16 August 2019

14 August 2019

Cancellation of Child Care Benefit Approval: It All Starts Here Family Day Care Scheme Pty Ltd and Secretary, Department of Education

This case, heard by the Administrative Appeals Tribunal of Australia, related to a review of the decision by the Commonwealth Department of Education to cancel the Child Care Benefit approval of It All Starts Here Family Day Care Scheme Pty Ltd (applicant) under A New Tax System (Family Assistance) (Administration) Act 1999 (Cth).

The Tribunal had to consider two issues in this case (para.3):
  • Whether the applicant failed to comply with the conditions of their continued approval as an approved child care service under the family assistance law; and  
  • If so, whether the non-compliance justified the cancellation of their approval.
The Department argued that the conditions were not met by the applicant due to a number of breaches of the family assistance law and the National Law and Regulations (para. 15):
  • Attendance records submitted for dates when children were overseas.
  • Attendance records submitted for dates when educators were overseas.
  • Attendance records submitted outside the timeframes prescribed in the family assistance law.
  • Attendance records showing enrolments reported outside of the timeframes prescribed in the family assistance law.
  • Attendance records showing sessions of care that overlap with sessions reported by other services.
  • Attendance records reporting sessions of care where either the child had not commenced, or had already ceased to use the service.
  • Attendance records showing that the Applicant exceeded its approved educator limit of 40 educators.
  • Attendance records reporting more than the permitted limit of no more than four preschool aged children at any one time, and reporting more than the permitted limit of seven children limit at any one time.
The Tribunal after examining all the evidence affirmed the decision to cancel approval, stating that:
The applicant accepts that the non-compliances are a serious issue but that it has introduced steps to mitigate the errors as already outlined above in these reasons for decision. At hearing, the applicant stated that there was a drop in incorrect reporting during the period April 2017 to July 2017. The applicant also identified there was a significant drop in educators’ absence, late reporting, late enrolments, overlapping, educator limits, educator child ratios, and absences.
At hearing the applicant submitted that it had been frank in conceding issues and had taken steps to enter into a payment arrangement with the respondent. Although it has not had an opportunity to test the measures it has put into place to address the identified breaches, the applicant contends that these should still be taken into account. The applicant further submitted that it has already suffered a significant suspension and that cancellation was not an appropriate sanction.
In regards to a number of the breaches, the applicant appears to place responsibility on staff members and educators. As the operator, the applicant cannot excuse itself from responsibility for non-compliance with its obligations by pointing to the actions of educators or other staff members. The Tribunal has accepted in similar cases that the obligations imposed on the operator of a child care service cannot be avoided or excused by blaming others, including its own staff; see Moonlight Family Day Care Pty Ltd and Secretary, Department of Education and Training [2018] AATA 2706 (7 August 2018); and Sunrising Family Day Care Pty Ltd and Secretary, Department of Education and Training [2018] AATA 1463 (28 May 2018).
Section 195A of the Administration Act, as it stood at the relevant time prior to 2 July2018, operates to ensure that where an obligation, including a condition for continued approval, is imposed on an approved child care service, “it is taken to be imposed on the person operating the service”. This means that all obligations under the family assistance law were ultimately obligations of It All Starts Here Family Day Care Scheme Pty Ltd, acting through its officers, staff and agents, including its educators.
The applicant’s breaches are not minor. The misreporting of thousands of sessions of care is an extremely serious matter and demonstrates a lack of care and compliance with a number of legislative requirements under the family assistance law. Through its non-compliance with its conditions for continued approval, the applicant received payments of public funding that it should never have received. Further to this, the applicant, by breaching educator-child ratios, provided child care in circumstances where it was not lawfully allowed to provide such care, giving rise to risks for the safety, health and wellbeing of children under the applicant’s care.
In the circumstances of this case, I am satisfied that cancellation is the appropriate sanction. The health and safety of children and the quality of the care provided is of paramount concern. Should the applicant’s approval not be cancelled there is a risk that any children in the care of the applicant may not be appropriately cared for given the systemic failure of the applicant to oversee the level of child care that it held approval to provide. This is of particular concern in regards to the breaches concerning educator to child ratios. While I do acknowledge that that applicant was frank in conceding the breaches identified and has plans to address the issues in the future, these measures have not been tested. The breaches identified are egregious and highlight that the applicant’s governance arrangements are systematically flawed. For these reasons I find that the applicant is not a suitable person to operate a child care service (paras. 34-39).


