What does Regulation 99 of the education and Care Services National Regulations?

Proactive and planned supervision by trained staff is critical for children’s safety and protection from the harm or hazards that may arise in their play and daily routines.

This requires vigilance, good service design, appropriate rostering decisions and a high level of cooperation and communication between staff.

It is an offence under section 165 of the National Law for an approved provider, nominated supervisor or family day care educator to fail to ensure adequate supervision for all children educated and cared for by the service.

Each year, section 165 is one of the most commonly breached provisions of the National Law and is related to a range of incidents and poor outcomes for children.

In addition to accidents or injuries resulting from inadequate supervision, recent incidents of children leaving services’ premises by themselves and children left unattended in vehicles have highlighted the serious consequences of poor supervision.

Regulatory data has identified the following emerging supervision issues:

• educators’ understanding of active supervision and minimising distractions
• coordination and communication between staff
• ensuring the physical environment, premises and resources are safe for children
• risk assessment and planning for the safe transportation of children and for adequate supervision during excursions
• quality programming which keeps children engaged, particularly for older children in the outside school hours care setting.

To meet their obligations under the National Law, approved providers and nominated supervisors should ensure services have appropriate procedures and plans for active supervision and ensure their educators are trained in these procedures.

Approved providers should also consider the impacts of educators’ duties on their ability to maintain adequate supervision at all times and employ additional staff as necessary.

All staff who educate and care for children should regularly reflect on their knowledge and practices on active supervision. In particular, approved providers, nominated supervisors and family day care educators should ask themselves:

This fact sheet outlines the requirements for an approved associated children’s service operated as part of an education and care service under the National Quality Framework.

On this page

• Approved associated children’s services
• Naming an approved associated children’s service
• Staffing
• Facilities
• First aid and anaphylaxis training
• Record keeping and documentation
• Display of prescribed information
• Administration of medication
• Serious incidents
• Exemptions and waivers
• Service approval
• Applying for a new approved associated children’s service and a new service approval
• Applying to add a new approved associated children’s service to an existing service approval
• Further information

Approved associated children’s services

The Education and Care Services National Law Act 2010 (National Law) and the Education and Care Services National Regulations 2011 (National Regulations) allow that where a service provider is operating a service under the National Quality Framework and a service under the Victorian Children’s Services Act 1996 (Children’s Services Act) and Children’s Services Regulations 2009 (Regulations) at one location, the service subject to the Children’s Services Act legislation may become an approved associated children’s service.

This arrangement allows the approved provider to hold one service approval, covering both services, under the National Law. The approved associated children’s service will not be licensed under the Children’s Services Act but will be included in the service approval. Conditions relevant to the approved associated children’s service will be placed on this approval.

An approved associated children’s service must comply with the requirements of the Children’s Services Act and will be subject to compliance visits. It is not regulated by the National Law and National Regulations, and will not be assessed and rated under the National Quality Framework.

Naming an approved associated children’s service

An approved associated children’s service and an education and care service may both have the same service name (section 44(2), National Law; Schedule 1, clause 13A, Regulations). If the provider does not provide different names, the Regulatory Authority may add the words “approved associated children’s service” in brackets after the name of the approved associated children’s service to easily differentiate the approved associated children’s service from the education and care service.

Staffing

Responsible persons and nominees

General requirement

Section 30(2) of the Children’s Services Act requires that a responsible person or a nominee is present at the premises where the children's service is operating at all times when any child is being cared for or educated by the service at the premises.

Responsible person

A responsible person is defined in section 3(1) of the Children’s Services Act as:

• the approved provider, if the approved provider is an individual; or
• in any other case, a person with management or control of the approved associated children's service operated by the approved provider.

Nominees

The following persons have approved nominees for approved associated children’s services (section 25W, Children’s Services Act):

• a certified supervisor employed or engaged by the approved associated children’s service or the education and care service
• a person who on application by the approved provider is approved to manage or control the service in the absence of the approved provider (under section 25X, Children’s Services Act). All nominees must be approved nominees under section 25V of the Children’s Services Act. Applications to be appointed nominees can be made on the form Application for approval of a new nominee/ceasing nominee, the person nominated must consent to the nomination.

Primary nominees

The Primary nominee for an approved associated children’s service is:

• the person who is the nominated supervisor for the education and care service, or
• a certified supervisor designated by the approved provider in writing as the primary nominee for the approved associated children's service
• a person who on application by the approved provider is approved (under section 25X(1)(b) of the Children’s Services Act) to have primary responsibility for the management or control of the service in the absence of the approved provider. All nominees must be approved nominees under section 25V(c) of the Children’s Services Act. Applications to be appointed nominees can be made on the form Application for approval of a new nominee/ceasing nominee, the person nominated must consent to the nomination.

