Long Life Family Daycare v Director General Education Directorate (Administrative Review)
[2016] ACAT 69
•11 May 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LONG LIFE FAMILY DAYCARE v DIRECTOR-GENERAL, EDUCATION DIRECTORATE (Administrative Review) [2016] ACAT 69
AT 87/2015
Catchwords: ADMINISTRATIVE REVIEW – suspension of service approval for family day care business – no evidence of register of educators or qualifications or training of educators
Legislation cited: ACT Civil and Administrative Tribunal 2008 s 53
Education and Care Services National Law ss 3, 4, 6, 9, 18, 19, 51, 71, 72, 77, 149, 153, 154, 169, 175 190, 192, 269
Education and Care Services National Law (ACT) Act2011 ss 6, 9
Subordinate
Legislation:Education and Care Services National Regulations 29,32 , 39, 127, 128, 136
Tribunal: Senior Member H Robinson
Date of Orders: 11 May 2016
Date of Reasons for Decision: 30 June 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 87/2015
BETWEEN:
LONG LIFE FAMILY DAYCARE
Applicant
AND:
DIRECTOR-GENERAL, EDUCATION DIRECTORATE
Respondent
TRIBUNAL: Senior Member H Robinson
DATE: 11 May 2016
ORDER
The Tribunal Orders that:
The decision under review be varied, and substituted with a decision that the service approval of Long Life Family Day Care Pty Ltd is suspended pursuant to section 72 of the Education and Care Services National Law for a period of 12 months, from 21 October 2015 to 20 October 2016.
……………signed………..
Senior Member H Robinson
REASONS FOR DECISION
On 6 October 2015 the respondent suspended (suspension decision) the applicant’s service approval under the Education and Care Services National Law (ACT) (the National Law).[1] By way of an application for review filed 5 November 2016 (the application), the applicant has sought a review of that decision.
Background
[1] As applied in the ACT pursuant to section 6 of the Education and Care Services National Law (ACT) Act 2011
Prior to the suspension of its service approval the applicant operated (or purported to operate) a family day-care business. In broad terms, family day care involves the care and education of children in the homes of approved family day care educators (educators). All educators must have certain qualifications and training, discussed further below, and their homes must meet minimum requirements in relation to safety, security and hygiene.
Responsibility for managing educators lies with approved service providers (providers). Arrangements between providers and educators can be flexible – for example, educators may be employees or independent contractors. In either case the provider has responsibility for approving, training and generally supporting the educator.
Providers must have a provider approval and service approval to operate a family day care service. The processes by which these are obtained are set out below. The relevant criteria are established under the National Law, as administrated by State and Territory regulatory authorities. The National Law is common across jurisdictions, by reason of each jurisdiction adopting the terms of the law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Vic).
In the Australian Capital Territory, the relevant authority is the Director-General, Education Directorate, the respondent to these proceedings. Within the Directorate, the Children’s Policy and Regulation Unit (CPRU) is the team responsible for regulatory enforcement.
As will be evident from this decision, there was a significant amount of evidence before the Tribunal as to the attempts by officers engaged within the CPRU to review the applicant’s compliance with the terms of its service approval and with the National Law from the time it commenced operation in May 2014 until its service approval was suspended in September 2015. For its part, the applicant broadly conceded that it was in breach of these requirements during September 2015, but that it could meet them by the time of the hearing, and hence the suspension was no longer justified.
Before considering the applicant’s arguments, it is opportune to consider another matter that has an indirect bearing on these proceedings.
Approved providers of family childcare may obtain approval from the Commonwealth Government to administer child care fee assistance. To do this, after obtaining service approval from a regulatory authority, a would-be service provider needs to obtain approval under the Commonwealth’s Family Assistance Law framework. The details of that process are not relevant to this proceeding, except to note that approval allows families whose children are cared for by the educators engaged by the service provider to claim Child Care Benefit (CCB) and/or Child Care Rebate (CCR). Both payments effectively subsidise the costs carers of children pay for child care, and approval enables the service provider to administer that assistance on behalf of the Commonwealth. Both CRB and CCB have a payment option that allows a child’s carer to agree to the payment being made directly to the provider to reduce the fees otherwise payable by the carer.
The applicant in this case administered a very considerable amount of child care assistance on behalf of the Commonwealth Government during its short period of operation. During the proceedings, the Respondent tendered a letter from the Commonwealth (Commonwealth letter) that set out the amounts of CCB and CCR administered by the applicant during the period of its operations. Those amounts are[2]:
[2] Exhibit R7, Letter from Department of Education and Training re Long Life Family Daycare
2013-2014 $32,128.08 2014-2015 $1,080,466.52 2015-2016
$527,532.27
It light of the considerable sums involved, it may be assumed that there was some regulation and review by the Commonwealth. The documentation relating to these processes may well have been useful, but unfortunately none was before the Tribunal.
The respondent did not make any express submissions on what conclusions the Tribunal should draw from the evidence as to the funding set out in the Commonwealth letter. No allegations of misuse of these funds were expressly put to the applicant or its representative. However, given this information, I think it is reasonable, and indeed uncontroversial, to conclude that the providers of childcare services oversee the exchange of large amounts of public money, and should be expected to have processes and procedures in place to manage this, including appropriate record management.
Even setting aside the issues of financial management, it is evidence that the providers of child care services are responsible for the health and welfare of the children in their care. This too, must require a high degree of probity, trustworthiness and compliance with the National Law.
Legislative background
Section 3 of the National Law sets out the objectives and guiding principles of the National Law as follows:
3 Objectives and guiding principles
(1)The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children.
(2)The objectives of the national education and care services quality framework are—
(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)to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework;
(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.
(3)The guiding principles of the national education and care services quality framework are as follows—
(a)that the rights and 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 this 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;
(f)that best practice is expected in the provision of education and care services.
Section 4 sets out how functions under the National Law are to be exercised:
4 How functions to be exercised
An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in section 3.
In broad terms, and relevantly, the National Law provides a scheme whereby persons can apply to the Regulatory Authority for a provider approval. An approval authorises the approved provider to operate an approved education and care service if the approved provider is the holder of the service approval for those services.[3] A provider approval may be granted subject to any conditions that are prescribed in the Education and Care Services National Regulations (National Regulations) or that are determined by the Regulatory Authority. All provider approvals are subject to the condition that the approved provider must comply with the National Law.[4]
[3] Section 18 of the National Law
[4] Section 19(2) of the National Law
An approved provider may apply to the Regulatory Authority for a service approval for an education and care service.[5] An approved provider may only apply for service approval if the service provider is, or will be:
(a)the operator of the education and care service; and
(b)responsible for the management of the staff members and nominated supervisor of that service.[6]
Approvals are granted under section 48 of the National Law.
[5] Section 43 of the National Law
[6] Section 43(2) of the National Law
Section 51 of the National Law relevantly provides that conditions can be placed on any service approval:
51Conditions on service approval
(1)A service approval is granted subject to the condition that the education and care service is operated in a way that—
(a)ensures the safety, health and wellbeing of the children being educated and cared for by the service; and
(b)meets the educational and developmental needs of the children being educated and cared for by the service.
(2)A service approval for a family day care service is granted subject to the additional condition that the approved provider must ensure that—
(a)sufficient persons are appointed as family day care coordinators to monitor and support the family day care educators engaged by or registered with the service; and
(b)each family day care educator is adequately monitored and supported by a family day care coordinator.
…
(5)A service approval is granted subject to any other conditions prescribed in the national regulations [7] or imposed by—
(a)this Law; or
(b)the Regulatory Authority.
...
(8)An approved provider must comply with the conditions of a service approval held by the approved provider.
Penalty:$10 000, in the case of an individual.
$50 000, in any other case.
[7] See regulations 29 to 32 of the National Regulations
The National Law provides a mechanism by which the regulator may suspend and cancel a provider approval (Part 2, Division 4) and a service approval (Part 3 Division 4).
