COVID-19 and the Law: A Summary of Key Legal Changes that Affect Schools

Published
18 June 2020

School Law Monitor™ is a quarterly executive briefing report that CompliSpace provides to schools that subscribe to its governance, risk, compliance and policy management solution, CompliSpace One. School Law Monitor™ summarises key recent and upcoming compliance developments that affect a school’s operations. The report is designed to be incorporated into a school's board and executive reports and includes links to key reference material that will assist in the understanding of a school’s obligations and the actions required to meet these obligations.

This quarter, CompliSpace has provided a summary of the COVID-19 section of School Law Monitor™ to the School Governance audience in order to support all independent school leaders during this challenging time. If you would like to learn more about how CompliSpace helps non-government schools with governance, risk, compliance and policy management. Click here

 

COVID-19 and the Law: A Summary of Key Legal Changes that Affect Schools

Emergency Response Powers

Since March 2020, every state and territory in Australia has passed some form of “emergency response legislation” to give them the necessary powers to deal with the COVID-19 pandemic.

 

What does this mean for schools?

These emergency response powers have been used to close schools and exempt students from the requirement to attend in person. The way governments use these powers changes quickly. To stay up to date, schools should regularly monitor the COVID-19 updates on the relevant department of health and/or department of education websites:

 

Extending Working with Children/Vulnerable People Checks – ACT and NSW

The ACT and NSW governments have issued new laws with regard to working with children/vulnerable people checks.

The ACT added new sections 60B and 60C to the Working with Vulnerable People (Background Checking) Act 2011 (ACT). The new section 60B says that if a person’s Working with Vulnerable People (WWVP) registration is going to expire during the COVID-19 emergency period or in the six months after that period, then the registration is automatically extended until six months after the emergency period ends. The new section 60C gives the commissioner power to renew expired WWVP registration during the COVID-19 emergency period.

In NSW, the new section 54 of the Child Protection (Working with Children Act) 2012 (NSW) gives the Children’s Guardian power to extend a WWCC.

 

What does this mean for schools in the ACT and NSW?

According to Access Canberra, if your registration expires on or after 16 March 2020 your registration has been extended. You will receive a new renewal notice after the COVID-19 public health emergency has formally ended, which might be some months away.

According to the Office of the Children’s Guardian, the Children’s Guardian has used this power to extend all WWCC clearances that were due to expire from 26 March 2020 to 26 September 2020 for a further six months.

 

What about NT, Qld, SA, Vic, Tas and WA?

The working with children/vulnerable people systems in these jurisdictions continue to operate the same as they did prior to the COVID-19 pandemic. Queensland was going to introduce major changes to its Blue Card system, but these have now been postponed until May 2021 (or an earlier date if the Queensland Government issues a proclamation).

 

Workers’ Entitlement to Unpaid Pandemic Leave and Leave at Half Pay

On 8 April 2020, the Fair Work Commission inserted a temporary new schedule into several awards including the:

  • Educational Services (Post-Secondary Education) Award [MA000075]
  • Educational Services (Schools) General Staff Award [MA000076]
  • Educational Services (Teachers) Award [MA000077].

The schedule provides employees with:

  • two weeks of unpaid pandemic leave
  • the ability to take twice as much annual leave at half their normal pay if their employer agrees.

The schedule in each award applies from an employee’s first full pay period on or after 8 April 2020 until 30 June 2020.

 

What does this mean for schools?

Schools who are negotiating with staff over leave entitlements should ensure that they are taking into account the new schedule.

 

Long Service Leave in NSW: Increased Flexibility and Guaranteed Accrual of Leave

Increased Flexibility of Long Service Leave Arrangements

During March and May 2020, the NSW Government added a new section 15A and 15B to the Long Service Leave Act 1955 (NSW). The new sections grant employers and employees increased flexibility regarding the taking of long service leave.

The new section 15A says that, during the COVID-19 emergency period, an employer may:

  • give a worker a period of long service leave that is less than one month if the worker agrees to that lesser period of leave
  • give a worker less than one month's notice of their upcoming leave if the worker agrees to that lesser period of notice.

The new section 15B allows an employer and worker to agree to long service leave being taken over multiple periods of not less than one day during the COVID-19 emergency period. For example, the employee could agree to take two days of long service leave each week for the next month.

 

What does this mean for schools in NSW?

Schools in New South Wales who are considering putting some staff on long service leave during the COVID-19 emergency period should check to see if they can take advantage of the new flexible arrangements.

 

Guaranteed Accrual of Long Service and Annual Leave Even if Stood Down

The NSW Government used the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (NSW) to add a new section 15C to the Long Service Leave Act 1955 (NSW) on 14 May 2020.

The new section 15C says that if a worker is stood down without pay as a direct or indirect result of the COVID-19 pandemic:

  • the service of the worker with the employer is, despite that break, taken to be continuous service, and
  • the worker continues to accrue long service leave while stood down.

Similarly, a new section 5A was added to the Annual Holidays Act 1944 (NSW), stating that workers continue to accrue annual holidays if stood down as a result of the COVID-19 pandemic.

 

What does this mean for schools in NSW?

Schools in New South Wales who have stood down employees as result of the COVID-19 pandemic should ensure that leave still accrues for these employees.

 

Presumptive Right to Workers Compensation in NSW (and Possibly SA)

NSW

The NSW Government used the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (NSW) to add a new section 19B to the Workers Compensation Act 1987 (NSW) . The new section establishes presumptive rights to compensation under the Workers Compensation Act 1987 (NSW) for workers in certain industries (including schools) who become infected with COVID 19.

 

What does this mean for schools in NSW?

Schools in New South Wales should note that they may be liable for any of their staff who contract COVID-19.

 

SA

On 8 April 2020, the Return to Work (COVID-19) Amendment Bill 2020 (SA) was introduced into the South Australian Parliament. This is a Private Member’s Bill that proposes to establish presumptive rights to compensation for workers in certain industries (including schools) who become infected with COVID 19.

 

What does this mean for schools in SA?

It is hard to know if this Bill will become law: on the one hand, Private Member’s Bills rarely become law, but on the other hand this kind of Bill has already become law in NSW. At this stage, there is not much that schools can do except to wait and see.

 

Conclusion

This is a summary of the key COVID-19 legal changes affecting schools as at June 2020. Inevitably, more changes will be made in the coming weeks and months, so it’s important to stay up to date via the links we’ve provided above and resources such as School Law Monitor.

Mark Bryan

Mark is a Legal Research Consultant at CompliSpace. Mark has worked as a Legal Policy Officer for the Commonwealth Attorney-General’s Department and the NSW Department of Justice. He also spent three years as lead editor for the private sessions narratives team at the Royal Commission into Institutional Responses to Child Sexual Abuse. Mark holds a bachelor’s degree in Arts/Law from the Australian National University with First Class Honours in Law, a Graduate Diploma in Writing from UTS and a Graduate Certificate in Film Directing from the Australian Film Television and Radio School.