Eminem Kids Academy Pty Ltd v Secretary, Department of Education

Eminem Kids Academy Pty Ltd v Secretary, Department of Education - [2023] NSWCATAD 49 - NSWCATAD 2022 case summary — Zoe

[4]

National Law

The National Law establishes a 'national education and care services quality framework for the delivery of education and care services to children': National Law, s 3(1).
The objectives of the National Law, as stated in section 3(2), are: 3 Objectives and guiding principles … (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.
The guiding principles of the national education and care services quality framework, as stated in s 3(3), are as follows - (3) ... (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.
A person, which includes a body corporate, may apply to the Secretary of the Department of Education for provider approval. The Secretary may grant or refuse to grant provider approval. It is necessary that the Secretary is satisfied that the applicant for provider approval is fit and proper to be involved in the provision of an education and care service: National Law, s 15(2).
An applicant who is a body corporate (like the Applicant) must satisfy the Department that each person who has management or control of an education and care service to be operated by the applicant is a fit and proper person to be involved in the provision of an education and care service, and the applicant is a fit and proper person to be involved in the provision of an education and care service: National Law, s 12(2).
When a provider approval has been granted, an approved provider may apply to the Department for a service approval for an education and care service. The approved provider has personal responsibility for, and overall management and control of, an education and care service.
Section 19 of the National Law stipulates that a provider approval may be granted subject to conditions set out in the Regulations or as are determined by the Department. All provider approvals are subject to the condition that the approved provider must comply with the National Law.
Any entity that has functions under the National Law is to have regard to the objects and guiding principles set out above: DAM v NSW Department of Education and Communities [2017] NSWCATAD 175.
The National Quality Framework ('the NQF') provides a national approach to regulation, assessment and quality improvement for early childhood education and care and outside school hours care services across Australia. The NQF sets a national benchmark for education and care services. The NQF includes the National Quality Standard ('NQS') which has seven Quality Areas, being: 1. Educational program and practice, 2. Children's health and safety, 3. Physical environment, 4. Staffing arrangements, 5. Relationships with children, 6. Collaborative partnerships with families and communities, and 7. Governance and Leadership.
All long day care services, preschools/kindergartens, family day care services and outside school hours care services approved to operate under NQF are assessed and rated against the NQS. The quality rating process is a comprehensive system of assessing and rating the quality of education and care services around Australia. There are five ratings which a service may be given: Excellent, Exceeding National Quality Standard, Meeting National Quality Standard, Working Towards National Quality Standard and Significant Improvement Required. Services are given an overall rating and a rating in respect of each Quality Area.
The Department of Education is responsible for conducting the assessment and rating of a service. An assessment and rating visit involves the assessment of the service against the National Quality Framework to determine how, and at what level, the seven Quality Areas, which are described in further detail below, are being met at the service.
An assessment and rating of a service involves consideration of the compliance history of the service and previous and current practices against the National Quality Standard to provide a snapshot of the quality of a service during the visit. In contrast to an assessment and rating visit, a compliance visit is conducted to maintain contact with services and assess compliance with the National Law and National Regulations outside of assessment and rating. A compliance visit can be undertaken in response to the Department receiving information that a service may not be complying with the National Law and National Regulations. This may be through the receipt of complaints made directly to the Department, notifications being made by a service including that of a serious incident having occurred, or because of previously identified non-compliance.
A compliance visit is usually conducted unannounced, although an announced compliance visit may be conducted under certain circumstances. At an assessment and rating visit, the purpose is to assess a service's quality, whereas a compliance visit is undertaken for the purpose of reviewing a service's compliance with the National Law and National Regulations. Authorised officers may undertake a number of different steps as part of a compliance visit depending on the information that has been received and the conduct being investigated. This can include authorised officers undertaking surveillance of a service to observe the work of educators or the attendance patterns of children, or attending the service unannounced to speak with educators at the premises. Authorised officers may also request specific documentation including policies and procedures, enrolment and staffing documents and documents relating to the service's services compliance with the National Law and National Regulations.
There are occasions during assessment and rating visits when an authorised officer will gather evidence that substantiates that there have been breaches of the National Law and/or National Regulations. The actions then taken will depend upon the nature of the breaches and the perceived risk to the children in the care of the service. Any non-compliance that is identified during an assessment and rating visit is recorded in the assessment and rating records and forms part of the compliance history of the service and may inform how the Department determines future investigations into the service.
Section 31 of the National Law sets out the following grounds for cancellation of a provider approval: 31 Grounds for cancellation of provider approval The Regulatory Authority may cancel a provider approval if - (a) the Regulatory Authority is satisfied that the approved provider or a person with management or control of an education and care service operated by the approved provider is not a fit and proper person to be involved in the provision of an education and care service; or (b) the Regulatory Authority is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider; or (c) the approved provider has been found guilty of an indictable offence or an offence that if committed in this jurisdiction would be an indictable offence; or (d) the approved provider has been found guilty of an offence under this Law as applying in any participating jurisdiction; or (e) the approved provider has breached a condition of the provider approval; or (f) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension).
The decision to cancel provider approval is a discretionary one: DCB v Secretary of the Department of Education NSW [2017] NSWCATAD 189 at [21].

[5]

Guide to the National Quality Framework

The Australian Children's Education and Care Quality Authority (ACECQA) is established under section 224 of the National Law and its 'Guide to the National Quality Framework' (the Guide) gives guidance as to how the Department should properly exercise its powers under the National Law.
Although the Guide does not have legislative force under the National Law, it provides the relevant context in which to consider the appropriateness of the Department's regulatory response in cancelling a provider approval.
The Guide identifies, at pp 595-596, a number of "best practice regulation principles" which include: "2. Proportionality and efficiency … The scope and nature of the regulatory measures should match the benefits that may be achieved, by improving outcomes for children or families, or reducing risk to them. … 3. Responsiveness and flexibility Regulatory authorities should be responsive and flexible by: - considering the full range of options available to them - tailoring their approach to account for the circumstances of each individual case …"
The Guide also sets out, at p 598, the Ayres and Braithwaite enforcement pyramid, as a diagrammatic representation of regulatory practice with tiers of different regulatory responses identified - educate, direct and deter, restrict, and suspend or cancel - and the appropriate circumstances in which to deploy them.
The enforcement pyramid considers the suspension or cancellation of the provider or service approval to be the most severe response, and only appropriate where the approved provider is unwilling to change its conduct and to address any issues of non-compliance.
According to the Guide, at p 550: "Cancellations are the top of the pyramid. Usually, cancellation would be the final course of action, after a graduated moving up the regulatory pyramid, depending on the willingness and ability of the provider to comply and seriousness of the offence. Along with prosecution, cancelling a provider approval is a severe way to address non-compliance at the service level. …"

[6]

Conditions on a provider approval

The Department of Education and, on review, this Tribunal, has the power to impose conditions on a provider approval in accordance with ss 19 and 31 of the National Law.
Section 19 of the National Law states that: 19 Conditions on provider approval (1) A provider approval may be granted subject to any conditions that are prescribed in the national regulations or that are determined by the Regulatory Authority. (2) Without limiting subsection (1), a provider approval is subject to the condition that the approved provider must comply with this Law. (3) A condition of a provider approval applies to the provider as the operator of any education and care service or associated children's service, unless the condition expressly provides otherwise. (4) An approved provider must comply with the conditions of the provider approval.
Section 31 of the National Law provides that the Regulatory Authority may cancel a provider approval if: 31 Grounds for cancellation of provider approval … (a) the Regulatory Authority is satisfied that the approved provider or a person with management or control of an education and care service operated by the approved provider is not a fit and proper person to be involved in the provision of an education and care service; or (b) the Regulatory Authority is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider; or (c) the approved provider has been found guilty of an indictable offence or an offence that if committed in this jurisdiction would be an indictable offence; or (d) the approved provider has been found guilty of an offence under this Law as applying in any participating jurisdiction; or (e) the approved provider has breached a condition of the provider approval; or (f) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension).
The Department and, on review, this Tribunal may amend a provider approval at any time without an application from the approved provider. Such an amendment may vary a condition of the provider approval or impose a new condition on the provider approval: National Law, s 22.

