EARLY LEARNING AUSTRALIA PTY LTD and CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES
[2023] WASAT 46
•26 JUNE 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EDUCATION AND CARE SERVICES NATIONAL LAW (WA) ACT 2012 (WA)
CITATION: EARLY LEARNING AUSTRALIA PTY LTD and CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES [2023] WASAT 46
MEMBER: MS KY LOH, MEMBER
HEARD: 5-7 DECEMBER 2022
DELIVERED : 26 JUNE 2023
FILE NO/S: CC 31 of 2022
BETWEEN: EARLY LEARNING AUSTRALIA PTY LTD
Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES
Respondent
Catchwords:
Education and Care Services National Law - Review of refusal to grant service provider approval to approved provider - Findings of breaches in establishing compliance history of existing services - Whether breaches unique to Karratha and COVID-19 restrictions - Whether incapable of operating a service in a way that meets legal requirements - Management capabilities of approved provider
Legislation:
Education and Care Services (WA) Act 2012 (WA), s 4, s 7, s 8, s 14
Education and Care Services National Law (Queensland) Act 2011 (Qld), s 4
Education and Care Services National Law (WA) Act 2012 (WA), s 3(1), s 3(2), s 3(3), s 4, s 5(1), s 5(6), s 7, s 18, s 43, s 43(1), s 43(2), s 43(3), s 47(1), s 47(1)(d), s 47(2), s 49(1)(a), s 49(1)(b), s 49(2), s 51, s 51(4A), s 51(8), s 103(1), s 161, s 161A, s 162, s 162(1), s 165, s 165(1), s 165A, s 167, s 168(1), s 169, s 169(1), s 169(2), s 172, s 172(a), s 172(b), s 172(c), s 172(d), s 172(e), s 172(f), s 173, s 173(2), s 173(2)(b), s 173(2)(b)(iii), s 173(5), s 173(5)(f), s 174(2), s 174(2)(a), s 174(2)(b), s 174(4), s 175, s 175(1), s 175(2), s 176, s 176(3), s 177, s 177(3), s 179(1), s 179(2), s 179(3), s 190, s 191, s 191(1), s 193(1), s 193(4), s 291(1), s 291(1)(b), s 301, Sch 1, cl 11A, Pt 3, Pt 2, Pt 6
Education and Care Services National Law Act 2010 (Vic)
Education and Care Services National Regulations (Queensland)
Education and Care Services National Regulations 2012 (WA), reg 12, reg 12(b), reg 27, reg 28(a), reg 29, reg 74, reg 75, reg 75(a), reg 75(b), reg 77, reg 77(1), reg 78(1)(a), reg 79, reg 79(1)(a), reg 79(1)(b)(ii), reg 80(1), reg 86, reg 87, reg 89, reg 89(1), reg 90, reg 97, reg 97(3), reg 97(3)(a), reg 97(3)(b), reg 97(4), reg 103, reg 103(1), reg 104, reg 104(1), reg 109, reg 115, reg 117A, reg 117C(b), reg 117C(c), reg 118, reg 122, reg 123, reg 123(1), reg 123(2A), reg 126, reg 126(1), reg 133, reg 145, reg 146, reg 146(b), reg 147, reg 147(d), reg 148, reg 151, reg 154, reg 155, reg 158, reg 158(1), reg 160, reg 162, reg 167, reg 168, reg 170, reg 170(1), reg 171(1), reg 171(2), reg 173, reg 173(1), reg 173(2), reg 174(2)(b), reg 176(2), reg 177, reg 177(1), reg 177(1)(a), reg 177(1)(e), reg 177(1)(n), reg 177(2), reg 180, reg 183(2), reg 183(2)(d), reg 183(2)(f)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3), s 29(1)
Working with Children (Criminal Record Checking) Act 2004 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Bennett |
| Respondent | : | Mr KL Sardinha |
Solicitors:
| Applicant | : | Meridian Lawyers (Sydney) |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; 232 LGERA 331
Table of Contents
Introduction
Issue for determination
Background
ELA's case
The CEO's case
Legal and regulatory framework
Regulatory framework
National Quality Framework
Provider and service approvals
Operating requirements under the Law
Operating requirements under the Regulations
Compliance powers of a regulatory authority
National Law and National Regulations as adopted in Queensland
Tribunal jurisdiction
Consideration - Evidence and Findings
Secondary Issue 1 - whether BEL, if permitted to operate, would constitute an unacceptable risk to the safety, health and wellbeing of children
Secondary Issue 2(a) – compliance history
Table of alleged breaches
Approach to assessment of breaches
Alleged breach 1
Alleged breaches 2 - 5
Alleged breaches 6 - 8
Alleged breach 9
Alleged breaches 10 - 14
Alleged breach 16
Alleged breaches 17 - 18
Alleged breaches 19 - 20
Alleged breaches 21 - 22
Alleged breaches 24 and 25
Alleged breach 26 - 34
Alleged breach 35
Alleged breaches 36 - 56
Alleged breach 57
Alleged breach 58 - 59, 62 - 64
Alleged breach 65
Alleged breach 66
Alleged breaches 67 - 70, 73 - 80, 82 - 84
Alleged breach 71
Alleged breach 72
Alleged breach 81
Alleged breach 85 - 92
Alleged breaches 94, 118-119, 121, 123
Alleged breaches 95 - 117
Summary of findings of breach, mitigatory issues
Secondary Issue 2(b) - ELA's capability of operating BEL in a way that meets requirements
Evidence of Ms Pisani
Evidence of Ms Maloney
Evidence of Ms Calci
Evidence of Ms Gale
Evidence of Ms Dan
Evidence of Ms Bowen
Consideration
Secondary Issue 2(c) - ELA's management capability
Primary Issue - should a service approval be granted to ELA?
Conclusion
Orders
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
An approved provider of education and care services, Early Learning Australia Pty Ltd (ELA), applied in October 2021 to the Chief Executive Officer of the Department of Communities (CEO) for a service approval to operate an education and care service at proposed premises in Burswood.
ELA currently operates an education and care services in Karratha called Karratha Early Learning (KEL) and has done so since 2013.
When that application was refused, ELA applied for an internal review.
On review, the CEO affirmed the refusal decision, having taken into account the applicant's history of compliance with the Education and Care Services National Law (Western Australia) (the Law), information provided by ELA, and how border closures may have impacted on ELA's ability to provide ongoing support to its services.
In this review application of the CEO's review decision, ELA contends that the alleged compliance history is over-stated, and, even if proved, does not establish breaches of such a nature as to justify refusal of the application.
In addition, the alleged breaches occurred predominantly in 20212022 during the COVID-19 pandemic, which was a particularly challenging period for KEL, especially in a remote location like Karratha, and the conditions which the proposed Burswood service will face will be different to KEL.
The CEO relies primarily on the compliance history of KEL, which, by their nature and repetition, points to serious cultural and systemic deficiencies in ELA's operations that go beyond the challenges of the COVID-19 pandemic and KEL's remoteness.
For reasons set out below, I share the CEO's concerns that the persistent breaches over the years underlie a fundamental inability to operate a service in a way that meets the legal requirements and will confirm the CEO's internal review decision.
Issue for determination
The primary issue for determination is whether a service approval should be given to ELA in respect of an education and care service to be operated in Burswood (to be known as Burswood Early Learning, or BEL) under s 43(1) of the Law.
In considering the primary issue, the following secondary issues arise:
(1)as to the relevant mandatory considerations to be taken into account under the Law, whether BEL, if permitted to operate, would constitute an unacceptable risk to the safety, health and wellbeing of children who would be educated and cared for by BEL;
(2)as to the relevant discretionary considerations to be taken into account under the Law:
(a)ELA's history of compliance with the Law or the Law as applying in any participating jurisdiction, including in relation to any other education and care service it operates;
(b)whether ELA is capable of operating BEL in a way that meets the requirements of the Law, the Education and Care Services National Regulations 2012 (WA) (the Regulations) or the National Quality Standard (quality standard); and
(c)whether ELA is capable of operating BEL having regard to its management capability.
Background
The following background facts are not in dispute between the parties or are otherwise based on uncontentious documents.
At some time in 2012, ELA changed its corporate name from Embracing Children Karratha Pty Ltd to ELA, and held the same Australian Corporate Number (ACN) 158 294 501 and Australian Business Name (ABN) 19 158 294 501.
On 11 October 2012, the Queensland regulatory authority granted a provider approval to ELA, provider number PR-00008091.
At all relevant times, Ms Michelle Pisani is the person with management and control of ELA.
On 15 October 2013, ELA was granted a service approval in respect of KEL, service approval number SE-0014306, which it owns and operates as a long day care education and care service, located at 51 Gardugarli Drive, Baynton West Karratha, in Western Australia.
On 26 June 2014, a provider approval was granted to 'Embracing Children Karratha Pty Ltd' by the Queensland regulatory authority under the same provider approval number for ELA (that being PR00008091).
On 18 July 2014, the Queensland regulatory authority amended the provider approval for 'Embracing Children Karratha Pty Ltd' to update the address of the principal office.
In January 2015, Embracing Children Karratha Pty Ltd was granted a service approval in respect of the education and care service at 118 Saltwater Creek Road, Maryborough in Queensland, then known as 'EC Maryborough Junior Education' (service approval number SE40002948) (EC Maryborough).
On 13 January 2017, the service approval for EC Maryborough was transferred to a third party.
At some point (possibly after EC Maryborough was transferred from ELA), the service known as 'EC Maryborough Junior Education' changed its name to 'Little Gems Child Care and Early Learning Centre' (Little Gems).
At some point (including in 2016 and 2017), KEL was known as 'Stripey Zebras Junior Education Centre'.
On 29 June 2020, the service approval for a long day care education and care service at 25 Royal Avenue, Spring Hill in Queensland known as 'Spring Hill Early Learning' (service approval number SE-00000086) (Spring Hill) was transferred to ELA, and was later sold to a third party in February 2022.
On 13 November 2020, ELA applied to the CEO to increase the approved play space and approved numbers for KEL, which was approved on 22 December 2020, increasing the maximum number of children who can be educated and cared for at KEL to 69.
On 10 March 2021, a delegate for the CEO advised that the additional spaces were not all suitable to be considered usable play space, and amended the service approval to reduce the maximum number of children to 66 (although ELA were permitted to continue with current and permanent enrolments in order to comply with this reduction, on condition that no new enrolments or casual bookings may be taken above the approved maximum capacity, and that numbers must be reduced via natural attrition to 66).
On 6 August 2021, a delegate for the CEO amended the service approval for KEL which included, as a condition of approval, that the approved provider ensure that attending children only occupy the approved indoor space as shown on a plan (which must be displayed next to the service approval), and reduced the maximum number of children to 58.
At some point before 22 June 2022, an additional condition was added to the service approval for KEL, which required ELA to ensure that, at any time children under the age of 24 months attended the service, the staff to child ratio for children in that age group must be 1:4.
ELA applied for service approvals to operate education and care services at Rivervale (to be known as Rivervale Early Learning, or REL) and at BEL on 30 July 2021 and 15 October 2021 respectively.
On 4 November 2021, the CEO refused each application on the basis that, in light of ELA's compliance history, he was not satisfied that ELA was capable of operating the proposed service in a way that met the requirements of the Law, the Regulations or the quality standard.
The CEO referred to the 47 confirmed breaches in respect of KEL since January 2021 relating to operational requirements, including educational program and practice, children's health and safety, physical environment, staffing arrangements and governance and leadership.
Despite administrative action and statutory sanctions imposed, the CEO considered that ELA continued to demonstrate systemic deficiencies in its operations.
On 18 November 2021, ELA applied for an internal review of each decision.
On 14 December 2021, the CEO affirmed each decision to refuse the service approval applications, having taken into account:
(a)ELA's history of compliance with the Law or the National Law as applying in any participating jurisdiction;
(b)information provided by Ms Pisani; and
(c)how border closures might have impacted on ELA's ability to provide ongoing support to its services.
On 13 January 2022, ELA applied to the Tribunal for review of the CEO's review decisions.
In July 2022, ELA withdrew its application for review of the CEO's review decision in respect of REL.
ELA's case
ELA denies, or does not admit, the majority of the breaches alleged by the CEO in respect of its operation of KEL.
In the alternative, it says that the nature of the alleged breaches, even if proved, do not pose a risk of such likelihood or gravity to amount to 'unacceptable risk' such as to justify refusal of the application.
Over the period of nine years, the majority of breaches alleged in respect of KEL were recorded in the 2021-2022 period, which was during the period where the COVID-19 pandemic imposed challenges to service delivery such as lockdowns and tight border closures, and that prior to such period, the compliance history had been good.
Alternatively, even if the concerns against the compliance history of KEL were be substantiated, it should not reflect on what could be expected for BEL, as the latter is not located in a remote location nor subject to the challenges posed by the COVID-19 pandemic.
ELA also relies on recent changes it has adopted to improve KEL, such as terminating problematic staff and engaging external agencies.
ELA also suggests there is inconsistency and inequity in service approval decisions made by the CEO, where approved providers with compliance histories more concerning than ELA have been granted service approvals.
