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.
Following on from:
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.
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More information:
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:
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.
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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.
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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).
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These changes, introduced under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), commenced on 6 December 2022.
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:
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).
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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.
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These changes commenced on 7 December 2022.
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.
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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.
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This provision, which was introduced in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), will commence on 6 June 2023.
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.
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This change is expected to commence on 1 July 2023.
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 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.