With the roll-out of the NDIS in Queensland, it is important that service providers who receive NDIS funding are aware of their criminal screening obligations regarding their staff and volunteers. The criminal history screening requirements are required as a safeguard to protect persons with a disability from increased risk of exploitation, violence, abuse and neglect.
Under the Disability Services Act 2006 (Qld) (“the Act”), a non-government service provider who receives funding from the Queensland Department of Communities, Disability Services and Seniors or the Federal National Disabilities Insurance Scheme (“NDIS”) may only engage persons to perform services on behalf of the service provider who have undergone a criminal history screening and received a positive notice and Yellow Card.
Responsibility to comply with the criminal history screening and Yellow Card requirements rests with the service provider, not with the individuals engaged by the service provider.
Who needs to undergo a Criminal History Screening?
The requirement for a criminal history screening applies to all “engaged persons” of the Service Provider. Engaged persons includes all employees, volunteers, contractors, executive officers, board members and management committee members, whether paid or unpaid, and irrespective of whether or not they will be personally working with persons with a disability.
Service providers have an ongoing obligation to undertake further criminal history screenings of persons engaged by the service provider every 3 years.
Who is exempt?
Service Providers are not required to obtain criminal history screenings for the following persons, who are exempt under the Act:
- Clients;
- Tradespersons who are not employees;
- Persons providing services only to children, who hold a valid Blue Card; and
- Registered Health Practitioners (including chiropractors, dentists, doctors, nurses, occupational therapists, optometrists, osteopaths, pharmacists, physiotherapists, podiatrists and psychologists).
Risk Management Strategies
Under the Act, all service providers must develop and implement a written Risk Management Strategy for persons engaged by the service provider. The purpose of the Risk Management Strategy is to establish practices and procedures regarding persons with a disability which:
- Promote their wellbeing; and
- Protect them from abuse, neglect and exploitation.
Service providers must review and implement their Risk Management Strategy each year.
What about Unfair Dismissal Laws?
The requirements of the Act override a service provider’s obligations under the Fair Work Act 2009 (Cth). It follows that a service provider cannot be sued for unfair dismissal if it terminates an employee who does not comply with the criminal history screening requirements under the Act.
At Delaney & Delaney, we have extensive experience in advising clients in the disability sector regarding their legal obligations. We can help service providers navigate the laws regarding criminal history screenings to ensure compliance with the law.