COMPARISON BETWEEN THE CHILDREN S SERVICES REGULATION 2004 AND THE EDUCATION AND CARE SERVICES NATIONAL REGULATIONS

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1 COMPARISON BETWEEN THE AND THE EDUCATION AND CARE State of New South Wales, Department of Education and Communities This document remains the copyright of the State of New South Wales, Department of Education and Communities. Permission is granted for viewing and downloading for personal and not for profit purposes on the condition that copies of the material shall be made without alteration and must retain acknowledgement of the copyright. Individuals or organisations wishing to publish or reproduce any materials for other purposes are requested to contact the Department of Education and Communities.

2 INTRODUCTION The table below compares key provisions of the Children s Services Regulation (NSW), as at 31 December 2011, with the Education and Care Services National Regulations that apply in NSW from 1 January The focus of the comparison table is on operational requirements for services. The information in this comparison table is general. It is for information purposes only, and may not apply to your situation. The information does not constitute, and should not be relied on as, legal advice. The department recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter. While the department tries to ensure that the content of this comparison table is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. The department is not responsible for any loss suffered as a result of or in relation to the use of this comparison table. To the extent permitted by law, the department excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this comparison table. GENERAL COMMENTS Prescriptive vs Outcomes Based Approach A key difference between the Children s Services Regulation (NSW) (NSW Regulation) and the Education and Care Services National Regulations (National Regulations) is that the NSW Regulation is very prescriptive and include specific details about what a service must do to comply, whereas the National Regulations are more outcomes based in that they require that an outcome be met without necessarily specifying how a service should do so. This difference in approach means that many provisions in the NSW Regulation do not appear to have a direct counterpart in the National Regulations. However, in most cases the specific requirement is actually encompassed within a more general requirement in the National Regulations. For example, the NSW Regulation specifies the temperature at which hot water in centre-based children s services should be regulated, whereas the Children (Education and Care Services) National (NSW) (National ) and the National Regulations have only a general requirement that approved providers etc take reasonable precautions to protect children from hazards likely to cause injury. The practical effect should be the same, but the outcome focus allows services to adopt measures relevant to their specific circumstances. Offence Provisions Not all of the regulatory requirements in the National Regulations are offence provisions. This is different from the NSW Regulation which provides that all provisions in Part 3, 4, 5, 6 and 7 of the NSW Regulation (facilities and equipment requirements, staffing requirements, child number requirements, operational requirements and administrative requirements) are prescribed conditions of a children s service approval. The Children and Young Persons (Care and Protection) Act 1998 (NSW Act) in turn provides that contravention of an approval condition is an offence with a maximum penalty of $22,000. Regulation of Outside School Hours Care A substantive difference between the NSW Regulation and the National Regulations is that outside school hours care services are now generally regulated by the National (subject to the exemptions in regulations 251 and 287 of the National Regulations). Previously they were only regulated to the extent of clause 62 of the NSW Regulation. page 2

3 Physical Facilities and Equipment Administration and private consultation space 30(1)(a) 111 The National Regulations allow one or more areas to be used to satisfy this requirement. Otherwise the requirement is the same. Area for staff respite 30(1)(b) No equivalent No longer required under the National Regulations. Area for children under 2 years to sleep 30(1)(c) No equivalent No longer required under the National Regulations. Indoor play space 30(2), (3) 125, Schedule , 286, 287 Although the area of indoor space required per child remains the same under the National Regulations (3.25m 2 ), some of the details of how the space is to be calculated are slightly different. In contrast with the NSW Regulation, a kitchen may be counted as unencumbered space under the National Regulations if it is primarily used by children as part of the educational program. The National Regulations also allow a verandah to be included in a service s indoor space calculation - with the consent of the Regulatory Authority - as long as the area is not also included in outdoor space calculation. This is not allowed for under the NSW Regulation. Other areas excluded from the calculation of unencumbered space are described slightly differently. However, the difference in terminology probably makes little practical difference. The differences include the following: Whereas the National Regulations specifically exclude nappy change areas, areas for preparing bottles and (broadly) hygiene facilities, the NSW Regulation simply excludes space that is not exclusively for the use of children. In all but marginal cases (e.g. hygiene facilities which are intended solely for children), this should have the same effect. There may be some areas which are exclusively for the use of children e.g. a narrow play area between a service s building and the premises boundary but which will not be classified as suitable for children under the National Regulations. Under the National Regulations, storage is broader than the NSW Regulation reference to cupboards. However, as only areas permanently set aside for storage page 3

