Report on Government Services 2020 - Early Childhood Education & Care

Part B of the Report on Government Services 2020 (ROGS report) was published today. Section 3 deals with early childhood education and care. The ROGS report is an annual report produced by the Productivity Commission comparing the performance of State and Territory governments in the delivery of a wide range of services.

In relation to childcare, some interesting information is revealed in the report in relation to compliance.

Confirmed Breaches

The jurisdictions with the highest number of confirmed breaches of the NQF per 100 services (in 2018-19) were: Northern Territory (383.7, last year 187.6), Victoria (177.1, last year 153.9), and NSW (141.7, last year 144.9). These were also the top three last year. The lowest were Tasmania (28.1), South Australia (28.2) and ACT (38.5). The report indicates these figures are not comparable between jurisdictions due to differences in administrative and reporting procedures and also changes in processes since last year.

Nationally, there were 132.4 confirmed breaches per 100 services (up from last year's 125.7). The highest rates were for family day care (292.3 breaches per 100 services, down from 295.9 last year.) and centre based day care (158.8 breaches per 100 services, slightly up from 155.3 last year).

The report continues to show that the proportion of breaches resulting in action being taken by Regulatory Authorities varies wildly across jurisdictions, because what is regarded as "action" taken varies by jurisdiction and differences in recording practices. For instance, in South Australia action was taken in 4.5% of case, whereas in the ACT 100% of breaches were addressed.

Serious Incidents

The jurisdictions with the highest number of serious incidents (as defined in regulation 12 of the National Regulations) that have occurred per 100 services (in 2018-19) were: ACT (161.5, 131.8 last year); WA (116.6, 114.7 last year; and Queensland (106.9, 108.3 last year). These were the top three last year as well. The lowest were: Northern Territory (76), Victoria (85.3) and Tasmania (90.9).

Nationally, the total number of serious incidents grew by 4.7%. There were 101.7 serious incidents per 100 NQF services with a total of 16,185 serious incidents having occurred. This is up from last year when the figures were 97.9 serious incidents per 100 NQF service and 15,435 serious incidents.

Application for Cancellation of Prohibition Notice: Nilufar v Secretary, Department of Education

This is another case heard by the NSW Civil and Administrative Tribunal where an educator has sought a review of the decision by the Regulatory Authority under the National Law in NSW (Department of Education) to impose a prohibition notice under section 182.

In this case, a family day care educator was issued with a notice which in effect prohibited her from involvement in education and care services (see para. 2 of decision). The basis of the prohibition notice was that there was an unacceptable risk to children as a a search warrant (in relation to the activities of two of her sons) was executed by police at the premises which found a white toxic substance in the garage.

In reviewing the imposition of the prohibition notice, the The Tribunal was required to assess whether it was satisfied that there may be an unacceptable risk of harm posed by the educator to children if the educator were allowed to remain on the premises or provide education and care services to children (para.52). The Tribunal looked at the objectives of the National Law in determining the scope of "unacceptable risk" and concluded:

In our view, therefore, in this context a risk is unacceptable if it is not compatible with, or would detract from ensuring the safety, health and wellbeing of children attending the services provided by the applicant and promoting the rights and bests interests of children. (para.58)

The Tribunal then made the following assessment:

While the evidence concerning the criminal investigation and the dinitrophenol is limited, it is still open to the Tribunal to consider that there may be a risk (Shak-Ra-Zad v NSW Department of Education, unreported, NSW Civil and Administrative Tribunal, 2018/67404).
The presence of the white powder suggests that a person or persons who have lived at or used the premises where the education and care service was operated, have access to and use prohibited substances. One of the applicant’s sons conceded he knew about the powder. While he does not live there presently, he may return there in the future.
Its presence also poses a risk that children might come into contact with those substances. While it might not be possible for a child to gain access to the garage, there is a risk that the substance could be used in other parts of the premises which are accessible by children. We also note that the boxes on top of the container where the substance was stored contained toys which might be used by children.
The execution of the search warrant on the premises and the ongoing police investigation of the applicant’s sons, in relation to possible kidnapping, drug offences and drug importation offences, present a risk that should the sons return to Australia, any children at the premises might be exposed to contact with serious criminal activity or possible harm. Based on the available evidence, the premises is associated with the two sons as their only official residential address. The applicant said that her sons would be allowed to stay there if they return to Australia.
We consider that these risks are unacceptable in the context of the legislation. Any hardship to the applicant is not relevant in assessing the risk.
There is no evidence to suggest that the applicant knows of or is associated with any criminal activity. We did find her evidence to lack credibility in relation to her knowledge of her son’s whereabouts and we found it improbable that she would not have asked where they were or how long they would be away. Nonetheless we consider that the risk is associated with the applicant providing the services on those premises or other premises associated with her sons, rather than associated with the applicant herself. (paras.59-64).

