There has been much talk in recent months regarding the payment of superannuation on annual leave loading. Until early this year it was common for employers not to make superannuation payments on annual leave loading.
Ordinarily, superannuation is payable with respect to ordinary time earnings (OTE), that is clear. What is unclear however, is whether annual leave loading constitutes OTE.
The ATO has recently clarified that superannuation may be payable on annual leave loading.
Annual leave loading is an entitlement which contained in most industrial instruments. This could be a Modern Award or Enterprise Agreement.
Annual leave loading is generally an additional payment of 17.5% provided to an employee on top of their base rate of pay during periods of annual leave. Annual leave loading was initially incorporated into modern awards to compensate employees who typically receive overtime and penalty rates during work periods for the shortfall in wages during periods of annual leave.
Through the review of modern awards and enterprise bargaining, the entitlement to annual leave loading has been extended to classifications of employees that would not generally perform work attracting overtime and penalty rates.
In determining whether annual leave loading constitutes OTE, you must consider where the entitlement to annual leave loading comes from and its purpose.
Unless the industrial instrument which applies to your employees specifically states annual leave loading is provided to compensate an employee for the lost opportunity to work and be paid for overtime, it is likely that superannuation is payable on annual leave loading.
Employers should take the following steps to ensure that they are complying with their superannuation obligations:
If you need assistance in determining whether the industrial instrument covering your employees entitles them to annual leave loading in compensation for the lost opportunity to work overtime, please do not hesitate to contact us.
In our analysis of the gender balance in co-educational schools in Victoria, 90% of schools reported more male students than female students.[1] At some schools, this was as high as 50% more male than female students. Intrinsic to the strategic plans of many such schools is the principle that, in order for the benefits of co-education to be achieved, a gender balance is required. Schools increasingly want to reflect modern society, where people of all genders work and socialise together, and school students are no longer groomed for distinct gender-bound pathways.
Where there is a lack of equitable gender balance, this can lead to a domino effect, in which female students are withdrawn by their parents due to noticeable imbalance in gender in the student cohort.
All educational authorities in Victoria are bound by the provisions in the Act, which relevantly, prohibits unlawful discrimination on the basis of gender. Many co-educational schools seek to favour the enrolment of one gender over the other to maintain a balance of male and female students. However, successive decisions in the Victorian Civil and Administrative Tribunal (VCAT) have held that offering bursaries or scholarships, having separate waiting lists for different genders and offering placements, constitutes discrimination under the Act because it is treating a prospective student or student unfavourably on the basis of their gender.
Unless a school successfully obtains an exemption to discriminate under section 89 of the Act from VCAT, it will be at risk of a discrimination claim where it seeks to prioritise the enrolment of students on the basis of gender.
If you are a school which would like to seek the flexibility to:
we recommend that you consider seeking an exemption under the Act from VCAT to enable you to lawfully discriminate.
Given that many co-educational schools want to prioritise gender balance, it goes without saying that schools which can successfully maintain an equitable balance have a distinct competitive advantage over others .
If you would like to explore your school’s legal options in lawfully maintaining a gender balance and furthering your strategic goals and objectives, please do not hesitate to contact us.
[1] This is based on our analysis of co-educational schools in Victoria who have publicly available information regarding the ratio of their students.
We have seen a significant increase in demand from organisations needing support in child safety investigations. Moores recently delivered both a seminar and webinar on the topic of running an effect child safety investigation with over 230 participants. The obligations to conduct an investigation vary from state to state.
In Victoria, the heads of entities are required to investigate and report reportable conduct to the Commission for Children and Young People (CCYP) under the Reportable Conduct Scheme. While organisations might be familiar with running investigations into workplace allegations, child safety allegations carry heightened safety risks and require a nuanced approach.
Here are some of our top tips for running an effective child safety investigation:
Moores assists organisations across Australia to conduct child safety investigations in accordance with their legal requirements to achieve a satisfactory outcome. We can also provide training to up skill your staff in responding to and investigating child safety concerns.
If you would like to discuss this article with us further, or learn more about our child safety services, please do not hesitate to contact us.
Under a Bill introduced yesterday, religious and spiritual leaders will be added to law as mandatory reporters, and will no longer have the exemption of the confessional seal.
Additionally, cases dismissed under the previous limitation periods can now be brought , and courts will be empowered to set aside some historical settlements, if it is just and reasonable. Therefore, there may be increased volume of claims and related liability issues.
Religious and spiritual organisations need to consider their ethical stance on the proposed changes, and ensure that policies, and their responses to allegations, are consistent with their ethos and the law. They should also review historical settlements to gauge whether any may be set aside under the new laws or subject of an extension of the limitation period.
