The Acting Chief Health Officer has issued new written directions mandating staff working in certain workplaces, participating in specified activities and certain categories of workers to be vaccinated against COVID-19 in order to be permitted to work outside of their home. These directions include:*
(collectively, the Health Directions).
It’s common in the not-for-profit sector for one organisation to be caught by multiple directions, so beware of the trap of some workers being excluded by one direction but caught by another. One example is school bus drivers, who are not caught by the schools mandate in the Facilities Directions but are caught by other directions applying to the transport industry!
The Health Directions require employers to notify affected workers of the requirements as soon as is reasonably practicable. To help you navigate the different dates, here are key dates for the sectors we’ve been supporting in implementing the various Directions.
We recommend you step through the considerations as follows:
If staff have not been vaccinated by the First Dose Date or have not provided the above information (with supporting evidence) by the Data Collection Date, employers must not permit staff to leave their home to perform work duties. However, if a worker has a booking for their first dose before the First Dose Date, they can continue to attend work until the First Dose Date.
Significant penalties apply if a person or organisation fails to comply with the Health Directions (including up to $21,808 for an individual and $109,044 for an organisation) or if they provide false or misleading information (including up to $10,904 for an individual and $54,522 for an organisation).
Limited exceptions are permitted under the Health Directions on specific medical grounds only, or temporarily in the event of an emergency or in the event schools require staff to carry out oral or performance VCE examinations or work as a venue coordinator for those examinations. However, if an exception does not apply, there are many options that employers can consider in the event a staff member refuses to be vaccinated. Employers may consider:
Employers can minimise the risk of an unfair dismissal, discrimination or general protections claim by putting in clear processes and documenting the decision making process.
In short, the answer is yes! Even though employers are required to comply with the Health Directions, they are required to consult with staff about how those Health Directions are implemented in the workplace to meet their occupational health and safety requirements and consultation requirements under awards or enterprise agreements.
For example, how will you manage the process of assessing whether a staff member has an eligible exception? What will you do if a staff member does not meet the requirements for an exception but is still unable (or unwilling) to be vaccinated? These issues can be addressed in a written policy, and staff should have the opportunity to comment on that policy.
Privacy obligations exist mainly under the Privacy Act 1988 (Cth), however, the employee records exemption means the Australian Privacy Principles do not apply to employees. They do continue to apply to contractors, volunteers, and other individuals.
If you are operating in Victoria, there are specific health privacy laws that apply to all health information in addition to the Privacy Act 1988 (Cth).
To better protect individuals’ privacy, and reduce the risks of serious data breaches by your organisation, you may choose to not collect copies of vaccination certificates and instead record that a certificate has been sighted. Consider principles of:
Not-for-profit employers need to ensure that they have communicated the vaccination requirements to their staff and confirm the vaccination status of their staff members before the relevant date. The team at Moores can assist you with:
Both the Facilities Directions and Workers Directions were updated in the last 24 hours. The information above reflects the current directions. There have been changes to some aspects in the Health Directions, such as the list of medical providers who are permitted to provide evidence supporting a medical exception. If you have already acted upon the last versions of the respective Health Directions, we recommend that you review any written directions to staff, including any policies or procedures, to give effect to the revised Health Directions.
Please contact us if you need a helping hand to wade through the murky and contentious world of mandatory vaccinations.
* Specific requirements also apply to patrons and workers in theatres and personal training. See the COVID-19 Vaccinated Activities Directions (No 3) for more information.
If you operate in Victoria or New South Wales, these states’ health privacy laws apply directly to your organisation regarding health information. If you are starting to collect vaccination information from workers or stakeholders in Victoria and New South Wales, you need to think about health privacy and the Privacy Act. Victoria and New South Wales both have information privacy principles and health privacy principles that apply specifically to health information.
If you operate in other states or territories across Australia, those states’ privacy laws many apply though a funding contract. More information about the various privacy principles is in our recent article: Health privacy: are you prepared to collect vaccination status and meet privacy obligations?
State contracts for funding, grants or the provision of goods and services to government organisations can include requirements that your organisation must comply with the privacy laws of that State or Territory.
Government departments often face a requirement that they impose the same standards on contractors.* This is to ensure that government information when disclosed from the government to your organisation for purposes under the contract, that information is handled according to the same standards applying to that government.