ELA relies on the evidence of the following witnesses, whose witness statements were tendered into evidence by consent:
(a)Ms Michelle Pisani has prepared witness statements dated 27 April 2022, 26 August 2022, 29 August 2022, 21 November 2022 and 1 December 2022;
(b)Ms Alina Dan is the director and founder of Holistic Management and Consultancy (Holistic), with qualifications as a qualified early childhood teacher with over 15 years' experience and with experience in guiding over 5,000 early childhood services in compliance with the Regulations, and has prepared a witness statement dated 18 November 2022;
(c)Ms Karen Mahoney is a consultant for Holistics for the last two years, and has 30 years' experience in the early childhood sector, including 20 years as either nominated supervisor or area manager of four services, and has prepared witness statements dated 27 April 2022 and 21 November 2022;
(d)Ms Vanessa Gale is the founder and senior consultant at Compliance Consulting, has worked in the Department of Education in ACT in relation to education and care services for 12 years as authorised officer, senior policy officer and manager of the investigations team until 2018, represented ACT in the development and implementation of reforms such as the quality framework and its subsequent reviews, and has prepared a witness statement dated 25 August 2022; and
(e)Ms Melinda Calci is the operations manager of Holistic, and has prepared a witness statement dated 25 August 2022.
ELA also called Ms Pisani, Ms Mahoney, Ms Gale and Ms Calci to give oral evidence at the hearing.
ELA also tendered by consent a bundle of documents upon which it relies in the proceedings.
The CEO's case
The CEO contends that ELA is not capable of operating BEL in a way that meets the requirements of the Law, the Regulations or the quality standard, primarily due to its history of non-compliance with the Law and the Regulations.
The alleged breaches encompass various fields of regulatory control under the Law, the Regulations and the quality standard relating to operational requirements, including educational program and practice, children's health and safety, physical environment, staffing arrangements and governance and leadership.
While the CEO accepts the COVID-19 pandemic would have presented challenges to providers of education and care services, the areas of noncompliance extend beyond these operational requirements, which is not readily explicable by the COVID-19 pandemic challenges.
Further, ELA has not submitted persuasive evidence that the breaches were caused or contributed to by the COVID-19 pandemic and/or the remoteness of KEL.
Instead, the quantum, nature and sustained period of breaches suggest that management, communication, training and systems deficiencies are the dominant causes of ELA's poor compliance history.
The CEO is concerned that such fundamental cultural and systemic deficiencies are likely to reoccur, and may increase, if ELA was operating more than one education and care service.
Finally, the CEO disputes its decision-making has been inequitable, as the basis for granting service approvals in other cases are not comparable to ELA's case.
The CEO relies on the evidence of the following witnesses, whose witness statements were tendered into evidence by consent:
(a)Jodie Gray is currently employed as quality manager in the Education and Care Regulatory Unit (ECRU) of the Department of Communities, having been team leader assessments, is an authorised officer under the Law, and has prepared a witness statement dated 2 November 2022 and supplementary witness statement dated 9 December 2022;
(b)Debbie Smith is a senior assessment officer of ECRU, has a Certificate IV in Government Investigations, a Bachelor of Education specialising in early childhood and a Diploma of Children's Services, and has more than 10 years' experience in the early childhood education and care sector, and has prepared a witness statement dated 31 October 2022;
(c)Vanessa Antrobus is a senior assessment officer of ECRU, holds an Associate Diploma of Social Science (child care) and a Certificate IV in Government Investigations and has over 25 years' experience of working in early childhood education and care, is an authorised officer under the Law, and who has prepared a witness statement dated 1 November 2022;
(d)Christopher Greenshaw is a senior investigations officer with the Department, holds an Advanced Diploma of Government (Investigations), and has prepared a witness statement dated 7 November 2022;
(e)Courtney Fear is an assessment officer of ECRU, and has prepared a witness statement dated 7 November 2022;
(f)Tam Nguyen is a senior assessment officer of ECRU and an authorised officer under the Law, and has prepared a witness statement dated 31 October 2022;
(g)Anna Kathleen Pearce is an acting senior assessment officer of ECRU, having been an assessment officer at the relevant time, is an authorised officer under the Law, and has prepared a witness statement dated 4 November 2022;
(h)Chong Yan Sian (Bernard) is a senior assessment officer of ECRU, holds a Master of Teaching (Early Childhood) and a Certificate IV in Government Investigations, is an authorised officer under the Law, and has prepared a witness statement dated 1 November 2022;
(i)Lauren Bowen is a team leader assessments of ECRU, having been a senior assessment officer since 2013, is an authorised officer under the Law, and has prepared a witness statement dated 31 October 2022; and
(j)Michelle Elizabeth Hall is an assessment officer of ECRU, holds a Master of Education (Early Years) and a Certificate IV in Government Investigations, is an authorised officer under the Law, and has prepared a witness statement dated 1 November 2022.
The CEO called Ms Bowen, Ms Fear, Mr Greenshaw, and Mr Chong to give oral evidence at the hearing.
The CEO also tendered into evidence by consent Books 1-59, and a bundle of documents used in cross-examination of Ms Pisani.
Legal and regulatory framework
Regulatory framework
National Quality Framework
The long title to the Education and Care Services National Law (WA) Act 2012 (WA) (the Act) provides that its purpose is, relevantly, to provide for a national scheme regarding the regulation of education and care services for children.
The provisions of the Law, as contained in the Schedule to the Act, forms part of the Act and applies as a law in Western Australia: s 4 of the Act.
The objective of the Law is to establish a national education and care services quality framework (quality framework) for the delivery of education and care services to children: s 3(1) of the Law.
The objectives of the quality framework are, relevantly:
(a)to ensure the safety, health and wellbeing of children attending education and care services;
(b)to improve the educational and developmental outcomes for children attending education and care services;
(c)to promote continuous improvement in the provision of quality education and care services;
(d)…
(e)to improve public knowledge, and access to information, about the quality of education and care services;
(f)to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth:
s 3(2) of the Law.
The quality framework is also guided by the following relevant guiding principles:
(a)that the best interests of the child are paramount;
(b)that children are successful, competent and capable learners;
(c)that the principles of equity, inclusion and diversity underlie the Law;
(d)that Australia's Aboriginal and Torres Strait Islander cultures are valued;
(e)that the role of parents and families is respected and supported; and
(f)that best practice is expected in the provision of education and care services:
s 3(3) of the Law.
The objectives and guiding principles of the quality framework are to be considered by any entity who exercises functions under the Law: s 4 of the Law.
Under s 7 of the Law, Parliament has evinced its intention that the Law, together with the Law as applied by Acts of other participating jurisdictions, has the effect that an entity established by this Law is one single national entity, with functions conferred by the Law as so applied.
The reference to the Law as applying in a jurisdiction includes a reference to a law that substantially corresponds to the Law enacted, or applying, in a jurisdiction: s 5(6) of the Law.
An entity that has functions under the Law include the regulatory authority (which is declared under s 8 of the Act, for the purposes of the Law, as the CEO) and the relevant tribunal or court (which is declared under s 7 of the Act, for the purposes of the Law, as this Tribunal).
Relevantly, the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act) is declared to be a working with children law for this jurisdiction for the purposes of the Law: s 14 of the Act and s 5(1) of the Law.
The Regulations are made by the Governor pursuant to s 301 of the Law.
Provider and service approvals
A person who wishes to operate an education and care service must first obtain the grant of a provider approval under Pt 2 of the Law (ss 18, 43(3), 47(1)(d) and 49(1)(b) of the Law), which primarily requires the applicant to satisfy the regulatory authority that the applicant is a fit and proper person.
An approved provider must then obtain the grant of a service approval in respect of an education and care service (such as, relevantly, a long day care): s 43 of the Law.
It is a prerequisite that the approved provider is or will be the operator of the education and care service, and is or will be responsible for the management of the staff members and nominated supervisors of that service: s 43(2) of the Law.
The operation of an education and care service in the absence of a provider approval and a service approval constitutes an offence: s 103(1) of the Law.
In determining an application for a service approval, the CEO must have regard to, relevantly:
(a)the quality framework;
(b)…
(c)…
(d)any other matter the CEO thinks fit; and
(e)any other prescribed matters:
s 47(1) of the Law.
Regulation 27 of the Regulations prescribes further mandatory matters to be considered, that being any suspension and any conditions of the provider approval.
In addition, the CEO may relevantly have regard to either of the following:
(a)whether the applicant is capable of operating the education and care service having regard to its management capability and any other matter the CEO considers relevant;
(b)the applicant's history of compliance with the Law or the Law as applying in any other participating jurisdiction, including in relation to any other education and care service it operates:
s 47(2) of the Law.
Relevantly, the CEO must refuse to grant a service approval if satisfied that the service, if permitted to operate, would constitute an unacceptable risk to the safety, health or wellbeing of children who would be educated or cared for by the education and care service: s 49(1)(a) of the Law.
The CEO may refuse to grant a service approval on any other prescribed grounds, which relevantly include where the CEO is not satisfied that the applicant is capable of operating the proposed service in a way that meets the requirements of the Law or the Regulations or the quality standard: s 49(2) of the Law and reg 28(a) of the Regulations.
If granted, a service approval is subject to conditions specified under s 51 of the Law, including that the approved provider must:
(a)ensure that the number of children educated and cared for by the service does not exceed the maximum number of children specified in the service approval (s 51(4A);
(b)hold the prescribed insurance in respect of the service (s 51(4)), which is relevantly prescribed as a policy of insurance providing adequate cover for the education and care service against public liability with a minimum cover of $10 million (reg 29 of the Regulations).
Failure to comply with the conditions of a service approval is an offence: s 51(8) of the Law.
Operating requirements under the Law
Part 6 of the Law sets out the following relevant essential obligations on approved providers for operating an education and care service, which contravention constitutes an offence:
(a)the service cannot be operated unless there is at least one nominated supervisor for the service (s 161 of the Law);
(b)a nominated supervisor is relevantly defined as an individual who is nominated by the approved provider to be a nominated supervisor of that service under Pt 3 of the Law, and has provided written consent to that nomination (s 5(1) definition of 'nominated supervisor' of the Law);
(c)an individual cannot be nominated as a nominated supervisor of a service unless that individual meets the prescribed minimum requirements for nomination as a nominated supervisor (s 161A of the Law);
(d)to ensure that either the approved provider (or, if not an individual, a person with management or control of a service), a nominated supervisor of the service, or a responsible person under reg 117A of the Regulations (being a person placed in day-to-day charge of the service by the approved provider or a nominated supervisor, and has consented to the placement), is present at all times that the service is educating and caring for children (s 162 of the Law);
(e)to ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service (s 165(1) of the Law);
(f)to ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury (s 167 of the Law);
(g)to ensure that a program is delivered to all children being educated and cared for by the service that meets the requirements set out in s 168(1) of the Law;
(h)to ensure that, whenever children are being educated and cared for by the service, the relevant number of educators educating and caring for the children is no less than the number prescribed for this purpose (s 169(1) of the Law);
•reg 123(1) of the Regulations sets out the following educator-to-child ratios of the minimum number of educators required to educate and care for children as follows: 1:4 (for children up to 24 months of age); 1:5 (for children over 24 months and under 36 months of age); and 1:10 (for children 36 months of age to preschool age);
•an educator must be working directly with children at the service to be included in calculating the educatortochild ratio (reg 122);
•an educator may be included for the purpose of reg 123, even if not working directly with children, if the educator is present on the premises, is available immediately to provide education and care at the service if required, and the period during which the educator is not working directly with children is not more than 30 minutes in a day (reg 123(2A) of the Regulations).