4 are excluded under the National Regulations, this may be narrower than at first appears. Exemptions to these requirements in the NSW Regulation savings and transitional provisions persist in the National Regulations, with some minor modifications (e.g. provision for expiry of the exemption where the premises is renovated or where the service is no longer provided by a school on a school site). An additional exemption has been included in the National Regulations for services not previously regulated by the NSW Regulation (i.e. outside school hours care services). Outdoor play space 30(4), (5), (6), (7) and (8) 125, Schedule , 286 The area of space required per child remains the same under the National Regulations (7m 2 ), but some of the details of how the space is calculated are slightly different. With respect to general exclusions: The NSW Regulation requires space to be useable outdoor play space that is exclusively for the use of children without any fixed items that prevent children from using the space or obstruct supervision. Under the National Regulations, space must be unencumbered and any space that is not suitable for children is excluded. The National Regulations also specifically exclude pathways and thoroughfares (unless used as part of the program) and storage areas and sheds. However, these are probably already excluded under the NSW Regulation either because they are not useable outdoor play space or because there is a fixed item that prevents children s use of the space or obstructs supervision. The Regulatory Authority under the National Regulations has a broader discretion to permit indoor space to be calculated as outdoor space (provided the space is not also included in indoor space calculations). However, it is still likely to consider whether outdoor space could be provided and to require the indoor space to be designed and equipped to permit children to participate in activities that promote gross motor skills. Under the National Regulations, the Regulatory Authority does not have a direct power to impose conditions on a consent to include indoor space as outdoor space, but does have a general power under the National to impose conditions on service approval. An alternative means of granting conditional approval could be through a service waiver, although a service waiver may only be granted following an application by the approved provider. page 4

5 Exemptions to these requirements in the NSW Regulation savings and transitional provisions persist in the National Regulations, with some minor modifications (e.g. provision for expiry of the exemption where the premises is renovated or where the service is no longer provided by a school on a school site). Outdoor play spaces - natural environment No equivalent 113 The National Regulations require the approved provider of a centre-based service to ensure that outdoor spaces are set up in such a way that they allow children to explore and experience the natural environment: for example, by including natural features such as trees, vegetation and sand. The NSW Regulation does not include this requirement. Shade 30(6) , 251 Laundry facilities 31(1) and (3) Both the NSW Regulation and the National Regulations require adequate shade. Although the National Regulations no longer mandate compliance with The Shade Handbook, this publication will still be relevant to determining what shade is adequate in NSW. The National Regulations include some transitional and savings provisions which exempt certain types of services from this requirement in certain circumstances: Outside school hours care services in NSW that existed before 1 January 2012 are not required to comply with this requirement until the premises is renovated or the service approval is transferred (however there will be an impact on the service s rating after 31 December 2015 if a service premises still doesn t comply with this requirement at that date). A school-based service that delivers a preschool program in a composite class is not required to comply with the National Regulations shade requirement. Unlike the NSW Regulation, the National Regulations do not require all centre-based services providing care to children under 3 years to have laundry facilities available on the premises. All services must simply have appropriate, adequate and safe (a) laundry facilities, (b) access to laundry facilities or (c) other arrangements for dealing with soiled clothing (which might include hygienic facilities for storage). In practice, appropriate, adequate and safe facilities will need to reflect the ages and number of children, and health and hygiene practices required under other provisions. Craft preparation facilities 32 No equivalent The National Regulations do not require a separate area for craft activities (or associated requirements for the area to include a sink, bench top and lockable cupboard and be page 5

6 77 located elsewhere than next to food prep facilities or nappy change areas). s167 National However, general requirements relating to health and hygiene and protection from hazards will be relevant. These general requirements are offence provisions and may be the subject of compliance directions. Food preparation and storage areas Area for the preparation of bottles Toilet, hand-washing, drying and bathing facilities 33(1), (2), (3), (4) No specific equivalent 78, 77 s167 National 33(5), (6) No equivalent The National Regulations are more flexible than the NSW Regulation in relation to food preparation facilities. For example, although the National Regulations require food and beverages appropriate to the needs of each child to be offered on a regular basis throughout the day, certain services (e.g. services only providing care to school children for short periods of time) may be able to do this without providing food preparation and storage facilities. Further, a barrier to the kitchen may not be necessary, depending on the age of the children being cared for. General requirements that a service implement safe food handling, preparation and storage practices, protect children from harm and hazards likely to cause injury and ensure adequate supervision at all times must still be met and will require many if not all of the matters set out in clause 33 of the NSW Regulation to be met. Each of these general requirements is an offence provision and may be the subject of compliance directions. The National Regulations do not require a separate bottle preparation area. If a service has a bottle preparation area, its location must be consistent with adequate health and hygiene practices. There is a very slight difference in terminology, but the requirements are effectively the same in both sets of Regulations. In addition to NSW Regulation requirements that the facilities be safe and age appropriate, the National Regulations require them to be appropriate to the developmental stages of the children being cared for, adequate in number and conveniently accessible by the children. While premises are no longer specifically required to have products and equipment for cleaning the toilet and washing facilities, adequate health and hygiene practices will dictate that the facilities must be kept clean. page 6