Relevantly for the purposes of this case, section 70 of the National Law sets out the grounds for the suspension of a service approval. These include, relevantly:
70 Grounds for suspension of service approval
A Regulatory Authority may suspend a service approval if—
(a)…
(b)a condition of the service approval has not been complied with; or
…
(e)the approved provider has contravened this Law as applying in any participating jurisdiction; or
The National Law and National Regulations set out very specific record-keeping obligations. These were set out in the respondent’s submissions as follows:
(a)an approved provider of an education and care service must ensure 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 National Regulations (regulation 169(2)); in particular:
(i) each family day care educator must have, or be actively working towards, at least an approved Certificate III level education and care qualification (regulation 127); and
(ii) the approved provider of a family day care service must ensure that each family day care educator and family day care educator assistant engaged by or registered with the service:
i.holds a current approved first aid qualification (regulation 136(3)(a)); and
ii.has undertaken current approved anaphylaxis training (regulation 136(3)(b)); and
iii.has undertaken current approved emergency asthma management training (regulation 136(3)(c));
(b)an approved provider of an education and care service must keep the prescribed documents available for inspection by an authorised officer in accordance with section 175(1) of the National Law:
(i) the ‘prescribed documents’ for the purposes of section 175(1) are prescribed by regulation 177 of the National Regulations as follows:
(A)the documentation of child assessments or evaluations for delivery of the educational program as set out in regulation 74 (reg 177(1)(a));
(B)an incident, injury, trauma and illness record as set out in regulation 87 (reg 177(1)(b));
(C)a medication record as set out in regulation 92 (reg 177(1)(c));
(D)a record of assessments of family day care residences and approved family day care venues conducted under regulation 116 (reg 177(1)(d));
(E)a record of volunteers and students as set out in regulation 149 (reg 177(1)(f));
(F)the records of the responsible person at the service as set out in regulation 150 (reg 177(1)(g));
(G)a record of access to early childhood teachers as set out in regulation 152 (reg 177(1)(i));
(H)in the case of a family day care service, a record of staff, family day care coordinators engaged by the service and family day care educator assistants approved by the service, kept under regulation 154 (reg 177(1)(j));
(I)a children’s attendance record as set out in regulation 158 (reg 177(1)(k));
(J)child enrolment records as set out in regulation 160 (reg 177(1)(l));
(K)a record of the service’s compliance with the National Law as set out in regulation 167 (reg 177(1)(m)); and
(L)a record of certified supervisors placed in day to day charge of the education and care service under section 162 of the National Law (reg 177(1)(n));
(ii) the prescribed documents referred to in section 175(1) must, to the extent practicable, be kept at the education and care service premises if they relate to:
(A)the operation of the service;
(B)any staff member employed or engaged by the service;
(C)any child cared for, or educated at, those premises in the previous 12 months (section 175(2)(a)); and
(iii) in any other case, the prescribed documents must be kept at a place, and in a manner, that they are readily accessible by an authorised officer (section 175(2)(b));
(c)the approved provider of a family day care service must keep at its principal office a register of each family day care educator and any other person engaged by or registered with a family day care service to educate and care for a child (section 269(1) of the National Law);
(d)the register referred to in section 269(1) must contain the prescribed information in respect of each family day care educator engaged by or registered with a family day care service to educate and care for children (section 269(2) of the National Law);
(i) the prescribed information required to be included in the register described in section 269(1) is set out in regulation 153 as follows:
(A)the full name, address and date of birth of the educator (reg 153(a));
(B)the contact details of the educator (reg 153(b));
(C)the address of the residence or approved family day care venue where the educator will be providing education and care to children as part of the service, including a statement as to whether it is a residence or a venue (reg 153(c));
(D)the date that the educator was engaged by, or registered with, the service (reg 153(d));
(E)when applicable, the date that the educator ceased to be engaged by or registered with the service, for the period of three years following that date (reg 153(e));
(F)the days and hours when the educator will usually be providing education and care to children as part of the service (reg 153(f));
(G) if the educator is an approved provider, the number of the provider approval and the date the approval was granted (reg 153(g));
(H)if the educator is a certified supervisor, the number of the supervisor certificate and the date it was granted (reg 153(h));
(I)evidence:
(i)of any relevant qualifications held by the educator (reg 153(i)(i)); or
(ii)if applicable, that the educator is actively working towards that qualification as provided under regulation 10 (reg 153(i)(ii));
(J)evidence that the educator has completed:
(i)current approved first aid training (reg 153(j)(i)); and
(ii)current approved anaphylaxis management training (reg 153(j)(ii)); and
(iii)current approved emergency asthma management training (reg 153(j)(iii));
(K)evidence of any other training completed by the educator (reg 153(k));
(L)if the educator will be providing education and care to children in a jurisdiction with a working with children law or a working with vulnerable people law, a record of the identifying number of the check conducted or card issued under that law and the expiry date of that check or card (if applicable) (reg 153(l));
(M)for each child educated and cared for by the educator as part of the family day care service:
(i)the child’s name and date of birth (reg 153(m)(i)); and
(ii)the days and hours that the educator usually provides education and care to that child (reg 153(m)(ii));
(N)if the education and care is provided in a residence:
(i)the full names and dates of birth of all persons aged eighteen years and over who normally reside at the family day care residence (reg 153(n)(i));
(ii)the full names and dates of birth of all children aged under 18 years who normally reside at the family day care residence (reg 153(n)(ii));
(O)a record of:
(i) the identifying number of the working with children check, working with children card, working with vulnerable people check or criminal history record check or teacher registration of each person referred to in paragraph (n) who is required to provide the check, card, record or registration under regulation 163 and the date of expiry of that check, card or registration, if applicable (reg 153(o)(i)); and
(ii)the date that the check, card, record or registration was sighted by the approved provider or nominated supervisor of the service (reg 153(o)(ii));
(e)the approved provider must provide any information on the register of family day care educators and any changes to that information to the Regulatory Authority on request (section 269(3)) of the Education and Care Services Law); and
(f)the approved provider of a family day care service must keep a record of staff, of family day care coordinators engaged by the service and of family day care educator assistants approved by the service that includes:
(i) the name of the person currently designated as the educational leader in accordance with regulation 118 (reg 154(a)); and
(iii) in relation to the nominated supervisor, the information set out in regulation 146 (reg 154(b) ; and
(iv) in relation to each other staff member of the family day care service, the information set out in regulation 147 (reg 154(c); and
(v) in relation to volunteers and students, the information set out in regulation 149 (reg 154(d)); and
(vi) in relation to each family day care educator assistant approved by the service, the following information (reg 154(e)(i) to (viii)):
(A) the full name, address and date of birth of the educator assistant;
(B) the contact details of the educator assistant;
(C) the name of the family day care educator to be assisted by the educator assistant;
(D) the date that the educator assistant was approved by the service;
(E) when applicable, the date that the educator assistant ceased to be approved by the service, for the period of three years following that date;
(F) evidence that the educator assistant has completed first aid qualifications in accordance with regulation 136(3);
(G) the identifying number of the current working with children check, working with children card or working with vulnerable people check or record of criminal history or teacher registration of the educator assistant and the date of expiry of that check, card or registration, if applicable; and
(H) the date that the check, card, record or registration was sighted by the approved provider or nominated supervisor of the family day care service.
Pursuant to section 71 of the National Law, the first step in a suspension process is the issuing of a show cause notice that provides the operator with an opportunity to respond:
71Show cause notice before suspension
(1)This section applies if the Regulatory Authority is considering the suspension of a service approval under section 70.
(2)The Regulatory Authority must first give the approved provider a notice (show cause notice) stating—
(a)that the Regulatory Authority intends to suspend the service approval; and
(b)the proposed period of suspension; and
(c)the reasons for the proposed suspension; and
(d)that the approved provider may, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed suspension.
Section 72 of the National Law allows the Regulatory Authority to suspend a service approval for a period not longer than the ‘prescribed period’. Regulation 39 of the National Regulations provides that the prescribed maximum period of suspension of a service approval under sections 72(a) and 79(1)(a)(ii) of the National Law is twelve months.
Pursuant to section 190 of the National Law, a suspension decision is not an internally reviewable decision. However, it is a reviewable decision for the purposes of section 192(d) of the National Law, which provides for external review. In the Territory, the relevant review body is the ACAT.[8]
[8] Education and Care Services National Law (ACT) Act 2011 section 9(b)
Section 77 of the National Law provides grounds for the Regulatory Authority to cancel a service approval. These grounds include where the service has been suspended under section 72 or 73 and the reason for the suspension has not been rectified at or before the end of the period of suspension.[9] In other words, one of the purposes of the suspension process is to give a service provider an opportunity to demonstrate it can be compliant with the National Law.
The applicant
[9] Section 77(b) of the National Law
The applicant is a corporation registered on 13 August 2013. At the time the service approval was granted, it had two directors, Mr Aguer and Ms Akeer Araui Gak. Mr Aguer appears, from the totality of the evidence filed, to have been the primary director and manager of the applicant’s affairs. Mr Aguer’s evidence was at some stage during the approval process Ms Gak moved to Victoria and that she has not been in contact since.[10] Ms Gak was not involved in these proceedings.
[10] Transcript of proceedings 30 March 2016 page 22, line 38
On Mr Aguer’s own evidence, he had minimal experience in the provision of child care services prior to making the applications for approval. His evidence was that Ms Gak had some experience. At the time of the hearing, Mr Aguer was completing a Bachelor of Commerce degree at the University of Canberra.
The hearing process
The Application was lodged on 5 November 2015. At that time, the applicant also sought interim orders that the suspension be set aside pending final determination of the review.
The application for interim orders was heard before Member Daniel (as she then was) on 8 December 2015. On that occasion, the application was adjourned to 15 January 2016.
On 15 January 2016 President Daniel dismissed the application for interim orders and made directions for preparation for hearing.
The directions of 15 January 2016 required, amongst other things, that the applicant file its material by 12 February 2016. It did not do so. On 24 February 2016 Mr Aguer emailed the Tribunal and advised that he had been unable to prepare due to an illness in his family, and that his legal representative no longer had instructions to act.
The matter was subject to a further directions hearing on 7 March 2016 at which time the directions were amended and the applicant was given further time to file its material.
The matter was heard on 30 March 2016 and 11 May 2016. On both occasions the applicant was represented by Mr Aguer and the respondent was represented by Mr Ken Archer of Counsel, instructed by Ms Clarke of the ACT Government Solicitor.
Before the Tribunal at the hearing were three volumes of Tribunal Documents (T-Docs) totalling 302 pages as well as a bundle of documents initially filed by the respondent for the purposes of the interim hearing[11].
[11] Exhibit R1
The applicant relied upon:
(a)a letter from his solicitor to the respondent of 6 October 2015;
(b)a ‘statement of witnesses’ dated 2 March 2016, which I will discuss further below[12]; and
(c)a bundle of documents[13] relating to each of Ms Achol Deng[14], Ms Kuol Biar[15], Ms Gak Aleer[16], Ms Deborah Chut and Ms Akon Biar[17].
[12] Exhibit A2
[13] See paragraph 149 of these reasons
[14] Exhibit A3
[15] Exhibit A6
[16] Exhibit A5
[17] Exhibit A6
During the course of the hearing the applicant’s representative, Mr Aguer, was given an opportunity to supply further documents to the Tribunal.
The Applicant called two witnesses - Mr Aguer and Ms Akol Gak Aguer.
Both gave oral evidence and were cross examined by Mr Archer, on behalf of the respondent. Ms Gak was also listed as a party to the ‘Statement of witnesses’. Amongst other things, Ms Aguer gave evidence that she had been an employee of the applicant since May 2014.[18]
[18] Transcript of proceedings 30 March 2016 pages 89-90
The respondent relied upon written submissions and :
(a)the T-Documents and the bundle of documents for the interim hearing;
(b)The Commonwealth letter; and
(c)written statements from Ms Elise Maree Shepherd[19], Ms Wendy Barbara McDuff[20] and Ms Susan May Sullivan[21], all of whom are employees of the Education and Training Directorate.
[19] Exhibit R3
[20] Exhibit R4
[21] Exhibit R5
38. Ms Shepherd and Ms Sullivan were cross examined by Mr Aguer. Mr Aguer indicated that he did not need to cross examine Ms McDuff and she was not required to give oral evidence.
Factual background and findings
Preliminary comments
The interactions between the applicant and the respondent following the approval were the subject of significant evidence before the Tribunal. The Tribunal’s findings in relation to that evidence are set out below.
It making the findings of fact set out below, I have relied upon the statements of Ms Shepherd, Ms McDuff and Ms Sullivan and the T-Documents. Mr Aguer’s oral evidence did not seriously challenge any of the factual matters I have summarised below. Within some exceptions that I address below, his evidence primarily went to whether the applicant was currently complying, or capable of complying, such that the suspension could be lifted. In those few cases where there was conflict in the evidence of the parties in relation to the events leading up to the suspension decision, I prefer that of the respondent’s witnesses. The reasons why are set out further below.
The approval process
The applicant first applied for a service approval in July 2013, but filed a revised application in January 2014. The approval process took some months. I do not need to relate the early steps in any depth, but note that the T-Documents clearly show that, even in these early stages, the Directorate had some difficulty getting the correct documentation from Mr Aguer.
Early contact between Mr Arguer and CPRU indicate that Mr Aguer was confident about the likely success of his business. For example, on 5 November 2013 Ms Wendy McDuff, Team Leader, CPRU, sent an email to Mr Aguer, as contact for the applicant, noting that:
“CPRU would also like to have more details regarding how you are intending to manage this service satisfactorily, especially as you are proposing 82 educators will be engaged or registered with the family day care service.” [22]
Ms McDuff also asked for copies of necessary policies and procedures. This seems to have been the first such request by the Directorate for this information.
