Thursday, 23 June 2022

Child Employment Amendment Bill 2022

Second reading

Debate resumed on motion of Mr LEANE:

That the bill be now read a second time.

Mr ONDARCHIE (Northern Metropolitan) (11:43): I rise now to speak to the Child Employment Amendment Bill 2022, a bill that proposes to amend the Child Employment Act 2003 in a number of things: to amend the meaning of ‘employment’ for the purposes of the principal act; to replace child employment officers with authorised officers and provide for the appointment and powers of authorised officers; to enable the Wage Inspectorate Victoria to issue compliance notices for contraventions; to increase the penalties for certain offences; to provide for the criminal liability of nominated officers and employer representatives in certain circumstances; and to amend the Child Employment Act 2003 to provide a new system of licence to allow the employment of children under the age of 15 years.

In terms of the review of the act, the main provisions are around this. In 2019—as we look at this bill—research was undertaken regarding child employment in Victoria. The research identified that 35 per cent of kids under the age of 15 were employed in retail and 21 per cent of children under the age of 15 were employed in food services, with the entertainment industry the next one. It also found that many employers were unaware of the act but had a widely and wrongly held belief that children can be employed from the age of 14 years and nine months. I have always thought that. I have always thought that kids can get a job, and my grandchildren I know cannot wait until they are 14 years and nine months so they can go and work at the Cheesecake Shop or Macca’s or something. I have known it forever, and when I have talked to people over the last few days, they have said, ‘It’s always been 14 years and nine months’. Many people have always thought that. I see Mr Finn nodding in agreement. We have always thought it was 14 years and nine months. Well, in fact it is not the case that children can be employed from the age of 14 years and nine months, so this bill looks to do something about that. Industrial Relations Victoria have conducted a fair bit of consultation with stakeholders, which led to the rewriting of the act, and I will talk more about that with the minister, should we get to the committee stage of this bill.

Let us talk about some of the reforms in this bill today. Under the current act employers are obliged to obtain a permit for each individual child they engage. This means that some employers who engage children frequently, such as those in the entertainment industry, can have hundreds of permits at any one time. In the 2018–19 period there were over 11 000 permits issued, so the move of the licensing system that we are going to go through today, should this bill pass, will reduce the administrative burden significantly, I think. The bill seeks to create a licensing system where an employer is only required to obtain a single licence to employ children—much more efficient for business, I would have thought.

The bill creates two distinct licences: an entertainment licence and a general industry licence. When we think of the entertainment licence contained therein, there will be a requirement to identify a nominated officer and an employer representative. A nominated officer will be an identified officer within the company’s management, whilst the employer representative will be a company employee who has day-to-day engagement with a child performer. A licence applicant will also be required, as we would expect, to satisfy a fit and proper person test. Additionally, the new licensing system will be risk based, with targeted information provided according to associated risk. For example, across the road here we have Harry Potter going at the moment, and we have a number of theatrical plays going on at any one time. If children are employed, right now under the current system we need an individual permit for every one of those children. It is a difficult process. Under this system the promoter and those staging the event will be able to have a blanket, in a sense, permit with a nominated representative and an employer representative to make sure that the kids are duly looked after. That I would suggest is a much more efficient way for the business to operate, so the Liberal-Nationals will support that change.

There is a new definition of ‘employment’ in the bill. The bill updates the definition of ‘employment’ to recognise that children are engaged in a variety of different ways in activities that may not ordinarily meet the multifactorial common-law test to determine an employment relationship. The bill further recognises that sometimes children are not remunerated in the usual way and may be provided with products, merchandise or experience for the work or tasks they carry out rather than a monetary payment. I have seen that in promotions before for the opening of new sports stores and a whole range of things. The kids that are there to help in the promotion of opening day get new tracksuits or runners or some sort of merchandise instead of a monetary payment.

When we talk about this definition of ‘employment’, as is currently the case, a child working in their family’s business, including on their family’s farm, may continue to do so without needing a permit or a licence, provided they are directly supervised. The bill clarifies that ‘direct supervision’ means direct supervision by the child’s parent, a person who has parental responsibilities or, for limited periods, another responsible adult who works in that family business. The bill provides stronger protections for children by increasing the minimum age of a person supervising a child in the workplace to 18 years, so we cannot have a 16-year-old looking after a kid who is 14 years and nine months, for example.

When it comes to compliance and enforcement this bill substitutes child employment officers with authorised officers and provides them with expanded functions and expanded powers. This includes a power to issue compliance notices and infringement notices, which will provide the wage inspectorate with more options to effectively monitor and enforce compliance within the act. Currently, as it stands, the only option for the wage inspectorate where a breach is detected is prosecution, which is not always an appropriate option and is not always a viable option. In addition it is very costly, and by nature it is very adversarial. Further, this bill will increase penalties for body corporates from 100 penalty units to 1200 penalty units and any other case from 60 units to 240 units. These penalties are very much in line with the Worker Screening Act 2020.

As I said, within the state of Victoria 15 years of age would be the age of an employee who is entitled to relevant junior pay rates where they apply. As I said, there is a common misconception—I have heard it, many people have heard it; people are nodding in agreement with me in the chamber today—that 14 years and nine months is the right age. It is not. I do not know how this happened. I have got no way of tracking back. When I talked to employers over the last few days about this bill and talked to friends and family about it, they were very much of the view that it is 14 years and nine months. I do not know how this started. I cannot track it back. It just became, as somebody said to me last night on the phone, a ‘known fact’. Well, in fact it is not a fact. It is known and it has somehow become the norm, but it is not actually right. I do not know how we got there, but the legislation only applies to children who are over 15 years of age. I do not know how these things happen. Maybe there are some people from the organised labour movement who can identify how this all started.

