Contractor Legal Obligations

The COVID-19 pandemic has brought about serious workforce challenges, so it comes as no surprise that many organisations are looking for contingency arrangements to ensure continuity of support. For some, this may mean an increase in sub-contracting arrangements and use of agency staff to meet workforce shortages.

What some provider may not realise, is that there are additional responsibilities and obligations for registered NDIS providers who engage another organisation or individual to perform work on their behalf.

Registered Providers and a contracted personnel provider (Contractor) will need to ensure that any personnel engaged in risk assessed roles have an NDIS worker screening clearance.

Registered NDIS providers engaging Contractors will need to:

• Identify each risk assessed role that the contracted personnel will engage in.

• Enter into an appropriate contract with the Contractor.

• Take steps to satisfy itself that the contracted personnel have an NDIS worker screening clearance.

What is a risk assessed role?

• Key personnel (e.g. a CEO or a Board Member)

• Personnel engaged in direct delivery of specified supports or services to a person with disability

• Personnel who are likely to require ‘more than incidental contact’ with people with disability including:

o   physically touching a person with disability

o   building a rapport as an integral and ordinary part of the performance of normal duties

o   having contact with multiple people with disability as part of the direct delivery of a specialist disability support or service, or in a specialist disability accommodation setting.

What is an appropriate contract?

5A of the Worker Screening rules outlines the definition of an appropriate contract. We have summarised the requirements for our readers but encourage you to refer to the full version in drafting your contracts and/or seeking legal advice.

 An appropriate contract is a legally binding arrangement between the NDIS provider and the Contractor that sets out the following obligations:

• The Contractor must only engage people in risk assessed roles that have a clearance or an exemption.

• The Contractor must disclose (to the Registered Provider) all information relevant to the workers clearance or exemption.

• The Contractor must keep the registered NDIS provider up to date on this information during the life of the contract.

• The Contractor needs to comply with reasonable requests by the Registered Provider regarding:

o   whether contracted personnel have a clearance or exemption

o   assistance to investigate a complaint or reportable incident involving the contracted personnel

o   how the contracted personnel is complying with obligations under the contract.

• The Contractor needs to impose these contract obligations with any party/ personnel involved in the provision of NDIS services under the contract.

• The information that the Contractor must provide to the registered NDIS provider includes:

• The clearance and expiry date

• NDIS Worker Screening applications made

• Any interim bar, suspension or exclusion

• Refusal or closure of an application

• Revocation of a clearance

Worker Screening records are a bit of nightmare to keep to up-to-date. DSC has developed this worker screening tool to help you capture the record keeping requirements set out in the NDIS Worker Screening Rules. The Contractors tab will further assist you in meeting these obligations.

Download here

To better understand your compliance obligations in relation to worker screening you can refer to the: National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018.