Yesterday, the Victorian government released the Rapid Child Safety Review (Review) in response to recent allegations of child abuse in childcare centres. The Review provided for 22 recommendations which have a broad focus on supporting all relevant stakeholders within the early childhood sector including childcare providers, parents, childcare workers and regulators. The Victorian government has committed to adopting all 22 recommendations arising from the Review.
The Victorian Government response to the Review (the Response) commits to establishing a new, ‘independent, nation-leading regulator’ called the Early Childhood Education and Care Regulator (ECEC) (R13). It appears that the ECEC will take the place of Quality Assessment and Regulation Division (QARD).
Concurrently, the Victorian Response commits to strengthening the Social Services Regulator and consolidating the administration of the WWCC Scheme, Reportable Conduct Scheme, and Child Safe Standards education and guidance (currently with Working with Children Check Victoria and CCYP respectively) under its wing to strengthen the ‘safety net’.
The Response commits to legislating a Victorian Early Childhood Worker Register in October 2025 and establishing the scheme within six months. The ECEC will take a leading role in conducting site visits (including regular, unannounced site visits at least once every twelve months).
At a national level, the Response calls for sweeping reform:• An ability for regulators to deregister individuals based on an assessment of their suitability for ECEC settings;• A national approach to WWCC laws and national data base;• A material increase to maximum penalty amounts under the National Law;• Improvement on ECEC training and placements (and strong ASQA powers to address poor-quality registered training organizations);• Mandatory child safe training for all people involved in ECECC under National Law;• A national trial of CCTV in early childhood education and care settings.
The reforms aim to improve capabilities to assess and address risks in conjunction with other regulatory schemes (e.g., social services, disability and aged care) so that assessors have evidence-based tools, training and resources to increase the rigor of screening the sector.
Under the proposed reforms:
The Response commits to legislative change which will require organisations to demonstrate they have an active understanding of each worker’s history, including ‘tracking movement’ across workplaces and sectors.
The reforms have also considered the consumer. The Response commits to improvements to the rating certificates for services, increased publication of compliance and enforcement activity, and increased education, advice, and guidance for parents to assist with identifying signs and raising concerns.
As new legislation is introduced over the coming months, many details remain to be worked through. The Victorian Government also faces limitations in its ability to compel reform at the Commonwealth level. While corporate providers have drawn public criticism, it appears that all providers — including not-for-profits — will be required to move quickly to implement change.
Moores is committed to supporting the sector through this transition, with our team of leading experts in education and safeguarding. We will continue to provide updates and host information sessions as developments unfold.
At Moores, our Safeguarding and Child Safety teams work alongside organisations to ensure their child safety frameworks are robust, compliant, and reflective of best practice. Our experienced team supports clients to:
We also provide tailored training for staff, boards, and child safety officers to ensure all individuals understand their role in protecting children.
If you would like to discuss how we can support your organisation, our education and safeguarding teams are here to help. Please contact Cecelia Irvine-So or Skye Rose 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.
We are in a housing crisis in Victoria and community housing providers are struggling to make much-needed social housing projects stack up. This article explores whether the forthcoming developer bond scheme and the current domestic building insurance (DBI) requirements, that are intended to protect owners of residential premises, should exempt social housing projects to help get more social housing delivered for less money.
From 1 July 2026 developers of residential apartment buildings of more than three storeys will be required to pay a financial bond to be held by the Victorian Building Authority/Building and Plumbing Commission. The bond must be in the amount of 2% of the total build costs, is to be in place for two years following the issuing of the development’s occupancy permit and can be claimed by the owners corporation where they need to pay for the cost of rectifying defective building works identified in the final report prepared by the building assessor. The introduction of the developer bond scheme seeks to protect owners of apartments in buildings of more than three storeys which are currently exempt from the requirement of DBI (discussed in this article below).
