There are two common venue hire scenarios that come to mind with regard to schools: schools that hire external venues for excursions and schools that allow other groups to hire their facilities. The latter was discussed in a School Governance article in 2016.

It is commonplace for schools to hire or lease outside venues in order to provide facilities for specific student learning activities that may not necessarily be conducted on the school campus for a variety of reasons.

A typical and very common example of this is a school that has a swimming component within its curriculum and they need to hire a local pool. For example, in Victoria, all children now have to achieve the Victorian Water Safety Certificate by the end of Grade 6 as part of the state government curriculum. Therefore, Victorian schools that do not have a suitable swimming facility on campus will need to hire or lease one to provide these lessons and hence be compliant with this curriculum requirement.

To ensure that they meet their duty of care, child protection and WHS/OHS/OSH responsibilities for their students and their staff, schools should conduct a structured due diligence process for each and every venue/vendor that they use.

Schools should have a consistent and documented approach, preferably online, to vetting their venue/vendor relationships, especially when hiring external venues. They need to glean enough information from each due diligence process to feel assured that the venue/vendor that they are about to select is able to provide the expected service to the standards as determined by federal and local jurisdictional laws and by the school.

Schools should, therefore, conduct due diligence processes that are proportionate to the vendor's perceived risk. Basically, the greater the risk, the more diligence that should be conducted.

Some venues/vendors may wish to provide their own form of due diligence and this can often be seen on many ‘excursion provider’ websites.  However, schools should not accept this as a fait accompli. It is vital that the venues/vendors can show evidence that they can provide the expected service to the standard as determined by the law and by the school. In addition, if schools are wishing to contract for major services or on-going services, legal advice should be obtained for both the due diligence requirements and the resulting contract.

Jonathan Oliver, Senior Business Consultant at CompliSpace, recently wrote in School Governance about essential contractual terms that should be incorporated to avoid ambiguity when clarifying the roles and responsibilities of both the school and the venue/vendor.

In addition to contractual arrangements, the preceding due diligence process should have four basic steps:

1 Identification: If a school does not currently have a suitable facility or if it is commercially preferable to engage an external resource, a venue/vendor may be sought. A shortlist of potential venues can then be created.

2 Due Diligence Collection: Once a venue (or maybe more than one) has been selected, the school should provide the venue/vendor with a set of key information/documentation requests appropriate to the size, nature and complexity of the requirement for use of their facilities. Examples of due diligence queries could include, but are not exclusive to requesting:

• details of the expertise and experience of the venue and its staff, including references from other schools if necessary;
• Working with Children Check status of key personnel;
• the capacity and capability of the venue/vendor to supply the services;
• whether the venue has the necessary licences;
• the stability and skill set of the venue’s management team;
• a certificate of currency or similar regarding the insurance coverage of the potential venue;
• the quality and ability of the venue’s infrastructure to handle the operational requirements of the outsourcing arrangement;
• whether the venue is able to adapt to the specific needs of the school;
• the security and privacy levels offered by the venue;
• notification of any current or potential conflicts of interest;
• the adequacy of the venue’s risk and compliance infrastructure; and
• the proposed fee structure and payment terms.

In addition, other queries that could be asked at a meeting or telephone interview (if necessary) include:

• how the service will be documented;
• service standards;
• monitoring and ongoing performance levels;
• key contacts and personnel; and
• how breaches will be dealt with.

3 Evaluation: Key evaluation filters would include:

• cost of the service and proposed payment terms;
• previous experience and, where applicable, trade reference responses;
• collective responses to the due diligence requests; and
• service comparisons and the ability to perform the desired outsourced service.

4 Selection: If the school does not think that the proposed service provider is suitable, then the process will recommence utilising information gathered from other service providers.

All of the above queries could be contained on a standard online document that the school could use for venues/vendors as and when required. Also, regularly used venues/vendors would only need to update their details annually or at the request of the school.

In light of increasing child protection legal obligations, schools should also require the vendor to acknowledge that they have read the school’s child protection policies and codes of conduct and will abide by them.

In addition, the federal WHS laws (in all states and territories except WA and Victoria), require schools to “consult, co-operate and co-ordinate” with the venue/vendor to ensure the health and safety of everyone affected by the activities, to the extent of each of their control and influence.  This is similar to the situation in WA and Victoria.

If the event is school sanctioned, there is no argument. Regardless of the venue or the vendor, the school is still ultimately responsible for the duty of care for all students, staff, visitors and volunteers who attend the excursion.

So, if a vendor behaves in a negligent manner, or if the facilities at the venue result in injuries or mishaps, a school may still be liable in two ways. Firstly, because it has a non-delegable duty of care and secondly, because it has failed to ensure the venue/vendor has the appropriate facilities, qualifications and experience to run the activity safely and is familiar with and agrees to abide by the school’s child protection policies and procedures.

If a school has conducted a formal due diligence process on the venue and its facilities, and the qualifications, equipment and experience of the vendor, then it may be able to argue that it has taken all reasonable care and was acting in a way that any reasonable school would act in similar circumstances. Ultimately, schools must be aware of the non-delegable duty of care they owe to students regardless of any venue/vendor or contract arrangements they have undertaken.

Can you afford to hire or lease any outside venue without conducting a valid due diligence process first?

As a note of caution, there are insurance implications involved in hiring outside facilities. Schools should, first and foremost, check that they have adequate insurance cover in place and that the hiring of a venue and the planned activities at the venue do not void their insurance cover. Under usual circumstances, a school’s insurance policies would usually cover those functions and activities which were directly associated with the school but it does not hurt to check.