The Tribunal therefore found that the scope of the prohibition notice was too broad:

In that regard we consider that the content of the prohibition notice was disproportionate to the risk. We do not consider that the applicant being engaged as a supervisor, educator, family day care educator, employee, contractor, volunteer or staff member of an education and care service which is not at her own premises presents an unacceptable risk. Therefore the correct and preferable decision would be to amend the decision so that it addresses the identified risk.(para.65).

Fair Work Case Against Joys Child Care

In another case involving Joys Child Care Limited, the Sydney childcare operator has been ordered to pay $54,752 to two educators who were not paid for an entire year under the guise of unpaid work experience. The Australian reported on this case and you can read the full Federal Circuit Court judgment here. 

This appears to be a follow up case case to that mentioned in a previous blog.

Changes to National Regulations

Further to a previous blog, amendments to the National Regulations have been published. Changes came into effect on 31 December 2019, with the exception of changes to regulation 17(3)-(5) which come into operation on 1 July 2020. Similar changes have been made through the WA Education and Care Services National Amendment Regulations 2019.

A summary of the changes can be found on the ACECQA website (including a table of changes) and The Sector website.

Unfair Dismissal: Rachna Gulia v Communities@Work Limited

This is another case heard by the Fair Work Commission in relation to the unfair dismissal of an educator by a childcare service. The educator was dismissed after some alleged incidents. While there was no issue of procedural fairness, the Commission did assess the conduct for which the educator was dismissed:

In summary, of the conduct relied upon by the Respondent to dismiss Ms Gulia I am only satisfied Ms Gulia repeatedly called Blake a “baby” for wanting his dummy. Otherwise, I am not satisfied that conduct attributed to Ms Gulia in the allegations took place. While Ms Gulia’s conduct in repeatedly calling Blake a ‘baby’ for wanting his dummy in my view contravenes the Respondent’s Children’s Services: Relationships and Interactions with Children Policy by potentially negatively impacting on his self-esteem, the conduct of itself is not sufficient to provide a valid reason for Ms Gulia’s dismissal. In my view the conduct warranted some lesser form of remedial action, e.g. a written warning or a targeted performance improvement process.
Beyond this I would observe that while the Respondent has a range of policies and procedures in place, what appears to be lacking is any robust process for recording and/or dealing with conduct which is potentially inconsistent with those policies and procedures. The picture painted in this case was one of the Respondent having significant concerns about several aspects of Ms Gulia’s conduct over a period of time which attracted some informal guidance from Ms Paxton but no formal response in circumstances where it was alleged that the conduct persisted or where more serious conduct was alleged to have occurred. In short, in this case no one with any managerial or supervisory responsibility at the Centre or the Respondent’s human resources area appears to have done anything to either escalate issues and/or consider a more appropriate response to address the alleged conduct in circumstances where it appears that informal guidance may not have had the desired effect.(paras.79-80).

The Commission, therefore found:

In summary, I find that there was not a valid reason for Ms Gulia’s dismissal related to her conduct, that a number of criterion in s.387 do not point to Ms Gulia’s dismissal being unfair, that the Respondent’s decision to dismiss her was disproportionate to the conduct which took place, that Ms Gulia’s lengthy and uneventful service with the Respondent is a relevant consideration and that the other factors in s.387 of the Act are either neutral considerations or not relevant in this case. In this case the absence of a valid reason for Ms Gulia’s dismissal outweighs those considerations which do not point to her dismissal being unfair. Accordingly, having regard to the material before the Commission and the factors set out in s.387 of the Act supports a finding that Ms Gulia’s dismissal was harsh because insufficient weight was attached to her lengthy and uneventful service, unjust because there was not a valid reason for her dismissal and unreasonable because it was disproportionate to the conduct which took place. (para.94)

The issue of remedy was deferred to a future hearing.