Developers have started grappling with the implications of the cost of developer bonds on the feasibility of their projects and how they can commence future projects with significant money tied up for years in developer bonds. But community housing providers should note that, as the developer bond scheme currently stands, they will be required to put up developer bonds on their apartment projects which have more than three storeys. This is because they may fall within the definition of developer in the Building Legislation Amendment (Buyer Protections) Act 2025 (Vic) (“the owner of the land on which the residential apartment building is affixed”) and because section 137ZR of the Act requires any person who applies for an occupancy permit for a residential apartment building to have put up the developer bond.
The purpose of the developer bond scheme, as set out in the second reading is laudable, being to “introduce new financial protections for consumers through a developer bond scheme for apartments with a rise in storeys of more than three”. But it makes no sense to extend the developer bond scheme to social housing projects, noting:
We have yet to see the regulations that will detail the specifics of the operation of the developer bond scheme. But given that community housing providers are not consumers of off-the-plan contracts that require protection from developers, and that the developer bond scheme as currently drafting would see community housing providers tying up significant amounts of their own money to pay themselves if at all, community housing providers should start lobbying the Victorian government now to get their social housing projects exempted from the developer bond scheme in the regulations.
DBI is mandatory for builders carrying out domestic building work worth more than $16,000 (soon to be $20,000). The primary exemption to this requirement is developments with more than three storeys (excluding basements). Social housing projects carried out by community housing providers will therefore need DBI unless they are multi-storey developments. DBI is intended to provide some protection to homeowners (including subsequent owners) in the event their building project cannot be completed or if defective works cannot be rectified because the builder has died, disappeared, become insolvent or failed to comply with a Tribunal or Court Order. But community housing providers should note that:
We think the requirement for DBI for domestic building work generally makes sense. But we query whether it is an unnecessary additional handbrake on the delivery of social housing developments for the following reasons:
No one is likely to argue against trying to provide safeguards for apartment and housing owners against disappearing builders and defective workmanship. But the application of the developer bond scheme and DBI to social housing projects provides little additional protection for community housing providers in comparison to the steps they can take themselves. When limited protection is weighed against the costs of complying with these requirements, we consider that the developer bond scheme and DBI should be optional for all social housing projects in the interests of reducing costs and getting those projects built.
If you want to know more about the application of developer bonds and DBI to your projects, or requirements for social housing developments more generally, please contact Hugh Watson or Kate Gorman.
Please contact us for more detailed and tailored help.
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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.
Recent media coverage has put the spotlight back on the extent to which gig economy platforms can shirk their obligations under anti-discrimination law.
Earlier this year, Paula Hobley, a blind woman from regional Victoria, filed a case in the Federal Court alleging that Uber unlawfully discriminated against her by allowing its drivers to refuse service to her because of her assistance animal. Between March 2021 and November 2022, Uber drivers refused to pick up Ms Hobley on 32 separate occasions after she made a booking and let the driver know she was travelling with her guide dog.
Uber acknowledged that some of its users improperly cancel trips. However, Uber maintains that it is the Uber driver, as an independent contractor1 who control cancellations, not Uber. In other words, Uber operates the Uber app for smartphone users but is not legally responsible for any discriminatory conduct of its drivers.
Ms Hobley’s claim is therefore an important test case to determine whether Uber can distance itself from the discriminatory conduct by its drivers. As we explain in this article, our anti-discrimination frameworks support the growing political and community pressure on app operators like Uber to take greater responsibility for the misconduct of the service providers who use the app to deliver services to users.
Under state-based anti-discrimination laws such as the Victorian Equal Opportunity Act 2010 (Vic) (EO Act) and the federal Disability Discrimination Act 1992 (Cth) (DD Act), it is unlawful to discriminate directly or indirectly against someone on the basis of their disability. Both acts make it clear that discrimination on the basis of a disability also extends to discrimination on the basis that the person uses an assistance animal.2
While the tests vary slightly between jurisdictions, direct discrimination is treating, or proposing to treat, someone unfavourably because of a protected attribute, such as a disability. An Uber driver cancelling a trip because they see that the person requires an assistance animal is an example of direct discrimination. Being denied a service is a clear example of unfavourable treatment.
