CLIPS Word Template

CHCORG614A: Manage a service organisationEnable organisation to meet legal requirementsContents

4Implement mechanisms to ensure relevant commonwealth, state and local government legal requirements are identified and adhered to

4Legislation

8Legal requirements and obligations for staff

11Taxation obligations

13Insurance

14Superannuation

15Regularly update information about current legal requirements

15Legislation

15Government Departments

15Childcare specific sites

Implement mechanisms to ensure relevant commonwealth, state and local government legal requirements are identified and adhered to

Every workplace has legislation and awards that apply to that particular industry – and the childcare industry is no exception. It is important to realise that all staff need to have some general knowledge of the employment awards and the legislation that is relevant to their particular workplace. Trained staff will be required to have more in-depth knowledge as they hold positions that carry greater responsibility.

So what legislation and awards do we need to know about? This will depend on the type of service and the state you work in. Some legislation is enacted by state government and therefore is only relevant to that state, while other legislation is passed at a national level and applies regardless of the state you work in. Some legislation applies to specific services, such as long-day care or family day care, while other covers all services provided to minors. The same applies to awards.

In this topic we will consider federal legislation (which applies to all of Australia) and NSW state legislation and awards. If you are studying in a different state you will need to find out about that state's awards and legislation.

Legislation

Legislation is the act or process of making laws and can be federal or state based. It can cover many facets of our lives including civil and criminal. These laws provide us with rules by which we live in society and conduct business, and often carry a penalty if not adhered to.

Commonwealth legislation

Equal Opportunity for Women in the Workplace Act 1999

An Act to promote the principle that employment for women should be dealt with on the basis of merit.

Human Rights and Equal Opportunity Commission Act 1996 (Commonwealth. No. 126, 1986)

Allows The Human Rights and Equal Opportunity Commission HREOC to investigate complaints under acts such as the Disability Discrimination Act 1992, Sex Discrimination Act 1992, and the Racial Discrimination Act 1975, as well as dealing with infringements of human rights. It states that people have a right to respect and dignity, assistance to become as self reliant as possible, education, training and work, family and social life and protection from discrimination. www.hreoc.gov.au/about_the_commission

Ombudsman Act 1976

To investigate action that relates to a matter of administration, taken by a Department, or by a prescribed authority, and in respect of which a complaint has been made to the Ombudsman

Privacy Act 1988 (Commonwealth. No. 119, 1988)

An Act to make provision to protect the privacy of individuals, and for related purposes

Racial Discrimination Act 1975 (Commonwealth. No 52, 1975)

An Act relating to the elimination of racial and other discrimination.

Sex Discrimination Act 1984 (Commonwealth. No. 4, 1984)

An Act relating to discrimination on the ground of sex, marital status, pregnancy, potential pregnancy or family responsibilities or involving sexual harassment

State (New South Wales) legislation

Anti-Discrimination Act 1977 No 48 (NSW)

Makes it illegal to treat people differently and unfairly based on their race, gender, sexual preference, marital status, age, physical or intellectual impairment or carer responsibilities.

Children and Young Persons (Care and Protection) Act 1998 No 157 (NSW)

An Act to provide for the care and protection of, and the provision of services to, children and young persons

Children’s Services Regulation 2004 No 260

Regulations made under the Children and Young Persons (Care and Protection) Act 1998

Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 No 13

An Act to amend the Children and Young Persons (Care and Protection) Act 1998 and other legislation to give effect to recommendations of the Special Commission of Inquiry into Child Protection Services in NSW; and for other purposes.

Child Protection Legislation (Registrable persons) Amendment Act 2009 No 93

An Act to amend the Child Protection (Offenders Registration) Act 2000 and the Child Protection (Offenders Prohibition Orders) Act 2004 to make further provision with respect to registrable persons.

Commission for Children and Young People Act 1998 No 146

An Act to establish the Commission for Children and Young People and provide for its functions; to provide for safeguards and impose prohibitions relating to child-related employment; to amend certain Acts; and for other purposes.

Crimes Act 1900 No 40 (NSW)

Requires anyone who has information about a serious crime to report it.

