The COVID-19 pandemic is having a profound impact on the Education sector, with many of our clients overwhelmed by the pace of change and the immediate issues that have arisen. Education providers are having to assess the impact of COVID-19 on their employees, students, parent community, operations and governance as well as respond and adapt quickly in a fast-moving environment.

To support your organisation through these uncertain times, we have created a checklist to help you focus on the legal issues to consider during this unprecedented crisis. Our Education experts are at the forefront of the COVID-19 response, and are well placed to help you work through the following matters by providing pragmatic advice, sensible guidance and insightful perspectives:

Online learning protocols

Education providers should ensure detailed protocols are in place to support and guide safe home-based learning and reduce the various cyber risks that are emerging in this area.

We can assist in developing protocols, establishing best practice standards for the delivery of curriculum online for students, parents and staff. See our latest article on this topic here.

New JobKeeper scheme

Understand the extent to which your organisation is an eligible employer under the JobKeeper scheme set out in the newly passed amendments to the Fair Work Act 2009 (Cth).

Depending upon eligibility, we can assist schools in implementing stand down directions; reducing staff hours; altering duties and implementing the requirements of the JobKeeper scheme.

Employment law issues

Do you need a strategy to respond to COVID-19?

We can support educational providers with standard common law responses to reductions in enrolments and the complications that arise from stay at home orders and social distancing restrictions, such as stand downs and variations to employment contracts.

Enrolment documents

Underlying enrolment documentation forms the basis of the commercial contract between parents and students in the delivery of education. Consider reviewing it to ensure it is sound and covers off the various circumstances arising as a consequence of COVID-19.

We are assisting schools and other education providers to address the risks associated with home-based online learning, including issues associated with fee recovery. Our article on the importance of enrolment documents in schools can be accessed here.

Delivery of online training

Boundaries can be blurred when traditional school activities move into an online environment and staff and students can be confused about the application of existing policies and codes of conduct online. 

We can deliver training to staff on acceptable behaviours while working from home and engaging with students online across your preferred online platform.

Pay freezes

Educational providers locked into costly and inflexible enterprise agreements may be able to vary instruments in the Fair Work Commission to freeze wage increases in some circumstances. 

We can advise on recent case law that may allow employers in the education sector experiencing extreme financial distress to freeze pay increases due under enterprise agreements. See our article on this topic here.

Insurance

What are the risk exposures from operating in a pandemic and can they impact your cover?

Home-based online learning, using platforms such as Zoom, keeping schools open during the pandemic, all of these can raise risks that may not have been contemplated at the time of obtaining your cover. Are there risks on cover? What kind of risk management/mitigation strategies will insurers be looking for?

Complaints and reportable conduct

How can you manage these in the absence of face-to-face contact?

The new NSW legislation imposes stricter timeframes on reporting conduct (see our article on this topic here). We can advise you on how to manage complaints and conduct investigations.

Property

Education providers may, to the extent that they are a landlord or tenant under 
a commercial lease, be subject to the National Mandatory Code of Conduct for SME Commercial Leasing released on 7 April 2020 (Code). As a tenant (where applicable), the Code will provide a framework for CSS to engage with landlord entities to negotiate amendments to existing lease agreements to aid cashflow management for tenant entities which are affected by COVID-19 and who are eligible for the Commonwealth Government’s JobKeeper scheme. The Code may present challenges for landlords balancing their need to alleviate pressure on rental cash flows, with supporting tenants through these difficult times.

Our property team is providing significant advice in relation to these issues and the evolving challenges arising from them for both landowners and tenants.

Proposed development

Schools that intend to lodge applications for projects should have a strategy in place for the progress of applications. In NSW for example, the Planning Acceleration Program indicates an intention to fast track state significant developments, rezoning and development applications.

We can assist you in developing a strategy to obtain development approval and the appropriate pathways to achieve that.

Existing development applications

Schools that have development applications that are being assessed and are being held up, should have a strategy to promptly resolve the matter so that it can proceed to construction.

It may be that an appeal needs to be commenced to preserve rights and to act as a “backstop” against the likely delays and uncertainty moving forward.

We can assist you with liaising with approval authorities and in developing a strategy to obtain development approval. This includes commencing appeals in the Land and Environment Court to preserve rights and to keep approval authorities accountable.

Existing consents

For schools with existing development consents that have not yet been activated, consideration should be given as to when they need to be activated.

We can assist you with understanding how conditions of consent operate, what need to occur to activate an approval, whether extensions to them can be applied for.

Construction work days

Schools with ongoing construction projects should consider how they might 
take advantage of the flexible construction operating practices now permitted. These apply differently between States. For example, in NSW, see Order - the Environmental Planning and Assessment (COVID-19 Development – ConstructionWork Days) Order 2020.

We can help you understand how the new rules apply and reduce the risk of future compliance action being taken.

Compliance with development consent conditions

Schools with ongoing construction projects should understand how any new measures affect the conditions of existing approvals. For example, in relation to noise requirements and restrictions on certain activities (rock breaking, rock hammering, sheet piling, etc).

We can assist you with understanding how the new measures apply to specific approvals and reduce the risk of future compliance action being taken.

Interface issues

Other approvals (e.g from roads authorities) in the course of a project may also be needed. To avoid delays, schools should check these to see where potential blockages in work may arise.

We can assist you to review where these may arise and assist in unlocking blockages with concurrence authorities, or other authorities that are responsible for interface issues that can arise for school projects.

Construction site practices

Schools with ongoing construction projects should consider whether there are appropriate and necessary practices in place on construction sites to minimise the risk from COVID-19. For example, see SafeWork Australia’s release.

We can review the procedures and practices you have in place as well as advise where they could be strengthened.

Corporate governance

It is particularly important that school boards and councils operate effectively and efficiently for the duration of the COVID-19 pandemic. The constitution or other documents that governs the running of the school are critical in this regard.

We can review the governing documents and advise whether they facilitate online meetings and the passing of resolutions by electronic means and if not, how the governing documents should be amended to allow for this. The composition of the board or school council is also critical and we can advise on board election or appointment processes.

Directors duties

It is very important that directors and school council members are clear as to their legal duties particularly with regard to the solvency of the school. 

We can advise on the duties of the directors and how they can be conscientiously discharged during this crisis. Of particular relevance is the director’s duty to prevent insolvent trading during this period.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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