In contrast, indirect discrimination occurs if someone imposes, or proposes to impose, a requirement, condition or practice:
Indirect discrimination recognises that even though a condition may appear to treat everyone the same, in practice it unfairly disadvantages some people or groups of people based on their protected attribute, such as their disability. For example, an Uber driver who has a blanket rule that they will not drive with an animal in their vehicle is an example of indirect discrimination. While the requirement not to travel with an animal treats everyone the same, it has the effect of disadvantaging people who require assistance animals.
When responding to an indirect discrimination claim, the service provider bears the onus of showing that the requirement was reasonable. While there are a range of factors considered to assess reasonableness, a blanket rule like this that does not provide any flexibility for those who require assistance animals is unlikely to be reasonable.
The EO Act and the DD Act also require service providers to make adjustments for people with a disability, unless the adjustments are not reasonable, or the person cannot access the service or derive any substantial benefit from it even after the adjustment is made (or another exception applies). Under the DD Act, service providers can rely on the defence of unjustifiable hardship if they can demonstrate that making the adjustment would impose unjustifiable hardship on the service provider.3
The application of these anti-discrimination laws to Uber’s independent contractor drivers would appear to be relatively clear. However, their application to Uber itself, and the extent to which Uber can be held responsible for the discriminatory actions of its drivers, will be key points of contention in Ms Hobley’s test case.
Uber asserts that the service it provides is access to the Uber app to smartphone users rather than the provision of the ride share service. On this basis, as long as Uber continues to provide disabled users with access to its app and has rules allowing users to ride with assistance animals, it is acting lawfully. Uber also asserts that the measures (and presumably the anticipated costs) that would be required to ensure Uber drivers do not discriminate against users with service animals would impose ‘unjustifiable hardship’ on Uber.
However, Uber’s argument has some flaws.
Uber already has robust systems in place to monitor driver conduct. Extending these services to monitor and respond to discriminatory conduct from drivers may therefore not meet the threshold for unjustifiable hardship.
In Victoria, the EO Act also has a positive duty that requires service providers such as Uber to take reasonable and proportionate measures to eliminate discrimination (as well as sexual harassment and victimisation) as far as possible.4 The positive duty aims to address systemic causes of discrimination, such as access refusals because of assistance animals, and overcome the limitations of our complaint-based legal system that places the onus on affected individuals to lodge discrimination claims.
The steps to comply with the positive duty vary for each organisation, taking into account their size, business, operations, resources and circumstances.
Given its size and resources, at a minimum, the positive duty requires Uber to:
Unfortunately, the enforceability of Victoria’s positive duty is somewhat limited as individuals cannot complain to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) or the Victorian Civil and Administrative Tribunal (VCAT) that Uber has failed to meet its positive duty,5 though compliance with the positive duty can be investigated by VEOHRC under the EO Act.
The measures required to meet the positive duty are similar to the measures that must be taken to avoid being found vicariously liable for discrimination. However, unlike vicarious liability, the positive duty requires measures taken to eliminate discrimination and operates regardless of whether a discrimination complaint has been made. The positive duty therefore requires a higher standard of proactive conduct by Uber. Complying with the positive duty would improve Uber’s service and make it more appealing to its users and the broader community.
Uber is not the only company taking a ‘hands off’ approach and trying to distance itself from the service providers who deliver services on its app.
6Organisations such as Mable and Airtasker assert that the service providers on their app are not employees or independent contractors.
Airtasker advises that it operates an online platform allowing users to connect through the Airtasker platform. Mable presents itself as simply facilitating a platform for customers and support workers to connect, and that it is not a party to any contract for care services.
This ‘hands off’ position of platform providers has been examined by the Disability Royal Commission, and was subject to scrutiny in the NSW Parliament.7 It also does not align with community expectations and the beneficial objectives of anti-discrimination legislation.
Our safeguarding and discrimination team are skilled in guiding organisations to act consistently with their anti-discrimination obligations while balancing this with their practical and commercial reality. Our team can provide peace of mind in navigating any allegations of discrimination particularly where the scope of laws is yet to be tested.
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.
Charities and other non-profit organisations rely on the good will and charity of donors. They are also familiar with the challenges of realising bequests that have been made by donors and perhaps less so about how it influences the management of donor records by the organisation.