Environmental Planning and Assessment Act 1979 No 203

An Act to institute a system of environmental planning and assessment for the State of New South Wales

Food Act 2003 No 43

Industrial Relations Act 1996 No 17

To provide a framework for the conduct of industrial relations that is fair and just,

Local Government Act 1993 No 30

Occupational Health and Safety Act 2000 No 40 (NSW)

This is the main piece of health and safety legislation, with related Occupational Health and Safety Regulations (2001). These can be accessed via WorkCover (the administering body) at www.workcover.nsw.gov.au

Occupational Health and Safety Regulation 2001 No 648

Regulations made under the Occupational Health and Safety Act 2000

Ombudsman Ac 1974 No 168

Public Health Act 1991 No 10 (NSW)

An act relating to the maintenance of proper standards of health for the public; and for other purposes

Smoke-Free Environment Act 2000 No 169

The object of this Act is to promote public health by reducing exposure to tobacco and other smoke in enclosed public places.

Vocational Education and Training Act 2005 No 100

To establish a registration and accreditation framework for vocational education and training, in particular by applying nationally agreed standards

Workplace Injury Management and Workers Compensation Act 1998 No 86 (NSW)

Protects the rights of workers who have been injured at work.

In addition to the above, childcare centres must also adhere to a range of various regulations, standards, recommendations and guidelines.

Other recommendations, standards

Duty of care

Duty of care is a difficult term to define as there isn’t a legal definition of the concept (except in occupational health and safety legislation). Duty of care comes under the legal concept of negligence, and negligence belongs to the domain of common law. Common law is also know as judge-made law as the decision about guilt is decided using legal precedence and community attitudes and expectations. That is, there hasn’t been an Act of Parliament passed defining what is legal or illegal but rather the decision is based on what is considered appropriate or not appropriate at a particular time in history.

Building Code of Australia (BCA)

The Building Code of Australia is produced and maintained by the Australian Building Codes Board (ABCB) on behalf of the Australian Government and State and Territory Governments

http://www.abcb.gov.au

Standards Australia

Some standards of interest

AS 4685 (Set)2004, Playground Equipment Safety Set

AS/NZS 4422: 1996, Playground Surfacing (Standards Australia 1996)

AS/NZS 4486.1:1997, Playgrounds and playground equipment - Development, installation, inspection, maintenance and operation

AS/NZS 2130:1998, Cots for day nursery, hospital and institutional use - Safety requirements

NSW Offfice of Industrial relations

Lists of awards. http://www.industrialrelations.nsw.gov.au/Home.html

NSW Interagecy Guidelines for Child Protection Intervention (2006)

http://www.community.nsw.gov.au/docswr/_assets/main/documents

/interagency_guidelines.pdf

NSW Curriculum Framework for Children's Services

The practice of relationmships: essential provisions for children's services 1996

http://www.community.nsw.gov.au/docswr/

_assets/main/documents/childcare_framework.pdf

National Childcare Accreditation Council Inc.

http://www.ncac.gov.au/

As at 01 February 2009 ‘… all child care services should continue to use the standards in the relevant Quality Practices Guide until further notice’.

Early Childhood Australia Inc.

Code of ethics http://www.earlychildhoodaustralia.org.au/code_of_ethics/

early_childhood_australias_code_of_ethics.html

What a lot of rules to comply with! Fortunately you will have covered many of these in previous relevant units, and some of the above are more applicable to someone building a new child care centre. However it’s time to refresh your memory on some of the legislation that you will need to have a thorough knowledge of on a daily basis.

This all might seem like a lot of irrelevant legal talk—after all, what does it have to do with looking after children? Yet the children’s services industry is highly regulated and for very good reason. All this legislation, regulations and supporting documents assist those working in the industry to provide the best quality care for children while raising the professional standing of the industry.

