Welcome to our Term 2 issue of Education Law Notes!
We start with a Fair Work Commission case where a school failed to take the necessary steps when refusing a teacher's request for flexible work. With a little care, the outcome could have been so different!
With so much talk about our cost of living crisis, it's important that school governors don't lose sight of their obligations and potential personal liability when their school has financial difficulties or becomes insolvent. We take a close look at ASIC's Regulatory Guide 217 – "Duty to Prevent Insolvent Trading: Guide for Directors". It provides comprehensive guidance on directors' duties and helps directors understand and navigate their duty to prevent insolvent trading as well as covering the legal background, key principles for directors, safe harbour protections, and ASIC's approach to assessing compliance. A very important read for Board members!
Finally, I give a warning to schools about getting too involved in the ongoing debate about how children who are questioning their gender identity should be treated. I have recently spoken at a national education law conference on "Gender and Sexuality In Schools: A Delicate Balancing Act" and will be repeating this in a webinar shortly (see the details at the end of these Notes). I hope to see you there.
In the meantime, enjoy the read!
Regards,
David
Reasonable Business Grounds are not enough to refuse a flexible work request
An April 2025 decision of the Full Bench of the Fair Work Commission demonstrates the importance of carefully preparing detailed written reasons for refusing a flexible work arrangement request. In Naden v Catholic Schools Broken Bay Limited, the Full Bench found that the employer's consideration of and written reasons for refusing an employee's flexible work request were insufficient (even though the employer's reasonable business grounds were set out in the refusal).
To understand how schools should navigate this complex area, please read more here.
Essential Reading for Directors: ASIC's regulatory guide 'Duty to Prevent Insolvent Trading: A Guide for Directors'
As a director of an independent school, understanding your legal obligations is crucial to ensuring the financial health and sustainability of your school, and managing exposure to personal civil and criminal liability. ASIC has published Regulatory Guide 217, titled "Duty to Prevent Insolvent Trading: Guide for Directors". It provides comprehensive guidance on directors' duties under section 588G of the Corporations Act. RG217 is designed to help directors understand and navigate their duty to prevent insolvent trading. It outlines the legal background, key principles for directors, safe harbour protections, and ASIC's approach to assessing compliance. It is essential reading for directors (including alternate directors and shadow directors).
Read all about RG217 here.
The duty of care to gay, lesbian and transgender
students: Beware of giving medical
advice!
In this article, we warn schools not to get too involved in medical treatment. There have been differences of opinion over the years among medical specialists and psychologists as to the best way of treating young people with gender dysphoria. There are those who take a blanket approach of favouring affirmation followed by pubertal suppression using drugs from as early as 11 years old. Typically, that approach leads to young people taking cross-sex hormones at about 16 in preparation for possible sex-reassignment or gender confirmation surgery as an older adolescent or adult. At the same time, there are practitioners who believe that their ethical and professional duty is to focus on the person before them and to treat that person based on their specific needs. Also, more recently, with the benefit of more time to observe the effects of treatment such as pubertal suppression, several studies have shown the dangers of this treatment.
We also note the 2024 report of the Review chaired by Dr Hilary Cass in the UK and other developments in Australia including a new family law case where parents had opposing views on their child having Stage 1 puberty blocking medication. Read all about it here.
Upcoming events
The Education Network
Webinar
David Ford will speak on Gender and
Sexuality In Schools: A Delicate Balancing Act
Tuesday, 3 June 2025
Time: 11am – 12noon AEST
LawSense School Law
Seminar
David Ford will speak on Excursions,
Camps and Trips, Risk Assessment and Management Workshop:
Implementing Best Practice, Including Navigating Students with
Conditions, External Providers and Staff Risks
Tuesday, 17 and Wednesday, 18 June 2025
UTS Aerial Function Centre, Ultimo or via Zoom
ANZELA NSW Seminar
You shall not pass: dealing with difficult parents and
school visitors
Stephanie McLuckie will be speaking, and will
be joined by a School Police Liaison Officer, and a School
Principal.
Thursday, 19 June 2025 (in person and online) in Sydney, CBD
(location to be confirmed)
Arrive from 5.15pm for 5.45pm start. Light refreshments will be
served.
Cost: $25 or free for ANZELA members
Please RSVP by email to nsw@anzela.edu.au by Tuesday, 19 June
2025
Australia and New Zealand Education Law
Association Annual Conference
The Boundaries of Education Law
1 – 3 October 2025
Gold Coast (Coolangatta), Queensland
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
