This week the Victorian Parliament considered a bill to establish the Victorian Early Childhood Regulatory Authority (VECRA) to carry out the functions of the state regulator conferred by the National Law and other relevant laws.1
Whilst this bill has yet to pass the lower house (let alone the upper house), the published text of the bill gives us an indication of what the future of the childcare sector could look like under this Regulator.
If made law in its current form, the bill would not only establish VECRA and the role of the Early Childhood Regulator, but would:
In addition, it is possible that the power to make Regulations under this bill would (if made law) result in the VECRA being granted further functions to strengthen the integrity of the ECEC sector.
Whilst the establishment of the Early Childhood Workforce Register is already in the process of being established,2 this bill is a key step to legislating transparency in the sector.
The debate for the Victorian Early Childhood Regulatory Authority Bill 2025 (Vic) has been deferred to 12 November 2025.
Subscribe to Moores for further updates and reach out to the Moores Education and Safeguarding Teams for support assessing and mitigating risks of harm in your early learning centre or childcare.
Please contact us for more detailed and tailored help.
Australia’s pending age-restrictions on social media platforms aim to reduce online harm, but could also trigger isolation, anxiety, and shifts in cyberbullying.
In this article we cover key steps for schools to take ahead of the social media ban, both by utilising the new eSafety resources for educators1 and around:
With the deadline fast approaching, schools across Australia must prepare for the introduction of new age restrictions on social media platforms on 10 December 2025 under the amended Online Safety Act 2021 (Cth).2
The eSafety Commissioner has clarified that the changes represent a lifting of the minimum age of access rather than as a ‘ban’, for the primary purpose of protecting children from harmful online environments.
The ‘ban’ will prevent children under 16 from being able to register accounts with certain platforms (expected to include Facebook, TikTok, Instagram, X (formerly Twitter), Snapchat and YouTube, and potentially Roblox3) in order to restrict access to harmful content and curtail avenues through which they may be bullied. It will not prevent the use of platforms such as YouTube by educators for learning purposes.
This shift is more than a technical adjustment. It signals a broader cultural change in how young people will be able to engage with digital spaces, information and each other.
Not only are schools able play a critical role in supporting students through the transition, the changes may introduce new risks to the school environment which schools will need to account for in their child safety risk management practices.
The Australian Government has framed the measure as a necessary step to safeguard children from harmful online content and mitigate risks associated with excessive social media use.4 These risks include:
However, even though the unregulated use of social media poses significant risks, it can also offer connection and community, particularly for marginalised groups. While a 2024 ANU study found that regular social media use negatively impacted life satisfaction for Year 10 and 11 students, it also noted that non-binary students reported higher satisfaction levels when using platforms like Twitter (now X), highlighting the complexity of the issue.5
Although the Online Safety Act amendments do not impose new legal obligations on schools, the age restrictions will have practical implications for child safety policies, duty of care, and student wellbeing. Schools should act now to ensure they are ready. Emerging risks must be identified and proactively managed:
1. Review Communication Practices
Ensure that staff are not communicating with students via platforms that may now fall under the social media umbrella (e.g., WhatsApp). Instead, use purpose-built educational platforms that are age-appropriate and secure.
2. Update Policies and Protocols
Child safety and acceptable use policies need to be updated to address new online risks or student needs.
Strategic policy amendments can also assist Schools who face the need to discipline students for out-of-hours conduct which is inconsistent with the Student Code of Conduct and takes place on age-restricted platforms.
4. Support Student Wellbeing
As students lose access to familiar communication channels, schools must provide alternative support systems within the school environment:
5. Promote Safe Digital Habits
According to the eSafety Commissioner’s 2021 report, teens want online safety information delivered through trusted channels, including from their school.6 Support students to say “not yet” to social media and “yes” to healthy and safe digital habits through proactive education and community engagement. This includes:
While the intent behind the age restrictions is clear, questions remain about their broader impact because lack of consultation with key stakeholders has left some uncertainty.
Will they effectively reduce harm, or inadvertently isolate young people from valuable online spaces?