Activity 1

Legal requirements and obligations for staff

Awards and classifications

Most industries have awards which are basically rules and regulations that must be followed to ensure the rights of both employer and employees. Awards set out the conditions that apply to employees, including;

· minimum wage rates including penalty rates and rates for juniors

· hours of work

· break entitlements

· leave entitlements including sick leave, annual (holiday) leave and a range of other leave types

Awards also identify the various classifications under that award. Classifications are based on both the qualification level of the employee and the job position being performed. Within the classifications there are steps which relate to the number of years of experience the employee has had. For example, under the ‘Miscellaneous Workers Kindergartens and Child Care Centres (State) Award (482), the classifications include (these are just a few examples);

· Support worker

· Child care worker

· Advanced child care worker

· Advanced child care worker – qualified

· Assistant coordinator

· Coordinator – unqualified

· Coordinator – qualified

For each of the above positions (and the ones that have been left off the list) the award contains a detailed description of the job role and responsibilities.

Activity 2

Enterprise agreements

In some centres enterprise agreements are used rather than the applicable award. Changes to the Federal Industrial Relations system introduced Australian Workplace Agreements (AWA). AWAs are called Enterprise Agreements in NSW. An enterprise agreement is a voluntary agreement negotiated between the employer and the employees and sets out minimum conditions for the workplace. In NSW an enterprise agreement must be approved by the NSW Industrial Relations Commission in order for it to be valid and legal. In approving the enterprise agreement, the Commission ensures that employees are not disadvantaged in any way when compared to the otherwise applicable award.

An employer, before employing someone, must give the person notice that an agreement exists and give access to a copy or summary of the agreement in a language that the person understands. An employee can contact the NSW Industrial Relations Commission with any questions. An enterprise agreement is not enforceable unless it has been approved by the NSW Industrial Relations Commission.

Both an award and an enterprise agreement will cover similar information, including the following:

Arrangement / Name of award / Definitions/ Contract of employment/ Hours / Implementation of 38-hour week/ Rostered days off duty / Classification structure/ Wages / Additional rates and allowances / Saturday and Sunday work/ Overtime/ Payment of wages/ Miscellaneous conditions/ Job sharing/ Relieving on other positions/ Sick leave/ Public holidays/ Annual leave/ Annual leave loading/ Long service leave/ Parental leave / Personal or carers leave/ Bereavement leave/ Jury service / Attendance at repatriation centres/ Redundancy/ In-service – preschools and out-of-school-hours care centres/ Examination and study leave/ Supported wage/ Superannuation/ Anti-discrimination/ Dispute-settling procedure / Exemptions/ Area, incidence and duration.

Sign-in sheets and rosters

It is legally required by both DoCS and the NSW Industrial Relations Commission that the child care centre has a sign-in sheet for staff and a staff roster displayed (See Topic 3; Preparing staff rosters). Information required on the sign-in sheet includes the staff member’s names and space for each staff member to write in and sign both the arrival and departure time.

Activity 3

Pay slips

Another legal requirement when managing staff is to give them a payslip. While this may sound obvious, it wasn’t too many years ago that staff were given an envelope with their name on the front and the cash inside on payday. How times have changed!

You may have seen different payslips and noticed that they have different information, depending upon the employer. However there are legal requirements of what must go on a payslip – some employers choose to include additional information.

The legal requirements as advised by the NSW Office of Industrial Relations are;

· the name and ABN of the employer

· the name of the employee

· the classification of the employee under the applicable award

· the date payment was made

· the period of employment to which the payment relates

· any amount paid as overtime (or enough information for the employee to work this out)

· the gross payment (including overtime and any other payments)

· the amount of tax deducted

· particulars of any other deductions (e.g. union fees)

· any amount deducted as an employee contribution to superannuation (note that this does not include the employer’s contribution)

· the net amount paid.

Fortunately most software packages available include this information, or alternatively, it is quite simple to make up a template to use each pay day.

Taxation obligations

Since this is not an accounting course we are not going to go into taxation obligations in detail. However there are some areas that we will briefly cover in order for you to have a basic awareness.