[10]

Is it necessary for the Tribunal to determine each contravention alleged by the the Respondent and contested by the Applicant?

As set out above, section 31(e) and section 33 of the National Law empower the Secretary of the Department of Education to cancel a provider approval if the approved provider has breached a condition of the provider approval. The decision under section 33 to cancel the provider approval is a reviewable decision for external review pursuant to section 192(b)(ii) of the National Law and, under its general review jurisdiction, the Tribunal has the power to review this decision.
In doing so, the Tribunal must determine what is the correct and preferable decision having regard to the material before it: DBU at [24]-[26])
The Tribunal is not confined to the material before the original decision maker or the reasons identified in the decision under review: Two Cubed Pty Ltd v Secretary of the Department of Education NSW [2019] NSWCATAD 122 at [28], [41], [87].
There is no onus of proof upon either party: Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 at [32]-[38].
There is nothing in the powers given to the Tribunal in the National Law that mandates the Tribunal to make a separate finding on each alleged breach of a condition of the provider approval granted to the Applicant. A single breach of the condition of the provider approval is enough to empower the Respondent to cancel a provider approval, a decision the Tribunal can then review under its general review jurisdiction.
It is the Tribunal's task simply to determine the correct and preferable decision having regard to the material before it and, having done so, to confirm or amend the decision under review, or substitute another decision for the decision under review.
In order to properly consider the material before us, however, and determine the extent of any non-compliance by the Applicant, we have decided to consider all the breaches in this case and to make separate findings in relation to those breaches that are contested.

[13]

Breach 2 - Failure to notify of complaint within prescribed time (12-26 April 2017)

The Respondent alleges that the Applicant failed to notify of a complaint within the prescribed time: National Law, s 174; National Regulations, reg 176.
The complaint in question, made on 12 April 2017, was that the safety of the children attending school vacation care offered by the Applicant had been compromised due to inadequate seating on the bus used to transport the children to and from an excursion.
According to the complaint description contained on file: "The journey to the excursion involved 2 minibus trips for 2 groups of children however on the return journey from the excursion only one minibus was used to transport all the children and there were children sitting on the floor of the bus in the return journey. The parent is concerned about the safety of the children during the return excursion bus trip. The parent asked the coordinator about this and the coordinator agreed it was a bad idea squeezing all the children into one bus. The coordinator told the parent she would pass this information to the owner of the. service. The excursion occurred on the 12th of April 2017. The parent is unaware of the number of children in the bus apart from being told by her two children that they sat on the floor of the bus on the return journey from the excursion."
Ms Delialioglu gave evidence that she had not been made aware of the complaint, therefore had nothing to notify. When informed of the complaint, she stated that 'we carried out two bus trips on the way to our destination and two trips back to our service in order to accommodate for the number of children we had attending that day.'
Ms Delialioglu further stated that: "We were not aware that a complaint had been made until the investigating officer informed us when she came to our service on 17 May 2017… It is alleged that the safety and well-being of children had been compromised which is not at all accurate. On the 12 April 2017 we had an excursion to watch a movie at Reading Cinema in Auburn. We did two bus runs to and from the destination in order to accommodate for the number of children we had attending on that day... We believe the parent was a little upset when she was given her fee total as it was a little higher than what she was anticipating. Her fees remain unpaid for the period of care we provided during the April School Holiday period."
The complaint was considered by the the Respondent and it was determined that the service had taken appropriate action and that no further action was required.
Given that the parent who made the complaint did not provide a statement and did not give oral evidence, on the evidence before us, we cannot be satisfied that this breach occurred.

[15]

Breach 4 - Mary Street premises not safe, clean and in good repair (17 May 2017)

The Respondent alleged that the Mary Street premises were unsafe, unclean and not in good repair because artificial grass in the outdoor play area was torn and presented a tripping hazard: National Regulations, reg 103.
Ms Delialioglu stated that the soft fall areas had been temporarily covered with rubber mats until repairs were able to be carried out and that an inspection had been booked for the repairs.
It is not in dispute that the Mary Street premises have now been extensively renovated.
In her written evidence, Ms Delialioglu states that she has spent $300,000.00 refurbishing the Mary Street service and that the refurbishments have: "… gone above and beyond rectifying the deficits identified by the Department, implementing a total refurbishment and revitalisation of the Mary Street service. This refurbishment included discarding all old equipment and furniture and buying new equipment and furniture so that the service is clean, safe and has a fresh new look."
According to Ms Delialioglu - and supplemented with photographs to document her claims - the renovations and refurbishments to the Mary Street service include: 1. replacement of the entire roof; 2. removal of two large trees which roots were causing raised flooring in the outdoor play; 3. replacement of shade cloth in the outdoor play area; 4. removal of the outdoor pond and its replacement with synthetic grass; 5. refurbishment and transformation of outdoor undercover area where pigeons were making a home, including the installation of new roofing; 6. the levelling out of ground in an additional part of the outdoor area in preparation for more synthetic grass.
The Respondent does not dispute that the refurbishment has taken place, that substantial resources were spent, that some of the hazards identified were in areas of the service not accessible to the children and that the breaches have now been addressed by the Applicant. The Respondent is, however, concerned by the time taken by the Applicant to make the rectifications, given the concerns were first raised in 2017 but were not addressed until the show cause notice in 2022.
In early 2022, Ms Delialioglu invited the authorised officers of the Department to 'visit the Mary Street service in order to witness the renovation work which has been undertaken and which continues to be undertaken.'
At the time of these proceedings, authorised officers of the Department had not taken up Ms Delialioglu's invitation to visit the Mary St Service. According to counsel for the Respondent, this was because: 1. the Department does not make visits to services that are not operating; and 2. there was no time before the hearing to make the visit.
We note the Respondent's concern that the Applicant failed to address these concerns in a timely manner and accept, on the basis of photographs contained on file, that the synthetic grass does appear to present a trip hazard.
In the absence of evidence to the contrary, we accept Ms Delialioglu's oral and written evidence that all these concerns have now been addressed given the extensive renovation that has been completed for the Mary Street service.

[16]

Breach 5 - Failure to ensure children did not exceed the maximum at the Mary Street service (5 January 2021 - 12 July 2021)