(i)to ensure that that each educator educating and caring for children for the service meets the qualification requirements relevant to the educator's role as prescribed by the Regulations (s 169(2) of the Law);
•reg 126(1) of the Regulations requires 50% of educators of children at preschool age or under who are required to meet the relevant education-to-child ratios must have, or be actively working towards, at least an approved diploma level education and care qualification; and all other educators must have, or be actively working towards, at least an approved certificate III level education and care qualification;
(j)to ensure that the prescribed information about matters such as the provider approval, service approval, each nominated supervisor of the service, the rating of the service, any service waivers or temporary waivers held by the service, or any other prescribed matters, are positioned so that it is clearly visible to anyone from the main entrance to the service premises (s 172 of the Law);
•reg 173(1) of the Regulations prescribes the information for the purpose of s 172(a) to (e) of the Law, such as the name of each nominated supervisor, the rating of the service, details of any service waivers or temporary waivers;
•reg 173(2) of the Regulations prescribes the information for the purpose of s 172(f) of the Law, such as the name and position of the responsible person in charge of the service at any given time; the name and telephone number of the person at the service to whom complaints may be addressed; the name of the educational leader at the service; and the contact details of the regulatory authority;
(k)to notify the CEO within the relevant prescribed time if, relevantly, a nominated supervisor of an approved education and care service ceases to be employed or engaged by the service, or is removed from the role of nominated supervisor, or withdraws consent to the nomination (s 173(2)(b) and s 173(5) of the Law);
•reg 174(2)(b) of the Regulations prescribes the time for providing the notice under s 173(5)(f) of the Law as within 7 days of the relevant event or within 7 days of the approved provider becoming aware of the relevant event;
(l)to notify the CEO, within the relevant prescribed time, of any serious incident at the service, or any complaints alleging that a serious incident has occurred or is occurring while a child was or is being educated and cared for by the service or any complaint alleging that the Law has been contravened (s 174(2) and s 174(4) of the Law);
•reg 176(2) of the Regulations prescribes the time for providing notice as, relevantly, within 24 hours of the incident of the time that the person becomes aware of the incident (in the case of s 174(2)(a) of the Law) or within 24 hours of the complaint or incident (in the case of s 174(2)(b));
•reg 12 of the Regulations defines 'serious incident' as being any of the prescribed occurrences, including any incident involving serious injury or trauma to a child which a reasonable person would consider require urgent medical attention from a registered medical practitioner or for which the child attended (or ought reasonably to have attended) a hospital, or any circumstance where a child appears to be missing or cannot be accounted for;
(m)to keep prescribed documents available for inspection by an authorised officer, and, if related to, in the previous 12 months, the operation of the service or staff member or any child cared or educated at the premises, be kept at the premises to the extent practicable, and otherwise be kept at a place, and in a manner, that they are readily accessible by an authorised officer (s 175(1) and s 175(2) of the Law);
•reg 177(1) of the Regulations prescribes documents such as a staff record (reg 145), a record of educators working directly with children (reg 151), child enrolment records (reg 160), a record of each nominated supervisor and any person in day-to-day charge of the service (s 162 of the Law).
The penalty for contravening any offence under Pt 6 of the Law is specified as a fine: s 11A of Sch 1 to the Law.
The relevant penalties range from $15,000 (for example, for a contravention of s 172 of the Law) to $50,000 (for example, a contravention of s 165 of the Law) in the case of a corporate approved provider.
Operating requirements under the Regulations
Chapter 4 of the Regulations also imposes operational requirements on approved providers in respect of the following relevant fields, which are aligned to the quality standard:
•Part 4.1 sets out the requirements for an education program and practice for a service;
•Part 4.2 sets out the requirements for services relating to children's health and safety;
•Part 4.3 sets out the physical environment requirements for services;
•Part 4.3A sets out the minimum requirements for persons in day-to-day charge and nominated supervisors;
•Part 4.4 sets out staffing requirements for education and care services;
•Part 4.5 sets out the provisions relating to relationships between children and educators; and
•Part 4.7 sets out matters relating to management and leadership in services.
The requirements for approved providers under Pt 4.1 of the Regulations relevantly include:
(a)to ensure that, for the purposes of the educational program, assessments are documented in accordance with reg 74 of the Regulations (for which a compliance direction can be issued for non-compliance);
(b)to ensure that information about the content and operation of the educational program for the service is displayed at the premises at a place accessible to family members of children being educated and cared for by the service (reg 75(a) of the Regulations) (for which a compliance direction can be issued for non-compliance);
(c)to ensure that a copy of the educational program is available at the service premises for inspection and on request (reg 75(b) of the Regulations) (for which a compliance direction can be issued for non-compliance).
The requirements for approved providers under Pt 4.2 of the Regulations relevantly include:
(a)to ensure that nominated supervisors and staff members of the service implement adequate health and hygiene practices, and safe practices for handling, preparing and storing food, to minimise risks to children being educated and cared for by the service (reg 77(1) of the Regulations) (which constitutes an offence for non-compliance);
(b)to ensure that children being educated and cared for by the service are offered food and beverages appropriate to the needs of each child on a regular basis throughout the day (reg 78(1)(a) of the Regulations) (which constitutes an offence for noncompliance);
(c)where providing food or a beverage to children being educated and cared for by the service, to ensure that the food or beverage being provided is nutritious and adequate in quantity, and that the food or beverage is chosen having regard to the dietary requirements of individual children taking into account any specific cultural, religious or health requirements (reg 79(1)(a) and reg 79(1)(b)(ii) of the Regulations) (which constitutes an offence for non-compliance);
(d)to ensure that, where providing food and beverages (other than water) to children being cared for by the service, a weekly menu is displayed at a place in the premises accessible to family members of the children which accurately describes the food and beverages provided every day (reg 80(1) of the Regulations) (which constitutes an offence for non-compliance, and for which a compliance direction may be issued);
(e)to ensure that a parent of a child being educated and cared for by the service (or an authorised emergency contact if the parent cannot be immediately contacted), is notified as soon as practicable, but not later than 24 hours after the occurrence, if the child is involved in any incident, injury, trauma or illness while the child is being educated and cared for by the service (reg 86 of the Regulations) (which constitutes an offence for non-compliance);
(f)to ensure that an incident, injury, trauma and illness record is kept no later than 24 hours after the incident, injury or trauma or the onset of the illness in accordance with reg 87 of the Regulations;
(g)to ensure that first aid kits are kept in accordance with reg 89(1) of the Regulations, including that there are an appropriate number of first aid kits having regard to the number of children being educated and cared for by the service, and that the first aid kits are suitably equipped (which constitutes an offence for non-compliance);
(h)to ensure that the emergency and evacuation procedures are rehearsed every three months by the staff members, volunteers and children present at the service on the day of the rehearsal and the responsible person who is present at the time of the rehearsal, such rehearsals to be documented (reg 97(3)(a) and reg 97(3)(b) of the Regulations) (which constitutes an offence for non-compliance, and for which a compliance direction may be issued);
(i)to ensure that a copy of the emergency and evacuation floor plan and instructions are displayed in a prominent position near each exit at the service premises (reg 97(4) of the Regulations) (which constitutes an offence for non-compliance, and for which a compliance direction can be issued).
The requirements for approved providers under Pt 4.3 of the Regulations relevantly include:
(a)to ensure that the service premises and all equipment and furniture used in providing the education and care service are safe, clean and in good repair (reg 103(1) of the Regulations) (which constitutes an offence for non-compliance, and for which a compliance direction can be issued);
(b)to ensure that any outdoor space used by children at the premises is enclosed by a fence or barrier that is of a height and design that children preschool age or under cannot go through, over or under it (reg 104(1) of the Regulations) (which constitutes an offence for non-compliance, and for which a compliance direction can be issued);
(c)to ensure that adequate toilet, washing and drying facilities are provided for use by children being educated and cared for by the service, and the location of the toilet, washing and drying facilities enable safe use and convenient access by the children (reg 109 of the Regulations);
(d)to ensure that the premises are designed and maintained in a way that facilitates supervision of children at all times that they are being educated and cared for by the service, having regard to the need to maintain the rights and dignity of the children (reg 115 of the Regulations) (for which a compliance direction can be issued for non-compliance).
The requirements for approved providers under Pt 4.4 of the Regulations relevantly include:
(a)to designate, in writing, a suitably qualified and experienced educator, co-ordinator or other individual as educational leader at the service to lead the development and implementation of educational programs in the service (reg 118 of the Regulations) (for which a compliance direction may be issued for noncompliance);
(b)to ensure that a staff record is kept for that service under reg 145 of the Regulations, including, in relation to nominated supervisors and staff members, their full name, address and date of birth, evidence of any relevant qualifications, any approved training completed (including first aid training) and the identifying number of the current check conducted under the WWC Act (regs 146 and 147) and in relation to the person designated as the educational leader, the name of the person (reg 148).
The requirements for approved providers under Pt 4.5 of the Regulations relevantly include:
(a)to take reasonable steps to ensure that the service provides education and care to children in ways such as to encourage children to express themselves and their opinions, to allow them to undertake experiences that develop self-reliance and selfesteem and gives each child positive guidance and encouragement towards acceptable behaviour (reg 155 of the Regulations).
The requirements for approved providers under Pt 4.7 of the Regulations relevantly include:
(a)to ensure that a record of each child's attendance is kept for the service, including the full name of each child, and date and time each child arrives and departs (reg 158(1) of the Regulations);
(b)to ensure that an enrolment record is kept in accordance with reg 160 of the Regulations, including the relevant health information such as a medical management plan set out in reg 162;
(c)to ensure that the service has in place policies and procedures in relation to matters such as sleep and rest for children, dealing with medical conditions in children (including the matters set out in reg 90 such as requirements for the development of a risk-minimisation plan and a communications plan in relation to a child with a specific health care need, allergy or relevant medical condition), and transportation procedures complying with Pt 4.2 Div 7 where the service transports children other than as part of excursions (reg 168 of the Regulations) (which constitutes an offence for non-compliance);
(d)to take reasonable steps to ensure that nominated supervisors and staff members of the service follow the policies and procedures required under reg 168 of the Regulations (reg 170(1)) (which constitutes an offence for non-compliance, and for which a compliance direction can be issued);
(e)to ensure that copies of the current policies and procedures required under reg 168 of the Regulations are readily accessible to nominated supervisors and staff members of the service (reg 171(1)), and are available for inspection at the service premises at all times that the service is educating and caring for children or otherwise on request (reg 171(2)) (which each constitutes an offence for non-compliance, and for which a compliance direction can be issued);
(f)to take reasonable steps to ensure the prescribed documents to be kept by the approved provider under reg 177(1) of the Regulations are accurate (reg 177(2)) (which constitutes an offence for non-compliance, and for which a compliance direction can be issued);
(g)to ensure that prescribed documents under reg 177(1) of the Regulations are stored in a safe and secure place, and for a prescribed period as set out in reg 183(2) (for which a compliance direction may be issued for non-compliance);
•if the record relates to an enrolled child, until the end of three years after the last date on which the child was educated and cared for by the service (reg 183(2)(d) of the Regulations);
•if the record relates to a nominated supervisor or staff member of a service, until the end of 3 years after the last date on which the nominated supervisor or staff member provided education and care on behalf of the service (reg 183(2)(f));
(h)to keep evidence of the current prescribed insurance at the education and care service premises, and to make the evidence available for inspection by the CEO or an authorised officer under the Law (reg 180 of the Regulations).
Compliance powers of a regulatory authority
Where satisfied that an education and care service either has not complied with a provision of the Regulations or is not complying with a provision of Law, the CEO may give the approved provider a compliance direction or a compliance notice respectively to take specified steps to comply with that provision: ss 176 and 177 of the Law.
Where the CEO is satisfied that an education and care service is operating in a manner that poses, or is likely to pose, an immediate risk to the safety, health or wellbeing of any child being educated and cared for by the service, the CEO may direct (by written notice known as an emergency action notice) the approved provider of the education and care service to take steps specified in the notice to remove or reduce the risk: s 179(1) and s 179(2) of the Law.
It is an offence to fail to comply with a compliance direction, compliance notice or emergency action notice within the period specified in the direction or notice (being not less than 14 days), on pain of penalty of a fine of $2,000 for individuals or $10,000 in any other case (in the case of a compliance direction) or a fine of $6,000 for individuals or $30,000 in any other case (in the case of a compliance notice or emergency action notice): ss 176(3), 177(3) and 179(2) and 179(3) of the Law.
Relevantly, for breaches of ss 172 or 173, or breaches of regulations which are prescribed under s 291(1)(b) of the Law (which relevantly include reg 77(1), reg 80(1), reg 86, reg 89(1), reg 97(4), reg 104(1) and reg 177(2)), an authorised officer or other officer authorised by the CEO may serve an infringement notice: s 291(1) of the Law.
National Law and National Regulations as adopted in Queensland
Unlike Western Australia, Queensland has adopted the Education and Care Services National Law as contained in the Schedule to the Education and Care Services National Law Act 2010 (Vic) as a law of Queensland: s 4 of the Education and Care Services National Law (Queensland) Act 2011 (Qld).
Further, the Education and Care Services National Regulations (Queensland) (the Queensland Regulations) are made by the Ministerial Council.
The operational requirements in Queensland relevant to this case appear generally consistent with that which is applicable in Western Australia.
Tribunal jurisdiction
A person who is the subject of a 'reviewable decision for internal review' (which includes a decision of the regulatory authority under s 190 of the Law to refuse to grant a service approval), may apply to the regulatory authority in writing for review of the decision: s 191(1) of the Law.
If dissatisfied, a person who is the subject of a 'reviewable decision for external review' (which includes a decision made under s 191 of the Law, other than a decision in relation to the issue of a compliance direction or a compliance notice), may apply to the relevant tribunal for a review of the decision: s 193(1) of the Law.
After hearing the matter, the relevant tribunal may confirm or amend, or substitute another decision for, the decision of the regulatory authority: s 193(4) of the Law.
This application falls within the Tribunal's review jurisdiction as a matter that expressly involves a review of CEO's decision: s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) of the SAT Act.
The review is not confined to matters that were before the CEO but may involve the consideration of new material whether or not it existed at the time the decision was made: s 27(1) of the SAT Act.
Nor is the review limited to the reasons for decision or grounds for review set out in the application: s 27(3) of the SAT Act.
In its review jurisdiction, the Tribunal has functions and discretions corresponding to those exercisable by the decision-maker in making the reviewing decision: s 29(1) of the SAT Act.