[22] Tribunal documents page 159
Later in November 2013, Mr Aguer wrote to the Directorate and advised that he planned to commence operations on 28 December 2013 in an office in Gungahlin. He stated that he had two nominated coordinators and was working to recruit two more “in case … all 82 educators” were employed with the applicant.[23]
[23] Tribunal documents page 160
On 13 December 2013 Mr Aguer provided some policies and procedures to the respondent. Those policies were in the name of another childcare service provider and were also incomplete.[24]
[24] Tribunal documents page 162
In early January 2014, the applicant submitted a revised application for service approval, this time suggesting that it would eventually have 52 educators, with about 24 to start, and eventually four coordinators, with two to start (application form).[25] The form listed Ms Samanthika Samarakoon as the nominated supervisor, and stated that the services’ operating hours would be 8:00am to 6:00pm Monday to Friday and 8:00am to 6:30pm on Saturdays.[26] It stated that a residential address in Amaroo was the primary business address (Amaroo Office).
[25] Tribunal documents page 167
[26] Tribunal documents page 169
On that application form, Mr Aguer ticked boxes confirming a number of matters, including that he had provided copies of policies for, amongst other things:
(a)the keeping of a register of family day care educators under regulation 153 of the National Regulations; and
(b)assessment of family day care educators, family day care assistants and persons residing at the family day care residences, including the matters required under regulation 163 of the National Regulations.[27]
[27] Tribunal documents page 171
Attached to the application form was a series of documents entitled ‘Long Live [sic] Family Day Care Policy and Procedures’. Mr Aguer’s evidence during the hearing was that he had purchased these policies from a company in Sydney called Blizz. This company apparently also supplied the applicant with a range of business documents, including timesheets.[28]
[28] Transcript of proceedings 30 March 2016 page 25, line 43
It is emphasised that the Tribunal is not critical of the applicant for purchasing pre-developed policies – doing so is a sensible means of acquiring the relevant expertise in developing internal systems. However, having provided them to the respondent, the applicant should be expected to have reviewed them, found them suitable and adopted and applied them.
Service approval was granted to the applicant by the respondent on 13 January 2014 (the approval).[29]
[29] Tribunal documents page 10
The approval set out the ‘Prescribed Conditions’ as being:
The approval is granted subject to the conditions as set out in section 51 of the Education and Care Services National Law (ACT) Act 2011 and any conditions prescribed in the Education and Care Service National Regulations.
The ‘Other Conditions’ imposed were:
The approved provider must employ at least one full time family day care coordinator as prescribed in Section 51 of the Education and Care National Law (ACT) Act 2011 for every fifteen family day care residences or venues providing education and care for children.
There seems to have been little further contact between the applicant and the respondent until 2 April 2014, when Ms Shepherd emailed Mr Aguer to introduce herself, and enquire whether the applicant had commenced operating.[30]
[30] Tribunal documents pages 234-237
In reply to those emails, Mr Aguer advised Ms Shepherd that the applicant had ten educators waiting to work, but was awaiting Commonwealth approval. He asked if she could assist with the CCB and CCR approval process. Mr Aguer appears to have suggested to Ms Shepherd that he was being treated unfairly by the Commonwealth.[31] Ms Shepherd made some enquiries about this with colleagues, but was advised that ultimately approval was a matter for the applicant to take up with Commonwealth[32].
[31] Tribunal Documents page 242-243; Transcript of proceedings 11 May 2016 page 13, line 15-17
[32] Tribunal documents page 240
It is apparent from this early correspondence between Mr Aguer and Ms Shepherd that there was at this time considerable goodwill toward the applicant and a desire within CPRU to get the business operational. For example, Ms Shepherd expressed a view to a colleague that doing something about the alleged delay in CCB and CCR approval would “mean more education and care places for children in the ACT.”[33] There is no evidence of any reluctance by any person to assist the applicant to gain the necessary approvals.
[33] Tribunal documents page 239
The Commonwealth eventually granted the applicant approval to administer child care fee assistance from 2 May 2014. Mr Aguer subsequently advised Ms Shepherd that the applicant intended to commence operations on 5 May 2014.[34]
[34] Tribunal documents page 246
Mr Aguer’s oral evidence to the Tribunal was that the applicant’s service got off to a very strong start, very quickly. He stated, under cross examination, that by around May 2014 (the month the applicant started business), the respondent had 32 children in family day care[35] and was receiving around $7,000 a fortnight from the Commonwealth.[36] The Commonwealth letter shows that during the 2013-2014 financial year the applicant received $32,138.08 from the Commonwealth through child care assistance payments.[37] As the applicant was operating for only May and June of this financial year, the actual sum received by the applicant was potentially closer to $9000 a fortnight.
[35] Transcript of proceedings 30 March 2016 page 31, line 35
[36] Transcript of proceedings 30 March 2016 page 32, lines 5 to 35
[37] Exhibit R7
I note in the T-Documents there is a notification of change of information form signed Mr Aguer and dated 12 May 2014, advising that the applicant’s address had been changed to the Gungahlin town centre (the Gungahlin office)[38]. The form is signed only by Mr Aguer, apparently as (by now) the sole director. It is unclear when this form was received by the respondent, but it appears from other correspondence that it was not in May when it was signed.
[38] Tribunal documents pages 255-261
On 19 June 2014 Ms Shepherd sent emails to Mr Aguer setting out a range of matters that he needed to attend to[39]. Amongst other things, Ms Shepherd:
(a)asked when the applicant is moving into the Gungahlin Office and reminded Mr Aguer about filing a change in address form;
(b)asked about arrangements for a second coordinator once the service reached fifteen educators; and
(c)enquired as to when it would be convenient for representatives of CPRU to visit the principal office and the home of an educator.
[39] Tribunal documents page 262-262
On 17 July 2014, Ms Shepherd telephoned Mr Aguer to follow up on the change in address. A visit was scheduled for 25 July 2014 at 2pm[40].
[40] Tribunal documents page 274
On 23 July 2014 – that is, two days before the planned date of the visit – Ms Shepherd received an email from Mr Aguer requesting that the visit be postponed because, amongst other things, he was busy with a software change, the respondent’s coordinator had no free time that day, and all the educators had a day off.[41] Ms Shepherd responded to Mr Aguer and advised that the time of the visit would be changed to Wednesday 30 July at 2pm.[42]
[41] Statement of Elise Maree Shepherd dated 17 March 2016, attachment C
[42] Statement of Elise Maree Shepherd dated 17 March 2016, attachment C
On the morning of 30 July Ms Shepherd received another email from Mr Aguer, advising that the applicant’s principal office was the Gungahlin Office and asking that the visit again be postponed because, amongst other things, the coordinator was sick.[43] This request was granted.
[43] Statement of Elise Maree Shepherd dated 17 March 2016, attachment C
Ms Shepherd conducted an inspection of the Gungahlin Office on 4 August 2014, accompanied by another authorised officer, Ms Tara Corder. Mr Aguer explained that this was a temporary address. At the meeting, Ms Shepherd gave Mr Aguer a copy of the form used to advise the Directorate of a change in principal address (change in address form), and explained its importance, as well as other information. Ms Shepherd noted that the information prescribed by regulation 173 (prescribed information) was not displayed, but accepted that the reason for this was that the office was only temporary. Mr Aguer advised that he had ten educators and a coordinator who worked three days. The authorised officers agreed to inspect the permanent office at a later date, including checking whether the prescribed information was displayed.[44]
[44] Tribunal document page 284
In his oral evidence to the Tribunal, Mr Aguer asserted that Ms Shepherd “never” asked him about the “materials that should have been on display on the walls”,[45] which I take to mean the prescribed information. I do not accept this. Ms Shepherd’s notes are comprehensive and show that she enquired about this issue as early as this visit on 4 August 2014 and I accept her evidence in this regard.
[45] Transcript of proceedings 30 March 2016 page 30, line 25
Later on 4 August 2014, Ms Shepherd, Ms Corder and Mr Aguer visited the house of an educator, Ms Deng. Ms Shepherd’s notes indicate that they arrived at Ms Deng’s home at the same time as a scheduled electrician, and that the presence of so many strangers made the children unsettled. The inspection was ended as a consequence. The children were not identified at that visit.
On 1 September 2014, Ms Shepherd again contacted Mr Aguer to ask about the change in address form. He said that he had completed the form and would drop it off.[46] She followed him up on 4 September 2015. Mr Aguer finally sent the form through on 12 September 2016.[47]
[46] Tribunal document page 285
[47] Tribunal document page 289
Also on 12 September 2014, Ms Shepherd emailed Mr Aguer and enquired as to whether the applicant had moved into the new principal office. He advised that the move would occur within two weeks.[48]
[48] Tribunal document page 289
On 20 October 2014, Ms Shephard emailed Mr Aguer to enquire as to whether the applicant was yet in the new principal office and to organise an inspection.[49] There is nothing before the Tribunal to indicate she received a timely reply.
[49] Tribunal document page 292
Ms Shepherd telephoned Mr Aguer on 5 November 2014 and again enquired about the move to a new office. He advised her that he expected to move by the end of the following week. Ms Shepherd again advised Mr Aguer that she would need to visit and inspect the new premises.[50]
[50] Tribunal document page 293
On 12 November 2014 Ms McDuff sent an email to Mr Aguer advising that the applicant was implementing a new strategy to assist in monitoring compliance with the National Law, and requesting certain information. Mr Aguer was requested to provide by 28 November 2014:
(a)a full list of coordinators working for the FDC Scheme and their qualifications, including evidence of the qualification; and
(b)a full list of the educators working for the scheme and their qualifications, including first aid, asthma and anaphylaxis training and evidence of those qualifications.[51]
[51] Tribunal document 294
This letter was formal in tone, and, in my view, should have left Mr Aguer in no doubt as to the seriousness of the enquiries.
The National Regulations[52], and the applicant’s own policy documents, require that a service provider keep a register of family day care educators, their qualifications and evidence of first aid, anaphylaxis and emergency asthma management training.[53] If the applicant had, at this time, been operating in accordance with the law, or indeed its own policies, the documentation necessary to satisfy Ms McDuff’s request should have been readily obtainable and capable of being provided to the respondent within the fortnight. It was not.
[52] Sections 149, 153, 154 and 169(2)(b)(c) of the National Regulations
[53] Tribunal document pages 209-210
On 25 November 2014, the respondent formally changed the applicant’s principal address to the Gungahlin office[54].