It is expected that the Bill will be given priority so that it comes into force as soon as possible.
On Wednesday 14 August 2019, the Children Legislation Amendment Bill 2019 (Vic)(the Bill) was introduced by the Andrews Labor Government.
The Bill will enact one of the recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission).
Religious and spiritual leaders will join doctors, nurses, teachers, police, registered psychologists and other mandatory reporters as people who are required to report when they form a belief on reasonable grounds that a child is in need of protection.
Significantly, the Bill clarifies that disclosures of abuse made during religious confessions will not be exempt from reports as required under mandatory reporting or the failure to disclose offence.
A power has also been added to allow the Supreme Court to set aside some historical settlements, if it is just and reasonable.
While the Bill is expected to pass both houses, several prominent religious figures have spoken out against the Bill, including Melbourne’s Catholic Archbishop Peter Comensoli. This article will outline the key provisions of the Bill and our recommendations for organisations in preparation.
The seal of confession is regulated under canon law which states that “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.” This was replicated in the Evidence Act 2008 (Vic) and relied on by religious leaders to avoid reporting child abuse disclosures made in confessions, even after the failure to disclose obligation imposed on all adults in Victoria was introduced under the Crimes Act 1958 (Vic).
However, the Royal Commission and several other enquiries into child abuse have highlighted the devastating role the confession can play on ensuring child safety concerns are reported.
A prominent example is the case of Michael McArdle, a Catholic priest who was jailed in Queensland for over 60 instances of child abuse against young boys in 2004. It was revealed that he confessed these instances of abuse to up to 30 priests over 25 years, yet this was never reported to the police.
The Royal Commission also heard case studies where children and survivors had disclosed instances of abuse by priests during a confession and this was never reported. In some case studies, the children were told that they were the ones who had to seek forgiveness.
A small study commission by the Royal Commission of nine priests convicted of child abuse found that the confessional was seen as a ‘safe’ place to confess their abuse and seek forgiveness. The secrecy of the confessional space and the idea of ‘seeking forgiveness’ might have encouraged the abuse to continue and somehow seem permissible.
Victoria is not the first state to introduce laws which prioritise child safety over the sanctity of the confessional.
We are seeing the first prosecutions taking place in other states such as Western Australia for failing to report offences.
South Australia became the first state in 2018 to legally require clergy to report child sexual abuse, even if revealed in confession. Failing to do so carries a penalty of up to $10,000 and potential prosecution. Similarly, ACT passed laws earlier this year that would require all adult to report child abuse, including priests even if disclosed during a confession.
In both states, the legislative changes were met with resistance from the Catholic Church, including several prominent leaders who vowed to uphold the sacramental importance of the confession notwithstanding the law and potential penalties.
Under the first version of the Bill, the following key changes are proposed:
The Bill also limits the right of appeal to VCAT for persons whose Working with Children Check application is rejected if they’ve been charged a serious sexual offence (Category A offence).
Additionally, it makes clarifications in relation to the Department of Health and Human Services’ (DHHS) role to share information, administer immunisations and protect non-indigenous children who have an Indigenous sibling under the Aboriginal Children in Aboriginal Care program. The Bill further amends the legislation relating to the Child Information Sharing Act and other privacy legislation to align with the above key changes.
The legislative changes to capture persons in religious ministry as mandatory reporters and the removal of religious confessional privilege in relating to child abuse reports will be significant for organisations. Failure to comply with the reporting requirements could lead to imprisonment of up to three years under the Crimes Act.
“Persons in religious ministry” is defined to mean a person appointed, ordained or otherwise recognised as a religious or spiritual leader in a religious institution. A religious institution will include any entity that operates under the auspices of any faith and provides activities, facilities, programs or services of any kind through which adults interact with children. This will capture church elders, priests, nuns, a religious brother or sister, ministers, imams, rabbis, monks and Salvation Army officers amongst others.
The introduction of the Bill indicates an ongoing commitment by parliament to continue implementing the Royal Commission’s recommendations. Organisations should heed the message that child safety will continue to be a significant area of change and priority.
We recommend that organisations take the following next steps:
Moores will continue to provide updates in relation to the Bill as it progresses through parliament.
For more information on preparing your organisation’s response to child safety concerns, please do not hesitate to contact us.
The impact of social media on child safety is a growing concern that not even social media companies themselves can ignore. Most recently, Instagram has rolled out a trial in Australia to remove the number of likes being publicised on posts. This comes after a recent survey of 14-24 year olds found that Instagram was the worst app in terms of contributing to anxiety, depression, loneliness, bullying and body image. Instagram is not alone in its efforts to address the negative impacts of social media, with Facebook and Twitter also recently revamping its policies – but when it comes to child safety, is it enough?
