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Waivers in early childhood services

Waivers play an important role in helping providers maintain their level of service to families while dealing with special circumstances or unexpected events.

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Overview

There are two types of waivers:

  • service waivers - have no specified expiry date
  • temporary waivers - only apply for up to 12 months (with a further extension available).

If granted it means that the service is taken to comply with that specific requirement of:

  • the National Law and Regulations
  • the Children’s Services Act and Regulations (CS Act and Regulations).

Applying for a waiver must be a last resort, as providers should explore other avenues before making an application. Not all requirements of the law can be waived.

Approved providers must apply to the department and pay a fee.

How to apply for a waiver

NQF services

Approved providers under the National Quality Framework (NQF) can apply via National Quality Agenda IT System (NQA ITS):

  • service waiver or temporary waiver using form SA08
  • revocation of service waiver using form SA09
  • extension of temporary waiver using form SA13.

Limited hours and occasional care services

Approved providers under the Children’s Services Act 1996 (CS Act) can apply by using the relevant form (below) with supporting evidence, and email it to: licensed.childrens.services@education.vic.gov.au.

  • Service waiver or temporary waiver using form AS08
  • Revocation of service waiver using form AS09
  • Extension of temporary waiver using form AS11.

These forms can be downloaded at: Children's services regulated under State Law.

What information is needed in the application

The application must include:

  • the reasons you are unable to comply with the requirements under the National Regulations (or elements of the National Quality Standard) or if you’re a service under the CS Act, requirements under the CS Act and Regulations
  • the details and evidence of attempts to comply
  • the measures being taken to protect the wellbeing of children.

Applications can only be assessed by the department if this information is included. Before submitting, check that:

  • the required sections of the application are completed
  • all supporting documentation/evidence are attached
  • prescribed fees are paid.

Waiver types and supporting information

This section outlines the types of waivers available and supporting information that must be submitted with the application.

Temporary waivers

Temporary waivers can be considered if a service has an extenuating circumstance where it can be demonstrated that they have attempted to meet the requirements but are unable to do so.

The temporary waiver, if granted, would allow the service to meet the requirements under the National Law and Regulations or the CS Act and Regulations.

For services under the National Law and Regulations, only the following regulations can be waived:

  • for a centre-based service - regulations 104, 107, 108 and 110, 111 to 115 and regulations 120, 123, 126, 130 to 134 and 136
  • for a family day care service - regulations 72A, 104, 107, 108, 110, 117, 124, 127, 128 and 136
  • standards and elements set out in Quality Areas 3 and 4 of the National Quality Standard
  • any provision in Chapter 7 of the National Regulations that applies in place of a provision referred to above.

For services under the CS Act and Regulations, only the following regulations can be waived:

  • Regulations 73, 75, 76, 79 to 84, 88, 90, 91, 92, 93 and 95.

Examples of the evidence that can be submitted in support of different types of waiver applications are set out below. Please note that:

  • these are examples only and the department may request additional or different evidence in support
  • the department is not obliged to grant a waiver if one is applied for
  • the department may decide to inspect the service premises to assist in deciding to grant or refuse a waiver
  • the department must be notified by email (licensed.childrens.services@education.vic.gov.au) if circumstances change for your service and that you no longer require a waiver.

Temporary waiver example - Early Childhood Teacher requirements

Waivers from Early Childhood Teacher (ECT) requirements will be considered if a service has demonstrated that they have attempted to meet the ECT level qualified educator or suitably qualified person requirements but are unable to do so.

The ECT requirements waiver, if granted, would permit an educator who does not hold an approved ECT level qualification to be counted as equivalent for the purposes of meeting requirements under regulations 130 - 134 of the National Regulations (NQF services) or regulation 93 of the CS Regulations (CSA services).

Making an application

When applying, provide the following information to demonstrate that the waiver is required and the steps that will be taken to minimise impact on the service:

  • details of any exceptional or extenuating circumstances as to why the waiver should be granted
  • evidence of ongoing efforts to recruit an ECT (e.g. regular job advertisements dated within the previous 3 months, information on unsuitable applicants or no response, a record of unsuccessful recruitment attempts
  • for each day the service operates, the number of all children in attendance at the service
  • details on all staff and qualifications or staff progression records towards qualifications, including enrolment details and transcripts if relevant (for example a roster)
  • details of the nominated educator(s) for the duration of the waiver period, including copies of any relevant qualifications held by the educator, and evidence of any qualifications the educator is working towards including the date the educator is expected to complete their studies (educator should hold at least a diploma level qualification)
  • details of the mentoring arrangements, training, supervision and support available to the nominated educator (the mentor must be a qualified ECT)
  • planning provisions to ensure the health, safety and wellbeing of children, continuity of care and the program is not impacted.