7 Nappy changing facilities , 77 The National Regulations are less prescriptive and rely on an outcome based requirement that a service provide adequate and appropriate hygienic facilities for nappy changing, including at least 1 properly constructed nappy changing bench if any child is under 3 years of age. 116(2)(c) Centre-based Services Other requirements in clause 35 will generally be met through compliance with the general health and hygiene requirements in the National Regulations. Adjacent age appropriate washing facilities with temperature regulated hot and cold running water and a sluice or contaminated waste disposal unit are no longer specifically required but may fall into this category. Family day care services 106, 77 The nappy change facilities requirements for family day care services are dealt with separately in the National Regulations because it will be the approved provider s responsibility to assess each family day care residence or venue to determine whether it has suitable nappy change arrangements to ensure the health, safety and wellbeing of children. Although the detailed nappy change facility requirements (discussed above) will no longer be directly applicable to family day care services under the National, the general requirements with respect to health and hygiene practices and laundry facilities do apply to family day care services. Sleeping facilities 36 No specific equivalent 81, 77, 155(e) s167 National The National Regulations do not include a specific provision about sleeping facilities. However some other requirements in the National Regulations are relevant: The requirement in the National Regulations that the sleep and rest needs of children are met will require adequate sleeping facilities to be provided at the premises. The general requirement that adequate health and hygiene practices be implemented will require similar standards of cleanliness to those under the NSW Regulation. The NSW Regulation requirement for culturally appropriate bedding is addressed through a general requirement to take account of a child s family and cultural values. NSW Regulation requirements that children not share beds and that no child who is 7 or above may sleep in the same room as another child of the opposite sex and that adults generally not sleep in the same room as children are not prescribed by the National Regulations. However, approved providers, nominated supervisors and family day care page 7

8 educators have a general obligation under the National to ensure that reasonable precautions are taken to protect children from harm and hazards. Nor are the specific requirements relating to the design and placement of beds, or compliance with Australian Standards relating to cots under the National Regulations. However, in practice services would be expected to use Australian Standard compliant cots. Storage facilities 37 No specific equivalent s167 National The National Regulations do not specifically regulate storage facilities. However the requirement in section 167 of the National that reasonable precautions be taken to protect children from harm and any hazards requires that certain items be stored in places inaccessible to children. Swimming pools , Sch ss 165, 167 National The NSW Regulation prohibition on having a swimming pool at a centre-based service unless the pool existed before 6 November 1996 continues to apply to centre-based services for children preschool age or under. School based services with a swimming pool that predates 1 July 2008 continue to be exempt from this prohibition. The additional NSW Regulation requirement that any such pool at a centre-based service be fenced in accordance with the Swimming Pools Act 1992 (NSW) will no longer apply (unless that Act already applies because the premises has a residence on it). However, the general requirement to protect children from harm and hazards will mean that a pool fence is required. Family day care services continue to be allowed to have pools, subject to pool fencing requirements. Telephone The National Regulations require services to have a telephone or communication equipment that enables immediate communication with emergency services and with parents (the NSW Regulation only refers to emergency services). In practice this requirement means that a pre-paid telephone must always have sufficient credit to enable normal calls to be made, and not just emergency calls. The National Regulations are more flexible in relation to the type of communication equipment that can be used. Development and play equipment , 105 s167 National Although the NSW Regulation is more specific in relation to what aspects of play equipment might constitute a hazard, the National continues to require services to ensure that play equipment does not present a hazard. Both sets of Regulations also page 8