[54] Tribunal documents page 295
On 28 November 2014, Ms Shepherd again spoke with Mr Aguer by telephone. He advised her that the applicant had still had not moved into the new principal office. Ms Shepherd told Mr Aguer that he would need to find some other means of displaying the prescribed information in the temporary office. She also advised that she would be visiting the Gungahlin Office anyway and asked to meet on 5 December 2014 at 10am. Mr Aguer said that he would confirm the suitability of the date later.[55]
[55] Tribunal document page 299
On 5 December 2014 Ms Shepherd and Ms McDuff visited the applicant’s previous principal address at the Amaroo office. The respondent’s notes indicate that the Gungahlin office was no longer accessible.[56] The respondent’s notes record the Amaroo address as being a “residential address with no office set up, all information in boxes and inaccessible.”[57]
[56] Tribunal documents page 659
[57] Tribunal documents page 659
The purpose of the visit was to follow up the information requested in the letter from Ms McDuff of 12 November 2014. During this visit, Mr Aguer failed to establish that the applicant was complying with the National Law:
(a)Firstly, the information prescribed by regulation 173 was not on display in the office. This was contrary to the direction given by Ms Shepherd to the Mr Aguer on 28 November 2016.
(b)Secondly, the register of educators was inadequate. Mr Aguer provided the authorised officers a list of family day care educators that contained 23 names, but indicated that two persons on the register were not caring for or educating children. Even assuming that only 21 educators were operating, Mr Aguer was in breach of the condition on his license that he employs one full time coordinator for every fifteen educators.
(c)Thirdly, Mr Aguer did not have evidence of the qualifications of all engaged educators, of the coordinators undertaking monthly visits to the educators’ home, or of many necessary business records, for example, insurance.[58]
[58] Tribunal document pages 300-302
This visit was planned, scheduled and announced. It was conducted a full three weeks after the previous visit to the Gungahlin office. Notwithstanding that the scheduled move apparently had not taken place, the applicant’s officers, including Mr Aguer, had ample time to prepare for the inspection, including finding any records that may have been packed in boxes. Even so, Mr Aguer was on this occasion unable to provide the majority of information sought by the respondent.[59]
[59] Tribunal document page 301
At this meeting, Ms Shepherd and Ms McDuff gave Mr Aguer a further period, until 12 December 2014, to provide the relevant information. They also asked that Mr Aguer provide evidence of the engagement of a second coordinator by that date, failing which he would need to reduce his number of educators by eight.[60]
[60] Tribunal document page 301
12 December 2014 came and went and no further evidence was supplied by the applicant.
If Mr Aguer’s evidence to the Tribunal is accepted, he had by this time (ie. late November) been operating a care service for six months, and the service engaged ten educators who cared for in excess of 30 children. Yet the respondent had seen no evidence of any staff, or any children, and nor had it properly inspected a principal office or the premises of any carer.
In his opening comments to the Tribunal, counsel for the respondent acknowledged that the respondent showed a high degree of patience towards the applicant. Mr Archer said:
… the evidence will be that the regulator does have an interest in providing diversity within the family day care marketplace, if we can put it that way, and having particular groups within the community provide family day care is seen to be a desirable outcome. But - for that reason the patience, if I put it that way, that the regulator showed Mr Aguer in relation to the various aspects of getting into the marketplace was reflective of that concern.[61]
[61] Transcript of proceedings 30 March 2016 page 12, lines 16-21
Certainly, it may be accepted that there is a need for sufficient and diverse child care providers. However, this has to be balanced against good regulatory practice and the protection of both taxpayer money and children’s welfare. Obviously, the question of where the line should be drawn is not an easy one, but in the Tribunal’s view by this stage, some form of formal action should have been contemplated. Instead, Mr Aguer was given further extensions of time to provide documents he should have readily had to hand.
On 15 December 2014 Ms Shepherd telephoned Mr Aguer again to follow up on the actions identified at the visit on 5 December 2014. Mr Aguer stated that he had sent the evidence by express post. During that conversation:
(a)Ms Shepherd read out a list of educators, and
(b)Mr Aguer confirmed who on the list was still active and who was not.
The list included fewer names than previously nominated as working for the applicant. Ms Shepherd advised Mr Aguer that she would confirm the list by email.[62]
[62] Tribunal document page 531
Later that morning, Ms Shepherd sent to Mr Aguer by email her list of the educators that were still active and that were not active, as per the earlier phone call. In that email, she also asked a number of questions, including when the excess educators had stopped educating children and how much notice was given to the families involved. Ms Shepherd also advised Mr Aguer that she would check the names of the operators with the Commonwealth Department of Education.[63]
[63] Tribunal document page 529
On 16 December 2014 Mr Aguer replied to Ms Shepherd’s email of 15 December 2014. He provided a slightly different list of educators, and advised that he was trying to find a second coordinator. In response to Ms Shepherd’s query about arrangements for children whose educators had ceased practicing, he stated that “most families [have] been given access to educators still operat[ing].”[64]
[64] Tribunal document pages 524-525
In his oral evidence to the Tribunal, Mr Aguer said that by the end of 2014 – that is, by the date of the above email exchanges – the applicant had some 74 children in care, and some fourteen educators.[65] If some of these children were in school, they may only have been in care after school hours, but that is still a significant number of children to find placements for within the service. Mr Aguer did not provide any further information on how he did this, or on what happened to those families who were not given access to educators who were still operating.
[65] Transcript of proceedings 30 March 2016 page 32
In reply to Mr Aguer’s email of 15 December 2014, Ms Shepherd asked that Mr Aguer provide the relevant training and employment information and a copy of their qualifications for each practising educator. Mr Aguer did not respond in a timely manner.[66]
[66] Tribunal document page 524
On 7 January 2015 Mr Shepherd sent an email to Mr Aguer requesting that he provide all the information previously requested and that he also provide the name of his second coordinator by 5pm Wednesday 14 January 2015.[67]
[67] Tribunal document 443
On 16 January 2015 Ms Shepherd sent an email to Mr Aguer asking him that he immediately address the email of 7 January 2015 and reiterating what was required, and requesting that he file that information by 5pm on 14 January 2015.[68]
[68] Tribunal documents page 441
On 19 January 2015, there was a further telephone call between Ms Shepherd and Mr Aguer.[69] Ms Shepherd asked Mr Aguer why he had yet to provide any of the requested documentation, and he explained that he had only received the email of 7 January 2015 on 16 January 2015. Ms Shepherd gave Mr Aguer another extension until 21 January 2015 to provide the documents[70].
[69] Tribunal documents page 439
[70] Tribunal documents page 661
When asked about his principal office, Mr Aguer advised Ms Shepherd that he was moving to a new permanent office that day.[71]
[71] Tribunal document pages 439, 659
Ms Shepherd followed that telephone conversation with an email in which she advised Mr Aguer that if the required information was not provided by 21 January 2015 compliance action would be taken.[72]
[72] Tribunal document page 659
On 20 January 2015 there was a conversation between Ms McDuff and Mr Aguer[73]. Ms McDuff’s file note reads:
“Ruben was contacted to give the number of children in care today. He confidently responded that [there] was 74 children with 27 educators today. He assured me he that he would bring in the required information tomorrow”.[74]
[73] Tribunal documents 322 and 324
[74] Tribunal documents 324
On 23 January 2015 there was a further telephone conversation between Mr Aguer and Ms Shepherd. Ms Shepherd attempted to organise an inspection of the applicant’s new office on 28 January 2015. Mr Aguer advised that an inspection was not possible because the respondent was now moving to another, different principal office. Mr Shepherd asked Mr Aguer why he had previously advised that he was moving to a new office on 22 January 2015. Mr Aguer said this did not happen and the applicant was now looking at premises in the suburb of Harrison. Ms Shepherd asked Mr Aguer to come the CPRU offices on 2 February 2015 to discuss the respondent’s requests for information and outstanding issues.[75]
[75] Tribunal document pages 331-332
On 2 February 2015 the Mr Aguer met with Ms Shepherd, Ms McDuff and Ms Sullivan. He was advised that the respondent was concerned with the applicant’s compliance with the National Law. He was further advised that if he was in breach of the National Law, he may be liable for a fine of up to $50,000. He was given details of the respondent’s concerns. He was advised that he would be receiving an administrative letter and that compliance action may be taken[76].
[76] Tribunal documents pages 309 - 310
Also at this meeting, Mr Aguer advised the respondent that the applicant would now be moving to a new principal office in O’Connor (O’Connor premises). He said that there were some issues with the lease but this would be resolved with his solicitor and the applicant would move as soon as possible. He agreed to notify the respondent of the new principal office address as soon as possible[77].
[77] Tribunal documents page 659
Also on 2 February 2015, Ms Susan Sullivan, Manager, CPRU, sent a letter to
Mr Aguer that set out the respondent’s belief that Mr Aguer was non-compliant with the National Law (compliance letter). In that letter, Ms Sullivan identified the applicant as potentially in breach sections 51 and 169 of the National Law and regulations 127, 128 and 136 of the National Regulations. The letter stated that evidence of compliance with regulations 127, 128 and 136 “must be received by COB 13 February 2015” (requested documents).[78]
[78] Tribunal document page 443
The compliance letter was the first, formal notification of the potential of compliance action. Even if Mr Aguer had not understood the seriousness of Ms Shepherd’s numerous requests for documentation, the compliance letter must have put him on notice that the respondent was now seriously investigating the applicant’s compliance with the National Law. Yet, not even the compliance letter appears to have provided Mr Aguer with sufficient motivation to provide the requested documents to the respondent.
On 13 February 2015, Mr Aguer contacted Ms Shepherd and advised that he was awaiting an appointment at the hospital and could not deliver the requested documents.[79]
[79] Tribunal documents page 303
On 25 February 2015, Ms Shepherd telephoned Mr Aguer to attempt to organise an inspection of the O’Connor premises on 27 February 2015. Mr Aguer advised that the applicant had not yet moved to O’Connor (the carpet was being removed) and was still operating from his residential premises in Amaroo[80]. Mr Aguer agreed that Mr Shepherd could visit to the Amaroo premises on 27 February 2015 at 3pm.[81]
[80] Tribunal documents page 812
[81] Tribunal documents page 660
On the morning of 27 February 2015, Mr Aguer emailed Ms Shepherd and stated that:
I informed all my coordinators to be present at 3:00pm but Samanthika is sick for today. She event start working for two days due to her personal circumstances. I am also moving all the furniture to the new Office in which I also start fill the form to the Department of Changes.[82]
[82] Tribunal documents page 18
He further asked that the inspection take place at the new office at O’Connor, once the respondent had moved into that premises.
