Child Employment Act 2003

VersionNo. 019

Child Employment Act 2003

No. 81 of 2003

Version incorporating amendments as at
30 September 2015

table of provisions

SectionPage

1

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

3Definitions

4What is employment?

5What is light work?

6Supervisors include tutors and chaperones in entertainment

7Act binds the Crown

Part 2—Employment of children

Division 1—When may children be employed?

8When may a child be employed?

9Employment without a permit

10Minimum age for employment

11Employment of children during school hours

12Prohibited employment

Division 2—Permits for children to engage in employment

13Application for a permit

13AMultiple children or occasions of employment

14Investigation of an application for a permit

16Determining an application for a permit

16ASupplementary permits

17Permit conditions

18Secretary may vary or cancel a permit

18AVariations that may be made to a permit

18BRecord keeping by employers

19Supervision of children in employment

Division 2A—Working with Children Act 2005

19AApplication of Working with Children Act2005

19BExemptions from working with children check

Division 3—General conditions of employment

20Condition 1—light work

21Condition 2—hours of work

22Condition 3—rest breaks

23Contravention of conditions

Division 4—Employment in family businesses

24When may a child be employed in a family business?

25Provisions that do not apply to employment in family businesses

26Supervision in family businesses

Division 5—Employment in entertainment

27When may a child be employed in entertainment?

28Provisions that do not apply to employment in entertainment

29Mandatory code of practice

30What will the mandatory code contain?

31How is the mandatory code made?

32Effect of the mandatory code

33Variation and revocation of the mandatory code

34Availability of the mandatory code

Part 3—Restrictions on activities not constituting employment

35Restriction on certain activities

36Non-profit organisations—restricted hours for outdoor activities

Part 4—Compliance

Division 1—Child employment officers

37What are the functions of child employment officers?

38Appointment of child employment officers

39Identity cards

40Police to assist child employment officers

41When may powers be exercised?

42Power of entry

43Powers on entry

43APower to give directions

44Power to require information or documents

45Retention of documents

46Confidentiality

Division 2—Offences

47Failing to produce documents, hindering child employment officers and giving them false information

48Protection against self-incrimination

49Impersonating child employment officers

49AWho can prosecute under this Act?

49BJudicial notice of signatures

50Proceedings for offences to be brought in Industrial Division of the Magistrates' Court

50AOffences by bodies corporate

50BConduct by officers, employees or agents

51Offences by unincorporated associations

Part 5—General

52Delegation

53Regulations

Part 6—Repeals, amendments and transitional provisions

54Existing permits and applications

55Existing police checks and declarations

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Endnotes

1General information

2Table of Amendments

3Amendments Not in Operation

4Explanatory details

1

VersionNo. 019

Child Employment Act 2003

No. 81 of 2003

Version incorporating amendments as at
30 September 2015

1

Part 1—Preliminary

Child Employment Act 2003
No. 81 of 2003

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

S.1 substituted by No.26/2010 s.4.

1Purposes

The main purposes of this Act are to—

(a)regulate the employment of children under the age of 15 years;

(b)protect those children from performing work that could be harmful to their health or safety, their moral or material welfare or development or the attendance at school of those children or their capacity to benefit from instruction;

(c)provide a system of permits to allow the employment of children under the age of 15years;

(d)allow children under the age of 15years to work in family businesses without a permit;

(e)provide for the supervision of children in employment by persons with a current assessment notice under the Working with Children Act 2005;

(f)set out general conditions of employment for children under the age of 15years;

(g)provide for a mandatory code of practice for the employment of children under the age of 15years in the entertainment industry;

(h)prohibit the employment of children under the age of 15years in certain kinds of work;

(i)empower the Governor in Council to declare kinds of employment prohibited for children under the age of 15 years;

(j)set out offences;

(k)provide for the appointment of child employment officers and the powers of those officers to ensure compliance with the Act.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 July 2004, it comes into operation on that day.

3Definitions

In this Act—

S.3 def. of assessment notice inserted by No.26/2010 s.5(1).

assessment notice means an assessment notice given under the Working with Children Act 2005 to an applicant for a working with children check under Part 2 of that Act;

child means a person under 15 years of age;

child employment officer means a person appointed under section 38;

S.3 def. of declaration of suitabilityrepealed by No.26/2010 s.5(4).

