22 AugCommittee of Management: understanding your role as an employer and when to consider engage an independent industrial relations specialist
Committees of Management have an important role in managing kindergartens. Did you know the Committee are not just a group of parent volunteers who organise working bees or fundraising events? The Committee of Management is the legal employer of the kindergarten employees, and you are responsible for compliance with your workplace and occupational health and safety obligations.
To help you better understand your role as an employer, we chatted with Nick Church, Director of EC Workplace, on what are the potential industrial relations risks you could face in your role, and when to consider engaging an independent industrial relations specialist.
Nick is a seasoned industrial relations practitioner with over 25 years’ experience across various workplace relations roles, including positions with employers, unions and as a management consultant. In 2021, Nick launched EC Workplace, focusing on supporting early childhood services in all areas of industrial relations, human resources and management responsibilities. EC Workplace collaborates closely with ELAA to safeguard our members’ obligations under workplace laws.
What are the biggest risks facing Committees of Management in meeting their industrial relations obligations as employers?
Nick: As a Committee of Management member, you have significant industrial relations responsibilities as the employer of your kindergarten’s staff. One of the most important things to understand is that you’re vicariously responsible for your employees’ actions. This means that if something goes wrong, the liability often falls on you as the employer.
You also have a duty of care to ensure that your employees work in an environment free from health and safety risks. This is not just about preventing accidents—it’s about creating a workplace where staff feel safe and supported.
Under the Fair Work Act 2009, which governs industrial relations in Australia, you are legally required to respond to any employee who makes a complaint or inquiry about their job. Ignoring these responsibilities can lead to serious consequences, such as breaching workplace laws. This could also open the door to worker’s compensation claims if an employee feels their concerns were not addressed.
When should ELAA members consider engaging an industrial relations specialist?
Nick: One of those situations is when a workplace complaint arises. Common complaints might involve employee allegations of workplace bullying or harassment by other employees, or complaints about the actions of their employer.
When an employee lodges a complaint, it’s crucial for the Committee of Management to handle it in a procedurally fair manner. This means ensuring that both the person making the complaint (the ‘complainant’) and the person being accused (the ‘respondent’) have the right to be heard and that this happens in an unbiased and fair manner.
To achieve this, it’s often best to bring in an independent and licensed workplace investigator.
Another scenario is when an allegation falls under the category of ‘Reportable Conduct’ (CLICK HERE for more information). Such allegations must be reported to the Commission for Children and Young People (CCYP), as per their mandatory Reportable Conduct Scheme, and investigated. It is recommended that the Committee of Management engage an independent and licensed investigator to ensure the investigation is conducted in a procedurally fair manner. This approach helps determine the outcome of the allegations and maintains the process’s integrity. The outcome of the investigation must also be reported to the CCYP.
The third scenario involves the need for workplace mediation. Mediation is particularly useful when there is interpersonal conflict between employees or between an employee and their manager. It is a voluntary process based on the ‘facilitative’ model of mediation. In this model, an accredited mediator helps both parties reach a mutually acceptable Statement of Agreement regarding their future interactions, with appropriate oversight from the employer.
What is an independent workplace investigation? When is it warranted? Can you provide examples.
Nick: If a complaint or allegation of misconduct or serious misconduct has been made in your workplace, you may have to launch a workplace investigation to determine the facts based on the available evidence. At EC Workplace, we can provide your service with a suitably qualified and licensed investigator to ensure an independent and unbiased investigation that follows the rules of ‘procedural fairness’ and ‘natural justice’.
Example: How does an independent investigator assist XYZ Early Childhood Service to handle a workplace complaint?
- Employee A lodges complaints about the alleged workplace conduct of Employee B, including alleged aggressive behaviour and breaches of workplace policies. Employee A is the ‘complainant’ and Employee B is the ‘respondent’.
- XYZ Early Childhood Service seeks the support of an investigator via ELAA.
- The investigator interviews the complainant to confirm their complaints.
- The investigator provides the complainant with their understanding of the complaints by providing draft allegations for the review and confirmation of the complainant.
- These allegations are then put to Employee B for their response.
- Employee B may deny the allegations (nb if they admit the allegation then there is no need to further investigate).
- In the case of the complainant denying the allegations the employer authorises a procedurally fair workplace investigation to proceed to determine whether allegations are supported by the evidence. This may include interviewing relevant witnesses and reviewing any other available evidence.
- The investigator then prepares an Investigation Report with recommend findings on the ‘balance of probabilities.
- The recommended findings are considered by the XYZ Early Childhood Service.
- The complainant and respondent are informed of the outcome of the investigation.
What preparation should a Committee of Management do before they reach out for your support?
Nick: I recommend having an initial chat with ELAA’s Member Solutions team and then completing the questions on the consultancy enquiry form HERE. We also recommend that you provide a summary of relevant issues as well as an associated timeline of events (this may be precise or approximate). EC Workplace will then discuss relevant options for your consideration.
