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.

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.

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.

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.

Refusal to Grant Provider Approval (Section 15): Two Cubed Pty Ltd v Secretary of the Department of Education NSW

This case was heard by NSW Civil and Administrative Tribunal and related to the decision by the NSW Regulatory Authority (Department of Education) to not grant provider approval to the applicant (Two Cubed Pty Ltd). The provider approval application was refused under section 15(2), National Law on the basis that the applicant was not a fit and proper person to be involved in the provision of an education and care service. On 20 August 2018 the Department of Education affirmed the decision made on 8 May 2018 following an internal review.

In the case the Tribunal assessed the fitness and propriety of the person who was to have management or control of the family daycare service to be operated by the applicant:

The Regulatory Authority submits that the internal review decision should be confirmed because Ms Chumakova as the person with management or control of the family day care service to be operated by the applicant, is not a fit and proper person to be involved in the provision of an education and care service.
The phrase “fit and proper” has been the subject of a number of decisions including decisions in the High Court. The context in which the person is or will be engaged in the underlying principles and objects of the legislation give the phrase meaning in particular circumstances: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. A definition of fitness and propriety at least includes “honesty, knowledge and ability”: Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156.
An assessment of fitness and propriety “also includes public confidence that the person is able to maintain high standards of rectitude and that they likely future conduct will keep to that standard”: CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190 at [89].
In the regulatory regime surrounding provider approvals, the term “fit and proper” in context refers to the provision of education and care services to children under 13 years of age. An applicant’s fitness and propriety may well be dependent then on an adequate knowledge and understanding of the responsibilities of an approved provider, whether the applicant acts in accordance with those responsibilities and whether the applicant has sufficient moral integrity and character to be entrusted with the provision of education and care services: Tanyous v Secretary, Department of Education [2018] NSWCATAD 197 at [31]; Brandusoiu v Commissioner of Police [2015] NSWCATAD 204 at [91]-[92].
Compliance with the National Law is a mandatory consideration in the assessment of the applicant’s fitness and propriety because of the conditions attached to provider approvals. A person’s management capability to operate an efficient education and care service in accordance with the National Law is a relevant consideration in assessing whether a person is a fit and proper person to be engaged in education and care services.
The objectives of the National Law are promoted where persons with management or control of an education and care service have knowledge and understanding of the National Law and Regulations: CYU V Secretary Department of Education [2017] NSWCATAD 290 at [53]-[54]; DPW v Secretary Department of Education [2018] NSWCATAD 257 at [40], [42]-[43].
Ms Chumakova has approximately more than 3 years’ experience as a family day care educator under 4 different provider schemes.
Efficient management of educators and assessing their practices in compliance with the National Law is a key indicator of competence and knowledge. However, Ms Chumakova identified in the evidence before the Tribunal that she would monitor educators through videos and photos which she would review to determine whether the practice of the educators was appropriate. This process would not ensure that educators themselves will understand their obligations, and physical visits to a family day care residence or venue to observe interactions with the children and to check that food being provided to them was actually nutritious, was not part of the response to questions posed to her at interview. Whilst technology may be useful it is not likely to adequately determine whether appropriate care is provided unless there are physical visits and in-person assessments.
Ms Chumakova, as part of the interview and assessment process undertaken by the Regulatory Authority, was said to have exhibited a lack of understanding as to the complaint process and reporting obligations under the National Law and Regulations. The Tribunal accepts that as an accurate assessment of the evidence. Ms Chumakova failed to identify the records which are required to be kept for all individuals who reside at or otherwise visit a family day care residence.
It is accepted by the Tribunal from the evidence before it that Ms Chumakova had a limited understanding and could not properly identify the requirements regarding information that has to be displayed at the premises of family daycare residences. Those requirements include the provider approval, service approval, the rating of the service, the hours and days of operation of the service, the name and telephone number of a person to whom complaints can be addressed and the contact details of the Regulatory Authority. Information about the contents in operation of the educational program for the service should also be displayed.
Ms Chumakova could not identify, in the evidence before us, how she would ensure that the programs delivered by educators meet the educational and developmental needs of the children other than relying upon resources provided by the Department, webinars, samples of planning, and observation rather than, by way of example, actually reviewing an educator’s programs.
Ms Chumakova exhibited to the Regulatory Authority an inadequate understanding of strategies to manage and support family daycare educators in her answers during interview and the second assessment session. It was assessed that she did not understand the strategies for managing and supporting family daycare educators or how she would monitor and evaluate educators and that she had to develop a relationship with the educators. Ms Chumakova failed to outline any improvement strategies in relation to a hypothetical scenario at an education and care service: see Exhibit R1, pages 101, 108, 115, 118, 230. The Tribunal accepts that evidence before us.
