Protection from Harm and Hazard (Section 167, National Law): Chief Executive Officer, Department of Communities and Success Early Learning Pty Ltd

This a very instructive case recently adjudicated by the West Australian State Administrative Tribunal. In this case an order was 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 167 of the National Law by the approved provider (Success Early Learning Pty Ltd)) by failing to ensure that every reasonable precaution was taken to protect children being educated and cared for by it from harm and from any hazard likely to cause injury.  The facts of the case are set out in the statement of relevant facts (Annexure A). In summary, at its Success Early Learning service, a child almost 3 years old and several other children were playing outside at the service, being supervised by one educator. After dealing with other children fighting the educator heard a scream and saw the child lying on her back, crying and pointing to her foot and refusing to stand on it. The service put ice packs on her foot and called her parents who took her to the Perth Children’s Hospital burns unit for treatment.
A penalty of $14,500 was imposed on the approved provider with a further $2,000 to be paid to the Department for legal costs.

In Western Australia, uniquely, 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.

In support of this case, the Department of Communities issued a media release today reminding childcare operators to adequately protect children from the sun and of the heating effect the sun has on playground surfaces and equipment. Some time ago I published a post on the issue of high surface temperatures found in childcare outdoor play spaces.

Fair Work Ombudsman Action Involving Sydney Childcare Centre

According to a media release by the Fair Work Ombudsman the Ombudsman has secured $30,240 in penalties against a former Sydney childcare centre operator for failing to back-pay two migrant employees who worked for the centre under the guise of a volunteer arrangement. The Federal Circuit Court has imposed a $5,040 penalty against Sydney man Jan Shang, who formerly operated the Joys Child Care centre in Parramatta, and has penalised his company, Joys Child Care Limited, an additional $25,200. This childcare centre and Mr Shang have been subject to a number of actions reported on in previous posts.

Education and Care Services National Amendment Regulations 2020 Published

Further to the previous post, the Education and Care Services National Amendment Regulations 2020 have been published on the NSW legislation website.

Education and Care Services National Amendment Regulations 2020

According to a report on The Sector website, from 1 October, an amendment to the Education and Care Services National Regulations, will introduce new requirements for approved providers of early childhood education and care services that offer, or arrange, transportation of children.

From 1 September there also will be amendments made to staffing provisions in South Australia.

For further information on all the regulatory changes see the ACECQA website.

NSW Child Safe Standards

The NSW Office of the Children’s Guardian has released the Guide to the Child Safe Standards to support organisations working with children to create, maintain and improve their child safe practices.

Victorian Enforcement Actions Under the National Law

The Sector website has published an analysis of enforcement actions undertaken by the Victorian regulator, the Department Education and Training, in 2020.

Changes to Queensland Blue Card System

From 31 August, a number of changes to the blue card system come into effect, including the requirement for Queensland childcare workers to have a valid blue card before they can start work. Comprehensive information on the changes is given on the Queensland Government website.

Transporting Children as Part of Childcare Service

The Department of Education has published guidance for approved providers of both centre-based and family day care services operating in Queensland that transport children as part of their service.

Stay of Cancellation of Provider Approval: Mother’s Choice Family Day Care Pty Ltd v Secretary, Department of Education

The NSW Civil and Administrative Tribunal recently stayed the decision of the Department to cancel the provider approval of Mother’s Choice Family Day Care Pty Ltd under section 33(1)(a)(i), Children (Education and Care Services) National Law (NSW). The decision was stayed until a further hearing by the Tribunal and on the following conditions:

(1)   Mother’s Choice Family Day Care Pty Ltd is prohibited from enrolling more than 100 children at Kids Choice Family Day Care Pty Ltd at any one time.

(2)   Mother’s Choice Family Day Care Pty Ltd is prohibited from engaging or registering more than 17 educators with Kids Choice Family Day Care Pty Ltd.

(3)   Mother’s Choice Family Day Care Pty Ltd is to suspend the provision of education and care by the following educators: Aliaa Kobbanchi, Nabila Quadrat, Chania El Mir, Shaista Khan, Maryan Mohamed and Shukira Abubeker.

(4)   Mother’s Choice Family Day Care Pty Ltd is prohibited from engaging and registering Waad Elchehni with Kids Choice Family Day Care Pty Ltd.

(5)   Mother’s Choice Family Day Care Pty Ltd is to provide proof of the suspensions arising under condition (3) to the respondent by 5:00 pm on 30 June 2020.

