Safe and Suitable People

Suitability of employees, contractors and volunteers

Individuals and organisations that provide services, programs, facilities or activities to children and young people, and other vulnerable people must ensure that their employees, contractors and volunteers are suitable and do not pose an unacceptable risk to the children, young people, and vulnerable people that they are supporting.

There are various checks, screenings and other tools that can be used to assist in assessing and monitoring the ongoing suitability of all employees, contractors and volunteers. These checks include the following:

Working with children check

Individuals and organisations that provide services, programs, facilities or activities to children must ensure that certain employees, contractors and volunteers who work with children have conducted a Working with Children check and they have received a Working with Children clearance.

This process assesses and monitors a person’s criminal and disciplinary history, and helps ensure that these employees, contractors and volunteers do not pose an unacceptable risk to the safety and wellbeing of children.

NDIS worker screening check

NDIS providers must ensure that certain employees, contractors and volunteers who work with people with disabilities have conducted a NDIS worker screening check and they have received a NDIS clearance.

Worker and carer exclusion scheme

Certain workers and carers providing out of home care services to children and young people cannot be engaged to provide these services unless they have first been checked against the excluded worker and carer database.

Safety Quality and Care Legal Services can provide advice and support throughout this process to help ensure that only suitable employees, contractors and volunteers are employed or engaged to support and care for children, young people and other vulnerable people.

We can also advise and support individuals and organisations in circumstances where a current employee, contractor or volunteer’s clearance or other assessment is being re-assessed, their clearance is suspended or revoked, or an employee, contractor or volunteer receives a Working with Children exclusion, a NDIS exclusion or other prohibition or exclusion notice.

Reportable conduct scheme

The Reportable Conduct Scheme applies to certain individuals and organisations that exercise care, supervision and authority over children. The purpose of the Reportable Conduct Scheme is to help ensure that reportable allegations are identified, reported, and properly investigated.

Reportable allegations refer to allegations made about any of the following people that are associated with an individual or organisation that must comply with the Reportable Conduct Scheme:

employees, volunteers, contractors
office holders
people who meet the following criteria:
- they are a worker or volunteer for an organisation
- their employer supplies them to an individual or organisation that must comply with the reportable conduct scheme
- they perform work under the direction, supervision or control of the individual or organisation that must comply with the reportable conduct scheme
secondees who are under the direction, supervision or control of the individual or organisation that must comply with the reportable conduct scheme
a director or officeholder of another organisation that is engaged by the individual or organisation that must comply with the reportable conduct scheme
ministers for religion, religious leaders and employees of religious bodies
foster carers approved by the provider of an out of home care service with whom a child is or has been placed in out of home care
family member or other person of significance to a child with whom the child is or has been placed in out of home care

The allegations must relate to the person engaging in any of the following conduct:

sexual offence committed against, with, or in the presence of a child
sexual misconduct committed against, with, or in the presence of a child
physical violence committed against, with, or in the presence of a child
any behaviour that causes significant emotional or psychological harm to a child
significant neglect of a child.

This alleged conduct may be recent or historical. It may have occurred during their employment or engagement or outside of this context.

The Commission for Children and Young People (CCYP) is responsible for administering, overseeing and monitoring compliance with the Reportable Conduct Scheme.

Individuals and organisations that must comply with the Reportable Conduct Scheme have the following legal obligations:

Systems – The head of an entity must have systems in place to report, investigate and respond to reportable allegations, and to prevent reportable conduct.
3 day notification – Within 3 business days of becoming aware of a reportable allegation, the head of the entity must report the reportable allegation and other relevant information to the CCYP.
Investigation – The head of entity must investigate the reportable allegation and provide the CCYP with the details of the person who will be conducting the investigation.
30 day report – Within 30 days, the head of the entity must provide more detailed information to the CCYP. This includes further details about the reportable allegation, any written submissions made by the subject of allegation, and any disciplinary action or other action that has been taken in response to the reportable allegation.
Final report – At the end of the investigation, the head of the entity must provide the CCYP with the findings of the investigation, the reasons for those findings, details of any disciplinary or other action that will be taken in response to those findings (if any), and the reasons for those actions.

Safey Quality & Care Legal Services can provide comprehensive advice and support to individuals and organisations that must comply with the Reportable Conduct Scheme. This advice and support may include any or all of the following:

developing and implementing systems to report, investigate and respond to reportable allegations, and to prevent reportable conduct.
assessing and managing the risks that may arise from any alleged conduct that may amount to reportable conduct.
providing support to the children affected by the alleged conduct.
assessing whether the alleged conduct needs to be managed in accordance with the Reportable Conduct Scheme.
reporting to the CCYP.
communicating with the affected children and their families, the subject of allegation, witnesses and others impacted by the alleged conduct.
communicating with Victoria Police and any other relevant regulatory authorities and stakeholders.
requesting and disclosing relevant information and documentation.
working with investigators to investigate the allegations.
determining what further action (including disciplinary action) that may be required at the end of the investigation.

