Victoria
Employing children
Employment of children in Victoria is governed by the Child Employment Act 2003.
Under these laws children under 15 years of age cannot be employed unless a permit has been granted by the Department of State Development, Business and Innovation.
It is an offence to employ a child under 15 years of age without a permit.
Children cannot be employed to work on a farm if they are younger than 13 years of age.
To apply for a permit, visit Business Victoria
There is no minimum age when a child can be employed in a ‘family business’. ‘Family business’ means a business carried on by a parent or guardian of the child.
Light work
Children can only be employed to perform ‘light work’ which is defined in the Act amongst other things to exclude working near moving vehicles, working in extreme weather conditions, working with power operated tools and dangerous equipment, manually lifting heavy items.
The work that the child performs must not be harmful to the child’s health safety and welfare and must not affect their learning ability or their ability to attend school.
The age sex and physical development and maturity of the child is relevant in determining what is ‘light work’.
The laws about ‘light work’ apply equally to family businesses.
Hours of work and rest breaks
The hours when a child may work are limited as follows:
- A maximum of 3 hours per day and 12 hours per week (inclusive of rest breaks) during school term;
- A maximum of 6 hours per day and 30 hours per week (inclusive of rest breaks) outside of school term;
- Not before 6 am or after 9 pm;
- Employment during school hours on a school day is prohibited.
A rest break of 30 minutes must be provided after every 3 hours work and there must be at least a 12 hour break between shifts.
It is an offence to employ children contrary to these specific provisions. Applications can be made to vary the hours of work requirements if required.
Except for the prohibition on work during school hours and on school days, the laws about hours of work do not apply to ‘family businesses’.
Supervision
Laws about supervision apply to all businesses employing children. It is an offence not to supervise a child working in any business including the family business.
All supervisors of children under 15 years of age, apart from parents and family members, must successfully complete a working with children check and records must be kept of all child supervisors.
To apply for a working with children check go to the Business Victoria website.
Records
Employers are required to keep certain records and documents when employing children.
Long service leave
Long service leave is paid leave granted to employees to recognise a long period of service to the employer. Long service leave applies to all employees including casual employees as long as there is not a break of longer than three months in their employment.
Seasonal workers may also be entitled to long service leave. If you have a seasonal worker who you think may be entitled to long service leave you should seek legal advice or advice from your state farming organisation.
There are also special rules which apply when a business is transferred or sold and in these circumstances you should legal advice or advice from your state farming organisation.
Entitlement to long service leave
The long service leave laws in Victoria changed as of 1 January 2006. Before then employees were entitled to long service leave of 13 weeks after 15 years continuous employment.
Since 1 January 2006, long service leave accrues at the rate of one week for each 60 weeks of employment with one employer.
For every five years after the initial 15 years, the employee is entitled to an additional four and one-third weeks leave.
The entitlement to take leave after 10 years of continuous employment applies since 1 January 2006 and is being phased in. Note that phasing in does not apply on termination of employment.
Casual employees and long service leave
Continuous employment
Long service leave is calculated on the basis of years of continuous employment. Continuous employment means employment which is not interrupted. Some breaks from work do not interrupt continuous employment for the purposes of the long service leave laws.
Paid or unpaid leave for illness or injury of any duration including WorkCover absences do not break continuity of service. All periods of paid leave including long service leave and paid or unpaid parental leave (up to 104 weeks of parental leave for casuals and seasonal employees) will not break continuity of service. Other forms of leave also do not break continuity of service. If the employment is terminated and re-employed within 12 weeks, continuity of service is not broken.
However, the following leave is not counted when calculating years of service for the purpose of calculating the long service leave entitlement:
- unpaid leave of longer than 52 weeks provided it is not leave for illness or injury;
interruptions due to industrial action; - the period during which the employee was not employed if the employee is dismissed and re-engaged within 12 weeks;
- stand down due to slackness of business or breakdown of machinery;
- any other form of leave provided by an oral or written employment agreement.
Note that for Workcover absences or absences due to illness or injury which occurred prior to 1 November 2018 only 48 weeks of absence in any one year counts towards the period of employment.
