Services are not responsible for repaying any fee relief funding provided to families who have incorrectly asked for it at their service. The NSW Department of Education will monitor access to fee relief through data collections in 2023.

For 2023, a single funding allocation adjustment is planned. Any adjustments to funding will be applied by the end of 2023 to reflect variations in enrolment numbers, using data from a representative week in early 2023 (dates are yet to be confirmed). Adjustments will be made based on data (from the representative week) that the NSW government receives from the Commonwealth government.

Consideration of improved data linkage is currently being explored through the development of the Digital Hub and discussions with the Commonwealth Government.

For children transitioning to school in 2023, a Transition to School Statement (which would be completed in 2022) is recommended, but not compulsory. However, for early childhood education and care services to access Start Strong funding next year, it will be a requirement to complete Transition to School Statements (in 2023) for each child who will be transitioning to school in 2024.

Part of this requirement is use of the Department’s Transition to School Statement, with the Transition to School Digital Statement as the preferred method. Where use of the Digital Statement is not possible, the PDF version can be completed. Copies of Transition to School Statements must be retained for funding compliance purposes.

The Start Strong guidelines can be found here and you can also contact the Start Strong team at ecec.funding@det.nsw.edu.au for further clarification around these guidelines if needed.

The current Guidelines do not stipulate that you cannot increase your fees.

Although the objectives of this fund includes attempting to stop/delay services from increasing their fees (and thus can be regarded as Defaulting on the funding agreement), services might still adjust fees if it is due to reasonable increases in operating costs (eg payroll, real estate costs, insurances) as long as services can produce evidence to support such fee increases are retained and provided.

Similar to the acquittal process for the “old” Start Strong funding, you would provide a spreadsheet outlining the amount received and how they are spent, plus for example:

• enrolment and attendance reports
• tax invoices of expenditures

ACA NSW has asked for collaboration with the NSW Department of Education to produce templates and tips to provide further guidance.

Must I use the new funding knowing that a child is not ready for a preschool program?

Given that the official guidelines does not stipulate the exact contents of your preschool program, services are “effectively expected” to produce a preschool program to suit those eligible children.

Services may/may not have the option to opt-out of receiving such funds for specific children. That said, parents may ultimately discover (by comparing statements with other parents) that they are not receiving such benefits which in turn may create a commercial risk.

What if a child benefits from the (new) Start Strong funding and Affordable Preschool funding but does not go to school the next year?

The official guidelines only outlines the eligibility of the child by age as of 31 July of that year. It does not limit the tenure of funding.

The August 2021 representative week was used to allocate the initial funding allocations under the 2022/23 Start Strong Long Day Care program. In November 2022, top-up payments were made to using the updated data from the representative week from May 2022.

Data from August 2021 has no impact on the funding allocation for 2023 Start Strong for Long Day Care program. 

To be considered eligible for funding under 2023 Start Strong for Long Day Care, a provider’s service must meet the Service Eligibility Criteria under Section 2.1 of the program guidelines, including:

• deliver a quality early childhood education program to children aged 4 and above, that is:
  • delivered by a qualified early childhood teacher (ECT) in accordance with the requirements under the National Quality Framework, and
  • using the Early Years Learning Framework

While the National Law and Regulations do not define the word delivered, the department considers the delivery of the early childhood education program to mean that it is:

• Developed and/or delivered by an ECT provided that the service meet their legal obligations under National Law and Regulations.

An individual can be counted as an ECT if they:

• hold an approved early childhood teaching qualification, OR
• hold a former approved early childhood teaching qualification that commenced before 1 January 2012, OR
• hold a qualification that ACECQA has determined to be an equivalent early childhood teacher qualification, OR
• hold a qualification that ACECQA has assessed as equivalent to an approved early childhood teaching qualification.

More information on qualifications can be found here. You may also search the NQF approved qualifications list at ACECQA’s website.

Where a service may have a waiver in place, they will continue to be eligible. The department does not intend penalise services through changes to  Start Strong funding where there are gaps in a preschool program being delivered by an ECT.

Section 3.3 indicates Approved Providers must accept the Terms and Conditions in ECCMS before 31 January 2023 or a specified date as communicated by the department.

13 January 2023 was specified by the department to ensure funding, particularly fee relief funding, is paid early Term 1 2023. If Approved Providers accept by 31 January 2023, their payment will be progressed later in Term 1.

If you have an actual, perceived or potential conflict of interest in connection with the funding received from the Department of Education, then it is important to ensure that there is a Conflict of Interest Register in Place. 