The Respondent alleges that on various dates in 2021, the Applicant exceeded its cap of 37 children at the Mary Street service - in some cases by 21 children - and that this allegation was based on information provided to the Department by the Commonwealth Department of Education, Skills and Employment (DESE), contrary to National Law, s 51(4A).
Ms Delialioglu denies the Applicant exceeded the cap on enrolments, noting that 'it would be physically impossible for the Mary Street service to accommodate an additional 21 children over and above the cap.'
According to Ms Delialioglu, the allegation arose due to computer software problems, namely the interaction between 'Xplor, the child care software program used by the Applicant, and the submission of absences to the Commonwealth's Child Care Subsidy System (CCSS). Ms Delialioglu explains any discrepancies as being the result of a technological glitch between the data compiled by the Applicant and that provided to the Department through its Xplor software database.
According to Ms Delialioglu: "During the Winter Holiday Period, regular children were booked for their regular places, but some of them were absent. Due to it being school holidays there were a large number of children whose parents did not have a regular booking but who wanted to place their children in education and care (vacation care) with the Applicant should a vacancy become available. In taking up a place (where another regular child was absent), these children were also booked into care leading to it appearing from the numbers of bookings in Xplor that more than 37 children were "booked". It is correct than more than 37 children would have been "booked" on particularly high demand days, however, this does not mean that more than 37 children actually attended education and care because some of the booked children were actually absent. I, and my staff, continually communicate with parents regarding upcoming absences from the services as a matter of our day to day communication, and also to continually assess upcoming vacancies in the services. This means that we are able to contact those parents who are waiting for a day of care to become available and to book their children in, particularly for vacation care."
In oral evidence, Ms Delialioglu confirmed that during the COVID time of lockdowns and restrictions: "[The Child Care Subsidy] was mostly for vacation care, because schools were in lockdown and that's why we had more bookings and parents working from home. Parents needed to work and wanted children to come to the centre due to vacation care."
In evidence before us are paper classroom rolls for the Mary Street service between 28 June 2021 and 2 July 2021 and between 5 July 2021 and 9 July 2021.
According to Ms Delialioglu's written evidence: "… both include a roll for the children 2-5 and the other is for vacation care for the children aged from 5-12 years. As you can see from those days, the total number of children marked on the paper roll does not exceed the limit of 37 children contrary to what is alleged by the Respondent and DESE for some of those days… To give an example the size of the disparity, on the 6 days of the 05,06,07,08,09 and 12 July 2021, there were 72 absences recorded in our records. This was correctly recorded in Xplor as is evident in the July summary Report and the classroom rolls. DESE however has claimed that.in the 6 days of the 05, 06, 07, 08, 09 and 12 July 2021 there were only 2 absences. This is an extreme disparity. As such, when absences were input for the days of 05,06,07,08,09 and 12 July 2021, the input was recorded on Xplor, however not processed and thus not correctly reported to DESE."
Ms Delialioglu gave evidence that after speaking to a representative from Xplor, she understood that any variation to attendance status outside of the required time frame had to be manually submitted to ensure the material was provided to the Commonwealth Government.
Ms Delialioglu conceded that discrepancies remained between the Child Care Subsidy records and the attendance records for a number of days in June and July 2021. She has provided evidence that these issues have now been addressed and that the Respondent has been advised of the correct number of absences for the relevant days.
On the evidence before us, we are satisfied that the discrepancies between actual absences at the services and those absences initially reported to the Department can be explained by problems with the new Xplor software being used by the services, compounded by the pressures and challenges of Covid. On the evidence before us, we are satisfied that proper processes are now in place so as to prevent reporting issues in the future.

[17]

Breach 6 - Provision of false and misleading information to the Commonwealth government (January - July 2021)

The Respondent alleges that the Applicant provided false and/or misleading information in connection with attendance records by: 1. the provision of information contrary to that given to the Commonwealth Government; and/or 2. the provision of information about discrepancies and errors having been investigated and rectified.
According to the Respondent, this was also reflective of a failure in policies and procedures to do with (National Regulations, regs 168(2)(f), (l), 170(1)): 1. the delivery of children to, and collection of children from, the premises; and 2. the governance and management by the Applicant.
The allegations relate to a series of days in January, April and July 2021 where there are discrepancies between the numbers of children reported to the Commonwealth Government to have been absent and the number of children Ms Delialioglu had reported to the Respondent as absent.
As set out above, Ms Delialioglu denied having intentionally provided false information to the Department, stating that the errors were unintentional and explained by a series of factors, including: 1. issues with the use of new software, Xplor; 2. parental errors when signing in children - in particular, by signing all children in rather than only the children attending the service on that day; 3. the pressures and challenges of Covid; and 4. Ms Delialioglu's own health issues.
What is not clear is whether, using the Xplor software, parents were able to inadvertently sign in all children, whether or not they were attending the service that day.
Ms Delialioglu expressed the view that some parents may have accidentally signed in all their children instead of one, by using the 'sign in all' button on the software. In contrast, Shadia Allam (Ms Allam), who has been employed as the service manager and a nominated supervisor at the Northcote Street service since February 2022, gave evidence that the new software system, Xplor, did not have a sign in all function and that parents had to separately sign in each of their children.
Contained on file are four affidavits from parents of children enrolled in the Applicant's services in which they stated that they have, on occasion, incorrectly signed in all of their children even when not all of them were attending the centre.
In her affidavit dated 16 May 2022, Hana Sawaid confirms that she had her three children attend the Mary Street service: "There were some instances where I signed in all 3 children during the vacation care period when only one or two would actually attend. [T]he COVID restrictions that were in place and the constant changes caused a lot of confusion for many of us, educators included. Emine [Delialioglu] addressed the errors I made when I sign in and ensured I only tap on the child that I'm dropping off and not all 3 if not all 3 are attending. I am aware of my obligations when having my children attend the service."
As set out above, further evidence was provided by Ms Delialioglu as to steps she has taken to ensure children's absences are correctly recorded. On 21 February 2022, Ms Allam, an experienced childcare worker, was employed as the service manager and a nominated supervisor at the Northcote Street service. Part of Ms Allam's role as service manager is to ensure that attendance records are recorded accurately. In conjunction with Ms Delialioglu, Paula West (Ms West) and Virginia Aghan (Ms Aghan), Ms Allam has developed a new method for monitoring and assisting parents as they sign in their children to ensure the sign in procedures are correctly used. This system involves a further checking of sign-in forms after the pick-up and early arrival rush has abated in the later afternoon. An Arabic-speaking educator has also been employed by the Applicant to better communicate with parents whose English is not proficient.
In oral evidence, Ms Delialioglu said that the Applicant had never come to the attention of the Commonwealth in relation to issues of subsidy. She also noted that the Commonwealth hasn't moved to take back any of the money.
Whilst the Respondent holds the view that the discrepancies and errors in the attendance rolls can only be explained by the Applicant either allowing attendance to exceed the cap or claiming subsidy for children who did not actually attend the service on the relevant days, on the evidence before us, we are unable to be satisfied that the Applicant knowingly did either of these things.
On the evidence before us, we are, instead, satisfied that the errors occurred as a result of changed circumstances brought on by: 1. the Covid pandemic, 2. inadequate monitoring of sign in and sign out procedures; 3. inadequate assistance available to parents with limited or no English skills; and 4. times of high traffic, particularly between 2:30pm and 4pm when many parents of under-school aged students would arrive to pick them up at the same time students for after-school care arrived and needed to be signed in.
Given that no action has been taken by the Commonwealth Government in relation to these discrepancies, and that the Commonwealth Government took no part in these proceedings, we cannot be satisfied, on the evidence before us, that Ms Delialioglu intentionally provided false and misleading information to the Commonwealth Government.
The number of errors made by the Applicant is, however, of concern to us. Whilst we are satisfied that the reporting errors have now been remediated, we retain concerns in relation to the Applicant's ability to manage the running of two services encompassing multiple types of care: before school, after school and vacation care for the school-aged children and long-care for babies and pre-schoolers.
For these reasons, whilst we cannot be satisfied that the Applicant engaged in false and misleading conduct, we are concerned by the combination of pre-school and school-aged children attending the services which, on the evidence set out above, explains how errors have been made in the attendance rolls kept by the Applicant.

[23]

Breach 15 - Failure to ensure record of educators: BI working at two locations at once. (October - November 2021)

The Respondent alleges that the Applicant failed to take reasonable steps to ensure accurate records were kept of educators working directly with children and their hours worked, namely that on four occasions (amongst the records reviewed) a responsible person was signed in at both the Mary Street and Northcote Street services at the same time: National Regulations, regs 151, 177(1)(h), (2).
The Respondent alleges that: "During the visit on 18 November 2021, the educator BI arrived at the service at 10.20am however has recorded her 'Shift start time' as 10.00..[A]ccording to the responsible person in charge record for the same day, [NI] commenced in this position at 07.00. During the visit on 25 November 2021, responsible person, [FS] l advised she had left the service that morning at 8:31am to get a glue stick from Eminem Kids Academy located at 59 Mary Street Auburn. [FS] was not sure of the exact time she returned to the service. Upon review of the working directly with children record, the authorised officer identified [FS] had signed into the record at 8:00am, however no sign out time has been recorded During the visit on 25 November 2021 the authorised officer reviewed a sample of the working directly with children records. Upon the review, the authorised officer identified that responsible person [BI had signed into the working directly with children record on the same dates and times that she had signed into the working directly with children record for Eminem Kids Academy located at 59 Mary Street Auburn on the following occasions: - 2 November 2021 between 9:00am and 5:00pm - 13 October 2021 between 9:05am and 5:00pm - 12 October 2021 between 9:00am and 5:00pm - 19 October 2021 between 8:41am and 9:05pm The authorised officer contacted [BI] via telephone and asked why she was signed into both records at the same time. [BI] responded that she floats between the services so signs into both records."
The Applicant has admitted this breach and has counselled educators to ensure that sign-in records are accurate. The Applicant has also amended sign-in procedures to clearly identify the relevant responsible person at each service.
On the evidence before us, we are satisfied that this breach occurred.