Family daycare educators must have, or must be actively working towards, at least a certificate III level education and care qualification that has been approved by the Australian Children’s Education and Care Quality Authority. An educator is actively working towards a qualification if they are enrolled in a course for the qualification and provide an approved provider with documentary evidence from the course provider that the educator has commenced the course, and is making satisfactory progress towards completion of the course, and meeting the requirements for maintaining the enrolment: National Regulations, regulations 4 (1), 10, 127, 137. On 5 July 2018 Ms Chumakova attained her certificate III qualification: Exhibit A2 p 87. It is apparent from the documentation in Exhibit A2 that Ms Chumakova enrolled in a master of teaching in 2015 or 2016 and completed some subjects. However, from mid-2017 until mid-2018 Ms Chumakova was not making satisfactory progress towards completion of the Masters program because she did not complete any subjects for the program. In those circumstances, she was enrolled but not actively working towards a certificate III qualification for a period of approximately one year: Exhibit R1, p 20. Ms Chumakova says that she was told on the telephone that she had 5 years in which to complete the study. Ms Chumakova says that she applied on 14 June 2018 for the certificate III of early childhood education presumably on the basis of her completed subjects in the Masters course.
In the second assessment session Ms Chumakova failed to identify all of the minimum qualifications of persons involved in the provision of a family daycare service, and her insistence that she was fully qualified as a family day care educator evidences a lack of understanding about qualifications of educators, particularly the concept of actively working towards a qualification. Ms Chumakova says that the questioning was conducted in an adversarial and aggressive manner which impacted upon her performance. It is a necessary quality of an approved provider that she ensures that family daycare educators, educator assistants and family day care coordinators meet the qualification requirements for their respective roles: National Law sections 163, 169; National Regulations, regulation 136; Exhibit R1 p 251. Ms Chumakova could not provide assurance that she understood the requirements.
Ms Chumakova also represented on the Grammar’s house website that she had a “Master degree in Teaching”: Exhibit R1 pp 152, 209. Ms Chumakova does not hold this qualification. When asked whether she considered this to be misleading, at interview she stated that she had not updated the website for some time. Ms Chumakova says that the website is no more than an online business card and has not substantially changed since 2015. It is a clearly misleading statement whether updated or not because she has never held a master degree in teaching. The honesty and knowledge of Ms Chumakova is thus deficient.
Ms Chumakova says that she utilised Google advertising which was paused from 3 June 2018 until 26 August 2018. The website however was still up and accessible and providing an advertisement of the services irrespective of Google advertising.
Between June 2018 and 10 August 2018 Ms Chumakova cared for children even though she did not have registration with a family day care service. This is operating a family day care service without provider approval: Exhibit R1, pages 17-18, 157, 159. Ms Chumakova said that she had a “personal arrangement” with families involved. Ms Chumakova said that was an informal arrangement and she was not advertising a service. It was also established that she temporarily lowered her fees because the families were not entitled to a government rebate: Exhibit R1 p 3; Exhibit R2, interview 16/8/2018, p 31. A “personal arrangement” arises where a friend of a family personally provides education and care to the child that family under an informal arrangement where no offer to provide that education and care was advertised: National Law, section 5 (1). Ms Chumakova was not a friend of the families of the children to whom she provided care during the relevant period. There was continued advertising during the relevant period. These were simply children to whom she had previously provided education and care. Ms Chumakova also invoiced the parents under an ABN so that it could not accurately be said it was a personal arrangement.
Ms Chumakova also admitted to Mr Lalor on 9 August 2018 when he attended Grammars House, and it was noted in his notebook, that she was not operating under a provider approval and that she knew it was illegal: Exhibit R2 Affidavit of Brett Lalor: Annexure A. This admission was subsequently denied by Ms Chumakova at her interview.
Even if it were accepted that the service was a personal arrangement Ms Chumakova could also be considered to have been operating a “home-based education and care service” at that time in contravention of the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) sections 3 (1), 4, 8 (1), 9. The provisions of the National Law regarding provider and service approval apply, as modified, to State regulated education services: National Law, sections 11, 13, 17.
The service that was being offered by Ms Chumakova at that time was an education and care service at her home for children under the age of 6 years, who did not ordinarily attend school. Accordingly, she was operating a “home-based education and care service”. The service was also being advertised on the Grammars House website. This is in contravention of the legislative scheme since she did not have provider approval or service approval at that time.
Ms Chumakova submissions identify in chronological order what she contends occurred. It is pointed out by Ms Chumakova that she scored an average of 80.4% and has 3 ½ years’ experience within the family day care industry, that there is community support for and a demonstrated need for her services, and that she has “knowledge and education of family day care industry”. The assessment result of an average of 80.4% was said to be ordinarily sufficient along with her experience and management capability for approval: Exhibit R1 p 249. This result was the third assessment undertaken by Ms Chumakova and predated the interview which occurred on 16 August 2018. The matters which were raised in interview with Ms Chumakova have been previously referred to in these reasons. It was ultimately assessed that Ms Chumakova did not have a sufficient understanding of the role and responsibility of an approved provider, as opposed to an educator. From the perspective of knowledge about a provider’s obligations it was considered that Ms Chumakova was not a fit and proper person to be involved in the provision of an education and care service. There was also concern expressed about the misleading statements about Ms Chumakova’s qualifications. There was an absence of the requisite formal recognition of qualification during a period of about 12 months.(paras.53-73).