9 require equipment to be safe and in good repair. The National Regulations continue to require services to provide children with access to materials and equipment suitable to their development and needs. There is no longer a specific requirement that the materials and equipment be representative of a diverse range of cultures or that there be a balance of indoor and outdoor equipment, but the requirement that the materials and equipment be suitable for the education and care of [each] child will have a similar effect. The NSW Regulation specifically requires compliance with Australian Standards in relation surfacing under or around play equipment in a centre-based service. This is not specifically required by the National Regulations but in practice services would be expected to use Australian Standard compliant surfacing. First aid kits Centre-based services will now need to have an appropriate number of first aid kits, having regard to the number of children attending, whereas the NSW Regulation only requires one (well stocked) kit at each premises. Conditions relating to storage of and accessibility to first aid kits are slightly different: The National Regulations do not specifically require first aid kits to be stored in a place that is inaccessible to children (given that an older child might need to be able to access a first aid kit in an emergency situation at an outside school hours care service). However, the general requirement that children be protected from harm and hazards will dictate that the first aid kit is kept in a place that is inaccessible to younger children. The National Regulations require that the first aid kit be easily recognisable and readily accessible to adults generally (rather than just accessible to the staff/family day carer who know where the kit is). In contrast to the NSW Regulation, the National Regulations do not specifically require adult and child cardio-pulmonary resuscitation charts to be prominently displayed. Fire safety equipment 42 No specific equivalent s167 National There is no requirement in the National Regulations relating to fire safety equipment. These matters are already governed by other NSW legislation for some types of buildings. For example, the Environmental Planning and Assessment Regulation 2000 (NSW) contains some requirements with respect to smoke alarms and other fire protection equipment. page 9

10 However, approved providers, nominated supervisors and family day care educators also have a general obligation under the National to ensure that reasonable precautions are taken to protect children from harm and hazards. Ventilation, light and heating s167 National Hot water 44 No specific equivalent Fencing ss 165, 167 National 248, s167 National The NSW Regulation and the National Regulations are essentially the same. Both require appropriate ventilation. Although the NSW Regulation only requires access to natural light and the National Regulations require adequate natural light, services are in practice required to provide adequate natural light under the NSW Regulation. Similarly, the new requirement that the premises be maintained at a temperature that ensures the safety and wellbeing of children in place of the reference to heating in the NSW Regulation is unlikely to lead to any practical difference from a regulatory perspective. NSW Regulation clauses 43(2), (3) and (4) are covered by the health and hazards offence provision in section 167 of the National. Although the National Regulations do not prescribe the temperature at which hot water should be regulated or specifically refer to supervision in the context of hot water, each of the requirements set out in clause 44 of the NSW Regulation will continue to apply under the National offence provisions requiring children to be protected from harm and hazards and adequately supervised. The primary requirement for fencing of outdoor spaces is essentially the same under the NSW Regulation and the National Regulations. In contrast to the NSW Regulation, the National Regulations do not specifically: require the design and height of the fence or gate to inhibit or impede intruders from entering the premises (however, the National Regulations require premises to be enclosed by a fence or barrier (including any gate) that is of a height and design that children preschool age or under cannot go through, over or under it); require any side of a stairway, ramp, corridor, hallway or external balcony that is not abutting a wall to be enclosed to prevent a child being trapped or falling through; require all gates leading to or from the premises of a children s service to be designed so as to prevent children from entering or leaving the premises unsupervised (but see above); or provide for the Director-General or the authorised supervisor of a family day care service to give notice in writing to a service/family day carer requiring them to install page 10

11 child-proof barriers at the top and bottom of stairs. However, these elements are likely to continue to be relevant to the National provisions requiring children to be protected from harm and hazards. Note that Regulation 104 does not apply to a centre-based service that primarily provides education and care to children over preschool age. The National Regulations include some transitional and savings provisions which exempt certain types of services from the National Regulations fencing requirement in certain circumstances: A school-based service that delivers a preschool program in a composite class is not required to comply with the National Regulations fencing requirement. Outside school hours care services in NSW that existed before 1 January 2012 are not required to comply with this requirement until the premises is renovated or the service approval is transferred (however, there will be an impact on the service s rating after 31 December 2015 if a service premises still doesn t comply with this requirement). Glass Requirements applicable to glass remain the same. Although regulation 117 of the National Regulations applies only to family day care services, glass in centre-based services will continue to be regulated by the Building Code of Australia such that the requirements are unchanged. Cleanliness, maintenance and repair s167 National Specific requirements relating to cleanliness, maintenance and repair (including references to fumigation, vermin and pests, access to power points, garbage and rubble) are not included in the National Regulations, but will apply by virtue of general requirements in the National Regulations that the premises be safe, clean and in good repair, that adequate health and hygiene practices be implemented and that precautions be taken to protect children from hazards. Safe environment 48 No equivalent The National Regulations do not specifically require compliance with the Occupational Health and Safety Act However, the obligation to comply arises anyway under that law. Repair of premises s176 National The Regulatory Authority s power to issue a compliance direction requiring certain steps to be taken by an approved provider to ensure compliance with regulation 103 of the National Regulations (which requires premises, furniture and equipment to be safe, clean and in page 11