What is clear, however, is that schools must take reasonable steps under their duty of care to support students through this transition and protect from the reasonably foreseeable harms that may emerge in the school environment. Now is the time to act, before the December deadline arrives.
Moores can assist with helping you:
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
On 5 September 2025, the Federal Court of Australia delivered its long-awaited decision in FWO v Woolworths Group Limited; FWO v Coles Supermarkets Australia Pty Ltd1, which provides critical clarification on the operation of set-off clauses in employment contracts. Employers relying on annualised salary arrangements must now ensure that Award entitlements are met within each pay period, not retrospectively or prospectively.
In his judgement, Justice Perram found that the relevant set-off clauses could not be used to discharge obligations under the General Retail Industry Award (the Award) across different pay periods and can only lawfully operate to offset any obligations falling due in one pay period. This decision has significant implications for employers seeking to rely on set-off clauses in employment agreements with annualised salary arrangements to meet their obligations under the relevant award.
Whilst the Court considered other several issues, of most significance is the Court’s decision on set-off clauses, annualised salaries, and record keeping obligations.
This judgement concerned four separate causes of action, including proceedings brought by the Fair Work Ombudsman and class action suits against Woolworths and Coles. All four causes of action concerned alleged underpayments of employees in store-based management positions, employed under written contracts providing for an annual salary.
The relevant clauses contemplated that the annualised salary would satisfy all obligations under the Award. Employees were paid on a fortnightly basis in accordance with the Award.
Woolworths and Coles had not kept track of these employee’s entitlements under the Award, and therefore, in many cases, the employees did not receive payment for these entitlements. While both Woolworths and Coles had previously made remediation payments to affected employees, the applicants considered these payments were insufficient to discharge the relevant obligations.
Set-off clauses and annualised salaries
The Federal Court rejected Woolworths and Coles argument that the relevant set-off clauses effectively enabled an employee’s entitlements to be set-off, or ‘pooled’ across different pay periods, finding that the relevant set-off clauses could only lawfully operate within a pay period.
Section 323(1) of the Fair Work Act 2009 (Cth) (the FW Act) requires that an employer must pay an employee the amounts payable for the performance of work in full. The Court observed that Woolworths had two sets of payment obligations: one being its obligation to pay a fortnightly instalment of the annualised salary under the employment agreement, and the second being its obligation to pay amounts due under the Award.
The Court found that these obligations under the Award – such as overtime, penalty rates, and allowances – must be discharged by actual payments within the same pay period by virtue of section 323(1), rejecting the use of accounting abstractions or pooled overpayments across multiple periods.
In coming to this decision, the Court observed it is unlikely payments that have occurred in the past, or payments in the future, could be characterised as payments for the purposes of the Award, and stated more generally that “If this is to be correct, then a six monthly pooling operation for cl 6 cannot be resurrected by careful drafting”.
Record keeping obligations
Section 535(1) of the FW Act requires that an employer document and maintain certain employee records, in accordance with the Fair Work Regulations 2009 (Cth) (the FW Regulations). For the purpose of these proceedings, the Court focussed on an employer’s obligations as set out in regulations 3.31, 3.33 and 3.34 of the FW Regulations. These regulations require that an employer must maintain records in a form that is readily accessible to an inspector demonstrating, among other things:
Neither Woolworths nor Coles had kept track of the affected group of employees’ entitlements under the Award. For example, Woolworths did not keep records of any separately identifiable amounts of loadings or penalty rates, or of the number of overtime hours for the concerned employees. Woolworths and Coles argued that these record keeping obligations were not engaged for employees on annualised salary arrangements, as they were not entitled to additional payment (i.e. for overtime).
The Court rejected this argument, finding that record-keeping obligations under the FW Regulations apply even where employees are paid annualised salaries, and set-off clauses did not relieve either party of these obligations. It follows, that employers must record entitlements such as overtime and penalty rates, even where those entitlements are notionally absorbed into a salary.
The Court further held that Woolworths’ ‘clock-in, clock-out’ system, was not sufficient to discharge its obligation to keep a record specifying overtime hours worked in accordance with regulation 3.34. Although the Court acknowledged that information might be deduced from rosters and clocking data, it did not accept that this met the requirement for records to readily accessible and available under the FW Regulations.
