The new Guardianship and Administration Act 2019 passed through the Victorian parliament in May 2019 and received royal assent on 4 July 2019. It will commence once proclaimed and otherwise no later than 1 March 2020.

While VCAT has retained its powers in relation to making guardianship and administration orders, there have also been significant changes to guardianship and administration laws and reflect a more modern understanding of decision-making, capacity and disability.

For example, the Act provides for:

• Presumption that a person has decision-making capacity unless evidence is provided otherwise.
• Recognises that a person has decision-making capacity if the person can make decisions with support.
• Consideration to be given to a wider range of matters in making an order, such as the will and preferences of the proposed represented person and the wishes of any primary carer or relative.
• New eligibility requirements for proposed administrators and guardians, and a dispute resolution process for administrators and guardians who are appointed for the same represented person (with the decisions of the guardian to prevail over those of the administrator unless otherwise agreed or determined by VCAT).
• Orders to be more tailored to the individual.

There are also provisions designed to improve VCAT’s processes, including:

• More robust notice requirements.
• A presumption that the represented person must attend the VCAT hearing, unless they do not wish to attend or it would be impracticable.
• Video links and other systems to conduct proceedings.

Moores welcome the reforms.

How we can help

If you seek further advice about the guardianship and administration regime, or require specific assistance with a guardianship and administration matter, please do not hesitate to contact us.

This article is part of our Guardianship and Administration Bill series:
Guardianship & Administration Bill 2018 – Overview
Guardianship & Administration Bill 2018 – Administrator liability and new offences
Guardianship & Administration Bill 2018 – Supported Decision-Making

The Supreme Court of NSW has recently examined the rules relating to financial attorneys and executors stepping in as trustees in place of a self managed superfund (“SMSF”) member and considered if a particular appointment of trustee was valid.

The Relevant Law

In order for a SMSF to be eligible to receive the various tax concessions that are granted to superannuation funds it is necessary that it complies with the requirements of the Superannuation Industry (Supervision) Act 1993 (“the Act”) and regulations made under the Act. One of the key compliance requirements is in relation to who must be a trustee of a SMSF.

Section 17A of the Act provides that (in brief) each member of a SMSF must also be either:

• A trustee of the SMSF; or
• A director of a company which is trustee of the SMSF (a “corporate trustee”).

If the member is not able to personally act as the trustee, or director of the corporate trustee, then this does not cause the SMSF to be non-compliant provided that:

• The enduring financial attorney of the member acts in their place; or
• If the member is deceased, their executor acts in their place.

There is also a 6 month grace period in the Act if there is a temporary non-compliance with the trustee requirements.

The Facts – Dawson v Dawson [2019] NSWSC 826

The Dawson Superannuation Fund (“the Fund”) was established by husband and wife, Peter and Estelle. They were the only members and individual trustees of the Fund. Both of them had children from previous relationships.

Peter had:

• Appointed his son Tony (step-son to Estelle) as his enduring financial attorney; and
• Completed a Will nominating Estelle’s son-in-law, George, as his executor and leaving most of his estate to Estelle (notwithstanding they were in the process of separating at that time).

Peter became too unwell to continue as a trustee of the Fund and a deed was executed by Tony (in his capacity as financial attorney for Peter) and Estelle to nominate Tony as a replacement trustee for Peter. This deed was validly executed in accordance with the terms of the Fund trust deed and meant that the Fund was compliant with section 17A of the Act at that time.

Peter then died and there was a death benefit of $1.387M payable from the Fund on his behalf. Peter did not complete any binding nomination, so under the trust deed the trustee had discretion as to who was to receive payment of the death benefits.

George obtained probate for Peter’s estate and he and Estelle then executed a deed, without Tony’s agreement, which nominated George as a trustee of the Fund in place of Tony. They argued that:

• This was on the basis that Tony’s position as trustee was linked to him being the financial attorney for Peter and that his role as trustee had therefore automatically ended with Peter’s death; and
• It was necessary for George, as Peter’s executor, to become a trustee in order for the Fund to remain compliant.