Conflicts of Interest, can be 'financial' and 'non-financial'. Non-financial interests refer to an interest that can arise from things such as personal relationships, beliefs, or involvement in social and cultural activities. Financial interest refers to a financial gain or loss for the company with whom a workplace participant is closely assosicated e.g. a friend or relative in the Department of Education's funding team, or distributing funding to a family member enrolled in your service.It is essential for service's to declare any conflicts of interest whether they are actual, potential or perceived.

The Department of Education have created a Conflict of Interest Register Template. ACA NSW also offer a NSW Conflicts of Interest Policy. 

For employees who fall under the Children’s Services Award (see Children Services Award's Clause 14.2 Progression for children’s services employees):

• Progression from one level to the next within a classification is subject to an employee meeting the following criteria:
  1. competency at the existing level;
  2. 12 months experience at that level (or in the case of employees employed for 19 hours or less per week,24 months) and in-service training as required; and
  3. demonstrated ability to acquire the skills necessary for advancement to the next pay point.

For employees who fall under the Educational Services (Teachers) Award (see Educational Services (Teachers) Award 2010: Clause 13.2 Recognition of previous service):

• Service as a part-time teacher will normally accrue on a pro-rata basis according to the percentage of a full-time teaching load undertaken in any year; provided that where the hours are more than 90% of a full-time load, service will count as a full-time year.
• In the case of an early childhood/preschool teacher, the following will count as service:
  1. teaching experience in preschools, kindergartens, multi-purpose centres, early intervention services, long daycare centre and other similar services;
  2. teaching experience of children from four to eight years (or in the infants department) of a school registered and/or accredited under the relevant authority in each state or territory;
  3. service as a lecturer in early childhood education or child development, as a child development officer or equivalent; and
  4. service as a diploma qualified childcare worker, at the rate of one year for every three years service up to a maximum of four years.

If an employee who is at least 18 years old does not give the period of notice required under the Children Services Award's Clause 11.1's paragraph (b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.

If the employee is under the age of 18 and provided no minimum notice period, the employer is not entitled to hold one week’s wages from the employee.

If an employee who falls under the Educational Services (Teachers) Award 2010 does not give the period of notice required, then the employer under Clause 11.3(b) may deduct from wages due to the employee under this award an amount that is no more than two weeks’ wages for the employee.

An employee under the Children Services Award's Clause 11.1 Notice of termination by an employee has to give the following minimum notice period when resigning:

Employees who fall under the Educational Services (Teachers) Award 2010 must provide 4 weeks’ notice when terminating their employment. This should also be outlined in their employment agreement contracts.

A five year trained teacher means a teacher who has completed a degree in education or early childhood education that requires four years of full-time study at an Australian university and in addition has completed a postgraduate degree at an Australian university requiring at least one year of full-time study, or the equivalent, as determined by the National Office of Overseas Skills Recognition, or the relevant State or Territory teacher registration authority, or in the case of early childhood teachers the relevant licensing and accreditation authority. (See Educational Services (Teachers) Award 2010's Clause 3. Definitions and interpretation.)

An Early Childhood Teacher (ECT) employee who is appointed as a Director will be paid an annual allowance in accordance withEducational Services (Teachers) Award 2010's Clause 15.1 Director’s allowance, based on a percentage of the standard rate and calculated on the basis of the number of places in the centre for which they are responsible where:

1. Level 1 refers to a centre with no more than 39 places;
2. Level 2 refers to a centre with 40–59 places; and
3. Level 3 refers to a centre with 60 or more places.

Employees responsible for programming and planning for a group of children will be entitled to a minimum of two hours per week, during which the employee is not required to teach or supervise children or perform other duties directed by the employer, for the purpose of planning, preparing, researching and programming activities.

Please refer to the relevant award, that is Children Services Award's Clause 21.5 Non-contact time or Educational Services (Teachers) Award 2010's Clause B.3.2 Non-contact time.

According to the Fair Work Ombudsman, employees have to be paid the right pay rate for all time worked, including time spent:

• training
• in team meetings
• opening and closing the business
• working unreasonable trial shifts.

Unless staff meetings are not mandatory for employee’s and can elect to attend or not on their own decision.

There are two types of Employment Agreement Contracts employers issue to employees covering parental leave. The two different contracts are Not True Fixed Term contracts and True Fixed Term contracts.