The Court went on to apply section 557(C) of the FW Act, which reverses the burden of proof in proceedings where an employer has failed to keep the required records. This means Woolworths and Coles were required to disprove allegations of underpayment where records were missing or complete.
The representatives for the applicants in the class action suits against Woolworths and Coles have signalled that similar class action will be taken against the Super Retail Group in the coming weeks. It is alleged that the Super Retail Group, owner of Supercheap Auto, Rebel, BCF, and Macpac, paid retail managers an annualised salary insufficient to meet weekly entitlements, such as overtime, under the Award.
This follows proceedings filed by the Fair Work Ombudsman against the group in 2023 over self-reported underpayments, which were stayed until the judgement in the Woolworths and Coles proceedings were handed down. Alongside that order, Justice Katzmann ordered that the parties confer within four weeks of the delivery of the Woolworths and Coles judgement, with respect to case management steps.
While a class action suit is yet to be filed, and the outcome of the Fair Work Ombudsman’s proceedings are yet to be seen, proceedings against other employers appear to be likely.
While it is important to note that the decision and potential action against the Super Retail Group is in relation to entitlements under the General Retail Industry Award 2010, the decision could have wider implications for employers operating similar arrangements under other Awards. Whether that is the case is yet to be seen, but it will be essential for employers to carefully consider whether they are compliant with the relevant award.
Our Workplace Relations team can review your employment contracts, payroll and record-keeping systems to ensure compliance with the latest Fair Work requirements. We provide practical advice on managing annualised salaries, set-off clauses and Award entitlements, helping organisations reduce risk and avoid costly disputes.
Private ancillary funds (PAFs) are a vehicle for private philanthropy. They allow donors to make tax-deductible contributions, invest those funds and make grants to charities in line with the founder’s philanthropic goals. The federal government’s resurrection of its proposed tax on superannuation balances over $3 million has resulted in increased interest in the role of PAFs in structured giving.
A PAF is a type of charitable trust in Australia that allows individuals, families or businesses to make tax-deductible donations, invest those funds and then distribute investment income each year to deductible gift recipients (DGRs). It does not deliver services or undertake its own charitable work – rather, it is a pool of money and/or property that is managed to make distributions to DGRs.
Most donations to a PAF must come from the PAF’s founder (or the founder’s associates or relatives)1 and PAFs must not solicit donations from the public2. These features make PAFs suitable vehicles for private philanthropy. By contrast, a public ancillary fund (PuAF) is public in nature and must regularly invite the public to contribute to the fund.3
The Hon Dr Andrew Leigh MP recently announced proposed reforms in relation to PAFs and PuAFs4. This includes a proposal that they be renamed “giving funds” to better reflect their role in supporting charitable giving and two proposed changes in relation to distributions from giving funds (considered below).5
PAFs are regulated by the Taxation Administration Act 1953 (Cth) (TAA 1953) and Taxation Administration (Private Ancillary Fund) Guidelines 2019 (Cth) (PAF Guidelines). Under these statutes, a PAF must:
Though PAFs are not required to be registered as charities with the Australian Charities and Not-for-profits Commission (ACNC), most PAFs choose to register as charities so that they can access charity tax concessions (including income tax exemption). PAFs that are registered as charities must comply with the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (in addition to the TAA 1953 and PAF Guidelines), which entails:
PAFs are designed for people who want to take a structured, long-term approach to philanthropy – rather than making one-off donations – while retaining control over investment decisions and distribution priorities. For those who are seeking to give in this way, there are several compelling reasons to consider establishing a PAF, including the following:
Our Charity and Not-for-profit Law team assists for-purpose organisations from the ground up, from the establishment process through to compliance and governance matters. Moores can assist you to establish a well-designed PAF that is tailored to your objectives and aligns with your philanthropic goals.
