Regulation 122 says an educator cannot be included in calculating the educator to child ratio of a centre-based service unless the educator is working directly with children at the service. Regulation 13 defines that: a person is working directly with children at a given time if at that time they are (a) physically present with the children and (b) directly engaged in providing education and care to the children. Both parts must be true at that moment. A cook in the kitchen, a director in the office, an educator on a break or doing programming off the floor does not count, however qualified they are.
Regulation 122 is the rule that decides who counts, and it is the regulation behind most ratio disputes. Regulation 123 sets the numbers; regulation 122 decides which people can be put against those numbers. This page gives the text, the definition it depends on, the common mistakes and what regulators look for.
122 Educators must be working directly with children to be included in ratios
(1) An educator cannot be included in calculating the educator to child ratio of a centre-based service unless the educator is working directly with children at the service.
(2) In this regulation, a reference to an educator includes an early childhood teacher or a suitably qualified person who is counted as an educator under regulation 123(3).
13 Meaning of working directly with children
For the purposes of these Regulations a person is working directly with children at a given time if at that time the person (a) is physically present with the children; and (b) is directly engaged in providing education and care to the children.
Source: Education and Care Services National Regulations, reprint current as at 12 August 2026. The penalty and compliance consequences for a ratio breach sit in section 169 of the National Law (offence relating to staffing arrangements), with penalties increased from 1 January 2026 by the Early Childhood Legislation Amendment (Child Safety) Act 2025.
| Situation | Counted in the ratio? | Why |
|---|---|---|
| Educator in the room engaged with children | Yes | Both limbs of regulation 13 are met. |
| Early childhood teacher working with children | Yes | Regulation 123(3) and (4) count the teacher as an educator, subject to regulation 122. |
| Educator on a meal break or rest break | No (national rule) | Not physically present or not engaged. Queensland (r 299F to 299H), South Australia (r 325A) and Tasmania (r 342A) have Chapter 7 provisions that let an educator on a rest pause or short absence be counted for a limited time; check your jurisdiction. |
| Director or nominated supervisor in the office | No | Not physically present with the children. |
| Educator doing programming or documentation away from children | No | Not directly engaged in providing education and care. |
| Educator in the room but on the phone, cleaning or on a device | Doubtful | Physically present, but regulators question whether the person is directly engaged. Expect a supervision finding under Element 2.2.1 as well. |
| Cook, cleaner, administrative staff | No | Not educators providing education and care, regardless of qualification. |
| Volunteers and students on placement | No | Not educators engaged by the service for ratio purposes; they must be recorded under regulation 149 and supervised. |
| Educator under 18 | Yes, with conditions | Regulation 120: must not work alone and must be adequately supervised by an educator aged 18 or over. |
| Educator moving between rooms (floater) | Only in the room they are in | Counts where physically present and engaged at that moment. See under the roof ratios for how service-wide counting interacts with this. |
Regulation 122 and 123 set a staffing minimum. Section 165 of the National Law separately requires that children are adequately supervised at all times, and Element 2.2.1 of the NQS assesses supervision in practice. A service can be in ratio and still breach section 165, and a service that is over ratio does not get credit for supervision it is not providing. Regulators and assessors read the two together: the question is not only how many educators were counted, but what each of them was doing.
An educator cannot be included in calculating the educator to child ratio of a centre-based service unless the educator is working directly with children at the service. It applies equally to an early childhood teacher or suitably qualified person counted under regulation 123(3).
Regulation 13 defines it: a person is working directly with children at a given time if at that time they are physically present with the children and directly engaged in providing education and care to the children. Both conditions must be met at that moment.
Only while physically present with children and directly engaged in their education and care. A director in the office, on the phone or doing administration is not counted for that period.
Under the national rule, no. Queensland (r 299F to 299H), South Australia (r 325A) and Tasmania (r 342A) have jurisdiction-specific provisions in Chapter 7 of the Regulations allowing an educator on a rest pause or a short absence to be counted for a limited time, subject to conditions; Queensland’s r 299H covers an absence of 5 minutes or less that is not a rest pause, with no other counted educator absent at the same time. Confirm the provision and time limit with your regulatory authority.
A breach of the staffing requirements is an offence under section 169 of the Education and Care Services National Law, with penalties increased from 1 January 2026. Regulatory authorities can also issue compliance directions and notices, and a breach observed at an Assessment and Rating visit is reported under Element 4.1.1 and usually Element 2.2.1.
Describe your room, the time of day and who is where. WIDEN Law answers against regulations 13, 122 and 123 and your state’s Chapter 7 provisions, with the source cited.
14-day free trial, no card →This page is a research summary, not legal or compliance advice. Element and regulation wording is reproduced from the current reprint of the National Regulations; confirm the position with your regulatory authority before relying on it for a compliance decision.