Have Your Say - Top Risks for Schools in 2024
Subscribe
Article

Key Changes to Legislation Affecting WA Schools

24/03/22
Resources
WA

Western Australia is facing a period of significant change over the next few months. In addition to opening its borders, the occupational health and safety system will finally join the harmonised work health and safety system after 10 years of debate, there will be further changes to the child protection landscape with legislation before the Western Australian Parliament to introduce a Reportable Conduct Scheme, and there are imminent changes to the employment laws affecting schools which are under the Western Australian industrial relations system rather than the federal Fair Work Act.

 

Occupational Safety and Health

The long-awaited changes to occupational safety and health in Western Australia will take effect from 31 March 2022. The Occupational Safety and Health Act 1984 (WA) and Regulations will be replaced by the Work Health and Safety Act 2020 (WA) and Regulations, which will bring WA into line with the national harmonised system established in South Australia, Queensland, New South Wales, Tasmania, the Australian Capital Territory and the Northern Territory. Victoria is now the only outlier.

 

Introduction of PCBUs

Under the new regime, the gist of an employer’s duty to keep workers safe has not changed. However, this might not seem immediately obvious given the different titles, definitions and the level of detail required to discharge those duties. Perhaps the most obvious change, but probably the one with the least impact for schools, is that an employer is now called the Person Conducting a Business or Undertaking – PCBU. The term “workers” expands to cover not only all of a school’s employees but also any volunteers, contract staff, trainees, labour hire, and any contractors , sub-contractors and their employees (their “workers” )who are engaged by the school or working on the school’s premises.

 

Joint Duty of Care

The WHS Act acknowledges that protecting contractors and sub- contractors is a joint duty of care between the two (or more) employers, and each is responsible to the extent that each has the capacity to “influence or control”. This is similar to the requirements under the OSH Act but is far more detailed and explicit, as it requires PCBUs with a joint responsibility for workers to “consult, cooperate and coordinate”. This can translate, for example, into a school providing a site induction for tradespeople entering school premises which will alert them to local hazards such as asbestos, but the tradesperson’s employer is responsible for ensuring that they have the appropriate training, safe work practices and equipment. It can also involve contracts that stipulate appropriate licensing, insurance, and undertakings that a PCBU’s workers have the appropriate training before entering school premises.

 

Due Diligence

Perhaps the most glaring difference between the old legislation and the new is the detailed requirements for “due diligence” by a PCBU’s “directors and officers” in ensuring that the PCBU complies with the WHS Act. (See our School Governance article for more detailed information.) Key decision-makers in the school, such as members of a school’s board /council, school Principals and perhaps Deputy Principals and Business Managers, must be able to provide specific evidence that their decisions in relation to health and safety take into account those due diligence requirements. One of these new specific due diligence requirements is that in allocating resources to address health and safety matters, they must assess the likelihood and consequence of the risk of harm arising from an identified hazard before they consider the cost of remediation.

 

Industrial Manslaughter Offence and Workers’ Psychological Health

In addition, the legislation also introduces the new offence of industrial manslaughter, and specifically extends the PCBU’s duty of care for workers’ health to cover their psychological as well as physical health.

 

More Significant Penalties

It should be noted that the penalties for breaching the WHS Act also increase significantly compared to penalties under the OSH Act, and if an officer of the PCBU has a penalty awarded against them, they are prohibited from taking out insurance to cover the fine (officers who are volunteers are exempt from prosecution as officers) or being indemnified by the PCBU.

 

What Do Schools Need to Do?

School board and executive team members should read the very detailed resources including an explanation of the changes and support for implementation available on the WA Government Department of Mines, Industry Regulation and Safety (DMIRS) website (https://www.dmirs.wa.gov.au/safety-regulation/introduction-whs-laws).

If your school already has a fully functioning and effective occupational safety and health system in place, then:

  • review the due diligence requirements for your school board and your executive team to ensure that relevant training, reporting, and records to evidence the implementation of those due diligence measures are in place
  • review policies and procedures for managing contractors, sub-contractors and other workers who come under the school’s joint duty of care to ensure that all reasonably practicable measures are in place to the extent of the school’s capacity to influence and control
  • check your school’s procedures against the detailed information in the Introduction to WHS Laws on the DMIRS website (https://www.dmirs.wa.gov.au/safety-regulation/introduction-whs-laws).

If your school is not confident about its existing OSH system, now is the time to rigorously review all of the school’s OSH policies and procedures using the DMIRS video Are You Ready for WHS? as a starting point, remembering the requirement to consult workers in all matters that affect their health and safety at work.  

 

Employment Law Changes

The Western Australian Parliament has passed amendments to the Industrial Relations Act 1979 (WA), the Long Service Leave Act (1958) and the Minimum Conditions of Employment Act (1993), but most of those changes have not yet come into effect. At this time only the proclamation of Easter Sunday as a public holiday may directly affect schools. With the exception of the changes to the Long Service Leave Act, the other amendments will only be of relevance to schools that still come under the WA industrial relations system, rather than the Fair Work Act 2009 (Cth). Further information on the upcoming changes is available on the Department of Mines, Industry Regulation and Safety website.

 

Child Protection Update: Reportable Conduct Scheme Introduced into WA Parliament

The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that state and territory governments set up schemes that oblige heads of organisations to notify an independent body of misconduct involving children, known as reportable conduct, by their employees, volunteers and contractors (Reportable Conduct Scheme).

Reportable Conduct Schemes aim to prevent harm to children and make children safer through:

  • requiring organisations that have care, supervision or authority over children (including government and non-government schools) to:
    • investigate allegations and convictions of child abuse involving employees
    • take appropriate action in response to findings of child abuse
  • enabling oversight and monitoring of these investigations/responses by an independent government body.

