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Legal obligations of organisations re Working with Children Check

You must understand your obligations when it comes to the Check. We cover what you need to know and what to do if your worker fails the Check.

Your obligations

As an organisation, you need to understand your obligations. You must:

  • not engage or continue to engage anyone in child-related work who doesn’t have a valid Working with Children (WWC) Check, unless they are exempt under the Worker Screening Act 2020 (the Act) or have lodged an application for a Check that’s currently being assessed (subject to the below)
  • not engage or continue to engage anyone who would otherwise be exempt from holding a valid Check, if they have received a WWC Exclusion and not subsequently received a Check
  • not engage or continue to engage anyone in child-related work who is subject to obligations or orders specified in clause 1 of Schedule 5 of the Act
  • not allow people who are charged with, convicted or found guilty of sexual, violent or drug offences specified in clause 2 of Schedule 5 of the Act to work with or care for children while their application is processed or their Check reassessed
  • not offer the services of any person who doesn’t have a Check to another organisation if the work to be undertaken with that organisation is child-related work
  • know how to check if a person is allowed to work with children while their application is processed by using the Status Checker
  • know how to check if a person has a valid Check by using the Status Checker
  • ensure paid workers doing child-related work have an Employee Check, not a Volunteer Check
  • know when your workers’ Checks expire, and
  • respect and protect workers’ privacy.

What happens if one of my workers fails the Check?

To keep children safe from harm, you must know what to do if one of your workers has their Check suspended or revoked, or is issued with a WWC Exclusion.

Revoked or suspended Check

If your worker’s Check is suspended or revoked, they won’t be able to legally do child-related work for your organisation. We’ll notify you in writing of the suspension or if their Check has been revoked, and advise you on the next steps you and your worker will need to take.

Failing the Check

Your worker will fail the Check if we determine, upon application, that they must be refused a Check in accordance with the Act, or if they pose an unjustifiable risk to the safety of children.

We’ll issue them with a WWC Exclusion, but must give the individual a chance to respond to the proposed WWC Exclusion before issuing a final decision. From there, they may have the opportunity to apply to VCAT for a review or to get a WWC Clearance.

A person cannot apply to VCAT to review the department’s decision if they have at any time been charged with, convicted or found guilty of a category A offence and were an adult at the time of the offence or alleged offence.

Receiving a WWC Exclusion

If your worker receives a WWC Exclusion, we’ll let you know. By law, they must also tell you in writing within seven days of the date they are given the Exclusion. Please note you won’t be told the reason for the WWC Exclusion. Once issued, they’re not allowed to do any child-related work effective from the date listed on the Exclusion.

If your worker isn’t granted a Check after applying to VCAT, they can’t apply for a Check again for five years after the date of the Exclusion, unless their circumstances change.

What if my organisation is non-compliant?

Your organisation has certain responsibilities under the Act, and if you don’t meet these responsibilities or don’t comply, there may be consequences and you might be subject to a penalty. This applies for both individuals and organisations who breach the Act.

For details on what happens when you neglect your legal obligations, see offences and penalties.

Legislation for organisations

At a minimum, organisations must meet their legal obligations to ensure individuals are suitable for child-related work as determined under the Worker Screening Act 2020 (as outlined above in 'Your obligations'). If your organisation would like to have stricter rules in place, they have the right to add further regulations to internal HR policies at their own discretion, subject to other applicable laws.

Legislation updates

Are you unsure whether your knowledge of the Check is up to date? Please read the legislation page to find out what’s new.

Limitation of right to appeal

Under the Act, adults charged with, or found guilty of, the most serious Category A offences which include murder, rape and sexual offences committed against a child have a  limited right to apply to the Victorian Civil and Administrative Tribunal (VCAT) for review of a decision to reject their Working with Children Check application.

This is an important reform in response to the finding by the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) that a person convicted of certain serious offences will always pose an unacceptable risk to children.

Writing your own HR policy

As an employer, you may rely on our 5 statement checklist to determine whether your worker needs a Check. However, you can also create your own HR policy as long as the minimum requirements under the Child Safe Standards, obligations under the Worker Screening Act 2020 and any other applicable laws have been met.

Child Safe Standards

In line with your organisation’s legal obligations, you must also have sound practices in place to check a person’s job references and monitor employee behaviour around children in your care.

Organisations that provide services or facilities for children, or employ children to provide goods or services, whether paid or unpaid usually must comply with the Child Safe Standards that were introduced as part of the Victorian Government's response to the Betrayal of Trust Inquiry and have been recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse.

These are compulsory minimum standards under the Child Wellbeing and Safety Act 2005. The standards help to keep children safe and protect them from harm and abuse.

Specific organisations must also comply with the reportable conduct scheme requirements that came into effect on 1 July 2017. For more information, visit the Commission for Children and Young People website.