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. 

1. Reportable Incident

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: 

• the death of a person with disability; or

• serious injury of a person with disability; or

• abuse or neglect of a person with disability; or

• unlawful sexual or physical contact with, or assault of, a person with disability; or

• sexual misconduct committed against, or in the presence of, a person with disability, including grooming of the person for sexual activity; or

• the use of a restrictive practice in relation to a person with disability, other than where the use is in accordance with an authorisation (however described) of a State or Territory in relation to the person.

2. Restrictive Practices

Of the above matters, unintentional restrictive practices appear to be the most common. There are five (5) types of restrictive practices, being: 

1. Seclusion;
2. Chemical Restraint;
3. Mechanical Restraint;
4. Physical Restraint;
5. Environment Restraint.

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:

• Putting the allegation to the employee to respond to;
• Undertaking a workplace investigation;
• Reporting the incident as a notifiable incident;
• Taking disciplinary action against the employee up to and including termination of employment.

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.

3. Notifiable Incident

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. 

Written By 

Jonathan Mamaril 

Director

NB Lawyers – Lawyers for Employers 

jonathanm@nb-lawyers.com.au 

+61 (07) 3876 5111 

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. 

AND

Cameron Niven

Lawyer

NB Lawyers – Lawyers for Employers 

cameronn@nb-lawyers.com.au

+61 (07) 3876 5111 

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.