Wage Inspectorate prosecutes Muffin Break for child safety and employment violations

Victoria’s child employment watchdog, Wage Inspectorate Victoria, is prosecuting Muffin Break’s Southland store in Melbourne for 360 alleged breaches of child employment laws.

Victoria’s child employment watchdog has alleged that Muffin Break in Southland:

  • employed three children under the age of 15 without a permit on 111 occasions;
  • failed to ensure the children were supervised by someone with a Working with Children’s Clearance (WWC clearance);
  • did not give a break to children of at least 30 minutes after every three hours of work;
  • employed children for longer than three hours per day during a school term; and
  • employed children for longer than six hours per day during school holidays.

Each of these breaches holds a maximum penalty of 100 penalty units (currently $18,429). The matter has been listed for a mention in the Melbourne Magistrates’ Court on 15 June 2023.

This case is the eighth child employment prosecution by Wage Inspectorate Victoria in the last 18 months. Many of these prosecutions have related to restaurants and cafes, although there have also be investigations to other workplaces such as chemists, tutoring companies and fashion companies. A prosecution is a regulator’s most serious compliance tool and decisions to take legal action are made in line with its Compliance and Enforcement Policy.

Victoria’s child employment laws require employers of children under 15 to obtain a permit from the Wage Inspectorate before any work takes place. This enables the Wage Inspectorate to check that matters like safety, hours of work, rest breaks and supervision are properly considered before employment starts. Workers under 15 must be supervised by someone who has WWC Clearance, and relevant organisations must comply with the Victorian Child Safe Standards (CSS).

This article summarises the key obligations that apply to organisations who employ children under the age of 15, and lessons from the current prosecution.

Child Employment

In Victoria, employers of children under 15 must comply with the Child Employment Act 2005 (Vic) (Child Employment Act). The Act aims to protect a child’s:

  • health and safety;
  • moral and material welfare;
  • development;
  • attendance at school; and
  • capacity to benefit from instruction.

In order to employ a child under 15, employers must apply for a permit with Wage Inspectorate Victoria. The application must outline details of the child’s prospective employment including their duties, intended hours of work and whether the employment will occur during the school term and during school hours.

If a permit is approved, the employer must ensure a child:

  • only performs light work;
  • is employed for a maximum of three hours per day and 12 hours per week during the school term;
  • is employed for a maximum of six hours per day and 30 hours per week at any time outside the school term;
  • is given a rest break of at least 30 minutes after every three hours of work; and
  • has at least 12 hours between shifts.

A breach of any of these conditions has a maximum penalty of 100 penalty units (currently $18,429) for a body corporate or 60 penalty units (currently $11,095.20) in any other case.

From 1 July 2023, a child employment licensing system will replace the existing permit system allowing employers to employ multiple children under one licence.

Child Safe Standards

Organisations that employ children under 15 and are required to have a child employment permit must also comply with the CSS1. The CSS sets out mandatory standards which organisations must meet to protect children from harm and abuse. The CSS require that:

  1. Organisations establish a culturally safe environment in which the diverse and unique identities and experiences of Aboriginal children and young people are respected and valued.
  2. Child safety and wellbeing is embedded in organisational leadership, governance and culture.
  3. Children and young people are empowered about their rights, participate in decisions affecting them and are taken seriously.
  4. Families and communities are informed and involved in promoting child safety and wellbeing.
  5. Equity is upheld and diverse needs respected in policy and practice.
  6. People working with children and young people are suitable and supported to reflect child safety and wellbeing values in practice.
  7. Processes for complaints and concerns are child-focused.
  8. Staff and volunteers are equipped with the knowledge, skills and awareness to keep children and young people safe through ongoing education and training.
  9. Physical and online environments promote safety and wellbeing while minimising the opportunity for children and young people to be harmed.
  10. Implementation of the Child Safe Standards is regularly reviewed and improved.
  11. Policies and procedures document how the organisation is safe for children and young people.

On 1 January 2023, the Victorian Wage Inspectorate became a sector regulator, with responsibilities for promoting child safety outcomes, and monitoring and enforcing compliance with the CSS for organisations that employ children under 15.2

In regulating compliance with the CSS, the Victorian Wage Inspectorate has the power to enter and search premises and request documents. Compliance powers range from official warnings and notices to comply, to applications for an injunction or an enforcement order, as seen with Muffin Break. The Magistrate’s Court can also order organisations to pay penalties for their failure to comply.

The maximum penalty for a breach is 120 penalty units (currently $22,190.40) for a body corporate or 60 penalty units (currently $11,095.20) in any other case.

Working with Children’s Check Clearances

There are also a number of requirements for an employer or staff supervising children during their employment. Under the Child Employment Act, the supervision of a child is considered to be ‘child-related work’. Therefore, any person who supervises a child must apply for a WWC Clearance and receive a WWC clearance unless an exemption applies.

People who are exempt from having a WWC Clearance include:

  • a person who is closely related to the child (i.e. family members);
  • registered teachers;
  • police officers;
  • a member of the Australian Federal Police; and
  • a person who is not an Australian citizen and not ordinarily resident in Australia if they do not ordinarily engage in the supervision of children in Victoria.

The supervisor must directly and adequately supervise the child at all times in employment.3 Employers must also have a written record of any person who supervises a child and the number of their WWC Clearance, which must be kept for at least 12 months after the permit expires.4

Practically, this means that employers must ensure that supervisors hold appropriate WWC Clearance, provide appropriate supervision on all shifts when children under 15 are rostered on, and are aware of their obligations, as supervision of children under 15 involves a higher degree of responsibility.

Key Lessons for Employers

The Muffin Break prosecution highlights the complex issues that must be considered to safely and lawfully employ children under 15, and provides an important insight into the way that the Wage Inspectorate is approaching its new compliance powers.

How can we help

Moores supports organisations to safely and lawfully engage younger workers and meet the CSS. Please contact our Child Safety team on (03) 9843 0418 if you would like to discuss any aspects of this article further.

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1 – https://ccyp.vic.gov.au/child-safe-standards/who-do-the-standards-apply-to-page/
2 – Other entities with responsibility for regulating compliance with the CSS include the Commission for Children and Young People (CCYP), the Department of Families Fairness and Housing and Social Services Regulator, Department of Health, Department of Education and Training, and Victorian Registration and Qualifications Authority.
3 – Child Employment Act 2005 (Vic) s 19(1)(b)
4 – Child Employment Act 2005 (Vic) s 19(2)-(3)