Now includes a second day on Risk, Business Management & Governance

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Event Program

Staff, Parent & Student Issues

MORNING SESSION – STUDENT RELATED ISSUES

8.45       Welcome from LawSense

8.50       Opening Remarks from the Chairperson

Dr Alec O’Connell, Headmaster, Scotch College; Chair, AHISA WA

9.00       Live Streamed from Melbourne Student Discipline Case Study: How a School Re-worked its Approach and Policies to Optimise Fairness and Its Legal Position

St Michael’s Grammar School in Melbourne recently changed its approach, in consultation with its lawyers, to managing student discipline and investigating incidents, developing a restorative practices framework, a pastoral triage and behaviour expectations policy management plan and linking this to the enrolment policy. This joint session presented by the school, together with its lawyers, outlines the approaches and policies the school has adopted, the legal and operational reasons for the changes and some of the benefits the school has seen to date

• Legal background: outlining key laws applying to discipline in schools
• Understanding restorative practices frameworks and how they have been applied
• Reviewing the school’s previous policy and approach
• Examining what was changed and the legal or operational basis for it:
  • changing approaches to balancing individual responsibility and authority
  • focus on the behaviour rather than causes
  • shifting further to a restorative practice focus
  • implementing a new ’triage’ process to assess approaches and escalation
  • integrating discipline management and enrolment policies
• Learning from experiences after implementation of changes

Gerard Houlihan, Deputy Head of the School, St Michael’s Grammar School, Melbourne

Nick Duggal, Partner, Moray & Agnew Lawyers

10.00    Refreshment Break

10.15    Disability Law Best Practice Update:

Navigating a School’s Obligations and Opportunities to Provide Inclusive Education

• Outlining current discrimination obligations affecting schools
• Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability update – understanding how this affects interpretation of current laws and further implications for schools
• Interpreting and navigating your obligations and opportunities to provide access to:
  • the school curriculum and assessments
  • school activities and programs
  • school services
  • excursions, trips, concerts and competitions

Student Disability and Behaviour Management, Suspensions and Exclusions: Understanding Your Rights and Obligations Where the Student Has a Diagnosed or Undiagnosed Condition

• Outlining legal rights and obligations regarding student behaviour, suspensions and exclusions where a student with a disability is involved
• Navigating medical assessment, reports and treatment:
  • what should you consider where there is a medical assessment and how does this limit your options with regard to behaviour management, suspensions and exclusions?
  • what if you suspect the behaviour is as a result of a clinical issue or disability, but the parent refuses to acknowledge the possibility or obtain an assessment or consider medication?
• Learning from case studies and scenarios where you are or are not on firm legal ground when you suspend or exclude a student with a disability, including:
  • examples where the student’s behaviour is not a physical threat, but impacts the learning of other students
  • examples where staff rights or wellbeing are arguably impacted
• Examining the rights of parents to challenge your decision and reviewing what avenues they can take
• Effectively responding to complaints by parents, including allegations of bias, improper management or discrimination
• Best practice in documenting communications and your decision making to defend your legal position

Lynette McGivern, Director of Service Learning and Leadership, Wesley College

11.15    Student Depression, Self-Harm, Suicide Attempts and Other Adverse Student Events: Understanding the Extent of Your Duties, Including After Return to School

• Understanding a school’s obligations in monitoring student wellness – what steps should you take if you suspect student mental health issues

Self-Harm, Suicide Attempts and other Adverse Psychological Events

• Identifying key steps to discharge legal obligations to students who self-harm or are expressing suicidal ideation
• Understanding and managing the duty of care and other legal duties to other students
• Reviewing options for preventing or dealing with social media impacts after self-harm or suicide attempts
• Understanding and managing information sharing within the school and with outside agencies
• Working with parents and mental health professionals
• Managing circumstances where a student self-harms or makes a suicide attempt after visiting the school counsellor

Legal Obligations on Return to School

• Understanding the extent of your duties in managing students returning after self-harm, a suicide attempt or other adverse event:
  • exploring the extent to which you should make adjustments
  • understanding the extent of your obligations to monitor the student, including where you learn of concerning out-of-school activities
  • balancing your obligations to the student with obligations to other students
  • navigating ongoing disclosure of information to staff, students and parents
• Conducting a risk assessment and assessing adjustments. What if there are no plans from the discharging hospital and private practitioner?
• Implementing and monitoring a return to school plan

