Work health and safety must be a consideration when enrolling students. This means assessing and minimising risks that may arise from the enrolment of a student. The risks may relate to possible injuries to the individual student, other students and/or staff.
The overwhelming majority of students do not have “a history of violence” as defined in the Department’s Legal Issues Bulletin No.40, “Collection, use and disclosure of information about students with a history of violence”. Legal Issues Bulletin No.40 and TAFE Legal Issues Bulletin No. 40A state: “Violence has a wide meaning and is not restricted to physical acts. It will include any behaviour that seriously interferes with the physical or psychological safety and wellbeing of students. Examples include threats to commit violence, aggressive behaviour which is non-contact in nature and may also include offensive, aggressive or abusive language directed to staff or students.”
The Department, through Legal Issues Bulletin No.40, imposes a number of requirements on schools when enrolling a student with a history of violent behaviour. Guidelines issued in 2010 allow public schools to obtain information about students with a “history of violence” from other public schools and relevant agencies including NSW government departments, TAFE and non-government schools.
Legal Issues Bulletin No. 40 should be read in conjunction with Legal Issues Bulletin No. 5, “Student Discipline in Government Schools”.
When a student is identified as having a “history of violence” transfers from one public school to another Legal Issues Bulletin No. 40 states the enrolment “is not to be finalised (that is, student details are not to be entered onto the admission register and the student not allowed to attend) until relevant student records from the previous schools are received and any risk assessment considered necessary is completed, and appropriate strategies including control strategies commenced”. Similarly with transfer from non-government schools, it states “enrolment should not proceed until these matters are resolved and issues concerning the safety of staff and students are addressed”.
It is impossible to properly assess the risks associated with violent behaviour without information about the behaviour and the context of the student’s behaviour.
The risk assessment process requires information to be provided to staff as part of a consultation process. Essentially this means staff should be informed of the risks posed by the violent behaviours, and be consulted in determining the level of risk and the strategies to control the risk. The risk assessment and risk management plan must be completed before the student enrols. Teachers should contribute to and be provided with, the risk management plan prior to the student attending the class.
Federation has previously prosecuted the Department for breaches of the occupational health and safety act. In one case Justice Kavanagh described the process of risk assessment as focusing not only on the needs of the individual students and their behaviour plan, but the risks posed by the behaviours to staff and other students. She said: “Under the Department’s own policy it failed to address the assessment of AL’s attendance at school with a focus on staff safety and as a consequence failed to consider appropriate strategies for safe working.”
Under the Work Health and Safety Act, the Department has the primary duty of care and must manage risks by eliminating or minimising health and safety risks so far as is reasonably practicable. The objects of the Work Health and Safety Act are focused on the principle that workers and other at workplaces should have the highest level of protection against harm to the health safety and welfare. Where it is not possible to eliminate this, action should be taken to minimise risks in order to provide this protection.
This means where schools or colleges believe they need additional resources in order to support a student and manage risks associated with their behaviours they should request these additional resources and assistance and include them in the risk management plan prior to enrolment.
If members at a school believe identified risks cannot be effectively minimised then they may consider using the Department’s Work Health and Safety Issue Resolution Procedures. Members should discuss this with their Federation workplace committee and their Organiser. These procedures are available on the Department’s website and the Federation’s Work Health and Safety Bulletin 3 provides a summary of the process.