Pay As You Go Withholding (PAYG)

PAYG simply means the tax that is deducted from the employees’ pay. The other term used for this is withholding which means that the employer is withholding the tax from the employee to give to the Australian Taxation Department (ATO). The amount of tax that you withhold from each employee depends on the amount they are paid and the information you have received from the employer in his/her Tax File Number Declaration and/or a Withholding Declaration. Tax tables to use for the calculation of tax to be withheld are available free of charge from newsagents for weekly, fortnightly and monthly pays/wages. These are called Pay As You Go (PAYG) Withholding tables.

In addition to withholding tax (and forwarding it to the ATO!), employers must provide each employee with a PAYG payment summary – individual non-business form at the end of each financial year. This is more commonly referred to as a group certificate. This document outlines employer and employee details as well as the gross payments made to the employee, the tax withheld and any other necessary information pertaining to that employee (such as allowances paid) to enable the ATO to calculate the tax return (or payment required) for each employee. The employer then has to submit a copy of each payment summary to the ATO along with a PAYG payment summary statement. As the name implies, the summary statement is a summary or collation of the gross wages and tax withheld for all employees. This enables the ATO to cross-check the information being submitted by employees as well as checking that all PAYG withholdings have actually been paid to them!

All necessary taxation forms for the commencement of a new employee are available free of charge from newsagents, while payment summaries (group certificates), payment summary statements and all other forms necessary for lodging business tax are only available through the ATO. Many businesses these days prefer to submit all information on-line, but most forms can be ordered on-line or by phone to be sent to you.

Goods and Services Tax (GST)

GST is a tax that is applied to most goods and services that takes the place of the old sales tax. Unlike sales tax which was a different percentage for different items, GST is a flat rate of 10% for everything. Some items and services do not have GST added. For example, fresh food and many health care professionals such as doctors don’t have to add GST. There is no GST charged on children’s services, providing that the service is a registered and holds a Child Care Provider Number. Therefore the families using child care centres do not have to pay GST on top of their fees. However other income such as fundraising income is not GST free, so 10% of the earnings must be paid to the ATO as GST (see below for how to calculate this).

Any business that has an annual turnover of $50,000 or more (and most child care centres hopefully would!) must register for GST. Centres can then claim the GST that has been applied to items or services that are purchased in order to carry out the business. This is known as an input tax credit. However in order to claim the input tax credit (which effectively means getting back the GST portion of the item or service), you must have a receipt for amounts less than $50.00 and a tax invoice for amounts over $50.00. A tax invoice must itemise the goods and/or services and have an Australian Business Number (ABN) on it, whereas a receipt may be the type of receipt that you get from many smaller shops that simply lists the prices for each item and the total amount paid. Tax invoices and receipts should provide a key to indicate items that have had GST applied and while many businesses also have the total of the GST applicable to the sale on the receipt, some don’t so it is important to know how to calculate this. A frequent mistake is to divide the sale or item total by ten to work out the GST. However this doesn’t actually work! What you must do is divide the total amount by 11 in order to work backwards and calculate what the 10% GST actually was! GST payments and credits are reported to the ATO in a Business Activity Statement (or BAS) which is what we will now have a look at.

Business Activity Statement (BAS)

In addition to submitting annual tax returns for the business, a BAS must be submitted. The BAS can be submitted monthly or quarterly (note that businesses with an annual turnover of more than $20,000,000 can submit a BAS annually), and can be submitted in paper form or on-line.

To simplify it, the BAS is a report stating the total income you have received in the reporting period, the total expenditure, GST payable to the ATO (minimal since child care centres do not charge GST on their fees), GST being claimed back by you as input tax credits, the gross amount of wages paid, and the amount of PAYG withholdings submitted to the ATO. Fines apply for businesses submitting their BAS late.

Insurance

As you can imagine, there are many insurance requirements in a child care centre. While not all are compulsory it is generally unwise to carry out a business without adequate protection from any number of unforseen or unfortunate events.

The main types of insurance that are recommended (or compulsory) for child care centres to have are:

· Public liability – legally required by DoCS in NSW to the amount of $10,000,000. This provides insurance against claims for personal injury or property damage that occurs on the premises of your business.

· Professional indemnity – provides insurance against third party claims that occur due to any act, omission or error of employees of the centre.

