3.1 Application for service waiver

[  National Law, Sections 41, 87, 93 ]

A service waiver allows an approved education and care service to be taken to comply with requirement/s of the prescribed National Regulations.

Requirements that can be waived by the regulatory authority under the National Regulations, are set out in the table below.

How does an approved provider apply?

[  National Law, Section 88 ]

An application for a service waiver must be in writing and include payment of the prescribed fee (see Fees).

An approved provider may apply for a service waiver and a service approval at the same time.

An approved provider can only apply for a waiver of the regulations set out in the above table. The application may be refused and the application fee may be refunded if the application seeks to waive other regulations.

[  National Regulations, Regulation 42 ]

The National Regulations prescribe information that must be included in an application for a service waiver (see Application checklists – Table XIII).

The application must detail any attempts made to comply with the relevant regulation and include the measures being taken, or to be taken, to protect the wellbeing of children at the service.

The National Law allows an approved provider to apply for a service waiver from staffing requirements. However, if the issue may be resolved within 12 months, a temporary waiver may be more appropriate.

Incomplete applications

[  National Law, Section 265 ]

If an application does not include all the required information, the regulatory authority may treat the application as invalid. The timeframe for processing an application does not begin until an application is complete and therefore valid.

Timeframe for assessing an application

[  National Law, Section 91 ]

The regulatory authority must notify the applicant of its decision within 60 calendar days after the application is made. The timeframe for determining an application cannot be extended.

If the approved provider applied for a service waiver and a service approval simultaneously, the regulatory authority may notify the applicant of the outcome of both applications at the same time.

Calculating time

The National Law sets out how timeframes are calculated at schedule 1, clause 31.

An application cannot begin to be processed unless the application is complete/valid and includes all the required information.

Considering an application

[  National Law, Sections 89–90 ]

When considering an application for a service waiver, the regulatory authority may consider the measures being taken or to be taken to protect the wellbeing of children while the proposed waiver is in force, and any other information included in the application.

Assessment of waiver applications

All applications for service or temporary waivers are assessed on a case-by-case basis. A regulatory authority may request more information or may inspect the service premises or office to assist in deciding to grant or refuse a waiver. If more information is requested, the time taken to provide it is not included in the period for determining the application.

If the regulatory authority grants a waiver, it must issue or reissue the service approval specifying the regulation(s) to which the service waiver applies.

In assessing a waiver application a regulatory authority should consider the following non-exhaustive list:

General

• the measures being taken or to be taken to protect the wellbeing of children being educated and cared for by the service while the proposed waiver would be in place
• the benefits to families, children and communities in having the service operate
• the service’s Quality Improvement Plan
• the number and age range of children enrolled at the service
• attempts made by the approved provider to comply with the regulation(s)
• the cost of any adjustments needed for the service to comply with the regulations for which a waiver is being sought
• the compliance history of the approved provider and/or the service
• unusual or unforeseen circumstances, such as natural disasters
• whether the issue is ongoing (i.e. longer than 12 months) and requires a service waiver, rather than a temporary waiver, or circumstances have changed and a temporary waiver is required instead of a service waiver.

Staffing Waivers

• staff details, including rosters and qualifications
• evidence of recruitment e.g. advertising and the outcomes of a recruitment attempt
• evidence of progress towards relevant qualifications
• strategies in place to attract, upskill and retain staff
• what the service is doing to meet the immediate shortfall.

Physical Environment Waivers (including indoor and outdoor spaces)

• access to indoor and outdoor spaces, or facilities e.g. toilets
• building and floor plans by a certified building practitioner
• photos of relevant spaces, e.g. simulated outdoor space
• details of renovations
• impact on programming, educational outcomes and experience of children
• at the discretion of the regulatory authority, an authorised officer may visit the service premises to view the relevant spaces and gather additional information.

Waiver of requirement to have FDC principal office in the same jurisdiction as FDC service approval

[  National Regulations, Regulation 72A ]

• family day care services are in Local Government Areas in adjacent jurisdictions (e.g. Albury/Wodonga)
• strategies in place to ensure educators will be adequately supported and monitored.

Waiver Conditions

A waiver may be granted subject to conditions. For example, a condition on a waiver may limit it to applying for a specific period of time, i.e. one day a week.

A regulatory authority may grant a waiver subject to conditions for a variety of reasons, including where it considers that limiting the scope of the waiver is appropriate to protect the wellbeing of children educated and cared for by the service.

Conditions on a waiver may be removed, added to or varied at any time. For instance, if a provider fails to take measures to protect the wellbeing of children, as set out in the application, a condition may be imposed which would affect the validity of the waiver. The waiver only applies where steps are taken, in accordance with the application, to protect the wellbeing of children at the service.

If a waiver applies to multiple regulations, conditions may be imposed on some or all aspects of the waiver. Conditions on a waiver are recorded on the service approval certificate. These conditions are in addition to any conditions that apply to the service approval itself.

Determining an application

[  National Law, Section 91 ]

The regulatory authority may decide to grant or refuse an application for a service waiver.

If the regulatory authority receives an application for a service waiver which should have been an application for a temporary waiver, it can be processed as if it was an application for a temporary waiver. The approved provider is not required to resubmit an application (see Application for temporary waiver).

Applications to waive multiple regulations

At the discretion of the regulatory authority, an approved provider may include multiple regulations in a single waiver application. If the regulatory authority receives an application seeking to waive multiple regulations, it may decide to grant a waiver in relation to some regulations but refuse others.

If a waiver applies to multiple regulations, conditions may be imposed on some or all aspects of the waiver.

After a service waiver has been granted

[  National Law, Section 91 ]

The regulatory authority must give the approved provider a copy of their service approval that lists the regulation to which the waiver applies and any conditions placed on the waiver.

Revoking a service waiver

[  National Law & Regulations, Section 92, Regulation 43 ]

A service waiver is ongoing and remains in force until revoked. There is no maximum period for which a service waiver can apply.

While a service waiver is ongoing, it is not ‘permanent’, as the regulatory authority may revoke a service waiver at its discretion. If a service waiver is revoked, the waiver ceases to apply:

• 60 calendar days after the regulatory authority notifies the approved provider of their decision, or
• at the end of a period determined by the regulatory authority and agreed by the approved provider.

An approved provider may apply to the regulatory authority to have a service waiver revoked. In this case, the waiver ceases to apply:

• 14 calendar days after the regulatory authority notifies the approved provider that the application for revocation is approved, or
• at the end of a period determined by the regulatory authority and agreed by the approved provider.

If a service waiver is granted and the regulatory authority later becomes aware that the grounds on which it was granted no longer apply, or if a condition placed on the service approval has not been complied with, it may revoke the waiver. The regulatory authority may revoke a service waiver at its discretion including if, for example, the regulatory authority becomes aware of a relevant risk to the safety, health and wellbeing of children.

If the regulatory authority revokes a waiver and the approved provider fails to comply with a requirement of the National Law and Regulations, it may take compliance action.