1. True Fixed Term contract means the employee must work the whole duration stated in the contract. If the employee on parental leave chooses to return back to work earlier and you dismiss the employee covering the leave, the remainder of the duration in the contract will need to be paid out.
2. Not True Fixed Term contract means the employee can be dismissed at any time of the duration period stated in the contract if the employee on parental leave choses to return back to work earlier than expected.
3. In the Not True Fixed Term contract you will replace commencement date to duration and outline (commencement date) unless terminated accordance in the contract (end date).

PLEASE NOTE: It is a business decision in what type of employment contract (Not True Fixed Term or True Fixed Term) you choose to issue to the employee covering parental leave. However, if you believe the employee on parental leave may return back to work earlier than 12 months it will be best to issue the Not True Fixed Term Contract.

Regarding the letter of offer (Not True Fixed Term) to the candidate who will be replacing the employee during the parental leave period, you need to issue and state the following points below. This letter should be worded and explained very clearly of the occurrence in the next 12 months.

• the Duration of the role (dates)
• Position
• Duties
• Outline the occurrence if the employee returns back to their employment or if they return back to work earlier than expected.
• This document should be signed and dated by both parties (employee and employer) accepting the terms in the letter during the duration outlined.

The term ‘personal/carer’s leave’ effectively covers both sick leave and carer’s leave. Employees get:

• 10 days each year for full-time employees
• 10 days each year for part-time employees (PLEASE NOTE: A High Court application is underway to challenge the Federal Court's interpretation made on 21 August 2019 about the amount of leave entitlements for part-time employees.)

An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service and accumulates from year to year.

Personal/carer’s leave continues to accrue when an employee takes a period of paid personal/carer’s leave or paid annual leave. Personal carer’s leave and compassionate leave will not accrue on unpaid leave unless it is community service leave or it is provided for in an award or agreement.

An employee may take paid personal/carer’s leave:

• if they are unfit for work because of their own personal illness or injury (including pregnancy-related illness), or
• to provide care or support to a member of their immediate family or household, because of a personal illness, injury or unexpected emergency affecting the member. A member of the employee’s immediate family means a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of an employee; or a child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.

Further information is also available via the Fair Work Ombudsman, including unpaid COVID-19 pandemic related leave and annual leave flexibility in Awards since 8 April 2020.

An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service and accumulates from year to year.

Further information of interest may be available via the Fair Work Ombudsman website.

Employees who are employed under the Children’s Service Award 2010 are entitled a meal break & rest pause:

• Meal Break - An employee will not be required to work in excess of five hours without an unpaid meal break of not less than 30 minutes and not more than one hour. Provided that employees who are engaged for not more than six hours continuously per shift may elect to forego a meal break.
• Rest pauses - An employee working four hours or more on any engagement will be entitled to a paid rest period of 10 minutes and Provided that an employee working for seven hours or more will be entitled to two such paid rest periods of 10 minutes.

Employees who are employed under the Educational Services (Teachers) Award 2010 are entitled to a meal break:

An employee will be entitled to an unpaid meal break of 30 consecutive minutes no later than five hours after commencing work. This clause does not apply to teachers who are covered by the provisions of Schedule B—Hours of Work and Related Matters—Teachers employed in early childhood services operating for at least 48 weeks per year.

Note: Where an employee is required to remain on the employer’s premises, the employee will be entitled to a paid meal break of not less than 20 minutes or more than 30 minutes. This paid meal break is to be counted as time worked.

No, employees are paid according to the highest qualification that they hold.

In accordance with Children's Services Award: Clause B.1.4 Level 3 (b) Progression, an employee at this level is entitled to progression to Level 3.3. An employee at this level who has completed an Australian Qualifications Framework (AQF) Diploma in Children’s Services or equivalent, and who demonstrates the application of skills and knowledge acquired beyond the competencies required for AQF Certificate III in the ongoing performance of their work, must be paid no less than the rate prescribed for Level 3.4. Such an employee would also include an ‘E’Worker as previously classified under the Child Care (Long Day Care) WA Award 2005 as a Children's Services Employee (CSE) Level 3.

You cannot direct employees to take annual leave unless it is “excessive leave”.

An employee is considered to have an excessive leave balance if:

• the employee has accrued more than 8 weeks; or
• for shift workers, 10 weeks.

Direction for an employee to take annual leave must be in writing and:

• Cannot result at any time in the employee’s remaining paid annual leave balance being less than six weeks considering other paid annual leave arrangements.
• Must not require taking paid annual leave of less than one week.
• Must not require the employee to take a period of annual leave beginning less than eight weeks or more than 12 months, after the direction is given; and
• Must not be inconsistent with any agreed leave arrangement.