National Quality Framework Review 2019

The NQF Review have just published a Consultation Summary Report providing a summary of the feedback it received to its issues paper. Almost 1,800 survey responses were received and more than 2,500 people attended face‑to-face consultation sessions. More information on the review is available from the NQF Review website.

In addition, ACECQA have recently published the NQF Annual Performance Report 2019 and its Annual Report 2018-19.

New ECT Requirement from 2020

ACECQA have published in their newsletter a reminder of the requirements that apply from 1 January 2020 requiring services to have a second early childhood teacher or, alternatively, a ‘suitably qualified person’ when 60 or more children preschool age or under are being educated and cared for (see regulations 133-4).

Sydney Childcare Death

ABC Online recently carried a story on the death of a 16 month old child last year.

Education Council Outcomes

The Education Council met on 12 December and issued a communique on its meeting. Some of the issues covered were the Universal Access National Partnership Review; ACECQA Review; Children’s education and care national workforce strategy; National Quality Framework Review; and the Education and Care Services National Amendment Regulations 2019. 

Further analysis of the outcomes can be found on The Sector website.

Unfair Dismissal: Lucinda Vennix v Mayfield Childcare Limited

This is an interesting case heard by the Fair Work Commission in regard to the dismissal of a Centre Manager (Applicant) following a number of incidents. However, the Commission stated that the reason given by the Respondent fell short of a valid reason for immediate termination for negligence and that procedural fairness was not accorded. Although the Commission found that the Centre Manager had been unfairly dismissed it declined to award compensation, as it stated:

I find that in all the circumstances, I do not consider that payment of compensation is appropriate because the Applicant was out of her depth in the role of Centre Manager. While her experience in the sector is substantial, her experience in managing a centre, its liabilities, and responsibilities was not at a standard required by the Respondent. It is evident the Applicant did not have the required competency to perform the role dependably without support by the Respondent.
Given its size and resources, I find the Respondent managed the appointment and employment of the Applicant inadequately. Given the level of experience in the childcare sector and the Applicant’s admission that her priority is her private care obligations, I am of the opinion that there is limited scope that the Applicant would have maintained enduring employment in the role as Centre Manager.
I therefore decline to order any remedy, notwithstanding that I found the Applicant was a person protected from unfair dismissal and had been unfairly dismissed (paras.110-2).

Commencement of SA No Jab No Play Legislation

The South Australian Government has issued a media release in relation to changes to the Public Health Act 2011 which come into effect next year. From 1 January 2020, early childhood services will be required to keep a copy of all approved immunisation records for the duration a child is enrolled in their service.

Latest NSW Prosecutions

The NSW Regulatory Authority under the National Law (Department of Education) has recently published details of prosecutions it has taken over the last five months on its Website. 

A number of the prosecutions occurred in relation to the operation of Family Day Care Service, Joys Child Care. The approved provider, Joys Child Care Limited, and the holding entity of the service, the Chinese Students Association, were each fined $47,500 for providing an education and care service without a service approval and advertising education and care services for a service that was not an approved service. Mr Jan Shang, person with management or control of Joys Child Care Limited and Chinese Students Association, was fined $34,000 for the above offences as well as obstructing an authorised officer, failing to comply with requirements made by an authorised officer and failing to comply with a requirement under section 215.

In addition, the Council of the City of Sydney, approved provider of Ultimo Children’s Program, was fined $10,00 for breach of sections 165 and 167. The facts were that a nine year old child with Downs Syndrome was enrolled at the service. The parents of the child made the approved provider aware of the child’s tendency to abscond. At approximately 5:30pm on 5 February 2018, a parent advised a staff member that she had just seen the child walk through the foyer and leave the service. A staff member immediately went after the child, who was observed on the corner of two streets. The staff member started to run towards the child, which caused the child to start running away from the staff member. The staff member stopped running and the child allowed the staff member to approach and they returned to the service.

Thanks to a blog reader for advising of this update.