Ms Shepherd replied by email, agreeing to defer the visit for one week. She also asked:
Can you please confirm which educators you have working with children next week as we will be conducting some unannounced visits to educators next week.[83]
[83] Tribunal documents page 796
On 4 March 2015, Ms Shepherd and Ms McDuff conducted an unannounced visit to three family day care residences. Mr Aguer had previously advised the respondent that a resident of each home was operating as an educator. The visits were not productive. In summary:
(a)There was no response to knocks at two of the doors; and
(b)the resident of a third house advised that she no longer worked for the applicant.[84]
[84] Tribunal documents pages 799-800
Later that day Ms Shepherd phoned Mr Aguer and asked for both the address of his registered office and a list of educators working that week.[85] It does not appear that a timely response was received.
[85] Tribunal document page 797
An inspection of the applicant’s office at O’Connor took place on 6 March 2015, conducted by Ms Shepherd and Ms McDuff. Present at the office at this time was Mr Aguer and Ms Veronica Mathiang, along with Ms Mathiang’s friend ‘JuJu’. Following this meeting, Ms Shepherd prepared a lengthy filenote of the meeting which was placed in evidence.[86] I accept that filenote as an accurate record of the visit.
[86] Statement of Elise Maree Shepherd dated 17 March 2016, attachment N
During that visit Mr Aguer was unable to produce:
(a)an accurate registrar of educators;
(b)evidence of the qualifications or training of all active educators;
(c)evidence that all educators or coordinators were enrolled in or had completed Certificate III courses.
The applicant also did not have the prescribed information displayed. Ms Shepherd’s notes indicate that Mr Aguer explained that this was because the applicant was in the process of moving into the new office.
Again, the applicant was given further time to produce the requested documents, this time until 13 March 2015. Mr Aguer was reminded, again, to advise the respondent of a change in address of his principal office by this date.[87]
[87] Tribunal document pages 781-783
That following afternoon, Ms Shepherd sent Mr Aguer another detailed list of the documents needed by 13 March 2015. By this time Mr Aguer must have been aware of both the respondent’s concerns, of the precise documentation and information he needed to provide to allay those concerns, and of the consequences of not doing so. Finally, this yielded some partial compliance.
On or around 19 March 2015, the applicant sent by express post a copy of some of the requested documents, including photocopies of Certificate III qualifications for some staff, and confirmation that first aid training had been booked through a provider called Parasol. The information was incomplete.
Later that day, Ms Shepherd rang Mr Aguer to clarify some of the information received by mail. Ms Shepherd kept a file note of that conversation. The below extract gives a taste of the nature of the information provided:
The authorised officer asked about educators not listed on the register being provided and Ruben confirmed that these are no longer working with long life or not active educators. The authorised officer asked about certificate III qualifications indicated on the register but not provided. Ruben advised that he has more copies but cannot scan them from the office. Elise suggested that Ruben could bring them to the CPRU office in Stirling today and they would photocopy them for them. Elise asked about Aja Akoi, as a timesheet was received for this person, Ruben advised that this is an administration staff member that is now working for long life. Elisa asked about the timesheet for Samanthika working on Wednesday 11 March as the CPRU has been informed that Samanthika is working for another service on Wednesdays. Ruben was unsure about this but thought that she might have filled in the wrong day on her timesheet…. [88]
[88] Tribunal document 727
Only three timesheets were provided, one of which was for an administration worker, and a second of which was inaccurate. Evidence of qualifications was not provided for all educators. For example:
(a)one educator had no documentation evidencing anaphylaxis or first aid training;
(b)five educators had no evidence of enrolment in or attainment of a Certificate III in childcare;[89]
(c)three educators did not have a working with vulnerable people check.
[89] Tribunal document pages 363 -370
When asked where the rest of the requested documents were, Mr Aguer advised Ms Shepherd that, although he had all the documents available, he was not able to scan them in or drop them off. The applicant was given another extension until 31 March 2015 to provide the further documentation sought.
On 26 March 2016 Mr Aguer provided copies of some more Certificate III qualifications for other educators. The requested information had still not been provided in full. [90]
[90] Tribunal document pages 318 to 319
On 1 April 2015, Mr Aguer advised that he had recruited a second coordinator, a Ms Sidhu. He provided the respondent with a copy of her qualifications, but no proof of employment or engagement.[91]
[91] Tribunal document pages 691-698
On 28 April 2015 Ms Shepherd conducted an unannounced visit to the O’Connor office. She was accompanied by Ms Coutin. They found the office unattended at 9:45am. Ms Shepherd and Ms Coutin also visited seven family daycare residences. A file note of these visits was tendered in evidence.[92] In summary, at not one of the premises did the authorised officers confirm that a child was in care:
(a)At three premises, no one answered the door.
(b)At one, the educator said she was not working for the applicant that day, but did work other days.
(c)At one, the educator said that the children usually in her care were sick that morning, so she was not working.
(d)At another, the door was answered by Ms Monica Deng. The authorised officers were unable to ascertain from their conversation with Ms Deng whether the child in her care was her own child or a child she was caring for, due to the language barrier and Ms Deng’s apparent limited spoken English.
(e)At the seventh, where Ms Rebecca Weu was said to be operating, the two women who answered the door explained that Rebecca was their mother, but that she was not working that day and they did not know when she did.
[92] Statement of Elise Maree Shepherd dated 17 March 2016, attachment Q; Tribunal document page 686
Mr Aguer had, by this time, provided three first aid certificates for Ms Deng, each of which is stated to be “nationally recognised training”, but none of which is stated to have been taught or assessed in a language other than English, as would be required by the AQF Qualifications Issuance Policy were they so delivered.[93]
[93] See clause 2.1.4
In subsequent correspondence to Ms Shepherd, and again at the hearing, Mr Aguer sought to explain the outcomes of the visits as, effectively, bad timing by Ms Shepherd and Ms Coutin. For example, when cross examining Ms Shepherd at the hearing, Mr Aguer suggested to her that: “some educators looking for schoolchildren in which they took them out of school and when the visit at 10.00 or 11.00 or 4.00, you could not get these children there?”[94] This question reflects some comments Mr Aguer made in his opening statement that:
Some of the educators provide care for school children. When they drove them to school they are not required to stay home. They are working only to drop kids and pick up the kids from the school and go to work and go to school, go for study.[95]
[94] Transcript of proceedings 11 May 2016, page 17, 19-24
[95] Transcript of proceedings 30 March 2016 page 17 lines 19-24
Ms Shepherd replied, in her evidence, that:
We are aware that sometimes family day care educators go out of their house. We did ask for you to identify educators that we could visit in an email that should be in the T documents but we did not receive a response so therefore we went by the list that we had. We didn't even have days of operation provided as that was part of the register that wasn't provided.[96]
[96] Transcript of proceedings 11 May 2016 page 15, lines 17-20
Mr Aguer’s position, as I understand it, was that the respondent made too few attempts to conduct home visits, and attended at unsuitable times. I do not accept this. The respondent made reasonable efforts but was given no assistance by the applicant. If visits during school hours were not likely to be productive, then it was incumbent upon the applicant to advise the respondent (who had in fact asked for this information) of another time that might be more suitable. This is especially the given that the Mr Aguer must have, by now, known that the applicant’s service approval was at risk.
I note further the ‘timesheets’ provided to the respondent by the applicant in March 2015 noted relevant educators as working 8am through 5 or 6pm. The hours nominated on the timesheets are not consistent with Mr Aguer’s claim that many of the educators work part time.
As at this visit on 28 April 2015, the applicant had been operating as a provider for a year, yet the respondent had not been provided with any evidence of anyone actually being employed by the applicant, had not received the requested documentation, had not inspected a properly established principal office and had not successfully inspected any carer’s premises. At best, the respondent had identified only two children in care.
On the evening of 28 April 2015, Ms Shepherd wrote to Mr Aguer and asked that he provide a list of educators working that day, including when they started and stopped working and he children they cared for[97]. The respondent also requested he provide the missing first aid, anaphylaxis and asthma training certificates for those educators. He was asked to provide this information by the following day. Again, nothing was provided at this time.
[97] Tribunal document page 683
By way of email dated 11 May 2015, Ms Shepherd asked that Mr Aguer to provide copies of the missing qualifications by 15 May 2016. She set out precisely what was needed. Mr Aguer was advised that a compliance notice would be issued if the applicant did not comply.[98]
[98] Tribunal document page 681
On 27 May 2015 there was a series of conversations between Ms Shepherd and Mr Aguer in which he had tried to send documents by email, but was unsuccessful. He said he would drop the documents in by hand.[99]
[99] Tribunal documents page 643-643
By some means on 27 May 2015, Mr Aguer provided the respondent with a brief document entitled ‘observation and discussion response’. In this document he sought to explain why he and Ms Mathiang, and the relevant educators, were not available for visits on 4 March 2015 and 28 April 2015.[100] In that same letter, Mr Aguer conceded that three educators had no qualifications and had missed the deadline to enrol in a Certificate III course.[101]
[100] Tribunal documents pages 626-627
[101] Tribunal document page 627
On 28 May 2015, Ms Shepherd emailed Mr Aguer again, noting the deficiencies in the requested documentation. She again requested an updated list of educators and copies of missing Certificate III qualifications and first aid and anaphylaxis training certificates. She outlined exactly what was needed. She asked that the information be provided ‘immediately’[102]. On 29 May 2016, Mr Aguer confirmed that he had received the email and would respond “as soon as possible.”[103]
[102] Tribunal documents page 625
[103] Tribunal documents page 619
Also on 28 May 2015, Ms Shepherd telephoned the Australian Skills Quality Authority (ASQA) to enquire about the validity of the training certificates. Several of the Certificate III’s provided were from the Australian Vocational Driving Institute (AVDI) which had been deregistered as an Registered Training Organisation. ASQA advised that AVDI had been deregistered due to non-compliance, and that it was required to send student records to ASQA. It requested Ms Shepherd put her enquiries about the certificates in writing. There is no evidence before the Tribunal as to the outcome of these enquires[104].
The suspension process
[104] Tribunal documents page 623
As outlined above, by mid-2015 the respondent had engaged in numerous, repeated attempts at establishing the applicant’s compliance with the conditions on its service approval and the National Law. Each attempt had produced unsatisfactory results. I accept that it was, by this time, abundantly apparent that the applicant was in breach of breach of sections 175 and 269 of the National Law.
Additionally, the applicant had produced no evidence to show that it had employed or engaged a number of family day care coordinators to meet the requirements of the ‘other conditions’ of its service approval. It was therefore also in breach of section 51(2)(a) of the National Law. This breach was eventually conceded by the applicant’s lawyer in its response to the show cause notice.
On 8 July 2015 the respondent emailed the applicant a show cause notice dated 7 July 2015 pursuant to section 71 of the National Law.[105] Mr Aguer agreed during the hearing that he received the notice on or about 7 July 2015.[106]
[105] Tribunal document pages 45-48
[106] Transcript of proceedings 30 March 2016 page 51, line 25
On 28 July 2015 a response to that notice was forwarded on behalf of the applicant by his then solicitor, Mr Ford.[107] In that response:
(a)it was conceded that the applicant did not have two full time coordinators as required by the conditions of the service approval;
(b)it was asserted that there was a full time coordinator and two part time coordinators; and
(c)it was also asserted that there was no failure to keep records, and that the “relevant files for these employees are available for your perusal at the office of the LLFDC.”
