Victoria's expanded reportable conduct scheme to cover more workers

From 1 July 2024, a broader range of workers will be covered under the Reportable Conduct Scheme (Scheme) in Victoria, including workers indirectly engaged by an organisation, such as labour hire workers, secondees, directors of companies, individual business owners and students undertaking placements.

Previously, the head of entity of an organisation covered by the Scheme was only required to report and investigate allegations of child abuse (known as “reportable allegations” under the Child Wellbeing and Safety Act 2005 (Vic)) by workers with a more formal or direct relationship with the organisation, including employees, contractors and volunteers (including volunteer board members).

In light of these new changes, organisations should carefully consider whether they need to report and investigate reportable allegations against a broader range of workers, and whether their child safety policy, procedure and code of conduct should be updated and communicated to workers.

Who will be affected by the changes?

Currently, organisations are required to make reports to the Commission for Children and Young People (CCYP) and investigate reportable allegations in relation to workers, including employees, contractors and volunteers. The new changes expand the workers covered under the Scheme and will now include:

• labour hire workers and volunteers
• secondees
• directors of companies
• individual business owners.

A labour hire worker and secondee will be covered under the Scheme when:

• the work performed is in or as part of an organisation covered by the Scheme; and
• the work performed is under the direction, supervision or control of the organisation.

A number of factors will be considered including:

• whether the work performed is part of the operations of the organisation; and
• whether the person has opportunity to interact or contact children.

This requires assessment of each worker based on the individual circumstances of their engagement. For example, the following workers will now likely be covered by the Scheme:

• A casual relief teacher engaged by a registered school via a labour hire arrangement.
• A disability worker seconded by their employer to work at a disability residential home with children to fill in for a staff member who is on leave.

In these cases, the head of the organisation in which the worker is placed will now have an obligation to report and investigate reportable allegations against the worker.

Directors of companies

Where an organisation engages a company to perform work and the director of the company performs the work, the director will be considered a worker of the organisation for the purposes of the Scheme. It is irrelevant whether the company engaged is covered by the Scheme.

For example, where an IT company is engaged by a school to upgrade their computer system and the director of the IT company is the person who completes the upgrades, the head of entity at the school will likely be required to make a report if they receive a reportable allegation about the director.

An individual business owner (also known as a sole trader) will now be covered under the Scheme where:

• The business is subject to the Scheme.
• The business engages employees, contractors or volunteers.

This amendment clarifies that individual business owners will be subject to the Scheme in the same way as the workers they engage.

For example, where a business owner of an overnight camp for children engages staff to run the camp, the business owner will now be covered under the Scheme.

Students undertaking placements, such as a student teacher undertaking a placement at a school, may be covered by the expanded definition depending on the arrangements of their placement. The key considerations are:

• Whether the student is considered a worker or volunteer worker of their educational institution.
• Whether the student has been “supplied” to the placement organisation by the educational institution via an agreement.

Reporting historical allegations

The expanded definition also has implications for the obligations of an organisation to report historical allegations. If an entity receives a historical allegation about a worker covered under the expanded definition after 1 July 2024, the entity may be required to make a report to the CCYP. Whether a report needs to be made will depend on:

• Whether the alleged conduct occurred before the organisation was covered by the Scheme.
• If the alleged conduct was within the course of the worker’s employment or engagement with the organization.
• Whether the worker is currently employed or engaged by the organisation.

For example, if a principal of a school becomes aware of a reportable allegation against a casual relief teacher who is engaged via a labour hire agreement on 3 July 2024 (i.e. after 1 July 2024) which is alleged to have occurred while the casual relief teacher was working at the school in 2012, the principal may be required to report the allegation to CCYP and investigate the allegation.

For further information about reporting historical allegations, please see the CCYP Information sheet which provides diagrams showing how the considerations will impact the requirement to report.

We recommend that organisations review their policies, procedures, code of conduct, contracts and agreements to ensure that they accurately reflect the expanded coverage of the Scheme, and communicate those changes to relevant workers.

Skye Rose is a Practice Leader in the Corporate Advisory Team and head of the Workplace Relations team at Moores in Melbourne. Tal Shmerling is a Senior Lawyer in the Corporate Advisory Team at Moores in Melbourne. Samantha Guo is a Lawyer in the Corporate Advisory Team at Moores in Melbourne.