to a fast, low cost, informal mechanism to deal with complaints.

• Harassment on the Grounds of Sex: Sex-based harassment would be prohibited under the SD Act, which would be defined as unwelcome conduct of a seriously demeaning nature by reason of the person’s sex, in circumstances which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. The Bill would also make it unlawful to harass a person because of a physical characteristic that relates to sex (such as a woman’s pregnancy) or that society generally imputes to a particular sex (such as carer’s responsibilities). This is relevant to both employees, and employers who can be held vicariously liable for the conduct of their workers.

• Liability of Third Persons: Ancillary liability provisions would be extended to sexual harassment and harassment on the grounds of sex, meaning for example, a supervisor may be held liable as an ‘accessory’ to the sex-based harassment if they aided and permitted its continuation.

• Valid Reason for Dismissal: The FW Act would be amended to clarify that sexual harassment can provide a valid reason for dismissal in determining whether a dismissal was ‘fair’ for the purposes of the unfair dismissal regime. The Government has also indicated that it will amend the definition of ‘serious misconduct’ in the Fair Work Regulations to include sexual harassment.

• Expansion of Operation and Application of SD Act: The protection from sexual harassment under the SD Act would be expanded to include those not previously covered such as interns, volunteers, and self-employed workers. It also clarifies that the SD Act would applies to judges, staff and consultants employed under the Members of Parliament (Staff) Act 1984 (Cth).

• Victimisation: The Bill would provide that victimisation (such as threatening or subjecting a person to detriment for taking action such as lodging a complaint) can form the basis of a civil action for unlawful discrimination (in addition to a criminal complaint) under the SD Act.

• Paid Compassionate Leave for Miscarriages: The Bill would clarify that women who experience a miscarriage, and their partners, will have access to existing rights for up to two days of compassionate leave.

• Extension of time to make a sexual harassment complaint: It is proposed that the AHRC Act be amended to give the President of the AHRC discretion to terminate a complaint that relates to the SD Act more than 24 months after the alleged acts, omissions or practices took place (currently it is six months). According to the Explanatory Memorandum to the Bill, this provision has been inserted in response to recognition that complaints initiated under the SD Act, including for sexual harassment, may be difficult for a person to lodge within six months.

The Bill has been referred to the Senate Education and Employment Legislation Committee which will report on 6 August 2021. While the Bill has not yet been passed, we recommend that you put the reforms on your radar as the changes have broad support from both sides of Parliament. We will monitor the Bills progress and provide an update on any developments.

How we can help

Moores works with organisations across Australia to prevent sexual harassment and discrimination in the workplace, and supports organisations to respond swiftly and sensitively when complaints or issues arise. Please do not hesitate contact us if you would like to discuss how we can support your organisation.

The content of this article is intended to provide general guidance only. Specialist advice should be sought about your specific circumstances.

The Education and Training Reform Act 2006 (Vic) has been amended to grant powers to Principals and other authorised officers to ban disruptive or threatening parents from school grounds – immediately.

The new laws significantly alter the power relationships between parents and teachers, giving teachers greater protection from threats.

The Education and Training Reform Amendment (Protection of School Communities) Act 2021 (Vic) (‘the Protection Act’) was passed into law by the Victorian Parliament on 28 June. Amendments made by the Protection Act support schools and members of school communities facing harmful, threatening or abusive behaviour which does not meet the level of threat required for an intervention order, but which is nevertheless damaging and dangerous.

Victorian Minister for Education James Merlino said “No one should be threatened or intimidated at work or at school“.

Who can ban people from a school?

The new laws empower ‘authorised persons’ to prohibit a person from entering or remaining on any school-related premises.

At a Catholic or independent school, the Principal and the proprietor of the school are authorised persons who can ban adults from school premises.

Who can be banned from a school?

An authorised person (the Principal or proprietor) can exclude anyone from school premises, except:

• People under 18 years of age;
• A staff member at the school; or
• A student at the school.

This means schools have the power to exclude a threatening parent. This power extends to school related places, such as swimming carnivals or other similar events outside ordinary school premises.

An adult person can also be prohibited from being on school premises, or approaching, telephoning, or otherwise contacting specific staff members, or from using a communication platform controlled by the school.

When can an authorised person make a Safety Order?

In addition to immediate orders, the new laws empower authorised persons to make ongoing Safety Orders. An authorised person can make a Safety Order about a person only if they are satisfied there are reasonable grounds to believe the person:

1. poses an unacceptable and imminent risk of harm to another person on school premises or a member of the school community at any school related place;
2. poses an unacceptable and imminent risk of causing significant disruption to the relevant school or activities carried on by the relevant school;
3. poses an unacceptable and imminent risk of interfering with the wellbeing, safety or educational opportunities of students enrolled at the relevant school;
4. has behaved in a disorderly, offensive, abusive, intimidating or threatening manner to a member of the school community, or at a place where school related activities are taking place; or
5. has engaged in vexatious communications relating to a staff member.

There are additional necessary considerations. An authorised person making a Safety Order needs to consider if the Safety order will address the risk of harm, disruption or interference. An authorised person must also consider any vulnerability or disability of the person subject to the order, the impact of the order on any student’s right to access education and the safety and wellbeing of any child involved.

The circumstances in which a Safety Order may be made are broad.

The Protection Act expands protections afforded to school staff by capturing a wide spectrum of harmful conduct. The proposed Protection Act defines ‘harm’ broadly. ‘Harm’ means harm of any kind, including physical or mental harm.

The threshold of harmful conduct required for a Safety Order is far lower than the threshold required for Personal Safety Intervention Orders (explained Victorian Treasurer Mr Pallas in the second reading speech).

Immediate Safety Orders can only be in place for 14 days. This gives schools time to implement a longer lasting Safety Order, which would have additional requirements.

Your Parent Code of Conduct and other obligations

Schools should consider any required amendments to their policies and procedures. Particularly, the internal and external review processes proposed by the Protection Act may vary procedures set out in the Grievance Policy or Parent Code of Conduct of the school.

Parent Codes of Conduct, and other tools like Communication Plans, still have a role to assist schools in dealing with serial offenders or keyboard warriors whose bad behaviour may fall short of meeting the new safety order rules. Safety Orders are also an additional weapon in the armoury of schools which use a Parent Code of Conduct, enabling the school to build in a clear escalation to a Safety Order in the event of continued breaches of the Parent Code of Conduct.

Schools will also have to continue to navigate the complicated interplay between intervention orders and family court orders, which might necessitate the school providing ongoing information and access to a parent even where an intervention order exists.

Lastly, schools must always prioritise the safety of students and staff, and still call the police in the event of any immediate threat.

How we can help

If you have any queries about these proposed amendments or your Parent Code of Conduct, our education team can assist and has deep expertise and experience in education, including child safety, regulation, not for profit compliance, governance, enrolments and constitutions. For more information, please do not hesitate to contact us.