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• Employer guidelines
  • Introduction
  • 1. Do you provide child-related employment?
  • 2. Your obligations as an employer
  • 3. Step-by-step guide
  • 4. Relevant employment proceedings
  • 5. Background information
  • 6. Forms
  • Glossary
• Prohibited employment
• Background checks
• FAQs
• Employer-related bodies
• Child-safe child-friendly
• Offender Counsellors
• Commitment to service

 

 

Relevant employment proceedings are considered as part of the Working With Children background check. This allows employers who are aware of serious harm occurring in workplaces to pass on this information to potential future employers

All employers must notify the Commission for Children and Young People of the name and other identifying particulars of any employee (either paid or unpaid) against whom relevant employment proceedings have been completed by the employer since 3 July 1995. The person subject to the relevant employment proceeding need not have been in child-related employment. Notifications must be made using the Relevant Employment Proceedings Notification Form.

If you do not notify relevant employment proceedings the Commission for Children and Young People can take enforcement action. For further information follow the link to What are the offences and penalties?

Not all inappropriate professional conduct will constitute a relevant employment proceeding. Where conduct is not reportable as a relevant employment proceeding, you should respond in accordance with your own workplace policies and procedures.

4.1   What is a relevant employment proceeding?

A relevant employment proceeding is a completed disciplinary proceeding where an employer (or professional or other body that supervises the professional conduct of the employee) has found reportable conduct occurred. Reportable conduct includes:

• any sexual offence, or sexual misconduct, committed against, with, or in the presence of, a child; or
• any child pornography offence or misconduct involving child pornography; or
• any child-related personal violence offence; or
• an offence of filming for indecent purposes committed against, with, or in the presence of, a child under section 21G or 21H of the Summary Offences Act 1988; or
• any assault, ill-treatment or neglect of a child; or
• any behaviour that causes psychological harm to a child, whether or not the child consents; or
• an act of violence committed by an employee in the course of employment and in the presence of a child has occurred; or
• there is some evidence that reportable conduct or an act of violence occurred, however the finding is inconclusive or there is insufficient evidence.

Do not notify the Commission for Children and Young People where completed employment proceedings have found:

• the alleged reportable conduct or act of violence did not occur; or
• the allegations were false, vexatious or misconceived.

It is not necessary to notify the Commission for Children and Young People where the conduct is exempted from notification by a class or kind agreement.

For further information, follow the link to What is reportable conduct and 'an act of violence' for the purposes of a relevant employment proceeding?

The NSW Ombudsman document Child Protection in the Workplace: Responding to Allegations Against Employees (June 2004, 3rd edition) provides further assistance on what constitutes reportable conduct. It is available from the NSW Ombudsman's website at www.ombo.nsw.gov.au.

4.1.1      When is an employment proceeding considered "completed"?

You are required to notify the Commission for Children and Young People when a relevant employment proceeding is completed, not when an allegation is made.

An employment proceeding is considered completed when:

• you have undertaken an investigation;
• you have ended the investigation, either because you have enough information, or you cannot get any more information;
• a finding is made on the basis of the investigation; and
• a decision is made as to the disciplinary action, if any, that should be taken.

An employment proceeding is completed regardless of whether or not you have taken disciplinary action against the employee or whether or not the employee has exercised or exhausted any right of appeal or review.

An investigation must still be undertaken if an employee resigns. However, if you cannot investigate fully because the employee resigns or otherwise does not respond to requests for information, the investigation is considered completed.

4.1.2      What is a class or kind agreement?

A class or kind agreement is an agreement made between the Commission for Children and Young People and an employer which changes some of the relevant employment proceeding reporting arrangements of that employer.

Class or kind agreements recognise the individual conditions, complaint processes and professionalism that employers provide. Oversight of complaints processes by the NSW Ombudsman is often a key factor in a making class or kind agreement.

4.1.3      What reportable conduct does not include

Reportable conduct does not include:

• conduct that is reasonable for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant professional standards; or
• conduct that is exempted from notification by a class or kind agreement under these Guidelines; or
• the use of physical force that, in all the circumstances, is trivial or negligible, but only if the employer is an agency to which Part 3A of the Ombudsman Act 1974 applies and the matter is to be investigated and the result of the investigation recorded under workplace employment procedures.

Examples of behaviours that are not reportable conduct include:

• touching a non-intimate part of a child's body to attract a child's attention, to guide or to comfort a child;
• a school teacher raising his or her voice or shouting to attract attention or to restore order in the classroom;
• conduct that is established to be accidental;
• providing medical care to a child who is hurt;
• use of reasonable physical force to disarm a child seeking to harm themself or another;
• not acting in response to a situation, such as a physical fight between children, where an employee's own safety may be put at risk;
• not providing supervision where this was for good reason and in a low risk situation; and
• actions found to have been appropriate physical contact in classes such as sport, drama, dance, etc.

