Amidst the crackdown by the Victorian Child Employment Watchdog of several employers in respect for their breaches of child employment laws, employers should be aware of new child employment changes being introduced in Victoria on the 1st July 2023.
The Child Employment (Amendment) Act 2022 seeks to improve the regulation of children employed under the age of 15 in Victoria by imposing stricter penalties and making it simpler for employers to understand their obligations when employing children.
Below lists the set of changes that will take effect on 1 July 2023:
The following sections have had their penalty provisions changed:
- Section 9 - Employment without a permit
- Section 10 - Minimum age of employment
- Section 11 - Employment of children during school hours
- Section 12 - Prohibited employment
- Section 19 - Supervision of children in employment
- Section 23 - Contravention of conditions
The current provisions state that in the case of a body corporate, a breach of the above provisions will amount to 100 penalty units ($18,492) or for any other case, 60 penalty units ($11,095.20). The new changes are significantly more drastic, with breaches by body corporates amounting to 1200 penalty units ($221,804) or for any other case, 240 penalty units ($44,380.80).
A new licensing system will replace the old permit system that was used to employ children under the age of 15. It should be noted that permits currently in place will still continue to operate until their expiry date. Employers wishing to employ children under the new licensing system are expected to meet the "fit and proper person" test. This means that before a new licence is issued, the employer will be assessed on two factors:
- Their compliance with child employment laws; and
- Their compliance with other workplace laws.
What is notable about this change is that it streamlines the process for employers who wish to employ children. Currently employers must apply for a permit for each child under their employment. The new licensing system allows employers to employ several children under one licence streamlining the process.
Definition of Employment
The definition of employment has also been expanded in the changes. The old definition of employment provided that a child is engaged in employment if:
- They are engaged under a contract of service or a contract for services (Written or Unwritten); and
- In a business, trade or occupation carried on for profit under any other arrangement whether or not the child receives payment or other reward for performing that work.
Under the new provision a child will be regarded as employed if:
- They perform work under a contract of service or a contract for services (Written or Unwritten); and if
- They perform work other than under a contract referred to
above, in a business, trade or occupation for the benefit
- The business; or
- A person involved in the business.
A licence will not be required for children working in their own family's business. However, the definition for family business has also been narrowed down. Rather than being a business, trade or occupation carried on by a parent or a guardian, a family business can now only be carried out by either a parent or another person with parental responsibility. This effectively means that traditional guardians (i.e. close relatives, family friends and etc.) are excluded from this and instead, only someone who customarily or legally has the same duties, powers, responsibilities and authority as a parent in relation to the child can be regarded as a family business. In all other cases outside of this, a licence is needed.
In the context of a family business, a child must be either directly supervised by their parent or another responsible adult within the physical premises. Children not working in a family business must be supervised by someone aged 18 years or older and that person must have a valid WWC clearance.
New Powers for Wage Inspectorate
To crack down on any breaches of child employment laws, the Wage Inspectorate has been afforded a new power to issue compliance notices to employers that they reasonably believe contravened the Act. Usually the compliance notice will contain information on how:
- the employer has breached the workplace law;
- what the employer needs to do to fix;
- the time that the employer has to fix the issue;
- state the penalty if the alleged contravention is not fixed; and
- if applicable, how the court can review the decision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.