In this statutory context, neither party bears any legal or practical onus of proof in these proceedings, as it is the statutory language of the enabling legislation which defines the condition for the valid exercise of the Tribunal's power: Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; 232 LGERA 331 ('Ord') at [115] - [125].
In particular, an applicant for review does not bear any legal or practical onus of identifying error in the decision-maker's decision, or showing that there should be some departure from that decision: Ord at [122].
Instead, it is the function of the Tribunal to consider the material before it and form its own view as to the issue under review: Ord at [124].
Consideration - Evidence and Findings
Secondary Issue 1 - whether BEL, if permitted to operate, would constitute an unacceptable risk to the safety, health and wellbeing of children
The CEO does not contend that, if permitted to operate, BEL would constitute an unacceptable risk to the safety, health and wellbeing of children, and I am satisfied that this consideration is not applicable to my determination.
Secondary Issue 2(a) – compliance history
Given the quantum of alleged breaches, I have consolidated the assessment of evidence, and ultimate findings, under the heading for each breach (or each set of breaches) for ease of reference.
Table of alleged breaches
The CEO presents ELA's compliance history in a table of alleged breaches set out in his Statement of Issues, Facts and Contentions, which I summarise below (as updated by his final submissions and with necessary supplementary comments based on the CEO's books of documents):
No. Law Breach Description Compliance Measure or Outcome Admit /
Deny or Do not Admit (DNA)1. s 103(1) Law Between 1 Aug 2012 and 1 Feb 2013 ELA (then called Embracing Children Karratha Pty Ltd) provided an education and care service without being an approved provider, and Michelle Pisani (MP) was also responsible for that contravention. SAT determination (VR 206 of 2013, April 2014) - $5,000 fine imposed on ELA, $1,000 fine imposed on MP, $10,000 costs awarded against ELA DNA 2. r 103 Regs Breaches arising from officers visit to KEL on 14 Apr 2014. Administrative letter (date unknown) DNA 3. r 126 Regs 4. r 133 Regs 5. r 154 Regs 6. r 97(4) Regs On or around 17 Feb 2016 emergency and evacuation floor plan and instructions were not on display at all exits in KEL (then known as Stripey Zebras Junior Education), then conducted by ELA (then known as Embracing Children Karratha Pty Ltd). Administrative letter 23 Feb 2016 Deny 7. r 103(1) Regs On or around 17 Feb 2016 at KEL, the kindergarten outdoor equipment was unclean, nails were sticking out of wooden fixtures in the outdoor area, black plywood table was chipped, and door frames, wall joints and floors were unclean. 8. r 180 Regs On or around 17 Feb 2016 at KEL, evidence could not be produced of a prescribed insurance policy. 9. s 162(1) Law On 21 Feb 2017 at 2.30pm, the Responsible Person (RP) left the building – her shift had finished. Another Supervisor was on sick leave. The Nominated Supervisor (NS) was completing the bus run and returned to the service at 2:55pm. KEL operated without a RP for 25 minutes. Administrative letter 7 Mar 2017 Admit 10. s 172 Law On 20 Mar 2017, the name of the NS, Education Leader (EL), person to make a complaint to and the name of the RP were not displayed. Infringement notice 28 Mar 2017 - $1,500
Compliance notice 23 May 2017DNA 11. r 104 Regs On 20 Mar 2017, senior authorised officers sighted the climbing hazard of several pallets attached to the fence in the kindergarten yard. Compliance notice 23 May 2017 Deny 12. r 97 Regs On 20 Mar 2017, evidence could not be produced that evacuations had been rehearsed on a 3-month basis. Administrative letter 28 Mar 2017 DNA 13. r 103 Regs On 20 Mar 2017, senior authorised officers sighted dirty mats in the kindergarten and toddler yards; dirty indoor carpets; unpleasant odour throughout the service; built up dirt in a sink; dirt near door runners; splintered outdoor climbing equipment. DNA 14. r 168 Regs On 20 Mar 2017, KEL's governance, fees, collection and delivery of children, Code of Conduct and child safe environment policies could not be produced. DNA 15. [withdrawn] 16. s 165(1) Law On 10 May 2017, ELA failed to ensure that all children being educated and cared for at the service were adequately supervised at all times. A child was left alone in a bus on a 30degree day for roughly 30 min between 2:52 pm and around 3:23 pm. SAT determination (VR 142 of 2017, 18 Dec 2017)) - $13,500 fine and $2,500 costs awarded against ELA Admit 17. r 97 Regs On 5 and 6 Sept 2019, evidence could not be produced that the service had rehearsed its emergency and evacuation procedures every three months. The service could only produce rehearsals for 11 Jun 2018 and 30 Aug 2018. Administrative letter 12 September 2018 DNA 18. s 172 Law On 5 and 6 Sept 2019, a current temporary waiver held by the service, and a notice that a child had been diagnosed as at risk of anaphylaxis, had not been displayed. DNA 19. r 177(2) Regs ELA failed to take reasonable steps to ensure prescribed records provided by KEL were accurate, namely records for 15 Mar 2019 with respect to direct supervision in that educators were not signing in chronological order and some of their writing is illegible. Administrative letter 7 May 2019 Deny 20. s 165 Law On 15 Mar 2019, a 15-mth old child was left in the outdoor area unsupervised. Staff at KEL stated it could have only been a few minutes, however a member of public advised that it could have been as long as 15 min. DNA 21. r 97 Regs On 18 Feb 2021 ELA failed to display emergency evacuation procedures at exits. Administrative letter 22 Feb 2021 DNA 22. s 172 Law On 18 Feb 2021 ELA failed to display prescribed information (name of NS, ratings, notice of children with anaphylaxis). DNA 23. [withdrawn] 24. r 97 Regs On 12 Oct 2020 the emergency and evacuation floor plan and instructions were not prominently displayed. Administrative letter 21 Oct 2020 DNA 25. r 103 Regs On 12 Oct 2020 various walls within KEL were marked with paint chipped or damaged/small holes evident, and wallpaper was in disrepair. DNA 26. s 161 Law On 19 Apr 2021 it was identified that KEL had been operating without a NS for a period of approx. 2 weeks, following the resignation of Sonel Ishak on or about 4 Apr 2021. Administrative letter 23 Apr 2021 Deny 27. s 173 Law On or about 26 Feb 2021 ELA had not notified the regulatory authority of the NS Clare Lawler ceasing to be employed at KEL about a week earlier (and therefore had not notified of that matter within the prescribed 7 days from the event, being the resignation). Deny 28. s 175 Law On 19 Apr 2021 KEL could not produce prescribed documents for inspection by an authorised officer, including emergency and evacuation rehearsals, risk assessments and parent authorisations. DNA 29. r 89 Regs On 19 Apr 2021 KEL did not have an appropriate number of first aid kits – authorised officers could only identify several bandages and half a box of band aids for 60 children in attendance. Deny 30. r 97 Regs On 19 Apr 2021 the emergency and evacuation floor plan and instructions were not displayed in a prominent position near each exit, and there was no evidence that emergency and evacuation procedures had been rehearsed every 3 months. DNA 31. r 118 Regs On 19 Apr 2021 the service did not have a designated EL. Deny 32. r 170 Regs On 19 Apr 2021 no risk minimisation plan or communication plan could be produced for a child with a medical condition (asthma). DNA 33. s 172 Law On 19 Apr 2021 ELA did not have displayed prescribed information including the name of the NS and EL, name and contact for complaints, current rating and contact information for the regulatory Authority (RA). DNA 34. s 173(2) Law On or about 12 Apr 2021 ELA had not notified the RA of the resignation a week earlier of nominated supervisor Sonel Ishak (and therefore had not notified of that matter within the prescribed time of 7 days from the event, being the resignation). Deny 35. s 174(2)
(b) LawELA on several times did not notify the RA of serious incidents or complaints. Case one, refers to a complaint made by a parent regarding concerns for their child's safety and allegations of inadequate supervision. This child has sustained several injuries over recent months at the service, including 2 separate incidents resulting in injuries requiring medical attention. Compliance notice 6 Aug 2021 Deny 36. s 167 Law On 15 Jul 2021 an area in the service foyer being used by children was unsafe. Children had access to the kitchen and children were observed leaving the designated space unnoticed through partitions and to attend the bathroom facilities. Emergency action notice 23 Jul 2021
Compliance notice 6 Aug 2021Deny 37. r 97(3) and (4) Regs On 15 Jul 2021 the emergency evacuation procedure and plan were not located at the identified emergency exit in the nursery. KEL could not produce any documentation of emergency rehearsals. Administrative letter 6 Aug 2021 Deny 38. r 103 Regs On 15 Jul 2021 12 items or areas were not clean, safe and in good repair. DNA 39. r 109 Regs On 15 Jul 2021 the senior toddler room had no toilet paper in their toilets. Deny 40. r 168 Regs On 15 Jul 2021 policies dealing with the delivery and collection of children to and from the service including compliance with s 165A of the Law could not be provided. DNA 41. s 172(f) Law On 15 Jul 2021 the name and position of the RP in charge of KEL was not displayed. Compliance notice 6 Aug 2021 Deny 42. s 165 Law On 15 Jul 2021 authorised officers found statements made by 3 educations regarding an incident on 4 Jun 2021 where a child had exited the outdoor yard, entered the senior toddler's room and then hung around the service's main entrance door without educators knowing. The child's mother was in the car park and found him before he could leave. Deny
43. s 174(2) Law ELA did not notify the RA of serious incidents or complaints. Case three refers to educator statements found by authorised officers during a visit to the service, detailing an incident where an enrolled child exited KEL unnoticed by educators. The child's parent was in the carpark at the time and proceeded to collect her child from the front of the service. After a period of approx. 5 min an educator came out the front looking for the child. The parent then entered KEL to discuss her concerns regarding this incident. [Emergency action notice 23 Jul 2021]
Compliance notice 6 Aug 2021Deny 44. r 115 Regs On 15 Jul 2021 children occupying the indoor space in the entry area were witnessed by authorised officers exiting the designated space via gaps in the partitioning/shelving. [Emergency action notice 23 Jul 2021]
Administrative letter 6 Aug 2021Deny
45. r 170 Regs ELA did not take reasonable steps to ensure KEL followed its own 'Payment of Fees', 'Nutrition and Food Safety Policy' and 'Family Grievances' policies. Administrative letter 6 Aug 2021 Deny or DNA 46. r 79 Regs On 15 Jul 2021 authorised officers observed that food and beverages were not appropriate to the needs of each individual child daily. Deny
47. r 86 Regs On 13 Jul 2021 an enrolled child sustained an injury to her toe for which an educator applied first aid treatment. Parents were not notified of the injury. Compliance notice 6 Aug 2021 Deny
48. r 87 Regs An incident, injury, trauma and illness record was not completed for the toe injury sustained on 13 Jul 2021. Deny
49. s 174(2) Law ELA on several times did not notify the RA of serious incidents or complaints. Case 2 refers to a complaint made by a parent whose child sustained an injury to her toe, the injury was not notified to the parent. The parent was required to seek medical attention for the injury. The parent made a complaint to the service regarding this incident and other concerns relating to her child not being provided with adequate food and beverages with regard to her dietary requirements. Emergency action notice 23 Jul 2021
Compliance notice 6 Aug 2021Deny 50. s 161A Law On 15 Jul 2021 ELA nominated a person as a NS despite the fact that the person did not meet prescribed minimum requirements for that role. In particular, ELA nominated Raneeta Kumar, who had no experience working in an education and care service, and therefore did not meet the requirements prescribed by r 117C(b) and (c). Deny 51. s 175(1)-(2) Law On 15 Jul 2021 ELA failed to ensure that evidence could be provided to authorised officers upon request, namely evidence that 2 employees had consented to nomination as a NS, contrary to s175(1)-(2) of the law read with r177(1)(n). Deny 52. s 175(1)-(2) Law On 15 Jul 2021 KEL could not make available, for review by authorised officers: any records for the NS; any records for the previous NS; any education and care qualifications for 2 educators; any education and care qualifications and a Working with Children Check (WWC check) for 2 educators. Deny 53. s 51(4A) Law A review of attendance records provided by ELA substantiated that, on 16 Jun 2021 for a period of half an hour KEL exceeded the maximum number of children present at any one time by having 67-68 children present and signed in; and on 29 Jun 2021 for a period of half an hour KEL exceeded the maximum number of children present at any one time by having 67-68 children present and signed in. DNA 54. r 148 Regs On 15 Jul 2021 records could not be provided that the EL had been designated that role in writing. Administrative letter 6 Aug 2021 DNA 55. r 74 Regs On 15 Jul 2021 for the delivery of an educational program:
- The senior nursery could not provide evidence of documented child assessments or evaluations; and
- The senior toddlers/kindy had no evidence of documented child assessments or evaluations since Apr 2021.
