NSWPPA Awards 2022 | Vice President Jude Hayman

Every year we have the honour to recognise the work of our colleagues through the nomination and selection of recipients of the following awards which are presented to the successful recipients at the NSWPPA State Conference.

Awards are

LIFE MEMBERSHIP or FELLOWSHIP
DISTINGUISHED SERVICE AWARD
PROFESSIONAL AWARD
ABORIGINAL EDUCATION AWARD
SOCIAL JUSTICE / EQUITY AWARD

Please see the attached document for nomination criteria and submission information

The HPGE Professional Learning Resource Hub is Live! | Vice President Norma Petrocco:

The HPGE Professional Learning and Resource Hub (HPGE Hub) will support you as a teacher or school leader to more effectively implement the High Potential and Gifted Education (HPGE) Policy.

The HPGE Hub is a central location for HPGE professional learning (PL) and resources.

In the Hub you will find:

• Tier 1 PL orientation to policy courses
• New tier 2 PL courses on finding high potential in all 4 domains and talent development
• Acceleration support package
• Differentiation support package
• Action research resource
• Domain specific discussion papers
• DEL/PSL package update

For more information about the HPGE Hub contact hpge@det.nsw.edu.au

Duty of Care – Paid Programs | Secretary Greg McLaren

Duty of Care - Supervision esp. Third Party/Contractors
(incl. ‘Paid Programs’ for PDHPE, Creative Arts and school camps etc)

This article relates to using thirty party/contractors to supervise students without a Department employed teacher present. The advice I have consistently provided to Principals when asked about this type of circumstance is that it should not be done.

The Department’s duty of care to its students is non-delegable.  The Department (or its Principal representative) cannot contract out of that duty by relying on a third party/contractor.

Clearly, the Secretary cannot be present at 2200 schools every day.

Instead, the Secretary has established a system and procedures whereby Principals and teachers (and some other employees in some circumstances) are responsible for exercising the duty of care, on behalf of the Secretary on a day-to-day basis.  Note the arrangements are for the supervision of students to be performed by employees of the Department and not contractors. 

The Department fought a massive industrial fight in the mid-1990s to ensure that the supervision of students (before and after school) was regarded as within the scope of the duties of teachers. 

Supervising students is an important part of what our teachers do every day.  It is part of the scope of work of teachers, especially in a primary school setting.

The expectation of parents is that their child will be supervised by an employee of the Department (typically a teacher or school leader) from the moment the student enters the school premises until the student leaves the school premises to commence his or her journey home. We endorse that expectation, and we remind parents that supervision is provided at school by teachers, commencing 30 minutes before the start of the school day.

Under the NSW Work Health and Safety Act 2011, the Department must do everything reasonably practicable to ensure that students are not exposed to risks to their health or safety while they are at school. Under the Common Law, the Department and its staff have a duty to take reasonable care to keep students safe.

Paid Programs Consideration

Scenarios for “paid programs”. While this could have a wide range of meanings, you might consider two examples.  One being specialised sporting/PDHPE work (eg a hypothetical “Ellyse Perry Cricket Academy”) and the other a specialised Drama/ Music program.

Under the scenarios described, the work is required to be delivered under the supervision of a teacher.  The contractors, no matter their qualifications and expertise, are NOT employees of the Department (or are not employees of the Department on that day). The duty of care is required to be exercised by employees of the Department who are subject to the direction, control and supervision of the Principal.

It seems that the correct characterisation of what is happening is that it would be in ‘school language’ as an incursion -  that  is the students are on the school site between 9.00 am and around 3.00 pm, and that the Principal must arrange for supervision of the students (and their learning) by a person or persons who is a qualified teacher and is on that day employed by the Department to work at that school.

We know that:

“Particular care should be taken where casual staff attend and/or replace regular staff members on excursions. Among other things, they must be briefed about any student with particular health care needs and the role they may have in supporting those needs. They must also be briefed on any student who is the subject of a risk management plan and should complete any relevant training, including the department’s annual child protection training, e-Emergency care training and anaphylaxis training prior to participation in a school excursion.”

How much more that risk would be if a mere contractor was the only person providing the supervision instead of a casual teacher?

Students (and their parents) are entitled to have the student’s health information and personal information kept confidential. The Department is entitled to “use” that information, by providing it to an employee who has a need to know that information in order to perform his or her duties and to support the child in his or her education.

Generally, a school is not permitted to “disclose” a student’s personal or health information to a third party (contractor). For this reason alone it is difficult to see how a Principal could ensure adequate supervision was provided to student, where the contractor is not aware of relevant information/risk factors about individual students. This approach would not be “putting the student at the centre of everything we do.”

In the event of an incident, student injury or death during the activity, the question of supervision will be at the forefront, both for the Department’s reputation and in relation to legal liability.  This could easily be found by a Court to be a negligent failure by the Department to provide any supervision, rather than providing some supervision which in hindsight turned out to be insufficient.

Teacher Accreditation

If the person performing the work for the contractor does not hold Teacher accreditation by NESA, then both the Department and the person would, on the face of the matter, be committing a criminal offence. A Principal who permitted that arrangement would, in effect, be conspiring with the contractor to commit a criminal offence.

Child Protection

The scenario raises for me two insurmountable child protection issues:

1. How is the Department providing a system of supervision to prevent the contractor from engaging in reportable conduct or other actions towards that would be in breach of the Code of Conduct? 
2. How is the Department satisfied that a student who discloses a risk of serious harm to the contractor will have the same support that would be available if the student had made the same disclosure to an employee?

Excursions and School Camps

Please note for all excursions and school camps that occur outside school grounds and often outside school hours, the duty of care still applies to those activities, including travel to and from a venue.

Industrial issues

Extending to the above scenarios, if the SLSOs are left on class while the teacher is taken off duty.  That approach would be ripe for industrial disputation and on one view would under the Department’s procedures require the SLSO to make a mandatory notification against the teacher [and Principal] for leaving students unsupervised.

Therefore in conclusion, in my view, it is irrelevant whether or not the contractor has a departmental approval to teach because they are not being engaged as a teacher by the Department [on the particular day the person is entering the school site to deliver services, rather than perform duties as an employee]. They are a contractor engaged by a third-party provider and the duty of care owed by the Department cannot be delegated to a contractor.

“If someone is employed by the Department, not engaged as a contractor by a third party, they are paid as a casual teacher via the SAP payroll and exercise the same duty of care as any other casual teacher. However, these people are not engaged as casual teachers, not paid the same rate and cannot be delegated a duty of care.”

Personal Liability of Employees

On a less scary note, generally teachers and Principals are not personally liable for loss or damages claimed by a third party (student) for injures arising from the performance of the employee’s duties.

As abovementioned the Department’s duty of care and documented procedures require students to be supervised by teachers (or other suitable member of staff), if a student is injured by a contractor because the Principal ‘wilfully’ decided to provide no teacher supervision to the class, then the usual indemnity by the employer might not apply.  The principal may be personally liable for any loss or injury that a student or students experience.

This article was put together with the assistance of Legal Services and Industrial Relations personnel. Also sourced was NSW Legislation, DoE PES: Code of Conduct, DoE School Leadership Institute resource: Duty of Care to Students, & DoE Legal Services: Duty of Care (and behaviour management)