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Legislation – General
Standards: Clause 8.5, 8.6
8.5 The RTO complies with Commonwealth, State and Territory legislation and regulatory requirements relevant to its operations.
8.6 The RTO ensures its staff and clients are informed of any changes to legislative and regulatory requirements that affect the services delivered.
Commonwealth Copyright Act 1968
Material that fits into any of these categories is generally protected by the legislation, including if it is on the internet:
- written material – such as novels, poems and lyrics, reports, instruction manuals, articles and emails
- artistic works – such as drawings, paintings and graphic art, industrial photographs, buildings, design drawings, maps and plans
- compilations – such as anthologies, directories and databases
- musical and dramatic works
- films and sound recordings
- computer programs
Disability Discrimination Act 1992 (DDA)
The DDA covers people who have temporary and permanent disabilities; physical, intellectual, sensory, neurological, learning and psychosocial disabilities (mental illness), diseases or illnesses, physical disfigurement, medical conditions, and work-related injuries.
Direct disability discrimination and indirect discrimination are explained in this document from Human Rights Commission.
Educational implications: The DDA protects people with a disability against discrimination in these areas:
- Admission: Refusal or failure to accept an application for admission from a person with a disability or accepting a person with a disability as a student on less favourable terms or conditions than others.
- Access: Denying or limiting access to people with a disability, expelling a person because of a disability or subjecting a person with a disability to any other detriment.
- Harassment: Humiliating comments or actions about a person’s disability, such as insults, or comments or actions that create a hostile environment.
Commonwealth Privacy Act 1988
All public and private RTOs are subject to this legislation. A person can:
- know why their personal information is being collected and how it will be used
- ask for access to their records, including health information
- take up opportunities to stop receiving direct marketing material
- correct inaccurate information about themselves
- know which organisations will be given their personal information
- ensure organisations only use information for purposes they have told the person about
- find out what information an organisation holds on them and how they manage it
Racial Discrimination Act 1975
The Racial Discrimination Act 1975 promotes equality before the law for all people regardless of race, colour or national or ethnic origin. It is unlawful to discriminate against people on the basis of race, colour, descent or national or ethnic origin.
Under this Act, it is illegal to:
- deny access to facilities, places, accommodation, education based on race, religion, colour or origin
- refuse goods and services based on race, religion, colour or origin
- prevent membership of a union or other association based on race, religion, colour or origin
- refuse employment of a person, or treat the person differently in the workplace, based on race, religion, colour, origin
The Act creates an exception to this provision where special measures shall not be deemed to be racial discrimination if they are taken for the sole purpose of securing the adequate advancement of certain racial or ethnic groups or individuals. This provision recognises that treating all people, regardless of differences, in exactly the same way can simply serve to continue the systemic discrimination faced by some groups.
Sex Discrimination Act 1984
Sex discrimination is when a person is treated less favourably than a person of the opposite sex in the same or similar circumstances.
The Sex Discrimination Act protects people from unfair treatment on the basis of their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy and breastfeeding.
It also makes sexual harassment against the law.
Workplace Health and Safety
Duty of Care
Health and Safety Acts spell out the requirements known as duty of care. Duty of care requires that everything reasonably practicable be done to protect the health and safety of others at the workplace. ANY issue that may place people in the workplace at risk should be considered as a duty of care issue.
Employers have an obligation to ensure:
- The health and safety of each of their workers
- Their own health and safety
- The health and safety of other people who come to the workplace
Workers have an obligation to:
- Comply with instructions of an employer regarding health and safety
- Use personal protective equipment if provided
- Not wilfully misuse anything provided for health and safety purposes
- Not wilfully place at risk the health and safety of another person
- Not wilfully injure themselves
This can be defined as ‘less favourable treatment of a person by another in the workplace, beyond which may be considered reasonable and appropriate workplace practice.’
Bullying can include behaviour that intimidates an employee (or a learner). It may include abuse of power, isolation, alienation or poorly managed conflicts of opinion or personality. Inappropriate comments about personal appearance, work performance and verbal abuse are also common.
Workplace bullying is covered by WHS legislation.
- How does your RTO ensure that trainer and assessors do not unwittingly break copyright?
- What processes does your RTO have in place to protect the privacy of learner data?
- How are staff made aware of their responsibilities under racial and sex discrimination acts?
- Does your RTO have inclusive learning and assessment practices?
- Does your RTO ensure learners are aware of options for reasonable adjustment?
- Does your RTO have workers’ compensation insurance?
- How does your RTO ensure that trainers and assessors are aware of their duty of care responsibilities?
- What processes are in place to manage a complaint made under any of these laws?
- Does your RTO have a process for informing staff of any legislative changes that impact on their work?
- Does your RTO have a process for informing learners of any legislative changes that impact on services?
XYZ RTO trainers, who are employees, produce their own learning print and electronic materials. These are not shared with anybody and are not publicly available. RTO management never sees these materials either, as they focus on making sure that the assessment materials meet compliance requirements.
Is there a risk of copyright infringement here and if so, who would be responsible?
Yes, there is a risk of copyright infringement (e.g. the trainer may grab images from the Internet) because there is no quality check mechanism in place.
It is likely that the RTO would be held responsible if there was a copyright challenge because these materials are being produced and used as part of the employee’s work.
An XYZ RTO trainer is conducting a workshop related to a mental health topic. One of the workshop participants begins crying loudly and puts their head down on the desk. The trainer suggests that the participant step outside for a minute, then they keep training. The participant does not return to the workshop before the trainer packs up and leaves the premises.
Has the trainer met their duty of care obligation?
No. There is a duty of care obligation for the trainer to follow up on the participant’s welfare.