Yes. This operates just like any other situation where the need for casual staff decreases.

It’s best practice to keep casual employees informed and notify them of what options they might have and when work might pick up again.

Yes, you may ask your employees to consider other arrangements, which will be subject to their agreement. This may involve moving a full-time employee to part time or a part-time employee to lesser hours.

The best approach is to meet with the employee(s) and explain the situation, including that you are looking for alternatives to ensure the viability of the business going forward.

An agreement could be for a set period, open ended or contingent on the cessation of the current COVID-19 pandemic. This would require a formal variation (re-contracting) to their employment contracts, meaning a formal written agreement to move them from full-time to part-time employment. It might also have a reversion provision triggering when it moves back to full-time.

However, you SHOULD NOT introduce the prospect of redundancies as a potential ramification should an agreement not be reached. This could amount to unlawful adverse action and expose you to legal liability.

If you decide that redundancies are required, it is important to remember there are three requirements for a genuine redundancy to best avoid an unfair dismissal claim:

1. The employee must not be able to be usefully employed
2. There must be a stoppage of work and;
3. The stoppage must have been caused by reasons that the employer cannot reasonably be held responsible for.

Usefully employed: Some exploration is required to ensure that there is no work that an employee can do that is within their skill and competence. Useful work does not have to be the work the employee usually performs but must be within their competence to perform and must be genuinely productive work. That is, the work must provide a 'net benefit' to the employer.

Stoppage of work: To constitute a stoppage of work, a business cannot merely slow down its operations or reduce certain staffing levels. Instead, there needs to be either:
-A total cessation of all work or
-A cessation of work in an identifiable and defined function/s or part of the business.

The stoppage must have been caused by reasons that the employer cannot reasonably be held responsible for: However, to attract the benefit of The Fair Work Act section 524(1) (c) the employer, in effect, must have little or no alternative in the circumstances to cease work.

Where the Government has 'shut' an industry or part of an industry and you are in this industry then that will most likely trigger a 'stoppage' outside of your control.

If the requirements above are met then you are not required to make payments to the employee for the relevant period.

Please do not make a stand down decision lightly. It would be customary to explore all available options before enacting a stand down without pay such as the taking of accrued annual or long service leave.

The employee should be directed to remain at home and self-isolate. However, if they can get tested and cleared by a medical practitioner as COVID-19 free and fit for work, they may return to the workplace.

They may not qualify for testing which will mean they should remain away from the workplace for a period of at least 14 days.

In this case the employee will be eligible for Unpaid pandemic leave, employee can access up to 2 weeks’ unpaid leave (or more by agreement with their employer) if they're prevented from working.

Or Annual leave at half pay can be taken under a mutual agreement between the employee and employer. This needs to be in writing and kept on record.

Unpaid pandemic leave and annual leave changes, under Schedule X of the Children's Services Award 2010, does not apply to Early Childhood Teachers who fall under the Educational Services (Teachers) Award 2020.

The starting point for answering this question is to assess an employee’s contract of employment. 

For new employees or new contracts, employers could require vaccination as a pre-condition of employment, thereby mandating vaccination.

 This will then serve to lawfully compel vaccination in order for employees to work.

 There may be some limited instances where employees can legitimately refuse to be vaccinated pursuant to anti-discrimination laws (discussed further below), however, broadly speaking, once the obligation to become vaccinated is expressly recorded in a contract, this obliges the employee to become vaccinated.

Absent a Public Health Order or express contractual right obliging employees to become vaccinated, vaccination can be made a pre-condition of working where the requirement to be vaccinated against COVID-19 amounts to a “lawful and reasonable direction”.

Employers have the right to issue “lawful and reasonable” directions to their employees, and employees are under an obligation to comply with such directions. 

What is considered lawful and reasonable will typically require an examination of the relevant factual circumstances. It will be very context specific. What may be considered a lawful and reasonable direction in one case may not necessarily be considered a lawful and reasonable direction in another set of circumstances. 