Maria Saraceni, Barrister, WA Bar, Francis Burt Chambers

12.10    Closing Remarks from the Chairperson

12.15    Close of Conference

AFTERNOON SESSION – STAFF & PARENTS

1.00       Welcome from LawSense

1.00       Opening Remarks from the Chairperson

Fiona Johnston, Principal, St Hilda’s Anglican School for Girls

1.05       Staff Stress Claims and Psychological Injury: Effectively Navigating Claims, Medical Evidence, WorkCover, Return to Work, Reasonable Adjustments and Performance Management

• Identifying and exploring key areas where stress claims or claims of psychological injury
• arise against schools and how the school can be liable:
  • claims relating to COVID-19
  • claims in relation to work loads and types of classes
  • difficult behaviour or bullying by parents
  • workplace bullying
  • claims in response to performance management
• Dealing with medical certificates and reports regarding stress or psychological harm – understanding when you can challenge or clarify medical evidence
• Obtaining independent medical reports or evidence – when this can be done and how to brief the expert
• Understanding the interaction between the school investigating and managing the claim and the role of WorkCover. How does WorkCover accepting a claim impact a school’s ability to dispute the claim?
• Exploring how a stress claim can affect the performance management process
• Return to work – understanding a school’s obligations and reviewing case studies with respect to reasonable adjustments
• Performance management:
  • examining your options in performance managing an employee returning to work from stress leave or psychological injury
  • managing the process to prevent successful claims that the process has caused psychological injury
• Understanding and managing your privacy and confidentiality obligations
• Key elements to consider in school policies and strategies dealing with stress leave and psychological injury

Ben Tallboys, Principal, Russell Kennedy Lawyers

2.05       Dealing with ‘Toxic’ Staff Behaviour and Understanding When the Lower-Level Issues Can Be Used for Lawful Performance Management or Disciplinary Action

Schools, like other workplaces, encounter staff who may not reach the threshold for performance management or misconduct, but nonetheless throw up ongoing lower-level issues or exhibit conduct that can have a negative impact. This practical session examines the limits of tolerance in the law for ‘toxic’ conduct in schools and how a school leader can lawfully respond to neutralise or manage the issues.

• Exploring the threshold at which lawful performance management or disciplinary action can be contemplated – learning from case studies and examples
• Identifying when instances of lower level behaviour can be combined to justify performance management or disciplinary action:
  • longstanding staff with continued instances of minor or “borderline” non-compliance
  • toxic behaviours – ongoing criticism, rumours, gossip, undermining
• Understanding what level of evidence is required to justify action – what “proof” do you require?
• Exploring best practice in documenting conduct, communications and responses when dealing with lower level or borderline issues

David Scanlan, Director of People & Culture, St Hilda’s Anglican School for Girls

3.05       Refreshment Break

3.15       Sexual Misconduct and Reportable Conduct: Examining the Threshold for Investigations and Responding to Borderline Allegations

• Assessing current “thresholds” for action:
  • reportable conduct reporting obligations
  • duty of care
• Exploring the range of conduct and ‘borderline’ action that may not meet investigation or reporting thresholds, but require a response
• Responding to borderline action – informal versus formal steps and learning from case studies and scenarios
• Understanding your confidentiality and privacy obligations where formal reporting is not involved
• Documenting your assessment and response to borderline issues

David Scanlan, Director of People & Culture, St Hilda’s Anglican School for Girls

4.15       Responding Effectively to Targeted Social Media Complaints Against Staff: Understanding Your Options and the Limits of the Law

• Exploring types of complaints about staff and the forums often used:
  • online directories with a teacher rating facility
  • Facebook pages or groups
  • member-based chat forums
  • blogs
  • parent initiated surveys
  • P&F forums
• Balancing your obligations to the staff member and the school in investigating a complaint
• Dealing with challenges where the identity of the person complaining is not apparent
• Responding to posts or messages online – understanding the legal position of the staff member, the school and potential pitfalls
• Approaching websites, blogs, Google or Facebook to have material removed. What are your options where material is hosted offshore?
• Exploring best practice in negotiating or mediating a complaint
• Staff commencing defamation action – what are a school’s legal obligations and risks?