Tony commenced proceedings seeking a declaration that he was still a trustee of the Fund and that the deed appointing George was invalid. Of course, the relevance of this was who would be the trustee for the purpose of deciding payment of the death benefit.

The Decision

The Court found that:

• The appointment of a trustee is personal in nature. This means that even if the trustee is the financial attorney of a member they will not hold the trustee role in their capacity as an attorney. They are therefore not automatically removed if the role as financial attorney ceases.
• The question of whether a trustee has been validly appointed or removed depends on the terms of the trust deed. In the circumstances, the appointment of George as a replacement trustee was not valid as it had not complied with the terms of the trust deed and instead relied on an automatic removal of Tony by reason of his financial attorney role ceasing.
• There is a difference between who should be the trustee to make the SMSF compliant and who is actually the trustee.
• A deceased member generally continues to be a ‘member’ of a SMSF until their death benefit has been paid out. This means that their executor must become a trustee for the SMSF to be compliant.
• It was likely the Fund was not compliant and while that was not the issue before the court, it was an issue the parties would need to address (probably with the ATO!).

Key Lessons

This case highlights:

• That it is crucial to read the trust deed whenever you are dealing with the control of an SMSF. Failing to validly appoint and remove trustees in accordance with the trust deed will make the appointments invalid and the Court will not intervene to rectify a non-compliant fund.
• The importance of comprehensive estate planning that considers both incapacity and death.
• Binding death benefit nominations remain a crucial estate planning tool – the issue in this case would probably never have arisen if the trustee did not have discretion for payment of the death benefit.
• Trustee roles impose personal obligations on the trustee – they are not held subject to the terms of any power of attorney.  

If you require further information regarding your self managed superfund, please do not hesitate to contact us.

When parents separate one of the aspects that can be overlooked as parties focus on the division of property and children’s living arrangements is the clarification on how the costs of the children will be met until they reach adulthood, which may be many years away.  

The costs of raising a child are significant. When a household becomes two at separation with duplicate expenses and less income in each, and often with one household having substantially less income than the other, the cost of raising a child is amplified. Expectations about the particular private school that the child will attend, the extracurricular activities the child will participate in and whether the child is to be covered by private health insurance need to be realistically reassessed.

When private school fees can reach as much as $30,000 per annum, the question as to how they are paid is frequently an issue that stands in the way of parties finalising a financial arrangement between them. 

When it comes to child support our top tips are:

1. Obtain a Child Support Assessment
   Do not delay in obtaining a child support assessment from the Commonwealth Department of Human Services. To get a sense of what you might be entitled to, the Department website contains a very useful calculator where you can plug in your details and obtain an accurate estimation. 
2. Formalise a child support arrangement
   In many circumstances it is important not only to the parent with the lesser income (who often also has the substantial care of the children) but also the parent earning more that the costs of raising children are agreed and formalised in a binding document. The parent who earns less wants to ensure that they will be able to make ends meet and the parent who earns more wants to ensure that their financial obligations are clearly defined and that they do not have to worry about the other parent seeking more at a later time.
3. Consider and negotiate child support at the same time as a property settlement
   Child support to be paid by one parent to another as calculated under the child support formula employed by the agency will never be sufficient to meet private school fees, private health insurance and other benefits for a child. The assessment will also vary as taxable incomes change from year to year. Often, especially in the case of a party managing their own business, taxable income is not reflective of the true income situation. Therefore it is highly desirable that the child support question is dealt with quickly and in conjunction with the property settlement.
   
   When it comes to private school fees, often a more creative solution is required where income alone will not be enough. It may be that a portion of sale proceeds of a home are set aside to meet this expense if both parties have their minds set on the private school for their child. 
   
