On 1 November 2017, the Victorian Disability Worker Exclusion Scheme was expanded to cover all disability services providers, including NDIS providers that are registered with the Department of Health and Human Services, with a 1 February 2018 deadline for completing all checks on existing disability workers.
The DWES previously only applied to workers in direct support roles at registered disability residential services but has been expanded in response to the Victorian Government’s Inquiry into Abuse in Disability Services Final Report released in May 2016. Russell Kennedy published an alert about the inquiry.
Background
The DWES was introduced in 2014 to exclude persons who pose a threat to the health, safety or welfare of people with disabilities from work as a “disability worker” in a disability service. Excluded individuals are placed on the DWES List. The DWES List complements other required screening checks, such as police checks.
A person will be placed on the DWES List if:
- they have been found guilty of any offence that involves bodily harm, violence or threats of violence, is of a sexual nature, or involves dishonesty or neglect of a person in their care;
- they have previously been dismissed or removed from a role for conduct that includes abusing a client, sexual misconduct with a client, or for otherwise putting a client at risk of serious harm;
- they have been the subject of a workplace investigation because of an allegation related to the above criteria, but resigned before the investigation concluded; and/or
- there are reasonable grounds to consider that the person would represent an unacceptable risk to the health, safety or welfare of a person with a disability.
Expanded application
The DWES now defines “disability worker”” to mean any person engaged by a disability service provider who:
- provides direct support to a person with a disability; or
- supervises or manages a person who provides direct support to a person with a disability; and
- has direct contact or access to a person with a disability.
That includes full-time, part-time or casual employees, contractors, persons engaged through labour hire agencies, students on placements, and volunteers.
The DWES is no longer confined to residential disability service providers.
What do providers need to do?
All disability service providers are required to undertake an annual compliance check to ensure that each current disability worker has been checked against the DWES List. They must also maintain a written record of undertaking and completing the annual compliance check.
All Victorian disability service providers are also required to check prospective disability workers against the DWES List.
Providers should give prospective and current disability workers information about the DWES and seek their consent to check them against the DWES List. Providers are also required to nominate an “Authorised Person” in their organisation to be responsible for submitting checks and notifications under the scheme to the Department. Providers must keep the Department informed of any incidents that may give rise to a worker meeting the criteria for placement on the DWES List. Where providers have used a labour hire agency, they must conduct their own checks against the DWES List before engaging a worker from that agency, unless the agency is one of the Department’s “authorised” agencies. Authorised labour agencies can conduct DWES List checks.
The Department has published useful resources for providers to use to comply with these new screening obligations, including instructions, information sheets, suggested communication from providers to affected workers, and acknowledgement and consent forms.
Providers should also ensure that their employment and independent contractor agreements for disability workers contain screening check provisions to meet their compliance obligations, and address the issues raised in this article.
The DWES will remain in place whilst the Victorian Disability Worker Accreditation and Registration Scheme and the NDIS worker screening arrangements are developed.
Russell Kennedy will provide updates about these new worker screening arrangements once they have been finalised. Please contact our Workplace Relations, Employment and Safety Team for advice about screening checks and assistance with your employment and independent contractor agreements.
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