In addition to requiring your organisation to comply with certain privacy principles, the contract terms may also require training or breach reporting.
Charities with less than $3 million annual turnover are not bound by the Privacy Act, however, the same contractual obligations may be imposed by contracts with the Commonwealth government. This contracted service provider requirement overrides the small business exemption.**
This would mean the Australian Privacy Principles would apply, as well as the Notifiable Data Breach scheme.
While there are many different privacy principles across Australia, the foundational concepts have strong similarities.
You should always endeavour to meet the higher standard. Often, health privacy principles will have tighter restrictions on the handling of health information, again reflecting the intrusiveness and personal nature of someone’s health information.
If your organisation is preparing to collect vaccination information from employees, clients or other stakeholders, we recommend reflecting on what privacy laws apply to your organisation – including health privacy principles. Now is the time to implement strong collection and security measures for health information such as vaccination status.
Vaccination status is considered health information and therefore sensitive information in most jurisdictions across Australia. This means stricter requirements on how you collect, use, disclose and store that information.
The below mind map contains some ideas and concepts relevant to protecting vaccination information.
Our privacy team can help you identify gaps in your current information handling practices to ensure you are meeting all applicable requirements. We can help redesign information flows and storage through your organisation to ensure compliance and protection of your data assets at all times of the information lifecycle.
Please contact us.
* Information Privacy Act 2000 (Vic) s 17; Information Act 2002 (NT) s 149.** Privacy Act 1988 (Cth) s 6D(4)(e).
When acting as executor it’s crucial that you fully appreciate the task ahead, and the risk of liability that comes with the role, before accepting it.
Proper planning is key to ensuring that it’s ultimately a rewarding role, and not a costly one. Crucial to this planning, is knowing what timeframes apply when administering an estate.
We’ve prepared a snapshot of some important timeframes to bear in mind. Download our Deceased Estate Key Time Frames fact sheet here.
If you would like any further information, have an enquiry relating to deceased estates or an estate dispute, please do not hesitate to contact us.
Welcome to the fourth in our series on Special Disability Trusts (SDTs), where we hope to demystify particular aspects of these trusts, and highlight the benefits, eligibility requirements and restrictions to look out for.
As discussed in our previous articles in this series, the two main benefits of establishing a SDT for a vulnerable person are:
In this article we discuss additional benefits that may be available to immediate family members, where gifting to the SDT can improve their own eligibility for a Centrelink benefit.
Generally, a person cannot reduce the value of their assets in order to obtain a social security advantage (we note that different rules apply in relation to “granny flat” arrangements).
Sections 1123 – 1127A of the Social Security Act 1991 (Social Security Act) limit the value of assets that can be disposed of to the lesser of $10,000 per year or $30,000 over a five year period.
If the value of disposals exceed these amounts, then for the purposes of means testing, the excess value will be deemed to still be part of the person’s assets for a period of five years after the disposal.
However, Div 4 of Part 3.18A of the Social Security Act provides that if certain conditions are met, an asset transferred to an SDT is not to be considered a disposal within the meaning of section 1123.
The main conditions are that:
If the conditions are met, this could mean that a person (eg a parent of someone who qualifies for an SDT) could reduce their own means tested assets by gifting up to $500,000 into an SDT, thereby immediately increasing their own eligibility for a Centrelink benefit (eg the age pension).
If you (or someone you know) are in a position where your Centrelink eligibility for a benefit could be increased if you were able to reduce your assets and an immediate family member has a disability that would qualify them for a SDT, then this could be something to explore further. You should first seek advice from a licenced financial planner who has expertise in this area, to see if this would be suitable for your particular circumstances.
Look out for the next article in our series, when we discuss the State Duty concessions and exemptions that are available when transferring dutiable assets to a Special Disability Trust. For more information or guidance, please do not hesitate to contact us.
From a family law perspective, upon the breakdown of a relationship, the Family Law Act 1975 (Cth) (“the Family Law Act”) has far reaching powers in determining what is and is not property of a party to a relationship and how property should be divided to ensure a just and equitable outcome.
It is well established that the Federal Circuit and Family Court of Australia has the ability to determine assets held in discretionary trusts to be property of the relationship.
The recent case of Rigby & Kingston (No.4) (2021) has emphasised how the careful structure and administration of trusts can provide protection in the event of a relationship breakdown.