12 August 2019

Standard of Queensland Services

Following a report in The Courier Mail, the Queensland Government has responded in relation to the quality of services in Queensland, as reported in the Brisbane Times.

28 July 2019

Latest NSW Prosecutions

The NSW Regulatory Authority under the National Law (Department of Education) has published details of prosecutions it has taken over the last two years on its Website. Prosecutions were against approved providers, persons with management or control, nominated supervisors, and educators. Incidents include child leaving the service unsupervised, child injured by equipment, child left on bus, inappropriate discipline, leaving children alone in a park, exceeding number of children in service, operating a service without ensuring health and safety of children, corporal punishment, child left at service unsupervised, giving of unauthorised medication, and providing education and care at an unapproved premises.

23 July 2019

Commencement of new WA No Jab, No Play Legislation

ABC Online, WA Today and Perth Now carried reports on the commencement of the new laws in Western Australia which started this week.

On 22 July 2019, changes to the Public Health Act 2016 (WA) and the School Education Act 1999 (WA) came into effect that are intended to increase vaccination rates of children and better protect the community from vaccine preventable notifiable infectious diseases. When enrolling a child into any child care service, kindergarten or school, parents/guardians are already required to provide their child’s Australian Immunisation Register (AIR) Immunisation History Statement. This statement must not be more than two months old. Under the new changes, the child’s immunisation status must be ‘up to date’ according to their AIR Immunisation History Statement to be permitted to enrol into long day care, family day care, pre-kindergarten or kindergarten. Exceptions apply to children who have an approved medical exemption to a vaccine, have natural immunity to a specific disease, are on an approved catch-up schedule, or are identified as an exempt child because of a particular family circumstance. More information is available from the WA Health Department website.

6 July 2019

Inadequate Supervision (Section 165, National Law): Chief Executive Officer, Department of Communities and Soo Jeom Cho (Family Day Care Educator)

In a case heard by the West Australian State Administrative Tribunal (WASAT), an order was recently made which gave effect to the terms of settlement in relation to a matter brought before the Tribunal by the WA Regulator (Department of Communities) for contravention of section 165(3), National Law, by family day care educator, Soo Jeom Cho. The educator was an educator registered with Nectar FDC Service.

The facts of the case are set out in the report of the case, and in particular the attached agreed set of facts (annexure A). In summary, a neighbour of the educator was driving home and immediately after coming around a bend saw a child standing in the middle of the road. She stopped and exited her vehicle and approached the child, who was able to point to the residence of the educator. The child had left the service unnoticed and unsupervised when a parent came to collect another child at 3.30pm. The child was 2 years and 8 months old. In addition, when the child’s mother collected him at around 4pm, the educator did not inform the mother of what had occurred. The educator also failed to notify her approved provider of what had occurred, until after 19 March 2019, when authorised officers from the Department told her to report it. The educator said she did not immediately report the serious incident because she was embarrassed it had occurred.
The Tribunal ordered that the educator pay to the Department a penalty of $2,000, being $1,500 for the breach of section 165(3) and $500 for the breach of section 174A (failing to notify the approved provider of the service of a serious incident as defined by the National Law). The educator was also ordered to pay the Department a contribution toward its legal costs of $1000.

The West Australian also reported on this case.

In Western Australia such matters as this are generally heard as disciplinary matters under the National Law (WA), see the article by David Oliver in The Sector that explains the process in detail.

2 July 2019

Extension of ECT Transitional Provisions Under National Regulations

The Council of Australian Governments (COAG) Education Council released a communique after its meeting on 29 June 2019. It made some decisions regarding extending transitional provisions and other changes relating to Early Childhood Teachers:
Extension of transitional provisions under the National Quality Framework
Education Council agreed to extend a number of expiring transitional workforce provisions in the Education and Care Services National Regulations, to address the continued pressures faced by the sector in building a highly skilled early childhood education and care (ECEC) workforce, particularly in rural and remote areas. This also takes into account the impacts of the requirement from 1 January 2020 in most states, that providers of centre-based services have a second early childhood teacher or ‘suitably qualified person’ in attendance when 60 or more children preschool age or under are being cared for.Education Council also noted the work currently underway to build a national approach for the ECEC workforce.
 ‘Suitably qualified person’ consequential amendments to the Education and Care Services National Regulations
On 1 January 2020, regulations will come into effect in all states and territories (other than New South Wales) that require providers of centre-based services to have a second early childhood teacher or, alternatively, another ‘suitably qualified person’ in attendance when 60 or more children preschool age or under are being cared for and educated. Education Council agreed to the proposed minor and consequential amendments to the Education and Care Services National Regulations which support the practical operation of the ‘suitably qualified person’ requirement from 1 January 2020. Ministers will be asked to endorse the amending regulations prior to the end of December 2019.
 The Sector website provided a summary and analysis of the communique.