4. A Binding child support agreement or a limited child support agreement?
   Parties should think carefully about entering into a binding child support agreement or a limited child support agreement to formalise payment arrangements. A binding child support agreement must be signed off by lawyers acting for each party. A limited child support agreement does not need to be signed off by lawyers but must provide that the parent who is entitled to receive child support, receives more than would have been received under the child support formula.
5. Flexible terms
   The terms of such agreements can be quite flexible to take into account changes in parties’ incomes or how financial responsibility is to be divided up. Agreements can provide for the payment of regular amounts from one party to another and or the payment of expenses directly to a school or other service provider as required.

How we can help

We would welcome a discussion with you or your clients about the risk of a prior agreement being terminated and how to ensure a future child support agreement is binding.

Please do not hesitate to contact us.

A new financial year means annual indexation and key changes relevant to the employment law sphere for all organisations to consider.

We’ve summarised the most important changes for organisations as of 1 July 2019.

National Minimum Wage and Modern Award Minimum Wage

The Fair Work Commission determined that both the national minimum wage and the modern award minimum wage would increase by 3.0%, taking effect from the first full pay period after 1 July 2019.

This will see an increase of the national minimum wage from $719.20 per week to $740.80 per week or $18.93 per hour to $19.49 per hour.

Note that modern awards do not apply to an employee who earns more than the high income threshold.

Unfair Dismissal

The high income threshold under section 382 of the Fair Work Act 2009 (Cth) operates as a limit to an employee’s eligibility to be protected from unfair dismissal.

The threshold has been increased from $145,400 to $148,700.

This means that employees who earn more than $148,700 and are not covered by an award cannot claim unfair dismissal.

This increase also means that the maximum cap for unfair dismissal compensation will increase to $74,350, equal to 26 weeks’ pay (previously $72,700).

Superannuation

The maximum superannuation contribution base has also increased from $54,030 to $55,270 per quarter (or $221,080 per annum), which means that earnings above this amount are not subject to compulsory contributions.

The superannuation guarantee remains at 9.5%.

Fair Work Information Statement

A reminder that the Fair Work Information Statement must be provided to employees when they commence employment. Ensure that you attach the updated version for 2019-2020. You can access the link to the new Statement here.

Portable Long Service Leave

Portable long service leave makes it fairer and easier for Victorians working in particular industries to access long service leave benefits and retain their entitlement even after they change employers.

Under the Long Service Benefits Portability Act 2018 (Vic) workers in:

• community services;
• contract cleaning; and
• the security industry

will benefit from the accrual of portable long service leave when changing employers, as long as they remain in the same industry.

Businesses that employ workers in these industries must register their business with the Portable Long Service Leave Authority between 1 July and 30 September 2019. Registration can be done online at the Portable Long Service Leave Authority website.

Employers must submit a Quarterly Return to the Authority, in October, January, April, and July each year. The first Quarterly Return must be submitted in October 2019.

What to include in the quarterly return?

Relevant employers will be required to provide:

• information about all workers who have worked for the business during that quarter;
• the days they have worked during the quarter; and
• the pay they received during the quarter.

How much will it cost?

The Governing Board of the Portable Long Service Benefits Authority has determined the Employer Levy as follows:

• 1.65% for community services;
• 1.80% for contract cleaning; and
• 1.80% for security.

This represents a percentage of the employee’s ordinary pay. The Quarterly Return calculates the contribution to be made by the employer and is based on each worker’s ordinary pay multiplied by the levy for their industry.

The employer contributions are then invested by the Authority and will be used to pay workers when they make a claim for long service.

Our Workplace Relations team can assist in determining on whether your organisation will be effected by these changes.

Penalty Rates

A reduction to public holiday and Sunday penalty rates under certain modern awards have also taken effect as of 1 July 2019. The applicable awards include:

• Hospitality Industry (General) Award 2010;
• Restaurant Industry Award 2010;
• General Retail Industry Award 2010;
• Fast Food Industry Award 2010; and
• Pharmacy Industry Award 2010.