Based on this assessment the Tribunal concluded that:

The determination of the correct and preferable decision must regard the rights and best interests of the child who may receive the benefit of the service as paramount and to ensure the safety, health and wellbeing of children attending education and care services.
The National Law also facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children.
The objectives of the National Law are promoted where persons with management or control of an education and care service have knowledge and understanding of the National Law and Regulations.
An assessment of fitness and propriety at least includes “honesty, knowledge and ability” and “also includes public confidence that the person is able to maintain high standards of rectitude and that they likely future conduct will keep to that standard”.
Having regard to all of the evidence, the submissions of Ms Chumakova and those on behalf of the Regulatory Authority and for the reasons previously identified in these reasons, it is considered that the applicant and the person with management or control of the applicant is not a fit and proper person to be involved in the provision of an education and care service.(paras.82-6)

 

South Australian Compliance Actions

The Sector website has summarised recent compliance actions published by the SA Regulatory Authority (Education Standards Board) under the National Law.

Outdoor Space Requirements (Regulation 108): Vella v Penrith City Council - Final Judgment

This is a case before the NSW Land and Environment Court that I first mentioned in a previous blog post. In this case the applicant developer (Vella) applied for a development application for a 45 place childcare centre. The NSW Regulatory Authority intervened in the case and opposed the application as the developer sought to roster children to meet the outdoor space requirements of Regulation 108, National Regulations. It was agreed during the case that there was only sufficient outdoor space provided for 22 children. 

The Court had to consider whether the application complied with regulation 108 and made the following assessment:

I agree that the proposed design of the child care centre complies with all other standards, controls and regulations relevant to the proposed development, except the areal space for outdoor play/activities, pursuant to Reg 108(2) of the Regulations. I also agree that the proposed location of the outdoor play spaces on the ground and first floors, and together with the PoM [Plan of Management] is capable to limit the number of children to less than 22, outside at any one time. This satisfies that acoustic assessment to mitigate any potential impacts from noise to residents from children attending the child care centre.
The issue I must therefore resolve is whether the intent of the areal space requirement, as specified in Reg 108 of the Regulations, is satisfied by the proposed development, and whether the reliance on the PoM is both realistic and practical for a 45 place child care centre to address the educational needs of all the children attending the centre.
The outdoor play schedule provided in the PoM is complex. The schedule divides the children into (age)groups and then sub (age)groups in order to comply with the limit of 22 children outside at a time. For example, there are proposed to be 27, three to five year olds at the centre. At any one time, only a portion of this group can be outside. The same pattern is provided for the two to three year old age group, where, although there are only 18 of this age group proposed, they are not all scheduled to play outside at any one time. Therefore, neither of the age groupings will all play together outside at any time during the day. In addition, the maximum period of play outside is 1 hour for the older group, and 50 minutes for the younger group. However, the bulk of the (outdoor)play sessions are 30 minute periods.
Therefore, whilst the schedule of outdoor play sessions does comply with the requirements of the noise assessment to limit 22 children playing outside at a time, the quality of these play sessions I consider is not satisfactory for the following reasons.
The description of Reg 108 in s 4.9 of the Guidelines is not particularly helpful to explain the intent of the outdoor space requirement (of 7 m2 per child), except to describe how it should be calculated and state the following:

“An education and care service premises must provide for every child being educated and cared for within the facility to have a minimum of 7.0m2 of unencumbered outdoor space.”

I therefore must turn to the ACECQA Guide to understand the intent of the outdoor space requirement as it relates to a child’s well-being, and whether the space available with the proposed management schedule for a 45 place child care centre is sufficient to satisfy Reg 108 of the Regulations, with regards to outdoor space.