A recent Fair Work Commission (Commission) decision addressed the introduction of mandatory flu vaccinations by Goodstart Early Learning (Goodstart). Goodstart was involved in the provision of childcare services. In determining whether a mandatory influenza vaccination policy (which contained an exemption for mandatory vaccination on medical grounds) was reasonable, the Commission considered a range of relevant factual matters including: 

1. government recommendations
2. the need to ensure safety and welfare of employees and those using the employer’s services
3. the use of other control methods (which were found to be difficult to implement given the age and lack of maturity of children in care – hence the importance of employee vaccination as a control measure)
4. whether the vaccination policy was reasonably and appropriately adapted (taking into account the fact that there were medical exemptions permitted)
5. consultation and
6. the logistics of implementation (including the time provided to achieve compliance or raise an objection).

In finding that Goodstart’s requirement for mandatory vaccination was reasonable, the Commission stated as follows: 

Goodstart operates within a highly regulated environment, which creates statutory obligations beyond that of a normal employer; safety and quality care are of paramount importance and this is the environment in which Goodstart’s policy must be scrutinised. The childcare industry faces unique organisational challenges which make other controls less effective, or impracticable. I am satisfied that it is reasonable for a childcare provider to mandate flu vaccination for those staff who deal with children on such a regular basis, and in such close proximity. While the policy requires mandatory vaccination, it does allow for medical exemptions and Goodstart covered the expenses associated with the policy and provided extended timeframes for Ms Barber to gain compliance. I am satisfied that ‘a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy.’ [346] 

Having regard to the above and existing case law on lawful and reasonable directions, the types of factors that will determine whether an obligation to become vaccinated is lawful and reasonable include: 

1. The nature of the workplace concerned, taking into consideration the extent to which employees need to work in public facing roles or otherwise have contact with the public.
2. Whether social distancing is practically possible in the working environment (amongst both employees and customers/clients).
3. The availability of other controls and their effectiveness, including:
   • masks
   • regular sanitisation
   • regular COVID-19 testing (including rapid or non-rapid testing) and
   • employer implemented contract tracing.
4. The extent to which the workplace serves vulnerable persons (including the elderly or persons with a disability).
5. The extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community
6. Vaccine availability.
7. The extent to which vaccination can improve confidence or engagement with customers. By way of example, for airlines, having vaccinated workers may be seen as a key trigger to generate the confidence necessary to have passengers return to planes. The same might apply for some hospitality venues.

Naturally, there is no one-size-fits-all answer to whether a business can mandate vaccination and we urge employers to seek advice on their specific circumstances. 

Having said that, as a general proposition: • employers with high levels of interaction with the public in close proximity (eg. hospitality venues, some health care providers and passenger transport services) • employers servicing vulnerable persons (eg. aged care, disability care and child care - where the children cannot themselves be vaccinated) and • employers with limited ability to implement other risk minimisation controls, are more likely than not to be able to introduce mandatory vaccinations.

For employers considering making vaccinations mandatory, we recommend employers immediately do the following with respect to the existing cohort of employees: 

1. Conduct an assessment of the workplace to determine the risk factors present and whether, taking into consideration all of the relevant circumstances of the workplace, the work performed and the risk factors present, mandatory vaccination will be a reasonable measure to introduce to better manage risk.
2. If the employer determines that mandatory vaccination is unlikely to be lawful and reasonable given the circumstances of the employer’s business, the employer should consider what other measures could reasonably be implemented to manage risk, including measures such as:
   • encouraging high rates of voluntary vaccination by way of incentives or special paid leave to attend vaccination appointments
   • regular surveillance testing (discussed below)
   • additional PPE and social distancing measures at work and
   • working from home with alternate roster systems to ensure fewer people are at the workplace at any given time.
3. If it is likely that mandatory vaccination will be a lawful and reasonable direction to give to staff then the employer should:
   • Prepare a draft vaccination policy which at the very least will need to cover the following issues:
     • the safety reasons/rationale for this approach
     • which departments or roles within the business are required to be staffed with employees who have been vaccinated
     • the timeframe for these employees to receive their first dose and thereafter be fully vaccinated
     • whether vaccination appointments will be allowed/accommodated during work time (recommended for mandatory vaccination)
     • what type of evidence/proof of vaccination will be acceptable to the employer
     • any exemptions that may be applied to the requirement, what will be considered a legitimate reason for not being vaccinated, and how the employer will expect the employee to prove this
     • ongoing vaccination measures required such as regular booster shots, when these will be due, and evidence required and viii the consequences for failing to comply with the policy.
   • Engage in an extensive period of consultation with employees about the draft vaccination policy allowing employees to have an input and providing employees the opportunity to raise any concerns and have these concerns genuinely addressed by the employer.