To hear more about the benefits of PAFs as a vehicle for tax-effective giving, you are welcome to join our live webinar on Tuesday 16 September 2025 from 1-2pm. This practical session will explore how PAFs can be used to maximise tax effectiveness while supporting long-term philanthropic goals, with time to put your questions to our legal experts. In this one-hour session, we will cover the complex issues you raise with us, including:
Taxation Administration (Private Ancillary Fund) Guidelines 2019 (Cth)
Giving fund reforms: distribution rate and smoothing
Significant changes are underway in the Early Childhood Education and Care sector, with new reforms impacting how organisations operate and keep children safe. Our Safe & Sound series explains these updates in clear, practical terms so providers can understand what’s changing and what they need to do.
In this episode, hosted by Moores Special Counsel Tal Shmerling and featuring Practice Leader Cecelia Irvine-So, we focus on the issue of CCTV cameras in early childhood education and care settings. We break down what’s being proposed by the Federal Education Minister and what it could mean for your organisation.
The goal is simple: to give you the information you need to stay informed, manage risks, and prepare for change.
If you would like to discuss how we can support your organisation, our education and safeguarding teams are here to help. Please contact Tal Shmerling or Cecelia Irvine-So if you would like further support.
View our dedicated page on the Childcare and Early Education Reforms and subscribe to receive updates directly in your inbox.
For many boards1, the decision to close a not-for-profit (NFP) or charity is not made lightly. Whether the organisation has fulfilled its purpose, become unsustainable, or is merging into another entity, there are important legal and practical steps to take.
Below are some of the key discrete issues to consider when bringing a NFP or charity to an end.
The detail of the process to close an entity down will depend on its legal structure, which may be an incorporated body (such as a company limited by guarantee or incorporated association) or an unincorporated entity (such as a trust of unincorporated association).
There are two main ways to formally close an incorporated entity: deregistration (sometimes called cancellation of incorporation) or winding up.
The choice of deregistration or winding up can have significant implications. Boards should seek advice early to determine the most appropriate path.
An unincorporated entity such as a trust or unincorporated association may be dissolved. For a trust this involves a deed of dissolution. For an unincorporated association the process will depend on the governing document.
Closing an entity is a major decision. In most cases (save trusts), it is not a decision that can be made by the board alone.
Before a NFP or charity can be closed, it is important to make sure that all reporting obligations are up to date. Regulators such as the Australian Securities and Investments Commission (ASIC), state regulators for incorporated associations or the Australian Charities and Not-for-profits Commission (ACNC) (depending on the structure) will not process an application to deregister or wind up if annual returns, financial reports or other compliance filings are outstanding. Bringing reporting up to date also helps to provide a clear financial picture for members and ensures that assets are properly accounted for before they are distributed.
Specific advice will be required if your NFP or charity has employees. Generally, employment must be finalised in line with the Fair Work Act 2009 (Cth) and any relevant awards or enterprise agreements. This includes engaging in genuine consultation about a major change, giving the required notice, paying out any outstanding entitlements (including in relation to wages, superannuation, and leave). Subject to the size of your workforce, the length of service of each employee, and whether employees are engaged on a permanent or casual basis, you may also need to provide employees with redundancy pay.
Even after an entity has been closed, directors and officers can still face claims relating to decisions made while the NFP or charity was operating. Run-off Directors’ & Officers’ insurance provides ongoing protection for board members and officeholders against those risks. It is worth checking how long the cover should be maintained and whether the existing policy automatically provides run-off cover, or if a separate policy needs to be arranged.
A NFP or charity may have surplus assets (after the payment of any debts and liabilities, including – subject to the terms of the grant – the return of unspent grant monies). The NFP or charity will need to identify an appropriate recipient(s) to receive its assets.
Generally, the distribution of assets will be provided for in the winding up clause of the entity’s governing document. The winding up clause usually states who has the power to determine who receives assets – this is often the members or (if the members cannot agree) a Court. Even if member approval is not required, it may be prudent for the board (particularly the board of a charity) to consult with the members as part of its responsibility to be accountable to members.