4.1.4      What is trivial or negligible use of physical force?

Trivial or negligible use of physical force is force which is not significant enough to cause concern for, or harm to, a child. It may be ordinary, although intentional, use of force, such as forcing a child to move when they refuse. Force that may be trivial for a ten year old child may not be trivial for a two year old. Matters must be considered on their individual merits.

For employers subject to Part 3A of the Ombudsman Act 1974, allegations of trivial or negligible use of physical force are only exempt from notification if they are investigated and recorded by the employer according to workplace employment procedures.

You should carefully examine any repeat "trivial or negligible" use of force.

4.2   Which matters should not be notified to the Commission for Children and Young People?

DO NOT NOTIFY the Commission for Children and Young People of employment proceedings completed before 3 July 1995.

DO NOT NOTIFY the Commission for Children and Young People if you have completed the employment proceedings and found that an incident was not reportable conduct or an act of violence.

DO NOT NOTIFY the Commission for Children and Young People if the conduct is not required to be notified by a class or kind agreement under these Guidelines.

DO NOT NOTIFY the Commission for Children and Young People if you have completed the employment proceedings and found the allegation is:

• false - the alleged conduct did not occur; or
• vexatious - the allegation was made without substance and with the intent of being malicious or to cause distress to the person against whom the allegation was made; or
• misconceived - even though the allegation was made in good faith the person making the allegation misunderstood what actually occurred; or
• conduct reasonable for discipline, management or care of children having regard to the situation; or
• regarding the use of physical force which is trivial or negligible, where your organisation is one to which Part 3A of the Ombudsman Act 1974 applies and there is a documented investigation of the matter.

4.3   What are the categories for relevant employment proceedings?

When you notify a relevant employment proceeding to the Commission for Children and Young People, you need to categorise those proceedings as either a Category One or Category Two relevant employment proceeding.

This two tier reporting system recognises the complexities of employee behaviour in a child protection context.

If you are in doubt about which category is appropriate in a particular instance, you should contact the Commission for Children and Young People for advice, or classify the matter as Category One.

4.3.1      Category One classification

Category One matters trigger an estimate of risk if the person has a Working With Children background check.

You should report as Category One all relevant employment proceedings where the investigation has found:

• reportable conduct; or
• an act of violence took place; or
• some evidence that reportable conduct or an act of violence occurred, however the finding is inconclusive and you think that the conduct should be considered in an estimate of risk when the person next seeks child-related employment.

4.3.2      Category Two classification

Category Two matters by themselves do not trigger an estimate of risk if the person has a Working With Children background check. A Category Two matter will be considered in an estimate of risk if there are other relevant records for the person.

You should report as Category Two all relevant employment proceedings where the investigation has found some evidence that reportable conduct or an act of violence occurred, however the finding is inconclusive. You may notify such conduct as Category One if you consider the matter should be considered in an estimate of risk when the person next seeks child-related employment.

4.4   How do you notify the Commission for Children and Young People of a relevant employment proceeding?

To notify the Commission for Children and Young People of a relevant employment proceeding, you must:

• complete the Relevant Employment Proceedings Notification Form ; and
• submit this to the Commission.

Notification to the Commission for Children and Young People should be within one month of completing a relevant employment proceeding.

You should also complete the Relevant Employment Proceedings Summary and keep it with your records. This form records the information which will be required by an Approved Screening Agency when undertaking an estimate of risk. For further information on your obligations to keep records and provide access to employees, go to What information do you need to record?

You are required to complete this form regardless of whether you are subject to the NSW Ombudsman's scheme under Part 3A of the Ombudsman Act 1974.

The requirements in the Summary are consistent with good practice under the NSW Ombudsman's scheme as detailed in Child Protection in the Workplace: Responding to Allegations Against Employees (June 2004, 3rd edition). This document is available from the NSW Ombudsman's website at www.ombo.nsw.gov.au.

4.4.1      Notifying the employee

You must inform the employee that you have notified the Commission for Children and Young People of a relevant employment proceeding involving them. To do this, you must use the Relevant Employment Proceedings Employee Notification Letter adding your details where relevant.

Under the Freedom of Information Act 1989 where an employee makes a request for access to documents with regard to relevant employment proceedings, you are required to show them all related documents that are not exempt. This includes the Relevant Employment Proceedings Summary. See Section 4.5.3 for more information.

4.5   What information do you need to record?

4.5.1      Keep records of relevant employment proceedings

You must make complete records of relevant employment proceedings, including the information you have provided to the Commission for Children and Young People, the reasons for your decision to categorise a proceeding as Category One or Two and the Relevant Employment Proceedings Summary (attachment 6.9). You must retain this information so that it is available for future reference. This duty applies despite any other requirement for disposal of records.

It is important to retain this information as an Approved Screening Agency may contact you at any time as part of undertaking an estimate of risk to obtain further details on a relevant employment proceeding.

If the Commission for Children and Young People requests that you provide this information and you are not able to without a reasonable excuse, you may be guilty of an offence. For further information, go to Failing to produce information when requested by the Commission for Children and Young People.

If you transfer ownership to a new employer, all records of relevant employment proceedings should be transferred and kept by the new employer.