[24]

Breach 16 - Failure to take reasonable steps to ensure the person in charge had adequate knowledge of education and care (from 17 or 18 November 2021)

The Respondent alleged that the Applicant failed to take reasonable steps to ensure that the educator in charge had adequate knowledge and understanding of the provision of education and care to children and an ability to effectively supervise and manage the service: National Regulations, reg 117B(1). The Respondent alleges that the educator in charge was not able to answer questions from authorised officers and that while the non-compliance issues were attributed to this educator's inexperience, she continued to be placed in day-to-day charge.
According to the Respondent, this was also reflective of a failure in policies and procedures to do with staffing and governance and management: National Regulations, regs 168(2)(i), 168(2)(l), 170(1).
Ms Delialioglu has admitted this breach, explaining that whilst she would normally be the person in charge at the service, she underwent dental bone marrow surgery between 11 and 28 November 2021 and was unable to return to work until 7 December 2021.
In accepting that the two educators in question did not have the requisite knowledge of education and care, Ms Delialioglu details the difficulty in finding staff during this period of Covid restrictions. Many staff members did not wish to be vaccinated which meant they could not work in the services while Ms Delialioglu's dental concerns meant she could not attend the service during the relevant period. We accept Ms Delialioglu's evidence that these two educators are no longer employed by the Applicant. We also accept her evidence that the following measures have since been introduced to ensure that educators in charge have adequate knowledge of education and care: 1. Ms Delialoglu is on the roster as the educator in charge; 2. A responsible person template has been formulated to ensure educators placed in day-to-day charge are competent; 3. Monthly evaluations, appraisals and continuing professional development and training have been undertaken to ensure educators in charge have adequate knowledge and understanding of the provision of education and care to children and an ability to effectively supervise and manage an education and care service.
We are satisfied that these breaches occurred during an extraordinary time in the world's history, namely during the period of extensive restrictions due to Covid, which resulted in substantial staff losses and absences. The breaches also coincided with Ms Delialioglu's dental treatment which required her to be absent from the services. We accept that the Applicant has since addressed these concerns, as set out above.

[28]

Breach 20 - Harms and hazards at the Mary Street service (17-18 November 2021)

The Respondent alleges that the Applicant failed to ensure every reasonable precaution was taken at the Mary Street service to protect children from harm and hazards likely to cause injury (National Law, s 167(1)) because: 1. items and uneven surfaces posed tripping hazards; 2. stacked items posed crushing hazards; 3. access was available to a power point and a power cord; 4. danger was posed by a pond in the outdoor area; 5. a timber cupboard was unstable and splitting, exposing nails; and 6. there was a build up of animal faeces on ground.
On the photographic evidence before us, we are satisfied that as at the 17 and 18 November 2021, the outside area of the Mary Street service did pose a tripping hazard, given the condition of the artificial grass and the logs placed in the sand.
On the basis of photographs contained on file, we accept that power points were left exposed by not having safety points. We accept there were bird faeces and some water pooling in areas of the Mary Street service that were not accessible to the children and that some of the service's rundown areas were accessible only to staff rather than to the children. We accept that the run-down state of some of the furniture at the service may have posed a cutting hazard to the children.
Some of these identified hazards have been conceded by the Applicant, including the bird faeces, the exposed power points and the general run-down state of the service premises and its furnishings.
For these reasons, we are satisfied that this breach occurred.
In February 2022, the Applicant voluntarily suspended the service approval for the Mary Street service to allow renovations to be undertaken.
We are satisfied that by undertaking a substantial renovation of the service, the Applicant is seeking to address the Department's concerns. Ms Delialioglu gave evidence that she 'would like the [Mary Street service] to be completely new and as such have discarded any resources or equipment that are old or worn.' She explained the delays to the project (which has now been completed): "I did engage builders earlier in 2021, however plans were interrupted by the lockdowns, as due to being in an LGA of concern, no building work was allowed to be undertaken. Furthermore, once building work was allowed again, it was very hard to get builders as they were so busy."
Last year, the Applicant invited the Department to view the changes made to the centre. The Respondent did not take up the Applicant's offer and at the time of this hearing, no-one from the Department had viewed the renovations.

[29]

Breach 21 - Mary Street not safe clear and in good repair (17- 18 November 2021) (Regulations, reg 103)

The Respondent alleges that Applicant failed to keep the Mary Street service safe, clean and in good repair (National Regulations, reg 103), because: 1. dirt and sand had built up; 2. paint was chipping; 3. the children's climbing frame had rusted; 4. the fence was damaged; 5. bikes were damaged; 6. the service's trolley had dirt and mould on it; and 7. animal faeces had built up on the ground.
According to the Respondent, this was also reflective of a failure of policies and procedures relating to providing children with a safe environment: National Regulations, regs 168(2)(h), 170(1).
Photographs contained on file show substantial amounts of bird faeces on a concrete floor furnished with a bare mattress and a sofa.
Ms Delialioglu gave evidence that at the time of the authorised visit, this area of the service was fenced off, giving the children no access to it. Since the visit, pigeons can no longer access the area as it has been covered up with gyprock. The bikes, which she denies were damaged or broken but simply a bit old, have been discarded. The artificial grass has been removed, the yellow climbing frame which had chipped paint in several locations has been discarded, the Colourbond fence is gone, and the plastic trolley has been discarded.
Ms Delialioglu admitted that there was a build-up of dirt in some places but denies a build-up of sand, as 'the service never had a sand pit.' Photographs on file do, however, reveal sandy parts of the outside area. In any case, Ms Delialioglu gave evidence the service's outside area has now been completely renovated.
According to Ms Delialioglu, there was no flaking paint in any areas of the service accessible to children. She gave evidence that the whole centre has been repainted.
On the evidence before us, we agree that the Mary Street service had become run down and that the artificial grass and the logs in the outside area posed tripping hazards for the children. We agree that the area of the service with a build-up of bird faeces was unsightly and unhygienic and, even if not accessible to the children, should have been better maintained.
For these reasons, we are satisfied that this breach occurred.
We accept Ms Delialioglu's evidence that through the extensive renovations of the Mary Street service, all of the Respondent's concerns have now been addressed. The Respondent accepts that the service has been renovated and agrees that despite an invitation from the Applicant to view the renovations, no-one from the Department has visited the service to view the renovations.