12 good repair) is much the same as the Director-General s power to direct under clause 49 of the NSW Regulation. The key difference is that clause 49 of the NSW Regulation requires only best endeavours where the licensee is not the owner or directly responsible for maintenance of the premises, whereas the National and Regulations do not distinguish between situations where the provider is the owner or lessee of the premises. Premises designed to facilitate supervision No specific equivalent , 249, 251, 286 The National Regulations include an additional requirement that the approved provider of a centre-based service ensure that the premises are designed and maintained in a way that facilitates supervision of children (whilst maintaining the rights and dignity of the children). Although the NSW Regulation requires children to be supervised (as the National also does, in section 165), there is no requirement specifically relating to the design of the premises. However, the National Regulations include broad transitional and savings provisions that exempt existing services from having to comply with this new requirement until certain circumstances arise. Centre-based services approved under the former NSW prior to 1 January 2012 are exempt from the requirement until such time as the service premises are renovated or the service approval is transferred. However there will be an impact on the service s rating after 31 December 2015 if a service premises still doesn t comply with this requirement at that date. NSW-specific transitional exemption provisions are also included in the National Regulations in relation to school-based children s services operating before 1 July 2008 and outside school hours care services operating before 1 January School-based services that deliver a preschool program in a composite class are not required to comply this requirement at any time (i.e. no time or other restriction). Family day care facilities and equipment 50 No specific equivalent 116 The National Regulations do not make a family day carer directly responsible for meeting physical requirements at their home. Rather, the obligation is placed on the approved provider of the family day care service. Hence, the National Regulations require the approved provider of a family day care service to regularly conduct an assessment of family day care residences and approved family day care venues. Regulation 116 sets out the matters that the approved provider must consider. page 12

13 Staffing The fitness and propriety of staff at centre-based services 51(1), (2) 118 No specific equivalent 146(d), 147(d) 126, 168, 170 The NSW Regulation requires approved providers of a centre-based service to be satisfied, prior to the employment of a primary contact staff member, that s/he is a fit and proper person. In considering the fitness and propriety of a person, a licensee must consider employment screening of the person (Part 7 of the Commission for Children and Young People Act 1998), whether the person has been convicted of a serious sex offence (Child Protection (Prohibited Employment) Act 1998) and whether the person has the knowledge and attributes set out in clause 51(2). There is also a separate obligation in the NSW Regulation on licensees to conduct a probity check on all persons who will be involved in the service (including volunteers), except where employment screening has already been conducted. Both obligations arise prior to the employment/engagement of the person and are not ongoing. The National Regulations do not include specific obligations on approved providers in this form. However, many of the elements of the fitness and propriety test will still arise under the National. For example, certain provisions of the National Regulations imply that approved providers (at least in jurisdictions with a working with children law, such as NSW) must conduct a working with children check or ensure that one is conducted for each staff member and nominated supervisor of a service. This is implied in the requirement that services keep a staff record that includes the identifying number of a current working with children check conducted under that law for each staff member and nominated supervisor. In addition, there are obligations to conduct working with children checks under the Commission for Children and Young People Act With respect to the knowledge and attributes specified in clause 51(2) of the NSW Regulation, many educators will in practice have them by virtue of their qualifications. Age restriction for primary contact staff/educators at centre-based services 51(3) 120 A licensee is prohibited under the NSW Regulation from employing a person as a member of the primary contact staff if they are under 18 years of age. In contrast, the National does not prohibit the employment of a person under 18 years of age as an educator. However, any educator who is under 18 years of age is not allowed to work alone and must be supervised by an educator who is at least 18 years. page 13