DNA 56. r 75 Regs On 15 Jul 2021 ELA failed to keep information about educational programs displayed and available for inspection. DNA 57. s 169 Law On 23 Jul 2021 the NS of KEL contacted the RA at 12:23 pm to advise that on that day the service was out of ratio by 5 educators. An authorised officer confirmed the following attendance and staffing numbers: Nursery-11 children, 2 staff (both Diploma); Snr Nursery/Toddlers-17 children, 2 staff (both Diploma); Snr Toddlers-20 children, 2 staff (1 Diploma and 1 studying); Pre-Kindy-15 children, 1 staff (Bachelors); ASC-11 children, 1 staff (Diploma). Emergency action notice 23 Jul 2021
Compliance notice 6 Aug 2021DNA 58. s 175 Law On 29 Sept 2021 ELA failed to ensure that a WWC check for 2 educators and qualifications for 1 educator were made available for inspection, upon the request of an authorised officer. Compliance notice 8 Oct 2021 Deny 59. s 169(2) Law On 29 Sept 2021 an educator had been working at KEL since Feb 2021 with no qualifications or working towards a qualification. DNA 60. [withdrawn] 61. [withdrawn] 62. s 175(1) Law On 29 Sept 2021 ELA failed to ensure that prescribed documents were made available for inspection by an authorised officer, namely the consent by 2 educators to being a person dayto-day in charge. Compliance notice 8 Oct 2021 Deny
63. r 170 Regs On 29 Sept 2021 there was no evidence of a risk minimisation or communication plan for a child attending with asthma. Deny 64. r 103(1) Regs On 29 Sept 2021 a nappy change mat in the nursery was ripped with exposed foam; a cot room in the senior nursery/toddler room had peeling paint; there was built up dirt and grime in sinks, walls, toilets and foot stools. Administrative letter 18 Oct 2021 DNA 65. r 147(d) Regs An educator worked at KEL across 4 months (apparently 41 days total) with a NSW WWC check but no WA WWC check. DNA 66. r 170 Regs On 2 Sept 2021 a child was not collected from school despite being enrolled for after-hours school care at KEL. DNA 67. s 162(1) Law On 24 Jan 2022 a RP was not present at KEL from 6.00-9.00 am. Compliance notice 31 Mar 2022 Admit 68. s 169(1) Law On 24 Jan 2022 minimum educator to child ratios was not met between 8.30-9.00 am and 1.30-5.30 pm. Deny 69. s 169(2) Law On 24 Jan 2022 minimum educator qualifications were not met between 8:30-10.30 am and 3.30-4.00 pm. Deny 70. r 177(2) Regs On 24 Jan 2022 educator Taara McCully did not have an accurate record of working directly with children, as her signout time was recorded as 8.50 pm, outside operational hours. DNA 71. s 165 Law On 2 Feb 2022 at approx. 3.00 pm a child was able to climb over a fence and the educator was informed of the incident by another child. The child that climbed over the fence did not go further than the immediate area and was not injured. DNA 72. s 165 Law On 15 Feb 2022 at 3.30 pm 3 children were found by a parent (who is a police officer) unsupervised in a room where they had access to a fridge, children's bags and lunchboxes. An educator also witnessed this after being informed by the parent (statement provided). DNA 73. s 169(1) Law Assessment of documentation for 31 Jan 2022 identified that KEL did not meet educator to child ratios between 7:00-11.00 am and 3.30-4.00 pm. Deny 74. s 169(2) Law Assessment of documentation for 31 Jan 2022 identified that KEL did not meet education qualifications between 7:30-11.00 am and 3.30-4.30 pm. Deny 75. r 177(2) Regs Assessment of documentation for 31 Jan 2022 identified that 1 child's attendance record did not have an accurate sign out time – the time of sign out was out of operational hours. DNA 76. s 169(1) Law A review of staffing and attendance records for 1 Feb 2022 identified that KEL did not meet educator to child ratios between the hours of 8.30-9.00 am and 10.30 am-3.00 pm. Deny 77. s 169(2) Law An assessment of documentation for educator qualification requirements were not met on 1 Feb 2022 between the hours of 8.30-9:00 am and 10.30-11.30 am and 1.30-2:00 pm. Deny 78. r 177(2) Regs 8 children's attendance records for 2 Feb 2022 had inaccurate sign in and sign out times (3 children were missing sign in and sign out times, and 5 had sign out time of 20.05 which is outside of operational hours). 1 of the children's date of birth was unable to be located on attendance records. DNA 79. r 177(2) Regs Assessment of documentation identified, between 4 and 27 Jan 2022, 5 occasions where children's attendance records did not have sign in/sign out times or date of birth for children in accordance with the r 151; 10 occasions where records of educators working directly with children were inaccurate. Deny 80. s 169(1) Law Desktop review of staffing and attendance documents identified that educator to child ratios between 7.00-8.00 am and 4.00-5.00 pm were not met on 15 Feb 2022. The assessment identified KEL was at least one educator short for these time periods. Deny 81. r 103 Regs On 8 Feb 2022 and possibly other dates the door between the Malhurda room and the outside environment was unintentionally locking by itself, which meant on 8 Feb 2022 a child and an educator were not able to re-enter the building through the door until it was unlocked. The door was therefore not safe or in good repair. Administrative letter 12 Apr 2022 Deny 82. s 162 Law An assessment of documentation provided by ELA identified that KEL did not have a RP on site from 5.00-6.00 pm on 10 Jan 2022 and 6.00-8.00 am on 25 Jan 2022. Compliance notice 31 Mar 2022 Deny 83. s 169(1) Law An assessment of documentation provided by ELA identified that KEL was not meeting educator to child ratios on 38 separate occasions between 4 to 27 Jan 2022. Deny 84. s 169(2) Law An assessment of documentation provided by ELA identified that KEL did not meet educator qualifications on 17 separate occasions between 4 to 27 Jan 2022. Deny 85. r 170 Regs On 22 Jun 2022 ELA failed to take reasonable steps to ensure KEL was compliant with its medical conditions policy as then in force, as it had no medical management plan or risk minimisation plan available for a child who was understood at the time to have a medical condition or needs. Compliance notice 15 Jul 2022 Deny 86. r 97(4) Regs On 22 Jun 2022 KEL did not have an emergency evacuation floor plan and instructions displayed. Admit 87. r 180 Regs On 22 Jun 2022 KEL could not produce a current policy of insurance in respect of the premises. Administrative letter 18 Jul 2022 DNA 88. s 175 Law On 22 Jun 2022 ELA failed to ensure that enrolment records for 6 children present at the time of the visit could, upon the request of an authorised officer, be produced for inspection. Compliance notice 15 Jul 2022 Admit 89. r 177(2) Regs On 22 Jun 2022 ELA failed to take reasonable steps to ensure prescribed records were accurate, namely KEL had inaccurate attendance records for 2 children, in that children were attending on the day but were marked 'non-attending' on the OWNA app. Infringement notice 13 Jul 2022 Deny 90. s 51 Law On 22 Jun 2022 ELA was non-compliant with an additional condition imposed on the service approval, namely that a floor plan be displayed next to KEL's service approval. Compliance notice 15 Jul 2022 Admit 91. s 165(1) Law On 22 Jun 2022 a child asleep in the nursery was not adequately supervised between 10.15-10.46 am. Deny 92. r 171(2) Regs On 22 and 23 Jun 2022 ELA failed to ensure that the sleep and rest policy could be produced for inspection, upon the request of an authorised officer. Administrative letter 18 Jul 2022 Admit 93. r 103 Regs On 23 Jun 2022 a long storage shelf was placed in front of a room entrance door, which was marked as an emergency exit for that room. Educators advised the officers that this had been done intentionally to prevent children being able to leave the room. Compliance notice 15 Jul 2022 Admit 94. s 173 Law On or by 27 Sept or 4 Oct 2022, ELA failed to notify the RA, within 7 days of the event occurring, that Caroline McGarry was no longer the NS for KEL. Infringement notice 28 Oct 2022 Admit Spring Hill Early Learning 95. s 168(1) Law During an announced visit at the service on 22 Jul 2021, there was no programming documentation displayed and it was verbally confirmed that there was not a consistent program being implemented by the service. Evidence of educational programming developed prior to the visit could not be provided. This matter was not rectified until 14 Sept and 21 Oct 2021. Admit 96. r 75 Regs During an unannounced visit at the service on Jul 2021 there was no programming documentation displayed, and it was verbally confirmed that there was not a consistent program being implemented by the service. On 14 Sept 2021, it was confirmed that families were 'not informed about the program, nor their child's learning progression' and that there was a 'lack of quality learning displayed for families'. This matter was not rectified until 14 Sept and 21 Oct 2021. Admit 97. s 169(1) Law Following an unannounced visit at the service on 22 Jul 2021 where concerns about educator to child ratios were raised, further evidence was requested from ELA. A review of this documentation confirmed that the service was not meeting the educator to child ratios on Mon 12 Jul 2021 from 3.00-5.15 pm or on Tues 13 Jul 2021 from 8.00-9.15 am. This matter was not rectified until 21 and 27 Oct 2021. Admit 98. s 169(2) Law A review of the documentation supporting breach 97 confirmed further that on 12, 13, 14 and 16 Jul 2021 that there were instances where the service only had 1 educator present. The educator did not hold a diploma qualification and was not studying towards that qualification. Admit 99. s 162(1) Law During the investigation of breaches 95-98 discussions occurred in relation to the service's process for appointing a RP in charge. Upon a review of the roster for the week of 12 Jul 2021, it was identified that none of the persons who accepted the role of RP in charge were at the service on 12 and 13 Jul 2021. Additionally, there were no staff who had consented to being a RP in charge on the mornings of 14 and 16 Jul 2021 until 9.00 am. This matter was not rectified until 2 Aug, 27 Oct and 15 Nov 2021. Admit EC Maryborough Junior Education 100. r 103 Regs On an unannounced visit to the service on 20 Jul 2016 an authorised officer observed that the front entrance gate was not self-closing and self-latching. The gate is able to remain ajar when persons enter or depart the service through this gate. This gate leads directly into the service's car park. Further, climbing equipment greater than 600 mm in height did not have adequate soft fall surrounding it. Compliance notice 20 Jul 2016 Admit 101. s 167 Law The facts of breach [100] also evidence a breach of this provision. Admit 102. r 158 Regs On an unannounced visit to the service on 30 Jun 2016, the authorised officer confirmed that children's attendance records for that day did not record the date each child attended, arrived and departed from the service. Admit 103. r 151 Regs On an unannounced visit to the service on 30 Jun 2016, the authorised officer confirmed that the staff roster and staff timesheets for that day did not accurately reflect the hours each educator worked directly with children. Admit 104. r 103 Regs On an unannounced visit to the service on 30 Jun 2016, the authorised officer observed that a gate to a side play space was broken with no temporary measures put in place to secure the gate. Admit 105. s 167 Law On an unannounced visit to the service on 30 Jun 2016, the authorised officer observed that the front entrance gate was not self-closing. The gate was able to remain ajar, children could walk out of the gate and then into the carpark. Admit 106. s 162 Law On an unannounced visit to the service on 30 Jun 2016, the service was providing care and education for children however there was no evidence that a RP was present. Compliance notice 12 Jul 2016 Admit 107. r 80(1) Regs A visit to the service on 21 Jun 2016 revealed that the menu displayed in the foyer did not reflect the food served to the children at the time of visit. The menu stated that stir-fry would be served; however, children were provided beef and vegetable pie and lasagne. Compliance notice 24 Jun 2016 Admit 108. r 79 Regs On a visit to the service on 21 Jun 2016 an educator advised an authorised officer that the service ran out of food on 15 Jun 2016, and there was limited food available to meet the children's nutritional needs on 15 and 16 Jun 2016. Admit 109. r 103 Regs On a visit to the service on 21 Jun 2016 an authorised officer observed that the front fence in the nursery playground was unstable, and one panel was not secured down the bottom of the fence. Admit 110. s 167 Law The facts of breach 109 also evidence a breach of this provision. Admit 111. s 169 Law Review of documentation obtained from the service demonstrated that on 9 May 2016 between 12.15 - 1.00 pm the service needed 6 educators to meet ratio requirements; only 5 educators were present. Secondly, on 9 May 2016 between 1.00-1.15 pm the service needed to have 5 educators working with children to meet ratio requirements; only for (sic) educators were present. Thirdly, on 10 May 2016, between 1.00-2.00 pm, the service needed 8 educators working with children to meet ratio requirements; only 6 educators were present. Admit 112. r 104 Regs On an unannounced visit to the service on 29 Mar 2016 an authorised officer observed that 2 pallets were attached to the external fence in the playground utilized by the older children. These pallets could enable a child to climb over the fence. Compliance caution letter 30 Mar 2016 Admit 113. r 155 Regs On an unannounced visit to the service on 29 Mar 2016 authorised officers observed educators engaging in limited and mostly directional interactions with children, ie. 'come and I will change you', 'hop down', 'just be careful, please', 'walking please'. Educators were not observed having meaningful interactions with children or engaging with children in their play. A number of children were observed to be upset during the morning and educators were not always trying to comfort these children. For example, a child was observed crying near the shed whilst an educator was unpacking climbing frames; the educator did not acknowledge or engage with this child. Admit 114. s 165 Law On an unannounced visit to the service on 29 Mar 2016, authorised officers observed 3 children playing with mushrooms and this was not seen by supervising educators. Admit 115. s 167 Law On an unannounced visit to the service on 29 Mar 2016, a number of children were observed not wearing hats while engaged in outdoor play. Furthermore, the officers identified mushrooms growing in the older childrens' playground which children were playing with. Fungus was seen in the younger childrens' playground on grass and on a garden bed accessible to children. Thirdly, school-age care children were observed accessing the internet on the service computer. The NS was not able to provide detailed information about the security measures that were in place to prevent children from viewing inappropriate images, programs and material. Fourthly, the cubby house in the nursery playground was rotted and had exposed screws inside the ceiling. Lastly, climbing equipment above 600mm in height did not have adequate soft fall protection. That equipment was located in the large playground. Compliance caution letter 30 Mar 2016 Admit 116. r 158 Regs Review of documents obtained from the service showed that 6 children's attendance records were incomplete for 5 Feb 2016, as there was no record of the time the child departed the service, nor were they signed by a person prescribed in the regs. Children's attendance records for 5 Feb 2016 also evidenced that an employee had signed a number of children in and out of the service out of the hours that the employee was at the service. Compliance caution letter 10 Feb 2016 Admit 117. s 169(1) Law Documents obtained during or after an unannounced visit to the service on 8 Oct 2015 confirm that on 8 Oct 2015 the service needed for (sic) educators working with children to meet ratio requirements; only 3 educators were present. These documents also demonstrated that on 8 Oct 2015 at 8.30 am the service was required to have 7 educators working with children to meet ratio requirements; only 4 educators were present. Compliance caution letter 4 Nov 2015
Credible Suspected Breaches from visit on 12 October 2022 118 r 173 Regs On 12 Oct 2022 ELA did not have on display on the premises the following prescribed information: name of the EL; name and contact details of grievances officer; the RP; contacts details for the RA. DNA/Deny 119. r 77 Regs On 12 Oct 2022 KEL demonstrated unsafe food practices, namely bottles of milk being made at the sink near the nappy change area, the same sink where hands are washed. Deny 120. [withdrawn] 121. r 75 Regs On 12 Oct 2022 educational programs were not on display in any room of the service except an out-of-date program displayed in the Possum's room. Admit 122. [withdrawn] 123. s 175 Law On 12 Oct 2022 KEL could not upon request produce qualifications for 2 educators and could not produce enrolment records for 1 child. Admit 124. [withdrawn]
Breaches 15, 23, 60, 61, 120, 122, and 124 have been withdrawn by the CEO.