Rigby & Kingston provides an example of how it is important to consider how your estate plan is structured and who you are passing control of a trust to upon death. It further emphasises that your estate plan cannot be considered as sufficient asset protection in a vacuum and the Federal Circuit and Family Court will still consider the individual circumstances of each relationship and how their finances were managed.
For expert advice regarding Estate Planning & Structuring, or advice in relation to the commencement or breakdown in a relationship, please do not hesitate to contact us.
Before 1 July 2017, there was no stamp duty payable if any property was transferred between spouses or domestic partners.
After 1 July 2017, there was a change to the Duties Act 2000 (Vic) (“the Act“) which restricted the availability of stamp duty exemption to the transfer of the principal place of residence (being the ‘home’) between spouses or domestic partners, provided the transfer is a gift – meaning, the recipient does not pay to acquire it.
The Act did not change the availability of a stamp duty exemption for property transfers arising from the breakdown of a marriage or a domestic relationship.
Following the changes to the Act, the current eligibility criteria for the duty exemption are:
Typically, proving eligibility under the first two criteria is quite straightforward. However, when it comes to the residency requirement and the no consideration requirement, there are some important issues to be aware of.
Not only must the property being transferred be the principal place of residence, it is a requirement for duty exemption that the property will remain the principal place of residence of at least one person in the relationship for the next year after the property transfer takes place.
There is a positive obligation on couples who use this duty exemption to ensure they advise the State Revenue Office (“SRO“) of any changes to their circumstances in this 12-month period, if they will not be using the property as their home for the full year.
Our experience is that the SRO is vigilant in determining whether a property being transferred is genuinely a principal place of residence and ensuring compliance with the ongoing residency obligation.
If the property being transferred is unencumbered, provided the recipient does not pay to receive the property, the no consideration criteria can be quite simple to satisfy.
Where there are loans secured against the home, the no consideration requirement comes sharply into focus.
If there is a mortgage on the property, and at the time of the transfer, the recipient gives a mortgage which either:
then the no consideration requirement will be satisfied, provided the SRO is satisfied the couple has not entered into the transfer simply to access the duty exemption (meaning, there would need to be another reason for the transfer to take place). This typically covers a genuine refinance, or mortgages created at or before the time of the transfer, or those created to secure borrowings used for the improvement of the property.
A recent example where the SRO was not satisfied that the ‘no consideration requirement’ was met, is as follows:
In these circumstances, the SRO took the view that consideration had passed between the parties resulting in the transfer being dutiable.
Transferring property between spouses or domestic partners is not as straightforward as it once was.
Before proceeding with a property transfer between spouses or domestic partners, there is value in seeking advice about whether or not, in the specific situation, the duty exemption criteria are satisfied. In some circumstances, requesting the SRO make a private ruling may provide comfort and certainty about the eligibility for this duty exemption.
Please contact us for more detailed and tailored help.
In this update, you will find information about the most recent government directions and key dates to ensure compliance in time for the resumption of teaching in term 4.
The relevant government direction is the “Directions from Acting Chief Health Officer in accordance with emergency powers arising from declared state of emergency COVID-19 Mandatory Vaccination Directions (No 5)” issued on 2 October 2021. The direction applies to education providers who are:
Under the direction, school staff must have had:
By 18 October 2021, schools need to have collected the following information from staff:
If staff have not provided the above information by 18 October 2021, they will not be permitted on school grounds, and will need to be treated as though they are unvaccinated.
Additionally, if staff have not received their first dose by 18 October 2021 but have made a booking to receive their first dose by 25 October 2021, they will be permitted on site. If the person has not received their first dose by 25 October 2021, they will not be permitted on school grounds after that date.
The direction permits an exception to the vaccination requirement if a staff member has a medical contraindication, as determined by the clinical guidance issued by Australian Technical Advisory Group on Immunisation.1
If a staff member seeks to apply for an exception, the school must sight and record evidence from a specified list of medical practitioners:
If a staff member refuses to be vaccinated and cannot provide the required evidence of a medical contraindication, they will not be permitted on school grounds from 18 October 2021.
The direction does not provide scope for an individual staff member to be granted an exception on any other grounds (including religious grounds). However, engaging in a proper and lawful process with any staff who raise a religious objection is important, so that the school can avoid later claims of discrimination and/or unfair dismissal.