[107] Tribunal documents pages 49-50
No reason was given as to why, if the applicant had all the requested documents, they were not simply produced to the respondent at this time.
Ms Shepherd’s evidence at the hearing on 18 May 2016 was that this letter was the last occasion that the applicant provided any information from the respondent, although some documents were later provided through the Tribunal process. [108]
[108] Transcript of proceedings 11 May 2016 page 12, 20-15.
On 18 September 2015 Ms Shepherd and Ms Susan Sullivan visited the applicant’s premises to “test the proposition that relevant records were available for inspection”. Again, Ms Shepherd took a detailed file note of the visit, which was before the Tribunal.[109]
[109] Tribunal documents page 553 and pages 603-607
Mr Aguer, Ms Voronica Mathiang and a person named ‘Maleek’ were present at the meeting. None of the alleged employed coordinators were present. Mr Aguer said that Ms Kaur and Ms Aguang could not be there as they had to give their employer two weeks’ notice, and also because Ms Aguang had another appointment.[110]
[110] Statement of Elise Maree Shepherd dated 17 March 2016, attachment E
Following some discussions, the respondent’s representatives appear to have been satisfied that Ms Mathiang was employed as a coordinator. However it was conceded by Mr Aguer that there were not two full time coordinators, and indeed there was no coordinator at all on duty on a Monday. Additionally, detailed staff records were not produced for the two people who the applicant claimed to be part-time co-coordinators. Contracts and pay records for those part time co-coordinators were requested, but only one timesheet was produced, that of Ms Maithiang. Mr Aguer advised that other coordinators were required to sign timesheets, but had not.[111]
[111] Tribunal documents page 569
During that inspection, Mr Aguer advised the authorised officers that he had thirty two currently active educators. Given the condition on the licence that there be one coordinator for every fifteen educators, the respondent advised Mr Aguer that he should have had three full time coordinators.
Mr Aguer was asked to provide a current register of educators. The list he provided had many details missing, and also identified educators that he had previously advised the respondent were no longer active. New names were included as well.
Ms Shepherd and Ms Sullivan asked to sight the files for all educators. Mr Shepherd took to that visit a schedule that she used to record the evidence of qualifications and training of each of the educators whose names had been given to her by Mr Aguer.[112] The schedule shows that of the files produced, only eleven had evidence of an education and care qualification, first aid, anaphylaxis and asthma training. Eighteen lacked a valid working with vulnerable people check. Seven educators had no personnel file at all.
[112] Transcript of proceedings 30 March 2016 page 15, line 44
None of Ms Shepherd’s evidence of this visit was seriously challenged by Mr Aguer during the proceedings. As stated before, where there was any divergence in the evidence, I preferred Ms Shepherd’s evidence.
Mr Aguer’s oral evidence to the Tribunal was that at this time (that is, the end of September 2015), the applicant had 128 children in care and “30-38 educators, and four coordinators.”[113]
[113] Transcript of proceeding 30 March 2016 page 33, lines 1-10
In light of the applicant’s response to the show cause notice, and the results of the inspection of 18 September 2015, the respondent decided on 6 October 2015 to suspend the applicant’s service approval.[114].
[114] Tribunal documents pages 61-63
On 22 October 2015 the applicant’s solicitor wrote to the Regulatory Authority disputing the findings that had been made in the show cause process.
On 4 November 2015 Ms Jane Cuzner, Director of Governance and Assurance with the Regulatory Authority wrote to Mr Ford providing detailed reasons for the suspension decision[115].
[115] Tribunal documents number 3, with annexures.
On 5 November 2015 the applicant lodged the present application for a review of the suspension decision.
The hearing
On 8 December 2015 the application for interim orders was heard. After hearing the parties Member Daniel (as she then was) adjourned the matter part heard to 11 January 2016 “for the making of further orders or directions in Chambers” Member Daniel indicated that the “parties are to advise the Tribunal prior to 11 January of the current status of the matter and whether any further listing or directions are sought.”[116]
[116] Transcript of proceedings dated 8 December 2015, page 23
On 11 December 2015 the applicant (through his solicitor) forwarded by email to the Tribunal a bundle of documents. Amongst other things it was said:
It is my client’s submission the basis of the suspension of the registration now no longer exists, and therefore, the suspension should now be lifted.
As at the date of this letter, the Long Life Family Daycare employs six individuals. They are properly qualified and have attended all of the relevant courses.[117]
[117] Exhibit A3, Email from Hugh Ford to ACAT
The letter attached documents relating to five individuals - Achol Deng Dau, Sarah Nyibol Kuol Biar, Dabora Chut, Gak Aleer and A Kon Madit Biar. The documents are not complete.
On 21 December 2015 the Tribunal wrote to the applicant’s solicitor by email explaining an apparent misunderstanding on the applicant’s behalf of the effect of the orders of 8 December 2015. Relevantly the email said:
It seems that the applicant has misunderstood what the Member said at the hearing of the interim orders application. The possibility was covered that the further information requested for the Tribunal Member to consider making an interim order would be sufficient for the Director-General in relation to the substantive application. The applicant was given until 8 January 2016 to advise the Tribunal if the interim orders application was pressed or whether the matter has been separately resolved between the parties.
By 8 January 2016 the applicant had not provided any documentation to the Tribunal that suggested that the applicant was complying with relevant legislative requirements. Still, by way of an email, the applicant re-iterated its desire to have interim orders made and, on 12 January 2016, made submissions by email as to why interim orders should be made.
On 15 January 2016 President Daniel heard the applicant’s application for interim orders. The application was dismissed and a timetable for the filing of witness statements, submissions and other material set down.
The timetable required the applicant to file and serve its witness statements, written submissions and any other material upon which it wished to rely by 12 February 2016. The applicant ultimately did not file or serve any documents until 7 March 2016.
The matter was listed for directions on 7 March 2016, at the request of the respondent. The applicant was given further time to file its documents.
On 15 March 2016 the applicant filed and served a bundle of documents relating to people it had previously advised to be its employees or providers, as well as documents in relation to a number of people not previously listed on the register of educators.[118] Included in bundle was a document purporting to be a ‘Statement of witnesses’.[119] The statement purported the be the written evidence of Gak Aguer Aleer, Akoul Bul Ayual, Acol Kuir Deng and Yar Maluk Pajook. It was unsigned.
[118] Exhibit A2, Applicant’s bundle of documents
[119] Exhibit A2, Statements of witnesses dated 2 March 2016
The additional oral evidence provided by Mr Aguer during the course of the hearing may be summarised as follows.
In relation to the issue of the applicant’s principal office, Mr Aguer stated that the respondent’s primary address was now Sargood Street, O’Connor.[120]
[120] Transcript of proceedings 11 May 2016, page 5 lines 28-33
In relation to the issue of co-ordinators, Mr Aguer gave evidence that as at 30 March 2016, the applicant engaged, or could re-engage, four educators and one coordinator, Ms Veronica Mathiang.[121] He said that Ms Mathiang worked eight hours a day, five days a week for “really…high pay….like 25 to 30 dollars an hour”.[122] However, he also said that she was not actually being paid at the date of the hearing and could not come to the hearing because she was in Melbourne with her family.[123] Ms Mathiang did not provide a statement to the Tribunal. No evidence of an employment contract or a contract of engagement for Ms Mathing was provided.
[121] Transcript of proceedings 30 March 2016, page 24 lines 5-6
[122] Transcript of proceedings 30 March 2016, page 24 lines 11-14
[123] Transcript of proceedings 30 March 2016, page 24 lines 34
In relation to the register of educators, and other outstanding requested documentation, Mr Aguer told the Tribunal that he had the complete documentation for the four remaining educators, who were ready for the service to start again. No explanation was offered for his failure to file it prior to hearing, or indeed his failure to provide it during the hearing.
Under cross examination, Mr Aguer said that he understood that the show cause notice was a request for the provision of documents, but conceded that some of the documents were not available at that time:
AGUER:“---The document I provide the full range of documents but some documents were not available at that time.
ARCHER: Mm?---
AGUER: Because those - some educators were waiting their first - the first aid document to be trained again to renew them and others were waiting for - others having a receipt of ongoing training on the Certificate III.”[124]
[124] Transcript of proceedings 30 March 2016 page 53, lines 36-39
Mr Archer pressed for further evidence as to where the relevant documents were and why they had not been provided. The following exchange occurred:
MR ARCHER: All right. Now, I just want you to put yourself in the shoes of the regulator?---
MR AGUER: Yes. Yes.
MR ACRHER: Do you accept by the time that this notice was issued you had not provided them with a comprehensive list with accompanying records of the foundational fact and that is who worked for you. That you hadn’t provided that information. Do you accept that?---
All right.Now, I just want you to put yourself in the shoes of the regulator?---Yes. Yes.
Do you accept by the time that this notice was issued you had not provided them with a comprehensive list with accompanying records of the foundational fact and that is who worked for you. That you hadn’t provided that information. Do you accept that?---Correct. (Indistinct).
Now, do you accept that one of the things that the show cause notice asked of you was to provide proof of who worked for you?---Yes.
Okay?---Correct.
And that you were not able to provide the regulatory authority with that information when they asked. Do you accept that that was the case? That was your response?---Correct.
Now, why - now why were you not able to provide them with that information?---I provide information for them but they need such as the contract form. The contract that’s signed by the coordinators as the evidence of employment for - - -
Did they ask of you information that would prove - - - ?---Yes.
- - - that somebody was working for you?---Yes.
Now, what do you think that might be the range of documents that would prove that somebody was working for you?---The document are at least three or to four - that’s evidence of payment.
Yes.So that’s one thing?---Correct.
Well, let’s stop there?---Correct.
Did your company have documents that evidenced payment of wages or salaries to your educators?---Yes.
Now - - -?---Not educators - is coordinators.
Coordinators?---Yes. Because I have a range of - - -
Well, there were lots of - you had lots of educators that were working for you?
---Correct.Is that correct?---Yes.
They were being paid, is that correct?---Correct.
Now where were the documents that evidenced that they were first of all being paid by you? So where was their employment record where they set out their name, their address, their bank account details for example where you might pay them?---Yes.
Did those documents actually exist?---Correct.
Did they exist?---Yes.
Where were they?---In the computer and the folders.
Sorry?---In the folders.
In the folders?---Yes.
So - - - ?---Because - - -
No, no.Just stop?---Yes.
In relation to each employee?---Yes.
Let’s say there was an educator - person “A”?---Correct.