The assessing officer may request additional information if required for the delegate to make a decision.

Temporary waiver example - general staffing qualifications

Waivers from staffing arrangements will be considered if a service has demonstrated that they have attempted to meet the qualified requirements (e.g. diploma or certificate III level qualification) but are unable to do so.

A general qualifications waiver, if granted, would permit a staff member who does not hold and is not working toward an approved level qualification counted as equivalent for the purposes of meeting regulations 126, 127, 128 and 136 of the National Regulations (NQF services) or regulations 91, 92 and 95 of the CS Regulations (CSA services).

Making an application

When applying, provide the following information to demonstrate that the waiver is required and the steps that will be taken to minimise impact on the service:

  • details of any exceptional or extenuating circumstances as to why the waiver should be granted
  • evidence of efforts to recruit a relevant level qualified staff (e.g. regular job advertisements dated within the previous 3 months, information on unsuitable applicants or no response, a record of unsuccessful recruitment attempts)
  • staff qualifications or staff progression records towards qualifications, including enrolment details and transcripts if required
  • details of the nominated staff member for the duration of the waiver period, including copies of any relevant qualifications held, and evidence of any qualifications the staff member is working towards
  • details of the mentoring arrangements and support available to the nominated staff member(s) (the mentor must hold minimum approved qualifications, depending on the waiver type)
  • planning provisions in place to ensure the health, safety and wellbeing of children, continuity of care, and the educational program is not impacted
  • Evidence of ways the service will meet the outcomes of the approved learning framework
  • for each day the service operates, the number of children in attendance and the number of educators who work directly with the children, and their qualifications (this can be provided through a staffing roster).

The assessing officer may request additional information if required for the delegate to make a decision.

Temporary waiver example - educator to child ratio

Waivers from educator to child ratio requirements will be considered if a service has demonstrated that they have attempted to meet the ratio but are unable to do so.

A ratios waiver, if granted, would permit the educator to child ratio requirements to be counted as equivalent for the purposes of meeting regulations 123, 124 and 357 of the National Regulations (NQF services) and regulation 90 of the CS Regulations (CSA services).

Educator to child ratio requirements are determined by the age and number of children being educated and cared for by the service at any one time.

Making an application

When applying, provide the following information to demonstrate that the waiver is required and the steps that will be taken to minimise impact on the service:

  • details of any exceptional or extenuating circumstances as to why the waiver should be granted
  • evidence of efforts to recruit a relevant level qualified staff (e.g. regular job advertisements dated within the previous 3 months, information on unsuitable applicants or no response, a record of unsuccessful recruitment attempts)
  • staff qualifications or staff progression records towards qualifications, including enrolment details and transcripts if required
  • details of the nominated staff member(s) for the duration of the waiver period, including reasons for nomination(s), experience, copies of any relevant qualifications held, and evidence of any qualifications the staff member is working towards
  • details of the mentoring arrangements and support available to the nominated staff member(s) (the mentor must hold minimum approved qualifications, depending on the waiver type)
  • planning provisions in place to ensure the health, safety and wellbeing of children, continuity of care, and the program is not impacted
  • for each day the service operates, the number of children in attendance and the number of educators who work directly with the children, and their qualifications (this can be provided through a staffing roster)
  • information about any vulnerable children and/or children with special needs that require education and at the service, such as their needs, and attendance information
  • a risk assessment for the proposed educator to child ratio
  • a transition plan detailing the actions being, and to be, undertaken in order to assist the service to meet the educator to child ratio prescribed in regulation.

The assessing officer may request additional information if required for the delegate to make a decision.

Temporary waiver example - physical environment

Temporary waivers from physical environment requirements may be considered in exceptional circumstances.

Physical environment requirement waivers, if granted, would permit the physical environment requirements to be counted as equivalent for the purposes of meeting requirements under regulations 104, 107, 108, 110 - 115 of the National Regulations or requirements under regulations 73, 75, 76, 79 to 84 of the CS Regulations for a period of time.

An indoor/outdoor space temporary waiver, for example, would be utilised if the service is unable to meet the indoor or outdoor space requirements for the number of children attending:

  • during renovation of the service
  • emergency works due to damage (for example, caused by flooding, extreme wind, or fire)
  • must temporarily relocate (please note a new service approval application is required) and is unable to find premises large enough to accommodate the number of approved places
  • for any other reason.

