2023 is shaping up to be another hectic year for schools and their governing bodies. Below are overviews of several key issues in the child safety and workplace relations spheres that will affect non-government schools and their governing bodies in the coming year, so that schools can prepare early and be ready.

Child Safety

Child Safe Organisation Standards

Following on from:

• a recommendation by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) that all states and territories should implement and enforce mandatory child safe organisations standards for child-related organisations; and
• the adoption by all states and territories of the National Principles for Child Safe Organisations (National Principles) as the benchmark for these standards,

states and territories around Australia have been progressively developing and implementing Child Safe Organisation Standards and regulatory schemes to enforce compliance.

In 2023, compliance with the National Principles, or with standards that are based on them, will be enforced in both New South Wales and the Australian Capital Territory. Similar child safe organisation schemes were already in operation (either for all organisations or, as part of registration requirements, for non-government schools) in Western Australia, South Australia, Queensland and Victoria. Tasmania currently has a Bill before its parliament that would implement a similar scheme there, and in the meantime, its registration requirements now require non-government schools to be working towards compliance with the National Principles.

Key dates:

• Enforcement of compliance with the NSW Child Safe Standards commenced in February 2023 for all organisations including schools.
• Enforcement of compliance with the ACT Child Safe Standards will commence for non-government schools, as part of enforcement of the ACT’s new registration requirements, in September 2023.
• Enforcement of compliance with the Tasmanian Child Safe Standards is expected to commence for all schools in January 2024.

More information:

• School Governance, New South Wales Child Safe Standards: What Should Schools in NSW Do?
• School Governance, Update About the Implementation of Child Safe Standards across Australia
• ACT Department of Education, ACT Non-government School Requirements
• Tasmanian Department of Justice, Child and Youth Safe Standards

Reportable Conduct Schemes

Following on from a recommendation by the Royal Commission that all states and territories should implement a Reportable Conduct Scheme modelled on the NSW Scheme, states that did not already have such a scheme have been progressively developing and implementing one.

Reportable Conduct Schemes aim to prevent harm to children by requiring organisations that have care, supervision or authority over children (including schools) to:

• investigate allegations and convictions of conduct that amount to child abuse or other harm by employees (including volunteers and contractors)
• take appropriate action in response to any findings of reportable conduct against an employee
• enabling oversight and monitoring of these investigations/responses by an independent government body.

In addition to NSW, Victoria and the ACT already had a Reportable Conduct Scheme. They are now joined by WA, whose scheme started operation on 1 January 2023. Tasmania currently has a Bill before its parliament that would implement a similar scheme there. Both SA and Queensland are continuing to consider how to implement one.

Key dates:

• The WA Reportable Conduct Scheme commenced in January 2023 for all organisations.
• The Tasmanian Reportable Conduct Scheme is expected to commence for schools in January 2024.

More information:

• School Governance, Reportable Conduct Scheme: Royal Commission Review
• Tasmanian Department of Justice, Reportable Conduct Scheme

Workplace Relations

Paid Family and Domestic Violence Leave

As a result of changes introduced by the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth), employers with 15 or more employees, all full-time, part-time and casual employees may access up to 10 days of paid family and domestic violence leave from 1 February 2023. For employers with fewer than 15 employees, access to paid family and domestic violence leave commences on 1 August 2023. The changes also include additional confidentiality provisions: payslips must not contain reference to an employee taking family and domestic violence leave, or even to refer to “ leave” of any type in recording an employee who accesses family or domestic violence leave. There is a four month grace period to implement changes to payslips.

Key dates:

• From 1 February 2023 10 days paid leave is available for employees employed by larger employers.
• From 1 August 2023 10 days paid leave is available for employees employed by smaller employers (fewer than 15 employees).
• From 1 June 2023 the changes to the payslips will be enforced.

Remuneration Secrecy Provisions

It is now unlawful to include remuneration secrecy provisions in a new employment contract. For existing employment contracts that contain secrecy provisions the provision continues to be valid until that employment contract is amended, for example, with a salary increase or change in conditions. It is unlawful to take action against employees whose contract is entered into after 7 December 2022 or whose contract is amended after 7 December 2022 and who choose to reveal their own remuneration to others or ask others for that information (others may choose not to answer, of course).