Planning Application: Hume Childcare Pty Ltd v Maroondah City Council

This case relates to an appeal to the Victorian Civil and Administrative Tribunal against a decision by the Maroondah City Council to refuse to grant a permit for the construction of a 139 place childcare centre at Canterbury Road, Heathmont. A number of local residents also opposed the development. The case is interesting as it outlines the approach taken in Victoria in relation to planning applications and local need. As stated by the Tribunal (at paras.22-23, 25):

In submitting that the capacity of the centre is excessive, Mr Davidson and other neighbours submit that there is not a demonstrated need for the proposed number of places and that there are other existing and planned centres nearby to fulfil any local need for childcare.
The Tribunal has often commented that in assessing whether a proposal services a local need, a proposal does not need to demonstrate economic viability. Economic viability is a matter that sits outside of planning considerations. The question of need, in a town planning sense, is usually to determine if there is a need for a service that may outweigh amenity impacts that may arise from the proposed use. For a non-residential use in a residential zone, this is in effect a question of whether the use, that may have character and amenity impacts that are different to residential use, can be justified and is reasonable because of the benefits the use brings to the area by way of fulfilling a local need for that use.....

In the case before us, we accept that there must be some local need, otherwise the proponent would not be pursuing the application as it would not be economically viable. However, while an additional childcare centre in the general residential area may be viable, nothing was put to us that this is the only site that could accommodate demand for childcare places in the local area, thereby elevating the issue of need in an assessment against other matters.

The Tribunal assessed the amenity impacts and concluded that "[w]e are satisfied the proposed use does not result in any unreasonable amenity impacts by way of noise, traffic, on-street car parking overlooking, or visual bulk." (para. 68). The Tribunal then assessed whether the proposed development was consistent with the character of the area and concluded (at para. 104):

We are satisfied that both the built form and any impacts of the scale of use are reasonable for the site location. We find the proposal is not too intense and therefore, for the reasons given above, the decision of the responsible authority is set aside. A permit is granted in accordance with the conditions set out in Appendix A.

Cancellation of Child Care Benefit Approval: Al-Huda Pty Ltd and Secretary, Department of Education and Training

In this matter before the Australian Administrative Appeals Tribuna,l the question to be decided was whether the applicant’s (Al Huda Pty Ltd) approval as a provider of child care services should be cancelled or some other sanction or no sanction should be imposed. The Commonwealth Department of Education and Training cancelled the provider approval of this Family Day Care provider after it identified non-compliance with the family assistance law, including reporting care when educators or children being claimed for were overseas; child swapping; reporting sessions of care as absences before care for the child commenced and after it ceased; Late reporting of enrolments and late submission of attendance records; reporting sessions of care for children who attended other services when care was reported to have occurred; reporting care that occurred in the home of the child; reporting sessions of care where no-one was eligible to receive CCB or CCR; and receipt of payments that could not be passed on to the relevant individuals and failed to remit payments to the department. The cancellation was previously stayed by the Federal Court (see previous blog post).

The Tribunal concluded that the applicant was not a fit and proper person and that the approval should be cancelled because (para. 194):

• "..the Applicant’s non-compliance shows that it has resulted in significant and multiple overpayments of CCB and is likely to result in significant and multiple overpayments if the approval is not cancelled because of its demonstrated past and continuing fundamental failure of governance and its lack of understanding of its obligations."
• "..the Applicant has demonstrated a reckless disregard for the obligation to comply with conditions for continued approval."
• the Applicant is not a fit and proper person as "the Applicant’s non-compliance with Commonwealth and State laws (the National Law) is serious, frequent and ongoing"; the non compliances demonstrate "...that the Applicant had no, or inadequate, governance arrangements to ensure that the Applicant, its staff, educators, and parents/guardians complied with the family assistance law"; "...the Applicant has a poor record of administering Commonwealth funds because the Applicant has a debt to the Commonwealth, and has on numerous occasions, failed to pass on a fee reduction and not immediately remitted the payment to the Respondent."; "...the Applicant owes a significant debt to the Commonwealth."; "...the Applicant has some experience as a provider but as found above, its expertise is not commensurate with the length of its experience, as demonstrated by its past and on-going non-compliance with and lack of understanding of its obligations under the family assistance law."; and the Tribunal was "...not satisfied that the Applicant's recently adopted and proposed procedures and policies will ensure that it complies with its obligations under the family assistance law."
• "the Applicant’s non-compliance with the educator to child ratio and its lack of knowledge of when, where and whether care took place, as demonstrated for example, by its non-compliance in relation to educators and children overseas and care in the child’s own home, shows that the non-compliance constitutes an unacceptable risk to the safety, health or wellbeing of children being cared for..."
• "...little weight should be given to the recently implemented and proposed policies and procedures because they do not address the fundamental governance problem of unreliable records and evidence from Ms Tlais, which continued to be exposed up to and during the hearing. The policies do not provide detailed procedures. The Applicant has not adopted an obvious measure that is likely to improve the accountability of educators and parents, that is, requiring payment of the gap fee to the provider and not to the educator."

Changes to National Construction Code

From today, the National Construction Code (NCC) 2019 Amendment 1 has been adopted. One of the changes is a new provision in Volume One, D1.18, regarding egress from early childhood centres. For more information see the Australian Building Codes Board website.