When identifying an appropriate recipient, the following considerations should be taken into account:
The closure of a NFP or charity must be properly documented. This may include:
It may be appropriate to identify the recipient of the assets in the board resolution and include confirmation that the board is satisfied that any eligibility criteria have been met (e.g. that the purposes are sufficiently similar).
Once the decision is made, there are a number of regulators that may need to be notified, including:
Each regulator has its own forms, processes and timing requirements.
Closing a NFP or charity involves more than simply shutting the doors. The rules are complex – and differ between states, structures, and tax statuses. From member approvals through to the distribution of assets and regulator notifications, each step requires careful attention – Moores can assist your organisation to complete all steps in the closure process in a compliant manner.
Fundraising in Australia is regulated by State and Territory fundraising legislation and the Australian Consumer Law. The regulatory landscape is notoriously complex, as each State and Territory has its own unique fundraising legislation and definition of what constitutes ‘fundraising’. Fundraising without the necessary approval may be an offence – both for the organisation and individuals involved.
In February 2023 the Federal Government announced that an agreement had been reached about a set of nationally consistent fundraising principles which will be used to streamline and harmonise fundraising requirements in each State and Territory (‘the Principles’).
All States and Territories are in the process of implementing the Principles, including repealing or ‘switching off’ local fundraising rules so that a charity, no matter where it fundraises, will only need to comply with the Principles.
Moores’ Charities and Not-for-profit team created Fundraising in Motion – National Fundraising Principles Implementation Tracker to help organisations monitor the implementation of Australia’s national fundraising principles.
Click here to see the State and Territory Status Table showing the current status in each jurisdiction.
Our Charities and Not-for-Profit team works with organisations of all sizes to navigate the complex and changing fundraising landscape. We can assist with:
You may have made a Will at some point in your life, put the copies in a safe place and not thought about it since. You may have the mindset that this document is a “set and forget”, and you are all sorted if you were to pass away.
However, life is constantly shifting; your family grows, your assets change, your wishes may not necessarily be aligned with what they were 5 or 10 years ago. Rarely is anything static, and your estate planning should not be either.
Signing a Will which lists where your assets are to go when you die, is just one part of estate planning. The process also typically includes putting in place enduring powers of attorney (see our recent article for further discussion), review of how changes to the law may affect your situation, and review and advice in respect to any structures you may hold your assets in, such as discretionary trusts or in the superannuation environment.
In light of this, here are some potential triggers to consider, which should turn your mind to reviewing and potentially updating your estate planning.
This is generally the major prompt for people to review their estate planning.
Events such as entering into a domestic relationship (i.e. living with a partner), marriage or having children should have you at the least, checking your old Will to see if it appropriately reflects your wishes.
Some people are not aware that legal marriage revokes an existing Will, so if you have married since you last signed your Will, and it was not made in contemplation of that marriage taking place, then your Will may have been revoked.
Separation and divorce from a partner are other triggers. Separation alone does not automatically mean that they no longer benefit from provisions in your Will, so if you do not want an ex-partner to automatically receive anything under your Will, your Will needs to be updated.
Another consideration are the circumstances of your children as they grow into adults and potentially have their own families. Factors such as where a child is living (i.e. interstate or overseas), vulnerability issues such as financial literacy, addition or disabilities, early advances of ‘inheritance’ either via loan or gift, or relationship breakdowns are all things that can impact your objectives, particularly to ensure that you have the right protections and safeguards for them in your Will.
Relationships with chosen executors may change as well over the years and they may not be the most appropriate people to be nominated to look after your estate. This can be due to age, illness, residency or breakdown of relationship. It is important to ensure the person or people you have chosen to be executors are appropriate.
If you have specifically gifted an asset in your Will and it has been sold, there may be unintended consequences for the beneficiary who was supposed to receive this asset. An update would usually be required to remove the specific gift completely or replace it with another asset.
You may have received inheritance, put in place structures such as a discretionary trust, or started your own business and created a private company. These all need to be taken into consideration when you review your estate plan. Further, if you have started your own self-managed superannuation fund, those documents should be reviewed and advised on to ensure that your superannuation is distributed to your chosen beneficiaries. Sometimes, superannuation is your most valuable asset and needs to be dealt with accordingly.
