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.
Please contact us for more detailed and tailored help.
You may need to consider how state based health privacy principles affect how your organisation handles health information, such as vaccination status, if:
Different states have privacy principles that apply in conjunction with the national Australian Privacy Principles.
Given the increasing importance of understanding the vaccination and health status of individuals in the community, your organisation may be changing how it collects and uses information about its staff or other stakeholders, such as customers or students. When information handling practices change – such as introducing a vaccination status register – We/the OAIC recommend(s) conducting a Privacy Impact Assessment to help you reflect on any privacy protection measures and ensure ongoing privacy compliance with all privacy principles that may apply.
Following these steps of a Privacy Impact Assessment encourages a privacy-by-design approach, where privacy protections are included in the design process of new information practices.
If you are a school, Moores has published a specific guide to undertaking a Privacy Impact Assessment regarding remote learning adjustments that may also be helpful.
If you are uncertain as to how to adapt your current policies and practices to equip you for the new environment, may wish to consider:
Moores can provide assistance with all of the above and is available for online training with staff members.
Please contact us if you would like further information.
Within the backdrop of the Royal Commission into ‘Violence, Abuse, Neglect and Exploitation of People with Disability’ currently underway, we look at some relevant Fair Work Commission (Commission) decisions for guidance for employers, noting the significant role that the Commission has to play in influencing the employment standards for unacceptable workplace conduct.
The Fair Work Act 2009 (Cth) (Act) provides the statutory framework for the majority of employers including in the disability support sector. The Act details the considerations the Commission must factor in determining if an employee’s dismissal from employment is ‘unfair’. The importance of that determination is that an employee may be entitled to a remedy, including reinstatement and/or compensation following dismissal.
An act of misconduct may justify an employee’s dismissal but it can be tricky for disability support employers to navigate where the misconduct presents in the form of neglect or various degrees of aggressive or abusive behaviour. The Act provides that in cases of unsatisfactory performance, an employer is expected to provide warnings prior to dismissal. Misconduct, as distinguished from unsatisfactory performance, must be sufficiently serious to justify dismissal.
Disability support organisations may take some comfort in knowing that the Commission is prepared to hold support workers to an uncompromisingly high standard of client care. The case analysis below shows that where an employer can substantiate abuse or neglect towards a supported person, the Commission is willing to denounce such behaviour.
There are a number of factors that may be relevant in a case including the gravity of the conduct, the impact on the person in the employee’s care, the proportionality of dismissal and the employee’s willingness to be forthcoming and honest in any investigation and disciplinary process.
An employee charged with misconduct can find themselves in a difficult position when faced with allegations of neglect or abuse. Their reputation and employment is at stake, and in serious cases, they can face regulatory scrutiny, including placement on the Disability Worker Exclusion List.
During an investigation and/or disciplinary process relating to misconduct, an employee may try to avoid responsibility by either denying the allegations, attempting to discredit the victim (whom in many cases will be a vulnerable supported person), or otherwise downplay the seriousness of the relevant incident/s. A comprehensive investigation process and assessment of the employee’s conduct during that process are therefore critical.
The cases show that the Commission will consider the factual evidence and, in some cases, an employee’s accountability and attitude to the conduct because that can be relevant to an employer’s assessment about the confidence it has (or doesn’t have) in the employee to refrain from that conduct in the future.
The authorities help pave the way for disability support providers to embed zero-tolerance policies into their organisational culture, and insist on strict commitments to equality, inclusion, respect and dignity of those in care. While employers in the sector are not immune to unfair dismissal claims, exposure to significant awards of compensation or reinstatement orders are generally reserved for cases where employers have failed to properly investigate allegations or have relied upon unsubstantiated or false allegations to justify termination of employment (e.g. see Bolden v Lyndoch Living Inc [2014] FWC 8649).
Moores can assist employers to review their policies and practices in this area and identify opportunities to further embed standards of workplace conduct. Moores also regularly represents employers in the Fair Work Commission to defend unfair dismissal applications.
Please note the thresholds that apply to small, medium and large charities will change from 1 July 2022 (taking effect against the 21/22 financial year). For further information on those changes, please see Part 1 – Financial Reporting.
Large charities with two or more key management personnel will be required to report remuneration paid to responsible persons and senior executives on an aggregated basis in their Annual Information Statement. This requirement will apply from 1 July 2022 (reporting against the 2021-22 financial year).
Charities should take particular care with payments to responsible persons. In addition to reimbursing responsible persons for reasonable expenses incurred in performing their duties, some charities may pay responsible persons for their services (such as attendance at meetings). Payments made to responsible persons must be in the best interests of the charity, reflect responsible financial management, be permissible under their rules and otherwise be properly authorised.
In respect of all remuneration paid, charities should ensure that:
Note that if the charity is a company limited by guarantee that does not use the term “Limited” in its name payments may not be made to directors.
All charities will be required to report related party transactions in their 2023 and later Annual Information Statements. This will take effect from 1 July 2023 (reporting against the 2022-23 financial year).
The Australian Accounting Standards Board (AASB) defines a related party transaction under AASB 124 as ‘a transfer of resources, services or obligations between a reporting entity and a related party, regardless of whether a price is charged’.