Approach to assessment of breaches
The following general matters have informed my approach in paragraphs [115] - [639] of assessing whether allegations of breaches are proven for the purpose of establishing ELA's compliance history.
Firstly, where Ms Pisani has expressly indicated in her witness statements that she admits an allegation of breach or the facts giving rise to the breach (which is not contradicted by anything else in her statements or in oral testimony or other evidence), I have given particular weight to that admission in making findings of fact in relation to each alleged breach.
In her statements, Ms Pisani admits to 34 breaches, and where she provides mitigatory comments, I summarise them in respect of each breach.
Secondly, I have taken into account, in making factual findings in respect of each breach, that ELA did not seek a review of compliance notices or contest infringement notices (save for the infringement notice issued in July 2022), which were issued by the CEO as outlined in the Table above.
Whilst the decision not to contest infringement notices or compliance notices does not equate to an admission of breaches, such decision may have had a prejudicial effect on the CEO through loss of an opportunity to conduct more contemporaneous inquiry into alleged breaches.
Thirdly, the parties have drawn a distinction between 'confirmed' breaches and 'unconfirmed' breaches, which appears to be based on a further layer of investigation by ECRU to satisfy itself that a 'suspected breach' can be converted to a 'confirmed' breach.
However, any finding of breach is one on which I will ultimately have to be satisfied, and so I apply the same level of scrutiny to the evidence led for each alleged breach, whether they are confirmed by ECRU or otherwise.
Alleged breach 1
The agreed facts in the consent orders signed on behalf of the CEO, ELA and Ms Pisani indicate that the breach relates not only to the period when ELA was providing education and care services without being an approved provider (1 August 2012 to 10 October 2012) but also when ELA had yet to obtain a service approval for education and care services operated at various premises in Karratha (11 October 2012 to 1 February 2013).
Whilst Ms Pisani does not deny the facts giving rise to this breach in her 29 August witness statement, she contests its relevance as the breach did not arise in relation to KEL.
Ms Pisani also contests its relevance, given that the CEO ultimately granted the service approval for KEL, and the Queensland regulatory authority granted service approvals for two other services, EC Maryborough and Spring Hill.
This breach is a relevant consideration as it is part of the compliance history of ELA, as approved provider, even if the breach for providing education and care services in the absence of an approved provider approval or service approval did not occur in respect of KEL.
That a regulatory authority may have subsequently granted service approval to ELA does not exculpate ELA from having failed to obtain a provider approval and service approvals before operating education and care services, and I find breach 1 proven.
Alleged breaches 2 - 5
The only document of these breaches is an investigation summary report, from which the only factual matters - that is, that a spot visit was conducted on 14 April 2014 by officers L Beugelaar and K Gardner, and that there was non-compliance with regs 103, 126, 133 and 154 - were identified.
Whilst the report stated that a non-compliance letter would be sent to ELA, and that evidence was received 21 May 2014, no copy of a letter to ELA, nor of the evidence received, was contained in the CEO's documentary evidence.
In her 29 August witness statement, Ms Pisani does not provide a substantive response to these allegations, other than to note that the status of the investigation was 'closed' with the service found to be 'now compliant'.
Without any particulars of the breaches, I am unable to find that the circumstances observed at the visit on 14 April 2014 give rise to breaches of the regulations noted in the report, and find insufficient evidence to support breaches 2 - 5.
Alleged breaches 6 - 8
The documents tendered by the CEO include an ECRU 'Monitoring - Visit Summary' sheet referring to a spot check visit of KEL by authorised officer Stephanie Parker dated 17 February 2016, a building checklist dated 17 February 2016, photographs, and correspondence about the visit from ECRU to ELA.
The notes in the visit summary are consistent with the particulars of breach in the Table, which notes were verified in signed agreement by the responsible person at KEL and were not challenged by ELA.
On 10 March 2016, the nominated supervisor for KEL provided a response setting out the actions taken in relation to each alleged breach (without setting out any exculpatory justifications).
On 29 March 2016 ECRU advised in a letter to ELA that KEL was now compliant with the Law and Regulations, although confirmed breaches had been recorded against KEL.
In respect of breach 6, Ms Pisani asserts, without adducing any evidence, that ELA was compliant with reg 97(4) of the Regulations.
I prefer the more contemporaneous notes made by Ms Parker at her visit on 17 February 2016, whose accuracy of note-taking was not challenged by the then responsible person at KEL, and so I find breach 6 proven.
As to breach 7, Ms Pisani contends that it is impossible to keep a floor clean due to normal childcare activities, but does not otherwise dispute the allegation.
Putting to one side the allegation of unclean floors, Ms Parker's other observations of nails sticking out of wooden fixtures in the outdoor area and a chipped black plywood table are, in my view, sufficient to establish that not all equipment and furniture at KEL were safe or in good repair, and I find breach 7 proven.
In respect of breach 8, Ms Pisani contends that the insurance policy was current at the date of inspection, but does not address the failure to make evidence of the policy available for inspection; I therefore find this breach proven.
Alleged breach 9
Ms Pisani confirms a self-report by ELA that it operated without a responsible person at KEL for 25 minutes, for which I am satisfied constitutes a breach of s 162(1) of the Law.
In mitigation, she asserts that the incident had been self-reported by ELA, that the ratio of diploma-qualified educators was twice that required during that period, and that ELA has now taken steps to appoint more than two responsible persons.
Alleged breaches 10 - 14
The documents tendered by the CEO include an investigation summary report, a visit summary dated 20 March 2017, a staffing and attendance checklist dated 20 March 2017, photographs and email correspondence with Ms Pisani relating to a spot visit by authorised officers Amanda Crane and Vicki Gilmore on 20 March 2017.
The notes in the visit summary are consistent with the particulars of breach in the Table, which notes were signed off and agreed to by the nominated supervisor of KEL and were not challenged by ELA.
The investigation report records that on 28 March 2017 an infringement notice of a fine of $1,500 was issued in relation to breach 10, as well as a letter from ECRU to ELA alleging breaches including breaches 11, 13 and 14.
Breach 12 was not raised in any correspondence from ECRU to ELA.
On 23 May 2017, ECRU issued a compliance notice regarding breach 11.
In relation to breach 10, Ms Pisani does not admit nor deny the allegation, only to say that ELA is now compliant; in the absence of any evidence which countervails the contemporaneous notes by the authorised officers in the visit summary, I am satisfied that the notes establish the facts that give rise to the occurrence of breach 10.
As to breach 11, Ms Pisani disputes that the pallets were a climbing hazard as they were being used to create a wall garden as part of risky play or set ups which do not offend the Law.
Photographs of the fence provided by Ms Pisani show that it fronts onto a carpark, beyond which a road is visible and surrounding residential properties.
In my view, Ms Pisani's comments do not address the safety aspect of placing pallets close enough to a fence, which reduced the effectiveness of the fence in preventing children of preschool age or under from going over it.
I am thus satisfied that breach 11 is proven.
In relation to breaches 12-14, Ms Pisani does not provide a substantive response admitting or denying these allegations.
I rely on the contemporaneous notes of the authorised officers that they were not provided with evidence that evacuations were rehearsed every three months, and so find breach 12 proven.
I also rely on the contemporaneous notes of the authorised officers in finding that the premise and equipment and furniture at KEL were not all clean or in good repair, and so breach 13 is proven.
In respect of breach 14, whilst the requested policies are required to be in place under reg 168 of the Regulations, the obligation to keep copies of, and make available for inspection when the service is operating or when otherwise requested, the policies at the premises, arise under reg 171(2).
Notwithstanding the misclassification of the relevant regulation, the particulars of the breach provided to ELA in these proceedings are sufficient to identify how it is said that ELA has breached a legal requirement, and I am satisfied that, having failed to provide a copy of the requested policies on the day of the inspection there has been a breach of reg 171(2) particularised under breach 14.
Alleged breach 16
On 27 November 2017, the Tribunal made orders to the effect that proper cause for disciplinary action existed against ELA as it had contravened s 165(1) of the Law, and imposed a fine of $13,500 and costs of $2,500.
The agreed facts indicate that on 10 May 2017, following collection by bus of seven children from various schools to KEL, KEL's nominated supervisor signed seven children into KEL even though only six children entered KEL.
No inspection of the interior of the bus was conducted, nor were the children individually counted, or verbally and visually identified as they entered KEL.
About 30 minutes after the bus arrived at KEL, a parent walking past the bus observed a small child crying inside the bus, and entered the unlocked bus and unstrapped the child from the booster seat.
The maximum temperature in Karratha that day was 30 degrees Celsius, and the temperature in the bus would have been higher.
Ms Pisani does not dispute the breach giving rise to the disciplinary proceedings, and raises in mitigation facts such as immediately standing down the staff member in charge of the children at the time of the incident and cessation of the pick up and drop of service by bus.
I am thus satisfied that this breach is proven.
Alleged breaches 17 - 18
The documents tendered by the CEO include an investigation summary report, a visit summary dated 6 September 2018, photographs and correspondence between ECRU and ELA staff in relation to this visit to KEL by authorised officers Tanya Joyce and Maija Raittinen.
Whilst the particulars referred to in the Table refer to this visit have taken place on 5 and 6 September 2019, the documents tendered by the CEO establish that the visits occurred on 5 and 6 September 2018.
The notes in the visit summary are otherwise consistent with the particulars of breach in the Table, although it is not clear from the copy of the visit summary whether the nominated supervisor, who had signed the document, had ticked the appropriate box as to whether she agreed or disagreed with the notes, I will thus place greater reliance on other departmental documents, such as the investigation summary.
As to breach 17, the notes in the investigation summary indicate that rehearsal documents for 30 August 2018 and 11 June 2018 were sighted.
I infer from these investigation notes that the authorised officers had requested evidence of rehearsals which had been conducted prior to 11 June 2018 but did not sight any such evidence at the visits.
As to breach 18, the investigation summary also recorded a telephone call from the nominated supervisor where she advised that she had found the current service approval certificate with the temporary waiver, which supported the observations recorded in the visit summary that it was not displayed at the time of the visits.
Ms Pisani does not admit, deny, nor address whether ELA was compliant at the time of, these alleged breaches.
I therefore accept the departmental notes as establishing the facts which give rise to the occurrence of breaches 17 and 18.
Alleged breaches 19 - 20
Documents tendered by the CEO include the investigation summary sheet, correspondence between ECRU and ELA, a copy of an 'Incident, Injury and Trauma and Illness Record Form' completed by the nominated supervisor for KEL at the time, and a copy of the 'Direct Supervision Sign-In Sign-out Sheets' for 15 March 2019.