Asset ownership structures and changes to these in light of asset protection strategies can also impact your estate planning and it may be recommended that certain structures are added into the Will to extend asset protection post-death.
This consideration usually goes under the radar. However, laws are constantly changing. Something that was put in place 5 or 10 years ago may not have contemplated changes in the law that have since come into place.
An estate planning review takes into consideration changes in areas of law that affect deceased estates and is something that should be taken into account even if you are comfortable with the executors and beneficiaries in your current Will.
If you think that now is the right time to review your estate planning and update your Will, our experienced lawyers in the Moores Wills, Estate Planning and Structuring team can assist you with a comprehensive estate planning review to ensure that your hard-earned assets are distributed in accordance with your wishes.
The High Court has handed down a major decision on the obligations of employers to find redeployment options within its organisation for employees who are being made redundant.
In Helensburgh Coal Pty Ltd v Bartley & Ors1 the High Court confirmed that, when deciding whether a dismissal is a “genuine redundancy” under the Fair Work Act 2009 (Cth) (Act), the Fair Work Commission (Commission) may inquire broadly into whether an employer could reasonably have redeployed an employee within its enterprise — including by insourcing work done by contractors or by restructuring to create a role. That decision increases the evidentiary and procedural expectations on employers when making redundancy decisions and provides a compelling case for employers to update their redundancies processes.
Helensburgh Coal operated the Metropolitan Mine and, during the COVID-19 downturn, scaled back operations. In 2020, it dismissed about 90 employees and continued to use contractors or labour hire workers to perform work formerly undertaken by some of those employees. Twenty-two dismissed employees (Employees) applied to the Commission for remedies for unfair dismissal, arguing their terminations were not “genuine redundancies” because it would have been reasonable to redeploy them to work being done by independent contractors.
Ultimately the Commission decided that it would have been reasonable in all circumstances to redeploy the Employees. Helensburgh Coal appealed the decision to the Federal Court of Australia (Federal Court) on the basis that the Commission applied the wrong test in assessing whether it would have been reasonable in all of the circumstances for the Employees to be redeployed. The Federal Court dismissed the appeal.
Helensburgh Coal appealed the Federal Court decision to the High Court of Australia (High Court). The key argument Helensburgh Coal contended was that the Commission was not permitted to inquire as to whether an employer could have made changes to its enterprise to create or make available a position for an employee who would otherwise be made redundant. Helensburgh Coal argued that the Commission is required to take the enterprise as it is ‘found’ on the date of dismissal, not as the Commission may have reorganised it.
The High Court unanimously dismissed the employer’s appeal, confirming the Commission may consider whether the enterprise could have been changed to enable redeployment — including insourcing work being done by contractors or creating a new role.
The High Court’s judgment clarifies how the “genuine redundancy” test in the Act should be applied in practice. Relevant practical points from the decision are:
Justice Edelman and Justice Steward offered further remarks on the facts and on how the reasonableness inquiry may apply in particular circumstances; those factual observations provide useful guidance but do not expand the binding scope of the High Court’s unanimous ruling on the Commission’s jurisdiction to make the inquiry.
Justice Edelman commented that there were jobs imminently available to which the Employees could have been redeployed. The evidence showed that the relevant contractors could have been replaced quickly, if not immediately, and the contract with the organisation that supplied the contractors was due to expire shortly after the Employees were dismissed.
By contract, Justice Steward commented that ‘redeployment of a person at the expense of another person’s position would be a very grave step to take and would be unlikely to be a reasonable outcome’. He further noted that this could be applied to independent contractors or casual labourers in addition to employees.
The decision highlights that redundancy is an outcome of last resort where redeployment within the enterprise would have been reasonable. Employers should have evidence to show that they conducted a comprehensive and objective assessment of whether redeployment was reasonably available before concluding a dismissal was a genuine redundancy.
Practically, employers should consider taking the following steps before implementing redundancies:
These steps reduce legal risk and will be critical evidence if a decision is challenged.