The recently publicised Oxfam breach, brought to light the privacy risks in retaining donor information and how it is used across the organisation. It also highlighted that most donor information generally has an end-life of about seven (7) years after a valid last engagement with the organisation before it is no longer required and must be destroyed or de-identified.
There are some exceptions, including:
Oxfam reported an eligible data breach in January 2021 after discovering 1.7m donor records had been stolen by malicious actors. The OAIC commenced an investigation six months later citing concerns about Oxfam privacy practice, in particular, in relation to Australian Privacy Principle (APP) 11.1: security of personal information and APP 11.2: retention. Ultimately, the OAIC accepted an enforceable undertaking from Oxfam in February this year as part of its regulatory response.1
The Oxfam breach provides several learnings:
Active donor engagement is a core part of NFP operations who depend on the valuable contributions and support of their donor community. Protecting the personal information of this cohort of stakeholders goes toward building and ensuring trust and continued connection.
Whilst organisations might turn their attention to protecting personal information of active donors, they don’t often turn their minds to what happens when donors have stopped engaging with the organisation and significant time has passed since the original collection of personal information.
Destruction and de-identification of personal information is part and parcel with taking ‘reasonable steps’ to protect personal information. Organisations should have a picture of when personal information is no longer needed by:
Whilst many charities and other NFP organisations may not meet the thresholds for compliance with the Privacy Act 1988 (Cth), implementing these types of controls is simply good practice in an age when organisations are grappling with how to handle large volumes of data. Enhanced data governance is not just strategically important, it gives confidence to supporters that their privacy is being respected. Registered charities must also demonstrate good governance in alignment with requirements under the ACNC Governance Standards.
Read more about the OAIC’s guidance to NFP’s and charities in our article New privacy guidance for not-for-profits issued by the OAIC.
Retaining data longer than necessary can breach APP 11.2, which requires an organisation (subject to the APPs) to destroy or de-identify the personal information it holds when it no longer needs it for any purpose or is not required to retain it under any Australian law or court/tribunal order.
The recent reforms introduced APP 11.3 which makes clear that ‘reasonable steps’ to protect personal information includes both technical and organisational measures – setting and applying retention policies are such steps.
Organisations are exposed to Notifiable Data Breaches (NDB) scheme triggers if long-held data is compromised leading to both public and regulatory scrutiny. The OAIC’s enhanced enforcement powers will also influence the landscape of how the regulator will respond to notifiable breaches in future.
With the new statutory tort for serious invasions of privacy now in effect, misuse of personal information arising from poor retention practices may also expose organisations to claims being bought by individuals where the individual would have a reasonable expectation of privacy, the invasion of privacy was intentional or reckless, and serious.
Moores has dedicated privacy specialists who can work with you and support your organisation’s needs, including:
By November this year, fixed term residential rental agreements in Victoria will in practice be prohibited. Recent amendments to the Residential Tenancies Act 1997 (RTA) repeal the section 91ZZD ground for issuing a notice to vacate at the end of a fixed term. This change will significantly impact Charitable Supported Housing programs which are predicated on short-to-medium term fixed rental arrangements. These programs are likely to become less effective in their ability to provide housing to vulnerable Victorians, and may even become unviable in future. A solution is urgently needed from the Victorian Government to resolve this issue.
In this article, we refer to ‘Charitable Supported Housing’ – this covers a range of programs operated by charities which provide accommodation to a specific cohort of individuals for a limited period of time (typically between 6 weeks and 24 months). Charitable Supported Housing is almost always provided to program participants at a significant rental discount.
Examples of Charitable Supported Housing include:
On 18 March 2025, the Consumer and Planning Amendment (Housing Statement Reform) Act 2025 (HSR Act) was passed into law. Among other things, the HSR Act repeals sections 91ZZD and 91ZZDA of the RTA – these sections previously allowed landlords to issue a renter with a notice to vacate at the end of the initial fixed term of their residential rental agreement.