Child/staff and qualified staff ratios

Child/staff ratios vary between the National Law and the Children’s Services Act legislation. Ratios for approved associated children’s services and education and care services must be calculated separately and ratio requirements must be met and maintained at all times.

Minimum staff requirements

The Children’s Services Act requires that an approved associated children’s service has a minimum of two staff members on duty whenever children are being cared for or educated by the children’s service. The minimum requirement for two staff on duty can be met across the whole service.

Facilities

Most of the facility requirements for an approved associated children’s service are the same as, or complement requirements for, an education and care service. This means that by meeting the facility requirements under the National Law you will also be complying with the requirements under the Children’s Services Act. There are however two exceptions:

• A separate room is required at an approved associated children's service that cares for or educates children under the age of 3 years, except in the case of an approved associated children's service that is a limited hours service or short term service (regulation 95A(2), Regulations). This is not a requirement for an education and care service under the National Law.
• Approved providers who are required to (standard licence conditions), or choose (limited hours licence conditions), to provide outdoor space for children cared for and educated by the approved associated children’s service, must ensure that any fences or barriers at the premises are at least 1.5 metres from ground level (regulation 99, Regulations).

First aid and anaphylaxis training

Under the National Law at least one educator holds a current approved first aid qualification, one educator has undertaken currently approved anaphylaxis management training and one educator holds currently approved asthma management training and is in attendance and immediately available in an emergency at all times. The same person can hold one or more of these qualifications (regulation 136, National Regulations).

By contrast, the Children’s Services Act requires that each staff member counted in the minimum number of staff members and each staff member included in the child/staff ratios in approved associated children’s services must have completed every three years training in first aid and anaphylaxis management (regulation 63, Regulations). If a child who is diagnosed as at risk of anaphylaxis attends an approved associated children’s service, all staff members on duty whenever the child is present must have undertaken training in anaphylaxis management. There is no requirement for emergency asthma management training (regulations 65 and 67, Regulations).

Record keeping and documentation

Enrolment records

One centralised enrolment record that meets the requirements of both the Children’s Services Act and Regulations and the National Law and National Regulations may be used for children who are educated and cared for in both the approved associated children’s service (regulations 31, 33 and 34, Regulations) and the education and care service (regulations 160, 161 and 162, National Regulations).

Attendance records

Separate attendance records detailing when a child arrives and departs must be kept for children attending the approved associated children’s service (regulation 29, Regulations) and the education and care service (regulation 158, National Regulations). Children who move between the approved associated children’s service and the education and care service must be timed and signed out of one service and timed and signed into the other service by a staff member. It is recommended that each service develops policies and procedures documenting the process for moving children between the approved associated children’s service and the education and care service (if applicable).

Policies and procedures

All services are required to document service practices, policies and procedures to assist in managing the service. The National Law (regulation 168, National Regulations) contains requirements that are additional to those under the Children’s Services Act (regulation 41, Regulations) including:

• governance and management of service
• staffing practices
• medical conditions for children (includes asthma, diabetes and anaphylaxis) (limited to anaphylaxis in the Children’s Services Act )
• matters relating to health and safety
• providing the child with a safe environment
• relationships with children.

To ensure that each service containing both an approved associated children’s service and education and care service complies with all the required policies and procedures, a comprehensive, uniform set of policies and procedures should be developed.

Display of prescribed information

Certain information must be displayed at approved service premises so that it is visible from the main entrance to the service. The requirements relating to the display of information under the Children’s Services Act (regulation 40, Regulations) and the National Law should be included on the same record with a separate section referring to the following matters which only relate to education and care services (regulation 173, National Regulations):

• name of the approved provider, provider approval and any conditions on provider approval
• name of service, service approval number and any conditions on service approval
• assessment and rating
• temporary waivers and service waiver
• educational leader.

Administration of medication

There are three differences relating to the administration of medication under the National Law and Children’s Services Act legislation:

• the medication record in the National Law requires details of how the medication is administered to be included in the medication record (regulation 92(3)(g), National Regulations)
• under the National Law, no authorisation is required to administer medication in the case of an anaphylaxis or asthma emergency (regulation 94, National Regulations)
• authorisation can be provided under the National Law to allow children over preschool age to self-administer medication (regulation 96, National Regulations).