[36]

Breach 28 - Failure to ensure staff advised of obligations under child protection law (17 November 2021)

The Respondent alleges that the Applicant failed to ensure that two of its staff members, NM and BI, were advised of their obligations under current child protection law, as neither staff member was able to demonstrate adequate knowledge when questioned by authorised officers: National Regulations, reg 84.
The Applicant denies this breach. Ms Delialioglu provided evidence that: 1. all staff have completed the Child Safe E Learning - Responding to Reportable Allegations course by NSW Government Office of Children's Guardian; 2. upon her induction in October 2021, staff member NM had been provided with a copy of the service's Child Protection Policy; 3. in May 2021, staff member NM was issued with a Diploma of Early Childhood Education and Care that included modules on child protection; 4. in November 2021, staff member NM was issued with a statement of attainment for her completion of the course 'Identity and respond to children and young people at risk'; 5. in March 2022, at a staff meeting for Eminem Kids Academy, reporting processes were discussed regarding child protection; 6. all staff also complete an annual Office of Children's Guardian child protection module through Evolution Learning.
Ms Delialioglu stated that whilst both staff members were aware of child protection laws and policy, they became very nervous during the authorised visit and, given they each speak English as a second language, may have misunderstood some of the questions posed by the authorised officers.
We accept that some of the educators, whose first language is not English, may have experienced problems answering questions by the authorised officers during the relevant compliance visits.
We accept the evidence of Ms Delialioglu that educators were aware of child protection obligations but were nervous during the meeting. In any case, we are satisfied that further training has since been completed by the educators.
On the evidence before us, we are not satisfied that this breach occurred.

[38]

Breach 30 - Failure to take every reasonable precaution to protect from harm due to inability to access children enrolment records (18 November 2021)

The Respondent alleges that the Applicant failed to ensure every reasonable precaution is taken to protect children from harm, because educators NM and BI were unable to access children's enrolment records during an authorised visit to the Mary Street service on 18 November 2021: National Law, s 167(1).
Ms Delialioglu gave evidence that the requested enrolment records were provided on 19 November 2021 and denied the allegation that educators were unable to access the children's enrolment records, stating: "[E]ducators are able to access all enrolments and records and have received video training as well as face to face training. This gives them access to emergency records, authorisations any court orders, parenting orders or parenting plans, consent forms to seek medical treatment for the child from a registered medical practitioner, hospital or ambulance service and transportation of the child by an ambulance service. [It also gives] access to the details of any specific healthcare needs of the child, including any medical condition; and allergies or whether the child has been diagnosed as at risk of anaphylaxis. Educators are able to access the details of any dietary restrictions for the child as well as immunisation records. [The] children's records and enrolments are in Xplor. Every single staff member has access to these records on the Ipads. It can however be complicated to run a session report, transfer it to Excel and print it. It requires a knowledge of how to use Excel. The current Manager of the Northcote Street Service is very proficient at using Excel, and has taught a number of other team members how to do so."
It is not disputed that Ms Delialoglu was on sick leave during the authorised visit on 17 November 2021. Had she been well enough to attend the visit, we are satisfied she would have been able to locate the relevant enrolment records. We accept Ms Delialioglu's evidence that a digital copy of the records was accessible to all staff members but that printing the records required a more technical knowledge of the Excel program. We accept Ms Delialioglu's evidence that the current manager of the Northcote Street service is technically proficient at the Excel software and has been assisting other staff members with this.
On the evidence before us, we accept that staff members NM and BI were unable to show the requested enrolment records to the authorised officers of 17 November 2021. On this basis, we are satisfied that the breach is made out. We note that these educators are no longer employed by the Applicant and are satisfied that the new current manager is able to access all enrolment records and available to assist other employees to also access them.

[45]

Breach 37 - Harm and hazard at Northcote Street, including foam on the floor and paper pictures on the wall (18 November 2021)

The Respondent alleges that the Applicant failed to ensure every reasonable precaution was taken at the Northcote Street service to protect children from harm and hazard likely to cause injury (National Law, s 167(1)), because: 1. foam on floor presented a risk of ingestion; 2. paper pictures accessible on walls presented a risk of ingestion; 3. a worm farm against a fence presented a risk of children climbing the fence; and 4. a bottle of disinfectant, left on a window sill in the children's bathroom above a toilet, was accessible to children who climbed onto the toilet.
Ms Delialioglu gave evidence that the foam had been removed and the paper pictures had been taken from the wall.
According to Ms Delialioglu, the disinfectant in question was actually diluted vinegar. She gave evidence that all bottles containing liquids have now been labelled with the contents and are stored on a high shelf in the laundry room which is not accessible to children.
Ms Delialioglu denied that the worm farm at the Northcote Street service presented a risk to children: "There is no risk to children in relation to this item. I contest the allegation that the worm farm being against the fence would have given a child an opportunity to scale the fence. The fence in question was the front fence and at the time of the monitoring visit the fence was approximately 1.8 metres high. The worm farm was only approximately 30cm high and therefore, even if a child stood on the worm farm, there would still have been around 1.5m of fencing above the child. As an adult, I do not believe that I would have been able to get over the fence by standing on the worm farm. Nevertheless, in order to address the Respondent's concerns, the worm farm has been removed and there is no risk to children in relation to this item."
On the evidence before us, we are satisfied that the exposed foam and the paper drawings presented a risk of injection. In the light of Ms Delialioglu's evidence, we are not satisfied the worm farm presented a climbing hazard, nor that the position of the bottle of vinegar presented a risk of harm.
On the evidence before us, we are satisfied that the risks identified by the Respondent have all been addressed by the Applicant.

[46]

Breach 38 - Failure to ensure minimum prescribed number of educators (18 November 2021)

The Respondent alleges that the Applicant failed to ensure the prescribed number of educators at the Northcote Street service (National Law, s 169(1); Regulations, regs 123, 271), because, during their visit on 18 November 2021, authorised officers observed 2 educators in the 0-3 year old room with 14 children, and 1 educator in the 3-5 year old room with 12 children. In those circumstances at least 4 educators were required; and 2 educators were required in the 3-5 year old room, under National Regulations, reg 123(1)(c).
Whilst it does not admit to the breach, the Applicant does not dispute that ratios may not have been adhered to on 18 November 2021.
In her written evidence, Ms Delialioglu declared that: "Under normal circumstances I attend at both the Mary Street and the Northcote Street services every day. As an approved provider with some 22 years' experience, and as the holder of a Bachelor of Teaching degree (amongst other qualifications) I am acutely aware of the requirements for educator to child ratios to be maintained in accordance with the National Law and National Regulations at all times…[I]t is possible that Northcote was out of ratio for part of the day on 18 November 2021, but I do not currently admit this as it is possible to combine age groups for the purposes of these ratios. I need to undertake an analysis of the dates of birth for the children in attendance and consider whether the service was out of ratio for part of the day. There is no current risk arising out of this issue as I am now in daily attendance at Northcote and I have a new nominated supervisor, Shadia Allam who is also in attendance at Northcote every day. She holds a Certificate III in Education and Care and is working towards her diploma. Shadia Allam began her employment with me on 21 February 2022 having previously worked in childcare for a combined total of 10 years. She is an experienced educator and fully aware of the educator to child ratio requirements. An additional benefit of having Shadia Allam working for the service is that she is an Arabic speaker and she is easily able to communicate with parents and explain the importance of accurate signing in and out times and so on."
We accept Ms Delialioglu's evidence that a notice is now displayed at the Northcote Street service showing the necessary educator to child ratios. It is not disputed that educators undertake attendance and ratio checks every hour and provide records of those attendance checks to the Department by 10 am the following day, in accordance with the conditions imposed on 5 April 2022 as part of the temporary stay order.
On the evidence before us, we are satisfied that the Applicant breached its required educator student ratios on 18 November 2021. We are also satisfied that the Applicant has since introduced those measures described above that, we agree, are instrumental in ensuring that educator to child ratios are not further breached.