Tristan Seymour, Associate, Lavan Legal

5.10       Closing Remarks from the Chairperson

5.15       Close of Conference

PLUS, BONUS WEBINAR ON TRANSGENDER – WEBINAR BROADCAST – NATIONWIDE – Wednesday, 28 April 2021 – 12.30pm to 2.00pm

12.30    Welcome from LawSense

12.35    Opening Remarks from the Chairperson

Natalie Charles, Principal, Mentone Girls’ Grammar School

12.40    Transgender and Gender Fluidity: Understanding Current Legal Obligations, Dealing with Parents and Experts and Understanding Legal Exceptions

• Understanding gender changes, gender dysphoria and gender re-assignment
• Examining a school’s obligation to accommodate or assist the student in making gender choices:
  • reviewing your duty of care and discrimination obligations considering recent cases
  • understanding how the age of the chid affects your duty of care and legal obligations in this area
  • dealing with parents and families:
    • when should you get family members or guardians involved and to what extent?
    • navigating circumstances where student and parent wishes and views, are inconsistent
    • responding where a parent is looking for school guidance to decide the issue
  • expert opinions:
    • when should the school seek an opinion from a psychiatrist or psychologist?
    • what if the parents have an expert opinion – should you accept this?
    • when should you recommend an independent expert opinion?
  • exploring a school’s obligations regarding gender re-assignment
• Reviewing exceptions in relevant discrimination legislation and how they impact schools in different sectors
• Exploring options to support gender diverse students and families

Skye Rose, Practice Leader, Moores Legal

1.40       Discussion and Closing Remarks from the Chairperson

2.00       Close of Webinar

DAY TWO – 17 June 2021

Risk, Business Management & Governance

8.45       Welcome from LawSense

8.50       Opening Remarks from the Chairperson

Sonja Matthes, Business Manager, Emmanuel Catholic College; State President & Director, ASBA WA

9.00       Enrolment Best Practice Update:

Enrolment and Students with a Disability: Navigating Disclosure, Assessment, Reasonable Adjustments and Unjustifiable Hardship

• Reviewing the current laws affecting disability discrimination in schools
• Understanding current interpretations of disability laws, including the implications of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
• Optimising information about a student disability at the enrolment stage – what information can you request or require prior to enrolment?
• Exploring the limits of the ‘reasonable adjustments’ the school should make: clarifying what is ‘reasonable’
• Unjustifiable hardship:
  • examining when you can decline enrolment for ‘unjustifiable hardship’. What is ’unjustifiable’?
  • balancing the impact on other students – to what extent does this factor into ‘unjustifiable hardship’ or ‘reasonable’ adjustments?
• Managing discrimination obligations where:
  • a place has been offered, but the student develops a disability prior to commencing school
  • a disability is developed post-enrolment
  • the student has a disability that was not disclosed by parents in the enrolment process

Ben Foley, Special Counsel (Education and Workplace), Clifford Gouldson Lawyers; Former Director of Enrolments & Marketing, Toowoomba Grammar School

10.00    Refreshment Break

10.15    Enrolment Contract Update: Reviewing Family Separation, Payment Plans, Credit Code and Debt Collection

• Understanding what level of ‘proof’ a school should obtain regarding the authority of parents/guardians with respect to the child being enrolled
• Identifying key aspects of family law to consider in drafting enrolment contracts, including the impact of court orders or their absence where there is parent separation
• Outlining the types of clauses to include in the enrolment documents to manage information, fee recovery and other issues where there are separated parents
• Payment terms and arrangements and late payment fees/interest
  • Understanding the extent of your rights to obtain financial information about parents prior to enrolment
  • understanding your options in setting payment methods and late payment fees/interest
  • avoiding negative impacts of the Consumer Credit Code in providing payment arrangements or re-negotiated fees
  • Understanding risks in pointing families to education payment providers
• Debt collection
  • reviewing options for schools in recovering debts
  • understanding what constitutes harassment or unconscionable conduct under the Australian Consumer Law
  • navigating bankruptcy and the recovery of school fees

Michael Jensen, Senior Associate, Lavan Legal

11.00    Assisting the Board In 2021: What Should They Expect from You and Dealing with the More “Hands-On” Board Member

• Reviewing current governance obligations and emerging areas of risk
• Exploring challenges in reporting on risk and demonstrating compliance:
  • what a board member needs to see in 2021
  • working with the more ‘hands on’ board member and understanding your options where you feel the board member involvement is beyond the scope of their role
  • learning from examples and case studies of reporting in risk areas
• Assisting the Board in carrying out other key functions