14 Family day care educators must be at least 18 years old 100(2) 119 The National Regulations require family day care educators and family day care educator assistants to be at least 18 years old. Under the NSW Regulation, the licensee of a family day care service must not register a family day carer unless the person is an adult. Educational leader No specific equivalent 64(2) The National Regulations require approved providers to designate in writing a suitably qualified and experienced person to be the educational leader at the service, to lead the development and implementation of the educational programs. The name of the designated educational leader must also be recorded in the staff record. Under the NSW Regulation the authorised supervisor is responsible for ensuring the service has a compliant program. Supervisors Appointment of authorised/nominated supervisors 51A Varied regime s161 National Both the former NSW Act and the National require the appointment of an authorised supervisor/nominated supervisor for a service. Under the NSW Regulation services may have up to 2 authorised supervisors. Under the National a service may only have 1 nominated supervisor, however another person may be placed in day to day charge of the service when the approved provider and nominated supervisor are not present. The NSW Regulation prohibits an authorised supervisor from appointment at more than 2 services at any one time. The National Regulations do not make any provision for (or restrict) the appointment of a nominated supervisor at more than one service. Presence of supervisor at service 56 54, 150 ss 43(2), 105, 162, 164 National In addition to a general requirement that licensees ensure that the authorised supervisor for a service has overall supervision of the provision of the service, the NSW Regulation obliges the licensee of a centre-based service to ensure that the authorised supervisor is present at the service premises for no less than 50% of the time the service is provided. Under the National, a service is required to have a nominated supervisor - being the person in day to day charge of the service. Although the nominated supervisor has various responsibilities, most obligations in the National Regulations rest with the approved provider. However, a responsible person - namely the approved provider (or a person with management or control of the approved provider), the nominated supervisor or a certified supervisor who has been placed in day to day charge of the service - must be page 14

15 present (in the case of a centre-based service) or available (in the case of a family day care service) at all times that the service operates. Both the National Regulations and the NSW Regulation require a record to be kept of the person who is in charge of the service at any given time. Supervisor qualifications 6, 16 ss 219A, 219B NSW Act 47 s108 National Under the NSW Regulation a person who has a supervisor approval authorising them to supervise the operation of a specified children s service or a specified type or types of children s service, may be appointed by a licensee as the authorised supervisor of that service or a service of that type. Similarly, under the National an approved provider can nominate a person who holds a supervisor certificate to be the nominated supervisor of the approved provider s service. The NSW Regulation requires an authorised supervisor to have completed an approved course in child protection. Although this is not generally a requirement of the National Regulations in relation to certified supervisor it is required of nominated supervisors and certified supervisors placed in day to day charge of a service in NSW pursuant to regulation 273. The minimum qualification and experience requirements for supervisor approvals and supervisor certificates under the NSW Regulation and the National Regulations respectively, are slightly different. Whereas the NSW Regulation requires one or more qualification(s) and 12 months full-time (or part-time equivalent) experience; the National Regulations allow either a prescribed qualification or 3 years experience to be sufficient. Notwithstanding this, the NSW Regulation is more flexible than the National Regulations in that the Director-General has a discretion to grant a supervisor approval even if the requirements are not met. Under the National Regulations, the Regulatory Authority must be satisfied that the minimum requirements have been met before a supervisor certificate can be granted, unless the certificate is subject to a condition that the holder may only be a nominated supervisor of, or placed in day to day charge of, an education and care service that primarily educates and cares for children over preschool age, Both sets of the Regulations refer generally to the abilities and supervisory capacity necessary to care for children and supervise a service. The NSW Regulation incorporates a more specific definition of required abilities to care for children. However in practice the meaning of the general requirements is likely to be similar. page 15

16 Staff to child ratios Teaching staff to child ratio 52(1) , 272, 279, NSW-specific savings provisions in the National Regulations ensure that the same number of teaching staff members continue to be required by centre-based services where a service is educating and caring from 30 or more children preschool age or under. NSW-specific transitional provisions are also included in the National Regulations to ensure that a licensee who holds an approval under the Early Childhood Teacher Interim Policy (exempting the service from having to comply with specified early childhood teacher requirements), will continue to be exempt from the early childhood teacher requirements specified in that approval (subject to any condition on that approval) until the approval expires or 1 January 2013 (whichever is sooner). Similarly, an application for approval under the Early Childhood Teacher Interim Policy that has been made but not yet determined when the National commences, will be considered as an application for a temporary waiver of the relevant teacher requirements under the National. From 1 January 2014, the National Regulations will impose new requirements on centrebased services caring for fewer than 30 children preschool age or under, as follows: If a service provides education and care to between 25 and 29 children preschool age or under on a given day, an early childhood teacher must be in attendance at the service for at least 6 hours on that day (if the service operates for 50 or more hours a week) or 60% of the service s operating hours, otherwise the service must employ or engage a full time or full-time equivalent early childhood teacher. If a service is caring for fewer than 25 children preschool age or under, the service must have access to an early childhood teacher for at least 20 per cent of the time (calculated on a quarterly basis). Access may include working with an early childhood teacher over the internet. For these smaller services, the National Regulations allow a person who holds an approved diploma qualification or a qualification in primary teaching to be taken to be an early childhood teacher when the early childhood teacher is absent due to a short-term illness or short-term leave (not exceeding 12 weeks). The differences relating to teaching staff qualifications (which affect who can be taken to be teaching staff for the purposes of the minimum requirements) are dealt with below under the qualifications heading. The teaching staff requirements in both sets of Regulations do not apply to centre-based page 16