Making an application

Include the following information, where relevant, with the application:

  • outline how the service will ensure children's safe access to reduced indoor/outdoor space (for example, rostering access to outdoor space and/or offering an indoor or outdoor program)
  • where renovations are being undertaken:
    • evidence that the service is unable to schedule the renovations, or particular aspects of the renovations for times when children are not present
    • expected length of time that the works will take
    • what areas of the program will be impacted
    • calculations of the unencumbered outdoor space that will be available to children during each stage of the works
    • outline how the service will minimise the impact of any works on the children including any arrangement to ensure the health, safety and wellbeing of children is maintained during the waiver term and alternative means of maintaining service quality (for example, excursions) while a part of the physical environment is temporarily unavailable
    • how the service will evaluate the effectiveness of meeting the needs of the children whilst the works are being undertaken
    • outline details of how the service will ensure children cannot access unsafe areas during the renovations (for example this can be presented as a risk assessment)
    • outline how the service will manage the movement of trades' people through the service
    • evidence that temporary fencing (if required) meets the requirements of regulation 104.

The assessing officer may request additional information if required for the delegate to make a decision.

Extension of temporary waivers

Extensions for temporary waivers must relate to the same regulations (or NQS elements for NQF services) and circumstances for which the initial waiver was granted.

When considering the extension application, the department will consider the continued attempts made by the service to comply with the elements or regulations and why the attempts have not resolved the service’s noncompliance.

Service waivers

Service waivers can be considered:

  • if a service has an ongoing extenuating circumstance
  • where it can be demonstrated that they have attempted to meet the requirements
  • but are unable to do so on an ongoing basis.

A service waiver has no end date, and if granted, would allow the service to meet the requirements of the regulation waived from the National Regulations.

Before applying for an ongoing service waiver, we recommended you contact Quality Assessment and Regulation Division by email: licensed.childrens.services@education.vic.gov.au for advice regarding the situation at the service.

In the email you will need to provide:

  • information that demonstrates genuine extenuating circumstances as to why the ongoing service waiver is required
  • the steps that will be taken to minimise impact on the service.

For services under the NQF, the following regulations can be waived:

  • regulations 104, 107, 108 and 110
  • in the case of a centre-based service, Division 2 of Part 4.3 and regulations 120, 123, 126 and 130 to 134
  • in the case of a family day care service, regulations 72A, 117, 124, 127 and 128.

For services under the CS Act and Regulations, the following regulations can be waived:

  • regulations 73, 75, 76, 79 to 84, 88, 90, 91, 92 and 93.

Examples of the evidence that can be submitted in support of different types of waiver applications are set out below. Please note that:

  • these are examples only and the department may request additional or different evidence in support
  • the department is not obliged to grant a waiver if one is applied for
  • the department may decide to inspect the service premises to assist in deciding to grant or refuse a waiverthe department must be notified by email (licensed.childrens.services@education.vic.gov.au) if circumstances change for your service and that you no longer require a waiver.

Service waiver example - general staffing qualifications

Service waivers from staffing arrangements will be considered if a service has demonstrated that they have attempted to meet the qualified requirements (e.g. diploma or certificate III level qualification) but are unable to do so.

A general qualifications waiver, if granted, would permit a staff member who does not hold and is not working toward an approved level qualification to be counted as equivalent for the purposes of meeting regulations 126, 127 and 128 of the National Regulations.

Making an application

When applying, provide the following information to demonstrate that the waiver is required and the steps that will be taken to minimise impact on the service:

  • details of any exceptional or extenuating circumstances as to why the service waiver should be granted
  • evidence of efforts to recruit a suitably qualified educator (diploma level or certificate III), such as advertisements and recruitment reports or reasons why this would not be required
  • staff qualifications or staff progression records towards qualifications, including enrolment details and transcripts if required
  • details of the nominated staff member for the duration of the waiver period, including copies of any relevant qualifications held, and evidence of any qualifications the staff member is working towards
  • details of the mentoring arrangements and support available to the nominated staff member(s) (the mentor must hold minimum approved qualifications, depending on the waiver type)
  • planning provisions in place to ensure the health, safety and wellbeing of children, continuity of care, and the educational program is not impacted
  • evidence of ways the service will meet the outcomes of the approved learning framework
  • for each day the service operates, the number of children in attendance and the number of educators who work directly with the children, and their qualifications (this can be provided through a staffing roster).

The assessing officer may request additional information if required for the delegate to make a decision.

Service waiver example - physical environment (general)

Service waivers from physical environment requirements may be considered in exceptional circumstances.

Physical environment requirement waivers, if granted, would permit the physical environment requirements to be counted as equivalent for the purposes of meeting requirements under regulations 104, 107, 108, 110 - 115 of the National Regulations or requirements under regulations 73, 75, 76, 79 to 84 of the CS Regulations.

Genuine outdoor space is always preferable to simulated outdoor space, and the importance of outdoor learning environments is embedded within the requirements of the NQF.