The most popular apps amongst children are constantly changing – currently Instagram, Snapchat and YouTube are the key apps used. However, we have also seen new apps emerge rapidly.
Some of these are:
It is becoming increasingly difficult for social media sites to ignore the negative aspects of their product. Instagram’s removal of the number of likes is being rolled out internationally as a way to remove the pressure associated with the app and posting online. Instagram has also added a new feature to tackle bullying by providing users with a pop up notice when negative language is detected in their post or comments. This is similar to a feature on Facebook which pops up with notices asking users if they are sure they want to post images that Facebook detects to contain inappropriate content.
Instagram will also be adding a new feature called “Restrict” which allows users to filer abusive comments without blocking an individual. This was due to feedback that young people are reluctant to block or unfollow people because they are afraid that it will escalate the bullying.
With the eSafety Commissioner having the power to fine corporates up to $525,000 for failing to remove an intimate age that is posted without consent, social media sites are taking more responsibility. However, there are still concerns that some social media apps such as SnapChat and anonymous apps such as Omegle and Whisper continue to protect the identity of its users, even when they are engaging in damaging behaviour.
All organisations that work with children need to be aware of the impact that social media might have on their duty of care to keep children safe. Even conduct that occurs outside of the ‘hours’ that the children are in your care could lead to a duty of care issue for your organisation.
For example, the youngest person to be charged in Australia for bullying was a 13 year old girl in Cairns who used Snapchat to bully and threaten another girl in her after school sporting team. In another instance, a video of a child being physically beaten by other children was streamed live on TikTok,
Child safety concerns on social media are not limited to negative interactions between children. A swimming coach in Victoria was recently criticised for setting up an Instagram page for the swimming club and posting images of young children in their bathers without the parents’ knowledge or permission. These images could then be used by third parties as the Instagram page was public.
There is a lot of fear about social media, often which often results in organisations putting it in the ‘too hard’ basket. There are certainly challenges in managing the child safety risks associated with social media but in a post Royal Commission setting, organisations cannot fail to act.
As a starting point, we recommend that organisations that work with children take the following steps to mitigate the risks associated with social media use:
For more information regarding child safety and social media, please do not hesitate to contact us.
On Monday 5 August 2019, the National Office for Child Safety released its Complaint Handling Guide (the Guide), developed with the NSW Ombudsman’s Office, the Australian Human Rights Commission and the e-Safety Commissioner amongst others. The message is clear – organisations need to be prepared for child safety complaints and allegations. The Guide makes it clear that receiving no complaints is not necessarily an indicator of a child safe environment. Rather, an organisation that empowers individuals, especially children and young people, to raise concerns and then effectively addresses the concerns is better placed to create a child safe environment.
We are seeing an increase in the rates of child abuse reports across all sectors. In 2016-17, the Department of Health and Human Services (DHHS) received 110,987 reports. In 2017-18, it received 115,641 reports. Since 2014-15, the number of reports has risen by more than 20%. The Commission for Children and Young People (CCYP) received 850 reports in 2017-18 in the first year of the Reportable Conduct Scheme (the Scheme). The number of reports for 2018 -19 is expected to be higher.
The increase in the number of complaints is considered to be largely due to an increased awareness of child abuse and the importance of reporting, as opposed to increased rates of child abuse. The introduction of the Scheme has also lead to a broader range of child safety concerns being reported to organisations, including historical allegations and family violence incidents involving their employees. In this environment, if an organisation has not received a child safety concern yet, they should not assume that it cannot happen.
In our experience and as reflected in the Guide, organisations often do not have in place the processes required to respond to complaints and concerns in a child-focused manner. This is despite it being a requirement under Principle 6 of the National Principles for Child Safe Organisations (National Principles) and Standard 5 of the Victorian Child Safe Standards.
The definition of a child safety concern or complaint encapsulates a range of concerns. Some examples include a complaint about:
Each type of complaint will trigger different considerations and reporting requirements. Complaints can also be received in a range of ways, including from a child, a parent, a member of the public, another employee, an incident or anonymously. Organisations need to have in place procedures that are flexible to capture different types of complaints but also provide employees with guidance on how to respond in accordance with their child safety obligations.
The Guide provides a helpful overview of the different considerations that organisations need to be mindful of when responding to complaints. While it is no substitute for your own tailored complaints procedures and child safety documents, it provides a good starting point.