In its public comments on the HSR Act, the Victorian Government explained that it is repealing sections 91ZZD and 91ZZDA in order to ‘crack down on an emerging trend which has seen some landlords evict tenants at the end of their first fixed-term lease in order raise the rent substantially when re-listing the rental property’. We understand the Government’s stated intention is to ensure long-term housing which is affordable for most Victorians – the HSR Act is clearly targeted at resolving an issue identified in the private rental market.
The RTA does not distinguish between long-term private rentals and Charitable Supported Housing. As a result of the HSR Act amendments, it is no longer practical to operate a charitable housing program which delivers anything other than long-term housing (except in very rare circumstances where the RTA does not apply).
The tension between the RTA and Charitable Supported Housing is as follows:
1. Charitable Supported Housing is provided to individuals who are either:
Once the intervention has been delivered or the entitlement period has expired, renters are expected to move out so that future participants in the program can use the property. It is crucial to the viability of Charitable Supported Housing programs that properties routinely become available for use by new participants. This necessarily requires existing participants to move out once their program involvement ends.
2. Sometimes, a participant may not want to move out at the end of the program. This is completely understandable – it may be the first stable accommodation they have had, or they may not want to leave a property where they receive subsidised rents. However, Charitable Supported Housing programs cannot function where renters are allowed to remain at program property indefinitely. Eventually, no new properties will be available for allocation to incoming participants who need the benefits of the service.
3. Prior to the HSR Act, charitable housing providers managed their tenancies by issuing a notice to vacate at the end of the initial fixed term. This notice provided the incumbent renter with certainty regarding the date they need to vacate the property and provided the charitable housing provider with certainty that the property would be available for the next participant on their waiting list.
4. The HSR Act has repealed the only remaining provisions of the RTA which allowed for issuing a notice to vacate in these circumstances. Charitable housing providers now have zero ability to legally manage the duration of their short-to-medium term rental agreements. It is not an exaggeration to say that all RTA tenancies are now effectively long-term housing and, as a result, it is impractical to run a Charitable Supported Housing program.
5. There are also risks for charitable housing providers:
Without the legal ability to turnover rented properties to new participants, charitable housing providers may breach their funding obligations and have no pathway to remedying the breach.
6. Over time, it is likely that more and more properties originally used for Charitable Supported Housing will become occupied by long-term renters who no longer meet program criteria. Although those renters will benefit from long-term housing, many others will be denied the ability to participate in Charitable Supported Housing programs as a result.
7. If the current situation persists, the resulting attrition in housing stock available for Charitable Supported Housing may make those programs unviable or significantly limit their effectiveness.
In our view, this problem needs a two-stage legislative fix from the Victorian Government:
1. Temporary fix – gazette transitional housing requirements
2. Long-term fix – consult with the charitable housing sector and amend the RTA
In practice, the RTA needs a number of amendments so that Charitable Supported Housing programs can function as intended. This could include:
We acknowledge that the RTA is still a vital protection for vulnerable renters in charitable housing. Any changes made to the RTA should be for the purpose of ensuring that Charitable Supported Housing programs are able to continue to operate as intended.
The charitable housing providers we work with are incredibly committed to sustaining tenancies for as long as possible, ideally until the renter finds suitable alternative accommodation. It is a sad fact that Charitable Supported Housing programs and properties are needed. But they were never intended to provide a renter with their ‘forever home’. The ability to issue a notice to vacate to a renter in those programs helps to ensure that housing can be used to support future program participants. Eviction is always a last resort.
Victoria is in the midst of a housing crisis, and steps must be taken to address it. However, there must also be reasonable consideration by the Victorian Government of charitable housing models other than long-term housing, particularly when Charitable Supported Housing plays a key role in preventing homelessness and providing vital supports to vulnerable people.
If you are concerned that your organisation is providing accommodation that may be affected by the recent RTA amendments, please contact Ed Hamley or Andrew Boer for tailored advice.
Please contact us if you would like further information on how we can assist.
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 your organisation.
In response to the current childcare crisis, the Albanese Government has introduced the Early Childhood Education and Care (Strengthening Regulation of Early Education) Bill 2025 (Cth) (Bill), a sweeping package of reforms designed to lift safety and quality standards across the sector.