The department will only consider granting a waiver for outdoor space requirements where genuine outdoor space cannot be achieved and where certain criteria are met. For example, a service waiver for outdoor space requirements in the Melbourne CBD would need to meet the following criteria:

  • the premises has limited access to outdoor space in the immediate locale
  • an equivalent area of indoor space (exclusive of indoor space requirements) is provided as simulated outdoor space
  • the design of the simulated outdoor space allocated, allows the benefits of an outdoor learning environment, that:
    • provides access to natural experiences that mimic the outdoors, such as water play, sand play, bark play, accessible plantings, or other elements from nature
    • is suitable and provides sufficient area for gross motor activities for different age groups and ample flexibility for continued challenge to meet children’s needs and abilities
    • makes some provision to allow adequate ventilation and access to natural light
  • where appropriate the service accesses outdoor space through regular excursions to community parks and facilities
  • there is a demonstrated high level of ongoing demand for the provision of an education and care service in that area
  • there is substantial evidence of unmet demand. The evidence provided could include:
    • details of existing early childhood education and care services in the area and how the proposed service would complement or add to the supply of places.
    • information from community or other organisations that may have data on unmet demand in the area.
    • copies of the service’s waiting list or expressions of interest; and/or other relevant demographic data on the need and demand for early childhood education and care in the area.

Approved providers considering relying on a waiver to comply with the space requirements as part of their application for a service approval are encouraged to consult with the department during the concept and planning stages, as there should be no assumption that a waiver will be granted.

Making an application

Include the following information, where relevant, with the application:

  • using additional indoor space as outdoor space to satisfy outdoor space requirement:
    • details of the additional indoor space the service intends to use as outdoor space including a map/plans identifying this space in relation to the service and the reason for the request
    • calculations of the unencumbered indoor space being used as outdoor space (Indoor space that is included in calculating the area of outdoor space cannot be included in calculating the area of indoor space)
    • relevant space plans, diagrams or photographs
    • areas of the program that will be impacted and evidence of how the environment would be adapted. This would include what facilities and/or equipment that would be used to promote quality experiences in natural environments to provide children with an experience of being outdoors, including information related to how the indoor space will be perceived through the child’s sense of sight, sound and smell
    • information on programming and practices to facilitate access to quality experiences in natural environments
    • facilities and equipment to engage and develop gross motor skills, manipulative skills, and stability skills
    • outline how the service will ensure children's safe access to reduced indoor or outdoor space (for example, rostering access to outdoor space and/or offering an indoor or outdoor program)
    • plans covering risk management, supervision strategy and revised use of space
  • accessing outdoor space away from the approved premises to satisfy outdoor space requirements:
    • details of the outdoor space the service intends to use including a map identifying this space in relation to the service
    • for excursions, a copy of the service’s policies and procedures in relation to excursions including procedures for complying with the requirements for risk assessment and authorisations set out in regulations 100-102 for national Regulations and regulations 69 - 71 for CS Regulations.
    • copy of the service’s policies and procedures for the supervision of children using the outdoor space
    • copy of the completed risk assessment for taking children to the outdoor space.

The assessing officer may request additional information if required for the delegate to make a decision.

Conditions on service approval

If the waiver is granted the service approval may be amended to include conditions that will apply while the waiver is in place.

The conditions will depend on the particular circumstances of the waiver application. They will generally relate to requirement to notify the department when, for example, the renovations have been completed or if the waiver is no longer needed prior to the expiry date of the waiver.

How applications are processed

The department will assess and provide an outcome for each application on a case-by-case basis.

To grant a waiver, the department must be certain that:

  • genuine steps have been made or are being made to meet the requirements
  • children’s safety, health and well-being are not compromised or at risk
  • a plan is in place for the service to meet the requirements by the time the waiver is due to expire (in the case of a temporary waiver)
  • the department has up to 60 days to assess a complete application. Incomplete applications will be returned to providers for further information, which will lengthen the process.

How to check the status of your waiver application

Revoking waivers

The department can revoke a service waiver at any time, and an approved provider can apply to have a service waiver revoked at any time.

For CSA services, the provider can submit revocation of service waiver form AS09 to QARD. This form can be downloaded at: Children's services regulated under State Law.

Expiry

Please note that temporary waivers will end on the expiry date. If the temporary waiver is no longer needed, the approved provider is to notify the department within the timeframe specified as a condition on their temporary waiver.

Displaying waivers

Once a waiver application is approved, the department will send you a new service approval certificate which outlines the waiver(s) and any applicable condition(s) relating to the waiver.

The new service approval certificate must be displayed at the entry of the service (a new certificate is not required at the end of the waiver period).

Effect of waivers on quality ratings (NQF services)

A service under the NQF that has been granted a waiver can still achieve ratings of Meeting National Quality Standard and Exceeding National Quality Standard. This is because the NQF service is taken to comply, or not required to comply with the requirements of the National Regulations and elements of the NQS that are covered by the waiver.

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