Many secondary schools around the country regularly arrange to send students aged between 15 and 16 (children by any definition - in any jurisdiction) out into the workforce for work experience placements, Vocational Education Training (VET) programs or Workplace Learning (a type of VET).

Work experience has been a mainstay in many schools for over 50 years. It has been seen as a positive introduction for students, usually in Year 10, to the world of work. In the 1960s and 1970s, it was developed to encourage students who were thinking of leaving school by the end of Year 10 to investigate a suitable trade or profession through an apprenticeship or perhaps after completing a diploma at a business college.

Eventually, with the introduction of compulsory years of schooling in most states and territories, many schools continued with the practice but the placements were then designed to assist students with Year 11 and 12 subject selections by investigating post-school work options. Many students found their placements valuable for future career possibilities and many realised that favourable work placements could lead to ongoing part-time paid work.

Sometimes, however, a ‘dose of reality’ put students off possible career pathways. Anecdotal evidence showed veterinary nursing was one such career that was often re-thought. Students with the idealistic notion that this career was solely for caring for and saving warm and fuzzy pets were quickly brought back to stark reality with mundane jobs, such as cleaning of cages, and then being confronted with traumatic animal injuries and deaths, emotionally distraught customers and/or customer complaints. Of course veterinary clinics are not the only places where students could have negative experiences - experiencing working life can be enough to convince some students that they should go to university and stay there as long as possible.

Some of the negative issues facing young workers were outlined in a document produced by Worksafe Victoria and presented at the recent Young Workers Conference, as reported in the Sydney Morning Herald.  The Workplace Victoria survey of young people aged 15-24 revealed that 32% of  workplace bullying and harassment  came from customers or clients, and  36.4 per cent of those surveyed advised that they experienced bullying from their boss or a co-worker.  While not dealing specifically with work experience but the broader health and safety issues facing all young workers, it serves to alert schools to the hazards their students may face when undertaking work experience or workplace learning and the need to consider risk management strategies to address this hazard.

WWCCs: a form of protection for students

Working with children checks (WWCC) are one measure to protect students in the workplace. However, while WWCC requirements vary between the states and territories, generally the Checks are only required where an organisation and employees within it engage in 'child-related work' involving, or likely to involve, contact with a child.  It is unlikely that WWCCs apply to the employers and other workers in a work experience context, unless the work experience is in, for example, a child care centre.

Even though school students are attending school sanctioned and organised work or VET placements, the employers of the students at these placements are generally NOT deemed to be carrying out child-related work (unless their business is child related) purely because they have children in their ‘employ’ and hence are not required to have a WWCC.

Without WWCCs at work experience programs, children could be at a significant risk of harm. Just last week it was revealed by the Herald Sun that a convicted paedophile was given one-on-one contact with three students as part of their work experience at a local radio station. Neither his employer nor the students' schools were aware that he was a registered sex offender. Fortunately, he did not commit further crimes towards the students, however, it does clearly illustrate the presence of a hazard which schools must seek to address. While it is the role of an employer to take appropriate steps to screen employees, especially those who might be working with work experience students, the school cannot delegate its duty of care to students. Should students be harmed in any way during a work experience placement both the employer (as a matter of occupational health and safety as well as negligence) and the school could be held liable.  This will especially be the case where the placements are arranged and supervised by the school. Courts may well regard work experience arrangements as akin to a school organised excursion or other off-campus activity.

Clearly young people who are not on work experience are employed in a myriad of workplaces, and their employers, unless their businesses are deemed to be performing child-related work, are not required to be screened or to have a valid WWCC yet, it can be argued, they are definitely working with children, albeit in the capacity of their employer rather than the service they provide to children. However, this is not how 'child-related work' is currently being interpreted. Therefore, for any school-based placements, the onus on checking the employer falls directly back onto the schools. Schools must consider how they screen possible employers and what undertakings they may ask of an employer relating to how they have screened their own employees who would be working with students.

The Victorian example: Ministerial Order

Victoria has introduced a Ministerial Order which provides a legal framework for the various parties involved in work experience placements to understand the obligations that apply.  Ministerial Order 382 - Work experience arrangements (MO 382) (available here from the Department of Education and Training) was made by the Minister of Education under the Education and Training Reform Act 2006 (Vic) and has been in effect since 2010. MO 382 addresses various matters relating to student work experience including insurance, hours of work and payment. It also imposes various obligations on school principals to ensure that their student is entering into a safe working environment and essentially acts as a risk management checklist for schools to complete before a work experience arrangement is confirmed. For example, the principal must:

• ensure that the employer completes an Employer Acknowledgement, the student completes a Student Agreement and the parent completes a Parent Agreement consenting to the arrangement;
• be satisfied that the health, education and moral and material welfare of the student will not suffer under the proposed arrangement;
• be satisfied that the student will not be subjected to any form of exploitation, harassment or unlawful discrimination during the course of the proposed arrangement; and
• ensure that the employer (by completing the Employer Acknowledgement), understands and complies with all OHS legislation (including the OHS Act and OHS Regulations) and relevant standards, requirements and Compliance Codes.

WWCCs are also addressed by MO 382

Victorian schools are required to appoint a Work Experience Coordinator to ensure that a work experience arrangement operates properly and safely. The DET website includes guidance materials for secondary schools on conducting work experience programmes.

That said, as the incident reported by the Herald Sun demonstrates, even with the comprehensive framework implemented by MO 382 in place which schools must comply with, children are not completely safe in any workplace.

Work experience regulation in other states and territories

A search into other state and territory laws reveals that only the Australian Capital Territory has brought into force similar regulations – introducing the Children and Young People (Work Experience) Standards 2009 (No 1) in 2009. Other jurisdictions have less formal guidelines to assist non-government schools manage work experience placements.

Within the WorkSafe Victoria report are key recommendations that include workplace bullying and health and safety training to be made mandatory in high schools for students in year 10 and above, and for sexual harassment to be 'specifically defined and recognised' as a workplace safety issue by WorkSafe Victoria.

Thankfully, schools in most states and territories, have already recognised this need and they offer specific training programs for their Year 10 students in WHS and even in how to identify and deal with sexual harassment issues in the workplace before they attend VET or Work Experience placements. Schools generally also have very clear policies and procedures regarding student and employer expectations and accountabilities and they usually arrange at least one or sometimes two face to face meetings with the students and employers during their placements.

Occupational Health and Safety Net

The good news is that all host employers will be covered by the requirements of OHS legislation in their dealings with the work experience students in ensuring that all reasonably practicable measures are taken to ensure their health and safety. This probably provides the greatest level of protection as it covers all physical hazards as well as risks to health arising from bullying and stress.

The bad news is that once again, this does not waive a school's non-delegable duty of care towards its students on work experience.  Not all employers are as assiduous with complying with health and safety legislation as they should be, and as shown in numerous studies, young inexperienced workers are the most vulnerable when it comes to the risk of injury in the workplace.

Conclusion

The school must actively ascertain on an ongoing basis that the employer is indeed fulfilling its health and safety duty of care.  When students are sent to complete placements with employers on work experience or VET programs, the school must conduct due diligence for each employer and each company to ensure that the students are not being placed into an environment where they run the very real risk of being exposed to hazards to their physical and mental health. This should be done in advance of the placement and monitored during the placement.