Document ID: chunk:federal_register_of_legislation:F2018N00155:reg:5:p5
Version: federal_register_of_legislation:F2018N00155
Segment Type: reg
Provision Reference: reg 5 (pt 5/13)
Character Range: 15448–18339

which supports or services are provided. In most instances those processes will adequately satisfy procedural fairness requirements.
    (9)      In some instances the Commission may need to take additional procedural fairness steps, particularly if its complaint handling process could result in adverse action taken against a provider or adverse employment action being recorded against a worker. An example of an additional step is the disclosure of specific information to the provider as part of a formal invitation to make a submission. The core issue is whether there is a matter on which the provider can reasonably expect to be heard before action is taken by the Commission that could be regarded as adverse to the provider.
    (10)  A complaint to the Commission that could result in an adverse finding against a worker: The Commission is not generally required to undertake a separate procedural fairness process in relation to workers of an NDIS provider in handling complaints about the provider's supports or services. Even if workers are incidentally identified in the complaint to the Commission, the provider can decide which workers to consult after being notified of the complaint by the Commission.
    (11)  The Commission will need to consider undertaking a separate procedural fairness process in relation to a worker against whom an adverse finding may be made by the Commission. This is recognised in paragraph 16(5)(b) of the Complaint Rules which provides that in dealing with a complaint the Commission must consider whether procedural fairness requires 'allowing a worker reasonable opportunity to comment on any proposed adverse finding in relation to the person'. The procedural fairness process can be confined to the possible adverse finding and need not canvass other issues.
    (12)  The NDIS provider would ordinarily be informed that a separate procedural fairness process was being undertaken with a worker, but not told of any provisional adverse finding. This allows the worker to make an effective submission that the provisional adverse finding should not be adopted. The final report by the Commission to the provider may nevertheless discuss the issue or allegation in another way in order to explain how the complaint was resolved.
    (13)  A decision by the Commission to initiate an inquiry: The Commission may initiate an inquiry either independently of any complaint or in relation to issues that arise from complaints against a provider or complaints against more than one provider (section 29 of the Complaint Rules). A Commission decision to conduct an own motion inquiry potentially exposes a provider to reputational disadvantage if the fact of the inquiry becomes publicly known. Accordingly, it is generally prudent to provide advance notice of an inquiry to a provider that may be individually targeted or affected by the inquiry.