Employers should also be aware there is a risk that allegations of discrimination may arise if an employee is terminated for failing to be vaccinated, when their reasons for not being vaccinated stem from protected attributes, including a serious medical condition (disability) or religious reasons. This is addressed separately below.

Under Australia’s discrimination laws, it is unlawful to treat a person less favourably on the basis of protected attributes, including gender, race, disability or age. 

Mandating vaccinations will not result in “direct discrimination” as an employee’s decision to refuse vaccination is not an attribute protected by any Australian discrimination laws. 

However, “indirect discrimination” is also prohibited by discrimination laws. 

This is where there is a rule or policy that is the same for everyone but has an unfair effect on a group of people who share a particular protected attribute

 Whether indirect discrimination will be unlawful in the context of mandatory vaccinations will depend on: 

• Whether groups of people with an employee’s particular attribute are in fact less able to comply with the requirement imposed by the employer than the broader population. For instance, persons with some disabilities or of particular ages may simply be unable to obtain vaccination safely.
• Whether the requirement imposed is reasonable in the circumstances.

Whether a court considers it ‘reasonable’ for an employer to mandate COVID-19 vaccinations is likely to be highly fact dependent, considering the workplace and the employee’s individual circumstances as discussed above. 

One way to ensure that a mandatory vaccine policy does not indirectly discriminate against any employees is to develop a policy that has appropriate exceptions in respect of at least: 

• persons for whom the vaccine has not been approved for use (this minimises age discrimination issues)
• those with medical or other contraindications (that is, persons whose medical conditions mean that vaccination may be harmful for them).

Health or Medical exemptions

Where an employee seeks to refuse to be vaccinated on medical grounds, the employee should provide appropriate medical evidence for this. 

Where an employee does establish that they have a medical exemption, employers should consider whether: 

• having an unvaccinated worker can be accommodated, given that the majority of employees will be vaccinated
• other measures can be adopted in conjunction with the employee being unvaccinated (for instance, a periodic testing regime)
• it is possible to seek alternative duties for that person.

‘Inherent requirements’ defence

In the limited circumstances where an employer can demonstrate that being vaccinated against COVID-19 constitutes an inherent requirement of the role (for example where the employee works in hotel quarantine or in aged care) and that accommodating an unvaccinated employee’s medical or other attributes will cause ‘unjustifiable hardship’ to the employer in these circumstances, then the employer may also have a defence against a general protections claim, unlawful discrimination claim or unfair dismissal claim if the employment is ceased on the basis that the employee is unvaccinated. 

However, employers should seek specific advice on their circumstances before dismissing an employee on these grounds.

In most cases, we anticipate employers accommodating the few employees who can genuinely refuse vaccination based on protected attributes such as medical grounds or religious belief should be sufficient to otherwise have a policy applied.

The response to this question will depend on whether or not the Privacy Act 1988 (Cth) applies to the business.  

The Privacy Act applies to businesses with an annual turnover of more than $3 million, as well as to certain other types of businesses regardless of turnover (such as public sector agencies). 

Where the Privacy Act applies, vaccination records are a type of medical record and constitute ‘sensitive information’ so are afforded a higher degree of protection under the Privacy Act, and there are stringent requirements relating to the collection and use of such information. 

If a business is not governed by the Privacy Act (for example, you are a small business with an annual turnover of less than $3 million), there are less stringent requirements. 

It is important that businesses determine whether or not the Privacy Act applies to them, as it will dictate the legal position applying to them.

There is no legal prohibition on an employer asking an employee to voluntarily disclose their vaccination status. 

Where the Privacy Act applies, an employer will not contravene the Privacy Act provided that: 

• an employee voluntarily discloses information about their vaccination status to you
• you do not ‘collect’ that information ‘for inclusion in a record or generally available publication’.

For example, there is no issue if you simply wish to know their status but not keep a record of it.  There would also be no issue if you requested to ‘sight’ evidence of an employee’s vaccination status (for example, as a condition of them entering premises under a Public Health Order). 

However, the position is different if you plan on recording the information (eg. recording it in a list or database) or retaining documentary evidence of the person’s vaccination status (eg. a photocopy of their vaccination record). 

If you are not regulated by the Privacy Act,you will be able to collect records relating to an employee’s vaccination status where they provide it voluntarily.

If you are regulated by the Privacy Act 1988 (Cth), where a record of an employee’s vaccination status is to be kept you must ensure that you comply with the Australian Privacy Principles (the APPs). 

