In brief:

 From 1 July 2024, amendments to the Child Wellbeing and Safety Act 2005 (Vic) (Act) will come into effect with respect to Victoria's Reportable Conduct Scheme (Scheme) by expanding the definition of "employee" to capture workers who are indirectly engaged by an entity via third parties, such as labour hire workers, secondees, volunteer workers, sole traders and/or directors of companies. The amendments under the Act are intended to ensure that allegations of child-related harm and misconduct in entities subject to the Scheme are reported and investigated, regardless of whether there is a formal employment relationship with the entity.

New Types of Employees

 The new type of employee that is set to be covered under the Scheme from 1 July 2024 includes:

  1. Labour hire workers or volunteers - A labour hire worker is someone who is provided by a labour hire agency, company or other provider to perform work. This means there is an arrangement between the individual and the provider, such as a labour hire agreement. This also includes volunteers who are supplied by a provider to perform work on a voluntary basis. Examples include relief teachers in schools and higher education students on placements at schools.

  2. Secondees - Secondees are individuals who have been provided to the entity (to which the Scheme applies) by a person to perform work in and as part of the business or undertaking of the entity on a temporary basis for a secondment period and is engaged as an employee of the person.

  3. Sole Traders or Directors -This captures individuals who are engaged by the entity through another body of which they are a director or other office holder. For example, a sole director of a company that has entered into a contract for services with the entity, provided that the director performs work for the entity or a director of another company where the director performs work for the entity.

 However, these employee arrangements are included on the basis that those individuals would generally be under the direction, control or supervision of the entity and are performing work in and as part of the organisation. It is not intended that subcontractors (or individuals who are employed or otherwise engaged by a subcontractor) will be captured by the new definition. This is because such individuals would not ordinarily perform their work under the entity's control or supervision.
 
Further, individuals will be employees whether or not they are employed to perform work relating to children or engaged to provide services to children.

Key Considerations

  1. Is the person:

    1. a worker or volunteer supplied to your organisation by a provider? (ie. a labour hire agency)

    2. a secondee who is supplied by a person or another organisation to your organisation to work for a temporary secondment period? The secondee must be employed by that person or other organisation.

(If yes to the above, then consider)

  1. Does the person perform work in or as part of the organisation?

    1. Consider how integrated and close to the organisation the work is that the worker or volunteer is undertaking.

    2. If the work is integrated and close to the organisation, it is likely to mean the work can be considered as being 'in and as part of the organisation'. If the work is more remote and there is greater separation from the organisation, then it is more likely the work can’t be considered as being performed 'in and as part of the organisation'.

(If yes to the above, then consider)

  1. Is the person performing work under the direction, supervision, or control of the organisation? Some indicators to be considered include, but are not limited to whether the organisation:

    1. provides specific instructions on how the person is to perform their tasks;

    2. sets the person’s start and finish times;

    3. has the ability to delegate specific tasks to the person;

    4. monitors the performance of the person;

    5. provides the person with training or skill development; and/or

    6. monitors the individual’s risk to children.

To prepare for 1 July 2024, it is important for your organisation to consider the circumstances, contracts and other agreements for each individual worker or volunteer to know if they are covered by the Scheme as individual arrangements will differ.

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 2024.

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