"Shield of the Crown": Advice to Principals
AEU ACT Industrial Officer, Garrett Purtill, explains that principals cannot be held liable beyond their normal Duty of Care.
The removal of 'Shield of the Crown' protections had raised concerns that principals might be more exposed to potential prosecution in the case of Work Health & Safety (WHS) issues. However, recent advice from our lawyers makes clear that these concerns aren't warranted.
The AEU ACT has conducted extensive research and received formal advice from our lawyers, Slater & Gordon, on the question of whether principals are ‘officers’ under the ACT Work Health & Safety Act 2011.
On January 1 2012, the nationally harmonised ACT Work Health & Safety Act 2011 came into effect. For the first time in the ACT, both public and private sector workplaces were covered by the same legislation.
For public sector employees, this new legislation also meant the ACT was the last jurisdiction to remove the ‘Shield of the Crown’ – a doctrine by which Crown employees were immune from prosecution.
The new legislation has led to confusion in relation to the standing of public school principals in relation to duty of care and exposure to potential prosecution.
The Legal Standing of Principals
All employees, from lowest paid to highest paid, at a school site have a general duty of care to their fellow workers (and anyone else found in that workplace for that matter) to conduct themselves in a manner that does not create or add to the risk of injury to either themselves or others.
The Person Conducting the Business or Undertaking
At the top of the WHS ‘pecking order’ is the legal entity called the Person Conducting the Business or Undertaking (PCBU) which in the ACT is the Territory Government. In the ACT Work Healthy & Safety Act 2011, at Clause 19, the Territory is charged with ensuring the health and safety of its employees, ie, of the ACT Public Service.
The next level down from the PCBU or Territory is that of the ‘officers’, the senior management, who make the necessary decisions by which the WHS policies, procedures and resources are generated at a Directorate level.
In the ACT Public Service, the authority of Directorate ‘officers’ is derived from the delegations they receive from the ACT Public Service Head of Service. Their decisions affect the whole or a substantial part of the Directorate’s business which in the case of the Education & Training Directorate is the public school system.
Managers & Supervisors (Principals)
The next level down from the ‘officers’ are the various components of management and supervision whose task it is to implement the policies and procedures made by the ‘officers’.
Principals are part of this management/supervisory group. They manage individual school sites as part of the ACT public school system. Any further policies and procedures made by them are done within the ambit of those already made by ‘officers’, the senior management of ETD, and in this way principals assist the ‘officers’ to meet their workplace health and safety duties and obligations in schools.
Principals do not “act as if they were ‘officers’”: they act as they are, as managers and supervisors.
This information should provide much reassurance to AEU principal members. The bottom line is that, as AEU members, we will guide and support you through any issues that may arise.
For further information, please contact us on 6272 7900 or at firstname.lastname@example.org