Under APP 3, there are two scenarios where you will be permitted to collect vaccination records: 

Scenario 1: Where the collection of the information is ‘required or authorised’ by or under an Australian law or a court/tribunal order.

This scenario will apply where public health orders or another type of Commonwealth or State/ Territory law authorises or requires employers to collect such records.

 In order for a law to authorise an employer to collect the record, the law must provide express permission to do this.  

At this stage, the Public Health Order in NSW specifically permits employers in the construction sector to collect records about an employee’s vaccination status where that employee lives in one of the affected LGAs in Sydney (often referred to as areas of concern). The Orders relating to the aged care sector will likely also include a similar authorisation. 

Scenario 2: Employers are permitted to collect employee vaccination records where the individual employee consents to the collection of the information and the information is ‘reasonably necessary’ for one or more of the organisation’s functions or activities.

Consent must be freely given and constitute valid consent. This means that employers cannot pressure or intimidate employees to provide information about their vaccination status.  In order to obtain genuine consent, employers should provide employees with adequate information about why it is requesting the information and what it will be used for (including whether the information will be disclosed to any third parties). 

Employers should advise employees of the following: 

• the purpose of collection
• the consequences if the employee refuses to consent to the collection
• if the collection is required or authorised by law
• how you may use the information
• that your privacy policy details how employees can complain about any Privacy Act breaches and how they will be handled by your business
• who you might disclose the information to
• whether the information will be disclosed to overseas recipients.

Employers should provide employees with this information before they collect data about vaccination status or, if this is not practicable, as soon as practicable after collection occurs. 

Even where employees are happy to give you their vaccination records, you may still contravene the Privacy Act if you collect such information and store it in any record. In order for the collection to be lawful, you will need to demonstrate that the collection of the information is reasonably necessary. 

Therefore, the purpose for requesting the information is relevant. If you are wanting to obtain the information on a ‘just in case’ basis, it is unlikely you will be able to demonstrate that the collection is reasonably necessary. 

Employers may be able to argue that it is reasonably necessary to collect these records to implement appropriate control measures and comply with their WHS obligations (for example, to implement greater control measures in respect of unvaccinated employees). However, whether such an argument would succeed will likely depend on the health and safety risks in the relevant business/industry.  Another reason might be to comply with customer requirements (for example, where a customer requires a business to only send vaccinated employees to them eg. a trade based employee performing work on a client site).

If your business is regulated by the Privacy Act and you intend to collect or retain a record of the information disclosed to you, at this stage the answer for most businesses is no.  Employers are only able to require/compel an employee to provide information about their vaccination status (against their wishes) if the collection of this information is required or authorised by an Australian law. 

As stated above, the Public Health Order in NSW specifically permits employers in the construction sector to collect records about an employee’s vaccination status where that employee lives in one of the affected LGAs in Sydney. The orders relating to the aged care sector will likely also include a similar authorisation. 

The Public Health Orders are constantly changing and the position is likely to continue to change in the future.

If you do not intend to collect and record the information, you will be able to require employees to disclose their COVID-19 vaccination status or provide proof of their vaccination status if the direction is lawful and reasonable, without Privacy Act issues arising. 

Of course, where vaccination has been mandated by the employer in order for an employee to work, the employee’s refusal to provide evidence of vaccination may have consequences for the employee’s ongoing employment and the employer should obtain advice about the relevant circumstances to ascertain whether a basis exists to cease the employment

Firstly, it is important to review the Public Health Orders regularly as they are changing by the week and sometimes by the day. The Public Health Orders now prohibit certain employees entering or remaining at some work sites unless they have some vaccination status and they also prohibit the occupiers of these work sites from allowing such employees from entering or remaining on such work sites. 

If an employee is required to be vaccinated by a Public Health Order, but is not vaccinated, two courses of action arise: 

1. An employer can direct the employee to become vaccinated in order to work. This will particularly be relevant where the need to be vaccinated is likely to be for an ongoing period. The direction is likely to be lawful and reasonable, given the Public Health Order in place. Employees can be disciplined or ultimately have their employment terminated if they are unable to work because they have failed to comply with the direction.
2. The employer may be able to withhold pay until the employee becomes vaccinated. This will depend on the circumstances. For instance:
   • If, because of their vaccination status, the employee is unable to leave their local government area or cannot enter their work premises to commence work, there are likely to be good grounds to withhold pay on the basis that the employee simply cannot present for work. If the employee cannot present for work, the obligation to pay does not ordinarily arise for most employers.
   • On the other hand, if the employee can present to work but is unable to perform some of their work because of their vaccination status, then the employer’s ability to withhold pay will depend on the contract of employment in place, the quantum of work activity that cannot be performed and the availability of alternative work.