Tax Free Threshold – “Genuine Redundancy” Payments

The tax free threshold for genuine redundancy payments has also increased. The first $10,638 will be tax free and then a further $5,320 for each completed year of service.

Next Steps

It’s so important that all organisations are across these changes. Compliance with employment law can be an extremely complex task and it’s essential that you have the right advice to avoid a claim down the track.

Our workplace relations team is able to assist in a range of ways including modern award interpretation and correct classification, drafting compliant employment contracts and providing advice on a range of complex workplace matters.

Should you require any assistance, please do not hesitate to contact us.

This article sets the foundations for conducting an investigation. In a series of articles over the coming months, we’ll explore the investigation process in more detail and provide our tips for a fair and defensible process.

When an allegation of misconduct is made, uncovering the truth can be a challenging task. Organisations may face anxious, distressed or defensive employees, a board or community demanding immediate action, or a workforce critical of moving too slowly. This pressure is compounded by the challenges associated with conducting a fair and reliable investigation, making factual findings, considering whether there has been a breach of law or policy, and determining how the organisation should respond.

Investigations conducted properly can instil trust and confidence and provide employers with a sound basis to effectively respond to misconduct. Where a process is flawed or procedurally unfair, courts and commissions are often scathing of the employer or investigator, leaving employers to defend an adverse action or unfair dismissal claim by the alleged perpetrator of the misconduct.

Given the risks associated with conducting a flawed investigation, employers should think carefully about whether an investigation is appropriate, and whether its people have the skills and experience to do it well. Investigations need not be perfect, but they should be fair and robust.

Is an investigation necessary?

Not all allegations of misconduct warrant an investigation. Investigations are not appropriate for trivial matters that will not lead to disciplinary action, even if the allegations are proven. Don’t rule out alternative dispute resolutions options such as mediation, counselling or coaching for interpersonal disputes that are unlikely to constitute bullying.

However, where allegations concern risks to health and safety, discrimination, harassment, bullying or criminal behaviour such as fraud, an investigation will often be required to ensure that standards of behaviour are maintained, risks are managed and legal obligations are met.

The following considerations will help to determine the best approach:

• What information is available?
• How serious are the allegations?
• If proven, would the alleged conduct breach employment obligations, policies or law?
• How significant are the risks to the individuals and the organisation?
• What options do your policies, procedures, contracts and industrial instruments provide for addressing the allegations?
• What the complainant is seeking? While you shouldn’t make any guarantees as to the outcome, this information may assist in determining the whether an investigation is appropriate.
• What’s your budget?

What type of investigation is appropriate?

If an investigation is appropriate, you’ll need to decide on the type of investigation. This will be determined by a range of factors such as time and cost constraints, whether there are issues of credibility, whether the matter would lead to disciplinary action, risks to the organisation, and whether you have sufficient information on the allegations.

An investigation could include:

• A preliminary inquiry to determine potential wrongdoing
• An investigation on the papers – where you are able to rely on documentary, visual or electronic records to make findings of fact
• Preliminary investigations with no findings of fact
• A full investigation with findings of fact about allegations on the balance of probabilities.

Who should investigate?

When you’ve determined the nature of the investigation, you then need to consider whether it should be conducted internally or externally and who should do it. We set out below some considerations for each option:

Internal investigations

• Cost effective – utilising internal resources can be a pragmatic and cost effective solution to deal with concerns that have arisen within the workplace. An internal investigator may better understand the organisation, the internal procedures, and the staff involved or implicated in the incident.  They may be able to provide a pragmatic approach to deal with the situation.
• Reputational damage – many workplace incidents can be exacerbated by the formality and disruption generated by a formal external investigation. Internal investigations can help the organisation contain the matter whilst under investigation.  However, this is must be balanced with the need not to give the impression that the matter has not been taken seriously.  In addition, the organisation may need to liaise with external parties conducting their own investigations such as the Police, ATO, WorkSafe and Fair Work Ombudsman.
• Efficient resolution – internal investigations may allow matters to be dealt with efficiently before they escalate. This approach may also send a positive message to the workforce that the organisation is being proactive in responding to concerns. However, organisations should carefully consider whether investigating a matter internally is appropriate for more serious or potentially litigious issues.
• Exposure to liability – conducting internal investigations may inadvertently expose an organisation to liability if the investigation is not handled correctly.  Common issues include a failure to comply with procedural fairness requirements such as not allowing the individuals to have a support person present at meetings, or a failure to provide allegations which are capable of being responded to.  Also, the investigation should follow a clear process and consider how the findings are communicated to employees.  If the investigation is flawed, individuals may make a claim that they have been treated unfairly in their employment or that their health has been impacted.
• Actual or inadvertent bias – personal friendships within the workplace or a history of management of issues may cloud the judgement of those involved in an internal investigation. We encourage organisations to carefully consider whether those conducting the investigation can act impartially, or equally importantly, give the broader impression that they are impartial in their investigative processes.

External investigators

• Impartiality – appointing an external investigator allows an organisation to demonstrate that the process is not tainted by bias or influence.  Care should be taken when deciding who within the organisation will be involved in briefing and liaising with the investigator to avoid any suggestion that the process is unfair or biased. 
• Confidence – engaging an expert external investigator may instil trust and confidence that the matter is being taken seriously. It also provides the opportunity for those involved or who have knowledge of the incident to participate honestly and openly safe in the knowledge that they are communicating with an external party and not someone who they will need to work alongside after the investigation is complete.
• Expertise – organisations should look to engage an external investigator experienced in their field to be a ‘safe pair of hands’ to manage a tricky situation.  An external investigator should have the skills and expertise to conduct the investigation, and may have insight into how other organisations have successfully resolved similar issues.
• Lack of control – when you relinquish control over an investigation, there’s a risk that you might not agree with the findings or be dissatisfied with the way that it is conducted.  If you’re convinced of the outcome, query whether you need an external investigation.
• Expense – external investigators do represent an additional cost to an organisation, however this must be considered against the cost to an organisation of having an employee act as an internal investigator in terms of absence from their usual role and loss of productivity.  Also consider whether the short term expense of appointing an external investigator will mitigate long term costs caused by poor handling of an investigation internally such as claims made against the organisation.

How we can help

Moores regularly advises clients how to respond to misconduct and manage workplace investigation, and can assist with conducting investigations and appointing an investigator. This can be helpful when you want to assert legal professional privilege over an investigation report. We can also provide training and coaching for your human resources and senior management teams on how to investigate allegations in line with your organisation’s policies, procedures and values.

If you would like to discuss our services further, or have any questions in this space, please don’t hesitate to contact us.

Click here to read Part 2 – Navigating the “human” element in Human Resource Investigations.

A recent decision of the Appeal Bench of the Fair Work Commission (FWC) has confirmed the importance of a fair and balanced investigation to successfully defend a claim for unfair dismissal, and challenged the assumption that reinstatement is only ordered in exceptional circumstances.

In Ryan Wilks Pty Ltd v Puszka [2019] FWCFB 3323, an employee was summarily dismissed from her employment for serious misconduct after becoming drunk at a farewell function hosted by a client and vomiting on the floor. While the employee admitted to the drunkenness and having vomited on the floor, she denied making disparaging comments about the client’s employees and sexually propositioning one of them, conduct of which she was also accused of.

The decision

At first instance, the FWC found that the employer’s flawed investigation into the allegations led it to erroneously conclude that the employee had engaged in all aspects of the alleged misconduct, and the employee was dismissed on that basis. Specifically, the employer relied on hearsay evidence in order to make the decision, and disregarded the fact that the person who was allegedly sexually harassed denied that it had happened.

Ultimately the FWC held that the nature and severity of the actual misconduct could not provide a sound, defensible or well-formed reason for the dismissal.

Commissioner Cambridge noted:

“Frankly, if one act of inoffensive drunkenness at an after work function provided valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs.” 

