Guideline for Waivers under the Education and Care Services Act 2013(Qld)
Purpose
The purpose of this guideline is to help central and regional office Department of Education and Training (the department) officers manage waiverapplicationsunder the Education and Care Services Act 2013(Qld) (ECS Act). This guideline falls under the department’s procedure,Approvals under the Education and Care Services Act 2013.
Background
Under the ECS Actapproved providers may apply for awaiverfrom complying with a requirement applying to the service prescribed in the Education and Care Services Regulation 2013(Qld)(ECS Regulation).
A waiver may either be an ongoing service waiver which remains in place until revoked (either on application by the approved provider or at the discretion of the department), or a temporary waiver which expires after a maximum period of 12 months. Temporary waivers may be extended on application under section 104 of the ECS Act by periods of not more than 12 months.
Waivers may be sought for the following prescribed service requirements:
a)fencing
b)nappy change facilities
c)indoor space—general
d)indoor space—additional
e)outdoor space—general
f)outdoor space—additional
g)administrative space
h)premises designed to facilitate supervision
i)supervision of educators under 18 years
j)educator to child ratios generally
k)educator qualifications
l)first aid qualifications (temporary waivers only).
The applicationforms associated with waivers are listed below:
ECS19 Application for service or temporary waiver
ECS20 Application for revocation of service waiver.
ECS21 Application for extension of temporary waiver
Additional information on waiver applications can be foundin:
Sections92–106 of the ECS Act
Regulations7 and 8 of the ECS Regulation
Templates
Templates for use by departmental officers which relate to waivers are available in TRIM at 60/11/353 (DET employees only).
The role of regional offices in Temporary and Service Waiver Applications
Regional offices are primarily responsible for the intake, assessment and decision of all waiver applications.[1]
1)Intake
Regional offices must:
a)Process the application:
i)Create an application record on the relevant database.
ii)Contact the Approvals and Reviews Team, Regulation Assessment and Service Quality (A&R RASQ)to arrange for the fee to be processed. (Fees payable under the ECS Act are detailed in Schedule 1 of the Education and Care Services Regulation 2013.
b)Review the application for completeness:
i)Check that all required sections on the form have been completed, and all required documents are attached.
ii)Ensure the application is made for a relevant prescribed service requirement:
- A service waiver can be sought for a prescribed requirement as identified in regulation 7 of the ECS Regulation (service waiver cannot be sought for first aid qualifications).
- A temporary waiver can be sought for a prescribed requirement as detailed in regulation 8 of the ECS Regulation (temporary waiver can be sought for first aid qualifications).
- One application form may seek waivers for multiple prescribed requirements.
- A waiver cannot be sought for a requirement under the Building Code of Australia or the Building Act 1975 as specified in the Queensland Development Code (as relevant).
iii)Request missing information from the applicant if necessary.
c)Ascertain the applicable statutory timeframes and the delegated officer for deciding the application:
i)Consult the Summary of Timeframes and Delegations under the Education and Care Services Act document.
ii)Calculate the timeframe for deciding the application (use a date calculator if needed).
d)Acknowledge receipt of the complete application.
2)Assessment
Regional offices must assess waiver applications by taking the necessary steps permitted under the ECS Act:
a)ECS19 Application for service or temporary waiver:
i)Assess the adequacy of the attempts made at the service to comply with the prescribed service requirement.
ii)Assess the measures taken, or to be taken, to protect the wellbeing of children being educated and cared for by the service.
iii)If the information provided in the application does not provide sufficient information, request further information from the applicant under section 94 (service waivers) or section 101(temporary waivers) of the ECS Act.
iv)Consider if an inspection of the Queensland education and care (QEC) service premises by an authorised officer under section 94 (service waivers) or section 101 (temporary waivers) should occur.
v)Consider if external consultation is required. If additional information is required, ideally the applicant should be asked to obtain this information and provide it to the department. If this is not appropriate in the circumstances and the department is better placed to obtain external advice (for example – financial, medical or legal advice), undertake a cost/benefit analysis and obtain expenditure approval from the ECECDirector prior to incurring any costs. Ensure that the applicant is afforded procedural fairness and given the opportunity to respond to any adverse information. The following may be contacted for expert advice:
- If the waiver application relates to the physical environment of a service, a professional building practitioner or the Department of Housing and Public Works.
- If the waiver relates to shade requirements, the Cancer Council.
- If the waiver relates to the design or structure or a heritage listed building which cannot be modified, the Department of Environment and Heritage Protection.
vi)Waivers are considered on a case-by-case basis and regional offices will typically only grant a waiver where:
- There is no unacceptable risk to children’s safety, health or wellbeing in granting the waiver.
- For a service waiver, the issue is ongoing (i.e. longer than 12 months) and requires a service waiver rather than a temporary waiver.
- For a temporary waiver, there are special circumstances which reasonably justify the grant of a temporary waiver, such as natural disasters.
- It is not genuinely practical for the service to resolve the issue (e.g. building constraints).
- The service can meet the objectives of the prescribed service requirement by alternative means; or granting the waiver is preferable taking into account other considerations (e.g. benefits to families, children and communities).
vii)Record the steps taken during the assessment of the application
- Use the relevant database and TRIM to record all steps taken during the assessment.
- Submit a recommendation and required documentation to the delegated officer for approval.
b)ECS20 Application for revocation of service waiver:
i)Assess the service’s ability to comply with the prescribed service requirement and consider if an inspection of the QEC service premises by an authorised officer is necessary.
ii)Record the steps taken during the assessment of the application:
- Use the relevant database and TRIM to record all steps taken during the assessment.
- Submit a recommendation and required documentation to the delegated officer for approval.
c)ECS21 Application for extension of temporary waiver, regional offices must:
i)Consider the reasons given by the service for requesting an extension of the temporary waiver.
ii)Consider any steps taken by the service during the period of the original temporary waiver period towards compliance with the prescribed service requirement to which the temporary waiver applies.
iii)Consider if an inspection of the QEC service premises by an authorised officer is necessary.
iv)Record the steps taken during the assessment of the application:
- Use the relevant database and TRIM to record all steps taken during the assessment.
- Submit a recommendation and required documentation to the delegated officer for approval.
3)Decision
The delegated officer must:
a)Either:
i)Approve the application and issue or reissue the service approval stating the requirements to which the waiver applies. For temporary waivers the service approval must also state the period of the waiver; or
ii)Refuse the application, after ensuring the applicant has been afforded procedural fairness.
b)Inform the applicant of the decision, including avenues for review of the decision (if any).
Note: If the delegated officer considers that it is appropriate, a refused service waiver application may be reconsidered as an application for a temporary waiver with the consent of the approved provider.
The role of RASQ in service waiver applications
Although regional offices are primarily responsible for the intake, assessment and decisionson all waiver applications, A&R RASQ may be consulted during thesephases if required.
A&R RASQ may also at times undertake the function of deciding applications for service waivers, however does not hold the appropriate delegation to decide applications for temporary waivers.
This guideline is non-binding information that assists users to follow a procedure.
Uncontrolled copy. Refer to the Department of Education and Training Policy and Procedure Register at to ensure you have the most current version of this document.
[1] Regional offices have the appropriate delegation to decide applications for service waivers and temporary waivers. RASQ has the delegation to decide applications for service waivers only; and may at times be responsible for processing these.