Many contracts of employment contain a warranty or condition which requires employees to comply with all legal requirements necessary to perform their role. This is a requirement which employees would be unable to satisfy if they do not comply with relevant health orders. 

If contracts are silent as to this matter, it is possible that such obligations can also be implied (for instance, there are cases that provide that employees must be ready, willing and able to perform work as directed). Where an employee has failed to meet Public Health Order requirements on vaccination, they may be unable to perform some elements of their role, which may disentitle them to payment. 

However, the terms of each employee’s employment contract will vary as will the types of scenarios that arise in this second scenario. Employers should seek individual advice about their circumstances before withholding pay.

Included in the Children Services Award Clause 23 - Overtime and Penalty Rates

• A full-time employee is paid at overtime rates for any work performed outside of their ordinary hours of work
• A part-time employee is paid at overtime rates in the circumstances specified in 10.4(f) [A part-time employee who agrees to work in excess of their normal hours will be paid at ordinary time for up to eight hours provided that the additional time worked is during the ordinary hours of operation of the early childhood service. No part-time employee may work in excess of eight hours in any day without the payment of overtime paid for at the rates prescribed in clause 23—Overtime and penalty rates]

Full-time and Part-time employees will be paid at an overtime rate of: 150% of the hourly rate (plus any all-purpose allowance payable) for the first 2 hours and 200% of the hourly rate (plus any all-purpose allowance payable) after 2 hours

• A casual employee is paid at overtime rates in circumstances specified in 10.5(e) [For work in excess of eight hours on any one day or shift or 38 hours in any one week, a casual employee will be paid in accordance with the penalties specified in clause 23—Overtime and penalty rates] 

Casual employees will be paid overtime at the rate of 175% of the hourly rate (plus any all-purpose allowance payable) for the first 2 hours and 225% of the hourly rate (plus any all-purpose allowance payable) after 2 hours.

Where an employee is required to remain at work after their normal finishing time due to an emergency situation, they will be paid at the ordinary rate for the employee's classification provided the emergency overtime does not exceed one hour per week. An emergency situation may include a natural disaster affecting a parent, another employee or the centre/service, the death of a child or parent, or a child requiring urgent hospitalisation or medical attention.

• Both the employee and employer may agree in writing should the employee with to take time off instead of being paid for a particular amount of overtime that has been worked. The agreement must state; .

1. the number of overtime hours to which it applies and when those hours were worked
2. that the employer and employee agree to the employee taking time off instead of being paid for the overtime 
3. that if the employee requests,the employer must pay the employee for overtime covered by the agreement but not taken as time off, as the overtime rate applicable to that overtime when worked 
4. that any payment mentioned (above) must be made in the next pay period following the request 

• The period of time off is the same as the number of overtime hours worked e.g. an employee who has worked 2 hours is entitled to 2 hours' time off
• Time off must be taken within the 6 months after the overtime is worked and at a time agreed by the employee and the employer 
• If time off for overtime that has been worked is not taken within the period of 6 months, the employer must pay the employee for the overtime in the next pay period following the 6 months, at the over time rate applicable to the overtime when worked 
• The employer must keep a copy of the agreement under clause 23.3 as an employee record 
• An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.
• If on termination of the employee'[s employment, time off for overtime worked has not been taken, then the employer must pay the employee for the overtime at the overtime rate applicable to the overtime worked.

An employer or employee may decide to cancel a training contract, whatever the reason, there are processes you must follow to cancel.

1. Review the Traineeship Contract: Carefully review the traineeship contract to understand the terms and conditions, including any provisions related to cancellation.

2. Notification: The employee (trainee) should inform the employer of their decision to cancel the traineeship contract. This notification should be in writing and include the reasons for cancellation and the proposed date of termination.

3. Notice Period: Determine if the contract specifies a notice period that the employee must adhere to when cancelling. The employee is required to give notice within the specified timeframe outlined in the contract.

4. Notice of Cancellation Form: The employee completes and submits a Notice of Cancellation form to the employer. This form is available from Training Services NSW and must be signed by both parties.

5. Confirmation of Cancellation: Once the Notice of Cancellation form is received from the employee, the employer confirms the cancellation of the traineeship contract in writing. Details regarding the termination date and any final arrangements are provided.