Reinstatement was ordered by the FWC on the basis that the dismissal was harsh, unjust or unreasonable. Importantly, the FWC remarked that notwithstanding the tension between the employer and employee caused by the legal proceedings, there must be a genuine loss of trust and confidence such that the employment relationship should not be re-established. In this case, the fact that the employer allowed the employee to continue to work unrestricted from the day of the function on 25 July 2018 until she was summarily dismissed on 2 August 2018, weakened the employer’s argument that reinstatement was not appropriate.

Lessons for employers

This case highlights the importance of a fair and balanced investigation process where an employer is considering dismissing an employee, and provides helpful insight into instances where the FWC will not consider there to be a genuine loss of trust and confidence within the employment relationship.

When considering termination, employers should:

• be sure to have robust investigation procedures embedded within the organisation;
• be sure to follow any investigation procedures to ensure procedural fairness;
• consider whether it is necessary to appoint an external body to investigate the misconduct (particularly where the investigation involves assessments of hearsay evidence and credibility); and
• rely on factors beyond any tension caused by legal proceedings to establish a lack of trust and confidence within the employment relationship.

How we can help

When and how to dismiss an employee can be a tricky road to navigate. Moores can assist you in determining whether the actions of an employee warrant a verbal or written warning, a final warning or dismissal on either a summary basis or with notice. For assistance with workplace relations matters, please do not hesitate to contact us.

Courts show little sympathy for employers who have misclassified employees as independent contractors, even where the misclassification is accidental. In recent times, there has been no shortage of workers lodging claims that they’ve been inappropriately classified as a contractor, demanding the benefits available to employees.

Publicly, the classification conundrum may have been focused on cases against Uber, Foodora and Deliveroo, but don’t be fooled into thinking that the issue is unique to the gig economy.

We have seen a growing number of claims against employers by individuals claiming to be employees but who have been engaged as independent contractors. They are two different, and legitimate, legal relationships. Misclassifying an employee as an independent contractor can be costly – legally, financially, culturally and reputationally. 

Moores recently presented to an industry group on the key distinctions between independent contractors and employees, the rights and obligations of independent contractors and the risks associated with getting it wrong.

The key takeaways are:

1. Get it right from the start – organisations need to consider the way the relationship will work as opposed to the label it is given.  How will the individual work within the organisation? What are they required to do? How and where will they work?  The more control and integration the organisation has over the individual, the more likely the individual is an employee.
   
2. Put your agreement in writing – The agreement should clearly set out the rights, obligations and expectations of both parties, and an ability to vary or terminate the contract in particular circumstances. Well drafted agreements will clarify the respective positions, reduce the potential for disputes and aim to protect an organisation’s reputation and confidential information. Simply changing a reference from ‘employee’ to ‘contractor’ in an existing agreement is dangerous. The agreements generally contain very different obligations, rights and entitlements.
   
3. The existence of an independent contractor agreement doesn’t guarantee the classification – Whilst it is imperative that you have a contractor agreement in place when you engage independent contractors, its existence does not mean a Court (or ATO or Fair Work Ombudsman) will deem the individual to be an independent contractor if the reality of the work arrangements are not consistent with the individual being a contractor. Consideration will be given to whether the individual is running their own business, or is embedded within the organisation they are working with in a way which is more aligned to them being an employee, despite the contract terms and method of payment.
   
4. Superannuation and insurance may be payable to independent contractors – For both superannuation and WorkCover purposes the definition of employee (and worker) is much broader than the commonly understood meaning under the Fair Work Act 2009 (Cth) (FWA).  It is therefore important to consider whether the independent contractors you engage are entitled to superannuation payments or are required to be included in your WorkCover Insurance Policy.
   