*****

S. 3 def. of Departmentamended by Nos43/2012 s.3(Sch. item4.1), 70/2013 s.4(Sch. 2 item 8.1).

Department means Department of State Development, Business and Innovation;

S.3 def. of door-to-door sellingamended by Nos26/2010 s.5(2), 72/2010 s.48(Sch. item4).

door-to-door selling, in relation to a child, means selling by the child of any goods or services at any premises other than premises occupied by the child's employer, and includes the child making an unsolicited consumer agreement within the meaning of the Australian Consumer Law (Victoria) with a purchaser, but does not include selling by the child of goods or services to raise funds for a non-profit organisation if the child is directly engaged by that organisation;

employ has the meaning given by section 4;

employer has the meaning given by section 4;

employment has the meaning given by section4;

S.3 def. of entertainmentamended by No.26/2010 s.5(3).

entertainment means any form of entertainment and includes—

(a)singing, dancing or acting;

(b)playing a musical instrument;

(c)appearing in a radio, television, film or Internet program or production, or any similar program or production;

(d)modelling;

(e)appearing in promotional events or advertising;

(f)working as a photographic subject, whether still or moving;

(g)working in or in relation to a circus;

(h)taking part in a performance that is recorded for use in a subsequent entertainment or exhibition;

(i)working in musical theatre, plays, operas or other live entertainment;

(j)performing in a shopping centre;

(k)preparatory activities to the entertainment except—

(i)screen tests before the child is booked for the entertainment;and

(ii)casting walk-ons;

Examples

Examples of preparatory activities include wardrobe fittings, rehearsals, shoots, promotional activities, sound recordings and reshoots.

S.3 def. of extended family memberrepealed by No.26/2010 s.5(4).

*****

family business, in relation to a child, means a business, trade or occupation carried on by a parent or guardian of the child;

S.3 def. of guardian inserted by No.26/2010 s.5(1).

guardian, in relation to a child,means a person who has been granted (whether alone or with another person or persons) guardianship of the child under the Children, Youth and Families Act 2005or any other Act or law of a State or Territory or the Commonwealth;

inland waters means—

(a)any swamp or lake;

(b)any waterway, channel or anabranch from its mouth to its source and any inlet, backwater or lagoon connected with it;

(c)any other lagoon, backwater, anabranch or billabong;

(d)any reservoir, dam, tank, channel or works for water storage or distribution;

(e)any other waters declared by regulations under the Fisheries Act 1995 to be inland waters for the purposes of that Act;

light work has the meaning given by section 5;

lock-up stage means the stage when a building's external wall cladding and roof covering is fixed, the flooring is laid and external doors and external windows are fixed (even if those doors or windows are only temporary);

mandatory code means the code of practice made under section29 for the employment of children in entertainment;

non-profit organisation means an organisation established for any cultural or charitable purpose, the constitution of which prohibits the distribution of profits to the individual members of the organisation;

S.3 def. of officerinserted by No.26/2010 s.5(1).

officer—

(a)in relation to a body corporate that is a corporation within the meaning of the Corporations Act, has the same meaning as in section 9 of that Act; and

(b)in relation to any other body corporate, means any person (by whatever name called) who is concerned or takes part in the management of the body corporate;

S. 3 def. of parent amended by No. 48/2006 s.42(Sch. item 5).

parent has the same meaning as in the Children, Youth and Families Act 2005;

permit means a permit issued under Division 2 of Part 2;

person includes an unincorporated association;

S.3 def. of police checkrepealed by No.26/2010 s.5(4).

*****

S.3 def. of police officer insertedby No.37/2014 s.10(Sch. item 16.1).

police officer has the same meaning as in the Victoria Police Act 2013;

prohibited employment means any kind of employment that is prohibited by section12;

public place means any open place that is used bythe public, or to which the public has access, whether or not on payment of money, whether or not the place is ordinarily so used and whether or not the public consists only of a limited class of people;

Examples

Examples of public places include—

(a)streets, roads, footpaths and passages (whether or not on private property);

(b)forecourts of public and commercial buildings;

(c)carparks;

(d)parks, gardens and recreation reserves;

(e)racecourses and sports grounds;