Relevantly:
Related party transactions are of interest to the Australian Charities and Not-for-profit Commission (ACNC) because they may impact a responsible person’s ability to act in the best interests of the charity. Medium and large charities are already required to disclose related party transactions in accordance with AASB 124 in their annual financial report to the ACNC. From 1 July 2023 these transactions will also be more prominently disclosed in the Annual Information Statement itself. Small charities have not previously been required to disclose related party transactions in their financial reports or in the Annual Information Statement.
Charities structured as public companies are already subject to related party provisions under the Corporations Act 2001 (Cth) (Act). This includes a requirement to obtain to approval of the members before giving a financial benefit to a related party (unless one of the exceptions under the Act applies). Responsible persons should ensure they are aware of and comply with the Corporations Act requirements.
It is timely for registered charities of all structures to review related party relationships and transactions. All charities should ensure that they have an appropriate related party policy and procedure in place (related party transactions may also be addressed within a conflicts of interest policy) and that they are complying with their financial reporting obligations and (for corporations) the requirements of the Act. This will assist to confirm that related party transactions are properly considered and approved.
Large charities should also review their arrangements in relation to responsible person and senior executive remuneration to ensure that the quantum is reasonable, the approval process was appropriate and (in respect of payments to responsible persons) the payment is not prohibited and conflicts of interest are properly managed.
For more information or guidance regarding any of the above, please do not hesitate to contact us.
On 30 June 2021, the Australian Government announced changes to the financial reporting thresholds under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (Act). The changes aim to reduce the financial reporting obligations of registered charities so that they can direct more of their resources towards pursuing their charitable purpose, and will take effect from 1 July 2022 (reporting against the 2021-22 financial year).
All registered charities must submit an annual information statement for a financial year to the Commissioner no later than 31 December in the following financial year.
Medium and large registered charities must submit an annual financial report for a financial year to the Commissioner no later than 31 December in the following financial year. Large registered entities must have their annual financial reports audited, whereas medium registered entities may have their annual financial reports either audited or reviewed. The audit or review must be carried out by a registered auditor in accordance with the auditing standards issued by the Australian Accounting Standards Board (AAS).
The Commissioner may place additional reporting obligations on registered charities in special circumstances (such as when the Commissioner is concerned about a charity’s compliance with the Act).
The changes will change the raise the thresholds that apply to the reporting obligations, reducing the reporting obligations for some charities.
As a result of these changes, the Australian Government estimates that:
Registered charities that are incorporated associations must continue to adhere to the financial reporting thresholds that apply in their state or territory of incorporation. Incorporated associations are required to adhere to those thresholds to the extent that they impose more restrictive reporting obligations than those imposed by the Act. For example, an association incorporated in Victoria with revenue of $2 million will be required to meet the reporting obligations of a tier three association in Victoria notwithstanding that it will only be considered a medium registered entity once the changes to the Act summarised above take effect.
State regulators are working to align the reporting thresholds with the ACNC thresholds. However, unless and until these changes are made, the thresholds and associated reporting requirements summarised in the attached table will continue to apply to incorporated associations:
Incorporated associations should continue to monitor the information released by their relevant state or territory regulator in order to confirm their 21/22 reporting requirements. Moores will release information about these announcements as they are made.
The new regulations require schools and other organisations that either own school boarding premises or provide school boarding services to meet new minimum standards.
The application of the new minimum standards is broad. The regime captures ‘premises’, not organisations. Regardless of who owns or runs the boarding ‘premises’, there is a requirement to be registered and comply.
The guidelines to the minimum standards informs schools with existing boarding houses whether there is sufficient alignment with existing policies and procedures to satisfy the new minimum standards.
There is only moderate alignment between the requirement for an Acceptance Agreement and existing policies and procedures. Schools may either adapt their existing policies and procedures to address the new requirement for their boarding premises or may choose to develop a stand-alone Acceptance Agreement.
The Acceptance Agreement is a written acceptance agreement with parents or guardians which complies with all State and Commonwealth laws, including the Australian Consumer Law. The agreement must be publicly available and cover, at a minimum:
Clear policies and procedures regarding who is eligible for acceptance as a boarding student are also required.
Some of the matters required in the Acceptance Agreement will already be addressed by other policies. But have you considered the following:
Many of these matters are specific to the boarding house and a stand-alone Acceptance Agreement is recommended as best practice.
The new minimum standards are in effect now. The deeming period expires on 18 September. Existing school boarding premises have until 18 September to complete their assessment and statutory declaration in relation to the new registration requirements.
The Acceptance Agreement is an integral part of complying with the new minimum standards.
Due to Moores having extensive experience in education governance and regulation, as well as child safety we can help navigate this new area of governance for your school.
Please do not hesitate to contact us.
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.
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:
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.
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.
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:
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.
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.
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.
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.
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.
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.
In this article, we discuss three key areas schools need to be across as they plan for Budget 2022.
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.
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:
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.
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.
As you prepare your budget, we encourage you to consider:
Please do not hesitate to contact us if you have any questions on the above.
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.