· Building insurance – the same as building insurance on a home, this insurance covers damage to the centre structure that may be caused by fire, flooding, storm damage etc.

· Business insurance – business insurance packages are available that are tailor made for each individual business and can cover things such as;

· Contents – similar to contents insurance for homes, this covers all equipment, resources, toys etc. and can cover electronic equipment.

· Disruption to business – covers the loss of fees if the business experiences any event that causes temporary closure, such as severe damage to the building due to fire.

· Burglary – covers the replacement of stolen items plus the cost of repairing any damage caused by the burglar. Can also cover glass breakage if not covered by the building insurance.

· Theft or money insurance – covers money stolen either from the premises or in transit to the bank. Different options and amounts of cash covered will attract different insurance premiums.

· Vehicle insurance – generally comprehensive insurance as well as third party/property will be required if using a vehicle to transport children (e.g. before and after school bus or van).

· Workers’ Compensation – a compulsory insurance taken out in order to cover wages and medical expenses for employees injured or taken ill as a direct result of their employment.

· Income Protection – insurance similar to Workers’ Compensation, except for owners who are not ‘employed’ by the centre. This would apply to anyone who is a sole proprietor or in a partnership, since unlike a company, they are not employed by the company and are therefore not covered by Workers’ Compensation.

Superannuation

Paying superannuation contributions on behalf of employees is a legal requirement under The Superannuation Guarantee (Administration) Act 1992. Superannuation is currently paid at 9% of the employee’s gross wage (this is not deducted from an employee’s wage), although this figure is subject to change. Superannuation must be paid for all employees and while there are exceptions to the rules of who is eligible to have superannuation paid for them, the only one that applies to child care is the rule that states that you are ineligible if you earn less than $450.00 in a calendar month. Failure to pay superannuation on time (quarterly or monthly, depending on the business) results in quite hefty penalties.

Employees are also entitled to make their own contributions from their wages, and depending upon the Government in power, the Government may match employee contributions dollar for dollar up to a certain amount.

More information about superannuation and the Superannuation Guarantee can be found on the ATO website (www.ato.gov.au).

Regularly update information about current legal requirements

It is really essential to keep up-to-date with all your legal requirements. Do a monthly check of the legislation on the following sites to ensure that the copies of the legislation you have are current.

Legislation

NSW Government: www.legislation.nsw.gov.au (The official NSW website)

Australasian Legal Information Institute: www.austlii.edu.au (Has all legislation for Australia, including NSW and Commonwealth)

Government Departments

Office of Industrial Relations: www.industrialrelations.nsw.gov.au

Australian Taxation Office; www.ato.gov.au

Childcare specific sites

National Childcare Accreditation Council www.ncac.gov.au

Department of Community Services; www.community.nsw.gov.au

Early Childhood Australia; www.earlychildhoodaustralia.org.au

Community Child Care Co-operative: a peak organisation for children's services in NSW to promote, support and advocate for good-quality children's services. It produces Rattler and Broadside magazines: http://www.ccccnsw.org.au/index.html

Community Builders NSW (1994) ‘A guide to submission writing’, available online at http://www.communitybuilders.nsw.gov.au At the home page type in: /finding_funds/submissions/submissions.html

National Family Day Care Council of Australia: www.familydaycare.com.au

Network of Community Activities: www.netoosh.org.au

NSW Department of Community Services: www.community.nsw.gov.au

NSW Office of Child Care: www.community.nsw.gov.au

NSW Commission for Children and Young People: www.kids.nsw.gov.au

Children’s Services Central: supporting the provision of quality, inclusive children’s services. Children’s Services Central is the Professional Support Co-ordinator in New South Wales and is an initiative funded by the Australian Government under the Inclusion and Professional Support Program. Children’s Services Central is managed by key organisations that resource and support the sectors of children’s services in New South Wales. http://www.cscentral.org.au/

Diploma of Children’s Services: CHCORG614A: Reader LO 9375

© NSW DET 2010

Diploma of Children’s Services: CHCORG614A: Reader LO 9377

© NSW DET 2010