Many National Disability Insurance Scheme (NDIS) support providers do not realise the risk involved in navigating the disability support industry and its underpinning framework. This is particularly relevant as NDIS support providers are often also employers.
The NDIS is a government-run program designed to assist people with disabilities. Recently, NB Lawyers – Lawyers for Employers, have guided several NDIS support providers to manage employment issues relating to performance and conduct concerns within the workplace. This includes assisting employers with the NDIS Commission, the governing body of the NDIS, as a result of the employee’s conduct.
In some situations, even an employee’s alleged conduct must be reported to the NDIS Commission, despite the conduct not being proven. The National Disability Insurance Scheme Act 2013 (Cth), section 73Z states a reportable incident (being one which must be reported to the NDIS Commission) is:
Of the above matters, unintentional restrictive practices appear to be the most common. There are five (5) types of restrictive practices, being:
Should an employee have incorrectly performed their duties and (as an example), restricted an NDIS participants movement to their home, this would be an environmental restraint and it would be necessary to report this conduct to the NDIS Commission. This conduct may also warrant disciplinary action against the employee. Due to this, the NDIS support provider should consider their available legal options.
In that regard this may mean:
The framework underpinning the NDIS is relatively new, being established in early 2018. The NDIS is regulated by one piece of Federal legislation, eleven (11) sets of rules, and five (5) guidelines and five (5) overarching policies. The National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth), rule 17 states:
A reference in this Part to a reportable incident that has occurred includes a reference to a reportable incident that is alleged to have occurred.
In practical terms, should there be an allegation of the above types of conduct, even though not founded or proven, the conduct must be reported to the NDIS Commission as a notifiable incident. There are strict timelines and reporting obligations applicable to all NDIS support providers.
The NDIS legislative framework is a combined effort of one primary Act, supported by eleven (11) rules, five (5) guidelines, and five (5) overarching policies. NB Lawyers has experience guiding NDIS support providers and employers through the quagmire of the NDIS legislation has a positive track record in providing up to date legal advice to NDIS support providers when needed.
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
Cameron Niven is a lawyer in the employment team with a diverse background including regulatory compliance and military discipline. Cameron is a former Australian Defence Force (Army) Military Police officer and previously worked for the Office of Industrial Relations. With a national accreditation in Mediation Cameron has a keen interest in assisting clients with practical advice especially in the areas of governance and regulatory frameworks as well as employment law matters in the Fair Work Commission and Federal Circuit Court.
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