Discrimination and WHS laws are not in conflict

The Department must fulfil its obligations under both discrimination and work health and safety legislation.

Joan Lemaire
Senior Vice President

The obligations imposed under NSW and Commonwealth discrimination laws operate concurrently and don’t conflict with the duties imposed by the Work Health and Safety Act.

The revised Legal Issues Bulletin 5 Student Discipline in Government Schools states that “the Department must consider making reasonable adjustments for a student under discrimination law and must as far as is reasonably practicable ensure the safety of students, staff and visitors to its site (work health and safety law) and protect students from foreseeable risk of harm (duty of care)”.

Members have raised concerns that, in some cases, risks to health and safety posed by violent or challenging student behaviour have not been effectively controlled because they have been advised it is not reasonably practicable to do so. This advice appears contrary to the objects of the Work Health and Safety Act to provide the highest level of protection for workers and others against harm to their health, safety and welfare. There are many strategies which can assist in minimising risks posed by this behaviour.

While the Department may not be able to eliminate all of the hazards and risks to staff and students posed by violent or challenging behaviour, risk assessment and risk management can minimise the level of risk posed by the behaviours.

Federation has prosecuted the Department for breaches under the Occupational Health and Safety Act. In one case, Justice Kavanagh explained that the Department has policies and a number of strategies to deal with violent or challenging student behaviour so it was “difficult to propose it was impractical to make provision against acts of violence”. She said, “There were reasonable steps available to avoid the identified risks and it was reasonably practical to take such steps. A minimisation strategy such as suspension was cost free. While the alternative placements, including the placement of a Special Support Teacher/Behaviour may have been an added cost to the defendant, it does not argue, nor could it, that such a cost was prohibitive.”

There are differences between the Occupational Health and Safety Act and the Work Health and Safety Act. However, the Work Health and Safety Act states that the primary duty of care is held by the employer, now described as the person conducting the business or undertaking. There is a duty on employers and workers to “eliminate risks to health and safety, so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, to minimise those so far as is reasonably practicable”. Justice Kavanagh’s statement provides clear examples of practical strategies to minimise risks posed by violent or challenging behaviour.

Legal Issues Bulletin 40 and the Suspension and Expulsion of School Students Procedures document focus on the need to assess and develop strategies to control risks posed by violent or challenging student behaviour. Legal Issues Bulletin 5 states “in terms of violent student behaviour, suspension or expulsion is not intended as a punishment but can allow the school and the Government school system to put measures in place under work health and safety legislation”.

There are some occasions where some students exhibiting violent behaviour need additional resources and support to minimise or control risks posed by their behaviour. This support can help the individual student maximise their learning opportunities and provides a safe and healthy learning environment for other students and staff.

Federation will continue to support members who are concerned that the Department is not providing the resources and support necessary for safe and healthy workplaces. Where members believe that staff or student health and safety is at risk they should contact their Organiser.