To assess the intent of the areal space requirement of 7 m2 per child, pursuant to Reg 108(2) of the Regulations, I rely on the ACECQA Guide for guidance on what an outdoor space is required to achieve with regards to a child’s development. According to p80 of the Guide (below), which relates to the physical environment in a child care centre, a child needs access to outdoor space as much as indoor space:

Wherever possible, children need opportunities to be outdoors as much as indoors. This can be achieved with well-designed integrated indoor and outdoor environments that are available at the same time.

Further to this, on p82 of the Guide, it describes the function of an outdoor play space within a child care centre:

“Outdoor environments are characterised by both active and quiet zones that comprise a balance of fixed and moveable equipment, open space to engage in physical activities and spaces that promote investigation and respect for and enjoyment of the natural environment.

These spaces are dynamic and flexible and:

• provide opportunities for unique play and learning

• complement and extend the indoor activities and learning experiences

• offer children opportunities to be active, messy and noisy and play on a large scale.”

It is apparent in my assessment of the evidence before me that based on the PoM’s outdoor play schedule that children in a 45 place child centre at this site will not have equal access to outdoor and indoor play spaces. The time allocated for outdoor play for each child is limited to a maximum of 2.5 hours per day over the course of the day in short intervals. I do not consider this equivalent to the time the children will spend indoors at play. In addition, the very limited periods of play, particularly the half hour time slots are insufficient for the children to ‘play on a large scale’.
I agree with the Department that the requirements for ‘Quality Area 3’ of the National Quality Standard for Early Childhood Education and Care (NQS), which:

“focuses on the physical environment and ensuring that it is safe, suitable and provides a rich and diverse range of experiences that promote children’s learning and development”,

is not achieved by the proposed development for a 45 place child care centre, and in particular Standard 3.1 and Element 3.1.3 of the Guide are not satisfied by the proposed outdoor (play) space.
The NQF is achieved through compliance with the National Quality Standard. Therefore, as the NQF, which underpins the National Law and the Regulations is not achieved, I find that the proposed development is not compliant with Reg 108 due to inadequate provision of outdoor space. The proposed development is inconsistent with the National Law and the Regulations.
There appears to be some consistency with the noise assessment limitation of 22 children in the outside space at any one time and the areal requirement for the proposed outdoor space, which pursuant to Reg 108(2) of the Regulations is equivalent to about 22 children for the space provided.
The applicant was given the opportunity during the hearing to consider addressing the non-compliance of its proposed outdoor space by using any indoor space, pursuant to Reg 108(5) of the Regulations, and/or by reducing the number children proposed at the child care centre. The applicant however does not seek to do either of these options, and therefore seeks to rely on the DA before the Court for a 45 place child care centre with its supporting documents including the amended plans and PoM. The applicant did not provide any further justification for a preference of a 45 place as opposed to a 22 place child care centre.
I find that the proposed development based on the supporting documents to the DA for a 45 place child care centre is not in compliance with the Regulations, specifically Reg 108. The proposed development is also not compliant with cl 22(1)(b) of the SEPP. (paras.33-46)

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Reporting Child Abuse and Neglect

Child Family Community Australia have updated their resources sheet on reporting, by service providers, of child abuse and neglect.

Action Against NSW Family Day Care Services

The Kidspot website reported on action taken against 188 "fake or dodgy" FDC services.

Unfair Dismissal: Emma Horan v Tren Trading Pty Ltd t/a Dubbo Early Learning Centre

This is an unfair dismissal case of an Early Childhood Teacher heard by the Fair Work Commission. The educator was dismissed following an anonymous allegation related to her forcibly removing a child who was engaging in rough play to an exclusion spot. After asssessing the evidence, the Commission assessed the educators' dismissal as ‘harsh, unjust and unreasonable’, within the meaning of the Fair Work Act 2009 and awarded the educator $11,860 compensation. The Commission observed: 

On my reading of the Regulatory mandate [National Law], Mr Stapleton [owner of the centre] was only required to notify of the incident within 24 hours. He went further by advising of the applicant’s suspension and of an investigation having been commenced. Far worse, he rushed to judgement, without affording the applicant natural justice. There was no legal, ethical or logical reason to do so. He could have, for example, kept the applicant on suspension, accepted her reasonable request for 24 hours’ notice of a directed meeting and provide her with the details of the complaint by email. These are the usual and orthodox steps taken in employment situations such as this. It is true, as Mr Stapleton put, that there is nothing in the Regulations requiring 24 hours’ notice to be given to a person about whom a complaint has been made. However, Mr Stapleton confuses his separate obligations under s 387(c) of the Act, to afford the applicant a (reasonable) opportunity to respond to the allegations. The notice given was not reasonable, and even less so given that she was not provided with the actual details of the allegations in writing (or at all).(para 107).