In particular, the Guide outlines the importance of creating a child-centred approach where the best interests of the child inform the organisation’s response. This includes putting strategies in place to empower children to raise their concerns and training staff and first responders on how to properly respond. The Guide also sets out nine key guidelines for organisations to consider. These are:
It is clear from the Guide that responding to child safety complaints is complex and organisations need to find the right balance between protecting children, their reporting requirements, the investigation and their employment obligations.
The key message is that while it is tempting for organisations to wait until they receive a complaint before they act, it is fundamentally important that organisations are putting in place processes to be prepared for allegations.
We recommend that organisations get ready by taking the steps below:
Moores is experienced in supporting organisations responding to a child safety concern, including managing allegations under the Reportable Conduct Scheme. We also offer a range of training options to up-skill your employees on their child safety obligations.
Recent cases tell a cautionary tale to employers and employees about public comment and expressing personal views in the course of employment. With the increasing use and prevalence of social media, employers are taking steps to, as far as possible, control and monitor employees’ private activities online.
We have seen much conjecture in the media over the last 48 hours after the High Court’s decision in Comcare v Banjeri[1]. After a protracted legal battle, the High Court ultimately decided that the implied freedom of political communication cannot be invoked as a shield in the face of internal policies and procedures (in this instance, the Australian Public Service guidelines) which were created to protect the independence and impartiality of the public service.
You may be thinking that this all sounds very familiar…
That’s because much has also been written about the dismissal of Israel Folau after he chose to post negative views against a range of people including the gay and transgender community on Instragram saying:
“Warning: Drunks. Homosexuals. Adulterers. Liars. Fornicators. Thieves. Atheists. Idolaters. Hell awaits you.”
In the shadow of public outcry, Folau’s contract with Rugby Australia was terminated on the basis that he breached the player code of conduct. A code of conduct that requires employees to treat everyone equally regardless of sexual orientation, gender, religion or race is typical in many organisations to promote diversity and inclusion and prevent discrimination. It’s also common for a code to place sanctions on those who use social media platforms to air personal views which could put the organisation into disrepute.
In many respects, both of these cases appear to be quite similar on their face. Both feature an aggrieved employee whose employment was terminated for making posts on social media that their employers did not agree with.
While Rugby Australia stressed that Folau’s dismissal was not because of his religious beliefs, Folau has recently made a claim for unfair dismissal under section 772 of the Fair Work Act 2009 (Cth) alleging that the termination was because of his religion, and therefore, unlawful. Under this section, Folau will also need to prove that his Instragram post constituted an exercise of religious freedom.
On the other hand, the Banjeri case was not in relation to the Fair Work Act, but rather she went straight to the Constitution to argue that her implied freedom of political communication had been interfered with.
Remember the recent case of a woman who made disparaging, derogatory and offensive comments about her employer’s clients in an email and then accidentally copied those clients into an email? The Fair Work Commission’s decision in the case of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd[2] is instructive. It sets out a useful test when determining how to deal with an employee who has engaged in similar conduct.
This two-step test requires an analysis of:
If the answer is yes to both, then dismissal may be justified.
Similarly, in the case of Nirmal Singh v Aerocare Flight Support Pty Ltd[3], an employee was dismissed for breaching the employer’s social media policy by posting on Facebook “we will support ISIS”. The employee lodged a claim for unfair dismissal, believing it was not procedurally fair, just or reasonable to terminate his employment. The Fair Work Commission rejected the applicant’s claim, stating that a comment of that nature could not have been made without enquiry or silence, and evidently had the potential to cause harm to his employer.
The Fair Work Commission in other decisions has also reiterated the importance of having a social media policy to protect the reputation of a business and clearly outline what is expected of its employees.
The Morrison government’s proposed Religious Discrimination Act (or “Folau’s Law”),, will consider what protections are available for those who hold, and express, their religious beliefs. It remains to be seen what this Act, if passed through Parliament, will mean for employers and employees as they navigate the difficult balance between how their personal and private beliefs impact their working life.
There is little case law to provide a definitive ruling on where to draw the line on freedom of religious expression in employment law. However, similar cases point to the Courts agreeing that an employer can terminate employment in matters where it is clear that disrepute is likely and can be evidenced.
The outcome of the Folau case will hopefully provide greater clarity on how an individual’s right to hold and express religious views interacts with an employer’s ability to ‘control’ an employee’s behaviour in the public arena and on social media.
As to the freedom of political speech, the judges of the High Court stressed that while the Constitution offers an implied right to free political communication, this is distinct from a personal guarantee for free speech. The test applied in Banjeri was that a law must have an unjustified burden on the implied freedom of political communication as a whole for it to be infringed.
