Please note: This information provides a simple interpretation of current legislation, and is not intended to constitute legal advice.
The Education and Care Services National Law and Regulations require centre-based services to meet a 100% educator to child ratio at all times, inclusive of the lunch period and other tea breaks.
A transition period (regulation 374A Educator to child ratios – centre-based services during lunch periods) was created to give Western Australian services time to plan, budget and recruit the additional staff they will require to meet this requirement. This transition period expires on 31 July 2015.
To continue to provide some flexibility to services in relation to educator breaks, from 1 August 2015, a new regulation will take effect which will enable Western Australia’s centre-based services, despite regulation 122, to allow an educator who is not directly working with children to be counted towards the educator to child ratios under regulation 123 for up to a total period of 30 minutes per day. The educator will have to remain on the premises and be immediately available if required.
The new regulation supports the principles behind requiring 100% child to staff ratios at all times whilst recognising the need for reasonable flexibility to enable services to give their educators short breaks without compromising the needs of children.
The new regulation is based on the current guidance provided under the National Quality Framework Resource Kit and will provide clarity and ensure a more nationally consistent approach towards educator breaks is taken by regulatory authorities.
Frequently Asked Questions
How am I to cover my industrial award obligations?
Satisfying industrial award obligations to employees is an internal issue a service must manage operationally. Whilst it is recognised that staff resourcing can be challenging, education and care legislation is designed to ensure children's health, wellbeing and safety in approved education and care services. It provides a minimum standard acceptable to families, the community and government. Any reduction in what is set out in the legislation creates a potential risk to children.
The new regulation will allow services to give each of its educators a period of time of not more than 30 minutes in a day off the floor, without having to back fill, to meet the 100% educator to child ratio requirements. The purpose of the provision is to provide services with some flexibility for toilet breaks, personal phone calls and short breaks (tea breaks). Any additional time an educator is not working directly with children will need to be backfilled e.g. lunch breaks.
Will more than one educator be able to take their break/s at the same time?
The legislation will not specify a maximum number of educators who can be off the floor at any given time. However, it is important to remember planning for staffing over any period in which an educator is not directly working with children must take into account the needs of the children and ensure children who are not resting are adequately supervised by available contact staff.
The overarching consideration must be the needs of the children and adequate supervision must therefore be maintained at all times. Educator to child ratios alone does not determine what is considered adequate supervision.
See page 65 of ACECQA’s Guide to the Education and Care National Law and Regulations for further information regarding what constitutes adequate supervision.
What is the approach of other jurisdictions?
Apart from Western Australia, Queensland and South Australia all other jurisdictions currently require 100 per cent educator to child ratios at all times.
South Australia has been operating successfully with the approach of enabling educators 30 minutes off the floor each day. Western Australia and Tasmania are intending to move to a similar approach to continue to provide their services with some flexibility for toilet breaks, personal phone calls and short meal breaks.
Is this 30 minutes in addition to an educator’s lunch break?
The total period of 30 minutes each day can be taken as three 10 minute or two 15 minute tea breaks or one 30 minute lunch break without that educator needing to be backfilled. However the educator must remain on site at all times and be immediately available if required. Any additional time over 30 minutes a day an educator is not working directly with children will need to be backfilled.
For example: Should a service provide their educators with two 15 minute tea breaks (on site) and a one hour lunch break, then the one hour lunch break will need to be backfilled. Should an educator only take a 30 minute lunch break (on site) the service would need to backfill any tea breaks taken by that educator.
Are educators still able to take an hour’s lunch break?
Yes. However if the 30 minutes taken off the floor in accordance with the new regulation does not include their lunch break or part of it, then the service will need to backfill the time the educator is not working directly with children.
Am I required to document each person’s breaks throughout the day?
No. A service is currently not required to document each time an educator is not working directly with children. However, page 100 of ACECQA’s Guide to the Education and Care National Law and Regulations suggests an approved provider in order to meet their staff record requirements (e.g. regulation 151) may wish to have a sign in/sign out register, staff roster or time sheet. The record should note the hours that each educator works directly with children and should exclude time spent off the floor for breaks, programming and preparation.
Over the lunch periods would I need to cover qualified educators with another qualified?
Not necessarily. If the qualified educator is taking a lunch break that is counted in the 30 minutes, remains on the premises and is immediately available if required then that educator is still counted in the educator to child ratios and their position does not need to be backfilled. However for any time in addition to the 30 minutes the educator takes off the floor they will need to be backfilled. When backfilling an educator a service must ensure the qualification requirements under section 169(2) and (4) are maintained and a service maintains its qualification ratio requirements under regulation 126.
And would I need to replace my ECT over a lunch break with another ECT?
Regulation 123(3) and (4) provides that if a service is required to have an ECT in attendance or access to an ECT as required under Division 5, that teacher can be counted as an educator at the service for the purposes of calculating educator to child ratio requirements if the ECT is working directly with children.
Accordingly, if your ECT is being used to satisfy the required educator to child ratios under regulation 123 and they have already taken 30 minutes off the floor without being backfilled (in accordance with the new regulation) then yes any additional time they have off the floor will need to be backfilled. However the service may only need to backfill the ECT with a diploma qualified educator. A service must ensure they continue to meet their ECT obligations under regulations 129 to 134 and their qualification ratio requirements under regulation 126 at all times.
Is there still a nominated lunch period (3 hours)?
No. From 1 August 2015 there will no longer be a specific period of the day defined as the ‘lunch period’.
Do I need to maintain the 50/50 ratio requirement whilst educators are taking a break or having lunch?
Services are required to meet the minimum qualification ratio requirements prescribed in regulation 126 at all times. If a diploma qualified educator is on a short break in accordance with the new regulation they do not need to be backfilled as the service will be taken as meeting the qualification ratios under regulation 126 as the educator is counted in the educator to child ratio requirements.
Can I apply for a waiver for this?
Regulations 41 and 44 prescribe what elements a service may apply to the Regulatory Authority for a waiver from compliance. Regulation 122 cannot be waived.
If I am a non-contact director, can I be used as cover over the lunch period? Can I still stay in the office or do I need to be on the floor?
There will no longer be a designated lunch period. If an educator is on a short break in accordance with the new regulation they do not need to be backfilled. If an educator is off site or has longer than 30 minutes off the floor in a day, then a non-contact director (as long as they meet the qualification requirements under regulation 126) can cover that educator but will need to be on the floor working directly with children to be counted in the ratios under regulation 123.
The minimum qualification ratio requirements prescribed in regulation 126 will also need to be maintained at all times.
ACECQA website: http://www.acecqa.gov.au