Since 1 February 2021 all registered NDIS providers are required to comply with the NDIS Worker Screening Scheme (Scheme), as part of the NDIS Quality and Safeguarding Framework. Employers must ensure that any workers they engage, who are working in ‘risk-assessed’ roles, obtain an acceptable NDIS Worker Screening Check (Check), which replaces the various screening arrangements currently operating in the disability sector in each state and territory.
Whilst the Check is intended to set a minimum national standard for workers in risk-assessed roles, there may be additional requirements in certain states and territories. Also, the Check does not replace other obligations (such as Working With Children Checks).
The Check assesses a worker’s capacity and suitability to work with people with a disability, and results in either a clearance or exclusion from working in certain roles. ‘Worker screening units’ in each state and territory conduct and decide on the Check, and NDIS providers may only engage workers who have been cleared. The Scheme also involves record-keeping requirements for providers.
The worker screening units for each state and territory are as follows:
- ACT: Access Canberra
- NSW: Office of the Children’s Guardian
- NT: NT Police, Fire and Emergency Services
- QLD: Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships
- SA: Department of Human Services
- TAS: Consumer, Building and Occupational Services
- VIC: Department of Justice and Community Safety
- WA: Department of Communities
Clearances are generally valid for a period of 5 years, with cleared workers subject to ongoing monitoring against police records and other relevant information.
Workers who are not in risk-assessed roles are not required to hold a clearance, however, employers may still choose to ask any worker to apply for a Check and obtain a clearance prior to commencing, or during, employment.
Transitioned residential aged care providers
Transitioned residential aged care providers were required to ensure their workers held an aged care check from 1 December 2020. These aged care checks will be recognised for 3 years from the date the clearance was given. From 1 February 2021 transitioned residential aged care providers may satisfy their obligations under the Scheme by ensuring that any worker in a risk-assessed role holds either:
- a valid acceptable aged care provider check issued prior to 1 February 2021;
- a valid acceptable check as per specific state and territory transitional arrangements issued before 1 February 2021; or
- a NDIS Worker Screening Check clearance.
Identifying a risk-assessed role
Businesses are responsible for identifying which of their workers are in risk-assessed roles, and therefore require a Check or acceptable clearance under the transitional arrangements in the relevant state or territory. A risk-assessed role is one that:
- is a key personnel role of a person or an entity as defined in section 11A of the National Disability Insurance Scheme Act 2013 (for example, a CEO or a Board Member);
- involves the direct delivery of specified supports or services to a person with disability (the NDIS list of specified supports and services may be found here); or
- is likely to require ‘more than incidental contact’ with people with disability, which includes:
- physically touching a person with disability; or
- building a rapport with a person with disability as an integral and ordinary part of the performance of normal duties; or
- having contact with multiple people with disability as part of the direct delivery of a specialist disability support or service, or in a specialist disability accommodation setting.
For the purposes of determining whether the normal duties of a role require more than incidental contact with a person with disability, contact is not limited to physical and face-to-face contact, but also includes oral, written and electronic communication.
Providers also need to ensure that:
- they do not allow individuals to start work until they have an NDIS clearance;
- they provide employment candidates with relevant information about the safety screening before they start work;
- they provide employment candidates with privacy statements which cover any information which they collect in the recruitment process, including in connection with the Scheme; and
- they comply with their obligations under any relevant privacy and data collection legislation.
The Victorian Safety Screening Policy suggests that applicants can be provided with this information in a number of ways including through position descriptions, and information provided to applicants during the recruitment process.
How we can help
If you need assistance to ensure your business is compliant with the Scheme, and that your employment documents support compliance with the Scheme, we recommend that you contact Russell Kennedy’s Workplace Relations, Employment and Safety Team. Our team has significant experience assisting employers to interpret and comply with their legal obligations in relation to worker screening schemes, ongoing disclosure requirements, and mandatory reporting.