What was the file keeping system that applied in respect of educator “A”. First of all was there a file with the name “Educator A” on it?---Yes.
There was?---Correct.
Inside that folder?---Yes.
Was there a document that stated the name, full name, address, telephone number and bank account details of person “A”?---Correct.
There was?---Correct.
Within that folder was there a record of payments that had been made to that person since the date they were first employed by Long Life?---Correct.
There was?---Yes.
Okay.So the records in existence that set out the days they worked?---Yes.
The hours they worked and how much money they received in a given fortnight. Is that correct?---In that case they haven’t asked me that because that report is in a different folder.
Yes?---Which is the only recorded list in the document “A” is the whole part of the question and all their evidence of the document but I haven’t received any information or request by the regulators of the payment issue. But the payment issue have different folder because every week or fortnightly they have to - the educators have to provide what they call timesheets.
Right?---Yes. For their payment.
All right?---Correct.
So is the timesheets are kept separately?---Correct.
Right.Is there a folder of timesheets?---Correct.
But you can go to the folder if you’re looking for the records of the Educator “A” you can go to the folder and find them. Is that right?---Correct. Yes. Yes.
Now, in respect of coordinator “A” - the theoretical coordinator “A”?---Yes.
Did you have on file for coordinator “A” the documents that evidenced what qualifications they held?---Yes.
So that was on the same file, was it?---Yes. The staff - what I call the staff members record.
Yes?---Was a different folder.
A different folder again?---Yes. Yes. And I - all this qualification was already sent to the regulators.
All right?---Yes. But the - - -
Well, I’m suggesting that that’s not right?---Correct.
But let’s just not bother too much about that?---Yes.
I’m just trying to establish that there was such a folder that held the records?---Correct.
Okay?---Yes.
In relation to each of your employed educators?---Correct.
Okay?---Yes. Employee - I mean there is staff employee coordinators. I have different record - keep different area and the educators have different folders.
Okay?---Yes. Yes.[125]
[125] Transcript of proceedings 30 March 2016 pages 52-56
The inescapable implication of this exchange is that Mr Aguer was asserting that he has a separate personnel file for each employed coordinator, and each educator, and the relevant documents were on those files. Mr Archer than asked Mr Aguer, again, twice,[126] whether he was sure he had a separate file with the relevant employment details, for every coordinator. Mr Aguer confirmed that he did, and that the files contained evidence of a Certificate III, or substantial progress toward a Certificate III, for every educator.[127]
[126] Transcript of proceedings 30 March 2016 page 59, lines 24-40
[127] Transcript of proceedings 30 March 2016 page 60, line 6
Mr Archer then took Mr Aguer through the documentation the applicant had provided in relation to the five educators said to be still working for it. Mr Archer noted what was missing in relation to each educator. Mr Aguer confirmed that the missing documentation for each individual was on their personnel file.
Accordingly, the Tribunal had the following discussion with Mr Aguer[128]:
[128] Transcript of proceedings 30 March 2016 pages 74, lines 11 to 35
SENIOR MEMBER ROBINSON: Mr Aguer, we are shortly to break for lunch?---Okay.
I am going to ask you this. You have given evidence that you have employee files for each of these five employees who are in issue, one individual file for each employee and that these files are readily available. I am going to adjourn this matter until 2 pm. I will make it 2.30 pm. Are you able to bring those files to the tribunal when we reconvene at 2.30?---Okay.
Do you know what I am after?---Yes, the evidence of employment, is it?
The evidence of employment. I want to see you bring to the tribunal those five files for the five employees that you say have been engaged since 2014 and who will commence work with you again if the company commences work?
---Yes.
So, I want those five files?---Okay.
Can you do that by 2.30?---Yes. I will go to the office and grab those folders.
And that's the office in O'Connor?---Yes.
On the basis of Mr Aguer’s evidence to the Tribunal that he would attend the respondent’s principal office and return with the personnel files, the matter was adjourned for lunch.
When the Tribunal reconvened at 2:36pm that afternoon, the applicant did not produce the personnel files. What he produced were seven files that contained only what appeared to be parental agreements, rather than employment agreements. Thereafter the Tribunal and Mr Aguer engaged in the following exchange[129]:
[129] Transcript of proceedings 30 March 2016 pages 75 to 79
SENIOR MEMBER ROBINSON: Are these the documents that you have?
MR AGUER: Correct. There’s the part of the educator agreement and other part of parental agreement.
SENIOR MEMBER ROBINSON: What about - you indicated you had payroll records?
MR AGUER: The payroll record is on this somewhere. Just need time to print them what they do - the payroll report. Yes.
SENIOR MEMBER ROBINSON: And what about the employment agreements? Where are they?
MR AGUER: They are in here. In the current (indistinct) there’s the educator part and parent part. Yes. That’s the parent.
SENIOR MEMBER ROBINSON: That’s the parent agreement.
MR AGUER: Yes, that’s the educator’s one - educator.
SENIOR MEMBER ROBINSON: The parent agreement for a child.
MR AGUER: Yes.
SENIOR MEMBER ROBINSON: That’s another parent agreement. Where is the agreement between Long Life Family Day Care and one of these educators?
MR AGUER: There’s another one in the folder for the educator document.
SENIOR MEMBER ROBINSON: All right. Could you bring that to my attention?
MR AGUER: You mean the - you mean like the educator agreement one?
SENIOR MEMBER ROBINSON: Yes.
MR AGUER: That’s the folder - - -
SENIOR MEMBER ROBINSON: This is - - -
MR AGUER: That one was the - that one was changed this year that - I mean 2015.
SENIOR MEMBER ROBINSON: So what you have provided me with is a copy of a Long Life Family Day Care educator agreement.
MR AGUER: Yes.
SENIOR MEMBER ROBINSON: Which is what appear to be a contract - for an independent contractor arrangement. It’s not executed or signed. Is there a signed executed copy of any of these agreements?
MR AGUER: You could have this last one.
SENIOR MEMBER ROBINSON: Yes, but this one’s certainly not signed and it’s also not dated.
MR AGUER: Okay.
SENIOR MEMBER ROBINSON: That’s of no help.
MR AGUER: So for the educator part.
SENIOR MEMBER ROBINSON: That’s the parent agreement, Mr Aguer.
MR AGUER: Yes. The one page is the parent agreement and the other page is for the educator.
SENIOR MEMBER ROBINSON: Yes, but where is the agreement between Long Life Family Day Care as the employer or principal contractor and the educators? Is there an agreement?
MR AGUER: Yes. There’s the form for the educator registration.
SENIOR MEMBER ROBINSON: I just want you to be very clear Mr Aguer.
MR AGUER: Yes.
SENIOR MEMBER ROBINSON: You’ve alleged that you have these five employees who have signed the statement the statement of witnesses, have been employees of yours since 2014.
MR AGUER: Yes.
SENIOR MEMBER ROBINSON: And will again be employees if the suspension of your registration is removed. Whilst I’m not entirely sure where Mr Archer’s questioning is going clearly he is suggesting that these individuals were not employees of Long Life Family Day Care and that they will not be again. So I am asking you what evidence do you have that these people were employees of Long Life Family Day care?
MR AGUER: This other - the document which is the one you say is not signed. That’s the (indistinct).
SENIOR MEMBER ROBINSON: All right. Do you have one of those for each of these five employees?
MR AGUER: Yes, I’ve got them here but some are not - I don’t know the agreement for them are not there. You say this is only part of an agreement.
SENIOR MEMBER ROBINSON: Yes. They’re not signed.
MR AGUER: Yes.
SENIOR MEMBER ROBINSON: They seem to be in the same handwriting. I need to see some evidence.
MR AGUER: Yes.
SENIOR MEMBER ROBINSON: That these individuals are employees. So that might be a signed contractor or employment agreement. I’m not sure which one it is. It may be your payroll tax return. It could even be a certificate saying you’ve got workers compensation insurance for “X” number of employees.
MR AGUER: Yes.
SENIOR MEMBER ROBINSON: There is currently nothing of that nature before the tribunal.
MR AGUER: Yes. But there are - my insurance will not cover them. They have to be covered by the old public liability insurance. My working compensation is only covered the staff members, not educators. The educators are sub-contractors to the company.
SENIOR MEMBER ROBINSON: What about the coordinators? Your evidence today has been the coordinators were employees of the company.
MR AGUER: Yes.
SENIOR MEMBER ROBINSON: So do you have an employment agreement that you can show me?
MR AGUER: I thought that they I had done before to my solicitor. Yes. Such as the contracts agreement for the coordinators.
SENIOR MEMBER ROBINSON: So you’re saying that’s with Mr Ford?
MR AGUER: Yes. They are with Mr Ford.
SENIOR MEMBER ROBINSON: Have you asked Mr Ford to return them to you?
MR AGUER: Yes. I asked him and he say, “I need my payment before I return them to you.”
SENIOR MEMBER ROBINSON: All right.
MR AGUER: All the document I provided to him because the four coordinators already contract with their company. I provide that document to Mr Ford.[130]
[130] Transcript of proceedings 30 March 2016 pages 75-79
By the end of this exchange, Mr Aguer had given unambiguous evidence that the contracts between the coordinators and the company were with his previous solicitor, Mr Ford.
Accordingly, the Tribunal sought and obtained Mr Aguer’s agreement to call Mr Ford as a witness to confirm that the relevant documents were with him. The Tribunal telephoned Mr Ford, unannounced.[131]
[131] Transcript of proceedings 30 March 2016 pages 82-83
Despite having given no warning of the proceedings, Mr Ford obligingly assisted the Tribunal. Over the telephone he identified each document on his file and confirmed that he did not have any contracts of employment or independent contractor agreements.[132] I accept Mr Ford’s evidence. I am satisfied that there were no executed coordinator contracts on his file.
[132] Transcript of proceedings 30 March 2016 pages 85-89
Mr Aguer’s evidence lacked detail and consistency. He was a poor historian, whose recall was further compromised by clearly inadequate record keeping. I accept some of his evidence was perhaps also compromised by a limited grasp of English, and that this may have resulted in some misunderstanding of questions. Still, even making allowances for these issues, the only conclusion I can draw is that his evidence was unreliable.