The Bill signals a clear policy direction: quality and child safety will be non-negotiable.
If passed, the Bill will give the Federal Government enhanced oversight, including powers to:
This “funding as leverage” approach represents a significant shift in the regulatory landscape for providers.
Under the Bill, the Secretary will have broader discretion to refuse, suspend, or cancel CCS approvals based on a provider’s:
This effectively raises the entry and ongoing compliance bar for providers. While some stakeholders are calling for further reform to staffing ratios (including review of the “under the roof” approach), the Bill has not yet addressed those provisions.
The Bill also proposes:
These measures signal a strong emphasis on deterrence and accountability.
The Bill proposes that from 1 January 2026, Family Day Care (FDC) and In Home Care (IHC) providers must collect CCS gap fees directly from families. This means that educators in these services will no longer be able to collect the gap fee themselves on behalf of providers. All gap fees must be paid by EFT (unless an exemption has been granted). Many FDC and IHC providers already directly collect CCS gap fees.
This change aims to strengthen the sector by:
The Bill signals a significant shift in regulation of providers in the sector. Further reforms are in the pipeline, including:
In the meantime, Victoria will introduce its own Early Childhood Workforce Register this August 2025, with initial requirements applying to services receiving government funding. Recruitment agency staff and broader sector coverage will follow later this year. Critics have argued that the staged rollout will leave compliance gaps during the transition.
At Moores, we see these proposed reforms as a clear message: quality and safety are the price of admission to the sector. While defunding may be a powerful enforcement tool, its practical application will be tested in areas where childcare demand exceeds supply.
Sustainable reform will require more than compliance threats — it will require systemic investment in child safety practices, workforce capability, and transparent governance.
While Victorian law imposes strict formal requirements for making a valid Will, including rules around signing and witnessing, section 9 of the Wills Act 1997 (Vic) provides the Court with discretion to dispense with these formalities in certain circumstances. This flexibility is designed to ensure that genuine testamentary intentions are not defeated simply because a document fails to meet technical requirements, whether due to the surrounding circumstances or a lack of understanding of the legal process.
However, this discretion is not automatic: the Court must be satisfied, based on the available evidence, that the document reflects the deceased’s final intentions and meets specific criteria.
To admit an informal will to probate, it must be able to be established that:
Whilst never a substitute for proper estate planning, the Court’s power under section 9 of the Wills Act 1997 (Vic) can be a valuable mechanism to ensure technical non-compliance with formalities for a Will does not inadvertently frustrate a person’s testamentary intentions.
If you are dealing with a potential informal Will or considering your own estate planning, it’s important to seek legal advice as soon as possible. Our experienced wills and estates team would be happy to assist you.
The recent Full Bench decision in Naden v Catholic Schools Broken Bay [2025] FWCFB 82 delivers a timely reminder: employers must strictly comply with the procedural and substantive requirements in the Fair Work Act 2009 (Cth) (FW Act) when responding to flexible work requests by employees.
The case reinforces that it’s not enough for employers to believe they have reasonable business grounds—they must also follow the proper process under s 65A of the FW Act to lawfully refuse a request.
Ms Elizabeth Naden, a long-serving teacher and Religious Education Coordinator (REC) at Sacred Heart Primary School in Pymble (School), submitted a flexible work request to return part-time after parental leave under the Catholic Schools Broken Bay Enterprise Agreement 2023, which mirrors the provisions of the FW Act. The employee proposed to job-share the REC role and work three days per week in Terms 1 and 2 of 2025, before resuming full-time duties in Term 3.
The School expressed concern about approving Ms Naden’s request, noting that it could not provide flexible work arrangement for executive roles, and instead offered her a classroom teacher position during that period. On 12 December 2024—82 days after the request—the School formally declined her proposal, citing adverse impacts on student outcomes, leadership continuity, the workload of other staff, and staffing costs.
Ms Naden disagreed and referred the matter to the Fair Work Commission under s 739 of the FW Act.
