Working With Children Check

Attention members in ADHC, Community Services and Juvenile Justice

The PSA has obtained urgent legal advice in relation to the Working With Children Check. That advice is reproduced below:

I am asked to advise upon three questions:

1. Whether the onus is i on the employee to “pay” the $80.00 fee;
2. Further, while there is concern that this may be viewed as an employee related cost and as such may unfavourably intersect with the wages policy, it could possibly be argued that payment for the wwcc is not a benefit to the employee and is therefore not an employee related cost;
3. Finally, advice should also be sought on possible consequences for members if the PSA were to issue a direction that they withhold payment until the matter is resolved.

I advise as follows:

1. The regulations are silent as to who carries the responsibility to pay the $80.00 application fee, but by implication it is paid by or on behalf of the worker who applies for the clearance. The clearance is transportable from one employer to another.
2. Assuming that the payment of the application fee is viewed as an employer related cost (and it probably is) the amount spread over 5 years (the period of the clearance) is so insignificant that it will have no practical effect upon other claims.
3. Such a direction would be unwise. Regulation 9 prohibits an employer from continuing to employ a worker in child-related work if the worker does not possess a clearance.

A far better course is to advise members to claim reimbursement of $80.00 fee from the employer and if a significant number of cases arise where a refund is refused, a dispute should be notified. Of relevance in that dispute will be the relative position of existing employees and new employees. If the issue is not resolved at conciliation, the alternative for going forward by award application or unfair contract proceedings can be considered.