Employer notifications to other regulators

Individuals and organisations that employ or engage people to work with children and young people, and other vulnerable people may also have legal obligations to report certain information about their employees, contractors and volunteers to other regulators. For example:

Teachers

Individuals and organisations that employ or engage registered teachers and early childhood teachers must notify the Victorian Institute of Teaching of the following circumstances:

They have taken any action against a registered teacher in response to allegations of:
- serious incompetence
- serious misconduct
- being unfit to teach
- having an impairment that seriously detrimentally affected or is likely to seriously detrimentally affect their ability to practise as a teacher.
They become aware that the registered teacher is currently charged with or has been found guilty of certain serious criminal offences.
They become aware that the registered teacher has been given a Working with Children exclusion.

Disability workers

Individuals and organisations that employ or engage disability workers must notify the Victorian Disability Worker Commission if a disability worker:

practised as a disability worker while intoxicated by alcohol or affected by drugs.
engaged in sexual misconduct while practising as a disability worker.
placed the public at risk of harm (or may place the public at risk) because they have an impairment that detrimentally affects, or is likely to detrimentally affect, their capacity to practise as a disability worker.
placed the public at risk of harm (or may place the public at risk) because they practised, or are practising, as a disability worker in a manner that constitutes a significant departure from accepted professional standards.

Safety Quality & Care Legal Services can support individuals and organisations to understand and comply with these reporting obligations.

Regulatory investigations

Regulators may conduct investigations into the current or historical conduct of a current employee, contractor or volunteer to determine if they are safe and suitable to continue supporting and caring for children and young people, and other vulnerable people.

At the end of the investigation, the regulator may take action against the employee, contractor or volunteer. Depending on the regulator and the relevant legislation, this may include any of the following:

refusing the person’s application for professional registration / renewal of professional registration.
suspending or cancelling the person’s professional registration.
imposing conditions or restrictions on the person’s professional registration.

Safety Quality & Care Legal Services can provide advice and support to individuals and organisations throughout this process. This includes determining what, if any action, they should take:

when they initially become aware of the investigation
during the course of the investigation
when they become aware of the findings of that investigation
if the person’s professional registration has been suspended or cancelled.

Criminal investigations

The Victoria Police may also conduct investigations into the current or historical conduct of a current or former employee, contractor or volunteer.

During the investigation, the Victoria Police may approach individuals and organisations that provide services, programs, facilities or activities to children and young people, and other vulnerable people to assist them with the criminal investigation. This may include asking for information and documents, and/or requesting that individuals attend interviews and/or provide witness statements.

If there is a current Court hearing, Victoria Police may also issue individuals and organisations with a witness summons or subpoena to produce documents and/or to give evidence at the hearing.

Safety Quality & Care Legal Services can provide advice and support to individuals and organisations throughout this process.

Misconduct investigations

Individuals and organisations that provide services, programs, facilities or activities to children and young people, and other vulnerable people may become aware of allegations that an employee, contractor or volunteer may have engaged in misconduct.

Misconduct refers to the failure of an employee, contractor or volunteer to comply with the standards of conduct that are expected of them. It may relate to a failure to comply with legal obligations, professional codes of conduct or relevant policies, procedures and guidelines.

Misconduct may include:

abuse or neglect of a child, young person, or other vulnerable person
sexual harassment, sexual assault or grooming
discrimination or racism
bullying
violent and threatening behaviour
dishonest or fraudulent conduct such as theft
improper use or disclosure of personal or sensitive information.

It is imperative that the individual or organisation takes action to manage, investigate and respond to any allegations of misconduct made against an employee, contractor or volunteer.

Safety Quality & Care Legal Services can provide advice and support to individuals and organisations throughout this process including:

considering whether to take immediate action to manage any ongoing risks to the health, safety and wellbeing of children, young people, other vulnerable people or others that may be impacted by the conduct
working with an investigator to investigate the allegations
providing the employee, contractor and volunteer with a fair and transparent process including an opportunity to respond to the allegations
taking disciplinary action or other appropriate action at the end of the investigation process (if appropriate to do so).

Unsatisfactory performance

Individuals and organisations that provide services, programs, facilities or activities to children and young people, and other vulnerable people may be concerned about the performance of an employee, contractor or volunteer.

Unsatisfactory performance refers to situations where an employee, contractor or volunteer fails to perform their role, discharge their responsibilities, or otherwise fails to meet the standards expected of them.

Unsatisfactory performance may adversely impact the ability of an individual or organisation to provide safe and high-quality services, programs, facilities and activities that meet duty of care and other legal obligations.

It can also compromise the health, safety and wellbeing of children, young people and other vulnerable people that benefit from the services, programs, facilities and activities that are being provided.

Safety Quality & Care Legal Services can provide advice and support to individuals and organisations to carefully and fairly manage any concerns about unsatisfactory performance.

Fitness for duty

Individuals and organisations that provide services, programs, facilities or activities to children and young people, and other vulnerable people may be concerned about the capacity of an employee, contractor or volunteer to perform their role.

The ability of an employee, contractor or volunteer to perform their role may be adversely impacted by various factors including the following:

physical injury
mental illness or psychological distress
alcohol or drug dependence
medical condition.

Sometimes one or more of these factors may lead to a person being unable to perform their role. On other occasions, these factors may require an individual or organisation to make reasonable adjustments to support the person to continue to perform their role.

Safety Quality & Care Legal Services can provide advice and support to individuals and organisations to sensitively and fairly manage concerns about an employee, contactor or volunteer’s capacity to perform their role.