Introduction and Housekeeping
Joel: Good morning, everyone, and welcome to our webinar on employment law essentials for childcare providers. I hope you have all had a great start to your day.
My name is Joel Hayden, and I am the Practice Group Leader for Employment Law at LegalVision. I am very happy to be speaking with you all today.
Before we jump into the main topic, there are just a couple of quick housekeeping items. You will receive a recording and the slides from this presentation, so there is no need to take notes.
We will have a chat box where you can submit your questions for the Q&A at the end of the session. We will also have a feedback survey after the webinar. We really appreciate when you complete it, as it helps us tailor future webinars.
If you stay until the end of the webinar, there will be an opportunity to enter our monthly draw to win Apple AirPods.
In addition, by viewing this webinar, you qualify for a complimentary consultation with LegalVision to discuss how we can best help your business. To claim this, please leave your contact details in the survey at the end or contact us via our website.
Ensure your workplace is meeting its psychosocial legal obligations with this free guide, offering practical steps, legal insights, and effective risk management strategies.
Overview of Topics
Joel: Today, we are going to discuss several important aspects of legal compliance in the childcare space. We will cover:
- the Children’s Services Award and what you need to be aware of;
- background checks and worker suitability; and
- managing employee behaviour in the workplace.
We will then finish with some Q&A, so please submit your questions as you think of them.
Industry Context and Compliance Risks
Joel: There is currently a strong spotlight on the childcare industry. There have been highly publicised issues involving educators, ongoing staff shortages, increased union activity, and enterprise agreement coverage.
This is all occurring in a heavily regulated and complex environment, where the paramount consideration is the safety of children. This must inform almost every decision made by providers and their staff.
Today’s session will focus on key legal responsibilities and practical steps to help achieve compliance.
The Children’s Services Award
Joel: Most employees in childcare are covered by the Fair Work Act and the Children’s Services Award.
If you operate a childcare centre without an enterprise agreement, you will almost certainly be covered by this award, and so will most of your employees.
The award sets baseline entitlements and cannot be avoided or contracted out of. If you are not applying it correctly, there is likely non-compliance that should be urgently addressed.
The award is broad and generally covers:
- Educators and directors (hands-on childcare roles)
- Support workers such as cooks, cleaners, gardeners, and administrative staff
It is uncommon for employees in this industry to fall under other awards.
Key Award Considerations
There are several important aspects of the award to be aware of:
- Qualifications (Certificate III or Diploma) affect pay levels
- Some employees must be given time off the floor for planning
- Certain shift patterns may attract higher pay rates
- Higher duties may require higher pay after two hours
- Allowances may apply, including for uniforms
A breach of the award is also a breach of the Fair Work Act and may result in underpayments and civil penalties.
Liability can extend beyond the company to individuals such as directors or HR managers if they are knowingly involved.
Given the current scrutiny on the childcare sector, compliance has never been more important.
Practical Compliance with the Award
Joel: To manage compliance effectively:
- Understand award obligations and monitor changes
- Conduct regular payroll audits
- Address underpayments proactively
- Implement processes to ensure ongoing compliance
Waiting to address issues increases risk, particularly given regulator and union attention.
Background Checks and Worker Suitability
Joel: In a worker-driven industry like childcare, ensuring the suitability of employees is critical.
Legal obligations require providers to:
- Verify Working With Children Checks
- Conduct police checks
- Confirm qualifications and certifications
- Ensure training in first aid, anaphylaxis, and asthma management
- Verify identity and right to work
Providers should also obtain references and assess experience, particularly for supervisory roles.
These obligations vary slightly by state but are consistently stringent.
Practical Steps for Background Compliance
Joel: To manage these obligations:
- Develop structured onboarding processes
- Maintain records of qualifications and checks
- Monitor ongoing certification requirements
- Include contractual obligations for employees to maintain compliance
This must be proactive, not ad hoc.
Managing Employee Behaviour
Joel: Managing employee conduct is critical, particularly given recent incidents in the sector.
Providers have a duty of care, and child safety must always be the paramount consideration.
Employees must understand behavioural expectations. This requires:
- Clear written policies
- Training on those policies
- Ongoing reinforcement
Policies must be implemented in practice, not simply documented.
Policies and Enforcement
Joel: Providers must have policies covering:
- Health and safety
- Child safety and environment
- Staff conduct and interactions
These policies must be:
- Clearly communicated
- Consistently applied
- Regularly reinforced through training
Inconsistent enforcement can undermine disciplinary processes.
Handling Conduct Issues and Procedural Fairness
Joel: When issues arise, they must be managed with procedural fairness.
This generally involves:
- Investigating allegations
- Gathering evidence
- Providing the employee an opportunity to respond
- Making findings based on evidence
The more serious the allegation, the higher the standard of evidence required (Briginshaw principle).
Outcomes must be proportionate and clearly communicated.
Failing to address issues early can make them harder to manage later.
Key Practical Tips for Managing Conduct
Joel: To manage conduct effectively:
- Develop and enforce clear policies
- Act on issues promptly
- Ensure fairness in all processes
- Consider tools like surveillance where appropriate
Consistency and fairness are critical in protecting against legal risk.
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