[48]

Breach 40 - Failure to ensure emergency and evacuation procedures are undertaken every three months at Northcote Street (18 November 2021)

The Respondent alleged that the Applicant failed to ensure that emergency and evacuation procedures at the Northcote Street service were rehearsed every 3 months and documented: National Regulations, reg 97(3). According to records on file: 1. fire evacuation rehearsals were held in February, May and September 2021; and 2. lockdown rehearsals were held in September 2021.
In admitting this breach, Ms Delialioglu provided the following explanation: "I admit that we should have held a fire evacuation rehearsal and lockdown rehearsal in August 2021. Ordinarily, Emergency Evacuation procedures are systematically carried out…2021 was an anomalous year, particularly in the second half of the year in which there was no fire evacuation rehearsals nor Emergency and Evacuation procedures between 11 May 2021 and the Department's visits in November. Fire evacuation rehearsals and lockdown rehearsals have since been conducted and take place every three months. The reason why we forgot to conduct the fire evacuation rehearsal and lockdown rehearsal in August 2021 was because due to the lockdowns we had very limited children attending. Due to Cumberland Council being classified as an LGA [Local Government Area] of concern, children were only allowed to attend childcare if their parents were essential workers. As such, around that time there were very few, and sometimes no children attending the service. Everyone was very scared of Covid, and unfortunately during this time my whole focus was on ensuring that the service was Covid safe and on ensuring that the service observed the continuously changing government directives. With all this on my plate and the plate of my employees, regretfully we forgot to conduct the required rehearsals. The Department's evidence states that fire evacuation rehearsals were conducted on 2 February 2021, May 2021, and 22 September. The latter rehearsal was one month late due to the Covid-19 situation in September 2021. There was a further rehearsal on 17 November 2021 and so the rehearsals did take place 4 times during the year of 2021. In September 2021 there were very few, and sometimes no children attending the service due to Covid-19 and Auburn being an LGA of concern. The police and the army were on the streets in Auburn around this time. The evidence shows that we do systemically rehearse for emergency evacuations."
Documents on file confirm Ms Delialioglu's evidence that in December 2020, the Northcote Street service was assessed and rated by the Department as meeting the National Quality Standard in all areas, including in carrying out these rehearsals. Emergency evacuation records for 2019 and 2020 confirm Ms Delialioglu's evidence that the required rehearsals were undertaken in accordance with the National Law.
Although the Applicant failed to ensure that emergency and evacuation procedures at the Northcote Street service were rehearsed every 3 months in 2021, we accept Ms Delialioglu's evidence that 2021 was an anomalous year and are satisfied that in 2019 and 2020 the procedures were held in accordance with the requirements of the National Law.

[58]

Breach 50 - Failure to ensure displayed menu accurately reflects food consumed by some children (18 November 2021)

The Respondent alleges that the Applicant failed to ensure that the displayed menu accurately describes food at the Northcote Street service, because the authorised officers identified that the food was different to the meals some children were eating: National Regulations, reg 80(1).
On the evidence before us - including photographs of the menu in question and evidence by Ms Delialioglu - we are satisfied that this breach occurred.
We accept Ms Delialioglu's evidence that: 1. the children attending the services bring their own food, with the Applicant only supplying food when families forget to pack it; 2. the menu has now been taken down; and 3. parents have been reminded to bring morning tea, lunch and afternoon tea for their children, and a drink bottle with water in it.
Breach 51 - No water in 0-3 year old room (18 November 2021)The Respondent alleges that the Applicant failed to ensure access to safe drinking water at all times, because there was no water accessible in the 0-3 year old room during the compliance visit at the Northcote Street service: National Regulations, reg 78(1).
In response to this allegation, Ms Delialioglu explained that: "At the time of this visit it was felt that there was a risk to younger children by having water bottles accessible due to the fact that younger children sometimes pick up other children's water bottles and drink from them. Given the prevalence of Covid-19 in the area at this time, it was felt more appropriate to keep control of the water bottles. Currently, all children's water bottles are available for them to access at all times in their rooms. Attached to this affidavit and marked with the letter "N" is a photograph of the water station at Northcote showing the water bottles, and fresh water in a jug with clean cups next to those water bottles. There is no risk to children arising out of this issue."
Whilst we are satisfied that this breach occurred, we accept that evidence before us that: 1. children's water bottles are now available to access at all times in their room; 2. educators have been instructed to remind the children to regularly drink water; 3. if the child is under 2 years, then the educators will ensure they provide each child with water regularly throughout the day; and 4. children will always have water available to them or will be given water regularly throughout the day.

[61]

Breach 54- Failure to ensure responsible person present at all times (25 November 2021)

The Respondent alleges that the Applicant failed to ensure that a responsible person was present at all times, because the responsible person (FS) left the Northcote Street service on 25 November 2021 at 8:31am and 8:52am without recording return times: National Law, s 162(1).
The Applicant does not admit this breach. Ms Delialioglugave evidence that: "[i]t is possible that the responsible person, FS, did not sign back into the service. All educators would have been aware that they must sign in and out of the service. I was not present at the service at this time due to illness. However, I now attend at the service every day with [the office manager] and we continuously ask educators who arrive or leave the service "Have you signed in" or "Have you signed out"? I am monitoring this issue and coaching the educators about this very strongly. This issue will form part of the ongoing program of training we will be delivering to educators, and has always been covered during our induction process with new educators."
Ms Delialioglu has undertaken to ensure that: "there is a [r]esponsible [p]erson signed in and present for the whole day at the centre. Information on who the [r]esponsible [p]erson is at the service is, is displayed in the foyer."
Ms Delialioglu confirmed that: "[t]he approved provider has a written sign in and out record sheet everyday for all staff, including [r]esponsible [p]ersons, as well as the online sign in, so it is visually easy to verify by the [r]esponsible [p]erson/ [n]ominated [s]upervisor and the Approved Provider that ratios are being complied with."
On the evidence before us, whilst it would appear from the sign in records that the responsible person was absent from the service at some time on 25 November 2021 and that the breach occurred, we are satisfied that steps have now been taken by the Applicant to ensure that sign in records are kept accurately and that a responsible person is present at the service at all times.

[64]

Breach 57 - Failure to ensure staff aware of child protection policies (29 November 2021)

The Respondent alleges that the Applicant failed to ensure that staff at the Mary Street service were advised of obligations under current child protection law, because the educator NM could not demonstrate adequate knowledge when questioned by authorised officers: National Regulations, reg 84.
In denying this breach, Ms Delialioglu gave evidence that all staff members are advised of the child protection laws in their inductions. Contained on file is confirmation that the educator NM was introduced to the Child Protection policy during her induction on 10 October 2021.
It is not disputed that NM was awarded a Diploma of Early Childhood Education and Care on 3 May 2021 certifying that she had been assessed as having competently completed the unit titled 'Ensure the health and safety of children' among other similar units such as 'Identify and respond to children and young people at risk'.
Ms Delialioglu gave evidence that: "due to these qualifications as well as the training given to her at her induction, I believe that [NM] did have an awareness of child protection laws and I do not believe that a risk to children existed as a result of this issue. [NM] expressed to me that she was scared of the authorised officer. I believe that this may have impacted [her] ability to answer the authorised officers questions adequately…On 26 November 2021 we got [NM] to complete the Evolution Learning training titled 'Identify and respond to children and young people at risk'….All staff also complete an annual Office of Children's Guardian child protection module through Evolution Learning. This was last completed on 21 April 2021. Procedures have been changed so that now this is also completed by all new staff.. We have since reiterated to the staff their obligations under the current child protection law. This occurred informally, but also formally at our staff meeting on 16/03/2022 with Paula West…In addition to training provided by Paula West and training received by all educators as part of their required studies, with assistance from Virginia Aghan, I have, in past months, organised additional training for all employees."
Ms Delialioglu gave evidence that NM has trouble expressing herself in English which may explain why the authorised officers mistakenly formed the view that she was unaware of child protection policies
Ms Delialioglu also provided evidence that: 1. between Friday 13 May and Thursday 19 May 2022, she attended a number of professional development webinars with two other staff members. These were organised by the NSW Department of Education and Early Childhood Education as part of the Department of Education Road Show May 2022 and were entitled Medical Management Plans; Quality Support Program; Communicating with Families; Driving quality practice; Disability and Inclusion Program; Improving participation and outcomes for children in the year before school;and Compliance and Monitoring. 2. on 27 May 2022, she and two staff members also attended a Webinar organised by Communiy Early Learning Australia in partnership with the NSW Department of Education. In this Webinar, two authorised officers shared their expertise and unpacked the responsibilities of the Approved Provider in relation to understanding, management and prevention of serious incidents. 3. on 19 July 2022, she and two staff members attended a webinar titled 'Impact of Trauma Workshop delivered by Cumberland City Council, Children Youth & Families. 4. on 20 July 2022, she and two staff members completed Impact of Trauma Professional Development Training delivered by Child Australia. This course looks at how children's traumatic experiences impact their behaviour. 5. ll staff members (excluding FF who has currently only completed 4 modules) have completed Child Safe E Learning Course - Keeping Children safe in Organisations. This course is provided by the NSW Government Office of the Children's Guardian. 6. all staff have also completed the Child Safe E-Learning - Responding to Reportable Allegations course by NSW Government Office of Children's Guardian. 7. the service manager, SA, recently completed her Diploma of Early Childhood Education and Care.
On the evidence before us, we accept that the Applicant has taken substantial steps to ensure staff are aware of child protection policies. On this basis, we are not satisfied that the Applicant has been in breach of this requirement.