5. Understand your obligations – Whilst the FWA is predominantly tailored to the employer/employee relationship, it also provides protections for independent contractors. Protections include the ability to seek remedies for adverse action, coercion and abuses of freedom of association. Like employees, independent contractors are also entitled to a safe and healthy workplace, and it is the employer/ principal’s obligation to provide such an environment. Independent contractors can also ask a Court to review a contract on the basis that it is unfair or harsh.
   
6. Review, Review, Review! Just because an individual was engaged as an independent contractor does not mean that the relationship is set in stone. Over time, the engagement may actually morph from a contractor/principal relationship to an employee/employer relationship. Organisations should review their arrangements and consider the true nature of each engagement.
   
7. When in doubt, get advice – There are significant penalties associated with misclassifying an employee as a contractor, particularly where there is sham contracting.  Also, where an organisation has incorrectly classified an individual as a contractor, they will be exposed to significant underpayment claims, tax liabilities and superannuation contributions.  Importantly, penalties can be ordered against an organisation and individuals involved in the breach.

If you are unsure about your current arrangements for workers within your business or need assistance with drafting employment and independent contractor agreements, please do not hesitate to contact us.

The Victorian government has just announced that it will ban students in all Government schools from having phones between first and last bell.

Education minister James Merlino has been quoted saying that the ban will minimise cyber-bullying and distraction.

Independent schools are not required to follow the ban. They may introduce a similar ban (many already have) or other policies or variations on “bans” regarding the use of technology by students.

Let’s be clear: removing phones does not remove the School’s potential liability for harm caused by cyber-bullying. There’s simply no ability to say “it’s not our fault, because we told students not to use their phones and the harm was caused during a ban”. However, any student breaching the “ban” can and should be disciplined.

Last week we conducted our regular education briefing for clients. The topic was Child Safety in the Digital World.

Key takeaways from the session included:

1. Schools will often be liable for “out of hours” behaviour by students who have been engaged in cyber-bullying and have some obligations to investigate claims; and
2. Schools equally need to:
   • equip themselves to discipline students for this behaviour by ensuring enrolment agreements actually enable this, and
   • ensure, if they are disciplining students, that they follow their own compliant policies, including a Behaviour Management Policy which complies with the VRQA’s requirements which take effect from 1 July 2019.

Some of our independent school clients with liberal ethos might rightly criticise the ban as paternalistic and potentially hypocritical, unless educators and parents also stop using phones during the day.  They might argue that their duty of care is better discharged by accepting the reality of technology and ensuring that students know how to use it safely and in a way that does not cause harm.

Ultimately, independent schools might adopt a similar ban. If they do, they should remember that banning phones is not a substitute for:

• Educating students about cyber-safety; and
• Having policies regarding bullying and acceptable use, which are diligently and consistently enforced.

Lastly, if you are removing phones, ensure that any student who requires it for medical purposes (e.g to monitor their blood sugar app) is able to keep it, and ensure removed phones are kept secure and not accessed by staff, or face potential liability for loss of phones and privacy breaches.

How we can help

For more information regarding the phone ban or for further advice to ensure your School’s policies are compliant, please do not hesitate to contact us.

Victorian schools should be aware that they must comply with the VRQA’s updated Guidelines to the Minimum Standards and Requirements for School Registration (Guidelines) by 1 July 2019.

The changes to the Guidelines call on schools to provide evidence of how they comply with the Guidelines.

While the Guidelines touch on many areas of school operations, we encourage schools to focus on the following key areas ahead of Monday’s deadline:

Enrolment Policy

Does it make clear who is eligible for enrolment?

Enrolment Agreement

1. Is it ready to be made publically available?
2. Does it cover your Parent Code of Conduct and Student Code of Conduct?
3. Does it set out the school’s fees, the services it provides and grounds on which enrolment may be terminated?
4. Have you checked it’s not discriminatory, noting that all schools must make reasonable adjustments for students with disability.

Behaviour Management Policy

Does it set out the school’s policy and procedures for managing suspension and expulsions, while affording procedural fairness?

