Staff ratios under the National Law and Regulations

Note: the list below does not outline all legal requirements relating to staff under the National Law and Regulations. Examples outlined below are not exhaustive.

Section 169 Offence relating to staffing arrangements

An approved provider of an education and care service must ensure that, whenever children are being educated and cared for by the service, the relevant number of educators educating and caring for the children is no less than the number prescribed for this purpose.

Penalty:

• $10 000, in the case of an individual.
• $50 000, in any other case.

Regulation 120 Educators who are under 18 to be supervised

Educators who are under 18 years of age can be included as educators when counting ratios. When providing education and care, educators under 18 years of age may not work alone and must be adequately supervised at all times by an educator over the age of 18 years.

Regulation 122 Educators must be working directly with children to be included in ratios

To be included in the educator-to-child ratio, educators must be working directly with children, meaning they are physically present with and directly engaged in providing education and care to the children (Regulation 13).

If educators take planned breaks while they are working, or are required to do so under their award or contract, they cannot be counted in ratios during this time. Even if the educator remains on the premises during their break, they cannot be included in ratios, as they are not directly involved in the education and care of children during their break.

Likewise, if a staff member is on the premises but undertaking administrative or programming tasks they cannot be included in ratios. In NSW there is flexibility for educators to take short, unplanned breaks e. g. for personal hygiene, without their position being back-filled by another staff member.

Regulation 123 Educators to child ratios - centre-based services

The minimum number of educators required to educate and care for children at a centre-based service is to be calculated in accordance with the following ratios for children:

• from birth to 24 months of age—1 educator to 4 children;
• over 24 months and less than 36 months of age—1 educator to 5 children;
• aged 36 months of age or over (not including children over preschool age) —1 educator to 10 children (in NSW);
• over preschool age, 1 educator to 15 children.

Mixed age ratios in centre-based services

It is common practice for many centre-based services to group children of mixed ages together at the beginning and end of the day. This is often known as ‘Family Grouping’ and provides services with flexibility during quieter times and creates opportunities for children of different ages and stages of development to interact.

Services operating mixed age groups of children at times, need to ensure they are meeting the minimum numbers of educators required under the ratio. Educators need to ensure the health, safety and wellbeing of all children and provide adequate supervision at all times.

To calculate the educator to child ratio for a mixed age group of children in centre-based services, ensure that the ratio is met for the youngest child in the group first.

Follow this link to find out more about educator to child ratio requirements for family day care and centre-based education and care settings and a calculator that may assist in determining educator to child ratios in centre-based services, as well as any Early Childhood Teacher requirements.

http://www.acecqa.gov.au/nqf/educator-to-child-ratios

Supervision under the National Law Regulations

Section 165 Offence to inadequately supervise children

The approved provider of an education and care service must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service.

Penalty:

• $10 000, in the case of an individual
• $50 000, in any other case.

Section 167 Offence relating to protection of children from harm and hazards

The approved provider of an education and care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury.

Penalty:

• $10 000, in the case of an individual
• $50 000, in any other case.

Supervision is critical to the safety of children and helps to protect children from harm or hazards that may arise in their play and daily routines

Regulation 115 Premises designed to facilitate supervision

The approved provider of a centre-based service must ensure that the education and care service premises (including toilets and nappy change facilities) are designed and maintained in a way that facilitates supervision of children at all times that they are being educated and cared for by the service, having regard to the need to maintain the rights and dignity of the children

A service may like to take into consideration matters such as exterior gates and fences, the height, location and visibility through furnishings, toilet and nappy change facilities, sleep and rest areas, areas where children eat, the set up and location of higher risk activities, the use of windows and partitions and outdoor equipment to name a few.

Some considerations which are included when determining if supervision is adequate are:

• the number, age and ability of the children
• the number and positioning of educators
• each child's current activity
• areas where children are playing, in particular the visibility and accessibility of these areas
• risks in the environment and experiences provided to the children
• the educator's knowledge of each child and age group of the children
• the experience, knowledge and skill of each educator.

Supervising sleep and rest

• Sleeping children should always be within sight and hearing so that educators can assess the child’s breathing and colour of their skin to ensure their safety and wellbeing.

• Rooms that are very dark and have music playing may not support adequate supervision.

• Supervision windows should be kept clear and not painted over, or covered with posters or curtains.

• When supervising sleeping children, educators should have regard for the children’s ages, stages and needs.
• Policies, procedures and risk assessment related to safe sleep and rest should address matters set out in regulation 84B and 84C.

Note: this is in addition to the recommendations made by Red Nose to ensure safe sleep practices. Further information on safe sleep and rest requirements can be found on the ACECQA website.

Supervising children through transitions and routines

Supervision should be considered when transitioning children from one place to another or one routine to the next. This may include the process of moving children between home and the education and care setting, between a range of different education and care settings moving from one age-grouping or room to another e.g. from babies to toddlers, moving between spaces or experiences during the one day e.g. from indoors to the outdoor environment; or between experiences e.g. from free play to a group experience; or between an experience and a routine e.g. free play to lunch.

Planning and implementing transitions and routines that support individual children while providing adequate supervision allows children the ability to move around their environment with confidence, being able to predict where they are going, what is coming next and what they need to do. Safe and predictable transitions and routines lead to the adequate supervision of children.

Regulatory changes came into effect on 1 October 2023 that require Approved Provider’s to have in place policy 168(2)(gb) and procedures 102AAB to support the safety of children during transitions between early education and care services and other education services. The intent of these regulatory changes are to reduce the instances of missing or unaccounted for children between leaving one service or school and arriving at another.

Examples of transitions could include, between school and an Outside School Hours Care service (OSHC), or OSHC and preschool/Long day care services. Scenarios will include transitions that are both supervised by service staff and instances where children are not in direct supervision or care of an early education and care service.

The safe arrival of children policy and procedure should be informed by a risk assessment required under Regulation 102AAC. This risk assessment must identify and assess any risks that a child’s travel between the service and any other education or early childhood service may pose to the safety, health or wellbeing of the child, and specify how the identified risks will be managed and minimised. This could include having procedures in place for when a child does not arrive.

The risk assessment should inform the safe arrival of children policy and procedure and be reviewed regularly to ensure a current and relevant risk assessment is in place to support children’s safety.

Volunteers

Volunteers can be included as educators when counting ratios. There are no qualification requirements for OSHC educators in NSW. Volunteers can hold the same legal responsibilities as paid educators.

Ensuring that children are adequately supervised whilst engaging volunteers also means considering;

• qualifications and experience

• working with children check

• the activity risk level
• awareness of the relevant child protection law and understanding of their obligations under it (regulation 84)

• services engaging volunteers are required to have policies and procedures in relation to the participation of volunteers (regulation 168(2)[i])

• staff records must also include details relating to volunteers (regulation 149 and regulation 299[D])

• how the involvement of volunteers may affect children's experiences, interactions, learning and development

• continuity of educators and volunteers, their knowledge of the children and the development of trusting, secure relationships.

Related reports

Economic Effects of a 1:4 Staff-Child Ratio for Under Two Year Olds in Child Care – final report July 2008 (PDF 869 KB)