The National Law is more comprehensive than the Children’s Services Act. By meeting the requirements under the National Law and National Regulations, a service provider of an approved associated children’s service will also comply with Children’s Services Act.

Serious incidents

A serious incident is any incident that occurs at an education and care service (regulation 12, National Regulations) or an approved associated children’s service (section 29C, Children’s Services Act):

• that involves the death, injury, trauma or illness of a child while being educated, or following an incident while being educated at the service
• where attention by a registered medical practitioner and/or hospitalisation is or ought to reasonably have been sought
• where a child at the service appears to be missing or cannot be accounted for, or appears to have been taken or removed from the service premises.

In addition, the National Law also includes as a serious incident:

• any incident where the attendance of emergency services was sought or ought to have been sought
• any circumstances where a child being educated and cared for is mistakenly locked in or out of the service or any part of the education and care premises (regulation 12, National Regulations).

In the National Law, the Regulatory Authority must be notified in writing of a serious incident (sections 174(2)(a) and 174(4), National Law) and the case of:

• the death of a child, as soon as practicable but within 24 hours of the death, or the time that the person becomes aware of the death; (regulation 176(2)(a)(i), National Regulations)
• any other serious incident, within 24 hours of the incident, or the time that the person becomes aware of the incident (regulation 176(2)(a)(ii), National Regulations).

The Regulations require that the approved provider of an approved associated children’s service must notify the department by telephone within 24 hours of the incident, followed by written notification as soon as practicable (regulation 90, Regulations). The approved provider must also ensure that the parent or guardian of the child is notified as soon as practicable after the incident or occurrence (regulation 91, Regulations).

The ACECQA Notification of serious incident (SI01) form must be used to report a serious incident in an education and care service.

For administrative convenience, an approved provider may use this form to report a serious incident in an approved associated children’s service as well; where the approved provider chooses to do so, a note should be included alerting the department that the information relates to the approved associated children’s service rather than the education and care service.

Exemptions and waivers

An approved provider who is having genuine difficulty meeting the requirements under the National Law and/or the Children’s Services Act may apply for:

• an exemption from certain requirements of the Children’s Services Act 1996 or the Children’s Services Regulations 2009 (sections 6 and 29A, Children’s Services Act)
• a waiver from the requirement to comply with the prescribed element(s) of the National Quality Standard and the National Regulations (sections 87 and 94, National Law).

An exemption from the requirements of the Children’s Services Act or Regulations will be included in the service approval among the conditions that apply to the approved associated children’s service.

Further information is available in the fact sheet Waivers.

Service approval

The National Law provides for ongoing service approvals, removing the administrative burden for services related to licencing renewal requirements under the Children’s Services Act legislation. Approved associated children’s services are not required to pay a renewal fee under the Children’s Services Act.

Applying for a new approved associated children’s service and a new service approval

When an approved provider makes an application for a service approval for both an education and care service and an approved associated children’s service, the department will assess the approved associated children’s service and the education and care service as one premise under the National Law. This means that by meeting the requirements under the National Law the service will also be meeting the requirements under the Children’s Services Act.

If the approved associated children's service does not comply with the above criteria, the department can grant a service approval solely for an education and care service (section 48(4), National Law).

Applications for a service approval may be made via the National Quality Agenda IT System or may be submitted to the department via [email protected] using the Application for a service approval – centre-based care (SA01) form available at: Service approvals

Applying to add a new approved associated children’s service to an existing service approval

Where a new associated children’s service is to be added to an existing service approval the department requests the approved provider complete notification for an amendment of service approval. To process the application, the following information about the proposed associated service is required:

• the name of the associated children’s service
• the proposed date on which the associated children’s service will commence operation
• if known, the contact details, including an after-hours telephone number, for the associated children’s service
• the proposed ages of children to be educated and cared for by the associated children’s service
• the proposed maximum number of children to be educated and cared for by the associated children’s service
• the hours and days of operation of the associated children’s service
• the location of this service within the service premises.

Attaching plans for the room or premises proposed to be used for the associated service to the application for amendment of the service approval will assist the department to correctly identify the room relating to the relevant conditions that will appear on the service approval.

Notifications to change of service details may be made via the National Quality Agenda IT System or may be submitted to the department via [email protected] using the Notification of change of information about an approved service (SA12) form available at: Service approvals

Further information

The Department of Education and Training is the Regulatory Authority in Victoria.

Phone: 1300 307 415
Email: [email protected]
Web: Regulation and Quality Assessment

The Australian Children’s Education and Care Quality Authority (ACECQA) is the national, independent statutory authority governing the National Quality Framework.

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