Portjazz Pty Ltd (an approved provider) filed with the NSW Civil and Administrative Tribunal an application for administrative review of the decision by the NSW Department of Education to cancel its service approval. On the same day, Portjazz also filed an application for stay of the decision to cancel the service approval, pending the outcome of the administrative review. Tiny Town Childcare Centre (Portjazz Pty Ltd) v Secretary, Department of Education deals with the application to the Tribunal for the stay pending hearing of the review by the Tribunal. The service approval was cancelled due to a history of non compliance with the National Law and Regulations (see paras. 15-24). The Tribunal decided to grant the stay subject to a large number of conditions (paras 36-42):
....Ms de Klerk [the director of Portjazz] put forward a plausible response to the issues raised in August 2023. I do not have sufficient information to assess the strength of the case in relation to the history of the facility, though it seems from Ms de Klerk’s affidavit that some measures have been taken to address many of the issues...
Twenty-six families relied upon Tiny Town for childcare as at early November 2023. It is likely that the sudden inability of Tiny Town to offer a service would be a significant inconvenience for many of those families.
On the information before me, it did not appear that there is a current issue with the state of the premises or the operation of the service which could not be addressed on an interim basis by the imposition of conditions.
Although there may, in the past, have been safety issues, there do not seem to be any threats to the safety of the children cared for at Tiny Town at present...
The public has an interest in the availability of childcare, but it must be childcare which is focussed upon the safety, health and wellbeing of the children. The educational and development needs of the children need to be met.
At present, Tiny Town has the capacity to provide childcare in accordance with the National Law, if it complies with conditions.
At the hearing of the stay application, I concluded that it was appropriate to grant a stay of the decision to cancel the service approval, subject to conditions....that the applicant:
(a) Comply with the Children (Education and Care Services) National Law (NSW) and the Education and Care Services National Regulations (NSW).
(b) Not accept new enrolments of children at the service.
(c) Not provide education and care services to more than 15 children at any point in time from 31 December 2023.
(d) Not conduct any excursions outside the centre premises.
(e) Arrange for a professional cleaner to:
i. Clean the indoor and outdoor environments of the centre premises prior to any further education and care service being provided;
ii. Provide evidence of compliance with condition 4(d)(i) to the NSW Department of Education.
(f) Undertake a comprehensive assessment of the indoor and outdoor areas, furniture and equipment to ensure that it is safe, clean and in good repair and provide evidence to the Department by 5pm on 17 November 2023.
(g) Undertake a review of the staffing arrangements to ensure that the educator child ratios are maintained in accordance with regulation 126(1)(a) of the Regulations and provide evidence to the Department by 5pm on 17 November 2023.
(h) Provide training to the staff on the service’s safe sleep and rest policy, and provide evidence to the Department, by 5pm on 22 November 2023.
(i) Conduct safe sleep and rest audits each month to ensure staff are following the policy, and submit a copy of the audit to the Department at the conclusion of each month.
(j) Ensure all staff have undertaken training in the appropriate management of children’s behaviour by a recognised training organisation and provide evidence to the Department by 5pm on 30 November 2023.
(k) Ensure that Ms De Klerk undertake the Quality Support Program, delivered by Australian Children's Education and Care Quality Authority at the next available opportunity, and provide evidence of enrolment in the program by 30 November 2023.
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