17 services that primarily care for children over preschool age. This exemption is explicitly provided for in the National Regulations in regulation 129(2). It is provided for in the NSW Regulation by virtue of the definition of children s service (i.e. services caring for children under 6 years of age). Staff/Educator to child ratios 53(1) 123 Centre-based services 239, 271, 275 Both the National Regulations and the NSW Regulation provide a 1:4 educator/primary contact staff to child ratio for children under the age of 2 years. There is a slight distinction in the provision for this and other ratios in the 2 sets of Regulations in that the cut off point for the National Regulations is 2/over 2 years, rather than under 2 years/2 and over. The National Regulations provide a 1:5 ratio for children over 2 years to less than 3 years (unlike the NSW Regulation provision for a 1:8 ratio). However, this National Regulations requirement does not apply until 1 January Until that time, the 1:8 ratio applies. The National Regulations will continue to require a 1:10 educator to child ratio in NSW for children aged 3 years or more but less than 6 years. This ratio is a NSW modification of the standard National Regulations requirement in relation to children aged 36 months to preschool age. A school-based service that delivers a preschool program in a composite class is not required to comply with these National Regulations ratio requirements. There is no staff to child ratio specified under either the NSW Regulation or the National Regulations for children over 6 years at centre-based services. 58(3) 124, 276 Family day care services Under the NSW Regulation, the licensee must ensure that a family day care carer does not educate or care for more than 7 children who are under 12 years of age at any one time (including children related to the carer), and no more than 5 of those children may be children who do not ordinarily attend school. Until 31 December 2013, this requirement continues under the National Regulations with some differences: The obligation is imposed on a family day care educator rather than on an approved provider. If the service is provided at a residence, the educator s own children and other children at the residence are only included if they are under 12 years of age and there is no page 17

18 other adult present and caring for them. The approved provider of a family day care service may approve a family day care educator to care for more than 7 children in total, or more than 5 children who are preschool age or under, in defined exceptional circumstances (e.g. all the children are siblings, a child is in need of protection or the service is in a rural or remote area and no alternative service is available). This allows greater flexibility than the NSW Regulation provision for the Director-General to approve, at his/her discretion, a place for 1 more child in an emergency. From 1 January 2014, these National Regulations requirements are varied slightly: A family day care educator must not educate or care for more than 7 children at any one time, and no more than 4 of those children (as opposed to 5 prior to 1 January 2014) may be of preschool age or under. If the service is provided at a residence, the educator s own children and other children at the residence are only included if they are under 13 years (as opposed to 12 years) and there is no other adult present and caring for the children. No more than 7 children can be educated or cared for as part of a family day care service at a single residence or approved venue, except where children are visiting a residence or venue as part of an excursion. The approved provider of a family day care service may approve a family day care educator to care for more than 7 children in total, or more than 4 children who are preschool age or under, in the same exceptional circumstances mentioned above. Calculating the ratios - primary contact staff vs educators In defining the ratios, the NSW Regulation refer to primary contact staff, whereas the National Regulations refer to educators. Both terms require a person to be working directly with children at the service (or directly involved in educating or caring for children at the service) before they can be included in the calculation of staff/educator to child ratios. However there are some significant differences in the meaning attributed to the two terms that may affect the calculation of staff/educator to child ratios: Primary contact staff is defined to include a licensee and any member of staff who is directly involved in educating or caring for children at the service and a trainee who is at the service as a formal part of studies at an educational institution. Other staff members not directly involved in the education or care (e.g. administrative staff and page 18