In the investigation summary, it appears that ECRU were notified of an incident on 15 March 2019 where a child aged 15 months old was in the outdoor area of the service (which, according to a member of the public, could have been for as long as 15 minutes).
The incident form suggested that it only took an educator two to five minutes to become aware that this child had not been taken inside with the other children.
ECRU then sought, and was provided with, a copy of records of educators working directly with children that day, which it assessed as illegible and not in chronological order.
In response, the nominated supervisor advised that educators signed in and out on what line they found on the form, and asserted that the entries were true and accurate for that day.
Ms Pisani denies the allegations in breach 19, and contends (which I accept) that the CEO's allegations go only to the legibility, rather than the accuracy, of the records.
Further, ELA's justification for why the entries were not in chronological order is a reasonably open one which has not been challenged by the CEO, and so I am not satisfied that breach 19 has been proven.
As to breach 20, Ms Pisani does not appear to dispute this allegation, as she states in her 29 August statement that the child was unharmed.
Whilst the evidence is unclear about how long the child was left alone outside, it is not disputed that this period was at least two minutes, which, brief as it was, constitutes a breach of s 165 of the Act by the failure to supervise children at all times that they are in the care of KEL.
I therefore find breach 20 proven.
Alleged breaches 21 - 22
The CEO relies on the witness statement of Ms Smith (annexing an ECRU visit checklist), a visit summary dated 18 February 2021, photographs, as well as a case summary report and correspondence between ECRU and ELA in respect of a monitoring and compliance visit of KEL by Ms Smith on 18 February 2021 in the presence of KEL's centre director.
Ms Smith attests in her witness statement that there were no evacuation instructions (although there was an evacuation plan) at the front door exit, and there was neither an evacuation plan nor instructions at the toddler room exit.
The observations contained in Ms Smith's statement, and her notes in the checklist and the visit summary, are consistent with the allegations of breach in the Table.
Ms Pisani neither admits nor denies these allegations, and does not substantively respond to whether KEL was compliant at the relevant time.
I am satisfied that Ms Smith's observations and notes establish that breaches 21 and 22 occurred at her visit on 18 February 2021.
Alleged breaches 24 and 25
Ms Smith also attests to an earlier monitoring and compliance visit of KEL conducted on 12 October 2020 in her statement, and confirms having completed a visit summary and a 30-minute checklist as well as taken photographs at KEL.
In particular, she attests to the lack of evacuation instructions at the nursery room exit, an exit at the toddlers room and an exit at the junior kindy room, and the lack of both evacuation instructions and plans at the other junior kindy room exit.
Ms Smith also observed that walls throughout KEL, including in the play spaces and bathrooms, were marked and/or unclean, with paint chipped and/or damaged and with small holes.
She also observed wallpaper throughout KEL were ripped and in disrepair.
The photographs she took of the state of the walls and wallpaper in KEL support her observations; in particular, her photographs of the outdoor play area show paint had peeled off a post and overhead beams down to their metal base.
Ms Pisani does not provide a substantive response to the allegations in breach 24, and whilst not apparently disputing the observations in breach 25, thinks that the conclusion is 'heavyhanded'.
Based on Ms Smith's observations and my own conclusions from the photographs, I am satisfied that there is evidence that the state of the premise and equipment was not safe, clean or in good repair and breach 25 is proven.
I also accept Ms Smith's observations as establishing the facts giving rise to the occurrence of breach 24.
Alleged breach 26 - 34
Ms Bowen attests that ELA made an application on 24 March 2021 to amend the service approval for KEL to increase the maximum number of children who may attend the service from 66 to 69.
Ms Bowen attended KEL on 19 April 2021 for the purpose of measuring and assessing proposed additional play spaces and to complete a safety checklist.
Ms Bowen took measurements of service spaces on an areas plan dated 24 March 2021, that marked the new proposed unencumbered indoor space of around 35.96m2 near the entry area.
Before that visit, she accessed the National Quality Agenda IT System (NQAITS), a national database maintained by the Australian Children's Education and Care Quality Authority (ACECQA), which records information about approved providers and services.
From that search, Ms Bowen identified that two nominated supervisors were listed for KEL (that being Clare Lawler and Sonal Ishak).
At the visit, she completed a visit summary in the presence of the responsible person in charge at the time, Aida Escobar, which notes were verified and counter-signed by Ms Escobar as agreed.
Ms Bowen also completed a safety checklist and took some photographs during her visit.
As to breaches 26, 27 and 34, Ms Bowen was advised by Ms Escobar during the visit that that Ms Lawler and Ms Ishak had ceased working for KEL for approximately two months and two weeks respectively and made a note to that effect in the visit summary and safety checklist.
Following the visit, Ms Bowen reviewed NQAITS and identified two notifications submitted by ELA on 19 April 2021 removing Ms Lawler and Ms Ishak as nominated supervisors and nominating Kylie-Anne Elizabeth See as nominated supervisor.
Ms Bowen attests that there was no notification nominating a nominated supervisor in any part of the period commencing two weeks prior to the visit.
Ms Pisani denies the allegations in breaches 26, 27 and 34 by relying on the fact that ELA had notified the CEO by filing the relevant change to nominated supervisor on 19 April 2021.
Ms Pisani and her management team did not have access to the software system used by Childcare Central and they were not involved in the process.
In February 2022, a new temporary management structure was put in place to work with Holistic, and Ms Berg was appointed as an 'on the ground' supervisor at KEL to work closely with Holistic and hold the staff together.
Despite Ms Pisani's April statement attesting to a positive experience with Ms McGarry, Ms Pisani attests in her November statement that by August 2022 she found Ms McGarry lacked administrative ability and common sense, based on some of the alleged breaches arising from the visits of 22 and 23 June 2022.
Ms McGarry resigned shortly after a new nominated supervisor, Ms Braam, began employment on 5 September 2022.
Ms Braam's previous experience included working as an assistant director of a kindergarten, and received induction and training by Ms Calci on documentation requirements.
With the assistance of Holistic, ELA has implemented the following steps of continuous improvement:
(a)establishing clear rostering processes to ensure that a responsible person at KEL is present at all times by using the OWNA software;
(b)updating policies and procedures and establishing schedule for yearly review of all policies and procedures, and ensuring responsible persons are trained and involved in relation to the review;
(c)overhauling the induction process for new responsible persons, including the use of a new staff orientation form and induction checklist and videos;
(d)conducting a new supervision risk assessment, including implementation of a new supervision action plan and supervision training for educators;
(e)ensuring strict adherence to working directly with children register;
(f)distribution of a monthly Holistic 'Focus of the Month' newsletters focussing on different safety aspects;
(g)high level of oversight by Ms Pisani through daily correspondence with the centre director, responsible person or the nominated supervisor via both email and phone;
(h)creation of a new Transition Policy and Procedure document and a child transition information form; and
(i)providing financial incentives for educators to raise their standards of compliance (such as weekly bonus payments for educators who reach their KPI's in terms of attendance at work, punctuality and programming).
Ms Pisani also engaged Ms Gale to offer bespoke induction training for educators at KEL.
She maintains that the issues faced in KEL in terms of staffing, staff performances and 'unfounded' parent complaints will not arise in BEL because of its proximity to a far larger pool of educators, colleges and support staff.
Ms Pisani relies on Ms Calci's service visit report referred to in [610] as evidence of Ms Braam and the educators implementing the advice of ELA's consultants.
Evidence of Ms Maloney
In Ms Maloney's April statement, she states that she became personally involved in assisting ELA around 28 February 2022, and personally visited KEL on 29 March 2022 to conduct a work, health and safety audit relating to compliance matters.
She states in her April statement that she did not find any unacceptable risks to children during her visit, and found KEL 'typically compliant', although, when taken through her audit checklist in cross-examination, conceded she did find some unacceptable risks to children.
The checklist of her audit is attached to Ms Pisani's 29 August statement, and the matters identified as 'negative responses' include:
(a)an emergency evacuation drill (not only a fire drill) has not been completed at least four times in the past 12 months and has been documented and discussed at educator's meetings: with a comment at the end of the checklist recommending emergency drills be done as she was not sure how many have been practised in the last 12 months;
(b)work areas, storerooms, and corridors were not free from clutter and obstruction (free of obstruction exit pathways eg. no furniture, children's lockers etc): with further comment that the storerooms need a good tidy to enable safe access;
(c)dangerous or harmful substances were not stored appropriately with keyed locks in place and in use on storage cupboards: with further comment that the laundry door was closed but unlocked and accessible to the children;
(d)not all the windows and locks are operating correctly (check handles, locks and latches) in either of the two rooms being used (the Nyirdingu room and the Malhurda room): with further comment in the Malhurda room that not all the doors are working properly, and that dirt and leaves in the tracks could be contributing to this;
(e)the lighting levels were not adequate in the cot room: with further comment that Ms Maloney found the cot/rest room to be very dark, and in terms of checking the sleeping children in 10 minute checks this may be difficult to see the rise and fall of the child's chest in the dark room;
(f)the toilets/nappy change facilities were not in good condition, or in clean and working order: with further comment that all bathrooms could be better maintained and cleaned, and checklists completed;
(g)there are power leads hanging within reach of children: with further comment that there is an iPad or speaker cable within reach of children in the nursery and cords within reach in the locker room in the nursery.
She also considered at the time that Ms McGarry was well versed on the expectations of the Law and the Regulations and that she appeared to have very good interactions with parents.
She also found the educators were very good on the OWNA software, and were conducting regular headcounts and accurately recording arrival and departure times.
She acknowledged that there were a lot of new staff at KEL.
However, by November 2022, Ms Maloney offers frank reservations in her November statement about the staffing issues observed, admitting that KEL has been a difficult service at which to work.
She considers that the quality of the educators available and employable is not to the standard that she would expect, where many are international educators with various degrees of experience and proficiency with English (with many using English as their second language).
She also considers that there has been no consistency of educators, and a lack of quality educators at KEL, and that there has been an almost new team of educators every time she has visited KEL, which she considers compromises KEL.
Ms Maloney also attests that the high turnover of educators has left supervisors having to work the majority of their rostered hours on the floor to maintain educator-to-child ratios, and results in important management tasks being backlogged.
Whilst initially tasked with conducting a compliance audit at KEL, she soon began to work with KEL to ensure compliance with the Law and Regulations, and visited KEL in May, July and August 2022, as well as through Zoom meetings.
In her view, she did not consider many of the breaches arising from the ECRU visits in June and October 2022 needed to be 'issued', as the supervisors were newly employed at the time, and were consistently required to be working on the floor to maintain ratios and it was therefore difficult for the supervisors at the time to answer questions and offer the requested information.
Ms Maloney also attests that she has been involved in many improvements implemented throughout the year at KEL, such as those identified by Ms Pisani at [699], and has also made changes to nursery set up and cot rooms, safe sleeping practices, identifying improvements in hygiene matters and assisting in the reopening of the kitchen.
In providing her evidence, I found Ms Maloney to be an honest witness, notwithstanding that she stepped away from her statement about whether there were unacceptable risks found in her audit in March 2022.
I accept that it was with perhaps some hope in April 2022 that she adopted the general stance that she found KEL 'typically compliant', and I have instead given more weight to her frank concerns raised in November 2022 and in her oral testimony.
Evidence of Ms Calci
Ms Calci has been personally involved with ELA since February 2022, including assisting with recruiting a director and educators of the service, assisting with policies and procedures, being involved in monitoring of the everyday running of the service and assisting with managing and training educators to ensure compliance with the Law.
As averted to in [610], Ms Calci's report identified some outstanding areas of concern from her visit, in particular, that significant improvement was needed in relation to health and hygiene issues.
In addition to her observations about the nappy change area, she also identified that significant improvement was needed in the cot room, as children were sleeping in cots in the hallway of rooms, with no sleep checks conducted and there were blankets or comforters in the cots.
Her recommendations included removal of the cots in the hallway, a timer and sleep monitor ordered for the room, and blankets removed, which were actions indicated as subsequently completed.
She also recommended that Ms Braam check daily the paperbased cot check implemented the week before.
She also identified cleaning of the centre as a huge concern, with supplies of paper towel, soap and sanitiser 'again a concern with ordering issues and the dispensers empty', and recommended that Ms Braam be in more control over supplies, with ordering sheets and checks to be conducted weekly.
Other areas of concern identified by Ms Calci include:
(a)sink cupboards not locked with child proof locks;
(b)rooms were very dirty;
(c)no maintenance logs being used or displayed;
(d)art room used for storage and children using the room in group time;
(e)daily checks not being completed due to internet;
(f)bathroom daily clean not being conducted;
(g)no risk assessments;
(h)cords hanging at children's height; and
(i)paint peeling off the blue wall.
In cross-examination, she acknowledged that access to the OWNA application was affected by internet dropping out from time to time.
Many of her recommended actions relating to the areas of concern were indicated as subsequently completed.
Evidence of Ms Gale
In March 2022, Ms Gale was engaged by ELA to develop an online, tailored induction program for nominated supervisors and responsible persons at KEL to assist in the required knowledge of these staff members.