Employees have a right to request flexible work under the National Employment Standards (NES) in the FW Act if they meet specified criteria, such as being pregnant, a parent or carer, having a disability, being 55 or older, experiencing family/domestic violence, or providing care to someone experiencing family/domestic violence.
For an employer’s refusal to be valid, all elements of s 65A(3) must be met. It is only lawful to refuse a request if:
Section 65A(5) of the FW Act outlines a non-exhaustive list of what may constitute “reasonable business grounds” to refuse a flexible work request.
These include:
Importantly, these grounds must be assessed in the context of the employer’s specific circumstances—such as the size and nature of the organisation—which may influence whether such grounds are objectively reasonable under s 65A(3)(d) and (4). For example, a smaller school with limited staff may have less capacity to accommodate a job-share arrangement.
The School’s decision to refuse the request was upheld at first instance. However, on appeal, the Full Bench overturned that decision. The key failure? The School did not demonstrate that it considered the personal impact of the refusal on Ms Naden—a specific and mandatory requirement under s 65A(3) of the FW Act.
As the Full Bench explained (at [47]):
“The respondent… was not entitled to refuse the request unless [it] had regard to those consequences… The evidence did not establish that the respondent had regard to those consequences when it refused the request.”
Ultimately, the Commission found that the refusal was not lawful. The practical effect: Ms Naden should have been permitted to return part-time in accordance with her flexible work request.
This case highlights three critical lessons for employers and school leaders considering flexible work requests:
Our Workplace Relations team supports employers with:
We can help you make decisions that are both legally sound and practically workable—reducing risk while supporting staff wellbeing.
Two recent Fair Work Commission (FWC) decisions offer contrasting outcomes for schools navigating the complex terrain of staff misconduct towards children. These cases highlight the legal and ethical boundaries of acceptable behaviour in student discipline and underscore the importance of proportionality, policy alignment, and procedural fairness when considering termination. They also raise key safeguarding considerations for educational institutions.
Jillian McLoghlin v St Columba’s College Ltd [2025] FWC 1554
Ms Jillian McLoghlin, a science laboratory technician at the College, was dismissed for misconduct following an incident where she forcefully slapped a student’s hand during a biology lesson.
While Ms McLoghlin claimed it was a reflexive act to prevent harm involving a scalpel, she acknowledged being frustrated with the students. The College reported the allegations to the Commission for Children and Young People (CCYP), conducted an investigation, and subsequently terminated her employment.
Ms McLoghlin’s application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) was dismissed. The FWC found that the College had a valid reason for dismissal based to her conduct, and the dismissal was not harsh, unjust, or unreasonable.
In reaching this conclusion, the FWC found:
Paramjit Brownson v Australian International Islamic College Ltd [2025] FWC 1551
Ms Paramjit Brownson, a high school teacher and Pastoral Coordinator, was summarily dismissed for allegedly yelling at misbehaving students. She argued her actions were consistent with school norms and necessary to manage escalating misbehaviour. She also alleged her dismissal followed criticisms she raised about school leadership.
This was a rehearing of an unfair dismissal application after an earlier reinstatement order was quashed on appeal.
The FWC found that Ms Brownson was unfairly dismissed and ordered the College to pay Ms Brownson $55,786.90 (plus superannuation). Reinstatement was ruled out due to ongoing fair treatment and a breakdown in trust when Ms Brownson saved confidential information to her personal device.
In reaching its decision, the FWC’s conclusion considered each of the factors under s387 of the Fair Work Act 2009 (Cth) including:
The FWC found the lack of a valid reason for dismissal and the contrived nature of Ms Brownson’s termination outweighed the procedural aspects where the College had met its obligations (e.g., notification and opportunity to respond). The FWC also noted that less severe options, such as training, counselling, or role changes, would have been fairer if genuine concerns about her interactions with students had existed.
The central distinction lies in the nature of the conduct and the integrity of the investigation.
These cases underscore the importance of proportionality, policy clarity, process integrity, and credible investigation, especially in classroom discipline contexts.
Where staff behaviour involves potential harm to children, employers must also meet external reporting obligations, including under the relevant reportable conduct scheme.
Employers should carefully consider guideline published by regulators to determine whether allegations are reportable.