Both cases however highlight the challenges faced by employers to get the balance right between protecting fundamental rights and freedoms and protecting the reputation of their organisation.
If you’re having trouble determining what is and isn’t appropriate behaviour outside the workplace, or need assistance drafting a legally compliant social media policy, please do not hesitate to contact us.
[1] [2019] HCA 23.[2] [2017] FWC 1838.[3] [2016] FWC 6186.
Applications can now be made by schools for the Local Schools Community Fund, as announced in the May budget.
Each federal electorate is allotted a sum of up to $200,000, and government, Catholic and Independent Schools are all eligible.
Schools can apply for between $1,000 to $20,000 per project. Schools may apply for more than one project.
Schools wanting to participate need to check whether their local MP is participating, because this determines whether funds are available. The MP sits on the committee which decides the projects to be funded, and the committee puts forward its recommendations in November 2019.
It appears that if the MP is not participating, then the committee does not sit in that electorate, and the funds are tipped into other electorates.
Schools must be in receipt of Australian Education Act funding, and projects must be small scale capital or non-capital projects.
Example of such projects are:
Retrospective funding is not available, and facilities to be used primarily by international (ie non-funded) students or pre-schoolers (again, not funded as schools) will not be eligible. Given the VRQA’s recent requirement to show reasonable adjustments in all land and buildings, schools might consider the fund to aid the addition of required features for disability access.
Projects must be completed by 31 December 2020.
Applications are assessed, and schools need to address these considerations:
The online application form is available here: https://schools.education.gov.au/
Notification shall be sent to approved schools in early December 2019.
Funds shall be paid to the approved authority from the beginning of 2020. If there are unspent funds after the completion of the project, they must be returned to the department.
The team at Moores advise extensively on regulatory compliance in education, reviews and agreements.
Practice Leader Cecelia Irvine-So is not only a parent of children at an independent school but also a school board member.
For more information regarding the Community Fund or to discuss any of the above, please do not hesitate to contact us.
This week the Australian Charities and Not-for-profits Commission (ACNC) released Guidance on the External Conduct Standards (ECS). The ECS came into effect on 23 July 2019, imposing additional governance, recordkeeping and oversight obligations on registered charities with activities outside of Australia.
Here are seven things registered charities need to know about the ACNC ECS Guidance.
The ACNC states that it will follow its existing regulatory approach, and will “take action if [it has] information that indicates a charity has seriously or deliberately breached the External Conduct Standards”. In practice, secrecy provisions continue to make it difficult to get a clear picture of how and when the ACNC uses its enforcement powers.
The onus remains on charities to determine what might be considered “reasonable steps” to comply with the ECS. This will involve an assessment of the charity’s size (turnover and workers), the nature, scale and complexity of the overseas operations, whether the region it is operating in has particular risks and how capable third parties are of meeting the ECS. Policies and procedures may then need to be reviewed or developed to ensure compliance.
Our Not-for-profit team is working with clients to assist them to consider and apply the ECS in their own context. Please do not hesitate to contact us.
These replace the December 2018 version.
Given similarities between Victorian and NSW laws, and the operation of many school systems in both states, Victorian schools and systems should seriously consider the guidelines as best practice.
The new Guidelines impose new requirements in key areas, which, if not followed, will make the school non-compliant. These include:
Other areas have been tightened. An example is the new requirement that, in relation to any compensation, settlements or one-off payments, a school must “ensure it has received legal advice that such payment is reasonable and not excessive”. Previously, a school needed only follow any legal advice (if obtained).
Another is fundraising. Any donations must be demonstrated as related to education of students at the school.
Another is finance. All school finance must meet the reasonable market value test.
Onsite ELCs, childcare and out of hours care
These are not considered part of the school by law. Under the new guidelines, schools can only fund these if all surplus returns to the school, and the school must not incur a liability from the operation.
This raises the issue of schools not only needing separate accounts, but potentially a separate entity and undoubtedly an agreement between the school and ELC.
Facilities (including Performing Arts Centres) which are hired out
A far-reaching prioritisation of the school’s use of facilities is now required, and a school may not incur a liability due to external use, nor contribute school funds to another’s use of the facilities.
Related Entity Transactions
The regulator will now expect that the school can demonstrate reasonable market value in accordance with the guidelines. New policies are also listed, including conflict of interest, fraud, staff delegations etc.
Reimbursements to board and staff
Reasons for all reimbursement must now be recorded. All travel, for which reimbursement is claimed, must relate to the position of the person and be proven to be not personal.
Moores extensively advises on regulatory compliance in education, including NSW and Victorian compliance (inc. s 83) reviews and agreements. If you have any queries, please do not hesitate to contact us.