Supervision - Requirements under the Education and Care Services National Law

As some of you are aware I am in the process of writing a book on childcare regulation, specifically a guide to the National Scheme (Education and Care Services National Law and Regulations). I hope to publish this at the end of this year. In the interim, from time to time, I will publish extracts from the current draft on this blog and would appreciate any feedback. As supervision has been a recent topic of this blog, I have started with the section on supervision.

Supervision

Supervision of Children

Section 165 requires children to be adequately supervised:

• the approved provider (s.165(1)) and nominated supervisor (s.165(2)) must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of the service. 
• a FDC educator must ensure that any child being educated and cared for by the educator as part of the service is adequately supervised (s.165(3))

It is an offence to fail to adequately supervise a child at all times with the penalty being up to $10,000 in the case of an individual, and $50,000 in any other case. The Regulatory Authority can take appropriate compliance action. 

What is Supervision under Section 165?

 

What constitutes “supervision” is not specified in the National Law. [1] The ordinary dictionary definition is “the act or function of supervising; oversight; superintendence”.  [2] More guidance is given in the Fair Work Australia case of Read v  Gordon Square  Child Care Centre Inc T/A  Gordon Square  Early Learning Centre [3] which was required to examine the definition of supervision under s.165 in  the context of an unfair dismissal case. In that matter it was found that: [4]

The actions of the Applicant in removing herself from the room where Child A was on 6 March 2012 to answer the phone meant that she was no longer monitoring the child actively and diligently. As the Applicant admitted, she was thinking about whether or not a staff member was ringing in to say they were ill. Her actions were a breach of the requirements of the National Law as explained in the Guide and a breach of the Centre Policy. 

In that case the following extract from the Guide to the National Law and National Regulations, published by ACECQA, was quoted: [5]

Educator-to-child ratios alone do not determine what is considered adequate supervision.

Supervision is critical to the safety of children. At its most basic level, supervision helps to protect children from hazards or harm that may arise in their play and daily routines. Adequate supervision means that an educator can respond immediately, including when a child is distressed or in a hazardous situation.

Effective supervision also requires educators to be actively involved with children. It is not the intention of this requirement that educators merely ‘stand back and watch’.

Every child should always be monitored actively and diligently. This means knowing where children are at all times. Children of different ages and abilities will need different levels of supervision. In general, the younger children are, the more they may need an adult to be physically present and close by to support and help them. 

Unauthorised Persons on Premises 

Unauthorised persons are not allowed to be on the service premises unless under direct supervision. Note that this provision only applies to States and Territories that have a working with children law (s.170(1)). [6] The term “direct supervision” is not defined in the National Law. The requirement would seem to be more than just mere supervision.

The National Law provides that the approved provider (s.170(1)), and nominated supervisor (s.170((3), must ensure that an unauthorised person does not remain at the premises while the children are being educated and cared for unless the person is under the direct supervision of an educator or other staff member [7] of the service. In addition, s.170(3) provides that a family day care (FDC) educator must ensure that an unauthorised person does not remain at the premises while the children are being educated and cared for unless the person is under the direct supervision of the educator. It is an offence to fail to do this with the penalty being up to $10,000 in the case of an individual, and $50,000 in any other case. The Regulatory Authority can take appropriate compliance action.

The National Law defines who are unauthorised persons and therefore not subject to the provisions of ss.170(2)-(4):

Unauthorised Person Means a Person Who is Not (s.170(5)):	Comment/Explanation
A person who holds a current working with children check or working with children card	See s.5(1) for definitions of these terms
A parent or family member of a child who is being educated and cared for by the service or the family day care educator	See s.5(1) for definition of “parent”  but s.170(6) provides that the reference to a parent or family member of a child does not include a person: ·        whose access to the child is prohibited or restricted by an order of a court/tribunal of which the approved provider, nominated supervisor or family day care educator is aware; or ·        who is an inappropriate person within the meaning of s.171 [8] This provision compliments the provisions of  r.157 allowing parents  access to the premises in certain circumstances (see section 6.2.4)
An authorised nominee of a parent or family member of a child who is being educated and cared for by the service or the FDC educator	s.170(5) defines authorised nominee as meaning a person who has been given permission by a parent or family member of the child to collect the child from the service or the FDC. This provision relates to r.160 which relates to keeping child enrolment records
In the case of an emergency, medical personnel or emergency service personnel	-
A person who is permitted under the working with children law of this jurisdiction to remain at the service premises without holding a working with children check or a working with children card	This refers to persons who under the appropriate law (see s.5(1)) are not required to have a working with children check because of the nature of their interactions with children, e.g. tradesmen visiting the premises

Supervision of Visitors

Specific provisions apply to FDC services under r.166:

• approved provider must take all reasonable steps to ensure that a child being educated and cared is not left alone with a visitor to a residence or venue 

• FDC educator must not leave a child being educated and cared for with a visitor to the residence or venue. 

It is an offence to fail to comply with these requirements with the penalty being $2000.

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[1] Although not examining the definition of supervision, there have been cases under a similar provision of the Victorian Children’s Services Act 1996: ABC Developmental Learning Centres Pty Ltd v Wallace [2006] 171; ABC Developmental Learning Centres Pty Ltd v Wallace [2007] VSCA 138. Both cases concerned the same circumstances where a child had scaled a fence by putting a square foam cube and against it and left the service while staff were not looking.

[2] Macquarie Dictionary, 7^th ed., Macquarie Dictionary Publishers, Sydney 2017.

[3] [2012] FWA 7680.

[4] [2012] FWA 7680, para. 102.

[5] [2012] FWA 7680, para. 100.

[6] See s.5(1) for definition.

[7] See s.5(1) for definition of staff member

[8] This provision relates to the power of Regulatory Authority to exclude certain persons from service premises.