Report when required: Be clear on your safeguarding obligations and act promptly where reportable conduct may be involved.
Our Workplace Relations team assists employers with managing disciplinary matters to minimise risk and ensure compliance with employment law. Additionally, our Safeguarding team advises on external reporting obligations and investigations arising from staff conduct involving children or young people.
Moores can help you navigate the complexities of staff conduct and ensure your organisation is protected—legally, ethically, and operationally.
This is the third article in our recent series on the childcare crisis, following our advice for operational changes (Rebuilding Trust: Strengthening Child Safety in Childcare Centres During a Time of Crisis) and governance and board responsibilities (Child Safety and the Board: Boards must lead with care).
In response to the announcement on July 1 that childcare worker Joshua Brown has been charged with 70 child sex offences, both the Victorian and Commonwealth governments have taken swift and targeted action.
Notwithstanding, the Victorian government has announced a review of the sector and is expected to release its report and findings on 15 August 2025.
Meanwhile the Commonwealth government has announced that it is expediting the laws announced in March this year1 which propose to remove funding from childcare providers who are chronically non-compliant, and Education Minister Jason Clare stating that additional legislation will be introduced in the next sitting period which would allow spot-checks of childcare centres without warrants or police involvement if passed.2
While lowering barriers for childcare centres to be investigated and de-funded is aimed to increase compliance and sector integrity, educators and school communities should be aware and prepared for temporary side-effects, such as limitations on the ability to expand to new campuses whilst ‘working towards compliance’ and the potential for parents to be left without childcare and on new waiting lists at short notice if their child’s centre is de-funded.
One of the criticisms and challenges of the childcare sector is that it is subject to different state and federal regulation and different types of funding, making a complex. One proposed solution is to shift the operation of childcare to state public schools. Where this leaves the (much less criticised) not-for-profit providers, and the for-profit operators, on the matter of funding is unclear.
Notwithstanding, the changes take place within the Albanese Government’s broader initiative to championing universal childcare as the predominant mode of funded childcare. The aims target a wide range of outcomes including decreasing developmental vulnerability of children from low-income families.3 In this context, the importance of resolving these issues to ensure the wellbeing and safety of the sector is especially critical.
The move towards universal childcare is underpinned by a huge investment in increasing the capacity of the sector as well as accessibility.4 Measures include Government investment wage increases for childcare workers and funding of new centres. Additionally, in February this year, Parliament passed the Early Childhood Education and Care (Three Day Guarantee) Act 2025, which commences January 2026 and will remove the requirement for families to spend a certain number of hours undertaking ‘recognised activities’ (including paid and unpaid work or leave, approved course of study, or looking for work) in order to access 72 hours per fortnight of subsidised care (with further hours being made available to those with over 48 hours in recognised activities per fortnight).
Currently, the subsidy for a firstborn is 90% for families with an income up to $85,279, after which it decreases 1% for every $5,000 earned up to $535,279. There are also rate caps, and a lower decreasing scale for second and younger children.5 Under the Three Day Guarantee, the subsidy percentage will continue to rely on the combined family income, hourly rate caps, number of children (and their age) in care.6
We can expect to see increased uptake of childcare services, which will sharpen the spotlight on the ability of regulators to hold workers accountable and prevent harm.
More broadly, a sleeper issue could be the sunsetting of key cyber powers of the Australian Federal Police and the Australian Criminal Intelligence Commission at the end of next year. Driven by the need to disrupt and prosecute serious criminal online activity such as the distribution of child abuse material, the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth) gave these federal agencies significant powers to collect intelligence and conduct investigations (including by taking over online accounts) into serious criminal online activity.7 These powers have been subject to strong safeguards and will sunset in September 2026 unless renewed by Parliament.
The special powers of the AFP and ACIC are currently under review by the Independent National Security Legislation Monitor8 and whether by this or by other means, the expansion and investment in the growth and reform of the childcare sector could leave it vulnerable, and should be governed with both appropriate regulatory and investigative powers.
What is clear is that centres should not wait for federal reforms such as a national or state register of workers. They need to act now.