Ms Gale attests that the compliance issues with ELA's history are not uncommon particularly in the context of ongoing shortages of quality staff and the continued impacts COVID-19 was having on service provision nationally, and relies on her recent engagement to upskill nominated supervisors across nine services.
In cross-examination, however, Ms Gale concedes to having only brief access to a high-level document summary of all the alleged breaches by the CEO, and was not aware of the total number of breaches against ELA.
Evidence of Ms Dan
Ms Dan opines that the current workforce shortage in early childhood education, including both a lack of educators and a lack of educator experience, have had a significant and detrimental impact on the operations and management of KEL.
As with Ms Maloney, Ms Dan confirms the challenges of recruiting suitable educators due to the remoteness and COVID-19 restrictions, and that with many educators being from non-English speaking backgrounds, they experience difficulties in accurately and effectively completing the day-to-day documentation that is required of most educators.
Ms Dan also confirms that the constant change of the team and inconsistency of the staff structure has made it very difficult to achieve continuity of care, even with a training plan in place.
Whilst Ms Dan was not called to give oral evidence, her witness statement is not contested, and is broadly consistent with Ms Maloney's evidence.
Evidence of Ms Bowen
Ms Bowen accepts in cross-examination that it would be more difficult attracting staff in Karratha than in Perth.
When asked in re-examination whether staff recruitment and retention issues could be managed by reducing the number of enrolments below the approved maximum, Ms Bowen replied that that would be a fair approach, which has been undertaken by other services in Karratha.
Finally, she attests that ECRU adopts the same approach in assessing services in Karratha as those in Perth.
Consideration
As to ELA's contention about continuous improvements being undertaken at KEL, whilst it is commendable that ELA engaged external consultants to address its compliance issues, the fact that ELA only engaged Holistic at about the time of the CEO's decisions about BEL suggests that ELA's initiative may have been, at least in part, driven by the CEO's decisions, rather than through genuine insight into its compliance deficiencies at KEL.
Indeed, throughout the proceedings, Ms Pisani has maintained a general position of denial or non-admission for most of the breaches, even where clearly inconsistent with reports by Holistic consultants (such as in relation to breach 81 per Ms Maloney's audit, and breach 119 per Ms Calci's service visit report) and where there is no clear defence to uncontroverted evidence (such as breaches 26, 27, 34, 49, 54, 58, 63, 69, 74, 118).
Further, the findings identified in Ms Maloney's audit and Ms Calci's report demonstrate that, even in 2022, compliance areas of greatest weakness to KEL (such as conducting regular emergency evacuation drills, or keeping the premises in a clean condition) are still being raised as concerns, and only time will tell whether the changes that have been proposed or implemented are maintained by ELA.
At this stage, I agree with the CEO's submissions that it is simply too early to tell whether the efforts of the intervention of the external consultants will be sustained by ELA to effect compliance with regulatory requirements.
As to the contention about the impact of COVID-19 restrictions, I accept the evidence of Ms Pisani, Ms Maloney, Ms Dan and Ms Gale that the conditions under which KEL operated during the COVID-19 pandemic, such as interstate and international border closures and lockdowns, would have presented challenges for ELA in maintaining sufficient and qualified staff in KEL, given its primary staffing approach of recruiting international staff.
Ultimately, the burden of meeting the regulatory requirements remains that of ELA, which burden was not lifted or reduced by the legislature even during the COVID-19 pandemic.
Certainly, no party has submitted that lesser standards were to apply to services due to the pandemic; indeed, in the CEO's case, based on Ms Bowen's testimony, no lesser standards apply even to remote regions.
Where ELA was not able to adapt its practices to the changing conditions presented by the pandemic or even by the remoteness of the environment, it remained open to ELA to reduce child attendances or enrolments (which, based on Ms Bowen's evidence, has been the approach taken by other services in Karratha), or, in the most extreme circumstance, to close KEL, if it was unable to meet legislative requirements.
Whilst Ms Pisani attests enrolments have been reduced after December 2021, my findings that KEL has breached educator-to-staff ratios on five occasions in 2022, and the evidence of Ms Dan and Ms Maloney about the high staff turnover and the evidence of Ms Maloney of supervisors having to work the majority of their rostered hours on the floor to maintain educator-to-child ratios, does not suggest that ELA has reduced, in a material way, child attendances or enrolments to deal with its staffing challenges.
Indeed, given that the COVID-19 pandemic emerged globally in early 2020, one would imagine that by 2022 ELA would have bedded down, or prepared, its systems to manage with the COVID-19 restrictions.
Sadly, the avalanche of breaches against KEL which was triggered in 2021 paints a picture of a service struggling to cope with the new COVID-19 environment.
For the year 2021, arising out of four ECRU visits to KEL, three parent complaints and two notifications to ECRU, I found that ELA had breached its regulatory obligations on 38 occasions.
The visit in April 2021 by ECRU was precipitated by ELA's application to increase its maximum child attendance, and increased monitoring only occurred in September 2021 due to ongoing parental complaints and the large number of non-compliances identified at the July 2021 visit (19 breaches).
Indeed, even with its staffing difficulties during the COVID-19 pandemic, ELA still applied to increase its maximum child attendances in March 2021; by June 2022, ELA was still maintaining tight control over child attendances with Ms Pisani having to be involved in marking non-attendances before 9.00 am to manage educator-to-child ratios.
By October 2022, arising out of three ECRU visits to KEL and multiple parent complaints, I found that ELA had breached its regulatory obligations on 32 occasions.
Thus, despite having engaged external consultants in December 2021 to assist in addressing its compliance issues, and nearly three years on from the emergence of COVID-19, ELA has still not been able to manage compliance with the regulatory environment.
The evidence also points to a rotating door of staff in 2021 and 2022 (which experience is confirmed in the evidence of Ms Moloney and Ms Dan), with KEL unable to retain any nominated supervisor for more than one year (and some for as short as five months).
In the circumstances, even with the challenges presented by COVID-19 pandemic, I would have expected ELA to have risen over these challenges and adapted its practices and systems sufficiently over the course of nearly three years to be able to meet its regulatory burden.
Unfortunately, its compliance history does not currently indicate that it is managing the standards expected of approved providers as mandated under the Law, the Regulations and quality framework, and to continue to rely on the challenges of COVID as exculpatory (or even mitigatory) misses the general underlying objective of the regulatory requirements, which is to promote the interests of children attending education and care services.
Similarly, even accepting the evidence of Ms Pisani, Ms Dan, Ms Maloney and Ms Gale about the difficulties of attracting and retaining qualified staff for a remote location like Karratha, I am of the view that one would expect that ELA, having operated in Karratha for nine years, to have adapted its recruitment processes for a remote service to meet compliance requirements.
The oral evidence of Ms Bowen, which I accept, that other services in Karratha have not suffered the same compliance difficulties, confirms my view that the conditions in Karratha, even under COVID19 restrictions, is not insurmountable.
Indeed, based on Ms Dan's and Ms Maloney's evidence about the difficulties for educators to complete required documentation where they do not speak English as their first language, it appears that ELA's primary strategy of recruiting international educators, even prior to the COVID-19 pandemic, is not conducive to managing its compliance requirements.
Even as at November 2022, Ms Maloney and Ms Dan express concern over the high turnover of educators, which Ms Maloney considers compromises KEL and which Ms Dan considers affects continuity of care provided to children.
These observations are certainly consistent with the impression left from the evidence of the complaints and visits of KEL in 2021 and 2022, which suggests that the issue of staff turnover and lack of continuity in staff continue to plague KEL even in 2022.
This example of an underlying inability to adapt from its usual practice of engaging international staff during (and after) COVID-19 restrictions, and to maintain suitably qualified staff even by November 2022, gives me no confidence that any fundamental issue that may arise in BEL would be recognised and dealt with effectively by ELA.
Further, with breaches found against its Queensland services (in particular, the 19 breaches found in ELA's 24-month operation of EC Maryborough), which accounts for about 22% of the total breaches against ELA, it cannot be said that ELA's compliance difficulties are confined to KEL.
Some of these breaches relate to significant obligations relating to child safety, including adequate supervision of children, maintaining the required educator-to-child ratio, and maintaining the premises and equipment in good repair, and stretch periods before and after the emergence of COVID-19.
ELA does not contend that Spring Hill and EC Maryborough are located in a remote region in Queensland, and so, to the extent that 22% of ELA's compliance history includes breaches in metropolitan areas, the evidence does not support its contention that its compliance difficulties are confined to KEL's idiosyncratic conditions nor that it is confined to difficulties with COVID restrictions.
Finally, as to the CEO's decisions in relation to other approved providers, as this Tribunal now stands in the shoes of the CEO in making this decision de novo, it is not relevant to consider how, and in what circumstances, the CEO has granted service approvals to other approved providers.
Secondary Issue 2(c) - ELA's management capability
Ms Pisani relies on her actions of engaging of external consultants, implementing continuous improvement measures on advice from consultants, and offering financial incentives to educators to raise their standards of compliance, as demonstrating her genuine commitment to ensure the highest possible standards of compliance with the Law and Regulations and to ensure the safety, health and wellbeing of children at KEL.
She points to having made difficult decisions in order to comply with the Law, such as reducing the service offerings at KEL in December 2021.
Another instance is her decision to send children home where there were not enough staff members on a particular day to meet ratio requirements, despite suffering financial and reputational burden.
She says that parents are now notified as far in advance as possible, via OWNA chat, where not enough staff are available and to request them not to bring their child into KEL.
Ms Pisani also attests that ELA is not a small business that cuts corners, and has contributed very significant funds to engage external consultants and to build a purpose-built childcare premises in respect of BEL, as well as incurring financial costs in providing a service at Karratha such as flying in staff at short notice, paying for their accommodation and overnight bonuses.
Ms Maloney attests that she holds Ms Pisani in high regard, acknowledging the amount spent on resources in 2022 amounted to $70,000 when many of the resources 'mysteriously went missing', and on payments to most educators, which were well above the award and with very healthy incentives to boost educator incomes.
She considers Ms Pisani has worked tirelessly to support KEL in many different ways, including supporting the nominated supervisor on all administrative organisational tasks, and using an immigration agent for employing and sponsoring educators.
She also considers Ms Pisani '100%' committed to compliance, having a very good understanding of the regulations and is knowledgeable of the ACECQA website, and constant contact is maintained between Holistic and Ms Pisani.
Ms Dan has recognised Ms Pisani's efforts in ensuing KEL is always properly staffed and in attracting new educators by offering above and beyond working conditions, and her hands-on and proactive approach in ensuring all educators are following protocols.
Ms Dan attests that Ms Pisani regularly completes all remote audits, and is constantly and actively involved in ensuring the team is well supported and educated.
Ms Gale attests that in her experience with Ms Pisani from June 2022, Ms Pisani demonstrates a strong commitment to high quality and compliant service provision.
Ms Calci has found Ms Pisani to be very knowledgeable of the industry.
While I accept the impressions by Ms Maloney, Ms Dan, Ms Gale and Ms Calci of Ms Pisani's management abilities and efforts, those impressions have been garnered over only the 2022 period (and, in Ms Gale's case, only personally since June 2022), and I take this limitation into account in their assessment of her management abilities.
Ultimately, I remain concerned that compliance deficiencies referred to in Ms Maloney's audit and Ms Calci's report, and staffing concerns expressed by Ms Maloney and Ms Dan, are still being experienced at KEL after a nine-year history of operating KEL, and hold reservations about the management and leadership capabilities at ELA.
As set out in [646], I also agree with Ms Bowen that the repetitive nature of certain types of breaches over the years also speaks, at least in part, to the problems with management by ELA.
Primary Issue - should a service approval be granted to ELA?
On balance, I find that ELA's compliance history weighs heavily against a grant of service approval to ELA for service approval of BEL.
ELA's history of non-compliance is concerning, not merely by virtue of its volume, but by its continued failure to meet specific fundamental obligations relating to child safety and its continued (and inexplicable) failure to meet basic obligations like the display and production of prescribed information even as at October 2022.
Its compliance history transcends KEL and the emergence of COVID19, and whilst ELA has now engaged external consultants to assist in its compliance obligations, it is still experiencing compliance difficulties in October 2022.
Its consultants have also identified a more fundamental issue with its primary policy of engaging international staff who experience difficulty with completing required documentation for compliance.
With my reservations about the management capability of ELA to overcome its compliance deficiencies in respect of KEL, I am not satisfied, for reasons set out above, that ELA is capable of operating BEL in a way that meets the requirements of the Law, the Regulations and the quality framework, and will therefore dismiss this application.
Conclusion
For reasons set out above, I am not satisfied that ELA is capable of operating BEL in a way that meets the requirements of the Law, the Regulations and the quality framework.
The correct and preferable decision is to confirm the CEO's decision of 14 December 2021, and dismiss this application.
Orders
The Tribunal orders:
1.The applicant's application is dismissed.
2.The respondent's decision of 14 December 2021 to affirm the decision to refuse the application for service approval in respect of Burswood Early Learning is confirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
26 JUNE 2023
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