If your organisation is considering a restructure, our workplace relations team can help you stress-test your processes, strengthen decision-making, navigate your obligations with confidence, and balance compliance with a people-centred approach that reduces dispute risk and reinforces trust.
“Even where information sharing is legally permitted or required, there may be reluctance to share. Concerns about privacy, confidentiality and defamation, and confusion about the application of complex and inconsistent laws, can create anxiety and inhibit information sharing. Institutional culture, poor leadership and weak or unclear governance arrangements may also inhibit information sharing and, as a result, undermine the safety of children.”1
– 2017 Royal Commission into Institutional Responses to Child Sexual Abuse
The recent arrest of a Victorian childcare worker charged with more than 70 child sex offences has shaken the early childhood education sector to its core. It is a harrowing reminder that our systems and safeguards still leave children vulnerable to abuse.
Even more disturbing are reports that the childcare worker worked in 23 childcare centres within an 8-year period and was dismissed from a previous centre over the handling of an incident report months before gaining employment at the service where the alleged assaults occurred.2 His termination with that employer also came days after a parent at the centre raised concerns about the childcare workers and asked that he not be allowed near her daughter. So how did this happen? Were there confidentiality agreements preventing the childcare centre from warning future childcare centres about this worker?
For those in the sector who investigate misconduct as part of their role, the same patterns repeat. Known perpetrators quietly exit one workplace and reappear in another. Often, their past conduct has been obscured by confidentiality clauses in separation agreements.
For employers managing complex staff issues, a separation agreement, containing strict confidentiality obligations, can feel like a tidy solution. It is a way to avoid costly legal disputes.
But these confidentiality clauses don’t just protect the parties. They can actively harm the next employer, and worse, the next child, service user or colleague.
There is a strong body of evidence, both in Australia and overseas, that many organisations use (and often over-use) confidentiality clauses to protect their reputation. The use of strict confidentiality clauses in separation agreements enables the perpetrators of abuse to move between organisations and jurisdictions undetected, where the harm can continue. And yet, the practice continues, not from malice, but often from misplaced caution.
In our work at Moores, we’ve supported organisations through crisis after crisis involving misconduct, including child abuse, grooming, and inappropriate conduct. In one matter, a worker dismissed for child safety code of conduct breaches and professional boundary violations with children had already been the subject of similar concerns at a previous employer. But because the prior allegations had been dealt with quietly under a separation agreement, there were no warning signs during the screening and recruitment process. The employee was permitted to resign from the former employer, and the employee and former employer agreed to keep all matters surrounding the employee’s resignation strictly confidential.
The overuse of confidentiality clauses in separation agreements isn’t unique to childcare or to child safety. The Australian Human Rights Commission’s 2020 Respect@Work Sexual Harassment National Inquiry Report3 commented that the use of non-disclosure agreements to resolve sexual harassment matters often serves to silence victims, conceal workplace misconduct, protect the reputation of the harasser and the organisation and reinforce a culture of silence. These are not just HR failures. They are systemic weaknesses that undermine accountability for harm and the ability of employers to properly screen prospective employees during the recruitment process.
Verifying a Working with Children Check is not enough. In reality, most perpetrators of abuse don’t have a criminal record when they begin abusing children or sexually harassing people in the workplace.
Creating a culture of safety demands more than compliance – it requires a cultural shift.
That means:
At Moores, we work alongside peak bodies and associations, schools, early childhood education and care organisations, religious organisations, and other child-focused organisations on the full spectrum of child safety and safeguarding issues. We don’t just react to misconduct; we help organisations prevent it.
We support our clients by:
We approach this work with deep respect for the trust placed in child-focused organisations. We know the pressure to get it right and what it takes to do so.
Organisations that work with children are gatekeepers of safety. The most powerful thing a leader can do is commit to transparency over convenience, accountability over risk avoidance, and courage over quiet exits.
If your organisation is reviewing its policies, dealing with a complex safeguarding issue, or simply want to ensure your approach is safe and legally sound, we’re here to help.
If you would like to discuss how we can support your organisation, our team is here to help. Please contact Skye Rose, Tal Shmerling or Abbey Dalton if you would like further support.