Waivers

This page is current as of 1 October 2017.

The following series of fact sheets have been developed by the Department of Education and Training (the Department) to provide information for Victorian education and care services regarding:

  1. Waivers
  2. Applying for a waiver – long day care and preschool
  3. Applying for a waiver – school age care

This fact sheet outlines general waiver requirements including the application process and information required for all applications.

The waiver fact sheets are available from Fact sheets and resources.

The waiver application form (SA08) is available from ACECA - Service approvals.

What is a waiver?

Under the Education and Care Services National Law Act 2010 (National Law) (sections 87 and 94), an approved provider may apply to the Department for a waiver from the requirement to comply with prescribed elements of the National Quality Standards and the Education and Care Services National Regulations 2011 (National Regulations). The prescribed elements that can be waived are set out in regulation 41 and 44 (see table attached).

The National Law provides for two types of waivers, these are:

Service waiver

Service waivers have no specified expiry date. While a service waiver is in force the approved education and care service is taken to comply with the prescribed elements specified in the waiver (section 93). A service waiver may be revoked at the Department's discretion or on receipt of an application from the approved provider.

Temporary waiver

Temporary waivers apply for a specified period of no more than 12 months. Approved providers may, however, apply to the Department to extend the period of a temporary waiver by periods of no more than 12 months at a time (section 98). While a temporary waiver is in force the approved education and care service is taken to comply with the prescribed elements specified in the waiver (section 100). A temporary waiver may be revoked at the Department's discretion (section 99).

Approved providers should note that it is essential that the objectives and guiding principles of the National Law and the National Quality Framework are maintained while a waiver is in effect.

What do I need to do before applying for a waiver?

Waivers are generally considered where approved providers can demonstrate extenuating circumstances and genuine difficulty in meeting the requirements of the National Quality Standards and the National Regulations.

Prior to making an application for a waiver, approved providers should explore all possible ways to meet the requirements of the National Quality Standard and the National Regulations. A waiver will only be considered where the approved provider is operating in compliance with all other requirements of the National Quality Framework.

How do I apply for a waiver?

Waiver applications must include details and evidence of any attempts made to comply with the requirement that is the subject of the application and the measures being taken, or to be taken, to protect the wellbeing of children being educated and cared for by the service during the waiver period.

Depending on the type of service being operated specific considerations may apply. Further information can be found in the following fact sheets:

All waiver applications are subject to a fee. For more information on fees, see: ACECQA Indexation of fees

An application for service or temporary waiver should be completed online via the National Quality Agenda IT System (NQAITS) at ACECQA - National Quality Agenda IT System (NQA ITS).

Before an application will be considered, all sections of the application form must be satisfactorily completed, all supporting evidence must be attached and the prescribed fee must be paid.

What happens next?

The Department's primary consideration when assessing a waiver application is the safety, health and wellbeing of children being educated and cared for at the service.

The Department may request additional information, or visit the service premises or the principal office of the family day care service for the purpose of assessing the application (sections 89 and 96). Where a request has been made for additional information the waiver application cannot be progressed until this is received by the Department.

In deciding whether to grant or refuse to grant a waiver the Department:

  • may consider whether the education and care service is able to meet the prescribed elements of the National Quality Standard and National Regulations by alternative means that satisfy the objectives of those elements and any matters disclosed in the application that are relevant to the application (service waiver, section 90).
  • must consider whether any special circumstances disclosed in the application reasonably justify granting a temporary waiver (section 97).

If a waiver is granted, additional conditions are often applied through an amendment to the service approval. The additional conditions relate to the type of waiver and the relevant element or regulation to which it applies.

Applicants will be notified in writing of the Department's decision within 60 days of receiving a complete waiver application.

Where further information is requested by the Department in response to an application for service waiver or temporary waiver the time period for responding to the Department’s request is excluded from this 60 day limit.

If the waiver is granted the Department will reissue the service approval specifying the element or elements of the National Quality Standard and regulations to which the waiver applies (sections 91(4) and 98(4)) and any additional conditions.

Once a waiver is granted, the service must ensure they meet the requirements of the National Quality Framework and any additional conditions imposed on the service approval or the Department may take action to revoke the waiver.

Further, under section 51(8) of the National Law an approved provider must comply with the conditions of a service approval. A breach of a condition on a service approval, including those placed there as part of the waiver process, is a serious offence.

Applying for an extension of a temporary waiver

Temporary waivers can be granted for no more than 12 months. Applications for an extension of a temporary waiver will generally be considered where the service needs additional time to meet the nominated element(s) of the National Quality Standard and the National Regulations (for example, where an educator is enrolled in and studying for an approved qualification and needs additional time to complete their studies).

The extension of the waiver can be for no more than 12 months at a time. The application must be submitted using form SA08 Application for service or temporary waiver available from ACECQA - Service approvals and is subject to the current prescribed fee. In most cases, the supporting evidence submitted with the original application does not need to be resubmitted however the application must outline why an extension is needed and include evidence of progress towards meeting the nominated requirements.

If the application is not for an extension of the existing waiver in the same circumstances it is a new application and the requirements outlined in the relevant applying for a waiver fact sheet apply.

Requirement to display waiver

The National Law (section 172(e)) requires the service approval and the details of any waivers held by the service to be clearly displayed at the main entrance to the service. In accordance with regulation 173(1)(e) of the National Regulations, the approved provider must display the following information about a waiver:

  • the elements of the National Quality Standard and the regulations that the waiver applies to; and
  • the duration of the waiver; and
  • the type of waiver (service waiver or temporary waiver).

Service and Temporary Waivers

(Requirements for which an approved provider may apply for a service or temporary waiver) Regulations 41 & 44

SERVICE AND TEMPORARY WAIVER – ALL SERVICES
National Quality Standard
Quality area 3Physical environment
Quality area 4Staffing arrangements
Regulations*
104Fencing
107 Space requirement – indoor
108Space requirement – outdoor
110Ventilation and natural light
SERVICE AND TEMPORARY WAIVER – CENTRE-BASED SERVICES ONLY
Regulations*
111Administrative space
112Nappy change facility
113Outdoor space – natural environment
114Outdoor space – shade
115Premises designed to facilitate supervision
120Educators under 18 to be supervised
123Educator to child ratios – centre-based services
126Centre-based services – general educator qualifications
130-134(Early childhood teacher requirements)
SERVICE AND TEMPORARY WAIVER – FAMILY DAY CARE SERVICES ONLY
Regulations*
​41​Principal office location
117Glass
124Number of children who can be educated and cared for – family day care educator
127Family day care educator qualifications
128Family day care coordinator qualifications
TEMPORARY WAIVER ONLY – ALL SERVICES
Regulations*
136First aid qualifications

*or any savings or transitional regulation in chapter 7 which applies in place of these regulations.