Mr Aguer called only one other witness, Ms Gak Aleer Aguer, his sister-in-law.[133]
[133] Transcript of proceedings 30 March 2016 page 88, lines 36-41
Mr Gak said that she signed “…an agreement between me, a company and I signed agreement for parent”[134] and commenced working with the applicant on 5 May 2014.[135] She cared for seven children, and “got $3500” for that work.[136]
[134] Transcript of proceedings 30 March 2016 page 96, lines 42-45
[135] Transcript of proceedings 30 March 2016 page 94, lines 9-10
[136] Transcript of proceedings 30 March 2016 page 90, lines 37-38
When asked about the Statement of Witnesses, Ms Aguer said that Mr Aguer “talked with her” about the statement.[137] She initially said that she “never seen anything”,[138] but then said that she had seen and signed a statement.[139] When shown the statement of witnesses, she recalled that she had written it by hand and then given it to Mr Aguer, who typed it up.[140] Mr Archer called for the handwritten statement, but Mr Aguer did not have it.[141]
[137] Transcript of proceedings 30 March 2016 page 94, lines 30-31
[138] Transcript of proceedings 30 March 2016 page 94, line 39
[139] Transcript of proceedings 30 March 2016 page 95, line 40
[140] Transcript of proceedings 30 March 2016 page 99, lines 31-39
[141] Transcript of proceedings 30 March 2016 page 99, lines 41-44
In the circumstances, I am satisfied that I can attach no weight to the statement of witnesses.
Ms Aguer then stated that she could not read English. In the wake of this revelation, there was the following cross examination of Ms Aguer:
MR ARCHER: Did you have any trouble doing your certificate III courses because you cannot speak English?---About what?
MR ARCHER How did you do your certificate III courses without being able to speak English? Sorry, I withdraw that. To be able to write English, or read English?
---Write English and read English? I write by Dinka because I know by that and then Ruben change to English because he know Dinka. A lot of the Sudanese she write Dinka, she write Dinka.
SENIOR MEMBER ROBINSON: So, you are telling the tribunal you did your work, your certificate III course in Dinka?---Yes.
Not in English?---I do by Dinka, I write by Dinka, and then he change. Because the word is different. But I talk by English, but I don't read.
Do you know what assessment is for a course?---For what?
Did you have to do an exam for your certificate III course?---Yes I know about exam because then I write by English.
Did you write that exam in English?---Yes. Because we have a lot of people to test them, I read by English and I write by Dinka and I read by Dinka too and she put in the computer by English.
MR ARCHER: So, you wrote out your answers in Dinka and somebody put into the computer for you in English, is that right?---Yes.
Who did that for you?---Who put in computer?
Yes?---My son put in computer.
Your son put it in the computer?---Yes.
How old is your son?---Girl, not son.
Your girl, how old is your girl?---Fourteen years. Fifteen.
Fifteen?---Yes.[142]
[142] Transcript of proceedings 30 March 2016 page 102, line 9; page 103, line 1
In light of this evidence that Ms Aguer cannot read or write English, it is of some concern that none of the ‘national registered’ qualification certificates in her name bear a notation that the course was assessed in a language other than English, as is required by the National Qualifications Framework. Ultimately, however, this is not an issue that needs to be considered by the Tribunal.
Ms Aguer stated that she had signed “a lot of papers” with Mr Aguer, but that she had left them in the office and did not have copies[143]. She could not provide the Tribunal with a copy of an employment agreement or an independent contractor agreement for her engagement with the applicant. She did, however, confirm that she knew several of the other educators and believed that they worked for the applicant[144].
[143] Transcript of proceedings 30 March 2016 page 90, lines 19-24
[144] Transcript of proceedings 30 March 2016, pages 91, 92
In the circumstances, it is difficult to know what to make of Ms Aguer’s evidence. However, even if I accept that she has, in the past, worked for the applicant, and that she is willing to do so in the future, she is only one educator, and the fact remains that I still have not cited an employment or engagement agreement between her and the applicant. I have no confidence that such records even exist.
No other educators were called to give evidence. No coordinator gave evidence. I can have no confidence that any other appropriately qualified person is employed or engaged by the applicant as an educator or a coordinator.
The respondent relied on three witness statements from Ms Shepherd, Ms McDuff and Ms Sullivan. Ms Shepherd and Ms McDuff. were called as witnesses, and Ms Shephard was cross examined. All three produced significant documentary evidence in support of their factual contentions and their evidence was consistent. I accept their evidence, and that evidence forms the basis for my factual findings set out above. Where there is any conflict in the evidence of Ms Shepherd, Ms McDuff or Ms Sullivan, on one hand, and Mr Aguer on the other, I prefer that of the former.
FINDINGS
Failure to comply with conditions of service approval
The respondent alleged that the applicant was in breach of two conditions of its service approval, namely:
(a)to employ at least one full time family day care coordinator for every fifteen family day care residences or venues providing education and care for children;[145] and
(b)that each family day care educator is adequately monitored and supported by a family day care coordinator.[146]
[145] Imposed by the respondent under section 51(5)(b) of the National Law
[146] Section 51(2)(b) of the National Law
Despite being given numerous opportunities throughout this process, the applicant has to date:
(a)provided no evidence upon which the Tribunal could be satisfied that any person the applicant claimed to be employed or engaged by it was or is in fact employed or engaged by it – that is, it has provided no contracts of employment or contracts of engagement, no wage records, no tax returns or workers compensation insurance records; and
(b)provided no evidence of the capacity in which any of its claimed coordinators were employed or engaged, for example as an educator, supervisor, coordinator, educator assistant, volunteer or student.
Mr Aguer’s evidence to the Tribunal was that he now has only five or six educators,[147] that he accordingly needs only one coordinator and that he has provided all relevant documentation.[148] The Tribunal has still not cited employment or engagement agreements for any of these individuals.
[147] Transcript of proceedings 30 March 2016, page 16, lines 36-37
[148] Transcript of proceedings 30 March 2016, page 18, lines 10-25
On this basis the Tribunal cannot be satisfied that either presently or at any time since receiving service approval:
(a)the applicant has employed at least one full time family day care coordinator for every fifteen family day care residences or venues providing education and care for children (or indeed that it currently employs any coordinators at all); or
(b)the applicant can ensure that each family day care educator employed or engaged by it was, or is now, adequately monitored and supported by a family day care coordinator.
Accordingly, I am satisfied that the applicant breached the conditions of its service approval.
Having regard to the applicant’s past conduct, and to the evidence of its current arrangements, I am also satisfied that, should the suspension be lifted, the applicant could not meet the conditions of its service approval.
Contravention of the National Law
Educator qualification requirements
I premise these finding by noting that, given the near-complete lack of evidence of employment or independent contractor records before the Tribunal, I am not satisfied that any of the persons claimed to be employed or engaged by the applicant as educators were in fact so employed or engaged.
However, even assuming that some (or all) of the people listed in the applicant’s register of service providers are or were engaged or employed by the applicant, then I am far from satisfied that they are, or were, appropriately qualified to work in those roles. The applicant has not provided sufficient evidence upon which the Tribunal could be satisfied that all of these educators meet the qualification requirements relevant to the educators’ roles prescribed by the National Regulations.
The evidence of the educators’ Certificate III qualifications, anaphylaxis training, first aid certificates and asthma training was provided to the respondent in several stages. The most favourable interpretation I can put on this situation is that the applicant was attempting to obtain those records from the educators, as requested by the respondent. The applicant should have had these records in its possession before any educator commenced operating, and it should have kept a copy available at its registered office (at least in respect of persons who had been employed or engaged in the previous 12 months). It clearly did not do so.
On this basis, the Tribunal must be satisfied that the applicant, at all material times, contravened section 169(2) of the National Law.
Having regard to the applicant’s past conduct, and to the evidence of its current arrangements, the Tribunal is also satisfied that, if the suspension were lifted, the applicant could not comply with section 169(2) of the National Law.
Prescribed documents available for inspection
There is insufficient evidence before the Tribunal upon which it could be satisfied that the applicant kept the documents prescribed by regulation 177 available for inspection by an authorised officer of the respondent either:
(i)in relation to documents that related to the operation of the service, any staff member employed or engaged by the service or any child cared for, or educated – at those premises, or at the education and care service premises; or
(ii)in relation to all other documents – at a place, and in a manner, that they are readily accessible by an authorised officer.
Indeed, the evidence before the Tribunal overwhelmingly demonstrates that the applicant did not have the relevant documents available at any premises or in any manner.
On this basis I am satisfied that the applicant contravened section 175(1) of the National Law.
I am also not satisfied that the applicant could currently comply with the requirements of section 175(1) of the National Law if that suspension were lifted.
Register of staff
There is insufficient evidence before the Tribunal upon which I can be satisfied that the applicant kept at its principal office a register of each family day care educator and any other person engaged by or registered with the service to educate and care for a child as required by section 269(1) of the National Law.
Additionally, there is insufficient evidence before the Tribunal upon which I can be satisfied that, even if the applicant did in fact keep a register of staff, it contained the information prescribed by regulation 153.
There is insufficient evidence before the Tribunal upon which I can be satisfied that the applicant provided all relevant information on the register to an authorised officer upon their request. Indeed, I am satisfied that the evidence before the Tribunal overwhelmingly demonstrates that the applicant failed to do so or several occasions.
On these bases I am satisfied that the applicant contravened sections 269(1), 269(2) and 269(3) of the National Law.
Having regard to the applicant’s past conduct, and to the evidence of its current arrangements I am also not satisfied that, should the suspension be lifted, the applicant would be able to comply with sections 269(1), 269(2) and 269(3) of the National Law.
DECISION
Having considered the material before the Tribunal, and the evidence over the two days of hearing, I am satisfied that the decision of the respondent of 6 October 2015 to suspend the applicant’s service approval pursuant to section 72(a) of the National Law was the correct and preferable decision.
My only hesitation in affirming the decision to suspend the applicant’s service provider approval was that the original decision was to suspend only for the period 21 October 2015 to 20 April 2016. If I simply affirmed that decision, then the suspension has already lapsed.
Interim orders of 30 March 20116 continued that suspension on an interim basis until 20 June 2016 or until further order of the Tribunal. The purpose of that interim order was, consistent with section 53 of the ACAT Act, to ensure that the respondent did not suffer disadvantage or harm by the order lapsing while the matter was being considered by the Tribunal.
I had regard to the submissions of Mr Archer that the applicant is currently considering whether further steps need to be taken by the respondent, particularly in relation to possible cancellation of the applicant’s service approval. Should this be pursued, the applicant must of course be afforded the appropriate processes under the National Law. That will take time.
Section 72(a) of the National Law provides that a provider’s service approval may be suspended for a prescribed period of no more than one year.
Accordingly, I order that the decision under review be varied, and substituted with a decision that the service approval of Long Life Family Day Care Pty Ltd is suspended pursuant to section 72 of the National Law for a period of twelve months, from 21 October 2015 to 20 October 2016.
That period should ensure that both parties have sufficient time to do whatever is necessary to finalise this matter.
………………………………..
Senior Member H Robinson
HEARING DETAILS
FILE NUMBER: | AT 87/2015 |
PARTIES, APPLICANT: | Long Life Family Day Care Pty Ltd |
PARTIES, RESPONDENT: | Director-General, Education Directorate |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | Mr K Archer |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Senior Member H Robinson |
DATES OF HEARING: | 30 March 2016 & 18 May 2016 |
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