Casual and seasonal employees are deemed to have continuous employment where there is a break of more than 12 weeks between any instances of employment if any of the following apply:
- the employer and the employee agree before the start of the absence;
the employment contract provides for this; - the absence is caused by seasonal factors;
- the employment contract provides for this;
- the employee has been engaged on a regular and systematic basis and has a reasonable expectation of being re-engaged by the employer;
- the absence is due to the employee taking up to 104 weeks of parental leave.
Long service leave is paid at the ordinary weekly pay at the time the leave is taken, or the employee ceases employment. Ordinary pay includes the value of any board or lodgings the employee receives.
Payment for the leave can be made on the day the leave begins, on the usual payday or in any other way agreed to by the employer and the employee.
If there is an increase in the employee’s pay while the employee is on long service leave the employer must pay the increase to the employee when the employee returns to work.
After 1 January 2006, where an employee’s hours vary from week to week or where the employee’s hours have changed over the last 12 months, the employee’s hours for calculating long service leave should be averaged over the previous 12 months, or the previous five years, whichever average is the greater. The same applies where an employee is paid on results (piece work) or commissions.
If an employee dies before taking long service leave the amount owing must be paid to the employee’s personal representative.
Payment for long service leave
Long service leave is paid at the ordinary weekly pay at the time the leave is taken, or the employee ceases employment. Ordinary pay includes the value of any board or lodgings the employee receives.
Payment for the leave can be made on the day the leave begins, on the usual payday or in any other way agreed to by the employer and the employee.
If there is an increase in the employee’s pay while the employee is on long service leave the employer must pay the increase to the employee when the employee returns to work.
After 1 January 2006, where an employee’s hours vary from week to week or where the employee’s hours have changed over the last 12 months, the employee’s hours for calculating long service leave should be averaged over the previous 12 months, or the previous five years, whichever average is the greater. The same applies where an employee is paid on results (piece work) or commissions.
If an employee dies before taking long service leave the amount owing must be paid to the employee’s personal representative.
Taking long service leave
The actual date that long service leave commences should be agreed between the employer and the employee.
If the employer and the employee cannot agree, the employer can give the employee three months written notice of the requirement to take the long service leave.
Employees can make an application to the Industrial Division of the Magistrates Court if they do not want to take the leave as required by the employer. The Industrial Magistrate must take the needs of the employee’s business into account when making a decision.
The period of leave can be split into no more than three periods.
An employee and employer may make an agreement which allows the employee to take a period of leave at half pay. For example, an employee with 13 weeks accrued leave could take a 26-week break at half pay.
Taking long service leave in advance
Long service leave can also be taken in advance if agreed between the employer and employee. If the employment is terminated before the long service leave entitlement accrues the employer can deduct the amount paid for the leave given in advance from the employee’s pay.
Deferral of Long Service Leave
Employees can request that their long service leave be deferred. Any deferral must be confirmed in a written agreement with the employer. Note that the rate of pay when the employee takes the long service leave is to be agreed between the employer but must not be less than the employee’s ordinary rate of pay at the time the leave was due.
Long service leave and termination of employment
If employment is terminated after seven years, long service leave must be paid on a pro-rata basis of 1/60th of the period of continuous employment. The amount owing must be paid on the day the employment ends as if the employee is taking the long service leave. This means that if a public holiday falls within the period covered by the payment it must also be added to the long service leave payment.
Cashing out of long service leave
Cashing out of long service leave is not permitted under the Long Service Leave Act and it is an offence to give or receive payment instead of the employee actually taking the break from work.
Cashing out of long service leave is however permitted on termination of employment.
Public holidays and long service leave
Since 1 January 2006, a public holiday falling within the period of leave is added to the period of leave.
Working while on long service leave
It is an offence to work while on long service leave or to employ someone who is on long service leave.
Residential tenancies laws
In Victoria, residential tenancy laws do not apply where the tenancy is a part of the employment contract.
Employers should however agree with employees on a fair period of notice which will apply in the event that the employment is terminated.
The notice period should be long enough to enable the employee to find alternative accommodation but also recognise the needs of the employer if the property is needed for a new employee. As a minimum, three to four weeks is considered to be fair in these circumstances.
