LawSense School Employment Law – Regulators, Unions, Staff Mental Health, Casuals, Contractors

Date15 August 2024
Time12.00pm-3.45pm AEST (Syd/Melb/Bris time)
VenueLive Online with recording (recording access expires 15 September 2024)
Price includes gst.
SectorNon-State Schools
CPDAddresses 7.2 of the Australian Professional Standards for Teachers


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12.00    LawSense Welcome

12.05    Chairperson’s Remarks

Belinda Reid, Head of Human Resources, Trinity Grammar School, Sydney

12.10    Regulators and Unions: Navigating Regulator Action Regarding Psychosocial Hazards and New Union Rights

Regulator Action Towards Schools and Dealing with Regulators

  • Outlining the powers of regulators regarding psychosocial hazards
  • Examining the regulators posture towards schools to date – what triggers the regulator to make enquiries and how are anonymous complaints dealt with?
  • Regulatory investigations – what documentation and evidence will the regulator ask for, who will they interview?
  • Responding effectively to regulator enquiries or investigations to optimise the school’s position
  • Understanding avenues for review or appeal of regulator action

Changes to the Rights of Union Delegates and Implications for Schools

  • Examining the recent changes to union delegates rights in the Fair Work Act 2009
  • Understanding the limits of rights and obligations in practice:
    • “reasonable” communication with members, and any persons eligible to be a member, in relation to their industrial interests
    • “reasonable” access to the workplace and workplace facilities for the purpose of representing those interests
    • “reasonable” access to paid time, during normal working hours for the purposes of related training
    • unreasonably failing or refusing to deal with a workplace delegate
    • knowingly or recklessly making a false or misleading misrepresentation to a workplace delegate
    • unreasonably hindering, obstructing or preventing the exercise of rights of a workplace delegate
  • Examining the implications for changes regarding Union Delegates and adverse action
  • Understanding your rights or ability to control circumstances involving the Union given the recent changes
  • Tips and experiences in effectively dealing with Union issues

Tim Longwill, Partner, McCullough Robertson Lawyers

1.10      Break

1.25      New Laws Regarding Contractors, Casuals and Wage Theft: Understanding Implications for Your School and Updating Contracts and Practices

Clarifying the Differences Between Employees and Independent Contractors

  • Examining recent changes in the Fair Work Act defining the employee and employer and application to independent contractors and others in schools
  • Exploring how the new multi-factor test would be applied in practice
  • Effectively documenting your consideration of the factors to optimise your legal position
  • Updating contracts to meet the changes

Outlining New Laws for Casuals and Implications for Your School

  • Understanding the changes to the definition of casuals under the Closing the Loophole legislation and new pathway to choose permanent employment
  • Applying the new definition including assessing whether or not there is “a firm advance commitment”
  • Reviewing and amending agreements

Reviewing Changes Criminalising Wage Theft and How to Avoid It

  • Underpaying employees – what is “wage theft” in the school context?
  • Examining recent legislative developments
  • Compliance considerations
    • what obligations exist and where do they come from?
    • how do I get it right?
    • annualised salaries
  • Learnings from school case studies
  • Practical tips – managing underpayment issues and claims

David Scanlan, Director of People and Culture, St Hilda’s Anglican School for Girls, Perth; Registered Lawyer

2.25      Break

2.40      Dealing with Staff Absences and Mental Health Issues in a Changed Legal Environment

  • Outlining the extent of the school’s obligation to review and monitor mental health pressures on staff in the current environment
  • Understanding how recent changes to WHS laws have affected how schools should approach and manage staff with mental health issues
  • What is your obligation where you suspect mental health issues, but the staff member is not acknowledging these or is not cooperative?

Navigating Acceptable Medical Evidence and Effective IME’s

  • Dealing with medical certificates and reports – understanding when you can challenge or clarify medical evidence
  • Optimising questions to ask the staff member’s medical practitioner to verify or clarify the condition
  • Obtaining independent medical reports or evidence – when this can be done and how to brief the expert

Optimising Performance Management of Staff with Stress or Mental Health Issues

  • Examining your options in performance managing an employee returning to work from stress leave or psychological injury
  • Responding to claims of mental health issues made in response to performance management
  • Managing the process to prevent successful claims that the process has caused psychological injury

Termination of Staff with Mental Health Issues

  • Examining options to terminate without attracting an unfair dismissal or adverse action claim within the current legal framework and expectation

Reviewing and Implementing Effective Policies

  • Key elements to consider in current school policies and strategies dealing with stress leave and psychological injury

Ben Tallboys, Principal, Russell Kennedy Lawyers; Legal Consultant to Association of Heads of Independent Schools of Australia (AHISA)

3.40      Concluding Remarks

3.45      Event Close

Presenters / panelists include:

Belinda Reid is the Head of Human Resources at Trinity Grammar School, Sydney. Belinda is passionate about staff wellbeing, performance management, reducing psychosocial injury and improving wellbeing through adapting workplace policies and practices to meet the emerging needs of staff.
Tim Longwill is a legal practitioner of over 20 years experience. He is a specialist industrial lawyer with significant exposure to the education sector. Tim was also recently named for the third year in a row as being among ‘Australia’s Best Lawyers’ by the Financial Review.
Prior to joining St Hilda’s, David Scanlan worked as Special Counsel at Bartlett Workplace Lawyers and Consultants, heading up its Perth office. He has broad commercial legal experience, primarily in industrial relations, general employment, occupational health and safety, privacy, matters relating to discrimination, harassment and bullying in the workplace and various other commercial areas.
Ben Tallboys provides sector-specific, practical legal solutions to schools across Australia. Ben is a passionate and effective advocate for principals dealing with complex matters relating to parents, staff and students, as well as their own employment.

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