There is scope for a temporary exception to be granted on the basis of an emergency for the limited duration of that emergency, if the staff member wears PPE including a surgical mask and a face shield (as a minimum).
Schools are required to collect, record and hold information regarding each staff member’s vaccination status if they will or may be on school grounds from 18 October 2021.
An authorised officer may request a school to provide its vaccination records. The school will be required to comply.
Schools are required to communicate the vaccination requirements to affected staff members as soon as reasonably practicable. The information to be collected includes:
Schools may accept the following information as evidence of vaccination status:
Privacy considerations which apply to health information apply here. Including regarding storage, use, disclosure, security, access and archiving. The use or disclosure of staff vaccination information for an unauthorised purpose would attract serious penalties.
In the event a staff member does not comply with the government direction and does not have a medical contraindication, a school will be required to consider its options with respect to that staff member, including whether stand down, leave arrangements or other disciplinary consequences are available in the circumstances.
Considerations include:
This assessment will need to be conducted on a case-by-case basis with a careful examination of the duties of the staff member and the operational requirements of the school. Should you require assistance, Moores can help you through the process of making this assessment.
Significant penalties apply if a school or staff member does not comply with the direction. An individual can face a fine of up to $21,808 (120 penalty units) and the school could face a fine of up to $109,044 (600 penalty units) for a single breach.
Additionally, if a person is found to have provided or recorded false or misleading information, an individual can face a fine of up to $10,904 (60 penalty units) and a body corporate may face a fine of up to $54,522 (300 penalty units).
Moores can assist your school, including to:
The Victorian Government is pushing the “3 Vs” for the return to school in Term 4: Ventilation, Vaccination and Vital COVIDSafe Steps.
The Victorian government today announced mandatory vaccination for school staff. The mandate will apply to teachers, support staff, administrative staff and cleaners and to all schools and all types of early childhood and care settings.
The Education Minister said to reporters: “Anyone who works on-site at schools or early childhood settings, they will not be able to work on site if they are not vaccinated.”
School staff must have their 1st dose by 18 October 2021 and the 2nd dose by 29 November 2021.
Exceptions: It looks like there will be scope for medical exceptions to the vaccination requirement. There is limited information available about the extent or application of those exemptions and we expect more information to come.
Only low-fee non-government schools will receive a share of the 51,000 ventilators to be rolled out according to the government’s announcement today. Likewise, only low-fee non-government schools are eligible for a grant of up to $25,000 for shade sails – to facilitate increased outdoor learning. Other independent and Catholic schools will also not receive financial support from the government to purchase their own.
Independent and catholic schools may nevertheless need to review ventilation infrastructure, assess ventilation and CO2 monitoring steps in their planning for term 4.
See the Premier of Victoria’s 22 September press release for more information.
Please contact us for more detailed and tailored help to ensure you are prepared for return to school in Term 4.
A recent news article reported that over 1,000 suicidal children have called a hotline for help in the past six months.
Providing a child safe environment requires consideration of an online learning environment. The duty of care owed to students remains during remote learning. Being flexible and proactive with assessments and online activities may help some students feel less pressure during online learning. It’s not only adults that suffer from Zoom fatigue. Imagine having a normal 8 hour school day online and then having to start homework after that. Considering the workload other teachers are providing may require discussions between staff, or at the coordinator level.
All schools must make reasonable adjustments for students with disabilities. Anxiety and depression and considered disabilities under relevant legislation.
Are your staff aware of the red flags to be aware of in students? If not, it might be time for an updated training session to assist them and ensure the children at your school are thriving, rather than just surviving, during this pandemic. Regular wellbeing checks and other activities suitable in an online environment can help reduce anxiety and depression.
If your school is impacted by an attempted suicide, we can assist with the creation of relevant policies and procedures to reduce the impact on the students and school community as a whole.
Keep an eye out for our upcoming education seminar on duty of care and mental health for students in late October.
If your school would like to discuss training or new policies, please contact us for further information. We’re also able to point you in the direction of leading industry resources.
As schools prepare for Term 4 and end of year assessments, 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:
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:
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.
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.
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:
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.
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:
Continued lockdowns shine a light on mental health issues for students. Data shows students particularly impacted are secondary students and those who identify as LGBTIQA+.
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:
Watch this space for more Moores training for schools in this area.
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.
If you would like assistance with any other these topics for your school, our various linked articles can provide a starting point.