So who is your ‘employee’ under the Reportable Conduct Scheme now and is your organisation compliant?

On 1 July 2024 the definition of ‘employee’ for the purposes of the Reportable Conduct Scheme under the Child Wellbeing and Safety Act 2005 was expanded to expressly capture labour hire workers and volunteers, secondees, individual business owners and directors or office holders of companies. Covered organisations must ensure that allegations of child abuse or misconduct are appropriately reported and investigated not just for employees or workers they engage directly, but for this expanded category of indirectly engaged workers.
What is the Reportable Conduct Scheme?
The Reportable Conduct Scheme covers a range of organisations identified in the Act including schools, religious bodies and Victorian government departments as well as organisations that provide disability or children’s services.
Under the Scheme, the head of these entities must ensure there are systems in place to prevent reportable conduct, report all allegations to the Commission for Children and Young People and investigate and respond to allegations of child abuse and misconduct made against ‘employees’.
Who is now captured by the Scheme?
An organisation’s responsibilities under the Reportable Conduct Scheme towards ‘employees’ previously included adults employed directly by the organisation and those engaged by the organisation to provide services, including volunteer services.
On 1 July 2024, the definition of ‘employee’ was expanded to include:
- Labour hire workers and volunteer workers. Those workers or volunteers engaged by an agency, company or other provider and provided to an organisation to perform work in and as part of the organisation’s business. For the Reportable Conduct Scheme to apply the work must be performed under the direction, supervision or control of the organisation.
- Secondees. Secondees are employees of a provider who are provided to the organisation to work in and as part of the business for a temporary secondment period.
- Directors or office holders. Where an organisation engages a company to work for them and the director or an office holder of that company performs the work for the organisation then that person will be considered an employee for the purposes of the Reportable Conduct Scheme.
- Individual business owners. Individual business owners themselves will be considered employees for the purpose of the Reportable Conduct Scheme.
Except for individual business owners, the Reportable Conduct Scheme captures these people as ‘employees’ whether or not their work relates to children.
What if the labour hire agency, company or provider of the worker or volunteer is also subject to the Reportable Conduct Scheme?
If both the provider and the host organisation have obligations under the Reportable Conduct Scheme, additional consideration should be given as to how both entities propose to address their individual (but concurrent) obligations under the Scheme including each head of entities’ obligations to investigate allegations of child abuse and misconduct.
What does this mean for organisations?
The obligations for heads of entities and the steps required for reporting and investigating reportable allegations under the Scheme remain the same but importantly, since 1 July 2024, they capture a wider group of workers engaged by organisations. To comply, organisations should ensure they have reviewed their processes, contracts and policies confirming they are compliant with these changes including application to all workers captured by the expanded definition.
More specifically, we recommend that organisations:
- Consider how each individual worker and volunteer is engaged. Review contracts and consider what work they do, and how that work, is performed (i.e. under whose direction, supervision or control) to determine whether they fall under the new definition of ‘employee’.
- Review and amend, as necessary, all policies and procedures related to the Reportable Conduct Scheme to make it clear it covered these additional workers and notify relevant parties of the changes.
- Consider how you will conduct investigations under the Reportable Conduct Scheme where a worker is employed by another organisation and communicate, if necessary, with these providers about any changes.
Ensure any training and information you currently provide to workers about their obligations to ensure child safety and wellbeing is applied to the additional ‘employees’ so that they understand their obligations and the processes that will apply if they are subject to a reportable allegation.
How we can help
To assist with ensuring your organisation’s compliance with these changes, Maddocks is offering a fixed fee policy and procedure review. We can also provide bespoke advice to your organisation to assist it to understand, manage and comply with these recent changes and obligations under the Act. For further details on this offering, please see our flyer.
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