28 June 2019

NSW Changes to State Regulated Childcare Services Legislation

To bring all services into alignment under the requirements of the National Law, changes to the NSW State Law and Regulations commenced on 27 May 2019. The State scheme applies to services falling outside the National Scheme under the National Law (see Australian Childcare Regulation, p. 13, for further details).

Changes have been made to the Children (Education and Care Services) Supplementary Provisions Act 2011 and the Children (Education and Care Services) Supplementary Provisions Regulation to bring standards into line with those for services regulated under the National Law. The major changes include:
  • application of the State law to mobile and occasional care services only.
  • discontinuation of home-based care and shopping centre care as approved categories under the Act.
  • introduction of the requirement for occasional care and mobile services to participate in quality assessment and rating.
Further information is available from the Department of Education website.

27 June 2019

Unfair Dismissal: Elizabeth Gomes v Gemela Pty Ltd T/A Kool Kidz Preston

This was a case heard by the Fair Work Commission in which the educator (Elizabeth Gomes, the Applicant) sought compensation for unfair dismissal from the employment of a childcare service (Respondent) under the Fair Work Act 2009. The basis of the dismissal was that the educator was involved in two incidents. These involved not securing a child in a highchair such that the child slipped out and not raising the side rail on a cot in which a child was sleeping.The Commission found that the the conduct occurred providing a valid reason for dismissal. However, the Commission found that the educator had been unfairly dismissed as she had not been accorded procedural fairness:
I have considered the reasons for dismissal of the Applicant and the lack of procedural fairness afforded to her in effecting the dismissal. On balance I have decided that the dismissal was unreasonable in circumstances where the Applicant was not given a proper opportunity to respond to the allegations made against her. While I accept that Ms Wilson [Director] was open to changing her initial view that the conduct constituted serious misconduct in that it endangered the child, by requiring the Applicant to respond to the allegations with no advanced warning meant the Applicant did not have an opportunity to understand the severity of the allegations or provide a considered response. The Respondent clearly considered the matters very serious – Ms Wilson had reached a conclusion that the conduct of the Applicant amounted to serious misconduct. In the circumstances however there was no reason that Applicant could not have been given details of the allegations, a chance to consider them and gather her thoughts as to the incidents and an opportunity to respond.
A decision to dismiss an employee is not one that should be taken lightly. While I accept that the safety of the children in this case is paramount there was no harm to be done by providing the Applicant with some time to respond. (paras.76-77).
The Commission did not make a decision on a remedy (i.e. compensation) at this stage pending more information from the parties. This case again emphasises the importance of services providing procedural fairness to educators they are considering dismissing, see also previous unfair dismissal case summarised in a previous blog post.

ACT Compliance Activity

ABC Online have published an article detailing the compliance activity against education and case services undertaken by the ACT Regulatory Authority (Children’s Education and Care Assurance). The information was obtained under Freedom of Information laws.

It is concerning that this information was obtained through the media making a Freedom of Information request rather than it being published by the Regulatory Authority under section 270(5), National Law. See my recent article in The Sector on this issue.

24 June 2019

ACECQA Board Extends Recognition as an Equivalent Early Childhood Teacher

The ACECQA Board has decided to extend an existing transitional measure that recognises registered/accredited primary school teachers who have completed an approved diploma (or higher) education and care qualification as equivalent early childhood teachers until the end of 2021. Further information is available from the ACECQA website.

22 June 2019

WorkSafe Victoria Issues Safety Alert to Childcare Services about Glass Panes and Child Impact

The Sector website recently published a story on WorkSafe Victoria issuing an alert about the risks associated with glass panels breaking from child impact at childcare services. The text of the alert can be accessed on the Worksafe website.

It should be noted that approved providers have a general responsibility that the service is operated in a way that ensures the safety, health and wellbeing of
the children (section 51, National Law) as well as ensuring
service premises and all equipment and furniture used in providing the education and care service are safe, clean and in good repair (regulation 103, National Regulations). In relation to Family Daycare Services, the requirements of regulation 117, National Regulations, also apply in relation to glazed areas.