Mr Gepp interjected.

Mr ONDARCHIE: I do not know how it started. Picking up the interjection, I am not sure Mr David Davis had anything to do with this, to be honest with you. But somewhere, who knows where, people have always thought it is 14 years and nine months. To go back to the quote from last night, people said it is a ‘known fact’. It is not; it just became, somehow.

Children who are aged 11 years and over are able to undertake work in the general industries area. Similarly children who are aged 13 and over can be employed with a general industries permit. That could be hospitality, retail work and that sort of thing. When it comes to the entertainment industry, naturally enough there is no age limit, because, as we know, when we look at TV commercials, TV shows and movies, children of all ages are involved. But they are required to have a permit, and the permit sets out specific conditions, determined conditions, on how that child is allowed to be employed. The licensing provisions of this bill and the new requirement for supervision during the casting and audition process in the entertainment industry as well as the expanded coverage of not-for-profit entities are determined by this legislation, should it pass the house, to commence on 1 July 2023. The remainder of the bill, outside of the provisions for licensing provisions around casting and auditions, will commence on the day after the day on which the bill receives royal assent.

We have consulted widely, and I take my hat off and pay tribute to the Shadow Minister for Industrial Relations and Workplace Safety, Nick Wakeling, who has done a lot of work on this. He, on behalf of the Liberal-Nationals coalition, went out to a number of groups, including the Australian Industry Group, the Housing Industry Association and the Master Plumbers. He consulted with Russell Kennedy Lawyers, with the Master Builders Association of Victoria, with Uber, with the Police Association Victoria, with the Victorian Automotive Chamber of Commerce, with the Victorian Chamber of Commerce and Industry, with the Victorian Transport Association, with QCs, with the Council of Small Business Organisations Australia, with Deliveroo, with HR Legal and other members of the legal profession, with the Master Grocers Association, with Nursery and Garden Industry Victoria, with the National Road Transport Association, with the Property Council of Australia, with Amazon, with the Laundry Association Australia, with the Civil Contractors Federation and of course with the Victorian Farmers Federation as well. We have consulted very widely on this bill, and there have not been any major objections, because these changes have been broadly supported by many of those stakeholders.

But I am worried. I am worried that, while stakeholders have not raised significant issues with the bill, we are imposing a new system of regulation that may impact on small business across this state. Members have heard me talk about support for small business in this place a number of times. It is important that any change of regulation does not add an additional impost to small business. Small businesses are doing it pretty tough at the moment, particularly in hospo and in retail. They talk to me regularly about the prices of things going up, they talk about the costs of electricity and gas to their businesses going up and they talk about not having rent relief despite times being tough, and getting employees is the toughest thing for them right now. Getting people into hospitality is the toughest thing. As people tell me when I chat to members of my community regularly, lining up for a latte in the morning is taking a lot longer than it used to, because they just cannot get workers.

Why is that? Well, I think the pandemic had a bit to do with that in terms of people moving away. We know 32 000 Victorians left this state because of the continued lockdowns and because of curfews. The house will remember that there were curfews imposed at very short notice, where people were not allowed to go out between 9.00 pm and 5.00 am. That put pressure on people as well, and as a result Victorians left. They just packed up and went. What is interesting about that is that, as it affected Victorians, people wanted to know, ‘Who decided this? Who decided to put red tape around the children’s playgrounds? Who decided you should lock us up from 9.00 pm to 5.00 am every day? Where did that decision come from?’. Over time this has affected small businesses because people have left this state, but we cannot actually determine who made that judgement. There has been some rhetoric that it was made by health professionals, but they have suggested to many others, including the Shadow Minister for Health, that in fact that was not part of the evidence provided at all. It was made by somebody, and I think we know who. The ongoing effect of those decisions has clearly affected small business, opportunities for employment and costs, and that is totally unacceptable.

But in rolling out this bit of legislation it is critical that Wage Inspectorate Victoria undertakes a significant information campaign to ensure that businesses—small businesses particularly, family-run businesses, hospo and retail—are very much aware of what these changes mean, and I will be asking the minister about that in the committee stage of this bill today. I will be asking the Attorney-General in the committee stage of this bill today to outline for this house how Wage Inspectorate Victoria plans to have a significant information campaign for businesses on how these changes are going to affect them. We cannot just drop it on them, like a curfew was dropped on Victorians, like wrapping up playgrounds was dropped on Victorians and like all of those sorts of things were dropped on Victorians at short notice. You cannot do that to business. So I will be asking the Attorney-General in the committee stage about how they plan to do that. Furthermore, this bill imposes a significant increase in penalties, and this increase will potentially be offset by the ability to issue compliance infringement notices. I need to know more about that, and I will be asking about that in the committee stage of the bill today.

The Liberal-Nationals coalition will not be opposing the Child Employment Amendment Bill, but we think it needs a bit of a communication strategy around it, because we do not want to affect small businesses, we do not want to affect families and, moreover, we want to give children the chance to be employed in an environment where it is safe for them to do so.

Business interrupted pursuant to sessional orders.