S.3 def. of registered pharmacist substituted by No. 80/2004 s.150(Sch.2 item1), amended by No. 97/2005 s.182(Sch. 4 item 8), substituted by No. 13/2010 s.51(Sch. item 10).

registered pharmacist means a person registered underthe Health Practitioner Regulation National Law to practise in the pharmacy profession (other than as a student);

S.3 def. of school day amended by No. 24/2006 s.6.1.2(Sch. 7 item 4.1(a)).

school day has the same meaning as in the Education and Training Reform Act 2006;

school hours means the hours that a school requires a child to attend on any school day;

S.3 def. of school term amended by No. 24/2006 s.6.1.2(Sch. 7 item 4.1(b)).

school term means—

(a)in relation to a Government school within the meaning of the Education and Training Reform Act 2006—theterm as set by the Minister administering Part II of that Act;

(b)in relation to any other school—theterm as set by the school;

Secretary means Secretary to the Department;

sell includes offer for sale and expose for sale;

street trading means selling anything in a public place.

S.4
amended by No. 24/2006 s.6.1.2(Sch. 7 item 4.2), substituted by No.26/2010 s.6.

4What is employment?

(1)For the purposes of this Act, a child is engaged in employment if the child performs work—

(a)under a contract of service or a contract for services (whether written or unwritten); or

(b)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.

(2)In determining whether a child is performing work under an arrangement referred to in subsection (1)(b), the factors that may be taken into account include—

(a)whether the parties intend that the work would constitute employment;

(b)whether the work would commonly attract payment;

(c)whether the primary purpose of the child's work is for another person to derive a profit;

(d)whether the child is subject to the direction of any person who will derive a profit from the child's work.

(3)Employment does not include—

(a)participating in a church or religious service or program;

(b)participating in a project or entertainment the net proceeds of which are applied for the benefit of a church or other religious body or institution established for public worship;

(c)participating in a project or entertainment for the benefit or as part of the activities of the school at which the child is enrolled if the child is under the direction or control of the school;

(d)participating in an apprenticeship, a traineeship or practical training under the Education and Training Reform Act 2006;

(e)undertaking domestic or tutoring activities on an occasional or casual basis at residential premises if no person other than the child will seek or obtain a financial benefit for that employment or engagement;

(f)appearing in or being interviewed in a recording—

(i)of a news or current affairs item if the child is the subject of the news or current affairs item and the child is not presenting the item and does not appear in the item in a scripted or rehearsed way; or

(ii)if the child is in a public place and is providing a spontaneous reply or opinion in response to a question;

(g)door-to-door fundraising for a non-profit organisation if the child is directly engaged by that organisation;

(h)performing work in relation to a sporting activity (including coaching, refereeing or umpiring) except in relation to martial arts, horse riding, gym instruction and any other sporting activity with a high risk of injury that is prescribed by the regulations;

(i)any other activity or arrangement prescribed by the regulations not to be employment.

(4)For the purposes of this Act, a person is taken to employ a child and to be an employer of the child if the child is engaged in employment and—

(a)the person engages the child under a contract of service or a contract for services (whether written or unwritten) or other arrangement; or

(b)the work of the child is for the benefit of that person, whether or not it is also performed for the benefit of another person.

(5)Despite the exclusion of certain sporting activitiesfrom employment by subsection (3)(h), performing work in relation to martial arts, horse riding, gym instruction and any other sporting activity with a high risk of injury to a child that is prescribed by the regulations is to be taken to be employment under this Act.

(6)Despite subsection (4), a person is not to be taken to employ a child or to be an employer of a child if that person is in a class of persons prescribed by the regulations not to be an employer for the purposes of this Act.

S.5 substituted by No.26/2010 s.7.

5What is light work?

(1)For the purposes of this Act, light work means work or any other activity that—

(a)is not likely to be harmful to a child's health, safety or moral or material welfare or development; and

(b)is not such as to prejudice the child's attendance at school or the child's capacity to benefit from instruction.

(2)For the purposes of subsection (1), the following types of work or activity are to be considered likely to be harmful to a child's health or safety unless the risk of harm arising from the work or activity is managed to minimise the risk—

(a)repetitive bending, twisting or lifting;

(b)manually lifting heavy items;

(c)working with or near cooking or any other equipment that may produce high temperatures;

(d)working with sharp instruments or equipment, power operated tools and any other dangerous equipment;

(e)working near moving vehicles;

(f)working at heights;

(g)working with uncontrolled animals;

(h)working in extreme weather conditions.