[67]

Breach 60 - Provision of false and misleading information in relation to the services of DJMIR Advisory Services (4 March 2022)

The Respondent alleges that the Applicant provided information that was false and/or misleading, because Ms Delialioglu advised authorised officers that the services of DJMIR Advisory Services Pty Ltd (DJMIR) were being utilised, when such services ceased on 25 February 2022: National Regulations, reg 191.
The Applicant denies this breach.
In response to evidence that a consultant from DJMIR had informed the Department that he was no longer working with Ms Delialiolgu, Ms Delialioglu expressed her shock: "… to hear during the monitoring visit … that DJMIR had previously notified that Department that they were no longer representing or working with me. I had not been notified that this was the case. I had not taken the DJMIR letter of 24 February as a termination of their engagement...I am still not clear what the status of the engagement is with DJMIR. On 29 March 2022, I received an email from David Morphett of DJMIR stating "Dear Emine, After thinking for some time about your situation I don't believe we are able to do anything with you that will address the Departments of Education's concerns. As I said to you over the phone, the mechanical issues of compliance within the service are easily addressed given some training and time however, the department's concerns about the organisations mishandling of CCS payments is the critical issue and not one I believe we will be able to resolve. The explanations provided by you to date over such a significant breach do not appear to have swayed them away from their current intention to pursue resolution of the "show just cause notice."… If DJMIR had terminated their arrangements with me in February, why are DJMIR still emailing me as late as 29 March."
In further written evidence, Ms Delialioglu maintained that: "… on 4 March 2022, I was still under the impression that [DJMIR] was still engaged to assist the Applicant. Nowhere in DJMIR's letter of 25 February 2022 does DJMIR explicitly state that services had ceased. My understanding of the letter of 25 February was that David had raised his concerns and was expecting a reply. I had paid $2,185 to become a member of DJMIR on 19 January (as well as a further $1,685.92 on 27 January 2022) and as such, without explicit communication of the ceasing of engagement, assumed that DJMIR was still engaged. It is clear that this was my impression in my letter to DJMIR dated 2 March 2022. If I had understood that DJMIR had ceased services I would not have wasted my time writing a letter back to them and would have engaged a new representative/advisor/solicitor straight away."
In her oral evidence, Ms Kanis, authorised officer for the Department, agreed that the role of a consultancy service like DJMIR is to provide additional support and processes. She explained that an authorised officer could only speak to a consultant if given direct approval to do so and clarified that the Respondent is not permitted to recommend one consultant over another. In re-examination, however, Ms Kanis stated that if a consultant were to contact her, she would take this into consideration.
It is, therefore, of concern to us that the letter sent by DJMIR to the Respondent was considered in its determination to cancel the provider approval of the Applicant.
We accept Ms Delialioglu's evidence that she was unaware that DJMIR had terminated their engagement with her. On the evidence before us, we accept that such a position was never made clear to Ms Delialioglu by DJMIR. For this reason, we cannot be satisfied that the Applicant provided false and misleading information in relation to the services of DJMIR Advisory Services. This breach has not been made out.

[68]

Breach 61 - Failure to record sign out times or staff breaks in the Working Directly with Children Register (27 April 2022)

The Respondent alleges that the Applicant failed to take reasonable steps to ensure accurate records were kept of educators working directly with children, because the Working Directly with Children Register did not record sign-out times for two educators, and no staff are recorded as taking breaks: National Regulations, regs 151, 177(2).
In her written evidence, Ms Delialioglu stated that: "Educators very often do not leave the education room for their break and as such often do not sign in and out of the Working Directly with Children Register when taking their break. Our kitchen is in the same room as the main education room and as such our educators often spend their entire break time within the education room. Often this will be during the quiet time of the day when the children are resting. Educators are welcome to leave the room and the centre for their break and when they do as such they are to sign out of the Working Directly with Children Register. As such no breach occurred as is alleged by the Department in relation to lunch breaks and the Working Directly with Children's Register. I admit that [one of the educators and I] inadvertently forgot to sign out of the Working Directly with Children Register on 27 April 2022. On that day, I recall that [we] were at the [s]ervice until 10pm that evening assembling new equipment. I believe that this was the reason that we both forgot to sign out."
In oral evidence, Ms Delialioglu agreed that staff sometimes made errors when signing in and out of the working directly with children register.
On the evidence before us, whilst we accept the breach occurred, we are satisfied that, given the layout of the centre, staff members took their breaks while remaining in view of the children. On this basis, we are not satisfied that the breach risked the safety of the children in the care of the Applicant.

[74]

Is the Tribunal satisfied that the Applicant is unwilling or unable to comply with the National Law and National Regulations?

As we have noted, the cancellation of a provider approval is a severe regulatory response and on the evidence before us, one that would only be appropriate in this case were we satisfied that the Applicant is, on an ongoing basis, unwilling or unable to comply with the National Law and National Regulations.
As set out above, the authorised visits relied on in these proceedings occurred between 2020 and 2022, a time in which the world was grappling with the COVID pandemic which placed enormous pressure on essential workers such as childcare operators and childcare workers.
From 23 March 2020, a series of COVID restrictions began in NSW, which included the temporary shutdown of non-essential activities and businesses. While schools remained open, parents were encouraged to keep their children at home. Face to face teaching for school students returned from 25 May 2020 with general restrictions easing from 1 July 2020.
On 19 August 2021, residents of greater Sydney were restricted to travelling within 5km of their homes and on 23 August 2021, a curfew from 9pm to 5am came into force in the twelve Local Government Areas of concern, which included Cumberland, where the Mary Street and Northcote Street services are located. On 11 October 2021, the lockdown was eased in greater Sydney.
It was an unprecedented time and the breaches of the National Law and the National Regulations must be considered in this context. Despite the difficulties of this period, which, apart from the severe lockdowns included vaccine hesitancy, widespread fear, a shortage of staff and a shortage of building materials and builders, the Applicant undertook an extensive and impressive program of remediation, including a comprehensive renovation of the Mary Street service to address the concerns of the Respondent.
In light of our earlier findings and having heard from Ms Delialioglu in these proceedings, we are satisfied that she has the capacity, intelligence and experience to run Eminem Kids Academy.
On the evidence before us, and as considered above, we are satisfied that Ms Delialioglu has an understanding of child protection law and that the Applicant provides documents and education to its educators to ensure they also understand their child protection obligations and responsibilities.
We accept the evidence of Ms Delialioglu that the Mary Street service has been completely refurnished in order to meet many of the concerns of the Respondent. It is not disputed that the Applicant extended an invitation to the Respondent to inspect the renovations but that the Respondent did not take up this offer.
On the evidence before us and in light of the work undertaken by the Applicant to address the Respondent's concerns, we cannot be satisfied that the Applicant is, on an ongoing basis, unwilling or unable to comply with the National Law and National Regulations.