If you close down, all records relating to relevant employment proceedings should be forwarded to the Commission for Children and Young People with the Relevant Employment Proceeding Records Release Form. These records will be kept in a secure place and will be used only for the purposes of conducting an estimate of risk as part of the Working With Children background check.

You should also notify all employees to whom the records relate that the records have been forwarded to the Commission for Children and Young People for storage purposes should the need for an estimate of risk arise in the future. Employees have a right under the Freedom of Information Act 1989 to access these records. For further information go to Access to information for employees.

NOTE: When employers receive an application under the Freedom of Information Act 1989 they must take into account their obligation to protect confidential information. Schedules to the Freedom of Information Act 1989 exempt some documents from disclosure. For example, you should not unreasonably disclose personal information about someone other than the applicant. You should also not release any information being used in a police investigation.

4.5.2      Confidentiality of relevant employment proceedings

You must keep relevant employment proceedings confidential. Any information you obtain should only be provided to people who are authorised to see such information, and only if they need to see it.

For further information go to Maintaining confidentiality.

4.5.3      Access to information for employees

Under the Freedom of Information Act 1989, where a person has been the subject of a relevant employment proceeding, the person is entitled to apply for:

• access to any documents from your organisation which contain information about those proceedings. This includes the information you have provided to the Commission for Children and Young People and the Relevant Employment Proceedings Summary; and
• amendment of the records relating to information about relevant employment proceedings if they consider the information is incomplete, incorrect, out of date or misleading.

This is regardless of whether the person is a current employee or not.

You are not permitted to charge any fees to a person applying for access to relevant employment proceedings records under the Freedom of Information Act 1989.

This entitlement applies to information held by any employer in NSW, regardless of whether the Freedom of Information Act 1989 applies to them in other circumstances.

An application by a person under the Freedom of Information Act 1989 must be dealt with by you within 21 days. If you do not deal with the application within 21 days the employee may seek an internal review.

If you refuse access to information requested in a Freedom of Information application, or refuse to amend records, the applicant can either:

• request you to review the decision through an 'internal review'. However, as an internal review can only be made by a person equal or senior to the person who made the first decision, if that first decision was made by the principal officer of the employer there is no scope for internal review;
• if the internal review is unsuccessful, or unable to occur, request the NSW Ombudsman to review the matter as an 'external review';
• if the external review is unsuccessful, or there is good reason not to undertake one, make an application to the Administrative Decisions Tribunal, which will review the merits of the matter and make a binding decision.

Advice about the operation of the Freedom of Information Act 1989 may be obtained from the Freedom Of Information Unit of the NSW Ombudsman by phoning (02) 9286 1000.

4.6   When can you withdraw a relevant employment proceeding notification?

If you have notified the Commission for Children and Young People about a relevant employment proceeding and later decide it is not a relevant employment proceeding, or if the notification was made in error, you must write to the Commission to request that the notification be removed.

If an employee believes they have been wrongly notified to the Commission for Children and Young People, they should take this matter up with the employer, as the decision to withdraw a notification rests with the employer.

4.7   How can the categories of relevant employment proceedings be reviewed?

The Commission for Children and Young People can reclassify categories in certain circumstances:

• on request by employers if sufficient evidence is provided;
• or where further notifications are made; or
• when Approved Screening Agencies identify categories that require review during the conduct of an estimate of risk.  Approved Screening Agencies  will refer these to the Commission for Children and Young People for review.

4.7.1      How to request a review of categories by the Commission for Children and Young People

If you have notified a Category Two relevant employment proceeding and believe it should be changed to a Category One, you should write to the Commission for Children and Young People and notify this change of category. The Commission will not undertake a review in this situation.

If you have notified a Category One relevant employment proceeding and have reasonable grounds to believe that it should be reclassified to Category Two, you should write to the Commission for Children and Young People to request a review of the category. 

In deciding whether to refer a matter to the Commission for Children and Young People for review, you should consider:

• the circumstances surrounding the conduct;
• the nature and seriousness of the employee's behaviour; and
• the nature and seriousness of any disciplinary action taken.

When a request is received, the Commission will review the matter and determine whether it should be reclassified.

4.7.2      Review of notifications by the Commission for Children and Young People

The Commission for Children and Young People will review Category Two matters to determine whether they should be moved to Category One or updated where:

• there is a further notification of a Category Two employment proceeding; or
• the matter is referred from an Approved Screening Agency while undertaking an estimate of risk.

The Commission for Children and Young People will also review Category One matters to determine whether they should be moved to Category Two or updated where the matter is referred from an Approved Screening Agency while undertaking an estimate of risk.

To conduct these reviews, the Commission for Children and Young People may request additional details of those proceedings from you and the employee. This review process will consider such criteria as:

• the type and severity of the matters;
• whether the matters indicate a pattern of behaviour that is of concern; and
• other relevant records held on the person.

Any person subject to a relevant employment proceeding which is transferred between categories or updated will be notified by the Commission for Children and Young People.

The Commission for Children and Young People will also notify the employer who provided the original notification.