Key dates:

These changes, introduced under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), commenced on 6 December 2022.

Increased Focus on Psychosocial Hazards

This is a multi-headed hazard which refers to work-related stress, fatigue, bullying, discrimination, harassment, aggression, traumatic events, work design, workplace injustice, and more. Employers are required to conduct ongoing monitoring and consultation with workers to identify the particular psychosocial hazards in their workplace and implement control measures. The following states have now included a specific requirement for an employer to identify and eliminate or minimise the risk of harm arising from psychosocial hazards:

• NSW
• Victoria
• WA
• Tasmania
• Queensland.

For states and territories that do not have specific regulations or Codes in place to address psychosocial hazards, the source of obligation is the PCBU/employer’s duty to eliminate or minimise the risk of harm under their Work Health and Safety legislation or the Occupational Health and Safety Act 2004 (Vic).

Key dates:

• NSW: Regulations from 1 October 2022 and Code of Practice 2021
• Western Australia: Regulations from 23 December 2022 and Code of Practice 2022
• Tasmania: Regulations and Code of Practice from 4 January 2023
• Queensland: Regulations and Code of Practice from 1 April 2023
• ACT: Strategy for Managing Work-Related Psychosocial Hazards 2021-23
• Victoria: draft regulations did not proceed in 2022; Preventing and managing work-related stress: A guide for employers' WorkSafe Victoria.

Discrimination: New Protected Attributes

Changes to the Fair Work Act 2009 (Cth) have added three new protected characteristics: breastfeeding, intersex status and gender identity. It is unlawful to act to the detriment of an employee or prospective employee on those grounds. An employee may make an “adverse action” claim if they believe, for example, that they were not offered a job, were overlooked for promotion, or were terminated, because they had, or were thought to have had, those characteristics. The discrimination may not be unlawful in very limited circumstances, such as where it is justified by the inherent requirements of the role, or in relation to religious organisations.

Key dates:

These changes commenced on 7 December 2022.

Increased Focus on Preventing Harassment and Discrimination

Changes to the Sex Discrimination Act 1984 (Cth) introduced a positive duty on employers to prevent workplace sexual harassment, sex discrimination, victimisation and conduct that causes a workplace environment that is hostile on the ground of sex. This is in addition to an employer’s existing obligation to respond appropriately to harassment and discrimination after they occur. Employers are expected to have clear policies, training for staff and managers, ongoing monitoring to identify areas where there is a risk of harassment or victimisation occurring, and to promptly, consistently and fairly apply measures (including sanctions) to prevent recurrence.

Key dates:

• The employer’s duty to prevent workplace sexual harassment, sex discrimination and victimisation commenced on 12 December 2022.
• Enforcement of the duty by the Australian Human Rights Commission commences on 12 December 2023.

Flexible Workplace Arrangements

While eligible classes of employees have had the right to request flexible workplace arrangements under the National Employment Standards (NES) and employers have the right to refuse under certain conditions, employees will be entitled to apply to the Fair Work Commission if they believe that their employer unreasonably refused their request. The Fair Work Commission will be able to make orders as part of new dispute resolution powers.

Key date:

This provision, which was introduced in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), will commence on 6 June 2023.

Paid Parental Leave Flexibility

The Commonwealth Government has introduced a Bill into parliament (Paid Parental Leave Amendment (Improvements for Families and Gender Equality) Bill 2022 (Cth)) to amend the Paid Parental Leave Scheme that will combine the current entitlements of 18 weeks’ paid parental leave for the primary carer and the two week’s paid Dad and Partner leave. This will enable the parents to decide between themselves how they will each access the total of 20 weeks.

Key date:

This change is expected to commence on 1 July 2023.

Authors

Deborah de Fina

Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.

Svetlana Pozydajew

Svetlana is a Principal Consultant (NFP) at CompliSpace. She has over 20 years of experience in strategic and operational human resource management, occupational health and safety, and design and implementation of policies and change management programs. She has held national people management responsibility positions in the public and private sectors. Svetlana holds a LLB, Masters in Management (MBA), Master of Arts in Journalism, and a Certificate in Governance for not-for-profits.