Conflict of Interest

Does your school have a conflict of interest register for all responsible persons (usually, but not always, the school’s board members), including how these conflicts will be managed?

Third party arrangements

Does your school have written agreements in place with all third parties that work with the school? This is very broad, including any governing body you work with and all the way to the cleaning company you engage to clean the school.

How we can help?

Moores can assist your school in reviewing and updating your documents to meet the requirements of the new Guidelines. For more information, please do not hesitate to contact us.

It’s hard to keep up with the changing landscape of social media usage by children. In 2018, the Australian Psychological Society found that teenagers spent an average of 3.3 hours a day on social media. This is compared to the national average of 1.5 hours.  The majority of this time spent on social media is through a mobile phone device which can be used anywhere. Digital usage and social media is making it harder to distinguish between “on school grounds” and “off school grounds”, raising the question – how far does your school’s duty of care extend?

Changing digital landscape

Along with the increased use of social media, children and young people are using different networks from adults. Facebook is not commonly used amongst children with Instagram, Snapchat, YouTube and WhatsApp being more popular. Furthermore, new apps are emerging such as:

• TikTok (formerly Musical.ly) – live streaming app with more than 1 billion downloads globally which is popular amongst young people, being listed as one of the apps teenagers are most excited about in a survey by Business Insider;
• Yubo (formerly Yellow) – app known as “Tinder for kids” which is aimed at 13 – 17 year olds to allow them to make ‘friends’ in their area; and
• Omegle / Whisper – apps that randomly pairs users with strangers to video chat.

Furthermore, the platforms that we are familiar with, such as Facebook Messenger and Instagram are being used in new ways. For example, Instagram has a messenger function and ‘stories’ to allow people to share images and videos which expire after 24 hours and Messenger can be used to send ‘secret’ or ‘disappearing’ messages.

Child safety issues

Social media and technology themselves are not a bad things. It can be used by children to stay connected with their friends, even when they move interstate or overseas. It can be used to learn, to communicate efficiently (such as when soccer training is cancelled) and to keep children connected with their family. However, they do create child safety risks on a scale we have not seen before.

The Australian Psychological Society study found that 15% of teenagers report to be contacted by strangers daily on social media. Furthermore, 35% of teenagers reported that they posted something that they later regretted and 29% had been bullied on social media.

The impact of social media also crosses into mental health concerns with 63% of teenagers stating that they feel pressured to look good in photos on social media and 56% often feel negative emotions after using social media such as feeling left out or feeling like “everyone else is living the dream”.

Your School’s duty of care

It is becoming virtually impossible for schools to insist that their duty of care ends when the school day ends. Often, child safety concerns on social media are occurring on the school grounds. Even where they occur off school grounds and outside of school hours, the impact may return to the school.

For example, there have been several instances of students placing videos on TikTok while in their school uniform. Videos have included sexualised videos, self-harm and violence. This has often led regulatory authorities to locate and identify the children in the videos by contacting the school.

In 2017, two students at St Peter’s College in Adelaide faced charges after they filmed and shared a video of two other students engaging in sexual intercourse. Parents of the school expressed concern that they were not notified by the school of the incident before it hit the news.

These incidents (and many more) send a strong message to schools that it needs to take some responsibility for its students’ technology and social media use. However, it is common for schools to feel powerless in this space as they feel limited in their ability to monitor, police and respond to incidents that occur on social media. This raises questions such as:

• When is the school liable for their students’ social media / technology use?
• What are the school’s powers to respond to allegations of ‘bad behaviour’ online? Can it confiscate phones, take evidence from phones or request that messages are deleted?
• What should a school do about students who commit offences such as image based violence, non-consensual sexting, online harassment and cyber-bullying?
• What can schools do to respond to or help students respond to defamatory content, fake profiles, stalking and sexting?  
• How can schools monitor their students’ social media usage?
• How can schools promote a culture of good digital citizenship and online safety amongst their students?

For more information regarding your school’s duty of care in a digital landscape, please do not hesitate to contact us.