In response to the recommendation, the WA Parliamentary Commissioner for Administrative Investigations, more commonly known as the Ombudsman (Ombudsman), sought comments on a public consultation draft Bill to establish a Reportable Conduct Scheme in Western Australia, and the consultation period closed on 31 January 2021. The Parliamentary Commissioner Amendment (Reportable Conduct) Bill 2021 (WA) was introduced into the Legislative Assembly on 24 November 2021.

In his second reading speech, the Minister indicated that:

  • feedback from the public consultation process undertaken by the Ombudsman showed strong support for the establishment of a Reportable Conduct Scheme
  • the type of conduct, as well as the type of service, will be phased in, with sexual offences, sexual misconduct, physical assault and other prescribed offences covered by the Reportable Conduct Scheme in the first year, and the remaining types of conduct after 12 months of operation. If approved by Parliament, it is proposed that childcare services, child protection and out-of-home care services, education services, health services and justice and detention services will be covered in the first year.

 

What is Reportable Conduct?

The “head” of an organisation (generally the Principal of an individual school, or the CEO or head of a group school) is required to notify the Ombudsman of the following alleged conduct:

  • a sexual offence or sexual misconduct against, with or in the presence of a child
  • physical assault committed against, with or in the presence of a child
  • significant neglect of a child
  • any behaviour that causes significant emotional or psychological harm to a child; and
  • other offences that might be decided by Parliament after the introduction of the Reportable Conduct Scheme.

 

What Responsibilities Would a Principal or “Head” of School Have under the Scheme?

Heads of organisations that are covered by the Scheme will be required to:

  • have systems in place for preventing, notifying and dealing with any allegations or convictions of child abuse involving an employee (this would include a school’s child protection and risk management policies and procedures)
  • notify the Ombudsman about any allegations or convictions of child abuse involving an employee (generally this does not have to be an allegation or conduct limited to the employee’s role at the School)
  • investigate any allegations or convictions of child abuse involving an employee and provide a report to the Ombudsman at the end of the investigation on any findings made and actions taken; and
  • report to other bodies, such as WA Police, the Department of Communities or professional bodies as required.

 

What Is the Role of the Ombudsman?

The Ombudsman will work with organisations to build on existing procedures and reporting requirements. The Ombudsman will:

  • assist organisations to recognise, notify and investigate reportable conduct by their employees
  • provide oversight of the organisation’s investigation of reportable conduct by an employee and the action taken if a finding of reportable conduct is made
  • if it is in the public interest to do so, undertake their own investigation and make recommendations to the organisation
  • monitor the organisations’ systems for preventing, notifying and dealing with reportable conduct; and
  • report to Parliament on the Scheme.

 

What are the Possible Consequences of a Reportable Conduct Finding?

Making a finding of reportable conduct can have implications on an employee’s ability to work with children, depending on the seriousness of and the type of conduct. Some findings can trigger an assessment or reassessment of a person’s Working with Children Check.

The WA Ombudsman has released a fact sheet on the proposed Reportable Conduct Scheme for Western Australia.

 

What Do Schools Need to Do?

Schools should start preparing for the introduction of a Reportable Conduct Scheme by:

  • ensuring that their Child Protection Policies and Procedures are up to date and include systems for reporting, internally to the “head” of the school, and responding to child abuse
  • thinking about how the school would manage a Reportable Conduct investigation, which can be time consuming and costly, depending on the nature and extent of the allegations against the employee and ask:
    • does the school have internal resources to be able to undertake an investigation, or would this be outsourced? Could existing procedures to handle allegations of staff misconduct be utilised or modified?
    • although some aspects of the investigation may be handled in-house using existing procedures, think about whether the school may need to outsource some aspects, for example:
      • how will the school conduct interviews and record them (transcripts are generally required)?
      • who will write the investigation report?
      • what will the school do if there was a conflict of interest? Sometimes there is no option other than to outsource an investigation if the management at the school has a conflict of interest, real or perceived
    • thinking about additional training for staff to be able to recognise and notify the Principal of reportable conduct allegations/convictions against employees
    • familiarising themselves with established Reportable Conduct Schemes in other jurisdictions. The NSW Office of the Children’s Guardian has valuable and practical factsheets and training about all the steps involved from notifying allegations/convictions to making findings of Reportable Conduct.

 

Authors

Karen Zeev

Karen is a Legal Content Consultant, Child Safeguarding at CompliSpace. Karen has worked at the NSW Ombudsman and the Office of the Children’s Guardian as a Senior Investigator in the Reportable Conduct Directorate, and at the Royal Commission into Institutional Responses to Child Sexual Abuse as a Senior Legal and Policy Officer where she was a key contributor to the “Redress and Civil Litigation” and “Criminal Justice” reports. Karen has a background as a commercial litigation lawyer and holds a bachelor’s degree in Arts/Law (Hons).

 

Svetlana Pozydajew

Svetlana Pozydajew is the Principal Consultant, Workplace Relations at CompliSpace. Svetlana has a background in management of national HR and WHS functions across the private and public sectors, and has an LLB, MBA and MA (Journalism).

Share this

Resources you may like

Article
Sextortion: A Growing Concern for Schools

Trigger warning: This article references sexual assault, child abuse, and suicide.

Read More
Article
Changes to the Australian Consumer Law – What Schools Need to Know

Many schools rely on standard form contracts to avoid the time and cost of drafting and negotiating...

Read More
Article
The SG Wrap: February 29, 2024

The information in the SG Wrap is aggregated from other news sources to provide you with news that...

Read More

Want School Governance delivered to your inbox weekly?

Sign up today!
Subscribe