Craig D’cruz, National Education Lead, CompliSpace

12.15    Lunch

1.00       Welcome from LawSense

1.00       Opening Remarks from the Chairperson

Michael Burgess, Bursar, Trinity College; Executive Committee Member, ASBA WA

1.05       Managing and Defending Staff Adverse Action Claims and Learnings from Recent Cases

• Reviewing circumstances where adverse action claims are commonly made in schools
• Examining the Fair Work Act general protections for employees which are the basis for adverse action claims:

• • what constitutes a ‘workplace right’ including ‘an inquiry or complaint in the employee’s employment
  • understanding when a school is taking ‘adverse action’ against an employee
  • the reverse onus of proof – what requirements does a school need to meet to defend an adverse action claim and what sort of evidence is needed?
  • examining some penalties, damages and other orders a school is exposed to
• Understanding how discrimination claims under the general protections provision apply and differ from anti-discrimination laws.
• Reviewing learnings from case studies and scenarios

Ben Tallboys, Principal, Russell Kennedy Lawyers

2.05       School Restructuring in the Current Environment: Identifying and Managing Key Risks in Redeployment and Redundancy and Responding to Claims

• Examining key laws applying to restructuring, redeployment, and redundancy in schools
• Evaluating options in the current environment – what matters should you consider from COVID-19?
• Exploring steps in preparing for restructure to optimise the process
• Consultation – understanding when it is required and how it should be implemented
• Identifying key considerations in redeployment:
  • when is redeployment necessary?
• Dealing with potential claims by staff:
  • “genuine redundancy” and unfair dismissal
  • adverse action claims
  • complaints regarding selection for redundancy

David Scanlan, Director of People & Culture, St Hilda’s Anglican School for Girls

3.05       Refreshment Break

3.15       Effectively Negotiating and Documenting Staff Exits, Including of Long-Standing Staff

• Reviewing the advantages and disadvantages of negotiated staff exits
• Examining key factors to weigh up in determining when and how to negotiate
• Exploring considerations in exiting long-standing staff
• Understanding the differences in negotiations involving executive and non-executive staff
• Dealing effectively with unions
• Documenting staff exits – key issues to consider
• Including and enforcing non-disparagement and confidentiality clauses

Rochelle Airey, Senior Associate, HWL Ebsworth; Former, Head of Department, Department of Education WA

4.15       New Work Health and Safety Laws: Understanding the Implications for Schools and What You Should Implement to Meet Requirements

• Reviewing key provisions of the new work health and safety legislation
• Who is the “person carrying on a business or undertaking” in schools?
• Examining the new scope of duties, including officer due diligence duties, and who this affects in schools
• Reviewing the increased WHS consultation requirements
• Understanding the industrial manslaughter provisions
• Examining key elements of policies, processes and structures schools should implement to ensure compliance
• Reviewing the obligations to manage bullying and mental health as a WHS risk in your school

Renae Harding, Partner, Jackson McDonald Lawyers

5.10       Closing Remarks from Chairperson

5.15       Close of Conference

	Michael Jensen has over 20 years experience in workplace law.  Michael advises clients on a wide range of employment related matters, including unfair dismissals, employment contracts, equal opportunity and discrimination issues.  Michael has a particular interest in disability discrimination in education.
	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.
	Ben Foley has been the Director of Enrolments at Toowoomba Grammar School since December 2010. Mr Foley is a lawyer by profession and specialised in workplace, employment and discrimination law whilst in practice with previous experience in family law. Mr Foley also has a commercial background in the agribusiness sector having worked for a publicly listed company in sales and marketing in Queensland and Victoria.
	Prior to joining St Hilda’s, David 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.
	Skye Rose has over 10 years' experience representing both employees and employers and extensive experience in helping organisations to create a child-safe culture. In 2016, Skye was appointed as a Member of the Independent Advisory Board for Victoria Police and provides expert advice to address sex discrimination, sexual harassment and predatory behaviour in Victoria Police.
	With 38 years of educational experience, Craig D’cruz is the National Education Lead at CompliSpace. Previously Craig held the roles of Industrial Officer at the AIS WA, he was the Principal of a K-12 non-government school, Deputy Principal of a systemic non-government school and he has had teaching and leadership experience in both the independent and Catholic school sectors. Craig currently sits on the board of a large non-government school.

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