19 staff involved in domestic duties), work experience persons and volunteers are specifically excluded from the meaning of primary contact staff. In contrast, educator is more broadly defined as a person who provides education and care for children as part of a service. This definition could include a volunteer or work experience student so long as the volunteer or student satisfies the minimum qualification requirements and is working directly with children. Trainee is not a concept used in the National /Regulations. However, trainees are likely to fall within the meaning of a person who is actively working towards a qualification and as such, may be educators. As such, both sets of Regulations allow the inclusion of trainees in staff/educator to child ratios. However, the inclusion of trainees in ratios is subject to a limitation in the NSW Regulation which is not included in the National Regulations. Under the NSW Regulation a trainee may only be included in the staff to child ratio if the majority of primary contact staff, and at least 2 primary contact staff, are not trainees. Calculating the ratios - including teaching staff in staff/educator to child ratios Calculating the ratios - mixed age groups 52, (3), (4) The National Regulations and the NSW Regulation both allow the inclusion of teaching staff who are required to be in attendance at the service in the general staff/educator to child ratios if they are working directly with children. The key difference between the National Regulations and the NSW Regulation is that an early childhood teacher to which a service only has access under the National - because there are fewer than 25 children at the service - cannot be included in the educator to child ratios. 53(3) 123(2) Under the NSW Regulation, where a service is provided to a group of children not all in the same age bracket, the relevant ratio to be applied is the ratio that applies to the youngest child in the group. The National Regulations require ratios for each age range to be maintained if children are of mixed ages. In practice, this will result in the same outcome as under the NSW Regulation. Minimum staff numbers 53(2) No specific equivalent The NSW Regulation requires a minimum of 2 primary contact staff members to be present at the service premises whenever children are being cared for or educated by the service. In contrast, there is no minimum number of educators provided for by the National Regulations, other than the number required by the educator to child ratios. page 19

20 Additional staff 55 No specific equivalent Unlike the NSW Regulation, there is no provision in the National Regulations for the Regulatory Authority to direct an approved provider to employ additional staff over and above the numbers required by the educator to child ratios. Qualifications General (non-teaching) staff/educator qualification requirements No specific equivalent 51(2), 52(2) and (3) , 240, 243, 244, 277, 278 Centre-based services From 1 January 2014, the National Regulations will only allow educators to be counted, for the purpose of ratios relating to children preschool age or under at centre-based services, if they hold or are actively working towards a specified qualification. At least 50% of educators will have to have, or be actively working towards, an approved diploma level (or higher) qualification. All other educators will have to have, or be actively working towards, an approved certificate III (or higher) qualification. This is a change from the NSW Regulation, which does not include a general qualification requirement applying to all primary contact staff members. Only the minimum knowledge and experience requirements set out in clause 51(2) is required. Clauses 52(2) and 52(3) set out qualification requirements that at least one primary contact staff member must have (in specified circumstances in the case of clause 52(2)). However, they are not minimum qualification requirements for all primary contact staff. A person who immediately before the National Regulations commenced meets the requirements of clause 52(2) of the NSW Regulation and is employed by a service, will be taken to hold an approved certificate III level qualification. Until 31 December 2015, an educator can be included in a ratio without having, or actively working towards, a certificate III qualification if the person was employed by the same service immediately before 1 January 2012, and has been continuously employed as an educator for at least 15 years prior to this date. A school-based service that delivers a preschool program in a composite class is not required to comply with the National Regulations educator qualification requirements. Neither set of Regulations includes qualification requirements for educators caring for children over preschool age at a centre-based service in NSW. page 20

21 No equivalent 127 Family day care services 280 From 1 January 2014, the National Regulations require a family day care educator to have, or be actively working towards, an approved certificate III (or higher) qualification. There is no general qualification requirement in the NSW Regulation applying to family day carers. Teaching staff qualification requirements Family day care coordinator qualification requirements 52(4) 4(1) No equivalent , s163 National Although the meanings of teaching staff member and early childhood teacher may technically be slightly different, both include persons with approved qualifications. Anyone who was approved as a teaching staff member prior to the commencement of the National Regulations will be taken to hold an approved early childhood teaching qualification for the purposes of the National. Between 1 January 2014 and 1 January 2016, a person who holds an approved diploma qualification, has completed at least 50 per cent of an early childhood teaching qualification and is actively working towards completing that qualification, will be taken to be an early childhood teacher for the purposes of some early childhood teacher requirements in the National Regulations. In addition to the nominated supervisor position, the National requires all family day care services to appoint or engage one or more family day care co-ordinators to assist with the operation of the service and support, monitor and train family day care educators. No equivalent position is provided for in the NSW Regulation. From 1 January 2014, a family day care co-ordinator must have an approved diploma qualification. Specific qualification requirements for educators of children under 2 years First aid qualification requirements 52(2) No equivalent Clause 52(2) of the NSW Regulation obliges the licensee of a centre-based service to ensure that whenever a child under 2 years of age is being cared for, at least one primary contact staff member with a specified qualification is in attendance (e.g. enrolled nurse with Certificate III or IV, a registered nurse with work experience or another approved qualification). 52(3) 136 There is no equivalent of this requirement in the National Regulations. Centre-based services 245, 246, 247 Both the NSW Regulation and the National Regulations require at least one person (in the National Regulations case, an educator) on the service premises to hold a current page 21