[77]

Childcare assessment history

In the National Quality Standard Assessment and Rating Report dated 7 May 2015, the Applicant received a rating of Meeting National Quality Standard in three Quality Areas and a rating of Working Towards National Quality Standard in four Quality Areas. Overall, the Applicant was rated Working Towards National Quality Standard.
The report provided the following comments in relation to the Applicant: "Your service is acknowledged for its efforts to provide quality outcomes for children. The achievements in establishing and maintaining positive relationships with children are commended. It is recommended that the Quality Improvement Planning Notes throughout this report be used to update your service's Quality Improvement Plan and to prioritise plans for meeting the National Quality Standard. In particular, plan for enhanced outcomes in the area of educational program and practice, resources, materials and equipment."
Before us is a service approval document identified as Eminem Kids Academy - Service Approval No: SE-00007194. The document, which states that it was last updated on Tuesday 29 March 2022, confirms that the service approval for the Northcote Street service was granted on 25 September 2006.
The document states that the current overall NQS Rating for the Northcote Street service is 'Meeting NQS' , with the following individual ratings: "Quality Area 1: Meeting NQS Quality Area 2: Meeting NQS Quality Area 3: Meeting NQS Quality Area 4: Meeting NQS Quality Area 5: Meeting NQS Quality Area 6: Meeting NQS Quality Area 7: Meeting NQS"
The previous overall rating for the Northcote Street service, issued in April 2017, was 'Working Towards NQS,' with the following individual ratings: "Quality Area 1: Meeting NQS Quality Area 2: Meeting NQS Quality Area 3: Working Towards NQS Quality Area 4: Meeting NQS Quality Area 5: Meeting NQS Quality Area 6: Meeting NQS Quality Area 7: Meeting NQS"
A certificate contained on file and dated 16 December 2020 certifies that the Applicant has met the National Quality Standard, 'providing quality education and care in all seven quality areas.'

[80]

As an educator, this service is a rare find. An outdoor area next to the national park with a very engaging and enriched environment for the kids to play. My favourite aspect of this facility (Eminem Kids Academy) is the outdoor environment and how it is utilised to provide a wholistic educational approach through nature, nurture and play. Every week I witness growth and development within the children. Such as language, comprehension and social skills, literacy and numeracy. It has also come to my awareness that the outstanding collaborative partnership with families within the service. The educators actively encouraged families to eat nutritious meals and to maintain healthy eating habits. The families within the service have continuously contributed towards the service. This is evident through parents' providing the children with a variety of fruits and vegetables per day to eat du'ing meal times."

On 25 July 2022, Safa Diab made the following statutory declaration in support of the Applicant and Ms Delialioglu: "I am currently employed as an educator at Eminem Kids Academy. I am 16 years old and was home schooled for 4 years prior to completing Yr 10. I was not very social and had low self-esteem. In Feb 2022 I became part of the Eminem Kids team as a trainee. Having Emine as my mentor, I have gained confidence to overcome a lot of my doubts and insecurities. I am gradually increasing my skillset with Emine's lead by example teaching method as I gain a deeper understanding of the importance of working in collaboration with my team, the children and families and the wider community."
On 25 July 2022, Fouzia Fatima made the following statutory declaration in support of the Applicant and Ms Delialioglu: "I am currently employed as an educator at Eminem Kids Academy. I am Certificate III qualified and currently working towards my Diploma in Early Childhood Education and Care. My journey here started in Oct 2021 and I am grateful to have Emine guide me and support me with her 20 years experience and expertise in this industry. I have learnt many strategies to help develop the children's skills and understanding as we gain more confidence each and every day. Emine provides a variety of equipment and resources to accommodate and challenge children's level of development. We have respectful and trusting relationships with one another I could not have a found a better workplace."

[85]

Would the continued provision of education and care services by the Applicant constitute an unacceptable risk to the safety, health or wellbeing of children being educated and cared for by an education and care service operated by the Applicant?

We are not satisfied that the continued provision of education and care services by the Applicant would constitute an unacceptable risk to the safety, health or wellbeing of children being educated and cared for by an education and care service operated by the Applicant.
As set out above, we have found that, despite its breaches, the Applicant is not unwilling or unable to comply with the National Law and National Regulations. Indeed, Ms Delialioglu has shown herself to be both willing and able to address the majority of the Respondent's concerns through extensive renovation of the Mary Street service, repairs and updates to the Northcote Street service, the employment of an experienced service manager to manage the administration and software needs of the services and clarification of enrolment and attendance queries raised by the authorised officers.
As set out above, we are satisfied that Ms Delialioglu has undertaken an extensive program of remediation to address the Respondent's concerns.
We are satisfied that Ms Delialioglu has the capacity, intelligence and experience to run Eminem Kids Academy and to ensure that it meets its duties and obligations under the National Law and regulations. We are satisfied that Ms Delialioglu has a strong commitment to the children and parents in the care of the Applicant and is committed to ensuring the safety and well-being of the children under the care of the Applicant.
We accept that the implementation of a checklist system is a way for a provider like the Applicant to keep track of its many obligations under the National Law and National Regulations, which is a complex system. On the evidence before us, we are satisfied that many of the contraventions can be avoided by the implementation of systems to ensure regular oversight of educators and supervisor. We are satisfied that these systems have been implemented by the Applicant.
We are satisfied that Ms Delialioglu has an understanding of child protection law and that the Applicant provides documents and education to its educators to ensure they also understand their child protection obligations and responsibilities.
We accept that Ms Delialioglu has worked hard to address the Respondent's concerns of in order to ensure that the Applicant's services are no longer in breach of its obligations under the National Law and National Regulations.
We accept that remediation is an ongoing process and that the Applicant is committed to continuing to take steps to ensure its compliance with the National Law and National Regulations.
On this basis and having taken into account its previous compliance history and the remedial steps it has taken, we are satisfied that the Applicant is willing and able to comply with the National Law and National Regulations.
On all the material before us and having regard to all relevant matters including the objectives and guiding principles of the National Law and National Regulations, we are not satisfied that cancellation is the correct and preferable decision.
Accordingly, in substitution for the Respondent's decision on 16 March 2022 to cancel the provider approval for the Applicant, we have decided that the provider approval should not be cancelled.

[86]

Should the provider approval of the Applicant be subject to specific conditions?

Whilst we are not satisfied that cancellation of the provider approval for the Applicant is the correct decision, we retain concerns in relation to the number of services offered by the Applicant which, apart from long day care for under-school-aged children from birth to six years, also includes before and after school care and vacation care for schoolchildren who are up to twelve years of age.
As set out above, one of the Respondent's major concerns in relation to the Applicant relates to discrepancies with attendance records for the children. To resolve these discrepancies, Ms Delialioglu has completed a series of forms requesting a change to attendance records for children at the Applicant's services. All the forms relate to school-aged rather than pre-school children and, apart from one change for the 12 January 2021 (a day during the summer school holidays), they are all for the weeks ending the 4 July 2021 and 11 July 2021, which fell during the winter school holidays.
In cross-examination, the authorised officer, Ms Kanis, said that, in relation to the Applicant's performance, she had less concerns for the 0-6 age group. This is because before and after school care and vacation care needs to factor in transport and the specific risks in going to and from school and, in the case of vacation care, leaving the service's premises.
We are satisfied that the problems for the Applicant relate, overwhelmingly, to the school-aged, rather than pre-school children. The issues of most concern involve transporting of school-aged children and attendance corrections.
These are serious concerns that would overwhelmingly be resolved were the Applicant to restrict its enrolments to under-school aged children.
It is for this reason that we have amended the provider approval for the Applicant by the addition of the following condition, to come into effect on 10 April 2023: Eminem Kids Academy is licensed to accept enrolments only for children between the ages of 0-6 who do not attend school

At a glance

Court

Decision date

Source

Judgment (88 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)