Child Employment Regulations 2004 - Consultation Paper

Before remaking regulations, the Minister for Industrial Relations must consult with affected parties and assess the impacts of the regulations on individuals and groups.

The Regulations are made under section 53 of the Child Employment Act 2003 (Act). The Act was recently amended to introduce a streamlined licensing system to replace the current individual permit system and improve the overall operation of Victoria’s child employment laws. Those amendments take effect on 1 July 2023.

The review of the Regulations has been expedited to ensure they align with the amended Act as soon as possible.

The current Regulations

The Regulations currently do two things:

1. They provide additional details about the record-keeping requirements in the Act. For example, they require employers to record start and finish times and number of hours worked and outline how those records are to be maintained.
2. They prescribe the consent form for occupier’s consent for a child employment officer to enter residential premises.

By prescribing record-keeping requirements, the Regulations ensure compliance and enforcement of the Act’s objectives, including the record-keeping provisions in section 18B.

As Victoria moves from a permit system to a licensing model, an increase in the reliance on records to demonstrate compliance to the regulator may be necessary.

The Regulations also prescribe the Occupier’s Consent Form, which allows an Authorised Officer to enter a residential premises. This form ensures the occupant is given a reason for the officer’s visit and knows they can refuse entry.

Possible new regulations - infringements

It is proposed to make several Act offences ‘infringeable offences’ in the Regulations. To achieve this, the current Regulations need to be amended to prescribe certain offences under the Act as punishable by an infringement notice.

Infringements are an alternative means of dealing with low-level offences, enabling the offence to be dealt with by payment of a fine, rather than prosecution in court. Any infringement notices are subject to the requirements under the Infringements Act 2006 (Vic).

Having offences dealt with under an infringement system has a number of advantages for both the regulator and employers who have contravened an infringeable provision, including:

• the avoidance of a conviction being recorded once an infringement is paid
• certainty of the penalty amount needed to finalise a matter
• lower maximum fine levels than may apply if the offence is prosecuted in court
• avoiding the costs and time of court proceedings.

The introduction of infringement notices also provides an additional compliance and enforcement tool to the Wage Inspectorate for less serious breaches of the Act that may not warrant prosecution.

There are several factors being considered before determining which offences will be suitable for infringements, including:

• the elements needed to be proven in relation to the offence
• the severity of the conduct
• the ability to ensure consistent application of the law
• any other potential impacts.

Possible new regulations – alignment with the Act

There are several new provisions in the Act which come into effect on 1 July 2023, including:

• an amended definition of ‘employment’
• new requirements for supervision in auditions
• adding a requirement that records with respect to supervisors need to be kept for 5 years
• increases to the age of persons who supervise children in the workplace.

In light of these changes, there is an opportunity to increase clarity around the operation of these new provisions through additional prescription in the Regulations. Any new regulations would need to be assessed to ensure they are proportionate and effective.

Questions

1. Do you have any comments about the existing record-keeping requirements in the Regulations? Is there any further information that would assist you to comply with record keeping requirements?
2. Do you have any comments about the existing Occupier’s Consent Form? Does it clearly explain what it does/does not allow?
3. Do you have any comments about prescribing some offences in the Regulations as infringement offences?
4. Are there any changes in the Act (described above) which take effect on 1 July 2023 that you feel could benefit from additional regulatory clarity?

Responses should be sent to irv.info@dpc.vic.gov.au by 7 July 2023.