Schools are increasingly requiring all employees, subcontractors and suppliers of builders on their school building projects to obtain a Working with Children (WWC) Check as part of their commitment to the safety and wellbeing of their students. This article considers the extent to which this is necessary and appropriate for workers engaged on school building projects having regard to the relevant Child Safe Standards, legislative requirements for WWC Checks, and the Ministerial Order 1359, which applies to registered schools and school boarding premises in Victoria.
What are WWC Checks?
WWC Checks are a state-based assessment of an individual’s suitability to work with children. While commonly referred to as a WWC Check, in Queensland it is called a Blue Card, and in the Northern Territory it is called an Ochre Card.
The requirements on individuals and organisations to ensure that prescribed workers obtain and maintain a WWC Check or equivalent vary from state to state. As such, this article focuses on requirements in Victoria under the Worker Screening Act 2020 (Vic) (the Act) and Ministerial Order 1359, which applies to registered schools and school boarding premises.
In Victoria, a WWC Check screens an individual’s national criminal record for serious criminal charges, offences, findings of guilt and professional conduct determinations and findings related to the safety of children. If an individual obtains a WWC Check clearance, their criminal record is continually monitored for the five years that the WWC Check is valid for, and the organisation they work with is notified of any changes where the organisation is listed when the WWC Check is completed, renewed or updated. A WWC Check differs to a National Police Check, which checks national criminal records for a broader range of offences but has no mechanism for monitoring and notifying organisations of further offences by workers (meaning it is only valid at the time it is obtained).
WWC Check requirements under the Act
Under the Act, an individual must obtain a WWC Check if they engage in, or intend to engage in, child-related work, whether as employee, contractor or volunteer. Child-related work is described as work undertaken:
- at or for a service, body or place (which includes schools), or that involves an activity defined in the Act (such as education or counselling services); and
- that usually involves direct contact with a child that is not occasional direct contact with children that is incidental to the work.
Employees, subcontractors and suppliers of builders who carry out works on school grounds will satisfy the first requirement above. However, while such persons may have contact with children, it is likely to be considered occasional and incidental to their work. Therefore, it is unlikely that contractors, subcontractors and suppliers in building projects carried out on school grounds as part of a school building project need WWC Checks under the Act.
Additional obligations under the Ministerial Order 1359
The Victorian Ministerial Order 1359 imposes more stringent requirements on registered schools and boarding houses to ensure that prescribed workers obtain a WWC Check than what is required by Act.
Clause 10.2 of the Ministerial Order requires that when engaging school staff or school boarding premises staff to perform child-connected work, the school governing authority or school boarding premises governing authority must:
- sight, verify and record the person’s WWC Check clearance, if the person is required to have a clearance in accordance with the Act, or any equivalent background check; and
- where the person will be engaged in child-related work, collect and record:
- proof of the person’s identity;
- information about any essential or relevant professional or other qualifications;
- the person’s history of work involving children; and
- references that address the person’s suitability for the job and for working with children.
Critically, the Ministerial Order’s definition of child-connected work is broader than the definition of ‘direct contact’ under the Act, and has the effect of expanding the categories of workers required to obtain a WWC Check in connection with schools and boarding premises. The Ministerial Order defines child-connected work as:
- work authorised by the school and performed by an adult in a school environment while children are present or reasonably expected to be present; or
- for the purposes of a school boarding premises, work authorised by the provider of school boarding services in a school boarding premises environment while children are present or reasonably expected to be present.
In practice, this means that a contractor, subcontractor or worker on a building project at a school may not be required to hold a WWC Check under the Act on the basis that they are not likely to have direct contact with students. However, a school or boarding premises may be required to obtain one under the Ministerial Order where the worker is likely to be in school and boarding school environments where students are reasonably likely to be present (i.e. to order to access the work site and other school facilities while working on the school grounds).
Consequently, schools and school boarding premises should carefully consider whether they hold appropriate WWC Check clearances for all workers under the Ministerial Order, not simply under the Act.
Requirements for a WWC Check under Child Safety Policy
Regardless of which state or territory a school is located in, schools are increasingly insisting on WWC Checks for contractors and sub-contractors as part of their Child Safety Policy (CSP).
It is a requirement under the Victorian Child Safe Standards (Standards) and Ministerial Order 1359 that schools have their own CSP. The Standards were created as a compulsory minimum set of obligations on organisations that provide services to children, including schools.
If a school’s CSP requires WWC Checks for employees, contractors and subcontractors of builders, the school must ensure these checks are obtained, because breaches of a school’s CSP may result in an investigation by the relevant regulator, and potential liability.
This raises two issues. First, a school should be precise in specifying who is required to have a WWC Check to avoid the school assuming unintentionally broad obligations (i.e. that all contractors, subcontractors, and their employees will require a WWC Check, even if the project is undertaken outside of school hours or school term). Second, should a school’s CSP require all contractors, subcontractors and their employees of builders to have a WWC Check? For schools outside Victoria, this may be setting the bar impractically high.
There can be hundreds of individual contractors, subcontractors, suppliers and their employees on school grounds during the course of a school building project, some of whom may only be there for only an hour or two. It may not be practical or necessary to get a WWC Check from all such persons, and schools should be aware of the time and cost of getting them, which will likely be passed-through to the school by the builder or contractor.
Schools should be wary of insisting on an overly broad requirement for WWC Checks in their CSP (and similarly in their building contracts) that they are not willing or able to enforce. As noted above, a school must comply with their CSP, so care needs to be taken to ensure that WWC Check requirements on employees, subcontractors and suppliers of a builder align with their legal and contractual obligations.
How we can help
In order to maintain a child safe environment, schools must ensure that they assess and manage the risks associated with school building projects consistent with their legal obligations, including in relation to screening and monitoring workers on building projects. Moores can help schools to implement lawful, reasonable and pragmatic processes to support a child safe environment in relation to building projects, including by:
- Advising schools on the extent to which WWC Checks must be obtained from employees, contractors, sub-contractors and suppliers on building projects in each state and territory.
- Drafting Child Safety Policies and Procedures to ensure that a school has a clear position on who is required to have a WWC Check, consistent with relevant legal obligations.
- Advising schools on their obligations under reportable conduct schemes in each state and territory, and when reports must be made in relation to contractors, subcontractors and employees on building projects.
- Drafting and negotiating building contracts for school building projects, including aligning them with a school’s CSP and other child safety obligations which may apply.