Australia: Management of kindergartens – Navigating a legal minefield

Kindergartens in Victoria have to comply with a myriad of legislative obligations which can seem a minefield for the unsuspecting parent volunteer who finds themselves on a Committee of Management.

Pointon Partners works with Kindergartens, Early Years Managers (formerly known as cluster managers) and education professionals and can guide understanding of and compliance with legislative obligations.

The National Quality Framework ('NQF') introduced a new quality standard in 2012 across Australia to improve education and care across long day care, family day care, preschool/kindergarten and outside school hours care services.

The NQF aims to raise quality in children's education and care services through:

  • The National Law and National Regulations;
  • The National Quality Standard;
  • An assessment and quality rating process;
  • National approved learning frameworks;
  • A regulatory authority in each state and territory responsible for the approval, monitoring and quality assessment of services. In Victoria that authority is the Victorian Department of Training and Education (DET); and
  • A national body the Australian Children's Education and Care Quality Authority (ACECQA) which guides the implementation of the NQF and works with regulatory authorities.

For community kindergartens who are reliant on parent volunteers who manage the administration of the kindergarten including the finances, policies and procedures, the enrolment processes and are the employers of the staff there is a lot of regulation to be aware of and comply with. In addition, these regulations and standards are often changing as occurred with the NQF in October 2017.

Pointon Partners is able to assist the Committees of kindergartens on all aspects of the administration of a kindergarten including specific advice on the NQF and ensuring compliance with the NQF (as amended from time to time).

The Committee of Management is also responsible to ensure all staff have a safe workplace, are being employed in accordance with the Fair Work Act 2009 (Cth) and are being remunerated correctly in accordance with the Victorian Early Childhood Teachers and Educators Agreement (VECTEA).

Pointon Partners specialises in employment law and is able to provide advice on all aspects of employment law including contracts for the employment of kindergarten staff, performance management of staff and applying the VECTA. In addition, employees of Pointon Partners have experience on being on the Committee of Management at kindergartens and are able to advise on specific employment law issues as they relate to kindergartens and staff.

Another important function of the Committee of Management is managing complaints in accordance with policies of the kindergarten and to ensure that appropriate mandatory reporting obligations are fulfilled. For example, section 174(2)(b) of the Education and Care Services National Law Act 2010 ('the Act') provides that complaints alleging that:

  • the safety, health or wellbeing of a child or children was or is being compromised while that child or children is or are being educated and cared for by the approved education and care service; or
  • the National Law and/or National Regulations has been contravened
  • must be notified to the DET.

A failure to comply with this provision carries a penalty of $4,000 in the case of an individual and $20,000 in any other case. Potentially the Committee of Management which usually has an Executive Committee comprising a President, Vice President, Secretary and Treasurer are all liable for financial penalties for breaches of the Act. As such it is prudent for volunteers who are on Committees of Management to seek legal advice when they are unsure of their responsibilities or reporting obligations under the Act.

For an increasing number of kindergartens filling committees with volunteers is increasingly difficult as many families have both parents working and as such cannot commit to spend the time required by these roles including attendance at Committee meetings. In addition, parents may not feel like they have sufficient experience to volunteer for a role on the Committee of Management especially the Executive Committee roles and for these and other reasons many kindergartens are considering and moving into arrangements with Early Years Managers (formerly known as cluster managers) whereby they leave the administration of the kindergarten to the Manager. Parent volunteer committees can then focus on fundraising and other similar initiatives.

Pointon Partners has experience in transitioning Kindergartens through this process so they retain some autonomy and protect their financial position. It is extremely important to have good documentation in place to protect the Kindergarten and ensure that the parent Committee of Management and the Early Years Manager understand their respective roles.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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