Working With Children Checks On School Building Projects

Child safety has rightly been prioritised by schools following the Royal Commission into Institutional Responses to Child Sexual Abuse and the Victorian Betrayal of Trust Inquiry. This is particularly the case in Victoria, where several legislative changes now place obligations on schools to provide a child safe environment.

As part of their commitment to the safety and wellbeing of their students, some schools now require all employees, subcontractors and suppliers of builders on their school building projects to have a Working with Children (WWC) Check. This article looks at whether this requirement is necessary and sensible.

What are WWC Checks?

WWC Checks are a state based assessment of an individual’s suitability to work with children. In Victoria, the WWC Check is regulated under the Working with Children Act 2005 (Vic) (the Act). The WWC Check screens an individual’s national criminal record for serious criminal charges, offences, findings of guilt and professional conduct determinations and findings related to the safety of children. If an individual passes the WWC Check, their criminal record is continually monitored for the five years that the WWC Check is valid for and the organisation they work for is notified of any changes (if the organisation is listed when the WWC Check is completed, renewed or updated). A WWC Check is different to a National Police Check which checks national criminal records for a broader range of crimes and there is no monitoring and notification process (meaning it is only valid at the time it is provided).

Requirement for a WWC Check under the Act

Under the Act, an individual requires a WWC Check if they engage in, or intend to engage in, child-related work as an employee or volunteer. Child-related work is described as work undertaken:

  1. at or for a service, body or place defined in the Act (which includes schools); and
  2. that usually involves direct contact with a child that is not occasional direct contact with children that is incidental to the work.

The employees, subcontractors and suppliers of builders who are carrying out works on school grounds will satisfy the first requirement above. However, while such persons may have contact with children, it is likely to be considered occasional and incidental to their work. Therefore, it is unlikely that employees, subcontractors and suppliers of builders who are carrying out works on school grounds as part of a school building project need WWC Checks under the Act.

Requirement for a WWC Check under a Child Protection Policy

While employees, subcontractors and suppliers of builders are unlikely to need a WWC Check under the Act, some schools insist on it as part of their Child Protection Policy (CPP). It is a requirement under the Child Safe Standards (Standards) that schools have their own CPP. The Standards were created as a compulsory minimum set of obligations on organisations that provide services to children, including Victorian schools.

If a school’s CPP requires WWC Checks for employees, subcontractors and suppliers of builders, the school must ensure that these checks are obtained. This is because breaches of a school’s CPP may result in investigation and liability. This raises two issues. First, a school should be precise in specifying who is required to have a WWC Check to avoid the school assuming unintentionally broad obligations. Second, should a school’s CPP require all employees, subcontractors and suppliers of builders on their school building projects to have a WWC Check? We note that:

  1. There can be hundreds of individual employees, subcontractors and suppliers of a builder performing works on the school grounds during the course of a school building project, some of whom may be there for only an hour or two. It may not be practical to get a WWC Check from all such persons, and schools should be aware of the time and costs of getting them, which will likely be passed-through to the school by the builder.
  2. A school should be wary of insisting on a requirement in their CPP (and similarly in their building contracts) that they will not be able or willing to regulate or enforce. As noted above, a school must comply with their CPP, so care needs to be taken in imposing a WWC Check requirement on the employees, subcontractors and suppliers of a builder unless the school is prepared to obtain, and ensure that it obtains, the required WWC Checks.

Additional child safety obligations

The Standards make clear that WWC Checks are only a starting point for ensuring child safety. Schools need to ensure that they are complying with all seven of the Standards. This includes putting in place strategies to reduce the risk of child abuse. For example, how school building projects are staged and delivered can help ensure a child safe environment. Issues to consider include how best to limit contact between students and the employees, subcontractors and suppliers of builders. Can, for example, the construction site be securely fenced off from the wider school grounds? Should the school prohibit employees, subcontractors and suppliers of builders from entering or leaving the school grounds at the start or end of the school day? Will the school engage chaperons and supervisors while building works are being carried out?

We also note that the Children Legislation Amendment (Reportable Conduct) Act 2017 (Vic) imposes a reportable conduct scheme which requires the head of a school (i.e. the Principal) to notify the Commission for Children and Young People of reportable conduct by an associated employee, volunteer, contractor or other associated individual to a child. Reportable conduct includes allegations of sexual offences, sexual misconduct, physical violence, significant neglect and any other behaviour that causes significant emotional or psychological harm. Unlike the WWC Check requirement under the Act, this reporting requirement will apply to the employees, subcontractors and suppliers of builders on school building projects.

How we can help

Child safety should be of upmost importance to schools. This includes in connection with their school building projects.

We can assist schools to bring their processes in line with legislative requirements and best practice to help ensure a child safe environment, including by:

  1. Drafting Child Safety Procedures for ensuring that child safety concerns are reported to the Department of Health and Human Services, the police and/or the Commission for Children and Young People when required.
  2. Reviewing CPPs and advising when WWC Checks should be required under them.
  3. Advising schools on the reportable conduct scheme and when reports must be made.
  4. Properly preparing building contracts for school building projects, including aligning them with a school’s CPP and other child safety obligations which may apply.

For any further information, please do not hesitate to contact us.