(3)Subsection (2) does not limit the types of work or activity that may be considered light work under this section.

(4)In determining whether or not any work or activity is light work or is likely to be harmful to a child's health, safety or moral or material welfare or development, consideration must be given to—

(a)the child's age, sex and physical and emotional development and maturity; and

(b)the nature and management of the work or activity and the nature and environment of the workplace where the work or activity is, or is to be, performed.

S.6
amended by No.26/2010 s.8.

6Supervisors include tutors and chaperones in entertainment

A reference in this Act to a person who has or will have supervision of a child includes, in the case of employment in entertainment, a person who tutors or chaperones, or will tutor or chaperone, the child in that employment.

7Act binds the Crown

This Act binds the Crown in right of Victoria and, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Part 2—Employment of children

Division 1—When may children be employed?

S.8
amended by No. 24/2006 s.6.1.2(Sch. 7 item 4.3), substituted by No.26/2010 s.9.

8When may a child be employed?

A child may be employed—

(a)in accordance with a permit and with the prior written consent of the parent or guardian of the child; or

(b)in a family business, in accordance with Division 4.

Note

A child may also be employed in accordance with a work experience arrangement under Part 5.4 of the Education and Training Reform Act 2006—see section 5.4.11 of that Act.

9Employment without a permit

S.9(1)
amended by No.26/2010 s.10(a).

(1)A person must not employ a child unless a permit has been issued for the employment.

Penalty:100 penalty units in the case of a body corporate;

60 penalty units in any other case.

(2)A parent or guardian of a child must not allow the child to engage in employment unless a permit has been issued for the employment.

Penalty:10 penalty units.

(3)Subsections (1) and (2) do not apply to the employment of a child in a family business.

Note to s.9 substituted by No. 24/2006 s.6.1.2(Sch. 7 item 4.4), amended by No.26/2010 s.10(b).

Note

This section also does not apply to the employment of a child in accordance with a work experience arrangement under Part 5.4 of the Education and Training Reform Act 2006—see section 5.4.11 of that Act.

10Minimum age for employment

(1)Subject to subsection (2), the minimum age for the employment of a child is—

(a)11 years of age for any of the following employment—

(i)delivering newspapers;

(ii)delivering pamphlets or other advertising material;

(iii)making deliveries for a registered pharmacist; and

(b)13 years of age for any other employment.

(2)There is no minimum age for the employment of a child in a family business or in entertainment.

(3)A person must not employ a child who is below the minimum age for employment.

Penalty:100 penalty units in the case of a body corporate;

60 penalty units in any other case.

11Employment of children during school hours

S. 11(1) amended by No. 58/2007 s.50.

(1)A person must not employ a child during school hours on any school day unless the Minister has granted the child an exemption from attendance at school under section 2.1.5 of the Education and Training Reform Act 2006.

Penalty:100 penalty units in the case of a body corporate;

60 penalty units in any other case.

(2)A parent or guardian of a child must not allow the child to engage in employment if the nature and extent of the employment is such as to prejudice the child's attendance at school or their capacity to benefit from instruction.

Penalty:60 penalty units.

12Prohibited employment

(1)A person must not employ a child in any of the following kinds of employment—

(a)door-to-door selling;

(b)employment on a fishing boat, other than a boat operating on inland waters;

(c)employment on a building or construction site (whether commercial or residential) at any time before the buildings on the site are at lock-up stage;

(d)any kind of employment declared under subsection(2) to be prohibited employment for the purposes of this subsection.

Penalty:100 penalty units in the case of a body corporate;

60 penalty units in any other case.

(2)The Governor in Council, by order published in the Government Gazette, may declare a kind of employment to be prohibited employment for the purposes of subsection (1).

(3)The Governor in Council, by order published in the Government Gazette, may from time to time amend or revoke a declaration made under subsection (2).

Division 2—Permits for children to engage in employment

S.13
substituted by No.26/2010 s.11.

13Application for a permit

(1)A person who proposes to employ a child may apply to the Secretary for a permit for the child to engage in employment.