National Law FAQs

FDCA recently sought clarification on a number of matters related to the National Law on behalf of our members. Questions and responses, as provided by ACECQA, are listed below. Given the rapidly changing nature of current circumstances, FDCA expects some of these responses will continue to evolve. We will update this page with new information as it comes to hand.

What provision or waiver may be afforded to those educators that are required to update their mandatory first aid/asthma and anaphylaxis training during this time where it not possible to do so?

In light of COVID-19 related restrictions, the Australian Skills Quality Authority has released advice for training providers to consider adapting practices, including changing delivery modes, re-sequencing delivery of units or components of units, and delaying workplace practical assessments:

While theoretical aspects of first aid training could be reasonably covered through online training, other more practical aspects – in particular the performance of CPR on a manikin – are much more challenging. In the first instance, educators should discuss any available options offered by training providers. In instances where the full requirements of the course cannot be met, training providers are expected to issue documentation to students confirming that they have completed the theoretical aspects of the course and detail any outstanding requirements of the course they must complete in order to obtain the qualification.

Unlike the requirements to initially obtain competency, requirements for refresher training are not defined in the National Regulations (beyond the requirement for the training to be ‘current’). The industry standard is that first aid qualifications should be renewed every three years and refresher training in CPR should be undertaken annually, generally by attending an approved training course:

Education and care service providers and educators are encouraged to pursue all available options to complete first aid refresher training, including completing only the theoretical aspects of the training, if necessary. State and territory regulatory authorities will consider waivers relating to the requirements for refresher training, particularly those applications supported by evidence of having actively sought training opportunities and/or completed the theoretical aspects of the training.

Is there provision for including the current circumstances to consider COVID-19 pandemic as meeting exceptional circumstances to approve additional children above the current allowable ratio under section 124 of the Education and Care Services National Regulations, if required?

Exceptional circumstances, for the purposes of sub regulation 124(5), are exhaustively prescribed under sub regulations 124(6)(a)-(c)). Pandemics / health emergencies are not prescribed as an exceptional circumstance under sub regulation 124(6). Approved providers are unable to rely on sub regulation 124(5) to approve an FDC educator to educate and care for children above the ratios prescribed under regulation 124, due to the COVID-19 pandemic.

However, all regulatory authorities are currently expediting reasonable requests for staffing qualification waivers and are temporarily removing or refunding fees for some waiver applications.  Regulatory authorities will expedite waiver applications, including in relation to regulation 124, on a case-by-case, risk analysis basis.

Will regulatory authorities allow for flexibility on the educator-to-coordinator ratios to account for staff self-isolations, sicknesses and precautionary leave?

Section 163 of the National Law requires the approved provider to ensure the minimum number of qualified co-ordinators be employed or engaged in accordance with the prescribed ratios, set out in regulation 123A. Regulation 123A does not provide further direction about how co-ordinators monitor and support educators. Co-ordinators may support educators remotely under the National Law to account for staff self-isolations, sicknesses and precautionary leave.

Some evidence types required to be kept in ‘FDC educator registers’ under sub regulation 153(1) will be relevant to the support provided by FDC co-ordinators remotely. This includes the need to maintain the following information:

  1.  the dates and times of any telephone calls between the co-ordinator and the educator for the purpose of monitoring or support;
  2. details of any correspondence or written materials provided to the educator by the co-ordinator for the purpose of monitoring or support and the dates and times the correspondence or materials were provided to the educator.

Do authorities have capacity to "fast-track" any pending approvals for extension of a service’s educator cap?

All regulatory authorities have agreed to prioritise assessment of approvals for extension of a service’s educator cap using a risk-based approach, including the length of experience the provider has in education and care for children, and the provider’s history of compliance with the National Law.

In relation to coordinator-educator visits, a shift towards utilising technology may be required. Is that acceptable?

The National Law does not prescribe how FDC co-ordinators monitor and support educators. Support provided through remote means, such as using technology, is possible under the National Law, and is an appropriate means of providing support in light of the COVID-19 pandemic. As explained above, co-ordinators may support educators remotely under the National Law to account for staff self-isolations, sicknesses and precautionary leave.

Regarding coordinator/educator ratios, FDCA recommends the adoption of a reasonable and proportionate application of co-ordinator / educator ratio requirements in line with the proposals in FDCA’s Sector Viability Brief.

Regulatory authorities acknowledge the significant challenges to many aspects of service provider operations amidst the COVID-19 pandemic. Regulatory authorities are monitoring provider obligations in regard to coordinator / educator ratios in line with the principles of reasonableness / flexibility, while ensuring child safety is assured.